author: Damoorgian, J.

text:
    Toccara MCCLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2284
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2017]

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Toceara McClover appeals her conviction and sentence for two counts of felony retail theft. Appellant argues that the trial court reversibly erred by: (1) denying her motion to discharge one of the counts on the ground that the speedy trial time period had run; (2) denying her motion to dismiss one of the counts because it was presumptively the result of prosecutorial vindictiveness; (3) imposing an inherently vindictive sentence; and (4) incorrectly instructing the jury on her abandonment defense. We reverse on grounds 2 and 4, rendering ground 3 moot, and affirm on ground 1.

The following facts are relevant to this appeal. A loss prevention officer (“LPO”) at a Wal-Mart located on Gatlin Boulevard in Port St. Lucie (“the Gatlin Wal-Mart”) noticed Appellant and her co-defendant acting suspiciously and called the police. Although the women did not end up actually taking any merchandise from the Gatlin Wal-Mart, they were still stopped by the police. Once pulled over, the police officer who initiated the stop discovered that their vehicle was full of new merchandise which was stolen an hour or so earlier from another nearby Wal-Mart (“the US1 Wal-Mart”).

Appellant was charged with one count of felony retail theft. The State proceeded to trial based solely on Appellant’s conduct at the Gatlin Wal-Mart. Appellant was found guilty as charged and sentenced to forty-eight months in prison. McClover v. State, 125 So.3d 926 (Fla. 4th DCA 2013). We reversed and remanded for a new trial because the court declined to give an instruction on Appellant’s abandonment defense. Id. at 928.

On remand, the State amended the information to add a second count of felony-retail theft for Appellant’s role in the US1 Wal-Mart theft. Appellant filed a motion to dismiss the additional theft count, arguing that the State’s decision to add the second count after her successful appeal created a presumption of prosecutorial vindictiveness. Appellant also argued that she was entitled to a discharge on that count on the grounds that it violated her right to speedy trial since she was first arrested for her roles in both thefts in 2010.

At the hearing on Appellant’s motion to dismiss, the prosecutor explained that he was not the original prosecutor and that upon being assigned the case after remand, he was “surprised” to see that the original prosecutor, who was inexperienced at the time, chose to prosecute the Gatlin Wal-Mart theft instead of the US1 Wal-Mart theft. After confirming that there was no statute of limitations problem, the new prosecutor decided to file the additional theft count. The prosecutor argued that the amended charge was not vindictive because it was not an enhancement of the charge on remand but instead was a charge emanating from a completely separate criminal episode. The court agreed with the state and denied Appellant’s motion to dismiss the added US1 Wal-Mart charge. The court reasoned that the fact that Appellant prevailed on appeal did not prevent the state from charging her with an additional crime committed at the US1 Walmart which the court concluded was a separate and distinct criminal episode from the Gatlin Wal-Mart charge. The court also denied Appellant’s motion to discharge for violation of speedy trial.

On retrial now for both charges, the State introduced testimony from the LPOs from both the Gatlin and US1 Wal-Marts as well as the arresting officer. The Gatlin Wal-Mart LPO testified that while looking at store surveillance in the early morning hours of July 13, 2012, he noticed Appellant and another woman acting suspiciously. Specifically, he saw them put several high ticket electronics items, such as TVs and computers, in their cart, and then head to the garden department. At that time of night, the garden department was open to shopping but not open as an entrance, exit, or checkout point.

Anticipating a theft, the LPO called the police while continuing to monitor the women’s movements. The women took their cart to the back corner of the garden center where there was an emergency exit and started putting some of their items in a large planting pot. Appellant left and went to the outside of the Wal-Mart, and then made a phone call. At the same time, the woman who stayed behind with the cart received a phone call. After hanging up, the woman in the garden section abandoned the cart and made her way to the front of the store. Both women left together without any merchandise as the police were arriving. The LPO pointed out the women’s vehicle to the officer, and the officer pursued the vehicle.

The officer testified that he pulled over the women’s vehicle in a nearby parking lot. The LPO met the officer at the traffic stop and confirmed that the women were the same women he saw in the store. Inside of the vehicle, the officer found merchandise such as laptops and DVD players, some of which had security tags from the US1 Wal-Mart.

After law enforcement found the merchandise in Appellant’s car, the LPO called his counterpart at the US1 Wal-Mart. A LPO from the US1 Walmart went to the scene of the traffic stop and was able to identify the merchandise found in Appellant’s vehicle as merchandise that came from the US1 Wal-Mart. By reviewing barcodes on the recovered items as well as the store’s security footage, it was established that Appellant and her co-defendant had stolen the merchandise from the US1 Wal-Mart a few hours earlier. The surveillance tape from the US1 Wal-Mart showed that the women put items in the cart together, took the cart to the garden center, and then Appellant left and pulled the vehicle up to the garden center while the co-defendant exited through the emergency exit with the items.

During the jury instruction charge conference, the parties disagreed on the content of the abandonment defense instruction with respect to the Gatlin Wal-Mart theft charge. Appellant’s counsel argued that the instruction should be given on the charged count of retail theft. The state countered that attempted retail theft is a lesser-included offense of retail theft and is the only offense to which the defense of abandonment applies. The court, admittedly confused by our opinion from the first toial, sided with the State. Ultimately, in addition to the standard instruction on retail theft, it instructed the jury as follows:

ATTEMPT TO COMMIT CRIME (for Count 1 only) § 777.04(1), Fla.Stat.
To prove the crime of Attempt to Commit Retail Theft, the State must prove the following two elements beyond a reasonable doubt:
1. Toccara McClover did some act toward committing the crime of Retail Theft that went beyond just thinking or talking about it.
2. She would have committed the crime except that someone prevented her from committing the crime of Retail Theft or she failed.
It is not an attempt to commit Retail Theft if the defendant abandoned her attempt to commit the offense or otherwise prevented its commission, under circumstances indicating a complete and voluntary renunciation of her criminal .purpose.

Appellant was found guilty on both counts and was sentenced to forty-eight months in prison on each count to run concurrent. This appeal follows.

Speedy Trial

First, Appellant argues that the court erred in denying her motion to discharge the US1 Wal-Mart theft count. Specifically, she argues that the state violated the rules governing speedy trial by amending the information to add the count more than 175 days after Appellant was first arrested for the criminal episode which gave rise to the US1 Wal-Mart charge. However, the record reflects that Appellant waived speedy trial shortly after her arrest. This waiver served as a waiver for all charges arising from Appellant’s initial arrest. See Wallace v. State, 189 So.3d 1022, 1026 (Fla. 3d DCA 2016) (“A speedy trial waiver is an ongoing waiver. It applies to newly filed charges that arise from the same incident.”); State v. Gibson, 783 So.2d 1155, 1159 (Fla. 5th DCA 2001) (“Florida courts have consistently held that a waiver of speedy trial as to the initial information applies to amended or subsequently filed informations that charge additional crimes provided those crimes arise out of the same criminal episode as the crime initially charged.”). Accordingly, there was no speedy trial violation.

Prosecutorial Vindictiveness

Appellant also argues that the court erred in denying her motion to dismiss the US1 Wal-Mart theft charge because it was presumptively the result of prosecutorial vindictiveness. In support of her argument, Appellant cites to the fact that the state knew about the events giving rise to the US1 Wal-Mart theft charge in 2010, but chose not to file a charge until after Appellant prevailed on appeal. The state counters that there is no presumption of vindictiveness since the two charges arose out of different criminal episodes, even though the modus operandi between the two was strikingly similar.

The Supreme Court has established two standards of proof for prosecu-torial vindictiveness. Under the first standard, a defendant may prove by objective evidence that a prosecutor has acted with “actual vindictiveness” to punish him for exercising his constitutional rights. United States v. Goodwin, 457 U.S. 368, 380, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). Under the second standard, a defendant may present evidence which establishes a presumption that there is a realistic likelihood of vindictiveness. Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). Once this presumption is established, the burden of proof shifts to the state to overcome the presumption with objective evidence justifying the prosecuto-rial action. United States v. Jenkins, 504 F.3d 694, 700 (9th Cir. 2007). The presumption arises when a defendant who prevails on appeal is then charged with an enhanced or additional crime based on the same conduct he or she was originally tried for. Id.

In Blackledge, the defendant was initially charged and convicted of a misdemean- or, which he appealed. 417 U.S. at 22, 94 S.Ct. 2098. After the defendant filed the notice of appeal, the government charged him with a felony based on the same conduct he was tried and convicted for in the misdemeanor charge. Id. at 23, 94 S.Ct. 2098. The Supreme Court held that the government’s conduct created a presumption of prosecutorial vindictiveness which offended due process. Id. at 27, 94 S.Ct. 2098. In so holding, the Court noted that there was “no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment.” Id. at 28, 94 S.Ct. 2098. However, it clarified that its holding was not based on the prosecutor’s actual intentions but was instead based on the outward appearance of its actions. Id. at 28, 94 S.Ct. 2098. The Court concluded that “a person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.” Id.

Relying on Blackledge, this Court held in Kramer v. State, 868 So.2d 1246, 1248-49 (Fla. 4th DCA 2004) that the state’s decision to add the enhancement of “with a weapon” to the charged crimes of attempted first degree murder and aggravated child abuse after the defendant prevailed on appeal created a presumption of prose-cutorial vindictiveness.

Although Blackledge and Kramer held that a presumption of prosecutorial vindictiveness arises when the state enhances a charge which a defendant was tried and convicted of following an appeal by the defendant, Appellant argues that the presumption may also arise when the state files additional charges after an appeal. In support of her position, Appellant relies on United States v. Jenkins, 504 F.3d 694 (9th Cir. 2007).

In Jenkins, the defendant was apprehended attempting to drive a van full of marijuana across the U.S.-Mexico border. Id. at 698. At her trial, the defendant testified on her own behalf and explained that she was hired to drive the van, but did not know that it contained marijuana. Id. Instead, she thought she was hired to transport illegal aliens. Id. Indeed, the defendant was caught smuggling immigrants twice in the preceding year. Id. Despite the fact that defendant admitted to the crimes upon being caught, she was not charged for either incident at that time. Id. While the jury was deliberating in the marijuana case, the government filed charges against the defendant for the alien smuggling incidents. Id. The defendant moved to dismiss the smuggling charges on the ground of vindictive prosecution. Id. At the hearing on the defendant’s motion, the government’s attorney conceded that the government could have charged the defendant with alien smuggling prior to her marijuana trial, but asserted that it decided to file the charges after the defendant testified because her testimony strengthened its case. Id. at 699. The trial court granted the defendant’s motion to dismiss, and the circuit court of appeal affirmed. Id.

In doing so, the court acknowledged “the proposition that the mere filing of a second, unrelated charge after a first charge does not give rise to a presumption of vindictiveness.” Id. at 701. However, it also rejected the notion that “a presumption of vindictiveness can never arise when the second charge is unrelated to the first.” Id. The court held that under the specific posture of the case, namely that the government decided “to press charges only after [the defendant] asserted a reasonably credible defense to the marijuana importation charges,” there was “at the very least, a ‘reasonable or realistic likelihood’ that the government’s decision was motivated by a retaliatory purpose.” Id. at 700. The court concluded that the government failed to rebut the presumption of vindictiveness and, therefore, affirmed the dismissal of the smuggling charges. Id. at 700-01.

The State argues that Jenkins is not controlling because the court in Jenkins acknowledged “the mere filing of a second, unrelated charge after a first charge does not give rise to a presumption of vindictiveness.” Without the presumption and with no direct evidence to support a finding that the filing of the US1 Wal-Mart theft was in retaliation for Appellant’s appeal, the state reasons that the trial court’s ruling on Appellant’s motion was correct.

We disagree with the state’s argument, and hold that under the facts of this case, Appellant has met her burden to establish a presumption of vindictiveness. Here, although the state had all of the information necessary to bring and prosecute Appellant on the US1 Wal-Mart theft in 2010, it did not file a charge until after Appellant prevailed on appeal more than four years later. Indeed, at the hearing on Appellant’s motion to dismiss, the prosecutor essentially admitted that Appellant would not have been charged with the US1 Wal-Mart theft but for the fact that the case was remanded for retrial on the single charge involving the Gatlin Wal-Mart. Finally, and perhaps most compelling, the state added the second count shortly after Appellant filed a motion in limine seeking to exclude the surveillance tape from the US1 Wal-Mart at the retrial. Under these facts, it is reasonable to presume that the state feared the possibility of Appellant being acquitted of the Gatlin Wal-Mart theft upon the jury being properly instructed on abandonment, particularly if the evidence of the US1 Wal-Mart theft was excluded from the trial on the original count involving the Gatlin Wal-Mart.

Pertinent to our conclusion that Appellant was entitled to the presumption of vindictiveness is the logic employed by the Supreme Court in Blackledge in discussing why a presumption of vindictiveness arose after the government enhanced a charge following an appeal. The Court reasoned that retaliatory motivation was more likely following an appeal because a prosecutor has “considerable stake in discouraging” defendants from appealing and obtaining a new trial “since such an appeal will clearly require increased expenditures of prosecu-torial resources before the defendant’s conviction becomes final, and may even result in a formerly convicted defendant’s going free.” Blackledge, 417 U.S. at 27, 94 S.Ct. 2098. As later noted by the Supreme Court in Goodwin, the decision in Black-ledge “reflect[s] a recognition by the Court of the institutional bias inherent in the judicial system against the retrial of issues that have already been decided.” 457 U.S. at 376, 102 S.Ct. 2485.

Having concluded that Appellant was entitled to a presumption of vindictiveness, the state was compelled to overcome the presumption by “objective evidene justifying the prosecutor’s action.” Id. 376 n.8, 102 S.Ct. 2485. “The prosecution must show that the additional charges did not stem from a vindictive motive, or [were] justified by independent reasons or intervening circumstances that dispel the appearance of vindictiveness.” Jenkins, 504 F.3d at 701 (internal quotation marks and citation omitted). The only evidence against vindictiveness was the prosecutor’s own testimony at the motion to dismiss hearing. There, the prosecutor explained that he filed the US1 Wal-Mart theft charge not out of vindictiveness, but to remedy a rookie prosecutor’s error the first time around. We hold that the state failed to meet its burden. Our conclusion is supported by the fact that the state acknowledged that it would not have filed the second charge but for the fact that Appellant prevailed on appeal, and the State was likely motivated by the filing of the motion in limine.

Based on the foregoing, we hold that the court erred in denying Appellant’s motion to dismiss the US1 Wal-Mart theft charge and, therefore, reverse and remand Appellant’s conviction on the US1 Wal-Mart theft and instruct the court to dismiss the charge. In light of our holding on the US1 Wal-Mart count, Appellant must be retried on the Gatlin Wal-Mart count.

Abandonment Instruction

On remand, the court will again be faced with the issue of how to properly instruct the jury on Appellant’s abandonment defense. During Appellant’s first trial, the court refused to give an abandonment defense instruction as proposed by Appellant because “in order to warrant the instruction, the defendant had to admit an attempt to take the goods, which itself was a crime because the [retail] theft statute covered an endeavor to take goods of another.” McClover, 125 So.3d at 927. We reversed, holding that Appellant was entitled to an abandonment defense instruction. Id. at 928. In doing so, we confirmed that under the retail theft statute, an attempt to commit retail theft is retail theft. Id. (citing § 812.015(l)(d), Fla. Stat. (2012)). We also confirmed that the defense of abandonment only applies to an attempt. Id. Putting the two concepts together, we held that when an attempt is subsumed in the substantive crime, the defense of abandonment applies. Id. In other words, a person who attempts to commit a retail theft can still be guilty of retail theft. Id. However, a person who is allegedly guilty of retail theft via an attempt may nonetheless assert abandonment of the attempt as a defense. Id.

Despite the court’s valiant effort to fashion an abandonment instruction consistent with our mandate on remand, the court instructed the jury that attempted retail theft was a lesser-included offense of retail theft. In fact, they are one in the same. Accordingly, on the retrial for the Gatlin Wal-Mart theft, the court should add the following language (modeled off of the standard abandonment instruction) to the standard instruction on retail theft:

The defendant did not commit Retail Theft if the defendant abandoned her attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of her criminal purpose.

Affirmed in part and reversed in part and remanded for retrial.

Gross and May, JJ., concur.

      . The docket notes that Appellant waived speedy trial at an October 12, 2010 docket call.

      . Our opinion should not be read as holding that evidence of the US1 Wal-Mart theft is inadmissible at the new trial on the Gatlin Wal-Mart theft. Indeed, evidence of the US1 Wal-Mart was admitted in Appellant’s first trial as Williams rule evidence and its admission was not challenged on appeal. McClover v. State, 125 So.3d 926, 926 (Fla. 4th DCA 2013).


source: Caselaw Access Project

author: May, J.

license: Public Domain

text:
    Arturo GODINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1600
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2017]

      Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Ft. Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

Ineffective assistance of appellate counsel and the need for consistency in outcomes brings this case back to us through a successful petition for writ of habeas corpus. Godinez v. State, 192 So.3d 1289 (Fla. 4th DCA 2016). Our decision in de la Osa v. State, 158 So.3d 712 (Fla. 4th DCA 2015) dictates the outcome. We reverse.

The State charged the defendant and seventeen others “with crimes arising from a large-scale scheme to sell adulterated prescription drugs to wholesale distributors. [He] was charged with racketeering, conspiracy to commit racketeering, and organized scheme to defraud. To support the racketeering charge, he was accused of participating in various acts of mail and wire fraud.” Godinez, 192 So.3d at 1289.

Evidence revealed the defendant and others “provided illegally-obtained prescription drugs to Michael Car-low[ (“hub”) ], who in turn sold the drugs to distributors [for sale] to the general public. The scheme was a ‘rimless hub- and-spoke conspiracy.’” Id. at 1290. The suppliers worked independently with the hub, but did not work with one another. Id. at 1289-90.

Judge Gross succinctly described the defendant’s role in the scheme in de la Osa.

Like de la Osa, [the defendant’s] role within the scheme was to supply [the hub] with cheap pharmaceuticals .... [A witness] testified that he went to one of [the defendant’s] businesses, a commercial plant nursery, and picked up four large boxes of various pharmaceuticals, including AIDS medications, which were eventually shipped either to ... [a drug wholesaler] or delivered locally.
[The defendant] purchased Lupron from doctors who were able to obtain the drug at a twenty percent discount through a business he owned. [The witness] then sold the drugs to another company ....

de la Osa, 158 So.3d at 720-21.

Count I charged the defendant with racketeering. Predicate Acts 2-13 were based on mail fraud. Predicate Acts 14-34 were based on wire fraud. The predicate act counts, whether for mail or wire fraud, grouped the defendants together as part of an “enterprise.”

The defendant was tried with de la Osa in 2011. Both defendants moved for judgment of acquittal, arguing they could not be criminally liable for the acts of the other suppliers. Godinez, 192 So.3d at 1290. The court denied the motions.

The defendant was convicted as charged and sentenced to three concurrent terms of nine years in prison, followed by two years of community control and ten years of probation. Id, In the defendant’s appeal, he argued the State failed to prove the existence of a single unified enterprise, but did not argue -the defendant was not involved in the predicate acts necessary to support a conviction on the racketeering count. We affirmed per curiam. Godinez v. State, 138 So.3d 1039 (Fla. 4th DCA 2014) (table).

In de la Osa’s direct appeal, we assessed the rimless hub-and-spoke conspiracy, noting that “there was no proof of interdependence between de la Osa and [the hub’s] drug suppliers” and that there was no connection between de la Osa, Godinez, and Cruz from which the jury could determine that de la Osa knew of the larger conspiracy, de la Osa, 158 So.3d at 726.

The State admitted the defendant and de la Osa were not involved in the predicate offenses, other than the scheme to defraud. Id. at 727. “So as to the other counts, as to [the] other predicates as to Mr. de la Osa, as to all the predicates as to Mr. Godinez, it all rides on their participation in the ... underlying scheme to defraud as.detailed in the Mail and Wire Fraud.” Id. The State’s proof was simply insufficient to sustain de la Osa’s racketeering conviction because the State failed to establish his participation in the requisite two predicate acts. Id. at 732.

Here, the defendant makes the same argument that was successful for de la Osa—the State failed to establish a pattern of racketeering activity. The State responds that the defendant did not have to know the full scope of the conspiracy or agree to commit all of the predicate crimes to be vicariously liable for the predicate acts committed by others.

We have de novo review of the trial court’s decision on a motion for judgment of acquittal. Romero v. State, 901 So.2d 260, 264 (Fla. 4th DCA 2005).

“It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.” § 895.03(3), Fla. Stat. (2008). A “pattern of racketeering activity” results from “engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents.” § 895.02(4), Fla. Stat. (2008) (emphasis added).

So, to convict a defendant of racketeering under section 895.03(3), Florida Statutes, the State must prove that the defendant participated in an enterprise through a pattern of racketeering conduct. Id. Predicate acts are specific crimes “under state law and under the federal RICO act,” such as wire and mail fraud, de la Osa, 158 So.3d at 725.

Here, the State has failed to prove the defendant participated in two or more predicate acts. The State properly used federal mail and wire fraud as predicates under Chapter 895; however, the case agent testified the defendant was not linked to any of the specific predicate incidents listed in the indictment. After going through each predicate act in Count I, which were incidents of mailings or wires that made up the larger charge of racketeering, the case agent confirmed there was no evidence linking the defendant to any of the predicate acts.

Just as the State failed to prove de la Osa engaged in two predicate acts, the State similarly failed to do so here.

The Court: You would agree when [defendant’s counsel] said you have no direct evidence with respect to [the defendant] that he was involved directly in any of the predicate acts, other than the scheme to defraud?
[The State]: That’s as to both [defendants. Only their participation in the scheme to defraud.

Id. at 727.

The mail and wire fraud predicate incidents were all based on the same underlying scheme to defraud. Because the State failed to prove the defendant participated in two or more predicate acts, the motion for judgment of acquittal on the racketeering count should have been granted.

The State attempts to support the defendant’s racketeering charge by suggesting the defendant is vicariously liable for actions taken by others after the drugs were sold by the defendant. Because the subsequent acts by others were foreseeable, the State argues the defendant was involved in them. We disagree.

As Judge Gross wrote in de la Osa: “The scheme was a ‘rimless hub-and-spoke conspiracy'—the suppliers each worked separately with [the hub] and did not have relationships with each other.” Godinez, 192 So.3d at 1289. This is a hub and spoke conspiracy, it is not a wheel that goes round and round. The defendant’s outcome therefore must be the same as de la Osa’s. We reverse the defendant’s racketeering conviction.

Reversal of a conviction “may change the sentencing guidelines range” and require a reversal of the sentences imposed on the remaining convictions. White v. State, 645 So.2d 1122, 1122 (Fla. 3d DCA 1994). Here, our reversal of the racketeering conviction will change the defendant’s sentencing guidelines range.

“Where an erroneous classification of an offense, or some other error in the sentencing guidelines scoresheet, affectfs] all counts of an information or judgment,” the sentence is subject to review. Reynolds v. State, 116 So.3d 558, 561 (Fla. 3d DCA 2013). We therefore reverse and vacate the sentences on the two remaining counts.

We reverse the racketeering conviction and the sentences on the remaining counts, and remand the case to the trial court for resentencing.

Reversed and Remanded.

Damoorgian and Conner, JJ., concur.

      . We find no merit in the defendant's argument that reversal of the racketeering charge requires a reversal of the conviction on the remaining counts. Nor do we find merit in the evidentiary issue raised.


text:
    Michael HARDMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1366
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2017]

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant challenges his conviction and sentence on two counts of grand theft. He argues the court erred in: (1) denying the motion for judgment of acquittal, and (2) overruling a hearsay objection. He also argues trial counsel was ineffective in failing to request a jury instruction on good faith. We find no error in the trial court’s ruling, but do agree that trial counsel was ineffective on the face of the record in failing to request a good faith instruction.

The State charged the defendant with two counts of grand theft and six counts of securities fraud. The two counts of grand theft stemmed from his transactions with Sally Krenzel (“Krenzel”) and Melvin and Virginia Diehl (“the Diehls”).

Both transactions involved the exchange of money for promissory notes. The defendant considered the monies loans. Krenzel and the Diehls considered the monies an investment.

The defendant initially made interest payments to Krenzel and to the Diehls, and ultimately attempted to deed property to the Diehls. But, when the defendant used the monies for personal expenses and failed to repay them, charges were filed.

The defendant’s recorded statement, which was admitted at trial, reflected that the monies were not investments, but loans. With respect to Krenzel, the defendant stated he borrowed $20,000, promised a percentage back, and failed to follow through. He did not intend that outcome.

With regard to the Diehls, the defendant stated he tried to give them a house in Lake Worth, but they deeded it back to him. He admitted owing about 1.3 million dollars in bad investments. He was trying to come up with the money and felt guilty.

During opening and closing remarks, defense counsel emphasized to the jury that the defendant believed the monies were loans, and that he never solicited the parties. He attempted to repay the loans, but invested the monies poorly. The promissory notes were loans, not investments. Defense counsel did not request a good faith jury instruction.

The defendant moved for judgment of acquittal on the two grand theft counts, arguing the State failed to prove the defendant intended to permanently deprive Krenzel or the Diehls of their monies. He argued he made some payments, and the witnesses could not say that they received nothing in return. The court granted the motion on the securities fraud charges, but submitted the grand theft charges to the jury.

The jury convicted the defendant on the two counts of grand theft. The court sentenced the defendant to five years in the Department of Corrections on each count to run concurrently with credit for 56 days’ time served. The defendant moved to set aside the verdicts or for a new trial. The court denied the motion, leading to this appeal.

We find no merit in the defendant’s argument that the court erred in denying the motion for judgment of acquittal on the grand theft charges. There was sufficient evidence in the light most favorable to the State to allow the issue to go to the jury. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002).

In his second argument, the defendant argues his trial counsel’s performance fell below the minimum level of effectiveness when she failed to request a good faith instruction after arguing a good faith defense in opening and closing arguments. The State responds the defendant failed to establish that trial counsel was ineffective on the face of the record. According to the State, the good faith defense was not obvious from the evidence requiring an instruction.

“Because ineffective assistance of counsel claims present mixed questions of fact and law, [courts] employ[] a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent substantial evidence, but reviewing the circuit court’s legal conclusions de novo.” Simmons v. State, 105 So.3d 475, 487 (Fla. 2012).

A defendant claiming ineffective assistance of counsel must meet a two-prong test: (1) counsel's performance was deficient, or outside the range of reasonably competent performance based on prevailing professional standards; and (2) the deficient performance prejudiced the defendant such that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Here, defense counsel was deficient for failing to request a specific instruction on the good faith defense. The defendant’s entire defense was that he thought he had received loaps, with his only obligation being to repay them with interest. The defendant gave Krenzel and the Diehls a promissory note where he agreed to pay interest quarterly. The loan was callable at six months, with one month’s notice. Given that the term “loan” was explicitly used, it is conceivable the defendant believed he was entitled to spend the funds as he wished.

This belief is made even more probable considering the promissory notes never specified how or if the money would be invested. The defendant never solicited the Diehls or Krenzel to invest. Instead, they approached him about their unhappiness with their returns on current investments. In fact, the parties never asked the defendant about their investments.

“A defendant is entitled to instruct the jury on a ‘good faith’ defense if there is any evidence to support the defense.” Capiro v. State, 97 So.3d 298, 300 (Fla. 4th DCA 2012). The evidence presented at trial supported the good faith defense. Defense counsel’s performance was deficient for failing to request a specific instruction. See Aversano v. State, 966 So.2d 493, 496-97 (Fla. 4th DCA 2007).

Prejudice to the defendant from counsel’s failure to request the good faith instruction is also apparent from the face of the record; the failure essentially deprived him of his primary defense. The defendant never denied owing the parties money, and made several repayments to them. The promissory notes were vague and described the transaction as a “loan.” His only defense was that he had a good faith belief that he had a right to act as he did.

Capiro, relied on by the defendant, is instructive. There, defense counsel touched on the good faith defense in opening and closing arguments, but ultimately failed to request a good faith instruction. Capiro, 97 So.3d at 300. Here, defense counsel did the same, emphasizing throughout the trial that the defendant believed in good faith that he had received the monies as loans. Like Capiro, the defendant believed he could spend the money as he wished based on the vague promissory notes that never required the money to be invested. Id. at 301. But, the defendant “was prejudiced by virtue of the fact that the jury was not presented with an instruction on the law applicable to his only defense.” Id.

We therefore reverse and remand the case for a new trial. We find no merit in the evidentiary issue raised.

Reversed and remanded for a new trial.

Damoorgian and Conner, JJ., concur.


author: Gross, J.

text:
    STATE of Florida, Appellant, v. Paul SANDOMENO, Appellee.
    No. 4D15-3298
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2017]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellee.
   Gross, J.

The state appeals the trial court’s denial of (1) its motion to order restitution as part of defendant’s sentence, filed five days after sentencing, and (2) its motion for entry of a civil restitution lien pursuant to section 960.292, Florida Statutes (2015). Because restitution may be imposed up to 60 days after sentencing, we reverse and remand for a restitution hearing.

Defendant Paul Sandomeno pled open to the court for two counts of driving under the influence causing serious bodily injury. On July 17, 2015, the trial court sentenced him to concurrent sentences of 5 years in prison. Restitution was not mentioned at sentencing.

On July 22, 2015, the state moved for a restitution order as part of defendant’s sentence. Defendant opposed the motion, arguing that an order of restitution must be imposed at the time of sentencing. The trial court agreed with defendant and denied the motion. The state’s subsequent motion for entry of a civil restitution lien on behalf of the victims pursuant to section 960.292 was also denied after defendant argued that the statute did not allow the state to file a civil suit for damages.

Section 775.089(l)(a), Florida Statutes (2015) provides that “the court shall order the defendant to make restitution to the victim.” “Section 775.089(l)(a) requires the trial court to order a defendant to make restitution for damage or loss caused by the defendant’s offense or related to the defendant’s criminal episode unless the trial court finds clear and compelling reasons not to order restitution.” Kirby v. State, 868 So.2d 238, 242 (Fla. 2003).

Recognizing that this statute makes restitution mandatory, the Florida Supreme Court has held “that an order of restitution must be imposed at the time of sentencing or within sixty days thereafter.” Sanderson v. State, 625 So.2d 471, 473 (Fla. 1993); see also L.O. v. State, 718 So.2d 155 (Fla. 1998) (reaffirming its holding in Sanderson). This is consistent with Florida Rule of Criminal Procedure 3.800(c), which allows for modification to a sentence within 60 days after it is imposed. The trial court thus erred in denying the state’s motion for an order of restitution filed 5 days after imposition of defendant’s sentence.

The trial court also erred in denying the state’s motion for entry of a civil restitution lien on behalf of the victims. Section 960.292(2) provides that, “[u]pon motion by the state ... the court in which the convicted offender is convicted shall enter civil restitution lien orders in favor of crime victims, the state, its local subdivisions, and other aggrieved parties.” The statute gives the trial court “continuing jurisdiction over the convicted offender for the sole purpose of entering civil restitution lien orders for the duration of the sentence and up to 5 years from release from incarceration or supervision, whichever occurs later.” Id.; see also Nickerson v. State, 178 So.3d 538, 539 (Fla. 3d DCA 2015) (explaining that section 960.292(2) “permits the trial court to retain jurisdiction over a convicted offender for a period of five years from release from supervision”).

We therefore reverse and remand for a restitution hearing, at which the trial court shall consider both restitution and the entry of a civil restitution lien. In all other respects, the conviction is affirmed.

Reversed and remanded.

Warner and May, JJ., concur.


author: Per Curiam. Gross, J.,

text:
    Jorge MENDOZA-MAGADAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1458
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2017]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Juvenile appellant Jorge Luis Mendoza-Magadan was charged and sentenced as an adult for one count of battery on a law enforcement officer, one count of resisting an officer with violence, and one count of resisting an officer without violence. He appeals his sentence, arguing that section 985.565, Florida Statutes (2016) is unconstitutional because it does not require the trial court to make specific findings in support of its decision to impose adult sanctions on a juvenile charged as an adult. We affirm because, as a matter of constitutional law, neither the United States Supreme Court nor the Florida Supreme Court have required trial courts to explain their sentences.

The Florida Legislature has found “that certain juveniles have committed a sufficient number of criminal acts, including acts involving violence to persons, to represent sufficient danger to the community to warrant sentencing and placement within the adult system.” § 985.02(4)(b), Fla. Stat. (2016). As such, section 985.565 gives the trial court the power to impose adult sanctions on juveniles charged as adults. Subsection (l)(b) lists the factors the court “shall consider” in determining whether to impose such sanctions. Subsection (4)(a)4 states that “[a]ny sentence imposing adult sanctions is presumed appropriate, and the court is not required to set forth specific findings or enumerate the criteria in this subsection as any basis for its decision to impose adult sanctions.” (Emphasis added).

Appellant contends that, without specific findings, an appellate court is unable to review whether the trial court properly considered the required factors in deciding to impose adult sanctions. However, “the power to declare what punishment may be assessed against those convicted of crime is not a judicial power, but a legislative power, controlled only by the provisions of the Constitution.” Booker v. State, 514 So.2d 1079, 1081 (Fla. 1987) (quoting Brown v. State, 152 Fla. 858, 13 So.2d 458, 461 (1948)); see also Hall v. State, 823 So.2d 757, 763 (Fla. 2002), abrogation on other grounds recognized in State v. Johnson, 122 So.3d 856, 862 (Fla. 2013) (“Criminal sentences are a product of legislative decision”).

So long as the sentencing court complies with the statutory requirements, there is nothing for an appellate court to review. See Henderson v. State, 61 So.3d 494 (Fla. 2d DCA 2011); see also Howard v. State, 820 So.2d 337, 339 (Fla. 4th DCA 2002) (explaining that, “when a sentence is within statutory limits, it is not subject to review by an appellate court.”). The only exception is “where the facts establish a violation of a specific constitutional right during sentencing.” Howard, 820 So.2d at 340. The Florida Supreme Court has not held that the constitution requires a trial court to explain its sentence. Therefore, because appellant does not argue that the trial court failed to follow the statute, his sentence is presumed appropriate.

We also reject appellant’s argument that his prior juvenile dispositions should not have been included on his scoresheet to calculate his lowest permissible sentence because such dispositions are rendered without the same procedural safeguards as adult convictions, such as the right to a jury trial. See Knighton v. State, 193 So.3d 115 (Fla. 4th DCA 2016); Nichols v. State, 910 So.2d 863 (Fla. 1st DCA 2005); United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002).

Affirmed.

Ciklin, C.J. and Kuntz, J., concur.

Gross, J., concurs specially with opinion.

Gross, J.,

concurring specially.

Prior to the enactment of section 985.565(4)(a)4, Florida Statutes (2014), Florida law required transparency in the decision to sentence juveniles as adults. This requirement was a matter of statutory, and not constitutional, law.

Section 39.059(7)(c), Florida Statutes (1991), provided that “[sjuitability or non-suitability for adult sanctions shall be determined by the court before any other determination of disposition.” That section also contained the criteria a trial court was required to consider in making this suitability determination. The decision to impose adult sanctions had to “be in writing and in conformity with each of the above criteria. The court shall render a specific finding of fact and the reasons for the decision to impose adult sanctions.” § 39.059(7)(d). Subsection (7)(d) expressly made that order “reviewable on appeal.”

Under current law, while there are certain factors the trial court “shall consider” in imposing adult sanctions, the trial court’s decision does not have to be supported by specific findings of fact. “Any sentence imposing adult sanctions is presumed appropriate, and the court is not required to set forth specific findings or enumerate the criteria in this subsection as any basis for its decision to impose adult sanctions.” § 985.565(4)(a)4; see also Henderson v. State, 61 So.3d 494, 496 (Fla. 2d DCA 2011).

I believe this is bad policy, but under the current case law it is policy that the legislature is entitled to implement. Sentencing is obviously a central focus of a criminal case. Without transparency in the sentencing decision, it cannot be known whether a trial court considered appropriate factors or relied on impermissible ones. Judicial silence operates to conceal sentencing misconduct. See Alfonso-Roche v. State, 199 So.3d 941, 951-52 (Fla. 4th DCA 2016) (Gross, J., concurring). However, the applicable statute does not require transparency and neither the Florida nor the United States Supreme Court have ever established a constitutional basis for requiring it.

Although it is not an argument discussed by the parties, recent case law has acted on the notion that juveniles are “constitutionally different from adults for the purposes of sentencing.” Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2464, 183 L.Ed.2d 407 (2012). Whether that difference compels sentencing transparency in a non-homicide case such as this has not been decided by a higher court.

In this case, as the majority notes, the presumption that section 985.565(4)(a)4 is constitutional carries the day.


text:
    Matthew Paul MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4775
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2017]

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Appellant was convicted of multiple counts, including first degree murder with a firearm, and sentenced to life in prison. He appeals the denial of his motion to suppress evidence and the adequacy of the Nelson inquiries into his allegations of counsel’s incompetence. We affirm on both issues, but write to address the second.

Despite having counsel, appellant inundated both the trial court and this court with pro se filings stemming from the charges at issue in this appeal. Throughout the circuit court proceedings, appellant lodged complaints against the four attorneys who successively represented him. On appeal, appellant takes issue with the trial court’s handling of complaints directed at his appointed counsel after trial began.

After several of the state’s witnesses testified, appellant asked to absent himself from court to write an “advisory,” pursuant to section 27.40(9), Florida Statutes (2015), which allows an “interested person” to advise the court of “any circumstance affecting the quality of representation.” Appellant gave the court permission to proceed in his absence.

Appellant’s advisory took issue with his counsel’s trial strategy and asserted counsel was working “in concert with the state to ensure [appellant’s] conviction.” The trial court treated the advisory as a written request for a Nelson hearing. Appellant added nothing further to the arguments raised in his written advisory. To refute appellant’s claims, counsel insisted he had done his best to prepare for trial and felt he was “fighting this case on two fronts” due to appellant’s constant complaints. The trial court found counsel’s representation to be competent and appellant’s motion to discharge counsel was denied.

After the last defense witness testified, appellant again voiced displeasure with his representation, making general allegations about counsel’s trial strategy and claiming counsel was working with the state to harm appellant’s case. When asked for specific details establishing how counsel was ineffective, appellant insisted the record spoke for itself. Again, the court rejected appellant’s assertion that his counsel was incompetent and appellant’s request for a Nelson hearing was denied. Appellant declined the opportunity to represent himself.

We review a trial court’s handling of a Nelson inquiry for an abuse of discretion. Wilson v. State, 889 So.2d 114, 117 (Fla. 4th DCA 2004). Here, no abuse of discretion occurred because (1) appellant’s requests for Nelson hearings were untimely and (2) appellant failed to raise specific allegations of incompetence warranting a Nelson hearing; the vague complaints were designed to create chaos at trial in the hope of creating an appellate issue.

Appellant’s complaints about his counsel were raised after trial began, making them untimely. See Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973) (explaining an inquiry is only necessary when the defendant wishes to discharge court-appointed counsel “before the commencement of trial”). As we explained in Hauga-book v. State, to allow a defendant to initiate Nelson hearings during trial “would be impracticable” because the defendant could force the court to stop the proceedings and hold the mandated Nelson inquiry for “every single tactical action trial counsel takes that the defendant disagrees with.” 689 So.2d 1245, 1246 (Fla. 4th DCA 1997). “The rule in Nelson was designed as a prophylactic measure to prevent a trial from commencing—not to abort a trial already in progress.” Id.

Even if appellant’s grievances against counsel were timely, the trial court did not err by refusing to hold a more extensive Nelson inquiry. An abuse of discretion occurs if the trial court fails to provide an opportunity for the defendant to explain the objection to counsel. Moore v. State, 778 So.2d 1054, 1056 (Fla. 4th DCA 2001). However, there is no abuse of discretion if a trial judge refuses to conduct a Nelson inquiry “where the defendant merely expresses his general dissatisfaction with counsel.” Wilson v. State, 889 So.2d at 118 (internal citation omitted). Nor does a trial court err by failing to conduct a Nelson hearing when a defendant expresses general dissatisfaction with counsel’s trial preparation, witness development, or lack of contact with the defendant. Id. (citing Morrison v. State, 818 So.2d 432, 440 (Fla. 2002)).

Thus, “[t]o trigger a Nelson hearing, a defendant must raise specific allegations of attorney incompetence sufficient to warrant the inquiry; it is not the job of the trial judge to become an advocate for the defendant, assisting in developing the grounds that demonstrate counsel’s deficient performance.” Id. at 118-19.

Here, appellant’s complaints amounted to generalized dissatisfaction with his counsel’s trial strategy and failure to implement what appellant believed was the best course of action. Because appellant’s complaints were untimely and failed to raise specific allegations, the trial court did not err by denying appellant a moré extensive Nelson inquiry.

Affirmed.

Ciklin, C.J. and Kuntz, J., concur.

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


author: Taylor, J.

text:
    Delores ARP, Appellant, v. WATERWAY EAST ASSOCIATION, INC., a Florida non-profit corporation, W.E. Association, Inc., a Florida non-profit corporation, Waterway Condominium Association, Inc., a Florida non-profit corporation, and City of Delray Beach, Appellees.
    No. 4D16-114
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2017]

      Chad E. Brocato, Sr. of Murphy & Bro-cato, Coconut Creek, for appellant.
    Thomas A. Valdez and Karen M. Shi-monsky of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Appellees Waterway East Association, Inc., W.E. Association, Inc. and Waterway Condominium Association, Inc.
   Taylor, J.

In this premises liability action, the plaintiff, Delores Arp, appeals a final judgment entered in favor of one of the defendants, W.E. Association, Inc,, following the trial court’s order granting W.E. Association’s motion for summary judgment. Because the plaintiff was an uninvited licensee at best, and because W.E. Association did not breach any duty it owed to her in her capacity as an uninvited licensee, we affirm.

At around 11:00 p.m. one evening, the plaintiff was injured while walking over a pathway of “paver stones” located in the area of a utility easement on property owned by W.E. Association and operated as a shopping center. The plaintiff stepped on a cracked paver stone that was “a little loose,” causing her to roll her ankle and fall. The accident occurred as the plaintiff and a companion were walking back to the plaintiffs home after taking a dinner cruise in Delray Beach.

Although the plaintiff and her companion had walked along public roads on the way to the dinner cruise, they decided to take a shortcut on the way home. To access the plaintiffs street via this “cut through,” one has to go through the shopping center’s parking lot, step over a raised curb at the end of the parking lot, and then walk through a grassy area, over a short path of paver stones located next to a storm pump station, through more grass, and around a guardrail.

The “cut through” area of the property is subject to a perpetual easement in favor of the City of Delray Beach for the purpose of the installation and maintenance of public utilities. The easement contains multiple storm pumps, which are maintained by the City.

The “cut through” did not have a “No Trespassing” sign at the time of the incident. The plaintiff testified that she regularly saw other people using the “cut through.”

On the evening of the accident, the plaintiff did not visit any of the businesses in the shopping center. The reason she took the shortcut on W.E. Association’s property was because she “Cjjust wanted to get home.”

The plaintiff filed a negligence action against W.E. Association and other defendants, alleging that she was an implied invitee on the property by virtue of the creation of the pathway and that she was injured as a result of the defendants’ negligent maintenance of the pathway. The plaintiff later filed an amended complaint, adding the City as a defendant.

W.E. Association ultimately moved for summary judgment, arguing in relevant part that: (1) it did not breach any duty to the plaintiff, who was either a trespasser or an uninvited licensee, and (2) it had no duty to maintain an area covered by an exclusive utility easement granted to the City.

The trial court granted the motion for summary judgment, finding that there were no genuine issues of material fact. The trial court reasoned that the plaintiff “was at best a licensee” and that W.E. Association’s “only duty was not to harm her willfully or wantonly.” The trial court later entered a final judgment in favor of W.E. Association.

On appeal, the plaintiff argues that summary judgment was improper because she was an implied invitee on the property. She claims that the paver stones were open to the public and were utilized by the public as a convenient pathway between the shopping center and the nearby residences. Alternatively, she argues that factual issues regarding her status on the property created a question for the jury. For the reasons that follow, we find the plaintiffs arguments unpersuasive.

An order granting summary judgment is reviewed de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010).

“Summary judgment is appropriate only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). “[A]ll inferences must be made in favor of the non-moving party.” Cohen, 878 So.2d at 405.

Under the common law, a visitor who enters the private property of another falls within one of three classifications: an invitee, a licensee, or a trespasser. Post v. Lunney, 261 So.2d 146, 147 (Fla. 1972). “The classification of the entrant is significant because the duty of care owed by the landowner varies according to the visitor’s status.” Barrio v. City of Miami Beach, 698 So.2d 1241, 1243 (Fla. 3d DCA 1997). The only duty a landowner owes to a trespasser or uninvited licensee is “to avoid willful or wanton harm to him and, upon discovery of his presence, to warn him of any known dangers which would not be open to his ordinary observation.” Nolan v. Roberts, 383 So.2d 945, 946 (Fla. 4th DCA 1980).

An invitee is a visitor on the premises by invitation, either express or reasonably implied, of the owner. Wood v. Camp, 284 So.2d 691, 695 (Fla. 1973). An “invitation” means that “the visitor entering the premises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs.” § 768.075(3)(a)l., Fla. Stat. (2011). However, erecting “No Trespassing” signs “is purely optional to a landowner,” so the absence of such signs does not mean that a landowner has impliedly invited the public on the land. Bishop v. First Nat’l Bank of Fla., Inc., 609 So.2d 722, 725 (Fla. 5th DCA 1992).

In determining whether one attains the status of invitee, Florida courts apply the “invitation test.” Post, 261 So.2d at 148-49. As we have explained:

[T]he invitation test bases “invitation” on the fact that the occupier by his arrangement of the premises or other conduct has led the entrant to believe that the premises were intended to be used by visitors for the purpose which this entrant was pursuing, and that such use was not only acquiesced in by the owner or possessor, but that it was in accordance with the intention and design with which the way or place was adopted or prepared.

Smith v. Montgomery Ward & Co., 232 So.2d 195, 198 (Fla. 4th DCA 1970).

An uninvited licensee is a person who chooses “to come upon the premises solely for [his or her] own convenience without invitation either expressed or reasonably implied under the circumstances.” Wood, 284 So.2d at 695. “An uninvited licensee is neither an invitee nor a trespasser, but rather, a legal status in between whose presence is neither sought nor forbidden, but merely permitted or tolerated by the landowner.” Bishop, 609 So.2d at 725. For example, a visitor who entered the premises of an office building for the purpose of finding a phone to call a cab was held to be an uninvited licensee, as she “could not have reasonably believed that the owner had asked her onto its premises for a mission which so obviously served only her personal convenience and did not benefit the landlord in any way.” Iber v. R.P.A. Int'l Corp., 585 So.2d 367, 369 (Fla. 3d DCA 1991).

Finally, a trespasser is a person “who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity.” Post, 261 So.2d at 147 (quoting 23 Fla. Jur. Negligence § 54 (1959)). A trespasser may be a “discovered trespasser” or an “undiscovered trespasser.” § 768.075(3)(a)2. & 3., Fla. Stat. (2011). An “undiscovered trespasser” is “a person who enters property without invitation, either express or implied, and whose actual physical presence was not detected, within 24 hours preceding the accident, by the person or organization owning or controlling an interest in real property.” § 768.075(3)(a)3., Fla. Stat. (2011). Nonetheless, when a landowner knows of the continued existence of previous trespassers over a substantial period of time, a trespasser who is injured on the land becomes elevated to the status of an uninvited licensee. Libby v. W. Coast Rock Co., Inc., 308 So.2d 602, 604 (Fla. 2d DCA 1975).

A plaintiffs status on property may be determined as a matter of law in some cases, but in others it may present a factual question for the jury:

It may be that on the facts in a particular case the determination of the category of the plaintiff must be determined as a matter of law by the trial judge, as in other cases in this respect; other causes will present a factual issue for the jury as to whether plaintiff is invitee, licensee or trespasser under appropriate instructions.

Wood, 284 So.2d at 696.

For example, in Bottita v. Fla. Power & Light Co., 534 So.2d 1198, 1198-99 (Fla. 4th DCA 1988), we reversed a summary judgment in favor of Florida Power and Light, holding that the trier of fact was required to decide the status of a two-year-old child who was playing with other children near a transformer located between two of her neighbors’ homes and was injured when she tripped on a transformer pad. We explained: “At the very least, we believe that the facts must be more fully developed before a judgment on the issue may be made.” Id. at 1199.

Here, the trial court properly granted summary judgment to W.E. Association. The undisputed facts established that the plaintiff was, at best, an uninvited licensee, and that W.E. Association did not breach any duty it owed to her in her capacity as an uninvited licensee. The plaintiffs reliance upon the Bottita case is misplaced, as that case is factually distinguishable and involved a record that was not “fully developed” as to the status of the claimant. By contrast, under the fully developed record of this case, the determination of the plaintiffs status may be determined as a matter of law.

The plaintiff was on W.E. Association’s property late at night; she was not there to visit any of the businesses in the shopping center, and she was taking a shortcut on the property solely for her own convenience. She was on the easement area without invitation, either expressed or reasonably implied under the circumstances. Put simply, no one would reasonably believe that the area near the storm pumps was “intended to be used by visitors for the purpose which this entrant was pursuing, and that such use was ... in accordance with the intention and design with which the way or place was adopted or prepared.” Smith, 232 So.2d at 198.

This is not a case where the plaintiffs status on the property presents a factual question for the jury. No reasonable jury could conclude from this record that the easement area was designed as a “convenient path” for pedestrians to use to reach the shopping center. Although the property contains a short pathway of paver stones next to a storm pump station, the area plainly was not intended tó be used by visitors as a walkway to and from the parking lot of the shopping center.

Contrary to the plaintiffs suggestion, the absence of a “No Trespassing” sign does not constitute an implied invitation by the owner. See Bishop, 609 So.2d at 725. Nor can an implied invitation be inferred from the fact that others may have trespassed upon the easement area of the property over a substantial period of time. In short, the undisputed facts show that the plaintiff entered W.E. Association’s property, including the area of the City’s utility easement, without any express or reasonably implied invitation.

Finally, the record establishes, without genuine issue of material fact, that W.E. Association did not breach any duty it owed to the plaintiff as an uninvited licensee or trespasser. First, W.E. Association did not -willfully or wantonly harm the plaintiff. Second, the property did not contain any “known dangers” that were not open to ordinary observation. The condition of the paver stones was open to ordinary observation. Moreover, even if there were concealed dangers on the property, W.E. Association was not aware of the plaintiffs presence on the property until after the incident. The duty to warn an uninvited licensee or trespasser of a concealed danger known to the owner arises only when the owner discovers the entrant’s presence on the property.

For the foregoing reasons, we affirm the summary judgment in favor of W.E. Association.

Affirmed.

Gerber and Klingensmith, JJ., concur.

      . The trial court did not address W.E. Association’s alternative argument for summary judgment—namely, that it owed no duly to the plaintiff because the accident occurred on a utility easement that was maintained by the City. We likewise decline to reach that issue.

      . Section 768.075(3), Florida Statutes (2011), which in certain circumstances provides tort immunity to owners of real property for injuries to trespassers on the property, divides the status of entrants into slightly different categories: invitees, discovered trespassers, and undiscovered trespassers.

      . Other examples abound in the case law. See, e.g,, Barrio, 698 So.2d at 1242-43 (a plaintiff who was injured during a robbery that occurred while she was visiting a closed public beach at about 3:30 a.m. was held to be an uninvited licensee because the City "neither affirmatively promotes nor discourages visitation to the beach during these early morning hours”); Morris v. Florentes, Inc., 421 So.2d 582, 583 (Fla. 5th DCA 1982) (motorcyclist was, at best, an uninvited licensee where he was an uninvited user of a bike trail on the defendant’s property, which was commonly used in the recreational operation of dirt bikes without being restricted or prohibited by the defendant).


author: PER CURIAM.

text:
    Andre PINDER, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D16-1165.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2016.
    Rehearing Denied April 19, 2017.

      Andre Pinder, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before WELLS, SALTER and SCALES, JJ.
   PER CURIAM.

Andre Pinder petitions this Court to issue a writ of habeas corpus pursuant to rule 9.100 of the Florida Rules of Appellate Procedure. We deny Pinder’s petition and issue an order to show cause as described below.

In 1991, a jury convicted Pinder of armed burglary, two counts of aggravated battery, two counts of aggravated assault, and one count of simple assault. The trial court entered an “Order Justifying Departure Sentence” that exceeded the sentencing guidelines range for his crimes. Pin-der appealed this upward departure and this Court affirmed his sentence. Pinder v. State, 591 So.2d 1149 (Fla. 3d DCA 1992) (Mem). Pinder petitioned the Florida Supreme Court for review. His petition was denied in Pinder v. State, 599 So.2d 1279 (Fla.1992) (Table).

Pinder’s petition for habeas corpus attempts to circumvent prior rulings on his other petitions seeking reversal of the trial court’s order for upward departure. This issue has been reviewed and disposed of by this Court. Therefore, this Court finds Pinder’s petition for habeas corpus successive and denies the petition. Further, this Court issues an order to show cause as described below.

ORDER TO SHOW CAUSE

Since 1991, Pinder has filed numerous petitions and appeals to this Court regarding the legality of his sentence with respect to the upward departure in the trial court’s order. Pinder is hereby directed to show cause, within forty-five days of this opinion, as to why he should not be prohibited from filing any further pro se appeals, petitions, motions or other pleadings related to his criminal conviction in circuit court case number 89-28127.

If Pinder does not demonstrate good cause, we will direct the Clerk of this Court not to accept any such filings unless they have been reviewed by, and bear the signature of, a licensed attorney in good standing with the Florida Bar.

Additionally, and absent a showing of good cause, any further and unauthorized filings by Pinder will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2014).

Denied. Order to show cause issued.

      . The following describe the many occasions this Court has reviewed Pinder’s related and unsuccessful motions and petitions relating to lower tribunal case number 89-28127. Pinder v. State, 139 So.3d 311 (Fla. 3d DCA 2014) (Table); Pinder v. State, 86 So.3d 1132 (Fla. 3d DCA 2012) (Table); Pinder v. State, 972 So.2d 193 (Fla. 3d DCA 2007) (Table); Pinder v. State, 931 So.2d 917 (Fla. 3d DCA 2006) (Table); Pinder v. State, 842 So.2d 122 (Fla. 3d DCA 2003) (Table); Pinder v. State, 769 So.2d 383 (Fla. 3d DCA 2000) (Table); Pinder v. State, 639 So.2d 987 (Fla. 3d DCA 1994) (Table); Pinder v. State, 591 So.2d 1149 (Fla. 3d DCA 1992) (Mem).


author: SUAREZ, C.J.

text:
    C. Eugene SIMS, II, Appellant/Cross-Appellee, v. Christine T. SIMS, Appellee/Cross-Appellant.
    No. 3D15-460
    District Court of Appeal of Florida, Third District.
    Opinion filed Dec. 28, 2016
    Nancy A. Hass, P.A. and Nancy A. Hass (Hollywood), for appellant/cross-appellee.
    The Weinger Appellate Firm and Daniel S. Weinger (Plantation), for appellee/cross-appellant.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ.
   SUAREZ, C.J.

C. Eugene Sims seeks to reverse a Final Judgment of dissolution of marriage, and Christine T. Sims raises one issue on cross-appeal. We affirm without discussion all issues raised on direct appeal and on cross-appeal. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

Affirmed.


author: ROTHENBERG, J.

text:
    Erick PACHECO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2284
    District Court of Appeal of Florida, Third District.
    Opinion filed February 08, 2017
    Erick Pacheco, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Erick Pacheco (“Pacheco”) was convicted of lewd and lascivious molestation on a child between the age of twelve and sixteen (Count 1); lewd and lascivious conduct on a child twelve to sixteen years of age by the defendant who was eighteen years of age or older (Count 3); and lewd and lascivious battery on a child less than sixteen years of age (Count 4). The record reflects that the victim was thirteen or fourteen years old and Pacheco was thirty-eight years old when Pacheco committed the charged offenses upon the victim.

On direct appeal, this Court affirmed the convictions for the offenses charged in Counts 1 and 4, but based on the State’s proper confession of error (double jeopardy grounds), this Court reversed the conviction for the offense charged in Count 3 with instructions to the trial court to vacate the conviction and sentence imposed for Count 3, recalculate Pacheco’s sentencing scoresheet, and resentence Pacheco. Pacheco v. State, 170 So.3d 913 (Fla. 3d DCA 2015). The trial court fully complied with this Court’s directive and substantially reduced Pacheco’s sentence.

Pacheco now appeals the trial court’s order denying his motion for postconviction relief, in which Pacheco alleged eleven separate grounds of ineffective assistance of trial counsel, which he contends requires a new trial. After review of Pacheco’s motion, the State’s lengthy (seventy-seven page) and very thorough response, the record, the relevant statutes and case law, and the trial court’s order, we find no error and affirm. The claims raised by Pacheco were refuted by the record and/or were -without merit.

Affirmed.

      . During trial, the trial court granted a judgment of acquittal as to Count 2 on double jeopardy grounds.


author: EMAS, J.

text:
    Sandra Kent WHEATON, Appellant, v. Mardella WHEATON, Appellee.
    No. 3D16-490
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.
    Rehearing Denied March 20, 2017
    Hershoff, Lupino & Yagel and Robert C. Stober (Tavernier), for appellant.
    Vernis & Bowling of the Florida Keys and Matthew S. Francis (Islamorada), for appellee.
    Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
   EMAS, J.

Appellant Sandra Wheaton seeks review of the trial court’s order denying her motion for attorney’s fees pursuant to a proposal for settlement. The trial court denied the motion because the proposal for settlement, which was served upon Appel-lee by e-mail, failed to comply with Florida Rule of Judicial Administration 2.516, which sets forth certain requirements for service by e-mail. Appellant contends that rule 2.516, and its e-mail requirements, are inapplicable because a proposal for settlement is not filed contemporaneously with the court. A trial court’s interpretation of court rules is reviewed de novo, and “[o]ur courts have long recognized that the rules of construction applicable to statutes also apply to the construction of rules.” Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla. 2006) (quoting Brown v. State, 715 So.2d 241, 243 (Fla. 1998)). We affirm the trial court’s ruling, and hold that proposals for settlement served by email must comply with the e-mail service provisions of rule 2.516.

The relevant portions of rule 2.516 provide:

(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice, must be served in accordance with this rule on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them must be served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court. (1) Service by Electronic Mail (“e-mail”). All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides. A filer of an electronic document has complied with this subdivision if the Florida Courts e-filing Portal (“Portal”) or other authorized electronic filing system with a supreme court approved electronic service system (“e-Service system”) served the document by e-mail or provided a link by e-mail to the document on a website maintained by a clerk (“e-Service”). The filer of an electronic document must verify that the Portal or other e-Service system uses the names and e-mail addresses provided by the parties pursuant to subdivision (b)(1)(A).

(Emphasis added.)

The rule thereafter delineates a variety of formatting and content requirements for any document that is served by e-mail. See rule 2.516(b)(l)(E)(i)-(iv). It is undisputed that the instant proposal for settlement, served by e-mail, did not meet the service by e-mail requirements of rule 2.516.

However, in asserting that proposals for settlement do not fall within the scope of rale 2.516, Appellant relies upon the language in rale 2.516(a) which provides that “every pleading subsequent to the initial pleading and every other document filed in any court proceeding ... must be served in accordance with this rale on each party.” Appellant contends that because the proposal for settlement is neither a pleading nor a “document filed in any court proceeding,” it is not subject to the requirements of rule 2.516.

It is true, of course, that both the proposal for settlement statute (section 768.79, Florida Statutes) and the proposal for settlement rale (Florida Rule of Civil Procedure 1.442) prohibit counsel from filing a proposal for settlement contemporaneously with service of the proposal. In fact, a proposal for settlement may only be filed with the court if the proposal is accepted or if filing is necessary for enforcement purposes. Appellant asserts that compliance with rule 2.516 would be required only upon the subsequent filing of a motion for enforcement of the proposal for settlement (since such a motion would be served and filed contemporaneously).

While Appellant’s premise is correct (a party is not permitted to file her proposal for settlement contemporaneously with service of the proposal), we disagree with her conclusion, as it focuses on the incorrect portion of the rule. The relevant language is contained in subdivision (b) of rule 2.516, which provides in pertinent part: “All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rale otherwise provides.” In this case, the document in question (the proposal for settlement) is “permitted to be served on another party.” And because the parties did not “otherwise stipulate,” and because the rule does not “otherwise provide,” this proposal for settlement “must be served by e-mail” and therefore must be served in compliance with the e-mail requirements of rule 2.516, regardless of whether the document is contemporaneously filed with the court. We find this language plain and unambiguous, and hold that a proposal for settlement falls clearly within the scope of rule 2.516(b) and is subject to that rule’s requirements.

In so holding, we agree with the decision and analysis of our sister court in Floyd v. Smith, 160 So.3d 567 (Fla. 1st DCA 2015) (holding that a proposal for settlement served by e-mail must comply with the email service requirements of rule 2.516). See also Matte v. Caplan, 140 So.3d 686 (Fla. 4th DCA 2014) (affirming trial court’s denial of a motion for attorney’s fees sought as a sanction pursuant to section 57.105(4), Florida Statutes (2013), because the motion was not served in strict compliance with rule 2.516, and implicitly recognizing that a motion for attorney’s fees under section 57.105(4) must comply with rule 2.516 even though the motion cannot be filed contemporaneously with service on opposing counsel).

Affirmed.

      . Rule 2.516(b)(1)(E) provides:
      Format of E-mail for Service. Service of a document by e-mail is made by an e-mail sent to all addresses designated by the attorney or party with either (a) a copy of the document in PDF format attached or (b) a link to the document on a website maintained by a clerk.
      (i) All documents served by e-mail must be sent by an e-mail message containing a subject line beginning with the words "SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the proceeding in which the documents are being served.
      (ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the name and telephone number of the person required to serve the document.

        (iii) Any document served by e-mail may be signed by any of the "/s/,” 7s,” or "s/” formats.
      (iv) Any e-mail which, together with its attached documents, exceeds the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court, must be divided and sent as separate e-mails, no one of which may exceed the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court and each of which must be sequentially numbered in the subject line,

      . Rule 1.442(d) provides: ‘‘A proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.” Section 768.79(3), Fla. Stat. (2015) provides similarly:
      “The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section.”

      . To the contrary, subdivision (d) of rule 2.516 provides in pertinent part: "All documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules.” This provision implicitly acknowledges that even if a document (such as a proposal for settlement) is not to be filed contemporaneously, it nevertheless falls within the purview of this rule. Had the Florida Supreme Court intended to exempt such served-but-not-contemporaneously-filed documents from the requirements of rule 2.516, it surely would have said so in subdivision (d).


text:
    John CHIARENZA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-122
    District Court of Appeal of Florida, Third District.
    Opinion filed March 8, 2017
    Weisberg Kainen Mark, PL, and Dennis G. Kainen; Benedict P. Kuehne, P.A., and Benedict P. Kuehne, Michael T. Davis and Susan Dmitrovsky, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and WELLS and SCALES, JJ.
   PER CURIAM.

We affirm Appellant John Chiarenza’s conviction for aggravated assault. The jury’s verdict is supported by competent, substantial evidence of each element of the crime. Walker v. State, 957 So.2d 560, 577 (Fla. 2007). Further, the trial court did not abuse its discretion in denying the admission of Chiarenza’s preferred expert. Rodriguez v. State, 413 So.2d 1303, 1304 (Fla. 3d DCA 1982). Nor did the trial court abuse its discretion by denying Chiaren-za’s requested special “defense theory of the case” jury instruction. While the trial court, in its discretion, certainly could have given the defense’s special instruction (Card v. State, 803 So.2d 613, 624 (Fla. 2001)), the standard instructions given to the jury fully covered Chiarenza’s defense theories. Stephens v. State, 787 So.2d 747, 755-56 (Fla. 2001).

Affirmed.


text:
    Cash W. PAWLEY, Sr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2758
    District Court of Appeal of Florida, Third District.
    Opinion filed March 8, 2017.

      Cash W. Pawley, Sr., in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, LOGUE and SCALES, JJ.
   EMAS, J.

Cash Pawley appeals from the trial court’s order barring him from filing any further motions, pleadings or other documents in Monroe County Circuit Court case number 2012-CFR-818-K unless signed by a member in good standing of the Florida Bar. We affirm this order without further discussion, but issue the following order to show cause.

ORDER TO SHOW CAUSE

We note that, since the November 13, 2013 filing of a notice of appeal from his conviction and sentence, Pawley has filed at least fifteen pro se collateral appeals or original proceedings related to his conviction or sentence in Monroe County Circuit Court case number 2012-CFR-818-K. In each instance, this court has either affirmed the lower court’s decision, denied the relief sought by Pawley, or dismissed the appellate proceeding. Paw-ley has engaged in the filing of meritless, time-barred and successive claims, and has continued to seek relief from this court on the same claims, notwithstanding prior adverse determinations. Pawley’s actions constitute an abuse of the postconviction process and have caused this court to expend precious and finite judicial resources which could otherwise be devoted to cases raising legitimate claims. Hedrick v. State, 6 So.3d 688, 691 (Fla. 4th DCA 2009) (noting “[a] legitimate claim that may merit relief is more likely to be overlooked if buried within a forest of frivolous claims.”)

While pro se parties must be afforded a genuine and adequate opportunity to exercise their constitutional right of access to the courts, that right is not unfettered. No party, whether represented or pro se, has the “right” to file frivolous claims. And while a certain amount of leeway is generally accorded to a pro se litigant untrained in the law, the right to proceed pro se may be forfeited where it is determined, after proper notice and an opportunity to be heard, that the party has abused the judicial process by the continued filing of successive or meritless collateral claims in a criminal proceeding. State v. Spencer, 751 So.2d 47 (Fla. 1999). As our sister court aptly described it, there comes a point when “enough is enough.” Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995). Although termination of the right to proceed pro se will undoubtedly impose a burden on a litigant who may be unable to afford counsel, courts must strike a balance between the pro se litigant’s right to participate in the judicial process and the courts’ authority to protect the judicial process from abuse.

Therefore, appellant Cash Pawley is hereby directed to show cause, within thirty days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his conviction or sentence in Monroe County Circuit Court case number 2012-CFR-818-K Absent a showing of good cause, we intend to direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to Monroe County Circuit Court case number 2012-CFR-818-K, unless they have been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Additionally, and absent a showing of good cause, this court intends to direct that such order be forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2015).

Affirmed. Order to Show Cause issued,

      . See 3D16-2758 (the instant case); 3D16-2286; 3D16-2120; 3D16-1460; 3D16-1287; 3D16-1039; 3D16-005; 3D15-2952; 3D15-2623; 3D14-2999; 3D14-2535; 3D14-1596; 3D14-1080; 3D14-268; and 3D13-3137.


text:
    Andre PINDER, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D16-1165
    District Court of Appeal of Florida, Third District.
    Opinion filed March 15, 2017
    Rehearing Denied April 19, 2017

      See also 591 So.2d 1149.
    Andre Pinder, in proper person.
    Pamela Jo Bondi, Tallahassee, General, for respondent.
    Before WELLS, SALTER and SCALES, JJ.
   PER CURIAM.

On November 23, 2016, this Court issued an Opinion denying Andre Pinder’s petition for a writ of habeas corpus. Pinder is serving a prison sentence of life plus forty years after his conviction, in 1991, of armed burglary, two counts of aggravated battery, two counts of aggravated assault, and one count of simple assault.

The incident that led to Pinder’s arrest and conviction occurred on May 17, 1989. After members of a church located in Miami, Florida called police to report theft and vandalism to parked cars outside the church, and after the police investigating those crimes had departed, Pinder and two other men returned to the church grounds and confronted the church members. They were angry that the church members had called the police. Pinder shot and wounded two of the church members and, with gun in hand, assaulted two others.

After Pinder’s conviction by a jury, the trial court entered an “Order Justifying Departure Sentence.” In support of its upward departure, the trial court stated that Pinder’s crime “strikes at the heart of the justice system, in that innocent persons were threatened and shot by the defendant for the sole reason that the victims called the police to investigate an automobile burglary and theft of property.”

Our November 2016 Opinion denying Pinder’s habeas corpus petition determined that (i) Pinder’s petition for writ of habeas corpus was successive and sought to use the vehicle of habeas corpus to circumvent numerous, prior post-conviction rulings of this Court and the trial court; and (ii) Pinder had filed eight cases with this Court on the issue of the legality of his sentence, including his original appeal that resulted in this Court’s affir-mance of Pinder’s conviction and sentence. Pinder v. State, 591 So.2d 1149 (Fla. 3d DCA 1992) (Mem) (“Pinder I”).

Our Opinion contained an order to show cause why Pinder should not be prohibited from filing with this Court any further pro se appeals, petitions, motions, or other pleadings related to his criminal conviction in circuit court case number 89-28127. Pin-der filed a response to the show cause order on January 30, 2017. In his response, Pinder argues that he has good cause for filing successive claims and he reiterates his attack on the legality of the upward departure aspect of his sentence.

In essence, Pinder’s argument is, and has been from the inception, that the trial court’s upward departure of his sentence was based upon a ground—threatening a witness—for which he was never charged or convicted. Pinder was not charged with a violation of section 914.22 of the Florida Statutes, which prohibits the use of “intimidation or physical force” or threat against a witness, victim or informant. § 914.22, Fla. Stat. (1989). Pinder has seized on language contained in Pinder I to erect his post-conviction strategy. Pin-der, however, has misread that language in the light cast by the facts of the case.

In Pinder I, this Court concluded that any threatening by Pinder of his victims was not an essential element of his crimes of aggravated battery, aggravated assault and assault. Pinder I, 591 So.2d at 1149. Thus, Pinder’s behavior, which culminated in his shooting of two victims, is an appropriate basis for upward departure. Id. at 1149-50. This Court also concluded that, because Pinder was not charged with violating section 914.22 of the Florida Statutes, his threatening behavior could be grounds for departure. Id at 1150. To support its conclusions, this Court cited the case of Walker v. State, 496 So.2d 220 (Fla. 3d DCA 1986). As Pinder has pointed out, the Florida Supreme Court disapproved the Walker decision in State v. Varner, 616 So.2d 988, 989 (Fla. 1993). In summary, Pinder’s argument is that: (i) Walker is the basis of this Court’s decision in Pinder I; (ii) Walker was disapproved in State v. Varner; and therefore, (iii) our decision in Pinder I is erroneous.

Pinder’s post-conviction strategy is premised on two flaws: (i) assigning retroactive effect to State v. Varner, contrary to the judicial rule that a change in the law from a later appellate court is not a ground to vacate a final order, Petrysian v. Metro. Gen. Ins. Co., 672 So.2d 562, 563 (Fla. 5th DCA 1996); and (ii) mischarac-terizating Pinder I’s holding by incorrectly maintaining that Pinder I affirmed the trial court’s upward departure based on a “threat” that was never charged. See Fla. R. Crim. P. 3.701(d)(ll).

But for Pinder’s misreading of Pinder I, there is a logic to his argument. The case reveals, however, that Pinder did not merely threaten his victims, as contemplated in section 914.22; rather, Pinder took violent action against his victims. He battered and assaulted them with a firearm. The trial court imposed the upward departure not for Pinder’s threats, but for the motivation underlying his actions: to punish the four church members who contacted and met with the police. In perhaps infelicitous language, this Court in Pinder I employed the words “threat” and “threatening” to characterize Pinder’s actions. Pinder I, 591 So.2d at 1149, 1150. Our perspective from twenty-five years later—which, frankly, includes Pinder’s post-conviction arguments—has an unobstructed view of Pinder’s crimes and the trial court’s response to them. The upward departure was not based upon mere threats. Therefore, Pinder’s assertion that he was not charged and convicted for threats under section 914.22 of the Florida Statutes is irrelevant.

The access to courts provision of the Florida Constitution—Article I, section 21—provides an avenue for an incarcerated person in Florida to challenge the legal basis of his or her incarceration; however, this constitutional right may be forfeited if that person abuses the judicial process. Jimenez v. State, 196 So.3d 499, 501 (Fla. 3d DCA 2016). Our responsibility is to balance the incarcerated person’s right to access to courts with the need of this Court to devote its finite resources to legitimate appeals and petitions. State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). Accordingly, after notice in the form of an order to show cause and an opportunity for the incarcerated person to respond, a court may prevent further filings. Id.; see also Whipple v. State, 112 So.3d 540 (Fla. 3d DCA 2013).

We conclude that Pinder has not demonstrated good cause to justify further pro se filings of appeals, petitions, motions, or other pleadings with this Court. We direct the Clerk of the Third District Court of Appeal to refuse to accept from Pinder further pro se filings related to circuit court case number 89-28127; provided, however, that the Clerk may accept filings related to case number 89-28127 if such filings have been reviewed and signed by an attorney who is a licensed member of the Florida Bar in good standing.

Any such further and unauthorized pro se filings by Pinder will subject him to sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for consideration by it for disciplinary action, pursuant to section 944.279(1) of the Florida Statutes.

Order issued.

      . We note that the Florida Supreme Court denied Pinder’s petition for review of Pinder I. Pinder v. State, 599 So.2d 1279 (Fla. 1992) (Table). Therefore, our Pinder I holding is the law of the case. Thornton v. State, 963 So.2d 804, 809 (Fla. 3d DCA 2007). On this basis alone, we could have denied Pinder’s petition.

      . The Court in Pinder I appears to have employed these words in direct response to Pin-der's use of them in the arguments contained in his initial brief.