author: VILLANTI, Chief Judge.

text:
    Fred DAVIS, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-887
    District Court of Appeal of Florida, Second District.
    Opinion filed June 28, 2017
    Rehearing Denied August 8, 2017

      Howard L. Dimmig, II, Public Defender, and Elisabeth G. Whitmire, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Chief Judge.

Fred Davis, III, appeals his conviction and sentence for one count of possession of cocaine, arguing that the trial court erred by denying his dispositive motion to suppress the cocaine seized from a pill bottle stashed in concrete latticework attached to the foundation of the rooming house where Davis was staying. We agree with the trial court’s determination that Davis had standing to challenge the seizure of the pill bottle and its contents. However, because we determine that Davis had a constitutionally protected interest in the latticework where he stashed the pill bottle, we conclude that he did not abandon it. And because the officer had no legal basis for seizing the pill bottle other than its alleged abandonment, we must reverse Davis’s conviction and sentence and remand for discharge.

The facts of this case are essentially undisputed. Davis was staying with his brother in a rooming house in St. Peters-burg. Davis had a key to the rooming house and kept belongings there, although he sometimes also stayed with his girlfriend who lived elsewhere. Davis paid his brother a portion of the rent for the room in the rooming house.

On the night of April 7, 2015, Officer Acri was in the area of the rooming house on a wholly unrelated call about a suspicious vehicle when he saw Davis and his brother standing on the back porch of the rooming house. Acri testified that he heard Davis’s brother say “cops” before he turned and went inside the rooming house. Rather than joining his brother inside, Davis walked down the porch steps and crossed the grass lawn that surrounded the house. He then placed a small bottle in the concrete latticework that was attached to the foundation of the house and that covered the crawl space under it; picked up his bicycle, which had been leaning against the house; and began to walk away while pushing the bicycle.

Based on a hunch that the pill bottle might contain an illegal substance, Acri stopped Davis and began to question him about the suspicious vehicle that had been reported in the area. After Davis said he knew nothing about that, Acri asked Davis what was in the pill bottle that he had placed in the latticework. Davis denied knowing anything about the pill bottle. Acri then handcuffed Davis and put him in the back of his cruiser.

With Davis secured, Acri walked through the yard to the side of the rooming house, reached into the latticework under the house, and pulled out a pill bottle. He opened the pill bottle and discovered cocaine inside. It was undisputed that Acri did not attempt to obtain consent from Davis or any other resident of the rooming house before he crossed the lawn and reached into the latticework under the house. It was also undisputed that Acri had only an inchoate hunch as to what was in the pill bottle before he retrieved it and opened it. Upon Acri discovering the contents of the pill bottle, he arrested Davis for possession of the cocaine in the pill bottle. The State later formally charged Davis with trafficking in cocaine based on the amount of cocaine found in the pill bottle.

Davis filed a motion to suppress the pill bottle and its contents, arguing that Acri had no right to seize the pill bottle from under the house without a warrant or proof that an exception to the warrant requirement applied. The State argued that Davis had no standing to ■ challenge the search because he had abandoned the pill bottle and because Acri had an obligation to “check out” the bottle as a matter of public policy so that children would not find it and so that it could be returned to its rightful owner. Despite the State’s argument, the trial court correctly found that Davis in fact had standing to challenge the seizure, but the court then concluded that Davis had abandoned the.pill bottle by putting it in an area that was not constitutionally protected. Therefore, the trial court denied the motion to suppress on this alternate basis. Davis now appeals.

As a general proposition, “[a] defendant who voluntarily abandons property or disclaims ownership lacks standing to challenge its search and seizure.” State v. Fosmire, 135 So.3d 1153, 1156 (Fla. 1st DCA 2014); see also K.W. v. State, 183 So.3d 1123, 1129 (Fla. 5th DCA 2015); Mori v. State, 662 So.2d 431, 431 (Fla. 3d DCA 1995); State v. Daniels, 576 So.2d 819, 823 (Fla. 4th DCA 1991). For example, in Fosmire, when the defendant told the police that’ two of the cell phones seized during a consensual search were not hers, she had no standing to challenge a subsequent search of those cell phones. 135 So.3d at 1156, Similarly, in Daniels, when the defendant affirmatively told the police that a particular suitcase was not hers, she had no standing to challenge the warrantless search of that suitcase. 576 So.2d at 823; see also United States v. Roman, 849 F.2d 920, 922 (5th Cir. 1988) (holding that one who disclaims ownership of a suitcase has no legitimate expectation of privacy in that suitcase or its contents and therefore cannot challenge the search). Essentially, by repudiating ownership, the defendant loses standing.

However, the theory of abandonment applies only when “a defendant has voluntarily abandoned [property] in an area where he has no reasonable expectation of privacy ....” State v. Oliver, 368 So.2d 1331, 1335 (Fla. 3d DCA 1979) (emphasis added) (citing Freyre v. State, 362 So.2d 989, 991 (Fla. 3d DCA 1978)). This is so because in such cases “the person has made a voluntary decision to avoid a police search by discarding evidence in an area where he has no Fourth Amendment protection.” Id. Thus, the question of whether Davis “abandoned” his property and so lacked standing turns on whether the latticework under the rooming house where Davis lived was subject to Fourth Amendment protection.

Further, the same Fourth Amendment considerations apply -to the State’s argument on appeal that the seizure of the pill bottle was lawful under the plain view doctrine. The supreme court has explained the variations of the plain view doctrine in detail:

The term “plain view” has been misunderstood and misapplied because courts have made it applicable to three distinct factual situations. This has resulted -in confusion of the elements of the “plain view doctrine.” To eliminate this confusion, we believe it appropriate to distinguish the true “plain view doctrine” as established in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971), from other situations where officers observe contraband.
The first factual situation we identify as a “prior valid intrusion.” In this situation, an officer is legally inside, by warrant or warrant exception, a constitutionally protected area and inadvertently observes contraband also in the protected area. It is this situation for which the United States Supreme Court created the “plain view doctrine” in Coólidge and held that an officer could constitutionally seize the contraband in “plain view” from within this protected area. We emphasize that it is critical under this doctrine for the officer to be already within the constitutionally protected area when he inadvertently discovers the contraband.
We identify the second factual situation as a “non-intrusion.” This situation occurs when both the officer and the contraband are in a non-constitutionally protected area. Because no protected area is involved, the resulting seizure has no fourth amendment ramifications, and, while the contraband could be defined as in “plain view,” it should not be so labeled to prevent any confusion with the Coolidge “plain view doctrine.”
The third situation concerns a “pre-intrusion.” Here, the officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, 'it only furnishes him probable cause to seize- the item. He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband. As with the non-intrusion situation, the term “plain view” should not be employed here to prevent confusion. For clarity, we label an observation in the latter two non-Coolidge situations as a legally permissive, “open view.”

State v. Rickard, 420 So,2d 303, 304-05 (Fla. 1982) (quoting Ensor v. State, 403 So.2d 349, 352 (Fla. 1981)).

Here, the trial court found that Davis had standing, thus implicitly finding that he did not abandon the pill bottle in an area outside Fourth Amendment • protection. It also concluded that the facts fell not within an abandonment theory, but instead within the second category of “non-intrusion,” apparently finding that the latticework protecting the crawl space under the rooming house where Davis lived was not a constitutionally protected area and hence that Aeri’s seizure of the pill bottle from that area did not have any Fourth Amendment ramifications. But these two findings are irreconcilable from a Fourth Amendment standpoint, and resolution of this ease requires us to address the question of whether the latticework attached to the foundation of the rooming house was, or was not, an area protected by the Fourth Amendment.

Initially, it appears that Florida law, as explained in State v. Titus, 707 So.2d 706 (Fla. 1998), would hold that the foundation of the rooming house was an area in which Davis would have a reasonable expectation of privacy. In Titus, the police received a tip that a.resident of a rooming house was smoking narcotics inside. Id. at 707. Without obtaining either consent or a warrant, the police entered the property through a side gate and entered the house through a back door that was open and possibly doorless. Id. The police walked through a hall to the common kitchen, where several people were gathered—some residents, some guests, and some others. Id. The police found Titus placing a crack pipe in his pocket, and he was arrested and charged with possession of cocaine and paraphernalia. Id.

Titus moved to suppress the cocaine, arguing that he had a reasonable expectation of privacy in the house, even though it was a rooming house where he shared certain living spaces with others. Id. The trial court rejected this argument, and Titus pleaded no contest while reserving his right to appeal. And on appeal, the Fourth District reversed, holding that the officers’ entry into the rooming house was improper absent either a search warrant or consent from an occupant. Id The State then sought review.

In affirming the Fourth District’s decision, the supreme court agreed with Titus that a rooming house was a dwelling and that the fact that residents lacked total privacy and had to traverse hallways to reach their bedrooms from the common areas did not defeat the “essential nature” of the building as a private dwelling. Id. at 707-08. As the court explained:

The Fourth Amendment establishes “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... ” U.S. Const, amend. IV[ ]. Indeed, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134-35, 32 L.Ed. 2d 752 (1972), and “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682-83, 5 L.Ed. 2d 734 (1961).
It is this concept of “home,” so sacrosanct under Fourth Amendment law, that guides our decision today. The mere fact that certain rooms traditionally associated with a home are shared by rooming house residents does not render the structure any less a home to those residents. See, e.g., McDonald v. United States, 335 U.S. 451, 453-56, 69 S.Ct. 191, 192-94, 93 L.Ed. 153 (1948) (applying Fourth Amendment protections of the home to rooming house in reversing denial of suppression motion where war-rantless police climbed through landlady’s window and proceeded to hallway where they observed illegal activity in defendant’s room by standing on chair and looking through transom); id. at 458, 69 S.Ct. at 194 (“[E]ach tenant of a building, while he has no right to exclude from the common hallways those who enter lawfully, does have a personal and constitutionally protected interest in the integrity and security of the entire building against unlawful breaking and entry.”) (Jackson, J., concurring); Brown v. United States, 83 F.2d 383, 386 (3d. Cir. 1936) (“[Certain of the appellants] were roomers in the house. It was their home and so far as the unlawful search affected them, it violated their constitutional rights.”); United States v. Booth, 455 A.2d 1351, 1353-54 (D.C. 1983) (rejecting government’s argument that because appellees lived in a rooming house, as opposed to a private home, they lacked a legitimate expectation of privacy in the front hall where police made warrantless entry); People v. Garriga, 189 A.D.2d 236, 596 N.Y.S.2d 25, 28 (“[W]e believe that the officers here, by entering the internal hallways of the defendant’s rooming house to find him engaged in a criminal transaction, entered the defendant’s home in a constitutional sense.”), leave to appeal denied, 82 N.Y.2d 718, 602 N.Y.S.2d 815, 622 N.E.2d 316 (1993).

Id. at 708 (emphasis added) (footnote omitted). However, the court cautioned that “this would not be the case if the rooming house in question was obviously open to the general public.” Id. at 709. But the fact that the premises was a rooming house does not, ipso facto, establish that the premises is open to the general public. Id. Finally, the court noted another justification for finding that residents of rooming houses were entitled to Fourth Amendment protections:

[Tjhere is too, in our view, importance on another level in finding the common internal hallway area of a rooming house a private, as opposed to a public, place, which arises from our obligation as judges to construe and vindicate constitutional safeguards in a class-neutral manner. Clearly, it is economic necessity that requires those who live in such humble circumstances to dwell there. That they cannot afford to have their own kitchens and bathrooms, and hallway access thereto, does not render such areas “public” with respect to the constitutional prerequisites for permissible entry by the police.... We should vigilantly guard against permitting ... inroads upon the reasonable expectations of privacy of the lesser situated of our citizens who are forced by economic circumstances to reside in rooming houses.

Id. at 710 (quoting People v. Garriga, 189 A.D.2d 236, 596 N.Y.S.2d 25, 29 (N.Y. 1993)).

From Titus, the general principle is clear that the residents of a rooming house are entitled to the same Fourth Amendment protections as residents of single-family houses are, as long as the rooming house itself is not open to the public. Cf. City of Evanston v. Hopkins, 330 Ill.App. 337, 71 N.E.2d 209 (1947) (upholding as valid police entry into a rooming house when there was a “Public Telephone” sign at the entrance and the door was open). And hence, because the rooming house here was at least arguably Davis’s residence and there was no evidence that it was open to the public, Davis had a Fourth Amendment right to be free of warrantless searches of that residence, and the trial court’s conclusion that the pill bottle was not in a constitutionally protected area was erroneous.

Further, any argument that the pill bottle was not in a constitutionally protected area because it was outside the house is not supported by the facts here. While there is some dispute as to whether the curtilage of a rooming house is afforded the same Fourth Amendment protection as a single-family dwelling, see Titus, 707 So.2d at 707 n.1 (stating that the opinion is limited to the interior areas of rooming house and does not address the exterior areas or curtilage), here the pill bottle was not found in the curtilage. Instead, the record shows that Davis placed the pill bottle in concrete latticework that was attached to the foundation of the house and protected the crawlspace from intruders. This latticework and the crawlspace behind it were part of the structure. See Tindall v. State, 997 So.2d 1260, 1261 (Fla. 5th DCA 2009) (holding that entry into the crawlspace constituted entry into a structure because the defendant “penetrated the invisible, vertical plane into the airspace of the house by crawling under the house to gain access”); see also Dicks v. State, 75 So.3d 857, 860 (Fla. 1st DCA 2011) (holding that defendant’s entry into the crawlspace under a mobile home was sufficient to constitute his “entering” the dwelling for purposes of a burglary-charge); cf. Peterson v. Jones, No. 3:14CV104/RV/CJK, 2016 WL 873235 at *8 (N.D. Fla. 2016) (holding that burglary conviction of defendant who crawled onto the roof of a building and stole air conditioning coils from units on the roof was supported by the evidence because entry onto the roof penetrated the vertical-plane of the structure). Hence, Acri did more than enter the curtilage of the rooming house; he entered the house itself by penetrating the “invisible vertical plane into the airspace of the house.” This intrusion into a- constitutionally protected space removes this case from the “non-intrusion” line of cases relied upon by the trial court and renders the trial court’s ruling that the area was not constitutionally protected incorrect.

Having determined that the latticework and the crawl space behind it are part of the constitutionally protected space of the rooming house, we conclude that the only way Acri could validly seize the pill bottle was if it could somehow be considered to have been in “open view.” As discussed above, the “open view” doctrine applies when an officer is located outside of a constitutionally protected area looking in. If the. officer sees contraband in /that situation, it furnishes him probable cause to seize the item, but he must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband. Rickard, 420 So.2d at 305. The problem here is that Acri did not see “contraband” in the latticework; he saw only an opaque pill bottle. His hunch that it might contain contraband was just that—a hunch,

But more importantly, Acri had neither a warrant nor facts to support an exception to the warrant requirement when he entered the property. The five established exceptions to the warrant requirement are: “(1) consent, (2) incident to a lawful arrest; (3) with probable cause to search but with exigent circumstances, (4) in hot pursuit, and (5) stop and frisk.” Gnann v. State, 662 So.2d 406, 408 (Fla. 2d DCA 1995). Here, there is no dispute that Davis did not consent to the search, and.no facts support either hot pursuit or stop and frisk. The trial court found that Davis’s arrest was not lawful, but even it if was, that would not- have supported a search of the crawl space under the house. And while the State argued some form of exigent circumstances in trying to keep the pill bottle out of the hands of children, the evidence did not show that there were children in the area, that the police did not have the ability to control the scene, or that the police -did not have time to .procure a warrant, Therefore, with no warrant or warrant exception, the State cannot show that Acri’s seizure of the pill bottle was legal under the “open view” doctrine.

We recognize that not all areas on the exterior of a residence are subject to Fourth Amendment protection. For example, in State v. Detlefson, 335 So.2d 371, 372 (Fla. 1st DCA 1976), the court held that a defendant had no reasonable expectation of privacy on the front porch of a house because deliverymen and visitors would use the porch to reach the front door. Perhaps more significantly, in State v. Duhart, 810 So.2d 972, 973-74 (Fla. 4th DCA 2002), the court held that a defendant had no reasonable expectation of privacy in an open carport that was attached to the side of the house.

However, this case does not involve the front porch of a residence, where one might expect visitors and delivery persons to routinely be. Further, unlike the carport in Duhart, the latticework in this case was not an open area in which passersby could readily observe its contents. The record here shows that Davis took affirmative steps to hide the pill bottle in an area not readily observable by others and where one would not expect passersby or delivery persons to be. Hence, this case is not controlled by cases addressing items found on a front porch or in an open carport.

In sum, we hold that the area in and behind the latticework covering the foundation was a constitutionally protected area of the rooming house in this case. Therefore, while we agree with the trial court that Davis had standing to challenge the seizure of his property from that location, we conclude that the trial court erred in denying the motion to suppress because the State failed to prove that Acri had a legal basis upon which to enter the property and seize the pill bottle from that location. And given the dispositive nature of Davis’s motion, Davis must be discharged on remand. See, e.g., Jacoby v. State, 851 So.2d 913, 914-15 (Fla. 2d DCA 2003) (ordering discharge of defendant when denial of dispositive motion to suppress was reversed on appeal).

Reversed and remanded for discharge.

LaROSE and SLEET, JJ., Concur.

APPENDIX

      . Because the nature and placement of this latticework were critical to this court’s consideration of this issue, we include a photograph of the rooming house as an appendix to this opinion. This photograph was introduced into evidence at the hearing on Davis's motion.


source: Caselaw Access Project

author: LUCAS, Judge.

license: Public Domain

text:
    ACQUISITION TRUST COMPANY, LLC, Appellant, v. LAUREL PINEBROOK, LLC, and Real Sub, LLC, and Publix Super Markets, Inc., Appellees.
    Case No. 2D16-3325
    District Court of Appeal of Florida, Second District.
    Opinion filed July 7, 2017
    Rehearing Denied August 8, 2017

      Alex P. Rosenthal and Amanda Jassem Jones of Rosenthal Law Group, Weston, for Appellant.
    Hunter G. Norton and Steven J. Chase of Shumaker, Loop & Kendrick, LLP, Sarasota, for Appellee Laurel Pinebrook, LLC.
    Kristin Hatcher-Bolin and Mark N. Miller of GrayRobinson, P.A., Lakeland, for Appellees Real Sub, LLC and Publix Super Markets, Inc.
   LUCAS, Judge.

This case concerns a dispute over a purchase and sale agreement of commercial property, which was subject to a prior, recorded right of first refusal. Challenging the manner in which that right of first refusal was exercised, the frustrated prospective purchaser of the property, Acquisition Trust Company, LLC (“Acquisition Trust”), filed a complaint in the circuit court of Sarasota County alleging rescission, specific performance, and breach of contract. The circuit court dismissed Acquisition Trust’s complaint with prejudice. Appellees concede that the circuit court’s dismissals with prejudice was improper since Acquisition Trust had never been afforded an opportunity to amend its complaint. We agree. See Strader v. Carpenters Crest Owners Ass’n, Inc., 968 So.2d 621, 622 (Fla. 2d DCA 2007) (“Generally, a trial court must allow a litigant the opportunity to amend a complaint before dismissing its suit with prejudice unless it is clear that the pleading cannot be amended so as to state a cause of action.” (quoting Albrecht v. Bd. of Trs. of Internal Improvement Tr. Fund, 481 So.2d 555, 556 (Fla. 2d DCA 1986)); Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998) (“A dismissal with prejudice should not be ordered without giving the party offering the pleading an opportunity to amend unless it appears that the privilege to amend has been abused or it is clear that the pleading cannot be amended to state a cause of action.”). Accordingly, we reverse the orders of the circuit court and remand this case for further proceedings consistent with this opinion.

Our reversal necessarily affords Acquisition Trust the opportunity to file an amended complaint, a pleading that, it appears from the record and the representations made to us during oral argument, will likely be filed and will likely differ in some respects from the dismissed complaint. And obviously, we have no way of knowing in advance the manner in which Appellees will choose to respond to such an amended pleading when or if it is served. The parties urge us to nevertheless render an opinion on the merits of the substantive legal controversy that was argued in the prior motion to dismiss the original complaint. In this case, though, we must respectfully decline their invitation. Cf. State v. Barati, 150 So.3d 810, 813 (Fla. 1st DCA 2014) (“Under the Florida Constitution, only the Florida Supreme Court has the jurisdiction to issue advisory opinions.” (first citing art. V, § 3(b)(10), Fla. Const.; and then citing Fla. House of Representatives v. League of Women Voters, 118 So.3d 198, 207 (Fla. 2013)). We express no opinion, then, on the substantive issues raised below and in this appeal but must leave that to the parties and the circuit court to develop more fully following remand.

Reversed and remanded.

MORRIS, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.

      . Appellees argued in their motions to dismiss that Acquisition Trust had no standing to dispute how their transaction for the sale of the subject property was consummated once Pub-lix Supermarkets, Inc., gave notice that it would exercise its right of first refusal over the property. At the conclusion of the hearing on the motion to dismiss, the circuit court took the matter under advisement and then issued the orders now on appeal, orders which were silent as to any basis or rationale for'the dismissals of Acquisition Trust’s complaint.


author: PER CURIAM.

text:
    Darrin LAVINE, Trustee of DCM, etc., et al., Appellants, v. JPMORGAN CHASE BANK, etc., et al., Appellees.
    Case No. 5D15-2450
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017
    Rehearing Denied August 23, 2017
    Kelley A. Bosecker, of Law Office of Kelley A. Bosecker, St. Petersburg, for Appellant, David C. Mangham.
    No Appearance for other Appellant.
    Elliot B. Kula, W. Aaron Daniel and William D. Mueller, of Kula & Associates, P.A., Miami, for Appellee, JPMorgan Chase Bank.
    No Appearance for other Appellees.
   PER CURIAM.

Darrin Lavine, as trustee of the DCM revocable trust, and David C. Mangham appeal the final judgment of foreclosure entered by the trial court in favor of JPMorgan Chase Bank. We affirm on all issues except those related to Lavine, as trustee of the DCM revocable trust.

Lavine signed the notice of appeal, indicating he was appearing pro se on behalf of the trust. However, since Lavine is not an attorney, he cannot represent the trust because doing so constitutes the unauthorized practice of law. See EHQF Tr. v. S & A Cap. Partners, Inc., 947 So.2d 606, 606 (Fla. 4th DCA 2007). Accordingly, as to Lavine, as Trustee of the DCM Revocable Trust, the appeal is dismissed. M. at 606-07.

AFFIRMED, as to David C. Mangham; and DISMISSED, as to Darrin Lavine, Trustee of DCM Revocable Trust.

PALMER, TORPY and BERGER, JJ., concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Earl BUTLER, DOC #G02261, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4096
    District Court of Appeal of Florida, Second District.
    Opinion filed August 9, 2017
    Rehearing Denied September 19, 2017

      Earl Butler, pro se.
   ROTHSTEIN-YOUAKIM, Judge.

Earl Butler appeals the partial summary denial and partial dismissal with prejudice of his motion and amended motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and the denial of his request for leave to further supplement his amended rule 3.850 motion. In his original and amended motions, Butler raised numerous grounds for relief that he neither labeled nor numbered. The postconviction court labeled and numbered each claim and amended claim—twenty-three in total—and did not err in its disposition of those claims that it addressed. Nor did the postconviction court abuse its discretion in denying Butler’s untimely request to supplement his amended motion.

Understandably, however, the postcon-viction court apparently missed a twenty-fourth claim, which was wedged between claims six and seven (the first full paragraph and the third full paragraph) on page ten of Butler’s original motion. In that claim, Butler alleged that his counsel had performed deficiently at sentencing by failing to object to his designation as a habitual felony offender because he had last been convicted of a felony in 1998. See § 775.084(l)(a)(2)(b), Fla. Stat. (2013). The postconviction court never addressed this claim, and the summary record does not shed light on it.

Accordingly, we affirm the postconviction court’s disposition of the twenty-three claims upon which it ruled and its denial of Butler’s request to supplement his amended motion. We must vacate the final disposition, however, to the extent that we remand for the postconviction court to consider in the first instance the twenty-fourth claim for relief identified above. We do not comment on the merits of this outstanding claim but note that, if the postconviction court determines that it is facially insufficient, Butler should be given an opportunity to amend it pursuant to rule 3.850(f).

Affirmed in part; vacated in part; remanded with directions.

VILLANTI and CRENSHAW, JJ., Concur.


text:
    Shannon COPELAND, Appellant, v. FLORIDA BAR, Appellee.
    CASE NO. 1D16-0516
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Shannon Copeland, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Patrick Imhof, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Appellant raises no basis for reversal; therefore, we summarily affirm the order below. See Fla. R. App. P. 9.315(a).

KELSEY, WINOKUR, and WINSOR, JJ., CONCUR.


text:
    Matthew MARANA, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-5829
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017.
    Rehearing Denied September 26, 2017
    William R. Ponall of Ponall Law, Mait-land, for Appellant.
    Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, for Appellee.
   PER CURIAM.

Matthew Maraña appeals his conviction and sentence arising from on online sting in which he travelled to meet “a minor” and “her sister” for sex. On appeal, he makes two arguments that his conviction should be overturned because law enforcement officers violated his due process rights and impermissibly entrapped him. He also argues to be resentenced because the trial court simply modified his illegal sentence- when a new sentencing hearing was required. We affirm Appellant’s conviction without additional discussion, but reverse and remand for a resentencing hearing.

The Florida Supreme Court “has long held that where a sentence has been reversed or vacated, the resentencings in all criminal proceedings ... are de novo in nature.” See State v. Fleming, 61 So.3d 399, 406 (Fla. 2011). “[T]he full panoply of due process considerations attach .,. [and] both parties may present new evidence bearing on the sentence.” Id. (citing State v. Scott, 439 So.2d 219, 220 (Fla. 1983)). In this case, Appellant filed a 3.800(b)(2) motion arguing correctly that his prior sentence—twelve years in prison followed by an eight-year probationary term for a second degree felony—was legally impermissible. His motion also requested a resentencing hearing. The trial court granted his motion to vacate the illegal sentence, but then corrected the sentence downward on its own without conducting a resentencing hearing. Appellant’s new sentence gave him twelve years in prison followed by a three-year proba-tionaiy term.

It generally doesn’t present a problem for courts to correct ministerial problems with a sentence without a hearing. See, e.g., Jordan v. State, 143 So.3d 335, 339 (Fla. 2014); Taylor v. State, 185 So.3d 1281, 1282 (Fla. 1st DCA 2016). But in this instance, the trial court exercised discretion in deciding Appellant’s new sentence that went beyond a ministerial act. Jordan, 143 So.3d at 339-40 (concluding that resen-tencing is not a ministerial act where the trial judge has judicial discretion and where the appellant will suffer practical consequences from the decision). Due process rights attached to Appellant’s resen-tencing here because the court had vacated a prior, legally impermissible sentence and exercised discretion in deciding on a new sentence that had tangible consequences for Appellant. We thus reverse and remand for a new resentencing hearing.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

WETHERELL, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR.


text:
    Sirron J. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2690
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017
    Rehearing Denied September 27, 2017
    Sirron J. Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

This Court reserves jurisdiction to consider the imposition of sanctions.

ROWE, MAKAR, and JAY, JJ., CONCUR.


text:
    Wafa HAMANE, Appellant, v. Abderrazak ELOFIR, Appellee.
    Case No. 5D16-4211
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    Rehearing Denied September 26, 2017
    Jeffrey A. Conner, Winter Garden, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, the former wife, seeks review of an order granting a motion filed by Appellee, the former husband, to dissolve a permanent injunction against domestic violence. Appellee failed to present any evidence at the evidentiary hearing “demons-trat[ing] that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose.” Alkhoury v. Alkhoury, 54 So.3d 641, 642 (Fla. 1st DCA 2011). Here, as in Alkhoury, Appellee failed to offer any changed circumstance relevant to the specific facts underlying the injunction he sought to dissolve. Accordingly, we reverse and remand with instructions that the injunction against domestic violence be reinstated.

REVERSED and REMANDED.

SAWAYA, LAMBERT and EISNAUGLE, JJ., concur.


text:
    NATIONSTAR MORTGAGE, LLC, Appellant, v. BO CHAN, Appellee.
    Case No. 5D16-3492
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    Rehearing/Rehearing En Banc Denied September 26, 2017

      Nancy M. Wallace, of Akerman LLP, Tallahassee, William Heller, of Akerman LLP, Fort Lauderdale, and Scott R. Stengel, of Akerman LLP, Orlando, for Appellant.
    Kelley A. Bosecker, St. Petersburg, for Appellee.
   PER CURIAM.

Nationstar Mortgage, LLC, (“Appellant”) appeals the trial court’s involuntary dismissal of its action for foreclosure of a promissory note and mortgage at the close of its case-in-chief during trial. We reverse.

The case began when the original lender, Bank of America, N.A., filed a one-count complaint against the Appellee and her husband to foreclose on the note and mortgage that it held on Appellee’s real property. Bank of America alleged that although it was no longer the owner of the note, it was the holder of the note and servicer of the loan, and it attached to its complaint a copy of the note and mortgage, with the note containing a blank indorsement. Sometime thereafter, Bank of America filed the original note with this same blank indorsement with the clerk of court together with a certified copy of the mortgage, where they remained at the time of trial. Bank of America later moved to amend its complaint to substitute Appellant as the party-plaintiff, alleging that the note and mortgage had been assigned to Appellant and that, as the holder, Appellant was now entitled to enforce the note and mortgage. The motion was granted without objection.

.At trial, Appellant moved the original note and the certified copy of the mortgage, that had previously been filed with the court, into evidence without objection. Appellant also moved into evidence the demand letter sent pursuant to paragraph 22 of the mortgage and its payment histo-' ry records establishing Appellee’s default on the note and mortgage. After Appellant concluded the presentation of its evidence and rested its case, Appellee moved for an involuntary dismissal. The trial court granted Appellee’s motion to dismiss, but it did so for reasons wholly unrelated to those argued by Appellee. The court found that Appellant failed to establish standing at the time suit was filed, and it thereaftér entered the final order of dismissal now on appeal. ,'

“We apply a de novo standard of review in determining whether a party has standing to bring an action.” U.S. Bank Nat’l Ass’n v. Laird, 200 So.3d 176, 177 (Fla. 5th DCA 2016) (citing Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128, 1129 (Fla. 4th DCA 2014))'. “A party seeking foreclosure has the burden to establish that it had standing at the time it filed the foreclosure complaint.” Id. (citing Boyd, 143 So.3d at 1129).

Here, Appellant was not the original plaintiff; however, as the substitute plaintiff, Appellant “stands in the shoes of the original plaintiffimortgagee,” Sandefur v. RVS Capital, LLC, 183 So.3d 1258, 1260 (Fla. 4th DCA 2016) (quoting Miller v. Kondaur Capital Corp., 91 So.3d 218, 219 (Fla. 4th DCA 2012)), and “acquires the standing (if any) of the original plaintiff at the time the case was filed.” Id. (citing Lewis v. J.P. Morgan Chase Bank, 138 So.3d 1212, 1213 (Fla. 4th DCA 2014)), In the instant case, the original plaintiff filed with the court the original note, with a blank indorsement, that was in the same condition as the copy that ,it attached to the initial complaint. This is sufficient to establish that the original plaintiff had standing to bring the foreclosure action, absent .any evidence or testimony to the contrary (which there was none). Thus, the trial court erred in holding that Appellant, as the substituted plaintiff, failed to establish standing, at the time suit was filed. See Ortiz v. PNC Bank, Nat’l Ass’n, 188 So.3d 923, 925 (Fla. 4th DCA 2016); Clay Cty. Land Trust No. 08-04-25-0078-014-27 v. JPMorgan Chase Bank, Nat’l Ass’n, 152 So.3d 83, 85 (Fla. 1st DCA 2014). Finally, we reject, without further comment, the remaining grounds asserted by Appellee for affirmance.

Accordingly, because Appellant had established standing at the inception of the suit, we reverse the order of involuntary dismissal-and remand this case for a new trial.

REVERSED and REMANDED.

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

      . Appellee’s husband passed away during the litigation below and was dropped as a party.


author: CASANUEVA, Judge.

text:
    George GOLLOMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2583
    District Court of Appeal of Florida, Second District.
    Opinion August 18, 2017

      Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

George Golloman seeks review of his judgment and sentences for several charges following a negotiated plea of no contest. Mr. Golloman argues that the trial court erred in denying his motion to withdraw plea because there had been no determination of competency at the time he entered his plea. We reverse the judgment and sentence and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Mr. Golloman was arrested on December 7, 2013, and charged with possession of cocaine with intent to sell within 1000 feet of a school, resisting arrest .with violence, depriving an officer of a means of protection or communication, and possession of drug- paraphernalia. He was found incompetent to proceed on June 3, 2015. Upon reevaluation, he was determined to be competent by two doctors. A trial date was set, and on the day of trial, Mr. Golloman accepted a negotiated plea to the following charges, filed under an amended information: possession of a controlled substance, resisting arrest with violence, attempt to deprive an officer of a means of protection or communication, and possession of drug paraphernalia. He was sentenced to thirty-six months’ prison followed by twenty-four months’ community control pursuant to the plea agreement.

Mr. Golloman filed a timely motion to withdraw plea, arguing that an order of competency had never been entered and his plea was involuntary. After acknowledging the lack of a written order, the trial court found that the issue of competency had been addressed, concluded that his plea was voluntary, and denied the motion to withdraw. For the reasons discussed below, we must reverse.

II. ANALYSIS

“An individual who has been adjudicated incompetent is presumed to remain incompetent until adjudicated competent to proceed by a court.” Shakes v. State, 185 So.3d 679, 681 (Fla. 2d DCA 2016) (quoting Dougherty v. State, 149 So.3d 672, 676 (Fla. 2014)). “Under Florida Rule of Criminal Procedure 3.210, a criminal prosecution may not move forward at any material stage, which includes entry of a plea, against a defendant who is incompetent to proceed.” Ross v. State, 155 So.3d 1259, 1259 (Fla. 1st DCA 2015).

Upon receiving notice that the defendant has regained competence, the trial court is required to hold a hearing to determine if the defendant is in fact competent to proceed. Bylock v. State, 196 So.3d 513, 515 (Fla. 2d DCA 2016); Shakes, 185 So.3d at 681 (citing Roman v. State, 163 So.3d 749, 751 (Fla. 2d DCA 2015)). At the competency hearing, the trial court may hear live testimony of the court-appointed experts, “or where the parties and the trial court agree, the trial court ‘may decide the issue of competency on the basis of the written reports alone.’ ” Shakes, 185 So.3d at 681 (quoting Dougherty, 149 So.3d at 677-78). “However, the court must regard the reports as advisory only.” Zern v. State, 191 So.3d 962, 964 (Fla. 1st DCA 2016).

The trial court must make an independent determination of competency and enter a written order containing its findings. Shakes, 186 So.3d at 681. Relying on a stipulation of counsel to determine competency “improperly absolves the trial court from making an independent determination regarding a defendant’s competency to stand trial.” Dougherty, 149 So.3d at 678. This is so even when the expert reports are in agreement as to the defendant’s competency. Cramer v. State, 213 So.3d 1028, 1029 (Fla. 2d DCA 2017).

Once a reason for a competency hearing has arisen, the defendant has a due process right to an independent finding of competency. Zern, 191 So.3d at 965. This right cannot be waived, and a trial court’s failure to make such a finding constitutes fundamental error. Id.

In this case, the record does not reflect that the trial court made an independent determination of competency before Mr. Golloman entered his plea. The record shows that on March 23, 2016, the new presiding judge on the case inquired as to whether there had been a formal adjudication as to competency. Counsel could not recall, and the trial court ultimately relied on a stipulation of counsel that competency had been restored. The trial court made no oral finding of competency, and no written order of competency was entered.

On March 28, 2016, the day Mr. Gollo-man was scheduled for trial, the court denied his request to be reevaluated for competency, stating, “at this point, we have our standing evaluation, you know, after his discharge that tells us that he is competent.” After some discussion, Mr. Golloman entered a plea, and the trial court sentenced him according to that plea agreement.

Mr. Golloman filed a timely motion to withdraw his plea based on the lack of a proper determination of competency. The trial court denied the motion, stating:

I’m confident that we addressed his restored competency although again I do acknowledge there was not an order presented that did so. But the evaluations speak for themselves, and I would also think that lack of a—of a formal entry of a record was quite probably waived by entry of a plea without raising it at that time.

This was error.

Having been adjudicated incompetent to stand trial on June 3, 2015, Mr. Golloman was thereafter presumed to be incompetent until, after proper notice and hearing, the court found otherwise. See Roman, 163 So.3d at 750-51. The expert evaluations were merely advisory, and it was incumbent upon the trial court to make the ultimate determination of competency. See Shakes, 185 So.3d at 681; Zern, 191 So.3d at 964. However, the record shows that no determination of competency was ever made by the trial court, nor was a written order entered. Counsels’ stipulation as to competency was insufficient, see Dougherty 149 So.3d at 678, and Mr. Golloman did not waive this due process violation by entering a plea without raising the issue of competency, see Zern, 191 So.3d at 965.

III. CONCLUSION

We reverse the judgment and sentences and remand this matter for the trial court to allow Mr. Golloman to withdraw his plea and to hold a proper competency hearing in accordance with this opinion. As the trial court did below, we caution Mr. Gollo-man that, should he withdraw his plea, the State can proceed against him on the original charges.

Reversed and remanded with instructions.

SILBERMAN and MORRIS, JJ, ' Concur.


author: WINOKUR, J.

text:
    Raymond Wayne BREEDEN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-3749
    District Court of Appeal of Florida, First District.
    Opinion filed August 21, 2017.
    Rehearing Denied September 29, 2017
    Diana L. Johnson of Johnson and Lufra-no, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant' Attorney General, Tallahassee, for Appellee.
   WINOKUR, J.

Appellant Raymond Wayne Bree-den appeals his convictions and sentences for first-degree murder and armed burglary. Breeden has identified numerous improper comments the prosecutor made in voir dire, in cross-examining him, and in closing argument. However, Breeden objected to none of these improper comments.

“As a general rule, ... failing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate' review.” Brooks v. State, 762 So.2d 879, 898 (Fla. 2000). “The sole exception to the general’rule is where the unobjected-to comments rise to the level of fundamental error, which has been defined as error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have-been obtained without the assistance, of the alleged error.’ ” Id. at 898-99 (quoting McDonald v. State, 743 So.2d 501, 505 (Fla. 1999)). While many of the prosecutor’s comments identified by Breeden were improper, after a careful review of the record, we find none of them meet the fundamental-error standard, either individually or cumulatively.

Affirmed.

OSTERHAUS and BILBREY, JJ., CONCUR.

       Breeden also identifies some prosecutorial comments to which he did object, but the trial court’s rulings on those objections do not constitute reversible error.


author: WALLIS, J.

text:
    Bruce PACKAL, Appellant, v. Deniz D. JOHNSON, Appellee.
    Case No. 5D16-3183
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 25, 2017
    Kurt A. Russell and Jack L. Platt, of Platt Hopwood Attorneys at Law, PLLC, Melbourne, for Appellant.
    David J. Volk, of Volk Law Offices, P.A., Melbourne, for Appellee.
   WALLIS, J.

Bruce Packal appeals a judgment granting a permanent injunction for protection against stalking violence. Because competent, substantial evidence does not support a finding of stalking, we reverse the injunction.

On the evening of July 4, 2016, Packal’s neighbor, Deniz D. Johnson, set off fireworks with her family in the middle of their street. Startled by the sound of the fireworks, Packal emerged from his home with an unloaded gun, made explicit verbal threats towards Johnson and her family, then crossed the street and shoved Johnson’s boyfriend’s son, Matthew Garcia, who had begun to record the incident on his phone. According to Garcia, the entire confrontation occurred within a twenty-minute timeframe. Johnson subsequently filed a Petition for Injunction for Protection Against Stalking Violence.

Although Johnson alleged a history of confrontations involving Packal, the trial court expressly disregarded this history at the hearing on the petition and focused entirely on the July 4 altercation. The trial court ultimately found that Packal’s actions during, the twenty-minute altercation qualified as two separate incidents of harassment, warranting an injunction. Specifically, the trial court found that Packal harassed Johnson by: (1) verbally threatening her and her family while demonstrating his firearm, and (2) shoving Garcia.

Section 784.0485(1), Florida Statutes (2016), establishes a cause of action for an injunction for protection against stalking. “Each incident of stalking must be proven by competent, substantial evidence to support an injunction against stalking.” David v. Schack, 192 So.3d 625, 628 (Fla. 4th DCA 2016) (quoting Touhey v. Seda, 133 So.3d 1203, 1204 (Fla. 2d DCA 2014)). “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking.” § 784.048(2), Fla. Stat (2016). “’Harass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” Id. § 784.048(l)(a) (emphasis added). “’Course of conduct’ means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” Id. § 784.048(l)(b).

Here, the two acts cited by the trial court amount to one continuous course of conduct, establishing only one instance of harassment. Cf. Levy v. Jacobs, 69 So.3d 403, 404 (Fla. 4th DCA 2011) (“[T]he record evidence demonstrated that in addition to occurring in different locations, there was a temporal break of approximately five minutes between the incidents. This was a sufficient temporal break to allow [the respondent] time to pause, reflect, and form a new intent before the second attack.”). This single instance cannot support a finding of stalking, which requires evidence of repeat harassment. See § 784.048(2), Fla. Stat. Further, even if we find that Packal’s actions constitute two separate instances of harassment, Packal shoving Garcia does not qualify as harassment of Johnson. See id. § 784.048(1)(a). Accordingly, we reverse the injunction.

REVERSED.

SAWAYA and TORPY, JJ., concur.

      . Although Johnson sought, and the court granted, an injunction for protection against "stalking violence,” the contents of the petition track those required by section 784.0485(3)(b), Florida Statutes, pertaining to stalking, not violence. Additionally, in her petition, Johnson specifically marked sections under the following heading: "Petitioner is victim of stalking because respondent has ...."

      . Although Packal’s conduct towards Garcia may constitute an act of violence, Johnson did not present it as such, and the described occurrence would likewise fail to support an injunction for protection against repeat violence, which requires “two incidents of violence or stalking committed by the respondent, ... which are directed against the petitioner or the petitioner's immediate family member.'' § 784.046(l)(b), Fla. Stat. (emphasis added). Garcia does not qualify as a member of her immediate family.


author: LAMBERT, J.

text:
    Max Magic GUZMAN-AVILES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-250
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 25, 2017

      Max Magic Guzman-Aviles, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, ' and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Max Guzman-Aviles appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the denial of grounds three,, four, and six of his motion without further comment. As to the remaining grounds one, two, and five, we also affirm, but not for the reasons provided by the postconviction court.

Guzman-Aviles was charged with robbery with a deadly weapon by being in actual possession of a firearm, a first-degree felony punishable by life imprisonment, and.fleeing or attempting to elude a police officer, a third-degree felony. Guzman-Aviles entered into a negotiated , plea agreement and, consistent with this agreement, was sentenced to a ten-year mandatory minimum prison sentence for the armed robbery, followed by five years of probation, and to a concurrent five years’ imprisonment for the fleeing or attempting to elude a police officer.

In his facially sufficient motion for post-conviction relief, Guzman-Aviles asserted in grounds one and five that his counsel was ineffective for failing to file a pretrial motion to exclude or suppress the firearm from evidence because, according to Guzman-Aviles, the gun could not be connected to him. Guzman-Aviles specifically alleged that the gun was not found in his possession at the time of arrest, the police report does not reflect that the officer who pursued Guzman-Aviles saw him discard the firearm during the chase leading up to his arrest, the firearm was found in a public area two-and-one-half miles from where the crime occurred, and the firearm was never shown to the victim to identify it as the one used in the commission of the crime. In ground two of his motion, Guz-' man-Aviles alleged that his counsel was ineffective for failing to file a pretrial motion to suppress the victim’s identification of Guzman-Aviles at a show-up done at the arrest site because the show-up was impermissibly suggestive. Guzman-Aviles asserted that he asked counsel to file these motions, but that counsel erroneously told him that motions to suppress this evidence could not be filed. He further alleged that there was a high probability that the motions, if filed, would have 'been granted. Finally, Guzman-rAviles alleged that, but for his trial counsel's misadvice, he would not have entered his no-contest plea and would have insisted upon proceeding to trial.

In summarily denying the motion, the postconviction court held that because Guzman-Aviles entered a negotiated plea, “[t]he effect of [the] plea [was] to preclude an attack, by way of a post-conviction motion, on the validity of evidence or the admissibility of evidence,” quoting Parker v. State, 603 So.2d 616, 617 (Fla. 1st DCA 1992). The court attached to the order on appeal a copy of the plea agreement and the transcript from the change of plea hearing at which Guzman-Aviles testified that he was waiving his right to trial and to confront the State’s evidence and that he was not coerced into entering the plea. The court concluded that Guzman-Aviles voluntarily entered his plea and that his motion was “simply an insufficient attack on the plea bargain,” citing to Henry v. State, 679 So.2d 885, 886 (Fla. 5th DCA 1996), and Stano v. State, 520 So.2d 278, 279-80 (Fla. 1988) (holding that the defendant could not go behind his plea by alleging that counsel should have investigated more because entry of the plea cuts off inquiry into all that precedes it).

To the extent that the postconviction court interpreted Stano and Henry to preclude any challenges to a counsel’s effectiveness following a plea, we disagree. In Stano, defense counsel placed on the record at the plea hearing that he had not yet received full discovery from the State and was not fully prepared to advise the defendant as to whether to proceed to trial or if the State had sufficient evidence to convict the defendant or not. 520 So.2d at 280. Counsel also stated that the defendant confirmed to him that he had voluntarily confessed to law enforcement after being advised of his rights, that the. defendant wanted to plea to avoid further delay, and that he did not want to proceed to trial. Id. Under these circumstances, the court found Stano’s claim that counsel was ineffective for failure to make a proper investigation to be conclusively refuted by the record and that by insisting on pleading guilty and advising counsel that he had confessed freely and voluntarily, the defendant rendered any further investigation pointless. Id. at 281. In Henry, the defendant made a generic allegation that “his counsel was ineffective because he failed to further investigate the case.” 679 So.2d at 886. However, unlike the instant case, the defendant in Henry made no claim that his counsel was ineffective for failing to file a motion to suppress or how the failure to do so affected the voluntariness of his plea. In contrast, Guzman-Aviles essentially alleged that the evidence necessary for filing a motion to suppress evidence was known to his counsel but that his counsel mistakenly advised him that no motion to suppress could be filed, which Guzman-Aviles claimed to prejudicially rely upon in entering his plea.

“A trial attorney’s failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.” MacKinnon v. State, 39 So.3d 537, 538 (Fla. 5th DCA 2010) (quoting Williams v. State, 717 So.2d 1066 (Fla. 2d DCA 1998)). In Hampton v. State, 217 So.3d 1096 (Fla. 5th DCA 2017), this court recently held that a postconviction court erred in determining that a defendant’s no-contest plea precluded a postconviction attack on the admissibility of evidence because “a rule 3.850 motion alleging that ‘trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by an entry of a plea.’ ” 217 So.3d at 1097 (quoting Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004)). Moreover, the plea agreement attached to the order on appeal does not conclusively refute Guzman-Aviles’ claim that counsel was ineffective for failing to move to suppress evidence, nor did the trial coui’t’s plea colloquy with Guzman-Aviles address any specific issues regarding the suppression of evidence. See Zanchez v. State, 84 So.3d 466, 468 (Fla. 2d DCA 2012) (holding that a general plea colloquy did not refute or address the specific-issue of an alleged illegal search); Jones v. State, 846 So.2d 1224, 1226 (Fla. 2d DCA 2003) (stating that a defendant’s confirmation of satisfaction with counsel during a generalized plea colloquy was insufficient to refute a post-conviction claim based on counsel’s failure to advise of a specific defense). Thus, we find that Guzman-Aviles’ plea, - by itself, did not preclude his ability to timely seek postconviction relief based upon the ineffective assistance of his coúnsel. Nevertheless, for the following reasons, we affirm the denial order under the “tipsy coachman” rule because the court reached the right conclusion. See Lamb v. State, 212 So.3d 1108, 1112 (Fla. 5th DCA 2017) (applying the “tipsy coachman” rule in a rule 3.850 summary proceeding); Foss v. State, 24 So.3d 1275, 1276-77 (Fla. 5th DCA 2009) (same); Montero v. State, 996 So.2d 888, 890 (Fla. 4th DCA 2008) (affirming a postconviction court’s denial of a rule 3.850 motion for reasons other than those given by the court in its order of denial).

A defendant seeking postconviction relief based upon the alleged ineffective assistance of counsel must plead and prove both deficient performance of counsel and prejudice to the defendant. Grosvenor v. State, 874 So.2d 1176, 1178 (Fla. 2004) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a similar two-prong test for ineffective assistance of counsel claims relating to cases resolved by a guilty or no-contest plea. Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The first prong is the same as in Strickland, while the second “prejudice” prong re-quipes that a defendant demonstrate “a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Grosvenor, 874 So.2d at 1179 (quoting Hill, 474 U.S. at 59, 106 S.Ct. 366). This second prong focuses the court’s analysis on “whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 106 S.Ct. 366.

As .previously discussed, Guzman-Aviles alleged that he asked his counsel to move to suppress the firearm and the out-of-court identification but that his counsel misadvised him that he could not file these motions and that the evidence would be admissible at trial. Guzman-Aviles claims that, but for his counsel’s misadvice and deficient performance in not pursuing these motions to- suppress this evidence, he would not have pleaded no contest and would have insisted on proceeding to trial. Nevertheless, a defendant’s assertion of insisting on going to trial, standing alone, does not entitle a defendant to postconvietion relief. Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001) (citing United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993)). Rather, the court evaluates such a claim from an objective standpoint, by applying the totality of the circumstances test as explained in Grosvenor:

[I]n determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.

874 So.2d at 1181-82.

Under this test, a defendant seeking postconviction relief following a plea, based upon the ineffective assistance of counsel in not pursuing or misadvising about a defense, is not required to allege and prove, that he or she would have prevailed at trial on the defense. Id. at 1180. However, the viability of the defense and the strength of the State’s case are both relevant to analyzing the credibility of a defendant’s assertion in a rule 3.850 motion that the defendant would have insisted on going to trial. Id. at 1180-81. To that end, for a successful ineffective assistance claim based on counsel’s failure to file a motion to suppress, a movant must demonstrate that there is a reasonable probability that the motion would have been granted. Cf. Robinson v. State, 972 So.2d 1115, 1116 (Fla. 5th DCA 2008) (finding that a probable. cause affidavit claiming that the defendant consented to a search did not conclusively refute the defendant’s claim that a motion to suppress would likely have been granted, had his attorney filed one, because the trial court would have been required to make a credibility determination in deciding the motion). Applying the totality of the circumstances test to the present record, we conclude that there is no reasonable probability that Guzman-Aviles would have insisted on going to trial. Stated differently, “[w]here, under the totality of the circumstances, no objectively reasonable probability of prejudice exists, the claim may be summarily denied.” Capalbo v. State, 73 So.3d 838, 841 (Fla. 4th DCA 2011).

The detailed factual basis provided by - the prosecutor at the change of plea hearing, based on the evidence that the State was prepared to present at trial, was that Guzman-Aviles had answered a Craigslist ad to purchase a cellular phone and thereafter arranged to meet the seller at a local restaurant to consummate the transaction. The two met in the parking lot, and' after negotiations apparently broke down, Guzman-Aviles pointed a .25 caliber semi-automatic handgun at the victim’s face, who then handed over the phone. Guzman-Aviles then fled in his car. The police were immediately notified, and within moments, they had Guzman-Aviles’ car in front of them. The police initiated: their police lights and siren, but Guzman-Aviles did not stop his vehicle. Instead, he turned off his own headlights and led-them on a high-speed chase. Then, according to Guzman-Aviles’ own sworn motion, he stopped his car, jumped out and started running, ignoring the officer’s loud verbal command to stop. The officer employed his taser, which hit Guzman-Aviles and caused him to drop, to the pavement, where he was arrested. A separate officer, who was not involved in the chase, promptly brought the victim to the arrest site, and the victim identified Guzman-Aviles as.the individual who had just robbed him at gunpoint. Two of the officers then walked back over the two-and-one-half-mile chase route and located the .25 caliber handgun near a sewer.

Guzman-Aviles argued below- and asserts here that because he was not in possession of the firearm when arrested and the officer who chased him did not list in his police report that he saw Guzman-Aviles discard the gun during the chase, the gun recovered along the chase route would have been suppressed. Assuming the truthfulness of Guzman-Aviles’ factual allegations, as is required .when reviewing the summary denial of a rule 3.850 motion to the extent they are not refuted by the record, See Peede v. State, 748 So.2d 253, 257 (Fla. 1999), and even assuming that Guzman-Aviles’ legal conclusion .that the gun would haye been suppressed is correct, this does not preclude the state from prosecuting Guzman-Aviles as charged. “Eyewitness testimony that the defendant possessed a firearm is sufficient evidence ... that the defendant was in possession of a firearm.” Akins v. State, 838 So.2d 637, 639 (Fla. 6th DCA 2003) (citing Fletcher v. State, 472 So.2d 537 (Fla. 6th DCA 1985); Crump v. State, 629 So.2d 231 (Fla. 6th DCA 1993)). Further, “[i]t is not fatal to the prosecution if the state does not introduce the weapon into evidence.” Id. (citing Fletcher, 472 So.2d at 539).

As to the suppression of the victim’s identification of Guzman-Aviles resulting from the show-up procedure used, the identification of ' a suspect through the show-up process is not invalid unless the police aggravate the suggestiveness of the confrontation or the procedure gives rise to a substantial likelihood of irreparable misidentification given the totality of the circumstances. See Blanco v. State, 452 So.2d 520, 524 (Fla. 1984), receded from on other grounds by Puglisi v. State, 112 So.3d 1196 (Fla. 2013); State v. Jackson, 744 So.2d 545, 548 (Fla. 5th DCA 1999). The factors to be considered in evaluating the likelihood of misidentification include: (1) “the opportunity of the witness to view the criminal at the time of the crime”; (2) “the witness’ degree of attention”; (3) “the accuracy of the witness’ prior description of the criminal”; (4) “the level of certainty demonstrated by the witness at confrontation”; and (5) “the length of time between the crime and the confrontation.” Perez v. State, 648 So.2d 715, 719 (Fla. 1995) (quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).

Based on the sworn allegations in Guzman-Aviles’ motion, the crime occurred at night, with the victim standing next to the suspect’s driver-side door when the suspect pointed the gun directly at the victim’s head, causing him to turn over the cell phone. Thus, the victim’s opportunity to view the criminal and his degree of attention is apparent. See Jackson, 744 So.2d at 548 (“[I]t is fair to say that [the victim] would have paid close attention to the robber who had a gun to [the victim’s] head when he demanded the wallet.”). Furthermore, the length of .time between the jobbery and the show-up was brief. See id. (“Consideration must also be given to the fact that ‘an identification made shortly after the crime is more reliable than a later identification in court.’ ” (quoting Blanco, 452 So.2d at 524)). Additionally, although Guzman-Aviles was in handcuffs when identified, “keeping a suspect in handcuffs is insufficient, without more, to invalidate a show-up.” Jenkins v. State, 96 So.3d 1110, 1113 (Fla. 1st DCA 2012) (citing Jackson, 744 So.2d at 548).,

Guzman-Aviles’ ten-year prison sentence is the lowest possible sentence that he could have received if convicted as charged, and his plea avoided a potential life sentence. Guzman-Aviles also raised no challenge to the evidence supporting his conviction for fleeing or attempting to elude a police officer that, by itself, exposed him to a five-year prison sentence. We also find sufficient the plea colloquy between Guzman-Aviles and the trial court, in which Guzman-Aviles was specifically advised of the maximum sentences that he faced if convicted as charged and the court scrupulously reviewed with Guzman-Aviles the constitutional rights that he had and waived by tendering his plea. Finally, for the reasons just outlined, the likelihood that the gun or the victim’s out-of-court identification of Guzman-Aviles would be suppressed was, at best, questionable. Accordingly, we conclude that Guzman-Aviles’ motion for postconviction relief was appropriately denied. In doing so, we are reminded of the following observation made thirty-eight years ago by the United .States Supreme Court regarding the limitation on collateral attack with respect to convictions based on guilty pleas:

Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.

United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 684 (1979) (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th Cir. 1971) (Stevens, J., dissenting)).

AFFIRMED.

PALMER and EVANDER, JJ., concur.

      . § 812.13(2)(a), Fla. Stat. (2012).

      . § 316.1935(1), Fla. Stat. (2012).

      .The show-up identification procedure differs from a line-up because the witness is presented with only one possible suspect for identification. See Perez v. State, 648 So.2d 715, 719 (Fla. 1995).

      . Guzman-Aviles does not suggest or assert that the suspect was wearing a mask or was covering his face.


author: COHEN, C.J.

text:
    Willie Keith CLAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2987
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, C.J.

Willie Keith Clay appeals his conviction and sentence after a jury found him guilty of failure to comply with sex-offender registration requirements. Glay argues that there was insufficient evidence to sustain his conviction. We agree and therefore reverse and remand for entry of a judgment of acquittal.

To establish its prima facie case, the State was required to demonstrate that Clay qualified as a sexual offender, which included establishing that Clay was released from incarceration on or after October 1, 1997. See § 943.0435(l)(h)l.a.(I)-(II), Fla. Stat. (2015); see also Fla. Std. Jury Inst. (Crim.) 11.14(g) (delineating elements of failure to register charge: (1) status as sexual offender; (2) offender’s county of residence; and (3) knowing failure to re-register). The State offered no direct evidence to do so, providing neither a witness nor documentation from the Department of Corrections to meet its burden. Instead, the State relied solely on an inference that, because Clay was given a ten-year sentence on October 30, 1995, he must have been released from incarceration after October 1,1997.

On appeal, the State maintains that Clay’s sentence is prima facie évidence of the date of his release. We disagree. The State has the burden to prove each element of the offense charged beyond a reasonable doubt. That cannot be accomplished based on guesswork. A number of factors impact the amount of time an inmate serves on any given sentence, and that information is not presented to the jury for determination of an inmate’s release date. Moreover, statutory sentencing schemes have changed over time, and the amount of time inmates are required to serve has fluctuated significantly.

No evidence was presented on prison release policies from which the jury could conclude that Clay was released from incarceration after October 1, 1997. The State did not present any other evidence during its case that would have established his precise release date from incarceration—an essential element to finding that Clay qualified as a sexual offender under the statute. See Munroe v. State, 28 So.3d 973, 975 (Fla. 2d DCA 2010) (“To convict a defendant of failure to register as a sexual offender, the State must prove beyond a reasonable doubt that the defendant is a sexual offender unless the defendant stipulates that he or she is a sexual offender.” (quoting In re Std. Jury Instrs. in Crim. Cases-Report No. 2007-4, 983 So.2d 531, 533 (Fla. 2008))). Therefore, the trial court erred in denying Clay’s motion for judgment of acquittal at the close of the State’s case.

Alternatively, the State contends that Clay’s testimony during the defense’s case-in-chief was sufficient to establish that his release date was after October-1, 1997. We reject this argument; A defendant does not waive the arguments made in a motion for judgment of acquittal at the close of the State’s case by subsequently introducing evidence. See Fla. R. Crim. P. 3.380(b); see also Franklin v. State, 718 So.2d 902, 905 (Fla. 5th D.CA 1998) (“[A] defendant does not run the risk of supplying a missing link in the state’s evidence by presenting evidence after moving for a. judgment of acquittal at the close of the state’s case.”).

-. Because the State failed to meet its burden of proof, we reverse and remand for entry of a judgment of acquittal.

REVERSED and REMANDED. -

ORFINGER and WALLIS, JJ., concur.

      . For example, the requirement that inmates serve eighty-five percent of their sentences by limiting the accrual of gain time applies only to offenses committed on or after October 1, 1995. See § 944.275(4)(f), Fla. Stat. (2015).


author: LaROSE, Chief Judge.

text:
    Brittany BOWMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5303
    District Court of Appeal of Florida, Second District.
    Opinion filed September 1, 2017.
    Brittany Bowman, pro se.
   LaROSE, Chief Judge.

Affirmed without prejudice to whatever right the appellant may have to file a timely and facially sufficient motion under Florida Rule of Criminal Procedure 3.850.

NORTHCUTT and KHOUZAM, JJ., Concur.


text:
    Breanna Leanna JACKSON, DOC #T82109, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2708
    District Court of Appeal of Florida, Second District.
    Opinion filed September 1, 2017
    Breanna Leanna Jackson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Breanna Leanna Jackson appeals- the summary denial of her motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), in which- she argued that her sentence was illegal because the written sentence did not conform to the trial court’s oral pronouncement at sentencing.

In light of the State’s concession and this court’s decision in Blocker v. State, 968 So.2d 686 (Fla. 2d DCA 2007), we reverse and remand for consideration of Jackson’s motion pursuant to Florida Rule of Criminal Procedure 3.850. See Brantley v. State, 32 So.3d 89, 90 (Fla. 2d DCA 2009) (noting that the time to seek relief under rule 3.850 had- not yet run and that the motion contained the oath required by the rule). As we explained in Blocker, although the evidence that the postconviction court cited in its order denying Jackson’s rule 3.800(a) motion provided a reasonable basis to conclude that a factual question existed with regard to the trial court’s oral pronouncement, “such postconviction disputes can be resolved only after an evidentiary hearing.” Blocker, 968 So.2d at 693-94; see also Brantley, 32 So.3d at 90 (stating that “[a] careful examination of the record reveals a reasonable basis to question the accuracy of the transcript of the sentencing hearing, thus creating a disputed issue of fact” and, therefore, remanding for consideration pursuant to rule 3.860). Accordingly, on remand, the postconviction court shall conduct an evidentiary hearing to resolve the question.

Reversed and remanded with directions.

CASANUEVA, MORRIS, and ROTHSTEIN-YOUAKIM, JJ., Concur,


author: EDWARDS, J.

text:
    Cody Lee WHITE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-844
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017

      Cody Lee White, Raiford, pro se.
    No Appearance for Appellee.
   EDWARDS, J.

Cody Lee White appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief in which he asserted ineffective assistance of trial counsel. Following careful consideration, we affirm the denial of Appellant’s first, second, and fifth grounds for relief without further discussion. However, for the reasons set forth below, we reverse and remand on the remaining grounds for further consideration with instructions to the postconviction court either to attach records that conclusively refute each remaining ground or to conduct an evidentia-ry hearing.

Appellant was charged with first-degree murder with a firearm, attempted first-degree murder with a firearm, and robbery with a firearm. The jury found Appellant guilty of third-degree murder, attempted first-degree murder, and robbery. The jury made a special finding that Appellant did not personally possess any firearms during the commission of these crimes.

In ground three, Appellant asserts that trial counsel was ineffective for failing to timely object to the jury receiving instructions that it could return a guilty verdict for the lesser offense of third-degree felony murder. Appellant claims that the elements of third-degree felony murder were absent from the charging indictment, the evidence at trial failed to support it and was actually contradictory, and the underlying felony was never charged.

During the charge conference, the State requested instructions on third-degree felony murder. Appellant told trial counsel that he did not want the jury instructed on any lesser offenses, and trial counsel advised the court that the defense was not requesting instruction on any lesser offenses. The State persisted in its request, and the trial court found that it was entitled to such an instruction. Appellant further states that the evidence did not support a felony murder charge, as there was no proof that the death of the victim was connected to Appellant or his accomplice being involved in the purchase or sale of cannabis. There is no requirement for the indictment to charge Appellant with third-degree murder. See Prevatt v. State, 82 Fla. 284, 89 So. 807, 807-08 (1921). “Although third-degree felony murder is not a necessarily included offense of first-degree murder,' it is, under certain circumstances and evidence, a proper permissive lesser included offense of first-degree murder, requiring a jury instruction to that effect.” McCloud v. State, 209 So.3d 534, 539 (Fla. 2017) (quoting Green v. State, 475 So.2d 235, 236 (Fla. 1985)). McCloud does not suggest that it is required to separately charge theunderlying felony. Id.

The postconviction court denied ground three based on its finding that there was evidence Appellant attempted to purchase cannabis. The court attached records to support this finding. If the record contained evidence to support the jury’s entire verdict, then counsel was not ineffective for failing to object to- those instructions. However, because the court did not address or attach records regarding whether there was evidence to support a finding by the jury that the victim’s death occurred in connection with the purchase or sale of cannabis, we cannot determine if trial counsel should have objected and whether that objection would likely have been sustained. Accordingly, we reverse as to ground three with instructions for the postconviction court to attach records conclusively refuting Appellant’s claim that there was no evidence that the victim’s death was connected to Appellant’s purchase of cannabis or to conduct an eviden-tiary hearing on that point if necessary.

In ground four, Appellant asserts that trial counsel was ineffective for failing to properly prepare him to testify at trial. He claims that without prior discussion, counsel first told him he should testify on the morning before he took the stand. Appellant further claims that the total preparation consisted only of counsel telling him to look at the jury while he testified. Appellant argues that trial counsel should have warned him that the State would likely cross-examine him, as it did, on several text messages that gave the clear impression that Appellant intended to shoot Patrick Bacon, the person who supplied marijuana for Appellant to sell. Appellant claims that if he had been properly advised, he would have chosen not to testify and the prejudicial text messages would not have been in evidence.

The postconviction court denied ground four, finding that trial counsel used Appellant’s testimony to prove he had no intention and no motive to kill Bacon because Appellant made his living selling the marijuana he obtained from Bacon, and if Appellant killed Bacon, he would have no supply and no income. The court found no prejudice to Appellant and implied that this was effective trial strategy because the jury convicted him of lesser charges and found he did not personally possess, carry, display, or use a firearm. A “trial strategy” evaluation typically requires an evidentiary hearing. See Santos v. State, 152 So.3d 817, 819 (Fla. 5th DCA 2014). Furthermore, neither that implicit trial strategy finding, nor the records attached, directly address Appellant’s claim that if trial counsel had properly advised him, he would not have testified, which would have kept the text messages out of evidence and would, he argues, have likely led to his acquittal. Accordingly, we reverse on ground four with instructions for the post-conviction court either to conduct an evi-dentiary hearing or to attach records that conclusively refute all aspects of Appellant’s claims in ground four.

In ground six, Appellant asserts cumulative error. Because we are reversing and remanding as to grounds three and four, we also reverse and remand on this ground. See Legrande v. State, 206 So.3d 146, 147 (Fla. 5th DCA 2016).

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

WALLIS and EISNAUGLE, JJ.,' concur.


author: ROBERTS, J.

text:
    Jyrki PULKKINEN, Former Husband, Appellant, v. Karen Elaine PULKKINEN n/k/a Karen Elaine Brautcheck, Former Wife, Appellee.
    CASE NO. 1D15-4415
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017.
    William Falik of William Falik, P.A., Gainesville, for Appellant.
    Darby F. Hertz and John J. Kearns of Hertz & Kearns, Gainesville, for Appellee.
   ROBERTS, J.

In this appeal from an order granting the former’s wife, motion to dismiss that also denied the-former husband’s motion to enforce the parties’ final judgment of dissolution of marriage, the former husband raised four'issues. Because we find the second issue raised by the former husband controls the outcome, we-write solely to address that issue.

The parties’-marriage was dissolved by a final judgment of divorce entered by a Michigan court in 2007. In 2010, the former wife petitioned to domesticate the final'judgment'while the former husband petitioned to register the 'final judgment. The final judgment and child support orders were ultimately registered under section 88.6111(1), Florida Statutes (2010). The final judgment incorporated the parties’ mediation agreement in which the parties settled all of their' differences including child support for the parties’ two minor children. In the mediation agreement, the parties agreed that the former husband would receive interest át the rate of one and a quarter percent per month on any amount-of prepaid child support. Instead of the interest being paid to the former husband, it would be credited toward his future child support obligation entitling him to a reduction in his child support. On an annual basis, the parties are supposed to compute the amount of interest the former husband has earned. If the parties are not able to agree on the amount of interest the former husband it entitled to, the parties agreed to have a judicial officer, arbitrator, or other person empowered to make decisions compute the interest the husband is entitled to receive. In his motion to enforce the final judgment of dissolution of marriage, the former husband alleged that the former wife has refused to comply with the annual accounting procedures.

In reply to the former husband’s motion to enforce, the former wife filed a motion to dismiss arguing that the enforcement of this provision would leave the minor children without child support and such a provision is against Florida’s public policy. The trial court agreed with the former wife that the interest provision violated Florida’s public policy and entered an order granting the former wife’s motion.

While this appeal has been pending, the Florida Supreme Court decided LeDoux-Nottingham v. Downs, 210 So.3d 1217 (Fla. 2017). In LeDoux-Nottingham, a mother argued that the enforcement of a registered and domesticated Colorado order that granted her children’s grandparents visitation rights is unconstitutional and against public policy. Id. at 1219. The Florida Supreme Court stated that even though the Florida Constitution protects a parent’s right to raise her children free from unwarranted governmental interference that State right is subordinate to the Federal Constitution under the Supremacy Clause. Id. at 1220. The Court further stated that the United States Supreme Court has continuously rejected the notion that a state may elevate its public policy over the policy behind another state’s judgment. Id. at 1223. The Court concluded by stating that even though a Florida court could not lawfully enter an order that grants grandparents visitation rights, a Florida court cannot refuse to enforce such an order by another state court. Id.

Even if the parties’ Michigan final judgment of dissolution of marriage violates Florida’s public policy concerning a child’s right to child support, the trial court cannot refuse to enforce a judgment from a sister state that was lawfully entered. Accordingly, we reverse the trial court’s order granting the former wife’s motion to dismiss and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ROWE and MAKAR, JJ„ CONCUR.


text:
    Jonathan HUTCHINSON, Petitioner, v. Herbert ANDERSON, Respondent.
    Case No. 2D17-1310
    District Court of Appeal of Florida, Second District.
    Opinion filed September 6, 2017
    Mark Goldstein, Miami, for Petitioner.
    Jesse Gubernat, Banker Lopez Gassier, Fort Myers; Dee Ann McLemore and Charles Hall, Banker Lopez Gassier, P.A., St.. Petersburg; and Stanley Plappert, Ocala, for Respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari, quash the trial court’s “Order Granting Order to Show Cause.” See CB Condos., Inc. v. GRS S. Fla., Inc., 165 So.3d 739, 742 (Fla. 4th DCA 2015) (reversing sanctions order that did not and could not find the nonparty deponent in contempt because the evidence did not establish that the nonparty failed to be sworn or to answer a question after being directed to do so by the court); Morell v. Booth, 29 So.3d 429, 429 (Fla. 5th DCA 2010) (concluding that the trial court erred by imposing sanctions against a nonparty, absent a finding of contempt).

Petition granted; order quashed.

SILBERMAN, SLEET, and LUCAS JJ., Concur.