author: SALARIO, Judge.

text:
    Kenny Daryl SNELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-4087.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2016.

      Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beecue, Assistant Attorney General, Tampa, for Appel-lee.
   SALARIO, Judge.

Kenny Snell appeals his convictions and sentences for three counts of fraudulent use of personal identification information, see § 817.568, Fla. Stat. (2013), one count of fraudulent use of a credit card, see § 817.61, two counts of theft from a person sixty-five years of age or older, see § 812.0145, Fla. Stat. (2013), one count of petit theft, see § 812.014, and one count of contracting without a license, see § 489.127, Fla. Stat. (2013). We are required to reverse and remand for a new trial because the trial court denied Mr. Snell’s motion to discharge his retained counsel and proceed pro se on the basis of a legally deficient inquiry under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This disposition of the case renders Mr. Snell’s other appellate issues moot, and we therefore decline to address them.

Several days before trial, Mr. Snell filed a motion to dismiss counsel and proceed pro se. The motion requested that the trial court allow him “to dismiss his privately retained counsel ... and allow him after preparation to represent himself.” Mr. Snell alleged that counsel’s representation had been prejudicially deficient because counsel had failed to contact certain witnesses Mr. Snell believed would support his defense and because counsel had failed to challenge the sufficiency of the discovery provided by the State. Mr. Snell asserted that because counsel was not appointed, he had the right to dismiss him and that he wanted to proceed pro se.

The trial court held a hearing on the motion the day before trial. Mr. Snell restated the issues raised in his written motion, asked to represent himself, and requested a continuance so that he could have time to prepare. The trial court asked Mr. Snell if he had ever represented himself in a court proceeding and if he was familiar with the Florida Rules of Criminal Procedure. Mr. Snell responded that he was somewhat familiar with court proceedings. The trial court told Mr. Snell that it would not continue the trial, to which Mr. Snell responded “okay.” The trial court denied the motion, finding that it was not taken in good faith but was instead a delay tactic.

Defendants have both a constitutional right to counsel and a constitutional right to self-representation under the Sixth and Fourteenth Amendments. Faretta, 422 U.S. at 819-20, 95 S.Ct. 2525. When a defendant makes an unequivocal request to discharge his lawyer and represent himself, the trial court is required under Faretta to conduct an inquiry to determine whether the defendant’s decision to waive his constitutional right to counsel and proceed pro se is knowing and intelligent. Fla. R. Crim. P. 3.111(d)(2); Tennis v. State, 997 So.2d 375, 378 (Fla. 2008). When a trial court responds to an unequivocal request for self-representation by failing to conduct a Faretta inquiry at all or by conducting a legally deficient Faretta inquiry, an appellate court is required to reverse and remand for a new trial. Tennis, 997 So.2d at 379; Herron v. State, 113 So.3d 852, 853-54 (Fla. 2d DCA 2012).

Here, because Mr. Snell made unequivocal requests to represent himself in his written motion and at the hearing, the trial court was required to conduct a Far-etta inquiry. See Tennis, 997 So.2d at 379-80 (holding that trial court reversibly erred in failing to conduct a Faretta inquiry after defendant explicitly stated that he wanted to represent himself). Mr. Snell argues that the trial court’s inquiry was legally deficient, and we agree. Because a Faretta inquiry is directed at determining whether the defendant’s waiver of his right to counsel is knowing and voluntary, it must include “inquiry into the defendant’s age, education, mental condition, experience with and knowledge of criminal proceedings, and understanding of the disadvantages and dangers of self-representation.” Betts v. State, 157 So.3d 376, 379 (Fla. 2d DCA 2015); see also Fla. R. Crim. P. 3.111(d)(2) (“Before determining whether the waiver is knowing and intelligent, the court shall advise the defendant of the disadvantages and dangers of self-representation.”). Here, the trial court asked only about Mr. Snell’s experience with and knowledge of criminal proceedings and not any other facts bearing on whether his waiver was knowing and voluntary. On its face, this Faretta inquiry was deficient. See, e.g., Smith v. State, 956 So.2d 1288, 1290 (Fla. 4th DCA 2007) (reversing and remanding for new trial where the trial court’s inquiry was limited to “asking [the defendant] about his experience with the criminal justice system, whether [the defendant] believed he was capable of representing himself, whether he would be ready for trial on the scheduled date, and whether he would ‘behave like a gentleman’ ”).

We are sympathetic to the trial court’s concern that Mr. Snell’s motion may have been made for the purpose of delaying trial. However, our supreme court has held that even a well-founded belief that a motion to proceed pro se is part of a delay strategy “does not mean that the trial court can fail to hold a Faretta hearing after an unequivocal request for self-representation.” Tennis, 997 So.2d at 379; see also State v. Young, 626 So.2d 655, 656-57 (Fla.1993); Vega v. State, 57 So.3d 259, 261-62 (Fla. 5th DCA 2011) (noting that even if a trial court validly concludes a defendant was merely attempting to delay proceedings, it is nonetheless required to conduct an adequate inquiry). Because the trial court’s inquiry was insufficient to satisfy the requirements of Faretta, we must reverse and remand for a new trial. See Young, 626 So.2d at 657 (“We conclude that the United States Supreme Court decision in Faretta and our rule 3.111(d) require a reversal when there is not a proper Faretta inquiry.”); see also Tennis, 997 So.2d at 380; Betts, 157 So.3d at 379.

Reversed and remanded.

CASANUEVA and MORRIS, JJ., Concur.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    Robert LIGUORI, Jr., Appellant, v. Dawn LIGUORI, Appellee.
    No. 2D14-5844.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2016.

      Kathryn F. Pugh, Fort Myers, for Appellant.
    Bernard T. King of Rubinstein, Holz & King, P.A., Fort Myers, for Appellee.
   KELLY, Judge.

Robert Liguori, Jr., the former husband, appeals the final judgment dissolving his marriage to Dawn Liguori, the former wife. He challenges the trial court’s recalculation of its award of temporary child support, its award of child support, the equitable distribution of the parties’ assets and liabilities, and the court’s parenting plan. We agree the final judgment must be reversed as explained below.

The former husband challenges the trial court’s award of retroactive child support based on a recalculation of its original award of temporary child support. The former wife properly concedes the trial court erred when it recalculated the award of temporary child support to the extent it calculated the support from the date of filing rather than the date the former husband moved out of the marital residence. See § 61.30(17), Fla. Stat. (2013) (“[T]he court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child.... ”). We agree the award must be reversed to correct that error. See Khenh Ye Vong v. Chassang, 981 So.2d 1262, 1263 (Fla. 2d DCA 2008) (reversing the award of retroactive child support and remanding with directions to recalculate the child support from the date the parties no longer resided together). However, we find no merit in the former husband’s other arguments and affirm the retroactive child support award in all other respects.

Next, the former husband argues the trial court’s ongoing child support award is not supported by competent, substantial evidence. First, he complains about the amount of income the trial court imputed to him; however, the record supports the trial court’s decision. See Hinton v. Smith, 725 So.2d 1154, 1156 (Fla. 2d DCA 1998) (“The standard of review for a trial court’s imputation of income is whether competent substantial evidence supports it.”). Next, he complains the final judgment fails to allocate responsibility for the children’s uncovered medical and dental costs and it does not provide for the children’s health and dental insurance. The former wife concedes this was error. See Cooper v. Cooper, 760 So.2d 1048, 1049-50 (Fla. 2d DCA 2000) (holding that, after determining each party’s ability to pay, a trial court must include in the final judgment a provision for the payment of uncovered medical expenses of the children). We agree and note that although the child support guidelines attached to the final judgment include the cost of the children’s insurance as an expense to the former wife, for clarity the trial court should specify in the final judgment that the former wife is to provide the children’s insurance.

The former husband next argues, and the former wife concedes, that the trial court’s calculation regarding the number of overnights allocated to each parent is incorrect. On remand, this should also be corrected, and if appropriate, the parties’ child support obligations should be recalculated. See § 61.30(11)(a)(10), (11)(b); Mitchell v. Mitchell, 841 So.2d 564, 568-69 (Fla. 2d DCA 2003) (noting that the court may adjust the child support award when the children spend a significant amount of time with the noncustodial parent). Finally, the former husband argues the inclusion of $195.33 in child care costs was not supported by the record. We agree. Although the former wife included that figure in her financial affidavit, at the final hearing she testified that she no longer had any child care costs. See Henry v. Henry, 921 So.2d 880, 881 (Fla. 4th DCA 2006) (holding that child care costs should not have been added to the child support obligation where no child care costs were incurred).

The former husband also challenges the equitable distribution scheme and parenting plan adopted by the trial court. We find no reversible error in the equitable distribution scheme, and therefore affirm on that issue. We also find no merit in the former husband’s contention that the trial court abused its discretion when it fashioned a parenting plan that differed from the temporary plan the parties had in place while the dissolution proceeding was pending. See Schwieterman v. Schwieterman, 114 So.3d 984, 987 (Fla. 5th DCA 2012) (stating that the trial court’s final judgment establishing a parenting plan is reviewed for an abuse of discretion). “A trial court’s time-sharing plan must be affirmed if there is competent substantial evidence to support that decision and reasonable people could differ with respect to the trial court’s decision.” Id. Initially, we note that at the final hearing the former husband did not ask the trial court to continue the plan that had been in place. Instead, he offered a time-sharing proposal that gave him two weekday overnights on alternating weeks in addition to alternating weekends. The trial court instead gave him one after-school visit each week and alternating weekends. The temporary plan had afforded him two after-school visits each week rather than one. We find no abuse of discretion in the trial court’s decision not to adopt the former husband’s plan because of the burdens it would have imposed on the children. See Bainbridge v. Pratt, 68 So.3d 310, 313 (Fla. 1st DCA 2011) (noting that when forming a parenting plan, the trial court must consider the best interest of the child). Nor can we fault the trial court for failing to adopt a plan that was never proposed to it as the former husband urges us to do in this appeal. The trial court adopted the plan proposed by the former wife with some modifications that gave the former husband more time on holidays and school breaks than had been proposed by the former wife. In light of the evidence before the trial court we cannot conclude it abused its discretion in doing so. Accordingly, we affirm those aspects of the final judgment as well.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and BADALAMENTI, JJ., Concur.


author: LUCAS, Judge.

text:
    Mark Willis MASON, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-5846.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2016.
    Howard L. Dimmig, II, Public Defender, and Victoria Hatfield, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appel-lee.
   LUCAS, Judge.

A jury found Mark Mason guilty of six counts of attempted second-degree murder for firing several rounds from an AK-47 rifle into the McKenzie’s Sports Tavern in Tampa. At sentencing, the State and Mr. Mason agreed that each count carried a twenty-year minimum term of imprisonment under section 775.087(2)(a)(2), Florida Statutes (2012), but the parties disagreed as to whether the circuit court had the discretion to sentence Mr. Mason to concurrent prison terms for each of the counts under section 775.087(2)(d). Subsection (2)(d) reads, in relevant part: “The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment for any other felony offense.” After hearing argument from both sides, the trial court concluded that the language of section (2)(d) was mandatory because Mr. Mason had been convicted of multiple qualifying felonies and that the court had no discretion but to sentence Mr. Mason to six consecutive sentences.

Following Mr. Mason’s sentencing, the Florida Supreme Court issued its opinion in Williams v. State, 186 So.3d 989, 992 (Fla.2016), in which the court explained that section 775.087(2)(d) only mandates consecutive sentencing where the defendant commits both a qualifying felony under section 775.087(2)(a) and a nonqualify-ing felony under a separate statute in the same criminal episode. According to Williams, if a defendant is convicted of contemporaneous offenses that all arise under section 775.087(2)(a), a trial court is not required to impose the sentences consecutively. Id. (“Nothing within paragraph (2)(d)’s plain language also requires ... a qualifying felony sentence to run consecutively to another qualifying felony sentence.”). Construing the statute in this manner, the supreme court recognized that if “multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory.” Id. at 993 (emphasis added).

Here, each of Mr. Mason’s convictions for second-degree murder was a qualifying offense under section 775.087(2)(a)(2), and therefore, under Williams, the trial court had discretion to impose the sentences consecutively or concurrently. When a trial court labors under the mistaken impression that it cannot exercise its discretion at sentencing, the appellant is entitled to be resentenced. See, e.g., Kelly v. State, 727 So.2d 1084, 1085 (Fla. 2d DCA 1999); Rudd v. State, 177 So.3d 1015, 1017-18 (Fla. 1st DCA 2015); Colletta v. State, 126 So.3d 1090, 1091 (Fla. 4th DCA 2012). The trial court did not have the benefit of Williams at the time of Mr. Mason’s sentencing, and so we are compelled to reverse and remand for resentencing in accordance with this opinion. We affirm Mr. Mason’s convictions without further comment.

Affirmed in part, reversed in part, and remanded with instructions.

KHOUZAM and SALARIO, JJ., Concur.


author: BADALAMENTI, Judge.

text:
    Stephen MARTY, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-1218.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 2016.

      Jean Marie Henne, of Jean M. Henne, P.A., Winter Haven, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

This is a direct appeal from a final criminal judgment and sentence. Stephen Marty was convicted of aggravated assault with a deadly weapon and sentenced to a mandatory minimum sentence of three years’ imprisonment. On appeal, Marty argues that the trial court erred by: (1) failing to instruct the jury as to the legal use of nondeadly force; (2) failing to grant his motion for judgment of acquittal; and (3)failing to give an instruction on the presumption of reasonable fear of death or great bodily harm, pursuant to section 776.013(1), Florida Statutes (2014). We accept Marty’s invitation to construe his first argument as an ineffective assistance of counsel claim and reverse. The face of the record demonstrates that Marty’s trial counsel was ineffective for neglecting to request a jury instruction on the justifiable use of nondeadly force, the only self-defense instruction supportable by the undisputed facts presented at trial. Instead, Marty’s counsel requested a self-defense instruction on the justifiable use of deadly force, which is applicable in a narrower set of circumstances as compared to nondeadly force. We can see no strategic reason to make the burden of proving self-defense more difficult, especially because self-defense was essential to Marty’s theory of defense at trial. Because Marty’s trial counsel’s failure to request the proper self-defense jury instruction infringed on Marty’s right to a fair trial, we vacate Marty’s conviction and remand for a new trial. We need not address Marty’s remaining arguments.

Marty and his wife were sitting in a hot tub in their backyard. Marty noticed an eleven-year-old neighbor boy sitting on a roof overlooking Marty’s backyard and watching Marty and his wife. Marty told the boy to get off the roof and the boy complied. The boy then told his twenty-year-old sister, Paula Valenzuela, that something happened between him and Marty. Valenzuela went to Marty’s house, accompanied by her mother, her brother who had observed Marty and his wife in the hot tub, and another younger brother. Valenzuela knocked on the screen door to Marty’s front porch. After getting no answer, Valenzuela pounded on Marty’s kitchen window, yelling profanity at Marty and suggesting he did not have the gumption to confront her. Still getting no answer, Valenzuela and her family left Marty’s property.

Marty did not hear Valenzuela because he was still in the hot tub. But Marty’s wife, who had gone inside to get dressed, told Marty that someone outside had been yelling and pounding on the window. Marty went to retrieve his cellphone and handgun from his car, which was parked in the driveway. From his driveway, Marty began calling the Polk County Sheriffs Office (PCSO). While Marty was outside, Valenzuela was driving away from her mother’s house and saw Marty as she drove by. Accounts differ as to what happened next.

Valenzuela testified that she stopped her car on the side of the road in front of Marty’s house, rolled down her window, and resumed insulting Marty. Valenzuela testified that Marty then pointed his gun at her and said he would kill her if she got out of the car. Valenzuela claims she told Marty that she was going to call the police, but Marty replied that he was already calling the police. At that point, Valenzuela drove around the corner and contacted the police.

Marty testified that Valenzuela parked her car on his lawn, got out of the car, and quickly approached him with both fists raised. Marty further testified that Valenzuela again profanely exclaimed that Marty did not have the gumption to face her and threatened to have her husband do physical harm to Marty’s person. Marty stated that when Valenzuela got within stabbing distance, he told her that he had a gun and showed her the butt of his gun with the barrel pointed away. Marty then told Valenzuela to leave the area, at which point she left. Marty testified that his gun was loaded, but there was no round in the chamber. Marty explained that although he was not afraid of Valenzuela killing him, he was concerned that she might try to harm him or his wife or damage his property.

A PCSO Deputy responded to calls from both Marty and Valenzuela, which were made within one minute of each other. The deputy testified that Marty admitted to pointing his gun in the air and at the ground but not at Valenzuela. The deputy-explained that Marty told him he showed Valenzuela the gun to let her know “he meant business.” The deputy testified that Marty was extremely cooperative and turned his handgun over as soon as he was asked to do so. The deputy noted that Valenzuela was crying and hysterical when he arrived, and he had to tell Valenzuela to back away while he was interviewing Marty.

Marty was charged with aggravated assault with a deadly weapon, which carries a three-year mandatory minimum sentence. During the jury trial, Marty’s counsel requested Florida’s standard jury instruction on the justifiable use of deadly force in self-defense. See Fla. Std. Jury Instr. (Grim.) 3.6(f). But Marty’s counsel neglected to request a jury instruction on the justifiable use of nondeadly force. See Fla. Std. Jury Instr. (Crim.) 3.6(g). As modified for Marty’s trial, instruction 3.6(f) read as follows:

The use of deadly force is justifiable only if the Defendant, STEPHEN MARTY, reasonably believed that the force is necessary to prevent imminent death or great bodily harm to himself while resisting:
1. another’s attempt to murder him or
2. any attempt to commit an aggravated assault or burglary upon him, or
3. any attempt to commit burglary upon or in any dwelling, residence, or vehicle occupied by him.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent
1. imminent death or great bodily harm to himself or another, or
2. the imminent commission of an aggravated assault or burglary committed against himself or another.

Conversely, instruction 3.6(g) which addresses the justifiable use of nondeadly force, reads as follows:

(Defendant) was justified in [using] [or] [threatening to use] non-deadly force against (victim) and had no duty to retreat if [he][she] reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful force.
(Defendant) was justified in [using] [or] [threatening to use] non-deadly force against (victim) and had no duty to retreat if:
1. (Victim) [was about to trespass] [or] [was trespassing] or [was about to wrongfully interfere] [or] [was wrongfully interfering] with land or personal property; and
2. The land or personal property was lawfully in (defendant’s) possession, or in the possession of a member of [his][her] immediate family or household, or in the possession of some person whose property [he][she] was under a legal duty to protect; and
3. (Defendant) reasonably believed that [his][her][use][or] [threatened use] of force was necessary to prevent or terminate (victim’s) wrongful behavior.

To summarize, “[a] person is justified in using ... deadly force if he or she reasonably believes that using ... such force is necessary to prevent imminent death or great bodily harm to himself ... or another or to prevent the imminent commission of a forcible felony.” § 776.012(2). However, nondeadly force may be used when the defendant “reasonably believes that such conduct is necessary to defend himself ... or another against ... imminent use of unlawful force.” § 776.012(1). Nondeadly force may also be used where the defendant “reasonably believes that such conduct is necessary to prevent or terminate ... trespass on, or other tortious criminal interference ivith, either real property ... or personal property.” § 776.031(1) (emphasis added).

The jury found Marty guilty of aggravated assault with a deadly weapon. During Marty’s sentencing hearing, Marty’s counsel referenced a presentencing report which contained a statement from Valenzuela explaining that she did not want Marty to be imprisoned. The transcript from the sentencing hearing also indicates that the trial court expressed dismay at sentencing Marty to any term of incarceration. The trial court stated, “Let me just say from the outset without hearing a word from the State. I don’t think Mr. Marty should be incarcerated as a result of this incident. Tell me how I can get around the minimum mandatory?” Failing to find a way around the mandatory minimum sentence, the trial court sentenced Marty to three years in prison. Marty now timely appeals.

Marty presents his argument primarily as one of fundamental error. However, in the alternative, Marty suggests that this court may also reverse based on ineffective assistance of counsel. We believe that ineffective assistance is the proper ground for addressing the core of Marty’s issues on appeal.

Claims of ineffective assistance of counsel are “not normally cognizable on direct appeal.” Forget v. State, 782 So.2d 410, 413 (Fla. 2d DCA 2001). They may be renewable, however, on direct appeal where “the ineffectiveness is apparent from the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.” Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987) (first citing Stewart v. State, 420 So.2d 862, 864 (Fla.1982); then citing Foster v. State, 387 So.2d 344, 345 (Fla.1980)). To establish ineffective assistance of counsel a defendant “must show that counsel’s performance was deficient” and “that counsel’s errors were so serious as to deprive the defendant of a fair trial.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate that trial counsel was deficient, a defendant must show that counsel’s performance “fell below an objective standard of reasonableness” as measured by “prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. To demonstrate that trial counsel’s deficiency prevented a fair trial, a defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

Turning to the facts of this case, Marty pointing a gun at Valenzuela without firing at her did not, as a matter of established law, constitute deadly force. See Rivero v. State, 871 So.2d 953, 954 (Fla. 3d DCA 2004); cf. Miller v. State, 613 So.2d 530, 531 (Fla. 3d DCA 1993) (explaining that discharging a firearm in the air as a warning shot constitutes the use of deadly force). Although firearms are frequently considered deadly weapons, “the display of a deadly weapon, without more, is not ‘deadly force.’ ” Howard v. State, 698 So.2d 923, 925 (Fla. 4th DCA 1997) (citing Toledo v. State, 452 So.2d 661, 662 n. 3 (Fla. 3d DCA 1984)). Marty and Valenzuela’s accounts differ in several important respects, but they overlap on one crucial detail: Marty never fired his gun. Because there is no dispute that Marty never fired his gun, there can be no dispute that Marty used nondeadly force rather than deadly force. Thus, the only self-defense instruction that fits the undisputed facts of this case is an instruction for the justified use of nondeadly force. Marty’s counsel failed to request such an instruction. Instead, Marty’s counsel requested an instruction for the justified use of deadly force. Such an instruction is not only inapplicable to the facts of this case, but actually made it more difficult for Marty to establish that he was defending himself. That is, the use of deadly force is permitted in a narrower set of circumstances as compared to the use of non-deadly force. Compare §§ 776.012(2), .031(2), 782.02, with §§ 776.012(1), .031(1). We can glean no strategic reason for Marty’s counsel to request a jury instruction that made it more difficult for Marty to prove that he acted in self-defense during his encounter with Valenzuela. Thus, it is obvious from the face of the record that Marty’s counsel was deficient for failing to request what would have been the only proper self-defense instruction under the facts presented at trial, instruction 3.6(g).

Having determined that Marty’s counsel was deficient for requesting the wrong instruction, we now turn to Strickland’s second prong. We cannot say that defense counsel’s failure to request the nondeadly force instruction did not affect the jury’s verdict. It is reasonably probable that the jury believed Marty was entitled to use some force in self-defense, but not to the extent of deadly force, which was the only self-defense instruction presented for the jury’s consideration. In other words, Marty may have been justified in displaying his firearm (nondeadly force) to prevent an “imminent use of unlawful force” or “tortious ... interference with” his property, see §§ 776.012(1), .031(1), but not entitled to discharge his firearm (deadly force) because he did not reasonably believe that he was in danger of “imminent death or great bodily harm,” or that Valenzuela would commit a forcible felony against him or his property, see §§ 776.012(2), .031(2), 782.02.

This scenario seems even more plausible upon review of Marty’s trial testimony. Marty testified that he was not in fear of Valenzuela killing him, but he was still concerned that Valenzuela might try to use unlawful force against him or damage his car. Moreover, the State emphasized in closing argument that “the law of self-defense is not applicable to this case because [Marty] was not in reasonable fear of death or great bodily harm to himself” (Emphasis added.) Had Marty’s counsel requested a self-defense instruction supported by the facts and circumstances presented at trial, the State would not have been able to make such a closing argument. Hence, it is clear on the face of the record on appeal that Marty was prejudiced by his trial counsel’s failure to request the proper self-defense instruction.

In so concluding, we are guided by the Fourth District’s holding in Michel v. State, 989 So.2d 679, 680 (Fla. 4th DCA 2008), and our holding in McComb v. State, 174 So.3d 1111, 1112 (Fla. 2d DCA 2015). The defendant in Michel was charged with aggravated battery. 989 So.2d at 680. “The initial jury instructions prepared by the [S]tate included instructions on both the justifiable use of non-deadly force and the justifiable use of deadly force, but the [S]tate questioned whether giving both would be appropriate.” Id. After some discussion, the State indicated that it would be comfortable with instructions on both the justifiable use of deadly and non-deadly force. Id. But for whatever reason, the issue was not raised again. Id. Ultimately, the instructions given to the jury did not include an instruction on the justifiable use of nondeadly force. Id. The jury found the defendant in Michel guilty of the lesser included offense of simple battery. Id. Defense counsel then filed a motion for new trial, arguing that neither he nor the State recognized that justifiable use of nondeadly force was a defense to the simple battery charge. Id. at 680-81. On direct appeal, the Fourth District found ineffective assistance of counsel on the face of the record, emphasizing that justifiable use of nondeadly force was the defendant’s only defense to the simple battery charge. Id. at 681-82. The Fourth District noted that “even if the jury believed that Michel acted in self-defense, which there was evidence to support, they did not have the legal basis to find her not guilty of the simple battery.” Id. at 682. The court also remarked that “it is patently unreasonable to fail to request an instruction that provides a legal defense to undisputed facts.” Id. (emphasis added) (citing Aversano v. State, 966 So.2d 493, 495 (Fla. 4th DCA 2007)). Here, it is likewise undisputed that Marty never fired his gun, even though Marty’s counsel requested a self-defense instruction which implied that Marty did so.

In McComb, the defendant was charged with aggravated battery. 174 So.3d at 1112. At the beginning of trial, defense counsel asked for a jury instruction on the justifiable use of deadly force. Id. Then, after closing arguments, the parties discussed giving an additional instruction on the use of nondeadly force. Id. For whatever reason, the trial court failed to give the nondeadly force instruction to the jury. Id. at 1112-13. Defense counsel did not object to the instructions as read to the jury. Id. at 1113. On direct appeal, the McComb defendant argued that his trial counsel was ineffective for failing to object to the omission of the nondeadly force instruction. This court agreed and reversed. Id. We noted that, “[a]s instructed, the jury could have believed that [victim] was the aggressor but rejected [defendant’s] self-defense claim because [defendant] did not present a threat of ‘imminent death or great bodily harm’ that would justify resorting to deadly force.” Id.

The present case is very similar, and arguably worse than the situations in either Michel or McComb. Defense counsel in this case did not inquire as to the possibility of giving both a deadly and nondeadly force instruction and simply failed to object to the instructions as they were read. Instead, defense counsel plainly requested a self-defense instruction that was inapposite to the undisputed facts and paradoxically made it more difficult for Marty to prove his own affirmative defense. If the errors in McComb and Michel were ineffective assistance on the face of the record, then surely this error must be ineffective assistance on the face of the record as well.

Marty’s trial counsel was constitutionally ineffective because he neglected to request a self-defense instruction that was applicable to the facts and circumstances of the case. This error prejudiced Marty because the justifiable use of nondeadly force was essential to Marty’s theory of defense at trial. This ineffectiveness is obvious from the face of the record. We cannot say that there was no reasonable probability of Marty being prejudiced by his trial counsel’s error. Accordingly, we vacate Marty’s conviction and remand for a new trial.

Judgment reversed; conviction vacated; remanded for a new trial.

CASANUEVA, J., and CASE, JAMES R., Associate Senior Judge, Concur.


author: NORTHCUTT, Judge.

text:
    Timothy CEELEN, Appellant, v. Christina GRANT, Appellee.
    No. 2D15-1696.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 2016.
    Mark E. Reinhold, Tampa, for Appellant.
    No appearance for Appellee.
   NORTHCUTT, Judge.

Timothy Ceelen appeals an injunction against stalking entered in favor of his former girlfriend, Christina Grant. Ceelen was not afforded procedural due process at the hearing below. Therefore, we reverse the injunction, and we need not address Ceelen’s other complaint.

Ceelen and Grant lived together as a couple for seven years before breaking up in early 2016. Grant petitioned for an injunction against stalking, alleging that Ceelen had forced her out of the home and then proceeded to make over two hundred phone calls and text messages to her and her family. Grant claimed that all of the calls and texts were harassing and threatening rants from Ceelen. She also alleged that Ceelen threatened to kill himself. The circuit court entered an ex parte temporary injunction and then held an eviden-tiary hearing on the petition.

During the hearing, Grant’s testimony was similar to the allegations contained in her petition. Ceelen, in his defense, made repeated attempts to introduce copies of the texts, and he also tried to call a witness. Ceelen proffered that his documents would show that he made the calls and texts out of a well-meaning fear that Grant might relapse into substance abuse. Ceelen also contended that his witness could corroborate his concerns regarding Grant’s alleged substance abuse history. The court refused to admit Ceelen’s evidence, positing that it was irrelevant in light of the sheer number of calls. The court ruled in favor of Grant and entered a permanent injunction. The court later denied Ceelen’s motion for reconsideration, and he timely appealed.

The Florida Criminal Code authorizes circuit courts to issue temporary injunctions against stalking, but it contemplates a “full hearing” before a permanent injunction may be entered. § 784.0485(5)(c), Fla. Stat. (2014). To satisfy procedural due process during a full hearing “the parties must have an opportunity to prove or disprove the allegations made in the complaint. All -witnesses should be sworn, each party should be permitted to call witnesses with relevant information, and cross-examination should be permitted.” Tejeda-Soto v. Raimondi, 968 So.2d 635, 636-37 (Fla. 2d DCA 2007) (quoting Ohrn v. Wright, 963 So.2d 298, 298 (Fla. 5th DCA 2007)).

Here, the circuit court simply refused to allow Ceelen to present evidence in his defense. It is especially troubling that the court threatened Ceelen with jail time when he pressed to fully present his case. We conclude that the court erred by declining to at least entertain Ceelen’s evidence and witness testimony. As a result, Ceelen was not afforded the fundamental due process to which he was entitled, and we must reverse and vacate the injunction. We remand for a full evidentiary hearing to determine whether a new permanent injunction would be appropriate.

Reversed and remanded.

CRENSHAW and BADALAMENTI, JJ., Concur.


author: BLACK, Judge.

text:
    Sharese BERGERON, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-3028.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 2016.
    Howard L. Dimmig, II, Public Defender, and Brooke Elvington, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   BLACK, Judge.

Sharese Bergeron appeals the order revoking her probation and the sentence subsequently imposed on her conviction for sale of cocaine. We affirm the revocation but remand for the trial court to enter a corrected order of revocation of probation accurately reflecting that Bergeron was found to have violated conditions 11 and 15 of her probation. We reverse Bergeron’s sentence because the trial court erred by failing to renew the offer of assistance of counsel to Bergeron before sentencing her.

Immediately prior to the hearing on the violation of probation, Bergeron requested to represent herself. The court conducted a Faretta inquiry, found Bergeron’s waiver of counsel to be knowingly and voluntarily made, and allowed Bergeron to represent herself with counsel on standby. After finding Bergeron in violation of her probation, the court immediately proceeded to sentence her without offering Bergeron the assistance of counsel. This was error. See Parker v. State, 137 So.3d 593, 594 (Fla. 2d DCA 2014); Serrano v. State, 113 So.3d 895, 896 (Fla. 2d DCA 2012); see also Fla. R. Crim. P. 3.111(d)(5). As a result, we reverse Bergeron’s sentence and remand for resentencing.

Affirmed in part, reversed in part, and remanded with instructions.

MORRIS and SLEET, JJ., concur.

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


author: PER CURIAM.

text:
    James Darrell McCANTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D15-329.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 2016.
    Michael G. Fink of Mike Fink Law Firm, Fort Myers, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

For the reasons set forth in Ivy v. State, 196 So.3d 394, (Fla. 2d DCA 2016), we affirm. Again, we certify the following question of great public importance to the supreme court:

DURING A MELBOURNE V. STATE, 679 So.2d 759, 763 (Fla.1996), HEARING, WHEN A TRIAL COURT FINDS THAT THE PROPONENT’S REASON FOR A PEREMPTORY CHALLENGE IS FACIALLY NEUTRAL, IS IT THE BURDEN OF THE OPPONENT (1) TO CLAIM THE REASON IS A PRETEXT, (2) TO PLACE INTO THE RECORD THE CIRCUMSTANCES SUPPORTING ITS POSITION, AND (3) TO OBJECT IF THE TRIAL COURT’S RULING DOES NOT CONTAIN ADEQUATE FINDINGS ON THE ISSUE OF GENUINENESS?

Affirmed; question certified.

WALLACE, KHOUZAM, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    The SCHOOL BOARD OF HILLSBOROUGH COUNTY, Florida, Petitioner, v. David TENNEY, Respondent.
    No. 2D15-5337.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 2016.

      Deborah H. Oliver and Christina E. Blood of Adams and Reese LLP, Tampa, for Petitioner.
    Branden Vicari of Herdman & Sakellar-ides, P.A., Clearwater, for Respondent.
   SALARIO, Judge.

The School Board of Hillsborough County seeks second-tier certiorari review of a circuit court order granting David Ten-ney’s petition for writ of certiorari. Mr, Tenney filed his petition after the school board voted to terminate his employment as a middle school teacher. We conclude that the circuit court applied the wrong standard of review to the school board’s decision only insofar as that decision rested on Mr. Tenney’s use of a personal laptop in the classroom in violation of school district policy. We grant the petition to that extent and deny it without comment in all other respects.

Mr. Tenney was a geography and science teacher at Liberty Middle School in Tampa. While he was teaching a class in 2012, an image of a partially unclothed woman appeared on a smart board that Mr. Tenney had connected to a personal laptop that he owned and that he used to prepare and display materials for classroom instruction. According to Mr. Ten-ney, he was not facing the smart board when the image appeared because he was writing down notes for class. After he heard a sudden gasp from his students, he realized what had happened, clicked off the image, and proceeded to teach class without discussion of the event. He has since explained that the image was not one that had been stored on his computer, but rather was a “popup” from an internet source that he did not and could not control. Although Mr. Tenney did not report the incident to his superiors, a student told another teacher and news of the incident eventually reached the principal.

The school district conducted an investigation of the events, after which the superintendent of schools notified Mr. Tenney in writing of her intention to recommend that the school board terminate his employment. The notice alleged that the school board had cause for termination under the Hillsborough County Teacher Tenure Act because Mr. Tenney’s conduct in respect of the relevant events constituted “immorality,” “insubordination,” a “persistent violation of or willful refusal to obey laws or policies relating to the public schools,” and a “failure to demonstrate competency to perform the duties of employment in instruction, evaluation, and management of students in accordance with generally accepted standards of the profession.” See ch. 69-1146, § 4(a), Laws of Fla. (1969) (adding the quoted language to the Hills-borough County Teacher Tenure Act). The school board held an evidentiary hearing on September 8, 2018, after which it rejected the superintendent’s allegations of immorality and insubordination, but found by a vote of four to three that Mr. Tenney had committed persistent or willful violations of laws or policies relating to the public schools and had failed to demonstrate competency to perform the duties of employment. As relevant to this opinion, the school board’s finding of violations of laws or policies was based upon Mr. Ten-ney’s use of his personal laptop in the classroom in violation of district policy governing the use of personal electronic devices.

As concerns the use of the personal laptop, Mr. Tenney testified at the school board hearing that when he used the classroom smart board with computers provided by the school district, the computers would freeze up and impede his ability to instruct his students. He therefore approached the school’s technology coordinator, who installed school district software on his personal laptop so he could use that laptop instead of the computers provided by the district and, hopefully, avoid those problems.

The school board introduced certain written policies governing the use of technology, the internet, and the school network. In relevant part, those policies provided (1) that only “district-approved” devices could be connected to the school district’s network, (2) that users have a “limited privacy expectation” in the content of “personal files and records of their online activity while on the network,” and (3) that staff members have no expectation that information on computers and other equipment owned by the school district is confidential or private. It also offered the testimony of the school district technology manager, who testified that at the time of the events, personal devices like Mr. Tenney’s laptop were not allowed to be used on the district’s network. The Liberty Middle School principal testified that he never approved Mr. Tenney’s personal laptop for use on the district’s network.

Mr. Tenney filed a petition for writ of certiorari with the circuit court pursuant to section 120.68(1), Florida Statutes (2013), and the Teacher Tenure Act to challenge the school board’s termination of his employment. The circuit court granted the petition, finding that the evidence submitted to the school board did not support the alleged violations. The school board now requests that we quash the circuit court’s order.

Judicial review of administrative action, like that of the school board here, proceeds in two tiers. The first tier begins with the filing of a petition for a writ of certiorari in the circuit court, which reviews the agency decision to determine “whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence.” City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982); see also Redner v. City of Tampa, 827 So.2d 1056, 1058 (Fla. 2d DCA 2002). A party may then seek second-tier review of the circuit court’s order by filing a petition for writ of certiorari in the district court of appeal. Vaillant, 419 So.2d at 626. The district court’s review of a circuit court’s decision is highly circumscribed: it assesses only “whether the circuit court afforded procedural due process and applied the correct law.” See id.; see also Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000).

The school board argues that the circuit court failed to apply the correct law because it applied the wrong standard of review to the evidence supporting the school board’s decision to terminate Mr. Tenney’s employment. It asserts that although the law as just described required the circuit court to review the school board’s decision solely for competent substantial evidence, the circuit court instead conducted a de novo reweighing of the evidence and decided that Mr. Tenney had the better case. With respect to the issue regarding the use of the personal laptop, we agree.

A circuit court’s review of an agency decision for competent substantial evidence is limited to determining whether the evidence before the agency was legally sufficient to support the agency’s decision. Fla. Power & Light, 761 So.2d at 1092 (“Competent substantial evidence is tantamount to legally sufficient evidence.”). The circuit court may not reweigh the evidence to determine whether the agency made “the ‘best’ decision or the ‘right’ decision or even a ‘wise’ decision.” Dusseau v. Metro. Dade Cty. Bd. of Cty. Comm’rs., 794 So.2d 1270, 1276 (Fla.2001). Instead:

The [circuit] court must review the record to assess the evidentiary support for the agency’s decision. Evidence contrary to the agency’s decision is outside the scope of the inquiry at this point, for the reviewing court above all cannot reweigh the “pros and cons” of conflicting evidence. While contrary evidence may be relevant to the wisdom of the decision, it is irrelevant to the lawfulness of the decision. As long as the record contains competent substantial evidence to support the agency’s decision, the decision is presumed lawful and the court’s job is ended.

Id. When a circuit court conducts a de novo review of the evidence bearing on an agency decision instead of determining whether the administrative body’s decision is supported by competent substantial evidence, it fails to apply the correct law, a failure that makes relief in this court by way of second-tier certiorari appropriate. See Dusseau, 794 So.2d at 1275 (holding that a circuit court departs from the essential requirements of law when it reweighs evidence presented to agency instead of reviewing for competent substantial evidence); Fla. Power & Light, 761 So.2d at 1093 (holding that circuit court’s reweighing of evidence presented to agency “is tantamount to departing from the essential requirements of law”); see also City of Sarasota v. Pleasures II Adult Video, Inc., 799 So.2d 325, 327 (Fla. 2d DCA 2001) (“A circuit court departs from the essential requirements of the law when it substitutes its judgment for that of the hearing officer, reweighs the evidence, or reevaluates the credibility of the evidence.”).

Although the circuit court’s order couched its analysis of the use of the personal laptop in the language of review for competent substantial evidence—stating that the evidence was insufficient to support the school board’s decision—the balance of the order makes clear that the court conducted a de novo reweighing of the evidence. See Dusseau, 794 So.2d at 1275 (“Although the circuit court phrased its reversal in terms of ‘competent substantial evidence,’ the plain language of its order shows that the court in fact reweighed the evidence, at length.”). The circuit court acknowledged that the principal and district technology manager testified to the effect that Mr. Tenney’s personal laptop was not approved for use on the district’s network. The circuit court reasoned, however, that the written policy did not expressly prohibit the use of personal devices, but instead “limit[ed] devices accessing the network and for instructional use to ‘[d]istrict-approved’ devices” and that “district approval” was not defined by the materials in the record. The circuit court decided that personal devices must have been approved for use on the district’s network in some circumstances because the policies referred to a “limited expectation of privacy” in personal files on devices connected to the network and, in contrast, said there was no expectation of privacy at all with respect to district-owned devices.

The circuit court found that Mr. Ten-ney’s use of his laptop under the circumstances was not a violation of district policy, reasoning as follows:

where there is no absolute proscription against personal devices, and where the technology professional affiliated with the school made Petitioner’s personal laptop compatible with the network by downloading District software onto the device, if the device was not “[district-approved” the court agrees with Petitioner that the District is sending a mixed message in that regard.

The circuit court thus reweighed the evidence with regard to two of the school board’s conclusions. First, it reviewed the written policies and determined that the ambiguous language necessarily meant that the use of personal devices was sometimes allowed, thereby concluding that the school board’s interpretation of its written policies was not “the ‘best’ decision or the ‘right’ decision.” See Dusseau, 794 So.2d at 1276. Second, it acknowledged there were witnesses who testified that personal devices were not approved for the uses Mr. Tenney made of them but then pointed to evidence that conflicted with that testimony—essentially determining that Mr. Tenney’s testimony was entitled to more weight than the testimony of the principal and the technology manager for the school district.

In sum, rather than reviewing the record to see if the school board’s ruling was supported by competent substantial evidence, it “reviewed the decision to determine whether it was opposed, by competent substantial evidence.” See Dusseau, 794 So.2d at 1275. In this respect, the trial court applied the wrong legal standard. See Dep’t. of Highway Safety & Motor Vehicles v. Wiggins, 151 So.3d 457, 471 (Fla. 1st DCA) (“[P]utting contrary evidence on the judicial scales is ‘outside the scope of the inquiry1 at the circuit court level .... ”), review granted, 168 So.3d 231 (Fla.2014); Town of Manalapan v. Gyongyosi, 828 So.2d 1029, 1033 (Fla. 4th DCA 2002) (granting petition for second-tier certiorari where circuit court considered evidence offered by opponent of administrative body’s decision).

As such, we grant the petition in part and quash that portion of the circuit court’s order addressing Mr. Tenney’s use of his personal laptop. We return the case to the circuit court to reconsider the issue concerning the personal laptop in accord with the competent substantial evidence standard of review. See Fla. Power & Light, 761 So.2d at 1093 (explaining that the proper course where certiorari is granted for failure to apply the competent substantial evidence standard of review is to return the matter to the circuit court to reconsider the issue under the proper standard). We express no view on the outcome when the correct standard is applied. We deny the petition in all other respects.

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

SILBERMAN and CRENSHAW, JJ., Concur.

      . See ch. 21287, Laws of Fla. (1941), as amended by ch. 24587, Laws of Fla. (1947), ch. 69-1146, Laws of Fla. (1969), and ch. 75-384, Laws of Fla. (1975).


author: MORRIS, Judge.

text:
    Erik J. SATERBO and Stephen C. Saterbo, Appellants, v. Benjamin D. MARKUSON, Appellee.
    No. 2D14-2737.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2016.

      Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for Appellants; and James C. Valenti of Valenti Campbell Trohn Tamayo &
      Aranda, Lakeland, for Appellant Erik J. Saterbo.
    Patrick J. McNamara, David M. Calde-villa, Daniel J. McBreen and Eric D. No-wak of de la Parte & Gilbert, P.A., Tampa, for Appellee.
   ORDER ON MOTION FOR REVIEW OF TRIAL COURT’S ORDER DENYING APPELLATE ATTORNEYS’ FEES

MORRIS, Judge.

Benjamin Markuson seeks review of the trial court’s order denying his motion for appellate attorneys’ fees. Because we conclude that the trial court erred by finding that Markuson’s proposal for settlement was unenforceable, we disapprove that portion of the trial court’s order and remand for entry of an order granting appellate attorneys’ fees as against Erik Sater-bo and his insurer.

I. Background of the Case

Following an automobile accident between Markuson and Erik, Markuson filed a personal injury action raising two claims: a negligence claim against Erik (as the driver) and his father, Stephen Saterbo (as the owner), and a claim for uninsured motorist benefits against Erik’s insurer. Pri- or to trial, Markuson served a proposal for settlement on both Erik and Stephen, wherein Markuson offered to settle all claims made against both Erik and Stephen in return for a payment of $1,500,00o. The proposal did not include an apportionment of the amount of money due from each defendant. The Saterbos rejected the proposal, and after a jury trial, the jury entered a verdict in favor of Markuson, concluding that Erik’s negligence was the cause of loss to Markuson.

Despite the fact that there was only one verdict form, the trial court entered two final judgments, one against Erik and Stephen jointly and severally for $600,000 and a second judgment against Erik only in the amount of $2,484,074. This resulted in a combined total award in the amount of $3,084,074. The two separate final judgments were the result of a $600,000 statutory cap on Stephen’s liability pursuant to section 324.021(9)(b)(3), Florida Statutes (2005). That section limits a car owner’s liability in suits arising out of automobile accidents. § 324.021(9) (b) (3).

The Saterbos appealed the final judgment to this court, and in the appeal, Markuson filed a motion for appellate attorneys’ fees based on his proposal for settlement that had been made to both of the Saterbos. However, in the motion, Markuson requested an award of appellate attorneys’ fees from Erik and his insurer only. There was no request for appellate attorneys’ fees from Stephen. Ultimately, this court affirmed the final judgment without opinion. See Saterbo v. Markuson, 177 So.3d 618 (Fla. 2d DCA 2015) (table decision). We also granted Marku-son’s motion for appellate attorneys’ fees contingent upon a determination by the trial court that Markuson was entitled to such fees.

Markuson then moved in the trial court to tax appellate attorneys’ fees as against Erik and his insurer. Markuson also sought an award of appellate costs as against both of the Saterbos. The trial court granted Markuson’s request for costs, but it determined that he was not entitled to an award of appellate attorneys’ fees as against Erik and his insurer. The trial court reasoned that Stephen was not solely vicariously liable for the direct claims made against Erik, and as a result, Markuson’s joint proposal for settlement failed to strictly comply with Florida Rule of Civil Procedure 1.442. The trial court also concluded that the proposal was ambiguous and lacked particularity because it failed to account for the fact that Stephen’s liability was capped pursuant to section 324.021(9)(b)(3). The trial court explained that because the proposal offered to settle all claims against both of the Saterbos, including the direct claim against Erik for which Stephen bore no responsibility, the Saterbos would have had to speculate regarding their exposure due to the statutory cap on Stephen’s liability. Thus, according to the trial court, the proposal made it impossible for the Saterbos to make a reasonable and informed decision whether to accept or decline the proposal. It is this order which Markuson has asked us to review.

II. Analysis

We conduct a de novo review of a trial court’s determination of eligibility to receive an award of attorneys’ fees under section 768.79, Florida Statutes (2011), and rule 1.442. Pratt v. Weiss, 161 So.3d 1268, 1271 (Fla.2015). Both section 768.79 and rule 1.442 must be strictly construed because they are “in derogation of the common law rule that each party is responsible for its own fees.” Pratt, 161 So.3d at 1271.

Joint proposals for settlement are expressly allowed under rule 1.442(c)(3). And while rule 1.442(c)(3) does generally require that joint proposals “state the amount and terms attributable to each party,” rule 1.442(c)(4) contains an exception applicable to this case. Specifically, rule 1.442(c)(4) provides in relevant part that “when a party is alleged to be solely vicariously ... liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party.”

The Saterbos argued that because Stephen’s liability was statutorily capped at $600,000, he was not solely vicariously liable for the entire amount of damages suffered by Markuson. Thus, they contended that the exception stated in rule 1.442(c)(4) was inapplicable and that Markuson was still required to apportion damages between Erik and Stephen in the joint proposal. The trial court apparently agreed, finding that because Stephen was not vicariously liable for the direct claim against Erik, the proposal failed to appreciate the ambiguity that arose when applying the statutory cap on Stephen’s liability. But our interpretation of the rule leads us to a different result. The focus of the exception contained in rule 1.442(c)(4) is not whether a party is liable for the full amount of damages, but rather, it is whether the claims against the party are direct claims or solely claims of vicarious or other forms of indirect liability. The proposal here offered to settle all claims against both Erik and Stephen. Yet the fact remains that the only claim made against Stephen was based on his status as the owner of the vehicle, that is, one solely of vicarious liability. Consequently, apportionment was not necessary pursuant to rule 1.442(c)(4), and Markusoris proposal was sufficient to meet the requirements contained in the rule. See Miley v. Nash, 171 So.3d 145, 149-50 (Fla. 2d DCA), review denied, 192 So.3d 40 (Fla.2015).

The second argument made by the Saterbos—and articulated by the trial court in its order—was that the proposal was ambiguous and lacked particularity thereby making it impossible for the Sa-terbos to make an informed decision as to whether to accept the proposal. Both the Saterbos and the trial court asserted that the Saterbos would have been left to speculate as to their exposure due to the cap on Stephen’s liability. We disagree with this argument as it pertains to Erik, and for the reasons explained herein, we do not address the argument as it pertains to Stephen.

Proposals for settlement must be sufficiently specific so that there are no ambiguities, so that the recipient can fully evaluate the terms and conditions, and so that the proposal can be executed without the need for judicial interpretation. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006). However, the Florida Supreme Court has also recognized that it may not be possible to eliminate all ambiguity and, therefore, that the rale “merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Id.

Here, the proposal offered to settle all claims against Erik and Stephen, but that fact does not make it ambiguous. Only one count was alleged as against both of them. As to Stephen, it was based solely on his status as owner of the car, i.e., one of vicarious liability. However, Erik was jointly and severally liable for the entire negligence claim. It was only the amount of damages that was capped as to Stephen. Further, the Saterbos acknowledge that once they filed their affirmative defense based on the statutory cap, Markuson never “ma[d]e an issue that ... the statutory cap would not have applied in this circumstance.” Thus, even in the absence of an official determination that the cap applied (e.g., through the entry of a summary judgment on the affirmative defense), the parties were apparently aware that section 324.021(9)(b)(3) likely applied to cap Stephen’s liability.

The Saterbos argue that Erik needed further clarification “as to what would happen if he were to accept the proposal since Stephen would not be obligated to pay the full amount of the proposal by statute.” But again, it may be “impossible to eliminate all ambiguity,” and all that is required is that a proposal is sufficiently clear and definite so as to allow the party served an opportunity to make an informed decision. Nichols, 932 So.2d at 1079. And, notably, rale 1.442(c)(4) provides that where a joint proposal is made, “[ajcceptance by any party shall be without prejudice to rights of contribution or indemnity.” Thus, because Erik was hable for the entire amount of damages and because Stephen would have had the right to seek contribution or indemnity from Erik for any damages that Stephen obligated himself to pay over and above the statutory cap, there is no merit to the Saterbos’ argument that the cap on Stephen’s liability precluded Erik from making an informed decision. At most, Erik was liable for the entire amount, and at the least, he was liable for the entire amount minus $600,000 that would be owed by Stephen.

Although the trial court seemed to focus on whether both of the Saterbos could make independent, informed decisions as to whether to accept the proposal, that analysis appears to have flowed from the trial court’s erroneous understanding of the motion before it. The trial court’s order states the motion was made against both of the Saterbos, but that is incorrect. The motion was made solely against Erik (and his insurer). Furthermore, while the Saterbos relied on cases that discuss the necessity for multiple offerees to have the ability to independently evaluate and settle their respective claims, those cases are distinguishable because they involved the prior version of rule 1.442(c), which did not permit joint proposals without apportionment. Cf. Pratt, 161 So.3d at 1270 n. 2; Attorneys’ Title Ins. Fund v. Gorka, 36 So.3d 646, 650 (Fla.2010). But because rule 1.442(c)(4) now permits joint proposals without apportionment where one party is solely vicariously liable—as in this case— an analysis of whether the proposal was sufficiently unambiguous as to Stephen is unnecessary to resolve the issue of Marku-son’s entitlement to an award of appellate attorneys’ fees from Erik (and his insurer).

III. Conclusion

Under the unique facts of this case, we conclude that the trial court erred by determining that Markuson was not entitled to an award of appellate attorneys’ fees pursuant to section 768.79 and rule 1.442(c) as against Erik and his insurer. We therefore disapprove of the portion of the trial court’s order dealing with the attorneys’ fees issue, and we remand for the trial court to determine the amount of appellate attorneys’ fees. We do not disturb the portion of the trial court’s order awarding appellate costs to Markuson.

SILBERMAN and SALARIO, JJ., Concur.

      . Pursuant to section 768.79, Florida Statutes (2011), where a plaintiff serves an offer of settlement that is not accepted within thirty days and the plaintiff recovers a judgment that is at least twenty-five percent greater than the offer, the plaintiff is entitled to recover reasonable attorneys’ fees and costs incurred from the date the offer was served.

      . Markuson has filed a separate appeal of the trial court’s order denying Markuson's motion for trial level attorneys’ fees, which was also based on Markuson’s proposal for settlement. See Markuson v. Saterbo, 2D16-322. That appeal was abated pending the resolution of this case.

      . Subsection (c)(4) was added in 2010, with an effective date of January 1, 2011. See In re Amendments to Fla. Rules of Civil Procedure, 52 So.3d 579, 581 (Fla.2010). Prior to the amendment, rule 1.442(c) had been construed to require apportionment even when one of the parties was simply vicariously liable. See Carey-All Transp., Inc. v. Newby, 989 So.2d 1201, 1204 (Fla. 2d DCA 2008).

      . The rule also provides an exception where a party is alleged to be solely constructively, derivatively, or technically liable.


text:
    George BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-593.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2016.
   LUCAS, Judge.

George Baker appeals the postconviction court’s order striking as a nullity his pro se motion filed under Florida Rule of Criminal Procedure 3.850. Although Mr. Baker had appointed counsel at the time he filed his motion, we reverse the court’s order because Mr. Baker’s counsel had only been appointed to represent him for his revocation of probation proceeding.

In its order striking Mr. Baker’s motion, the postconviction court stated that on January 21, 2015, Mr. Baker pleaded guilty to grand theft and was sentenced to probation for two years. In July 2015, an amended affidavit of violation of probation was filed, and the public defender was appointed to represent Mr. Baker in the revocation of probation proceeding shortly thereafter. Mr. Baker later filed his pro se rule 3.850 motion on January 7, 2016. Citing Murray v. State, 1 So.3d 407, 408 (Fla. 2d DCA 2009), the postconviction court struck Mr. Baker’s motion as a nullity because he was represented by counsel at the time he filed it.

In Murray, we observed that “[a] defendant does not have the right to file pro se motions while also represented by counsel, and such motions should be treated as nullities” unless counsel adopts them or the defendant unequivocally seeks to discharge counsel. Id. at 408. But as we made clear in Murray, this prohibition only extends to the proceedings in which counsel represents the defendant. Id. at 408-09. Thus, we concluded that Mr. Murray’s pro se rule 3.853 motion, which had been filed after counsel had been appointed to represent him in a rule 3.850 proceeding, should have been considered by the postconviction court. Id. We reversed the postconviction court’s order striking his pro se motion because nothing in the record indicated that Mr. Murray’s counsel had been appointed to represent him in a rule 3.853 proceeding and the postconviction court never attempted to determine whether his appointed counsel would adopt his pro se motion before dismissing it. Id. at 409.

Similar to Murray, in the case at bar, the public defender has been appointed in Mr. Baker’s revocation of probation proceeding, but there is nothing within the record before us to indicate whether this appointment encompassed a rule 3.850 postconviction proceeding. Indeed, in this case’s context, such an appointment would appear to be counter-intuitive because the scope of the public defender’s representation in criminal proceedings ordinarily does not extend to summary postconviction proceedings. See § 924.066(3), Fla. Stat. (2015) (“A person in a noncapital case who is seeking collateral review under this chapter has no right to a court-appointed lawyer.”); Williams v. State, 99 So.3d 593, 595 (Fla. 2d DCA 2012) (“The duties of public defenders, as enumerated in section 27.51, Florida Statutes (2008), do not include postconviction representation.”); Perry v. State, 869 So.2d 41, 42 (Fla. 2d DCA 2004) (affirming postconviction court’s dismissal of a rule 3.800(a) motion filed by a public defender because the public defender had only been appointed to represent the defendant on appeal and “under section 27.51 ... the public defender ... was not authorized to file [the defendant’s] collateral attack”); Mann v. State, 937 So.2d 722, 726 (Fla. 3d DCA 2006) (affirming postconviction court’s finding that the public defender did not represent defendant in postconviction proceedings and observing “[t]he right to representation in a postconviction collateral proceeding is generally derived by statute and only becomes constitutionally mandated if the postconviction motion presents a meritorious claim and a hearing on the motion is potentially so complex that counsel is necessary” (citing Russo v. Akers, 724 So.2d 1151, 1152 (Fla.1998))).

Because counsel was not appointed to represent Mr. Baker in a rule 3.850 post-conviction proceeding, Mr. Baker’s pro se rule 3.850 motion was not a nullity, and the postconviction court erred in striking it. Accordingly, we reverse and remand for the postconviction court to address Mr. Baker’s motion.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ„ Concur.


author: KHOUZAM, Judge.

text:
    J.A.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D15-4281.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2016.
    Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

J.A.W., a juvenile, appeals his disposition for sending written threats to kill or do bodily injury under section 836.10, Florida Statutes (2014). He was found to have committed this delinquent act after he posted on Twitter that he was going to “shoot up” his school. Because J.A.W.’s threats were not sent directly to the alleged victims or their families as prohibited under the plain language of section 836.10, we are constrained to reverse.

The record shows that J.A.W., a student at Sarasota High School, posted the following tweets over a span of several days:

• “can’t WAIT to shoot up my school”;
• “it’s time” (this tweet included a photo of a gun being put in a backpack);
• “My mom and dad think I’m serious about shooting up my school I’m dying”;
• “school getting shot up on a Tuesday”;
• “night f[* * *]ing sucked can’t wait to shoot up my school soon”;
• “I sincerely apologize to anyone who took me seriously. I love my high school and honestly own no weapons to want to harm anyone in any way.”

In these tweets, J.A.W. mentioned @Duhssault, a group of his friends who did not live in Florida and were not students at Sarasota High School. J.A.W. later maintained that the tweets were meant as a joke shared to this group of friends who often joked about being unfairly stereotyped as potentially violent based on their interest in video games and rock music. He expressed disbelief that anyone would take the tweets as a serious threat.

However, J.A.W. had not protected his tweets; therefore, the tweets were, by default, public. They had been broadcast to his followers, they could be found and viewed by anyone on the Internet (with or without a Twitter account), and they could be retweeted by any other Twitter user (thereby broadcasting them to all of that user’s followers). One member of @Duhssault, @Glo, replied to one of J.A.W.’s tweets, mentioning several law enforcement agencies, news outlets, and public figures, including the FBI, CIA, Fox News, and President Obama. Though J.A.W. indicated that he believed the tweets would be private, he also acknowledged that they had been retweeted by “a bunch of people [with] like 40,000 followers,” There was no evidence presented to show whether any of J.A.W.’s followers were students or staff at his school or members of their families. The tweets were discovered by an out-of-state watchdog group called GeoCop, who reported them to local law enforcement. Law enforcement viewed the tweets, determined that they referenced Sarasota High School, and relayed the threat to school officials. Once school officials were alerted, they devised a plan for safely dismissing the students. Law enforcement officers were stationed around the school to keep everyone safe. Law enforcement found J.A.W. at his home, which was located only several hundred feet away from the school, and took him into custody.

We must determine whether this evidence was sufficient to support J.A.W.’s disposition for sending written threats to Idll or do bodily injury under section 836.10, which provides as follows:

Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to Mil or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added.) We must construe this statute according to its plain and ordinary meaning; we cannot add words that were not included by the legislature. See Exposito v. State, 891 So.2d 525, 528 (Fla.2004). And because this statute is clear and unambiguous, we cannot look behind its plain language or resort to the rules of statutory construction in order to ascertain the legislature’s intent. See Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005).

The plain language of section 836.10 makes clear that it only applies where a threat is sent directly to a specific victim or a member of that person’s family. The statute specifies that it covers communications “to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent.” § 836.10 (emphasis added). The only intermediary third parties encompassed in the language of the statute are family members of the potential victim because ■ the statute specifically includes threats “to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent.” § 836.10 (emphasis added); cf. Calamia v. State, 125 So.3d 1007, 1012 (Fla. 5th DCA 2013) (interpreting Florida’s extortion statute, section 836.05, Fla. Stat. (2009), “to mean that the intent to compel is coupled with the intent that the communication, either directly or indirectly, reaches the coerced person” because the plain language of the statute requires “intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will.” (emphasis added)). This court has explained that section 836.10 does not criminalize written threats that have not been “sent” to the person being threatened or a member of that person’s family. See State v. Wise, 664 So.2d 1028, 1030 (Fla. 2d DCA 1995). The act of sending under section 836.10 requires both “the depositing of the communication in the mail or through some other form of delivery” and “the receipt of the communication by the person being threatened.” Id, Twitter cannot be considered a “form of delivery” under the facts of this case because, even though he posted the tweets to a public forum, there is no evidence that J.A.W. directed the threat to the potential victims aside from merely referencing “my school.” Moreover, the fact that the school received the threat, without more, is insufficient to support a finding that the threat was “sent” under the very limited language of the statute.

The State also suggests that J.A.W.’s conduct constitutes “procuring] the sending” because “[t]o ‘procure’ means to pei’-suade, induce, prevail upon, or cause a person to do something.” Fla, Std. Jur. Instr. (Crim.) 8.22. However, we believe that the definition of “procure” cannot be stretched to encompass J.A.W.’s conduct because it was J.A.W.’s Twitter followers, GeoCop, and law enforcement—not J.A.W. himself—who relayed the threat to the school. There was no evidence that any of J.A.W.’s Twitter followers were students or staff at the school or members of their families. By the time it was received by the school, the threat was several steps removed from its original context.

In O’Leary v. State, 109 So.3d 874, 877 (Fla. 1st DCA 2013), the Fust District applied Wise in the context of threats publicly made on social media and determined that threats posted on Facebook had been “sent” to all of the defendant’s Facebook friends for purposes of section 836.10. O’Leary posted threats against his relative and her partner. Id. at 875. The post was viewed by a mutual relative who was Facebook friends with O’Leary. Id. The First District reasoned that the appellant had specifically requested the mutual relative to be his Facebook friend, and the mutual relative had accepted that request. Id. at 877. “By posting his threats directed to his family member and her partner on his Facebook page, it is reasonable to presume that appellant wished to communicate that information to all of his Face-book friends.” Id. And because O’Leary’s posts threatened a “member of the family of the person to whom” it was “sent,” his post fell within the ambit of the statute. § 836.10; O’Leary, 109 So.3d at 877-78. The instant case is factually distinguishable from O’Leary because there was no evidence showing that J.A.W.’s threats were sent directly to any of the potential victims or their family members—rather, the threat was publicly posted on social media and relayed by nonfamily third parties to the potential victims.

We hold that the plain and unambiguous meaning of section 836.10 requires a showing that the threat was sent directly to the potential victims or their family members. Here, the State did not present any evidence that J.A.W.’s threat was received directly by any students or staff at Sarasota High School or any of their family members. Rather, J.A.W. publicly posted the threat, it was retweeted, it was discovered by GeoCop, and it was finally relayed to the school. Considering these facts, the receipt of the threat by the school was simply too far removed from the original context in which it was posted to support J.A.W.’s disposition for sending written threats to kill or do bodily injury. Accordingly, J,A.W.’s disposition must be vacated. See Santiago v. State, 874 So.2d 617, 624 (Fla. 5th DCA 2004) (“[I]f it is determined either by the trial court or appellate court that the evidence is insufficient to sustain a conviction, the proper remedy is acquittal and not a new trial.”).

We emphasize, however, that the type of threats at issue in this case pose a serious problem. Social media is a relatively new and extraordinarily popular form of communication. According to the Pew Research Center, in 2015 a full 65% of American adults used social media—as compared to a mere 7% in 2005. And for young adults from ages eighteen to twenty-nine, social media usage is nearly ubiquitous: a full 90% of people in this age bracket use social networking sites/applications. Of these users, many visit social media platforms on a daily basis, even multiple times a day. In other words, “[s]ocial media has become indispensable to daily life.”

With this popularity comes the unfortunate but inevitable problem that social media posts, like any other form of communication, can be used to make threats of violence. But many threats made on social media will fall outside the narrow language of section 836.10, which was originally written with pen-and-paper letters in mind. The statute was enacted in 1913, and since that time its language has remained virtually the same. See Macchione v. State, 123 So.3d 114, 115 (Fla. 5th DCA 2013). It is true that the statute was amended in 2010 to include “electronic communication,” but the language requiring the communication to be sent directly remained intact. See id. at 116.

The narrow language of section 836.10 will not encompass many threats made via social media because, as acknowledged by the First District in O’Leary, social media is often used to post communications publicly, for the whole world to see, instead of sending those communications directly to any specific person. 109 So.3d at 877. This is problematic because, even though social media.posts may not travel directly, they are often shared with the understanding or expectation that they will be widely distributed, even outside the original poster’s own network of friends or followers. Indeed, social media is designed for information to be shared amongst users not only indirectly but also rapidly and virally:

Generally speaking, “social media” refers to a web-based platform through which the general public can create and discuss the information it contains, in contrast to websites that retain exclusive control over the content being published and simply display it for consumption by its users. More specifically, true social media sites seem to have three defining characteristics: (1) the information being posted is not directed at anyone in particular; (2) the information being posted can be edited and/or discussed by all who see it; and (3) the information posted includes an easy way to share it with people not included within the scope of the original post.

Because of these unique dynamics of communication on social media, any unprotected post can “go viral,” by “rapidly—and often uncontrollably—propagating] across the internet.” In this context, a threat of violence made publicly on social media is likely to reach its target and cause fear of bodily harm just like a traditional letter might. See Smith v. State, 532 So.2d 50, 52 (Fla. 2d DCA 1988) (“Section 836.10 is justified by the right of all persons to live free of unexpected and unwarranted fear of harm.”). The facts of the instant case exemplify this phenomenon. Accordingly, the legislature may wish to revisit section 836.10 to address the modern problem of threats issued and shared publicly on social media.

Reversed and remanded with directions to vacate J.A.W.’s disposition.

CASANUEVA and LUCAS, JJ., Concur.

      . About Public and Protected Tweets, Twitter Help Center, https://support.twitter.com/ articles/14016 (last visited Aug. 9, 2016).

      . Andrew Perrin, Social Media Usage: 2005-2015, Pew Research Center, 2, 4 (Oct. 8, 2015), http://www.pewintemet.orgtfiles/2015/ 10/PI-2015-10-08_Social-Networking-Usage-2005-2015_FINAL.pdf.

      . Id.

      . Maeve Duggan, Nicole B. Ellison, Cliff Lampe, Amanda Lenhart, Mary Madden, Social Media Update 2014, Pew Research Center, 3 (Jan. 9, 2015), http://www.pewinternet. org/files/2015/0 l/PI_SocialMediaUpdate 20144.pdf.

      . Marie-Helen Maras, Unprotected Speech Communicated Via Social Media: What Amounts to A True Threat?, 19 No. 3 J. Internet L. 3, *8 (2015).

      . See, e.g., How to Crack Down on Social Media Threats, New York Times (August 3, 2016), http://www.nytimes.com/ roomfordebate/2016/08/03/how-to-crack-down-on-social-media-threats (showcasing various opinions on how to address the problem of violent threats made online); Maras, supra, at *3 ("[T]here is a dark side to social media. In particular, these sites have been utilized as forums within which to engage in antisocial behaviors, such as harassment and bullying, and to communicate criminalized speech.”); Online Harassment, Pew Research Center (Oct. 22, 2014), http://www. pewmternet.org/files/2014/10/PI_Online Harassment_72815.pdf (reporting the prevalence of online harassment, including physical threats).

      . Aaron W. Brooks, Social Media 101, 29 No. 3 GPSolo 54, 55 (May/June 2012).

      . Id.