text:
    Marlon L. SAPP, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2487
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018 Rehearing Denied March 23, 2018
    Marlon L. Sapp, Orlando, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Marlon Sapp appeals an order prohibiting any future pro se filings in the circuit court. We affirm the imposition of the order but reverse and remand for a corrected order limited to filings related to Sapp's current incarceration and related judgment, conviction, and sentence.

Sapp is serving a twenty-five-year prison sentence. Since his incarceration, he has filed at least thirty-six pro se cases against various defendants. The trial court issued an order to show cause as to why Sapp should not be prohibited from filing any further pro se pleadings in the thirty-six pending cases and in any future cases seeking affirmative relief, without representation by a Florida Bar certified attorney. Sapp responded that it was not his intent to waste the court's finite resources, he believed he had legitimate bases for his claims, and his claims were not frivolous.

The trial court proceeded to issue an "Order Barring Plaintiff from Filing Pro Se Pleadings and Actions Seeking Affirmative Relief in the Above Cases and Future Cases" referencing the same thirty-six cases as the order to show cause. The court found that Sapp's response to the order to show cause lacked merit, his filings constituted an abuse of procedure, and his claims were all "baseless as a matter of law." The order also prohibited Sapp from filing pro se pleadings in "any of his other cases which have ever been pending" and in "any future cases in which [Sapp] seeks affirmative relief as a plaintiff."

A trial court's order prohibiting further pro se filings from a litigant is reviewed for abuse of discretion. Brinson v. State, 215 So.3d 1260, 1261 (Fla. 5th DCA 2017). "When a pro se litigant files frivolous law suits or pleadings in a lawsuit, the court has the authority to restrain such a litigant from abusing the legal system and prevent him from abusing, annoying, or harassing those against whom such suits or pleadings have been filed." Balch v. HSBC Bank, USA, N.A., 128 So.3d 179, 181 (Fla. 5th DCA 2013) ; see also Jackson v. Fla. Dep't of Corr., 790 So.2d 398, 402 (Fla. 2001) ("[T]he constitutional right of access to courts does not 'guarantee inmates the wherewithal to transform themselves into litigating engines.' " (quoting Jackson v. Fla. Dep't of Corr., 790 So.2d 381, 387 (Fla. 2000) ) ).

Sapp relies on Brinson to argue that the circuit court's order was overbroad because it prohibits future pro se filings unrelated to his current pending cases. 215 So.3d 1260. In Brinson, the defendant filed eight postconviction collateral attacks to his judgment, conviction, and sentence. Id. at 1261. This Court held that it was within the trial court's discretion to prohibit future pro se filings related to the defendant's conviction and sentence, whether related to his criminal case "or in any other case." Id. However, this Court also held that the trial court abused its discretion in issuing a blanket order prohibiting the defendant "from filing any pro se pleadings, motions, or petitions in any case in the Seventh Judicial Circuit, St. Johns County, even if completely unrelated to" the defendant's judgment, conviction, or sentence. Id. We concluded that the order prohibiting further pro se filings was overbroad, particularly because the order to show cause only provided that the ban would apply to the defendant's challenges to his conviction and sentence, and it did not provide that it would apply in cases unrelated to his criminal conviction. Id.

While we recognize that the prohibition against further pro se filings is a drastic step, the prohibition is warranted in Sapp's case. Sapp has filed over thirty-six civil actions against a host of defendants. The Florida Supreme Court has held that it is sometimes appropriate to "sanction petitioners who abuse the legal process by requiring them to be represented by counsel in future actions." Lussy v. Fourth Dist. Court of Appeal, 828 So.2d 1026, 1027 (Fla. 2002). This Court has also deemed it appropriate to prohibit future pro se appeals and impose restraints on pro se litigants "when one person, by his activities, upsets the normal procedure of the court so as to interfere with the causes of other litigants." Platel v. Maguire, Voorhis & Wells, P.A., 436 So.2d 303, 304 (Fla. 5th DCA 1983). Requiring representation by counsel in future cases does not equate to the complete denial of access to courts. Id. Additionally, such a restraint is within the judiciary's "inherent power to prevent abuse of court procedure." Id.

Because Sapp has filed numerous frivolous cases in the lower court, the trial court properly exercised its "inherent power to prevent abuse of court procedure" by prohibiting further pro se filings in the circuit court. See id. However, in accordance with Brinson, we reverse and remand for correction of the order to limit the prohibition to cases and causes of action relating to Sapp's current incarceration and associated judgment, conviction, and sentence.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

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

      The trial court classified Sapp's claims in the thirty-six cases as "vague baseless civil rights claims against numerous judges, law enforcement officers, police departments, the Office of the State Attorney, etc." and noted that Sapp alleged the "exact same allegations" in most of the lawsuits.


source: Caselaw Access Project

author: COHEN, C.J.

license: Public Domain

text:
    Fred HALL, Appellant, v. SOUTHCREEK HOMEOWNERS ASSOCIATION, INC., Appellee.
    Case No. 5D17-334
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Matthew G. Mercer, Taylor Anne Morgan and Catie Smith, of Mercer Law, P.A., St. Augustine, for Appellant.
    Rosanne P. Perrine, of Law Office of Rosanne P Perrine, P.A., Ponte Vedra Beach, for Appellee.
   COHEN, C.J.

Fred Hall filed a fourth-amended, twelve-count complaint against Southcreek Homeowners Association, seeking declaratory and injunctive relief on several issues. The trial court denied all requested relief after a nonjury trial. We affirm in all respects but write to address the denial of counts XI and Xll of the complaint.

Hall is a member of the homeowners' association operated by Southcreek. In counts Xl and Xll of the operative complaint, Hall sought declaratory and injunctive relief based on allegations that there were nonmembers of the association who were paying assessments and casting votes at member meetings. The trial court denied these claims on the merits, concluding that Hall failed to identify the nonmembers or prove how many existed. As an alternative basis for its conclusion, the court found that Hall lacked standing to assert this claim because, although he claimed that having nonmembers voting and paying assessments could subject him to a lawsuit for the return of those assessments, no lawsuit had ever been threatened or filed and thus "[s]uch speculation [was] insufficient to establish standing."

Hall contends that the denial of counts XI and XII should be reversed because the trial court relied on an affirmative defense not raised in the pleadings or otherwise-lack of standing. Hall also argues that he presented sufficient evidence that there are six nonmember lots, nonmembers satisfy the quorum requirements at meetings, and nonmembers have voted on increasing assessments. Southcreek responds that the trial court properly denied these claims on the merits because Hall presented insufficient evidence as to which homeowners were nonmembers of the association.

Hall is correct that the trial court erred in raising the affirmative defense of lack of standing sua sponte. See Lawson v. Frank, 197 So.3d 1269, 1271 (Fla. 2d DCA 2016) (holding trial court could not sua sponte dismiss complaint for lack of standing; lack of standing is an affirmative defense that must be raised by the parties). However, although the court phrased the issue as lack of standing, it properly denied declaratory and injunctive relief based on the speculative nature of Hall's claims. "Florida courts will not render, in the form of a declaratory judgment, what amounts to an advisory opinion at the instance of parties who show merely the possibility of legal injury on the basis of a hypothetical 'state of facts which have not arisen' and are only 'contingent, uncertain, [and] rest in the future.' " Santa Rosa Cty. v. Admin. Comm'n, Div. of Admin. Hearings, 661 So.2d 1190, 1193 (Fla. 1995) (alteration in original) (quoting LaBella v. Food Fair, Inc., 406 So.2d 1216, 1217 (Fla. 3d DCA 1981) ).

At trial, Hall presented no evidence that any specified nonmember lot was currently casting votes to increase member assessments. There was testimony that in the past, including while Hall was president, the association's policy was to collect assessments from all lots, including nonmembers. During that time, if assessments were collected, the nonmember lots were allowed to vote. However, that testimony was historical, encompassing 2005 through 2010. Likewise, the documentary evidence pertaining to nonmember voting, including Exhibit 38 that lends support for Hall's assertion, was undated. There was no evidence that as of the time of trial, nonmember lots were allowed to cast votes to increase member assessments. Nor was there any evidence that there were any impending legal issues with nonmembers concerning the collection of assessments. Accordingly, the trial court properly denied declaratory and injunctive relief in counts XI and XII.

AFFIRMED.

PALMER and LAMBERT, JJ., concur.

      Hall is a prior president of Southcreek. He resigned in 2010 in the face of a recall vote.


author: EMAS, J.

text:
    David RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-193
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2018
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
    ON MOTION TO REVIEW ORDER DENYING POST-TRIAL RELEASE
   EMAS, J.

David Ruiz seeks review of the trial court's order denying his motion for supersedeas bond. We hold that the trial court abused its discretion in denying the motion for supersedeas bond without proper consideration of the principles established in Younghans v. State, 90 So.2d 308 (Fla. 1956) and later formalized in Florida Rule of Criminal Procedure 3.691. We reverse the trial court's order denying bond, and remand with instructions to immediately reconsider Ruiz's motion for supersedeas bond and, if appropriate, to set reasonable conditions of release pending appeal.

Ruiz was arrested in August 2015 and charged with, inter alia, three felonies: two counts of battery on a law enforcement officer and one count of resisting an officer with violence. Ruiz was released pretrial on bond and remained out of custody on pretrial release without incident for more than two years during the pendency of the prosecution. Ruiz alleged, without dispute from the State, that during this two-year period he attended court on each occasion his appearance was required and did not violate any conditions of his pretrial release.

On November 28, 2017, following a jury trial, Ruiz was convicted of one count of battery on a law enforcement officer, one count of simple battery, and one count of resisting an officer with violence. Following the verdict, the trial court permitted Ruiz to remain out of custody and on house arrest pending sentencing, scheduled to be held two months later. While awaiting sentencing, Ruiz appeared in court on three separate occasions as directed, and did not violate any conditions of his post-trial/pre-sentencing release. During this time Ruiz asserts that he also completed an anger management course and attended alcoholics anonymous several times per week.

In advance of the sentencing hearing, Ruiz submitted to a forensic psychological examination. The psychologist noted Ruiz was cooperative, mild-mannered and respectful. At the conclusion of his examination and evaluation, the psychologist indicated that Ruiz presented a low probability of future violence, low probability of serious physical harm, and low risk on both the clinical and future risk management scales.

A sentencing hearing was held on January 25, 2018, where the defense requested a sentence of probation. Judge Stacy Glick sentenced Ruiz to 364 days in the Dade County Jail. In imposing this sentence, the trial judge noted that Ruiz was neither a danger to the community nor likely to reoffend. The trial judge also denied Ruiz's previously-filed motion for new trial, which raised eight separate errors, each of which Ruiz contended warranted a new trial. At the conclusion of the sentencing hearing, Ruiz was taken into custody and the trial court appointed the Office of the Public Defender to represent Ruiz on appeal. The following day, counsel filed a motion for supersedeas bond.

The hearing on the motion for supersedeas bond was held on February 1, 2018. Following that hearing, Judge Glick entered an order denying the motion and adopted, as her basis for so ruling, the contemporaneous oral findings she made at the February 1 hearing. The transcript of that hearing reveals the following findings made by the trial judge as the basis for denying the motion:

The reason that you're still there [in custody] is because the jury found you guilty. You were facing up to 11 years in state prison. My initial sentence was going to be higher than I gave you 364 [days in jail-] based on the wishes of the officers. [The officers] believe that you should have gotten more. I did not give you the maximum. I didn't even give you close to the max. I gave you 364. You asked me why you're here. I heard the facts of the case and that's why you're here. You were found guilty. At this time I am going to deny the motion for supersedeas bond.

It would appear, from the statements made by the trial judge, that she denied the motion for bond pending appeal for two reasons: (1) the jury found Ruiz guilty; and (2) she already gave Ruiz a "break" by sentencing him to only 364 days in the Dade County Jail, a sentence well below the statutory maximum and less than the sentence requested by the police officers in this case.

We will not belabor the point that neither of these findings serves as a proper basis to deny a motion for bond pending appeal. Indeed, and as Ruiz's motion for review cogently observes, the first "reason" necessarily applies to every single defendant requesting a supersedeas bond. Were they not already found guilty they would not be seeking a bond pending appeal. As to the second "reason," we presume that the trial judge fashioned a sentence she determined to be appropriate given the circumstances of the case and the background of the defendant. There is simply no support for the proposition that, because the trial judge's sentence was below the maximum, or less than that requested by the victim, the defendant received a "break," for which he forfeited any valid consideration of a motion for bond pending appeal.

Rule 3.691 guides the trial court's consideration of a motion for bond pending appeal, and provides in pertinent part:

(a) When Authorized. All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans v. State, 90 So.2d 308 (Fla.1956), provided that no person may be admitted to bail on appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. However, in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and the person's civil rights have not been restored or if other felony charges are pending against the person and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.
(b) Written Findings. In any case in which the court has the discretion to release the defendant pending review of the conviction and, after the defendant's conviction, denies release, it shall state in writing its reasons for the denial.
(c) Review of Denial. An order by a trial court denying bail to a person pursuant to the provisions of subdivision (a) may be reviewed by motion to the appellate court and the motion shall be advanced on the calendar of the appellate court for expeditious review.
(d) Conditions of Release. If the defendant is released after conviction and on appeal, the condition shall be: (1) the defendant will duly prosecute the appeal; (2) the defendant will surrender himself or herself in execution of the judgment or sentence on its being affirmed or modified or on the appeal being dismissed; or in case the judgment is reversed and the cause remanded for a new trial, the defendant will appear in the court to which the cause may be remanded for a new trial, that the defendant will appear in the court to which the cause may be remanded and submit to the orders and process thereof and will not depart the jurisdiction of the court without leave.
(e) Approval of Bond. The court shall approve the sufficiency and adequacy of the bond, its security, and sureties, prior to the release of the defendant.

The principles of Younghans, 90 So.2d at 310, are expressly incorporated into rule 3.691, requiring as a threshold that "the appeal is taken in good faith, on grounds not frivolous but fairly debatable." Id. See also Fla. R. Crim. P. 3.691(a). The Younghans court further observed:

Of course, the purpose of bail is to secure the attendance of the accused to answer the charge against him; and if there are circumstances to indicate that the accused will flee and thus evade punishment if his conviction is affirmed, the trial judge may properly exercise his discretion against the allowance of bail.

Id.

Younghans established several factors the trial court should consider in determining whether to grant bond pending appeal:

(1) the habits of the individual as to respect for the law, (2) his local attachments to the community, by way of family ties, business, or investments, (3) the severity of the punishment imposed for the offense, and any other circumstances relevant to the question of whether the person would be tempted to remove himself from the jurisdiction of the court.

Id.

Younghans recognized one final and important factor: "[I]n a case where the term of imprisonment imposed is short, the trial court might also consider whether the denial of bail would render nugatory the right to appeal from the judgment of conviction." Id.

The motion filed by Ruiz, and the proffer contained therein (the accuracy of which was not disputed or contradicted by the State), indicates that:

- Given his record of appearances during the two-year pendency of the prosecution, and his abiding by all conditions of his pre-trial release, the trial court itself noted at the sentencing hearing that it "was not worried about you [Ruiz] not showing up for court;"
- Even after his conviction, and during the two months that Ruiz was awaiting his sentence, the trial court permitted Ruiz to remain at liberty on house arrest;
- Ruiz has never previously been convicted of a crime or arrested for a crime;
- Ruiz is a lawful permanent resident of the United States. He completed high school and community college in New York, and then worked as a division manager with a mortgage brokerage firm until the financial collapse in 2008. Ruiz moved to Miami in 2010;
- Ruiz has business ties to the community: he has been employed since moving to Miami in 2010, and was working at Carnival Cruise Lines prior to and following his arrest, which employment continued up until the time he was taken into custody following imposition of sentence;
- Ruiz has family ties in Miami, including his four-year-old daughter who lives in Miami and who relies upon Ruiz for financial support;
- Ruiz was sentenced to 364 days in the Dade County Jail, a sentence which may well be completed before the appeal is concluded, which would render "nugatory the right to appeal from the judgment of conviction." Younghans, 90 So.2d at 310.

Under these circumstances, and in light of the reasons announced orally by the trial court for its denial of the motion, we hold that the trial court abused its discretion in denying Ruiz's motion for supersedeas bond. We grant Ruiz's motion for review, and reverse the trial court's order denying the motion. The trial court shall, within seven days of this opinion, hold a hearing to reconsider Ruiz's motion for supersedeas bond pursuant to rule 3.691 and the principles established in Younghans and, if appropriate, set reasonable conditions for Ruiz's release pending appeal. See Dumas v. State, 889 So.2d 139, 141 (Fla. 4th DCA 2004) (reversing and remanding for reconsideration of motion where record fails to show that trial court considered the Younghans factors or that it based its denial of bond on appropriate factors). This opinion shall take effect immediately, notwithstanding the filing or disposition of any motion for rehearing.

      We have jurisdiction. See Fla. R. App. P. 9.140(h)(4) (providing that the district court shall review, upon motion of a party, an order relating to post-trial release of the defendant). See also Fla. R. Crim. P. 3.691(d) (providing that "[a]n order by a trial court denying bail to a person pursuant to the provisions of subdivision (a) may be reviewed by motion to the appellate court and the motion shall be advanced on the calendar of the appellate court for expeditious review.")

      The State, in its response to the motion for review, does not challenge the proposition that Ruiz has met this relatively low threshold. See, e.g., Robinson v. State, 201 So.3d 666, 668 (Fla. 3d DCA 2016) (noting that rule 3.691(a)'s requirement that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous "does not mean there is probable cause to believe the judgment will be reversed, but simply that the appeal is not vexatious and the defendant has assigned errors that are open to debate and about which reasonable questions exist") (quoting Baker v. State, 213 So.2d 285 (Fla. 4th DCA 1968) ).

      We note that Ruiz is a citizen of Colombia. At the hearing on the motion for supersedeas bond, the State argued that Ruiz's residency status, combined with his now-current status as a sentenced inmate, made Ruiz a flight risk should he be released on bond pending appeal. We note, however, the mere fact that Ruiz is a Colombian citizen who may be subject to deportation at the end of his sentence is not conclusive on whether he presents a flight risk. Dumas v. State, 889 So.2d 139, 141 (Fla. 4th DCA 2004). We further note Ruiz's counsel represented at the hearing that Ruiz had already surrendered his passport as a condition of remaining out of custody while awaiting sentencing.

      If on reconsideration the court denies the motion, it shall enter a written order setting forth the reasons for its denial. See rule 3.691(b).


author: Gross, J.

text:
    John A. CATALO and Catalo Appraisal & Realty, Inc., Appellants, v. LLANO FINANCING GROUP, LLC, Appellee.
    No. 4D16-4348
    District Court of Appeal of Florida, Fourth District.
    February 14, 2018
    Roy W. Jordan, Jr. of Roy W. Jordan, P.A., West Palm Beach, for appellants.
    Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for appellee.
   Gross, J.

This is an appeal from an order denying attorneys' fees based on a proposal for settlement filed by the defendants. Due to the untimeliness of appellants' motions for attorneys' fees in the circuit court, we affirm in part. We reverse and remand as to appellate attorneys' fees, which were not dependent on an award of fees at the trial court level.

The circuit court originally dismissed the case with prejudice on February 25, 2016. The court later determined that the order of dismissal was not a final order and entered a second order of dismissal on May 13, 2016. Appellee/plaintiff appealed the second order of dismissal; this court dismissed the appeal for lack of jurisdiction, ruling that the February 25 order was a final order and that the plaintiff failed to timely move for rehearing, so the appeal was untimely. We also granted appellate attorneys' fees "conditioned on the trial court determining that [appellants/defendants] are entitled to fees under section 768.79, Florida Statutes, and, if so, to set the amount of the attorneys' fees to be awarded for this appellate case."

Appellants' first motion for fees was filed on April 22, 2016, more than 30 days after the February 25 order of dismissal. A second motion for fees was filed on May 13, 2016, the same day that the second order of dismissal issued.

The circuit court took up the issue of appellants' entitlement to attorneys' fees and held a hearing. The court ultimately denied all attorneys' fees due to problems with service of the motions.

We do not reach the issue of the propriety of the service because we affirm the denial of trial level attorneys' fees under the tipsy coachman rule. "Under the tipsy coachman rule, 'if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support judgment in the record.' " Bueno v. Workman , 20 So.3d 993, 998 (Fla. 4th DCA 2009) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 644 (Fla. 1999) ).

Pursuant to Florida Rule of Civil Procedure 1.525, a motion for attorneys' fees must be served "no later than 30 days after filing of the judgment, including a judgment of dismissal." See also Swift v. Wilcox , 924 So.2d 885, 886 (Fla. 4th DCA 2006), aff'd Barco v. Sch. Bd. of Pinellas Cty. , 975 So.2d 1116, 1124 (Fla. 2008). Additionally, section 768.79, Florida Statutes, requires the party seeking fees pursuant to an offer of judgment to file its motion for attorneys' fees within 30 days after the entry of judgment or after voluntary or involuntary dismissal. See § 768.79(6), Fla. Stat. (2016) ("Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal....").

In this case, the April 22 and May 13 motions were served after the 30-day time limit from the operative February 25 dismissal, so they were untimely.

We agree with appellants that our award of appellate attorneys' fees was not dependent upon their entitlement to trial level attorneys' fees. See Disney v. Vaughen , 804 So.2d 581, 583 (Fla. 5th DCA 2002) (rejecting "Vaughen's argument that obtaining a ruling on a motion for trial attorney's fees in the trial court is necessary before a party may obtain appellate attorney's fees."); Spencer v. Barrow , 752 So.2d 135, 138 (Fla. 2d DCA 2000).

We therefore reverse the denial of appellate attorneys' fees and remand to the circuit court to determine entitlement and, if appropriate, the amount. We note that in the first appeal, little was required of the appellants (appellees in the first appeal). No briefs were filed and appellants' filings were few.

Forst and Kuntz, JJ., concur.


author: MORRIS, Judge.

text:
    Armando PAYAS, as personal Representative of the Estate of Bernardo Galarza, deceased, and on behalf of the Estate of Ana Galarza, deceased, Appellant, v. ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a Florida Hospital d/b/a Celebration Health; Florida Hospital Medical Group, Inc. d/b/a Advanced Minimally Invasive & Bariatric Surgical Consultants; Eduardo Parra Davila, M.D.; Florida Health Sciences Center, Inc. d/b/a Tampa General Hospital; Michael Albrink, M.D.; Murray Shames, M.D.; Steven Goldin, M.D.; John Chipko, M.D.; USF Health, Inc.; and Intuitive Surgical, Inc., Appellees.
    Case No. 2D16-3615
    District Court of Appeal of Florida, Second District.
    Opinion filed February 16, 2018.
    Carlos E. Diez-Arguelles and Maria Tejedor of Diez-Arguelles & Tejedor, P.A., Orlando; and Heather M. Kolinsky and Susan W. Fox of Fox & Loquasto, P.A., Orlando, for Appellant.
    Larry D. Hall and Ryan P. Kopf of Adams Hall Schieffelin & Smith, P.A., Winter Park, for Appellee Adventist Health System/Sunbelt, Inc. d/b/a Florida Hospital.
    No appearance for remaining Appellees.
   MORRIS, Judge.

Armando Payas, as personal representative of the estates of Bernardo Galarza and his wife, Ana Galarza, appeals a final order dismissing with prejudice his fourth amended complaint against Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital d/b/a Celebration Health. The complaint alleged that Mr. Galarza died from complications following surgery performed by Dr. Parra-Davila at Celebration Health to repair Mr. Galarza's paraesophageal hernia and two subsequent surgeries performed by other surgeons at different hospitals. In this appeal, Payas argues that the trial court erred in dismissing the fourth complaint against Celebration Health with prejudice because it contains sufficient allegations for causes of action for vicarious liability, breach of a nondelegable duty, and negligence. We agree and reverse the decision of the trial court.

I. Facts

The following facts are alleged in Payas's fourth amended complaint. In July 2009, Dr. Parra-Davila performed a paraesophageal hernia repair surgery on Mr. Galarza using a surgical robot. Celebration Health provided the surgical suite, medical staff, and the medical equipment, including the surgical robot. During the surgery, part of the surgical robot detached and became embedded in Mr. Galarza's esophagus. As a result, Mr. Galarza developed complications over the following months and years. A second surgery was performed by a different surgeon at Tampa General Hospital in July 2012 to determine the cause of his worsening symptoms, but the surgery was unsuccessful. In January 2013, a third, exploratory surgery was performed at Tampa General Hospital. During that surgery, Mr. Galarza's vena cava vein was ruptured, causing considerable blood loss, cardiac arrest, and ultimately his death. An autopsy revealed the presence of a thin, coiled band encircling the gastroesophageal junction. Payas alleged that this foreign object was part of the surgical robot that became detached during the first surgery in July 2009. Payas also alleged that a foreign object was observed during a CT scan of Mr. Galarza performed in April 2012 prior to his second surgery, although Mr. Galarza was never informed of this discovery.

Payas named numerous defendants in his lawsuit. Relevant to this appeal are the counts involving the first surgery in 2009 performed by Dr. Parra-Davila at Celebration Health. In count I, Payas alleged a count against Celebration Health for negligence for breach of a nondelegable duty during the first surgery. In count II, Payas alleged a direct negligence count against Celebration Health for negligent maintenance and operation of the surgical robot and training regarding use of the robot prior to the first surgery. In count III, Payas alleged negligence against Dr. Parra-Davila. In count IV, Payas alleged vicarious liability against Celebration Health for the negligence of Dr. Parra-Davila during the first surgery. In count V, Payas alleged vicarious liability against Celebration Health for the negligence of staff during the first surgery. Payas also alleged counts against other defendants relating to the first and third surgeries.

Celebration Health filed a motion to dismiss Payas's complaint with prejudice, arguing that the fourth amended complaint was Payas's fourth attempt to state claims against Celebration Health. Three prior complaints had been dismissed without prejudice, and Payas had been given leave to amend. Celebration Health claimed that the counts alleged in the fourth amended complaint failed to state proper causes of action, that Payas failed to comply with chapter 766, Florida Statutes (2015), and that the claims are barred by the statute of limitations. After a hearing, the trial court granted Celebration Health's motion and dismissed the counts against Celebration Health with prejudice because it contained "co-mingling of allegations" and the allegations were "still too vague."

II. Analysis

We review de novo the trial court's dismissal of Payas's complaint with prejudice. See Meadows Cmty. Ass'n v. Russell-Tutty, 928 So.2d 1276, 1278 (Fla. 2d DCA 2006). For purposes of a dismissal with prejudice, all factual allegations in the complaint must be taken as true and all reasonable inferences should be drawn in the appellant's favor. Wallace v. Dean, 3 So.3d 1035, 1042-43 (Fla. 2009) (quoting Ralph v. City of Daytona Beach, 471 So.2d 1, 2 (Fla. 1983) ); Toney v. C. Courtney, 191 So.3d 505, 507 (Fla. 1st DCA 2016). "It is not for the court to speculate whether the allegations are true or whether the pleader has the ability to prove them." Meadows Cmty. Ass'n, 928 So.2d at 1279 (quoting Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001) ).

A complaint must allege "a short and plain statement of the ultimate facts showing that the pleader is entitled to relief." Fla. R. Civ. P. 1.110(b)(2). "[T]he phrase 'ultimate facts' is used to refer to logical conclusions that are deduced from evidentiary facts. Ultimate facts are the final effect of legal reasoning from the evidentiary facts." Philip J. Padovano Florida Civil Practice § 7.13 at 246, 246 (2018 ed.). "It is not necessary or even proper to allege the evidentiary facts in a pleading that asserts a claim ...." Id. at § 7.5 at 218.

A. Vicarious liability

Payas argues that the trial court erred in dismissing counts IV and V because he sufficiently pleaded vicarious liability against Celebration Health for the negligence of Dr. Parra-Davila and the surgical staff involved in Mr. Galarza's first surgery in July 2009. In count IV, Payas alleged that Dr. Parra-Davila was an employee, agent, or apparent agent of Celebration Health and that Celebration Health, through Dr. Parra-Davila, breached its duty to provide Mr. Galarza with the prevailing professional standard of medical care. Payas alleged the following breaches by Dr. Parra-Davila: he negligently placed and left a foreign object in the abdomen of Mr. Galarza; he failed to ensure that no foreign objects remained in Mr. Galarza's body; he failed to warn Mr. Galarza of the risks associated with the robotic surgery; he failed to obtain full and informed consent from Mr. Galarza; he failed to attend training and instruction on the use of the surgical robot; he failed to appropriately follow hospital policies, procedures, and/or bylaws that required staff to be trained in the use of the robot; and he failed to follow hospital policies, procedures, and/or bylaws that required staff to ensure that all medical devices used during surgery were accounted for.

In count V, Payas alleged that Celebration Health, through its nurses and medical staff involved in the first surgery, breached its duty to provide Mr. Galarza with the prevailing professional standard of medical care. Payas alleged the following breaches by the staff: the staff failed to ensure that no foreign bodies remained in Mr. Galarza's body; the staff failed to attend training and instruction on the use of the surgical robot; the staff failed to appropriately follow hospital policies, procedures, and/or bylaws that required staff to be trained in the use of the robot; and the staff failed to follow hospital policies, procedures, and/or bylaws that required staff to ensure that all medical devices used during surgery were accounted for.

The theory of vicarious liability holds "employers liable for the negligence of their employees for wrongful acts committed within the course and scope of their employment." Cintron v. St. Joseph's Hosp., Inc., 112 So.3d 685, 686 (Fla. 2d DCA 2013) ; see also Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 874 (Fla. 2d DCA 2010) (noting that under the theory of vicarious liability, "an employer is burdened with the liability resulting from the negligence of its employees; i.e., the employee's liability is imputed to the employer"). Whether a hospital is liable for the negligent acts of a physician depends on whether the physician is an independent contractor and whether the physician is acting as an agent of the hospital. See Godwin v. Univ. of S. Fla. Bd. of Trs., 203 So.3d 924, 929 (Fla. 2d DCA 2016), review denied, SC16-2107, 2017 WL 1034486 (Fla. Mar. 17, 2017). "[A] hospital that retains an independent contractor to provide medical services may still be liable for the negligence of the independent contractor if the hospital cloaked her with apparent authority to act on its behalf." Id. (citing Webb v. Priest, 413 So.2d 43, 47 n.2 (Fla. 3d DCA 1982) ). More to the point, "where it can be shown that a hospital, by its actions, has held out a particular physician as its agent and/or employee and that a patient has accepted treatment from that physician in the reasonable belief that it is being rendered [on] behalf of the hospital, then the hospital will be liable for the physician's negligence." Kristensen-Kepler v. Cooney, 39 So.3d 518, 520 (Fla. 4th DCA 2010) (quoting Stone v. Palms W. Hosp., 941 So.2d 514, 520 (Fla. 4th DCA 2006) ).

Here, Payas alleged that the surgical staff involved in the first surgery and Dr. Parra-Davila were acting as Celebration Health's employees or agents. Payas also alleged in the alternative the necessary elements to show that the surgical staff and Dr. Parra-Davila had the apparent authority to act on behalf of Celebration Health. See id. ("To establish apparent authority, the plaintiff would have to show that: (1) [the defendant] made a representation to the patient; (2) the patient relied on the representation; and (3) the patient changed his position as a result of that reliance."). Payas further alleged the duties owed by Dr. Parra-Davila and the surgical staff in regard to the first surgery, their specific failures that constituted breaches of their duties, and the injury caused by the breaches. Counts IV and V sufficiently charged the vicarious liability of Celebration Health, and thus the trial court erred in dismissing counts IV and V. See Meadows Cmty. Ass'n, 928 So.2d at 1278 ("[W]here a complaint contains sufficient allegations to acquaint the defendant with the plaintiff's charge of wrongdoing so that the defendant can intelligently answer the same, it is error to dismiss the action on the ground that more specific allegations are required." (alteration in original) (quoting Fontainebleau Hotel Corp. v. Walters, 246 So.2d 563, 565 (Fla. 1971) ).

B. Nondelegable duty

Payas next argues that the trial court erred in dismissing count I because he alleged in his complaint that Celebration Health assumed a nondelegable duty to properly maintain the surgical robot and to ensure that it was used with reasonable care. He claims that Celebration Health's ownership, marketing, and maintenance of the surgical robot created a nondelegable duty of reasonable care with respect to the surgical robot.

A hospital may be liable for the acts of an independent contractor when the hospital has a nondelegable duty. Newbold-Ferguson v. AMISUB (North Ridge Hosp.), Inc., 85 So.3d 502, 505 (Fla. 4th DCA 2012) ; Pope v. Winter Park Healthcare Grp., Ltd., 939 So.2d 185, 188 (Fla. 5th DCA 2006). Such a duty may arise out of a statute, a regulation, a contract, or the common law. Pope, 939 So.2d at 188.

Under the common law, nondelegable duties typically arise out of the performance of ultra-hazardous activity. "There are no specific criteria for determining whether or not a duty is nondelegable except for the rather ambiguous defining characteristic that the responsibility is so important to the community that the [original party] should not be allowed to transfer it to a third party."

Pope, 939 So.2d at 188 (alteration in original) (quoting Dixon v. Whitfield, 654 So.2d 1230, 1232 (Fla. 1st DCA 1995) ).

The liability for a nondelegable duty that we impose directly upon the employer of an independent contractor is grounded in a special public policy to protect third persons in an area of inherent danger and to encourage conscientious adherence to standards of safety where injury likely will result in the absence of precautions.

Armiger, 48 So.3d at 875 (quoting Saiz v. Belen Sch. Dist., 113 N.M. 387, 827 P.2d 102, 114-15 (1992) ).

[A]n owner of a business that invites members of the public onto its business premises may ... hire an independent contractor to perform tasks that the owner has a nondelegable duty to third parties to perform. But the owner may not contract away his or her legal responsibility for the proper performance of the nondelegable duty.

Id. (first citing U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So.2d 268, 270 (Fla. 3d DCA 1995) ; then citing Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 679 (Fla. 3d DCA 1980) ).

In count I of the fourth amended complaint, Payas alleged that Celebration Health owned, maintained, and operated the surgical robot at its hospital, that it marketed itself by promoting the advantages of surgery using the surgical robot, and that it permitted Dr. Parra-Davila to perform Mr. Galarza's first surgery using the surgical robot. Payas alleged that Celebration Health had a nondelegable duty when it provided surgical services using a dangerous robotic device and that because the duty was so vitally important to the community, it could not shift its responsibility to an independent contractor. Payas alleged that Celebration Health breached its duties in various ways, causing damage to Mr. Galarza. Payas's allegations were sufficient to state a claim that Celebration Health had a nondelegable duty when it provided the robotic surgery to Mr. Galarza, and the trial court erred in dismissing count I with prejudice. We express no opinion on whether Payas will be able to prove this claim, or any other claim, against Celebration Health.

C. Negligence

Last, Payas argues that the trial court erred in dismissing count II against Celebration Health for negligence. He contends that the count alleged that Celebration Health's liability arises out of its failure to properly maintain and operate the surgical robot and to properly train its staff on the proper use of the surgical robot. Payas contends that even if Celebration Health's negligence in regard to the surgical robot is considered medical negligence and subject to the presuit notice requirements of chapter 766, he alleged compliance with the presuit notice requirements.

A plaintiff may allege ordinary negligence claims against a hospital. See Feifer v. Galen of Fla., Inc., 685 So.2d 882, 885 (Fla. 2d DCA 1996) ("[Chapter 766] did not abolish ordinary negligence claims against those who may be in the business of providing medical care or services. If a plaintiff can successfully allege factual matters constituting ordinary negligence, he or she is not precluded from doing so."). But a claim of negligence is subject to the presuit notice requirements of chapter 766 if "[t]he wrongful act [is] directly related to the improper application of medical services[ ] and the use of professional judgment or skill." Corbo v. Garcia, 949 So.2d 366, 368 (Fla. 2d DCA 2007) (alterations in original) (quoting Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1003 (Fla. 3d DCA 1997) ).

In dismissing count II, the trial court did not determine that Payas's claim constituted a claim for medical negligence that is subject to the presuit notice requirements of chapter 766 or that Payas failed to comply with such requirements; rather, the trial court dismissed the counts as being vague and commingled. As with the other counts above, we conclude that the allegations in count II were sufficient to state a cause of action for direct negligence. See generally Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003) (holding that negligence is comprised of four elements: duty, breach of that duty, proximate cause, and damage). We express no opinion regarding whether count II is subject to the presuit notice requirements of chapter 766 on the basis that it arose out of the rendering of medical care or services. See Corbo, 949 So.2d at 369-70 (holding that plaintiff's claim was subject to presuit notice requirements of chapter 766 because she alleged that her injuries were the "direct result of her receiving physical therapy treatment from the" defendants and "[t]he fact that injury was caused by the use of the equipment during the rendering of medical treatment" placed the claim "into the realm of a medical negligence claim"); cf. Broadway v. Bay Hosp., Inc., 638 So.2d 176, 177 (Fla. 1st DCA 1994) (holding that where plaintiff alleged that she suffered injuries when her hospital bed collapsed, plaintiff sued hospital "for the failure to warn of a dangerous condition or properly maintain a piece of equipment, rather than for breach of some professional standard of care" and complaint was not subject to medical malpractice presuit notice requirements). Payas alleged in his complaint that he complied with the presuit notice requirements of chapter 766, but Celebration Health argued in its motion to dismiss that Payas failed to comply with such requirements.

The trial court did not address this issue at the hearing on Celebration Health's motion to dismiss or in its order of dismissal but may consider it on remand. See Lakeland Reg'l Med. Ctr. v. Pilgrim, 107 So.3d 505, 509 (Fla. 2d DCA 2013) (holding that whether chapter 766 applies to the plaintiff's complaint "should be determined by the trial court applying the law to the facts necessary to make the decision").

III. Conclusion

In sum, Payas's complaint against Celebration Health was not defective. The facts and theories of liability alleged against Celebration Health were sufficient to place Celebration Health on notice of the nature of the claims against it so that it may defend the claims. The counts against Celebration Health are interrelated because they are based on a single surgery, and Payas is permitted to allege alternative theories regarding Celebration Health's liability in regard to that surgery. See Fla. R. Civ. P. 1.110(b) ("Relief in the alternative or of several different types may be demanded."); DiChristopher v. Bd. of Cty. Comm'rs, 908 So.2d 492, 495 (Fla. 5th DCA 2005) ("[I]f a plaintiff is unsure of the correct legal basis for relief, he may plead in the alternative. A plaintiff may set out the facts of the occurrence or transaction and demand judgment in his favor on several bases, even mutually exclusive ones." (citing Quality Type & Graphics v. Guetzloe, 513 So.2d 1110 (Fla. 5th DCA 1987) )). Accordingly, we reverse the order dismissing counts I, II, IV, and V with prejudice and remand for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and KELLY, JJ., Concur.


author: LUCAS, Judge.

text:
    Oscar TORO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4349
    District Court of Appeal of Florida, Second District.
    Opinion filed February 16, 2018
    Oscar Toro, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrew Tetreault, Assistant Attorney General, Tampa, for Appellee.
   LUCAS, Judge.

Oscar Toro appeals from an order denying his motion for postconviction relief after an evidentiary hearing in which he appeared pro se following the discharge of his court-appointed counsel. The State has conceded error. Mr. Toro was previously deemed entitled to appointment of counsel for his postconviction motion. See Williams v. State, 472 So.2d 738, 740 (Fla. 1985) ; Graham v. State, 372 So.2d 1363, 1365-66 (Fla. 1979). We held in Freeman v. State, 65 So.3d 553 (Fla. 2d DCA 2011), that after such a finding has been made, a defendant who wishes to discharge court-appointed postconviction counsel and proceed pro se must have the benefit of a hearing conducted "within the rubric of Faretta[ v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ]." Freeman, 65 So.3d at 557 (quoting Rose v. Crosby, No: 8:93-CV-1169-T-23EAJ, 2006 WL 4701821 at *1 (M.D. Fla. Apr. 26, 2006) ). Because the postconviction court's statement to Mr. Toro that he could either proceed with his court-appointed counsel or represent himself does not satisfy what was contemplated in Freeman, we must accept the State's concession.

Our decision in Freeman did not articulate any particular inquiries that would satisfy a hearing conducted "within the rubric of Faretta," id.; however, we agree with Mr. Toro that what transpired between Mr. Toro and the postconviction court below was insufficient. As we explained in Freeman, a postconviction court has discretion to permit a defendant in a noncapital postconviction proceeding to proceed pro se. Id. But it is incumbent upon the postconviction court, when undertaking such a discretionary act, to have an informed basis for its discretionary ruling. Id. ("[T]he exercise of that discretion must be informed by the facts and circumstances of the individual case ...."). The most meaningful way for a postconviction court to arrive at an informed basis to issue a ruling when a defendant requests to discharge appointed postconviction counsel (and facilitate an appellate court's review of that decision) is for the postconviction court to engage in some type of discourse with the defendant. Id.; see also Jones v. State, 69 So.3d 329, 335 (Fla. 4th DCA 2011) (recognizing that proper exercise of postconviction court's discretion to permit defendant to proceed pro se requires "[s]ome inquiry into the voluntary and intelligent nature of a movant's decision to seek self-representation" but holding that a "formal Faretta" hearing is not required). The postconviction court's brief dialogue with Mr. Toro did not-indeed, could not-reveal an informed basis from which the court could have concluded that Mr. Toro's decision to proceed pro se was "voluntary and intelligent." See Jones, 69 So.3d at 335 ; see also Freeman, 65 So.3d at 557 ("An uninformed exercise of discretion is, by definition, arbitrary, fanciful, or unreasonable." (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) ) ). Accordingly, we are compelled to reverse the postconviction court's order and remand for further proceedings. See id.

Reversed and remanded.

NORTHCUTT and MORRIS, JJ., Concur.

      We borrowed this term from a federal magistrate judge's report and recommendation. See Rose, 2006 WL 4701821 at *1. We note that the Rose order approving the report did not purport to impose a requirement for a hearing "within the rubric of Faretta" when a defendant expresses dissatisfaction with appointed postconviction counsel. Id. That language was simply a prefatory reference explaining the kind of hearing the magistrate judge conducted that preceded the reported findings. Id. Thus, our decision in Freeman should not be read to require a full Faretta hearing in circumstances such as those before us.

      THE COURT: You need to tell me whether you want to go forward with the hearing today with Ms. Lakeman or fire her and represent yourself and we will have a hearing at some point in the future with you representing yourself. Which of those two things do you want to do?
      Following this, Mr. Toro stated that he would proceed pro se.


author: PER CURIAM.

text:
    IN the INTEREST OF I.S., S.S., H.S., D.S., and J.H., children.
    S.S., Appellant, v. Department of Children and Families and Guardian ad Litem Program, Appellees.
    Case No. 2D17-2990
    District Court of Appeal of Florida, Second District.
    Opinion filed February 21, 2018
    Patrick R. Cunningham, Bradenton, for Appellant.
    Stephanie C. Zimmerman of Children's Legal Services, Bradenton, for Appellee Department of Children and Families.
    Laura J. Lee, Sanford, for Appellee Guardian ad Litem Program.
   PER CURIAM.

The "Final Judgment for Termination and Permanent Commitment and Disposition (As to the children H.S., D.S., and J.S. ONLY)" is affirmed. The appeal from the "Order Granting the Petition to Terminate Mother's Parental Rights (as to the children I.S. and S.S. ONLY)" is dismissed as an appeal from a nonappealable, nonfinal order.

Affirmed in part; dismissed in part.

CASANUEVA, VILLANTI, and MORRIS, JJ., Concur.


text:
    James TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2259
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 23, 2018
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, C.J.

James Taylor appeals his three-year sentence in the Department of Corrections imposed following his violation of community control. Taylor was originally charged with two counts of robbery with a firearm, grand theft, and petit theft. He entered into a negotiated plea with the State in which the State entered a nolle prosequi on the robbery and petit theft charges, and Taylor pleaded guilty to the grand theft charge. Taylor received two years of community control, followed by three years of probation. The trial court accepted the negotiated plea and sentenced Taylor accordingly.

Taylor subsequently violated his community control by committing a new offense, failing to submit to electronic monitoring, and failing to remain confined to his approved residence. During the violation hearing, Taylor admitted each of those violations in an open plea to the court. Taylor's sentencing scoresheet for the grand theft conviction reflected 19.7 points. The court ordered a presentence investigation, which resulted in a recommendation for a state prison sentence. At sentencing, Taylor did not object to the court's consideration of the presentence investigation report. The court sentenced Taylor to three years' incarceration after finding Taylor to be a danger to the community, in part based on the allegations in the arrest affidavit regarding all of the original charges.

Taylor filed a motion to correct sentence, objecting to the court's consideration of the arrest affidavit. The motion was denied, and this timely appeal followed.

Section 775.082(10), Florida Statutes (2016), provides:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

Taylor argues that the trial court erred in considering the arrest affidavit in finding that he presented a danger to the community because that conduct was affiliated with charges for which he was not convicted and the grand theft conviction alone would be insufficient to support the trial court's finding. We agree, in part. In sentencing Taylor, the court stated:

The facts of the case that he plead [sic] to involve a series of several robberies committed by two people wearing hooded sweatshirts pulled down tight up on their heads. It involved robberies from separate victims over a short period of time. In fact, one of the robberies involved the use of a firearm. And based on the facts of the case for which he has plead [sic] in consideration for his prior record I do believe you are a danger to our community.

The court gleaned those facts from the arrest affidavit and, if proven by the State, would have supported a state prison sentence. However, the State nolle prossed the robbery and petit theft charges, and Taylor pleaded to only the grand theft charge. The trial court's consideration of the firearm possession was foreclosed by the State's decision not to proceed on the charges that alleged possession of a firearm. See, e.g., Dinkines v. State, 122 So.3d 477, 481 (Fla. 4th DCA 2013) (concluding that trial court erred in relying on offenses for which defendant was not convicted to support a finding under section 775.082(10) ).

While Taylor requests that we direct the trial court to impose a non-state prison sentence, remand for resentencing is more appropriate. Although not mentioned by the trial court during sentencing, the presentence investigation report was submitted to the court without objection. On remand, the trial court is not foreclosed from considering the report and in otherwise reconsidering the appropriate sentence. Cf. State v. Fortson, 828 So.2d 1048 (Fla. 1st DCA 2002).

REVERSED AND REMANDED FOR RESENTENCING.

SAWAYA and EDWARDS, JJ., concur.

      Taylor was also charged with resisting an officer without violence and driving a motor vehicle without a license.

      The trial court's written findings also state that it relied on the arrest affidavit and the conduct described therein in concluding that Taylor presented a danger to the community.


author: Per Curiam.

text:
    Tyrone WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0415
    District Court of Appeal of Florida, First District.
    February 21, 2018 Rehearing Denied April 2, 2018
    Tyrone Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Wetherell, Rowe, and Jay, JJ., concur.


author: SLEET, Judge.

text:
    T.A., Appellant, v. STATE of Florida, Appellee.
    Case Nos. 2D17-2258
    District Court of Appeal of Florida, Second District.
    Opinion filed February 23, 2018.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SLEET, Judge.

T.A. challenges the trial court's juvenile disposition order in which the court found him guilty of committing the delinquent act of burglary of an occupied dwelling, withheld adjudication, and placed him on probation. However, neither the disposition order nor the court's oral pronouncement specifies the length of the probationary term imposed.

Because adjudication was withheld, the trial court could impose probation for an indefinite period not to exceed T.A.'s nineteenth birthday. See R.F. v. State, 42 So.3d 333, 335 (Fla. 2d DCA 2010). But "[i]t is not clear from the record whether the trial court intended to place [T.A.] on an indefinite period of probation or whether it was an oversight that the length of probation was not specified." See K.A. v. State, 152 So.3d 117, 118 (Fla. 2d DCA 2014). We therefore reverse the disposition order to the extent that it failed to set the length of T.A.'s probation and remand for a determination of the duration of probation. See id. We affirm the disposition order in all other respects.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and LUCAS, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Roger W. STUMP, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2408
    District Court of Appeal of Florida, Second District.
    Opinion filed February 23, 2018.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SILBERMAN, Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Roger W. Stump appeals the order that revokes his sexual offender probation after an evidentiary hearing and the resulting concurrent sentences for twenty-six counts of possession of child pornography. We affirm in all respects except as to count one.

Stump was placed on two years of sexual offender community control on count one in 2011. When the affidavit of violation of probation was filed in 2016, he had completed his community control on count one and was serving sexual offender probation on other counts. Because he had already completed his sentence on count one, the trial court did not have jurisdiction to impose a new sentence on that count. See Deal v. State, 162 So.3d 282, 282 (Fla. 2d DCA 2015) (stating that "the trial court lacked jurisdiction to impose new sentences on the counts for which Mr. Deal had completed his probationary sentences"). Therefore, we reverse the sentence on count one and direct the trial court to enter an order vacating the sentence and to modify the revocation order to reflect this change. See id. In all other respects we affirm.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and MORRIS, JJ., Concur.


author: Winokur, J.

text:
    Bobby BIGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2521
    District Court of Appeal of Florida, First District.
    February 23, 2018
    Bobby Bigham, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

The appellant, Bobby Bigham, appeals from an order denying his motion brought under Florida Rule of Criminal Procedure 3.800. For the reasons discussed below, we affirm.

In Bigham's motion, he argued that he was improperly charged with trafficking in hydrocodone (14 grams or more, but less than 28 grams) pursuant to section 893.135(1)(c)1.b, Florida Statutes. He alleged that this subsection pertains to hydromorphone and not hydrocodone, and the error resulted in the imposition of a fifteen-year mandatory minimum sentence rather than the three-year mandatory minimum sentence required by law.

In 2012, when Bigham committed his offense, trafficking in hydrocodone, as well as trafficking in hydromorphone (among other controlled substances), was prohibited by section 893.135(1)(c) 1. If the quantity involved was 14 grams or more, but less than 28 grams, the offense was punishable by a 15-year mandatory minimum sentence. § 893.135(1)(c)1.b, Fla. Stat. (2012).

In 2014, the Legislature amended section 893.135(1)(c) to move the provision prohibiting trafficking in hydrocodone to its own subparagraph ( section 893.135(1)(c) 2.) and reduce the applicable mandatory minimum to three years imprisonment. See Ch. 2014-176, § 1, at 2388, Laws of Fla. That amendment became effective on July 1, 2014. Ch. 2014-176, § 5, at 2413, Laws of Fla. Trafficking in hydromorphone remained in subparagraph (1)(c)1, and still carries a fifteen-year minimum mandatory sentence. Referring to the current version of the statute, Bigham concludes that he must have been improperly sentenced for trafficking in hydromorphone, because hydrocodone is in a different part of the statute, and carries only a three-year minimum mandatory sentence.

The Florida Constitution provides that "[r]epeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed." Art. X, § 9, Fla. Const. The purpose of this "Savings Clause" is to "require the statute in effect at the time of the crime to govern the sentence an offender receives for the commission of that crime." Horsley v. State , 160 So.3d 393, 406 (Fla. 2015) (citing Castle v. State , 330 So.2d 10, 11 (Fla. 1976) ).

Because the Legislature did not reduce the applicable mandatory minimum sentence until after Bigham committed his offense, the 2014 amendment did not apply, and he was properly charged and sentenced under the 2012 version of the statute. See Anderson v. State , 232 So.3d 1056 (Fla. 1st DCA 2017) (holding that the mandatory minimums for trafficking in hydrocodone provided for in the 2014 amendment to section 893.135(1)(c) did not apply to an offense committed before the amendment's effective date). Under these circumstances, Bigham's rule 3.800 motion was properly denied.

AFFIRMED .

B.L. Thomas, C.J., and Makar, J., concur.

      Bigham's motion was entitled "Motion to Correct Sentencing Error" and cited rule 3.800(b). However, motions under rule 3.800(b) must be made prior to appeal or pending appeal, whereas Bigham's motion was filed almost three years after his appeal was concluded. The court below did not address this apparent error. It appears that the court below considered Bigham's motion to have been brought under Florida Rule of Criminal Procedure 3.800(a), which allows a court, "at any time," to "correct an illegal sentence." We treat Bigham's motion as a motion to correct illegal sentence under rule 3.800(a).


text:
    Edward PARADISE, Appellant, v. NEPTUNE FISH MARKET/RETAILFIRST INSURANCE COMPANY, Appellees.
    No. 1D17-1283
    District Court of Appeal of Florida, First District.
    February 23, 2018
    Christine M. Tomasello of Gordon & Doner, P.A., Palm Beach Gardens, for Appellant.
    H. George Kagan of H. George Kagan, P.A., Gulf Stream, for Appellees.
   Per Curiam.

In this workers' compensation case, Claimant challenges, on multiple grounds, the Judge of Compensation Claims' (JCC's) denial of his petitions for benefits (PFBs) based on a failure of proof as well as a successful affirmative defense of intoxication. Because we agree with Claimant that the Employer/Carrier (E/C) waived the right to contest compensability of his injuries under subsection 440.20(4), Florida Statutes (2015), we reverse and remand for entry of an order awarding the benefits claimed. Specifically, we find no competent substantial evidence that the E/C demonstrated material facts, relevant to the issue of compensability, which they could not have discovered through a reasonable investigation during the 120-day pay-and-investigate period of the statute. As a result, we find it unnecessary to address the other issues raised by Claimant in this appeal.

I.

The "standard of review in worker's compensation cases is whether competent substantial evidence supports the decision below, not whether it is possible to recite contradictory record evidence which supported the arguments rejected below." Wintz v. Goodwill , 898 So.2d 1089, 1093 (Fla. 1st DCA 2005) (quoting Mercy Hosp. v. Holmes , 679 So.2d 860, 860 (Fla. 1st DCA 1996) ). See also Ullman v. City of Tampa Parks Dep't , 625 So.2d 868, 873 (Fla. 1st DCA 1993) (holding factual findings are reviewed for competent substantial evidence).

Subsection 440.20(4) provides, in pertinent part:

If the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee's entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits.... A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation ... waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.

This court has held that once the employer/carrier become aware of the need for medical benefits for a particular condition or injury, they have three options: pay, deny, or pay and investigate within 120 days in accordance with subsection 440.20(4). See Mathis v. Broward Cty. School Bd. , 224 So.3d 852, 855 (Fla. 1st DCA 2017) (citing Bynum Transp., Inc. v. Snyder , 765 So.2d 752, 754 (Fla. 1st DCA 2000) ).

II.

On August 22, 2015, Claimant, an employee at a fish market, fell on the right side of his body while emptying garbage in the outside dumpster. Claimant later testified that he slipped on a piece of fish. Mr. Sheafer, a co-worker, came to Claimant's aid and called an ambulance. Once the ambulance arrived, Claimant asked to be taken to the Veterans Administration (VA) Medical Center even though another hospital was closer. The owner of the fish market, Mr. Giamporcaro, was informed of the accident that day, but he never reported the accident to his workers' compensation insurance carrier.

At the VA Medical Center, Claimant was diagnosed with a fractured right hip and eventually underwent surgery. His recovery was complicated by repeated infections, including MRSA, and he ultimately had five surgeries with the last one resulting in removal of his right hip joint. He was hospitalized almost continuously from the date of the accident through November 2016.

On May 12, 2016, Claimant filed a PFB, which was the insurance carrier's first notice of the injury. The E/C elected to pay and investigate under the 120-day rule of subsection 440.20(4). As found by the JCC, the 120-day period for the investigation ran from May 25 through September 22, 2016. The E/C, however, did not file a notice denying compensability of the workplace injuries until December 14, 2016. In the notice of denial, the E/C asserted that, by operation of subsection 440.09(3), Florida Statutes (2015), no compensation was due because (according to the E/C) Claimant's injuries were primarily occasioned by intoxication. In the process of defending the claims, the E/C also challenged major contributing cause. Ultimately, the JCC ruled in the E/C's favor; but, before doing so, she first found that the E/C had not waived their right to deny compensability under subsection 440.20(4) because the E/C demonstrated material facts, relevant to the issue of compensability, which they could not have discovered during the 120-day period. Thus, under the standard of appellate review here, we are required to determine whether the record contains competent substantial evidence to support this finding. If not, then the E/C waived the right to deny compensability under the 120-day rule and their defenses must fail.

III.

The E/C's investigation began May 25, 2016, when the assigned nurse case manager unsuccessfully tried to obtain Claimant's records from the VA Medical Center. On May 30th, the E/C's attorney sent a subpoena for medical records, but the VA responded about a month later that the records would not be released without a signed release from Claimant. The E/C's attorney immediately served Claimant with a request to produce to obtain a signed release (which did not yet exist) followed by a motion to compel. Claimant eventually provided the E/C's attorney with a CD of the VA medical records by July 6th and a signed release form by July 27th. But, Claimant did not tick off the box on the release form that would allow the VA to provide information regarding alcoholism or alcohol abuse.

On August 17th, the E/C's attorney received medical records directly from the VA itself. During her deposition, the claims adjuster for the E/C identified a set of VA records with a print date of August 5th as the records she had received from their attorney on September 5th. These records, however, were redacted and, according to the adjuster's testimony, did not include lab reports or test results. On November 23rd, the E/C's attorney filed a motion to compel the VA to produce a complete set of the records. Although the JCC granted the motion to compel and the VA records custodian was deposed, the VA refused to produce an un-redacted version. The JCC denied the E/C's subsequent motion to compel Claimant to sign a full release. In the denial, the JCC stated that the E/C had not shown that the redacted information was "relevant or necessary to their defense" and that Claimant's "right to privacy outweigh[ ]the prejudice of production of the redacted records." The JCC also ruled that the records authenticated by the VA records custodian would be the records used at the final hearing.

The E/C's investigation efforts also included attempts to depose Claimant on May 24th, August 19th, and September 21st, but Claimant resisted, citing his medical condition. Although the JCC granted a motion for protective order regarding the September 21st deposition, she also ordered Claimant to attend a deposition within 45 days. Eventually, the E/C deposed Claimant at the VA hospital on October 19th. During his deposition, Claimant admitted to a history of drinking every day, but denied he was intoxicated at the time of the accident.

Early in the investigation, the E/C contacted Mr. Giamporcaro, but he had no information to offer because he was out of the state at the time of the accident. No evidence was presented to show any contact with Mr. Sheafer until Mr. Giamporcaro testified on November 14th that Mr. Sheafer had just told him a week and a half earlier that he believed Claimant was intoxicated when he fell. The E/C did not depose Mr. Sheafer until January 2017 at which time Mr. Sheafer stated that, based on his personal knowledge and experience, he knew that Claimant drank on the job, was intoxicated on the day of the accident despite the fact that he was not seen drinking, and fell because he was intoxicated. During the 120-day period, the E/C did not seek to depose any doctors and did not designate an independent medical examiner.

IV.

In the order on appeal, the JCC recited the various factual circumstances here that hampered the E/C's investigation, including Claimant's refusal to provide a full release for the medical records and resistance to being deposed. But she did not clearly articulate the actual material facts relevant to compensability that were not discoverable through reasonable investigation within the 120-day period. For example, she did not address why, during the 120-day investigation period, it was reasonable for the E/C to (1) not contact Mr. Sheafer, given that he was a witness immediately before and after the accident; (2) not move to compel Claimant to attend a deposition at the hospital; or (3) not move to compel the production of VA records or set the records custodian for deposition.

Ultimately, the JCC found that Claimant failed to present any admissible medical opinions to prove a compensable work-related injury. In reaching this finding, the JCC noted that the VA medical records, in contradiction to Claimant's testimony, indicated that Claimant fell because his knee gave way. Although the JCC concluded that Claimant failed to meet his burden of proof, she made no findings that would explain why the material facts relevant to this aspect of compensability could not be discovered through reasonable investigation within the 120-day period. After all, the E/C had the VA medical records describing the accident long before the 120-day period ended. And, although Claimant was not deposed until after the 120-day period, his contradictory testimony is not the basis of the JCC's finding of a failure of proof. Furthermore, as previously noted, the JCC made no finding that the E/C could not have compelled Claimant's deposition earlier. Finally, even assuming that material facts on this issue were not discoverable until Claimant's October 19, 2016, deposition, the JCC does not explain why it was reasonable for the E/C to wait to file their notice of denial (which asserted only an intoxication defense) until December 14, 2016.

In the appealed order, the JCC stated that she felt obligated to address the intoxication issue. She subsequently concluded that the E/C had timely raised the intoxication defense on December 14, 2016, and had shown "by the greater weight of the evidence, through the VA Medical Center fact records, that the Claimant's injury was caused primarily by the use of alcohol." Significantly, she did not rely on any other evidence to find that the E/C had perfected their intoxication defense. Furthermore, because a complete version of the VA records was never released, the JCC necessarily relied upon the redacted records to reach this conclusion. Thus, it is irrelevant whether the E/C could not obtain the un-redacted VA medical records or reasonably discover other cumulative evidence from Claimant or Mr. Sheafer before the 120-day period expired. Because the JCC relied solely on redacted VA medical records to make the factual finding that Claimant's injury was primarily occasioned by intoxication, the E/C cannot be excused from timely denying compensability if the same material facts existed in the VA records that they had received on or before September 22, 2016.

V.

In the order, the JCC identified four specific reports demonstrating that Claimant was intoxicated on the date of the accident. One of these reports included blood alcohol test results from the day of the accident which stated that Claimant had an ETOH level of 128 where the normal range was described as "Neg-10." The JCC's discussion of this report suggests that she accepted the adjuster's testimony that no lab reports or test results were contained in the set of the records she received on September 5th, but this is clearly not accurate: this report, as well as other records entitled "Lab Results," are attached to the adjuster's deposition. As an aside, it should be noted that the word "ETOH," which is redacted in the blood alcohol test report later produced by the VA records custodian, is un-redacted in the version the adjuster received on September 5th. With only one exception, the specific reports identified by the JCC are essentially the same and redacted in the same manner as those in the possession of the E/C before the end of the 120-day period. Even if this were not the case, we would be compelled to find material facts relevant to the issue of compensability in the other VA records attached to the adjuster's deposition which contain references to medication prescribed for "abstinence" and "to prevent DTs," symptoms of "ETOH withdrawal," and a diagnosis of alcoholism. The JCC herself described the records as "replete" with references to Claimant's substance abuse.

In short, the same "material facts" that the JCC identified as sufficient to perfect the intoxication defense were a part of the E/C's investigation file before the end of the 120-day period. Thus there is no support for the JCC's finding that the E/C "reasonably and timely raised the intoxication defense on December 14, 2016, one day after taking the deposition of the Records Custodian at the VA." Significantly, the JCC did not make a finding that any specific report, produced at that time , established a new material fact in support of the intoxication defense. More importantly, it would not be possible to make this finding because the E/C evidently did not receive a copy of the records attached to the records custodian's deposition until January 12, 2017 . In other words, the E/C did not show which material facts suddenly became available on or about December 14th which would explain the timing of their notice of denial.

Based on the foregoing, we find that the E/C waived their right to deny compensability of the workplace injury because they did not do so within the 120-day period as required by subsection 440.20(4). We, therefore, REVERSE the order below and REMAND for entry of an order consistent with this opinion.

B.L. Thomas, C.J., and Wolf and Ray, JJ., concur.

      This version of the VA records, which was obviously received by the E/C long before the end of the 120-day period, is not clearly designated in the record on appeal.

      Nor is it clear why the E/C failed to raise a specific defense directed to this point in the October 20, 2016, pretrial stipulation.

      Notably, the E/C's attorney expressly described the VA medical records as " 'critical' to the defense of this claim." The adjuster also testified that it was her understanding that the denial of the claim was based solely on the VA medical records.

      Despite the outcome here, we do not condone the obstructionist tactics employed by Claimant during the investigation of this claim and we may well have reached a different result if the E/C had not actually received the relevant records within the 120-day period.


text:
    RING POWER CORPORATION and United Self Insured Services, Appellants, v. Andrew MURPHY, Appellee.
    No. 1D17-1316
    District Court of Appeal of Florida, First District.
    February 23, 2018 Rehearing Denied March 27, 2018
    Hayley Lewis Folmar and Caitlin W. Beyl of McConnaughhay, Coonrod, Pope, Weaver & Stern, P.A., Jacksonville, for Appellants.
    Kelli B. Hastings of Law Office of Kelli B. Hastings, PLLC, Orlando; and Sean P. McCormack of Colling, Wright & Carter, Orlando, for Appellee.
   Per Curiam.

The issue in this appeal is whether the statute of limitations barred Andrew Murphy's petition for workers' compensation benefits. The relevant facts are undisputed: Murphy had a spinal-fusion surgery a few months after his 2006 accident. Doctors used rods and screws to stabilize Murphy's spine while the bone grew back together. After less than a year, Murphy's fusion was solid. The rods and screws no longer performed any function, but they remained attached, inside Murphy.

Murphy's employer last provided worker's compensation benefits in 2013. In 2016, Murphy filed a petition for benefits, seeking additional treatment. Because the petition was filed long after the last treatment, the employer asserted a statute-of-limitations defense. See § 440.19, Fla. Stat. (2006) (establishing general two-year limitations period). Murphy responded by asserting that section 440.19(2) applied, making his petition timely. That provision "acts to toll [the] statute of limitations for a period of one year from the payment of compensation or furnishing of remedial treatment." Gore v. Lee Cty. Sch. Bd. , 43 So.3d 846, 848 (Fla. 1st DCA 2010) ; accord Lee v. City of Jacksonville , 616 So.2d 37, 39 (Fla. 1993) (noting that based on § 440.19(2), claimant must receive periodic remedial care "[i]n order to preserve the right to future benefits").

The judge of compensations claims agreed with Murphy, concluding that because rods and screws remained inside him, Murphy was continually furnished remedial treatment, meaning the limitations period never ran. The JCC therefore rejected the employer's defense, and the employer appeals. Our review is de novo. Gilbreth v. Genesis Eldercare , 821 So.2d 1226, 1228 (Fla. 1st DCA 2002) (JCC's legal conclusions are reviewed de novo).

This appeal turns on statutory interpretation. We must decide whether having rods and screws attached indefinitely means a claimant is "furnish[ed] remedial treatment" indefinitely. See § 440.19(2), Fla. Stat. (2006). We hold it does not. It is undisputed that the pins and screws no longer serve any purpose, and we cannot conclude their remaining attached falls within the tolling provision's reach. See Whitney Bank v. Grant , 223 So.3d 476, 479 (Fla. 1st DCA 2017) (noting obligation to rely on statute's plain language).

Murphy cites Gore v. Lee County School Board , in which we held that the "continued use" of a medical apparatus will toll the statute of limitations. See 43 So.3d at 849. In Gore , the claimant continually used a knee prosthesis that had a limited life span. Id. at 847. We concluded this continual use counted as continual remedial treatment, so we held it tolled the statute of limitations. Id. at 849-50. But Gore does not apply here. Unlike the claimant in Gore , Murphy is not "using" the rods and screws. Cf. also Fuster v. E. Airlines, Inc. , 545 So.2d 268, 273 (Fla. 1st DCA 1988) (concluding statute of limitations tolled while claimant continued to use back brace). The rods and screws were used for a temporary purpose, but for years they have served no function at all. Their placement does not toll the statute of limitations.

REVERSED .

B.L. Thomas, C.J., and Wetherell and Winsor, JJ., concur.