author: Conner, J. Warner, J.,

text:
    Benny Arzola MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-551
    District Court of Appeal of Florida, Fourth District.
    April 12, 2017

      Benny Arzola Martinez, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mai’k J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   EN BANC

Conner, J.

The defendant appeals an order denying his second motion for relief under Florida Rule of Criminal Procedure 3.800(a). He challenges his thirty-year sentence for DUI manslaughter on count one, arguing the sentence is illegal because it exceeds both the statutory maximum of. fifteen years and the lowest permissible sentence of twenty-two years under the Criminal Punishment Code. We affirm for two reasons: (I) relief is barred by collateral es-toppel; and (2) although the sentence is illegal, there is no manifest injustice to warrant an exception to the collateral es-toppel bar.

Pertinent Facts and Prior Proceedings

The defendant entered a negotiated plea of no contest on two counts of DUI manslaughter, one count of DUI with damage to property or person, and one count of DUI with serious bodily injury. In exchange for his plea to the charges, the State agreed to a cap of thirty years’ incarceration, no life sentence, and the court’s discretion to impose community control or probation.

The defendant scored 380 points on his Criminal Punishment Code (CPC) score-sheet. Absent a plea agreement, the minimum permissible sentence was twenty-two years in prison on each count of DUI manslaughter, and because his sentencing points exceeded 363, the court could have sentenced him to life in prison on each of the DUI manslaughter counts. § 921.0024(2), Fla. Stat. (2007).

In compliance with the plea agreement, the court sentenced the defendant to thirty years in prison on one count of DUI manslaughter; fifteen years on the second count of DUI manslaughter, to be served concurrently; one year of probation for count three, DUI with property damage; and two years community control followed by three years’ probation on count four, DUI with serious bodily injury,

At sentencing, the trial judge stated:

[M]y intent of this sentence is to give a 30-year sentence, plus the two years community control and the four—four years probation. That’s the full intent of the sentence. I structured it in the legal way that I felt was appropriate and the prosecutor had recommended and I feel appropriate also. The fact that he scores 22 years on the guideline scoresheet and the guideline scoresheet states in it on— on—in the back portion that the maximum sentence is the statutory maximum for the primary and additional offenses as provided in the statute, unless the lowest permissible sentence in the Code exceeds the statutory maximum. Such sentence may be imposed concurrently or consecutive. Total sentencing points are greater than equal to 363, a life sentence may be imposed.. So. I could have imposed a life sentence. The Plea Agreement called that they couldn’t impose life sentence. Therefore, the maximum I could impose is what I imposed. My issue is if the maximum computation is 22 years on the scoresheet, uh, are you—is there a gray area between 22 years and life? And the State believes I’m comfortable going ahead and giving the sentence I gave as—I can give anything up to life and I would have been permitted to give 30 years on this legally and—and within the law, correct? ,.. But I want to make it very clear on the record that my intent, so if anybody reviews this, was to give him a 30-year sentence, followed by two years community control, followed by three—four years probation. That’s my intent fully. I could have structured it 15 on—on—I mean 22 on one count, eight on the second count, uh, and—and—and then, uh, and then the—the probation, the same way it was ... Uh, but I could give 22 and eight, it comes out the exact same, there’s no difference. And maybe I’m making too much of this, but I like to make everything clear now, because three, four, five, ten years from now, who knows, people won’t have knowledge that we have of this case now.

On direct appeal, the defendant argued that his sentences on the DUI manslaughter counts were illegal because the sentencing points on his scoresheet were added incorrectly, yielding a sentence for each count which exceeded the maximum statutory sentence. We affirmed the convictions and sentences without opinion. Martinez v. State, 46 So.3d 61 (Fla. 4th DCA 2010).

In March 2011, the defendant filed a rule 3.800(a) motion alleging that his sentence on count one was illegal because it exceeded the lowest permissible sentence under the CPC of twenty-two years, citing section 921,0024(2), Florida Statutes (2011). The defendant argued, as to count one, that because his total point score exceeded 363 points, “[i]t was discretionary for [the trial court] to impose a life sentence.” (emphasis omitted). He further argued that, since the trial court did not impose a life sentence, the only sentence that could be imposed was twenty-two years. Making no mention of the plea agreement, the defendant argued the sentences on the other counts could not be changed because he was not attacking them. The motion included a one-sentence, conclusory statement that “[fjailure to correct the sentence on Count 1 will constitute manifest injustice.”

In response, the State argued that the defendant’s claim was barred by collateral estoppel because he raised an illegal sentence argument on direct appeal by contending his sentence exceeded what was allowed under his scoresheet. Additionally, the State argued that because there was a plea agreement for a cap of thirty years to avoid a life sentence, there was no manifest injustice because, upon resentencing, the court could impose the same total sentence on the DUI manslaughter counts in compliance with the plea agreement. In reply, the defendant did not further address the manifest injustice argument.

The trial court ordered, a supplemental response from the State., directing the State to “[c]ite to authority showing that the sentence on count 1 is not illegal or that the Defendant is not entitled to resen-tencing due to an illegal sentence on count 1.” In supplemental response, the State again relied on its arguments in its previous response that the trial court intended to give a total sentence of thirty years, and added the quotation above of the trial judge’s statements explaining the sentencing intention and various options to achieve the plea agreement. In reply to the State’s supplemental response, the defendant argued that the State’s position in this case was inconsistent with its position in Cillo v. State, 913 So.2d 1233 (Fla. 2d DCA 2005), wherein the State conceded that an illegal sentence resulted in a manifest injustice, and the collateral estoppel bar did not apply. Id. at 1233.

The trial court agreed with the State and denied the rule 3.800(a) motion. We affirmed without opinion. Martinez v. State, 95 So.3d 241 (Fla. 4th DCA 2012).

In May 2013, the defendant filed a rule 3.850 motion raising six grounds for relief, one of which again argued error in the imposition of the sentence on count one. The defendant argued the trial court committed fundamental error by imposing a sentence that exceeded both the statutory maximum for DUI manslaughter and the lowest permissible sentence under the CPC. The trial court denied relief based on collateral estoppel. We again affirmed without opinion. Martinez v. State, 155 So.3d 361 (Fla. 4th DCA 2014).

In October 2014, the defendant filed the current rule 3.800(a) motion, once again attacking the thirty-year sentence on count one. He argued that his sentence resulted in manifest injustice apparent on the face of the record. He relied on Rigueiro v. State, 132 So.3d 853 (Fla. 4th DCA 2013). He argued it would be improper for the trial court to resentence him on the other counts notwithstanding the benefit he received from the State’s agreement.

The State again responded that collateral estoppel prevented the defendant from raising the same illegal sentencing arguments contained within his direct appeal, his first rule-3.800(a) motion, and his more recent rule 3.850 motion. The State argued the sentence on count one was not illegal because the court could impose consecutive sentences on counts one and two to reach the same result, citing Sands v. State, 899 So.2d 1208 (Fla. 5th DCA 2005). The trial court agreed with the State and denied the motion. From this order, the defendant gave notice of appeal.

Appellate Analysis

Our supreme court has held that collateral estoppel bars successive claims to relief under rule 3.800(a). State v. McBride, 848 So.2d 287, 288 (Fla. 2003). The court explained:

“Collateral estoppel is a judicial doctrine which in general terms prevents identical parties from relitigating the same issues that, have already been decided.’-’ Under Florida law, collateral estoppel, or issue preclusion, applies when.“the identical issue has been litigated between the same parties or their privies.”

Id. at 290-91 (citations omitted). But, “collateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice.” Id. at 292. The defendant argues the manifest injustice exception applies here. We disagree.

The State concedes that the thirty-year sentence on count one is illegal, where it exceeds both the statutory maximum of fifteen years and the lowest permissible sentence under the CPC of twenty-two years. So, the questions to be answered are whether collateral estoppel bars the defendant’s successive claim that the sentence is illegal; and if so, whether manifest injustice prevents its application in this case.

Here, the defendant raised the identical issue—that his sentence on count one was illegal—in a prior 3.800(a) and 3.850 motion. In each instance, his claim was rejected and we affirmed on appeal. Because he has raised the identical issue in two prior proceedings, collateral estoppel bars his claim in the current 3.800(a) motion unless the manifest injustice exception applies. See State v. McBride, 848 So.2d at 291.

Under the CPC, given the total sentencing points, the trial court was required, absent a valid reason for departure, to sentence the defendant to the lowest permissible sentence for each crime. § 921.0024(2), Fla. Stat. (2007) (“The lowest permissible sentence is the minimum sentence that may be imposed by the trial court, absent a valid reason for departure.”). Thus, absent a plea agreement, the trial court could have imposed a twenty-two year sentence on both counts one and two and run them consecutively. Alternatively, the trial court could have imposed two life sentences. Either alternative would have been a greater sentence than the thirty years the defendant received. Only the State’s agreement to cap his sentence at thirty years enabled the trial court to depart from imposing the lowest permissible sentence for both counts. See § 921.0026(2)(a), Fla. Stat. (2007) (authorizing a departure from the lowest permissible sentence from legitimate, uncoerced plea bargain). We therefore answer the second question in the negative. Manifest injustice does not result from applying collateral estoppel here.

Our conclusion is also dictated by our prior decision in Dennard v. State, 157 So.3d 1055 (Fla. 4th DCA 2014). Although Dennard did not involve an agreement by the State to cap the sentence, we concluded that rule 3.800(a) relief was barred by collateral estoppel because the trial court could have imposed the same total sentence by restructuring periods of incarceration for each count, running legal sentences consecutively. Id.

The defendant argued below and on appeal that resentencing on the other counts is not permitted because he did not attack those sentences in his second motion. In support of his argument, he cites State v. Bynes, 121 So.3d 619 (Fla. 4th DCA 2013); Reynolds v. State, 116 So.3d 558 (Fla. 3d DCA 2013); Pitts v. State, 935 So.2d 634 (Fla. 2d DCA 2006); and Wilhelm v. State, 543 So.2d 434 (Fla. 2d DCA 1989). We are not persuaded by the defendant’s argument because the cases upon which he relies do not reflect that guilt was determined by a plea agreement, as was the case here.

Instead, we agree with the State and are persuaded by the Fifth District’s reasoning in Sands. There, Sands was sentenced under a plea agreement covering two separate cases involving a total of six charges. Sands, 899 So.2d at 1209. Sands filed a rule 3.800(b) motion attacking the sentence for only one count, contending the offense was a second degree felony, rather than a first degree felony; and, thus, the sentence imposed was illegal as it exceeded fifteen years. Id. at 1209-10. For that count, the trial court imposed a sentence of 24.6 years of incarceration, followed by five years of probation, to be served concurrently with the sentence imposed for another count. Id. at 1209.

The trial court granted the motion, and reduced the sentence for the contested count to 9.6 years of incarceration, followed by 5.4 years of probation. Id. at 1210. The trial court then ran the sentence for the contested count consecutive to the sentence on another count. Id. Sands argued he had limited his request for relief to the incarceration imposed for the contested count and that, by making that sentence consecutive to another sentence and revising the probation period, the trial court was restructuring a part of the sentence that was not before the court. Id. In response, the trial court stated that “[t]he parties bargained for a cap of 24 point 6 months [sic], a cap. I was able to operate within that framework.” Id. (alterations in original).

Relying on its precedent, the Fifth District rejected the argument that the sentence not attacked by a postconviction motion cannot be restructured, and affirmed the restructuring to accomplish the goal of the plea bargain, so long as the restructuring is not vindictive. Id. at 1210-11; see also Buchanan v. State, 781 So.2d 449, 450 (Fla. 5th DCA 2001) (“A trial court can legally restructure a defendant’s sentences by changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive.”); Tilley v. State, 871 So.2d 294, 295 (Fla. 5th DCA 2004) (holding that a sentence can be restructured in a manner that effectuates the plea agreement). The restructured incarceration sentence was approved on appeal, but the restructured probation sentence was reversed because it exceeded the plea agreement. Sands, 899 So.2d at 1211.

Where there is a plea agreement for a cap on sentencing involving multiple charges, we agree that, when a defendant challenges a sentence on only one count, the trial court is not precluded from restructuring the sentence imposed on one or more unchallenged counts. There can be restructuring, so long as principles of double jeopardy are not violated. Florida case law recognizes the importance of plea agreements. See, e.g., Lester v. State, 15 So.3d 728, 733 (Fla. 4th DCA 2009) (Gross, C.J., concurring specially) (“Due to the crush of numbers, plea bargaining has come to be recognized as an integral component of the criminal justice system.”). It also recognizes that both sides are entitled to the benefit of their bargain. Tilley, 871 So.2d at 295. In the context of a plea bargain, to restrict resentencing to the illegal sentence on one count and ignore the aggregate effect of the reduced sentence on the remainder of the sentences, gives the defendant a greater benefit than bargained for. It provides the State less than it bargained for. And, it defeats the trial court’s effort to impose a fair and proper sentence that comports with the initial sentencing goal.

The application of the manifest injustice exception in this case comports with the harmless error analysis to be applied in analyzing rule 3.800(a) relief. See Brooks v. State, 969 So.2d 238 (Fla. 2007).

The dissent suggests, however, that since the McBride court found no manifest injustice because the defendant was serving a concurrent legal sentence of the same length for another charge, then the converse must be true. That is, if the defendant is not serving a concurrent legal sentence of the same length for another charge, manifest injustice exists. A close reading of McBride reveals the flaw in this syllogism. As the court explained, there was no manifest injustice in McBride, not only because the defendant was serving a concurrent sentence of the same length, but also because the trial court could have imposed an even longer sentence for the offense upon resentencing. Id.

A review of recent cases involving rule 3.800(a) relief reflects that prevalent theme: Manifest injustice occurs only when the application of collateral estoppel would result in the defendant serving a longer illegal sentence than a restructured legal sentence imposed upon remand. See Brinson v. State, 995 So.2d 1047, 1049 (Fla. 2d DCA 2008); Allen v. State, 989 So.2d 731, 732 (Fla. 4th DCA 2008); King v. State, 974 So.2d 632, 634 (Fla. 4th DCA 2008); Morrison v. State, 932 So.2d 533, 534 (Fla. 3d DCA 2006).

Where a defendant has been sentenced on multiple charges, there must come a time in which a facially illegal sentence must stand, even under rule 3.800(a), After multiple failed attempts at l’edress, regardless of whether a concurrent legal sentence of equal length was initially imposed, the sentence should stand so long as it is legally permissible on resentencing to reimpose the same total years received, using some combination of concurrent and consecutive legal sentences.

The dissent asserts that a defendant cannot agree to an illegal sentence, even under a plea agreement, citing Williams v. State, 500 So.2d 501, 502 (Fla. 1986) and Ferguson v. State, 804 So.2d 411, 411 (Fla. 4th DCA 2001). That principle is pertinent to the threshold determination of whether a sentence is illegal. However, it is important to note that Williams and Ferguson granted rule 3.800(a) relief in situations in which there would have been a manifest injustice to deny relief because the illegal sentence improperly extended the total length of a sentence which would not have been possible if the sentence had been legally imposed. Williams, 500 So.2d at 502-03; Ferguson, 804 So.2d at 411-12.

There is no Florida case which holds that an illegal sentence under a plea agreement must be corrected, when collateral estoppel applies to bar the claim and there is no manifest injustice, because the same cumulative total term of years could be imposed on resentencing. To hold as such would be to elevate form over substance, erasing the need for justice to have finality with the passage of time, and would violate principles of harmless error and the “could-have-been” imposed test.

The dissent concludes with the statement: “a reversal for a resentencing could be as simple as a remand for restructuring; nevertheless, an illegal sentence should be made legal to prevent a manifest injustice and to preserve the integrity of judicial sentencing practices.” Resentenc-ing, however, is never “simple” for the victim or the victim’s family, particularly where the crime resulted in death or severe emotional or physical trauma. If finality means anything, it means putting an end to the reopening of old wounds. Our judicial system is not designed to achieve perfection; it is designed to achieve fairness.

Conclusion

We hold that collateral estoppel bars successive 3.800(a) motions, alleging an illegal sentence imposed on one of multiple charges pursuant to a plea agreement, where the aggregate period of incarceration can be achieved in resentencing by the imposition of legal sentences on the multiple charges, thereby avoiding any manifest injustice.

Having determined that the trial court properly decided that the defendant’s second rule 3.800(a) motion was collaterally barred as successive and there is no manifest injustice to the sentence imposed for count one, we affirm the trial court’s denial of relief.

Affirmed,.

Ciklin, C.J., May, Damoorgian, Gerber, Levine, Forst, Klingensmith, and Kuntz, JJ., concur.

Warner, J., dissents with opinion, in which Gross and Taylor, JJ., concur,

Warner, J.,

dissenting.

Because appellant’s sentence is illegal, and he is not serving any concurrent legal sentence of the same length, I conclude that despite the fact that this is a successive claim, he is entitled to relief from an illegal sentence. We ourselves have, in an en banc opinion, addressed and corrected an illegal sentence, despite the fact it was a second successive motion. See Wilson v. State, 669 So.2d 1071, 1072 (Fla. 4th DCA 1996).

In State v. McBride, 848 So.2d 287 (Fla. 2003), our supreme court explained that Florida Rule of Criminal Procedure 3.800(a), which allows for the correction of an illegal sentence at any time, “is intended to balance the need for finality of convictions and sentences with the goal of ensuring that criminal defendants do not serve sentences imposed contrary to the requirements of law.” Id. at 289 (emphasis added) (quoting Carter v. State, 786 So.2d 1173, 1176 (Fla. 2001)). McBride noted that “[a] sentence is illegal if it imposes ‘a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.’” Id. (quoting Carter, 786 So.2d at 1178).

The majority concludes, and I agree, that the sentence of thirty years for a felony for which the statutory maximum punishment is fifteen years, and the lowest permissible sentence under the criminal punishment code is twenty-two years, is illegal. Thus, the thirty year sentence is a sentence that no judge could impose under the body of sentencing law. Although appellant entered into a negotiated sentence cap, a defendant cannot agree to an illegal sentence, even under a plea agreement. Williams v. State, 500 So.2d 501, 502 (Fla. 1986), receded from on other grounds, Quarterman v. State, 527 So.2d 1380 (Fla. 1988); see also Ferguson v. State, 804 So.2d 411, 412 (Fla. 4th DCA 2001). Appellant did not agree to a thirty year sentence for a single count.

Where a sentence is illegal and no legal sentence has been imposed, the court must impose a legal sentence. In McBride, the Florida Supreme Court held that “collateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice.” McBride, 848 So.2d at 292. The court found that even though one of McBride’s sentences was illegal, as he was serving a concurrent sentence of the same length, “applying collateral estoppel to his successive motion will not result in a manifest injustice.” Id. The converse of that pronouncement is that where a defendant is not serving a concurrent sentence of the same length, then a manifest injustice has occurred in the illegal sentence. The mere possibility that the trial court could have imposed a legal sentence does not cure the error in failing to correct an illegal one. See, e.g., Cooper v. State, 960 So.2d 849, 851 (Fla. 1st DCA 2007). This is consistent with the rule 3.800(a) requirement that a motion to correct an illegal sentence may be brought at any time. It is also consistent with the First District’s pronouncement that “[a] manifest injustice occurs when a defendant’s sentence exceeds the statutory maximum.” Eason v. State, 932 So.2d 465, 467 (Fla. 1st DCA 2006).

The need for finality should not outweigh the substantive due process concerns that a defendant is being sentenced not based upon the law, but upon a mistake. Judges have tremendous discretion in sentencing. When they exceed the statutory bounds of that discretion, a sentence should be corrected, even if that simply means restructuring the sentence to fall within statutory bounds. Otherwise, we are not adhering to the rule of law.

On this record, the sentencing judge firmly stated that he would sentence appellant to thirty years in prison. Thus, a reversal for a resentencing could be as simple as a remand for restructuring; nevertheless, an illegal sentence should be made legal to prevent a manifest injustice and to preserve the integrity of judicial sentencing practices.

Gross and Taylor, JJ., concur.

      . Judge Conner and I have presented different opinions as to how the lowest permissible sentence should be calculated where there are multiple counts at sentencing. See Dennard v. State, 157 So.3d 1055, 1057, 1061 (Fla. 4th DCA 2014) (Conner, J., concurring; Warner, J,, dissenting).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Henry Lee JONES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D14-4360
    District Court of Appeal of Florida, Fourth District.
    April 12, 2017

      Carey Haughwout, Public Defender, and Stacy Niles Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant Henry Jones appeals his convictions of first degree murder with a firearm and burglary of a dwelling with assault or battery. For the reasons explained herein, we hold that the trial court reversibly erred during the voir dire phase of jury selection by barring Appellant’s attorney from questioning prospective jurors regarding their attitudes on interracial cidme. As such, we remand for a new trial.

Background

The relevant facts on appeal are as follows. During voir dire, Appellant’s attorney sought to question the prospective jurors about their attitudes regarding a black defendant who was accused of murdering a white victim. She began, “[s]o the one thing I didn’t mention, though, the other day was that the alleged victim in the case is—.” She was about to say “white,” but the prosecutor objected to the question for being “prejudicial” and “improper.” In response, Appellant’s attorney explained why she wanted to ask the question: “I think that historically ... there’s been times where jurors are, tend to be more impacted by the race of the defendant if the victim is white and I think that that’s a legitimate issue to bring up and broach .... ” The trial court sustained the objection, explaining:

It’s certainly appropriate to inquire because your client is black, if anybody has any prejudice, race, sympathy, bias, prejudice because of that. That’s perfectly acceptable. But we’re not going to get into a racial, you know, we got a white, white family that’s a victim or a white victim and a black defendant, all that kind, let’s minimize the race other than what you feel you have to ask for bias and prejudice, if they could be a fair juror. ... I’ll sustain the objection.

Although the trial court did not allow questions about interracial violence, it did allow Appellant’s attorney to ask the prospective jurors whether they harbored racist attitudes generally. For instance, Appellant’s attorney asked the jurors, “[d]oes anyone think that there’s any way that they might think in some regard, well, maybe [Appellant] has more of a propensity to be violent or more of a propensity to commit any type of crime at all based on race? Does anyone think that might weigh in?” Appellant’s attorney asked similar questions on two more occasions. Each time, the jurors answered in the negative.

Once the jury was empaneled, defense counsel made a motion “to strike the panel because [she] was not permitted to ask the jurors whether they would be biased in this case based on the fact that [Appellant] 'is an African-American and the fact that the victim is white.” The court again denied Appellant’s request.

Analysis

We review the trial court’s decision to limit questions during voir dire for an abuse of discretion. Hoskins v. State, 965 So.2d 1, 13 (Fla. 2007).

We begin by noting Florida Rule of Criminal Procedure 3.300(b), which states that a defendant has a basic right to examine prospective jurors: “Counsel for both the state and defendant shall have the right to examine jurors orally on their voir dire.” There are generally no bright line rules “to determine the limits that the trial court may impose on voir dire.” Mendez v. State, 898 So.2d 1141, 1143 (Fla. 5th DCA 2005).

“The purpose of voir dire is to ‘obtain a fair and impartial jury, whose minds are free of all interest, bias, or prejudice Hoskins, 965 So.2d at 13 (quoting Ferreiro v. State, 936 So.2d 1140, 1142 (Fla. 3d DCA 2006)). To obtain a fair and impartial jury, and for “voir dire examination of jurors ... to have any meaning, counsel must be allowed to probe attitudes, beliefs and philosophies for the hidden biases and prejudices designed to be elicited by such examination.” Lowe v. State, 718 So.2d 920, 923 (Fla. 4th DCA 1998). As such, “[a] court may not preclude a party from inquiry into bias bearing on a matter that is at the heart of the defendant’s case.” Hillsman v. State, 159 So.3d 415, 420 (Fla. 4th DCA 2015) (quoting Ingrassia v. State, 902 So.2d 357, 359 (Fla. 4th DCA 2005)).

As one of our sister courts concluded, inquiry regarding interracial crime can be a “legitimate question.”

Because the defense was concerned that the racial difference between [the defendant] and [the victim] would surface ... it asked on voir dire whether any potential juror would be biased because of a “personal confrontation with a member of another race?” If everyone were color blind, the question would have been unnecessary. Everyone is not. Based on the facts of this case, it was a legitimate question. It was an appropriate question regardless of the race of the potential juror. The question was designed to make the jurors commit to color blindness.

F.J.W. Enters., Inc. v. Johnson, 746 So.2d 1145, 1147 (Fla. 5th DCA 1999) (emphasis added).

Similarly, in Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), the Supreme Court of the United States held “that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” Id. at 36-37, 106 S.Ct. 1683. The Court took issue with the trial court barring defense counsel during voir dire from questioning jurors about their attitudes toward interracial crime. Id. Admittedly, the Court in Turner vacated only the capital sentence, not the adjudication of guilt. Id. at 37, 106 S.Ct. 1683. However, the principle of permitting defense counsel great latitude in eliciting attitudes about race during jury selection need not be limited to capital cases. The stakes for the defendant are still high in non-capital trials for first degree murder.

In a concurrence in Turner, Justice Marshall, joined by Justice Brennan, argued the Court should have also vacated the adjudication of guilt: “I believe that a criminal defendant is entitled to inquire on voir dire about the potential racial bias of jurors whenever the case involves a violent interracial crime.” Id. at 45, 106 S.Ct. 1683 (Marshall, J., concurring) (emphasis added); see also Aldridge v. United States, 283 U.S. 308, 311, 51 S.Ct. 470, 75 L.Ed. 1054 (1931) (“[T]he defendant was entitled to have the jurors asked whether they had any racial prejudice, by reason of the fact that the defendant was a negro and the deceased a white man .... ”).

Reversing and remanding for a new trial is a decision not to be taken lightly, considering the emotional toll on the victim’s family. However, we must also be cognizant of the rights of the defendant and our own precedent. This Court has reversed adjudications of guilt in separate contexts because trial courts improperly limited questions during voir dire. In Campbell-Eley v. State, 718 So.2d 327 (Fla. 4th DCA 1998), we reversed because the trial court forbade defense counsel from asking jurors whether they could fairly and impartially treat the death of a fetus and mother as only one murder instead of two. Id. at 328-29. In Moses v. State, 535 So.2d 350 (Fla. 4th DCA 1988), we reversed because the trial court would not allow defense counsel to ask jurors whether they harbored an unyielding bias against the defendant because of his status as a convicted felon. Id. at 352. In these cases, we sought to promote meaningful voir dire that was requested by defense counsel for the purpose of detecting hidden biases and prejudices. We reverse the instant case for the same reason.

Conclusion

We recognize that the trial court and State most likely sought to prohibit such questions only to not embroil the jury with the contentious topic of racism. This is commendable in the abstract. However, as in F.J.W. Enterprises, the banned inquiry was a “legitimate question” in the context of a case that involved a white victim and a black purported assailant. It was an abuse of discretion on the part of the trial court to deny the defense the opportunity to ask legitimate questions during voir dire regarding the prospective jurors’ attitudes toward interracial crime. Accordingly, this matter is reversed and remanded for a new trial.

Reversed and remanded.

Taylor, Conner and Forst, JJ., concur.

      . In light of our decision to remand for a new trial, we offer no opinion regarding the other issues raised by Appellant in his initial brief.


author: EVANDER, J.

text:
    James M. NEWTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4339
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017

      James M. Newton, Orlando, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

James Newton was convicted of DUI manslaughter and two counts of DUI with property damage. In March 2015, this court affirmed Newton’s convictions. Newton v. State, 160 So.3d 524 (Fla. 5th DCA 2015). Thereafter, Newton filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising fourteen claims. In March 2016, the trial court entered an order summarily denying Newton’s motion. Newton appealed, and we reversed as to claims eight, twelve, thirteen, and fourteen. We remanded for the trial court to either attach portions of the record refuting each of these claims or hold an evidentiary hearing. Newton v. State, 201 So.3d 1243 (Fla. 5th DCA 2016). On remand, the trial court attached additional documents to its order, but again summarily denied claims eight, twelve, thirteen, and fourteen. Newton then appealed the remanded order. We reverse the summary denial of Newton’s twelfth claim, but otherwise affirm.

At trial, the evidence established that on the evening in question, Newton and the victim left a bar in Newton’s pick-up truck. Approximately four miles later, the truck veered off the road, causing the driver to lose control of the vehicle. The truck then slid back across the road, went through a fence, collided with a power pole and tree, overturned, and came to rest upside down in a field. The victim was ejected from the truck and died as a result of blunt force trauma. Newton was found still trapped in the truck with his feet between the steering wheel and ceiling. Newton suffered significant injuries and had no recollection of the evening’s events.

Newton’s defense was that the victim was the vehicle’s driver. The State presented testimony from two expert witnesses, an accident reconstruction expert and a forensic engineer, who both opined that Newton had been the driver. Newton produced the testimony of Robert Drawdy, a retired traffic homicide investigator, who opined that the victim had been the driver.

In claim twelve of his motion for post-conviction relief, Newton alleged that his trial counsel was ineffective for failing to properly prepare Drawdy as the defense expert witness. Newton’s motion included an affidavit from Drawdy in which Drawdy claimed, inter alia, that defense counsel failed to discuss the case with him and failed to provide the exhibits he requested for trial. In summarily denying this claim, the trial court cited to various portions of Drawd/s trial testimony and concluded:

There is no evidence that the expert’s testimony was not credible or that he lost credibility; or that the expert was not provided required additional information. Therefore, the defendant has failed to demonstrate that trial counsel failed to properly prepare the expert witness and that the outcome of the case would have been different.

However, the essence of Newton’s claim was that Drawdy’s testimony would have been different and more effective, but for trial counsel’s alleged ineffectiveness during trial preparation. The transcript excerpts attached to the trial court’s order were insufficient to conclusively refute that claim.

On remand, the trial court must either attach records conclusively refuting Newton’s twelfth claim, or hold an evidentiary hearing.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

LAMBERT and EDWARDS, JJ., concur.


author: WALLIS, J.

text:
    WESTGATE PALACE, LLC, Appellant, v. Kristen PARR and Thomas Parr, Appellees.
    Case No. 5D16-1503
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017

      Art C. Young, Isaac R. Ruiz-Carus and Meredith M. Stephens, of Rissman, Barrett, Hurt, Donahue, McLain & Mangan, PA, Orlando, for Appellant.
    Sage Morris-Webster and Ronald S. Webster, of Webster Law Group, Orlando, for Appellees.
   WALLIS, J.

Westgate Palace, LLC (“Westgate”), appeals the final judgment rendered in favor of Kristen Parr and Thomas Parr following a jury trial. After trial, the trial court denied Westgate’s motions seeking a juror interview and a new trial. We reverse the trial court’s order denying Westgate’s motion to interview a juror. We also reverse the trial court’s order denying Westgate’s motion for a new trial with instructions to reconsider that motion following the juror interview.

In June 2012, Mrs. Parr traveled to Orlando to attend a convention at the Orange County Convention Center. Mrs. Parr was staying at the Westgate Palace Hotel, a facility owned and operated by Westgate. At approximately 7:30 p.m. on June 6, Mrs. Parr left her hotel room and was walking through the lobby towards the main exit when she slipped in a puddle of water and fell. X-rays later showed that Mrs. Parr fractured her kneecap in the fall. Mrs. Parr underwent surgery, which required the placement of several screws in her knee. The Parrs then filed a complaint against Westgate for negligence and loss of consortium.

The case proceeded to a jury trial on February 29, 2016. Before participating in the voir dire process, each member of the venire filled out a juror questionnaire. When voir dire began, the venire-members took an oath to tell the truth, and the trial court gave each potential juror the option of providing their answers privately. The questionnaire included the following two questions that are relevant to this appeal:

Have you or any member of your immediate family been party to any law suit?
Have you or any member of your family been accused, a complainant, or a witness in a criminal case?

Juror 121 answered “no” to both questions. During questioning, some of the potential jurors, but not Juror 121, were asked if they had been involved in any prior lawsuits. Juror 121 was also the only juror who admitted to being excited about receiving the jury duty notice, stating:

[Juror 121]: First, thing, I only see this on TV and it’s great to serve, you know, just to be a servant and do something to help.
[The Parrs’ Counsel]: That’s wonderful.
[Juror 121]: Whatever you need, you know, it’s just a part that I just always wanted to be a part of, yeah.

Juror 121 also acknowledged that she had lived in Dallas, Texas, and had resided in Orange County, Florida for only the last five years. Ultimately, the parties picked a six-member jury, which included Juror 121.

The jury found Westgate forty-five percent negligent and Mrs. Parr fifty-five percent negligent. The jury awarded Mrs. Parr a total of $396,725.62, including $10,000 for past lost earnings, $61,726.62 in past medical expenses, $125,000 in future medical expenses, $150,000 for past pain and suffering, and $50,000 for future pain and suffering. The jury awarded Mr. Parr $7500, including $3750 in past loss of consortium and $3750 in future loss of consortium.

After trial, Westgate filed motions to interview Juror 121 and for a new trial. In its motion to interview Juror 121, West-gate noted that the jurors swore an oath to fill out the juror questionnaire and answer voir dire questions truthfully, and that Juror 121 did not raise her hand during voir dire when the panel was asked whether they had been involved in any civil or criminal cases. Westgate alleged that its post-trial investigation revealed an extensive legal history for Juror 121, including twenty felony and misdemeanor charges for various drug possession and theft offenses dating from 1977 through 1995, a 1999 civil traffic infraction, and a 2004 Kansas tax warrant. Westgate alleged that Juror 121 had been convicted on seven criminal charges, four of which resulted in her incarceration. Westgate also alleged that Juror 121 filed for bankruptcy in 2005 and was involved in a divorce case in Kansas in 2004. Finally, Westgate claimed that Juror 121 dishonestly stated in her questionnaire that she had lived in Orange County, Florida for only five years when she had actually resided there from 1977 through 1999, before returning in 2005 and filing for bankruptcy. Westgate argued that Juror 121’s concealment of her past criminal and civil litigation prevented it from making an informed decision as to whether to exercise a peremptory challenge. Westgate also claimed that Juror 121 neglected to correct her questionnaire despite being given the opportunity. Attempting to link Juror 121’s alleged concealment with the merits of its case, West-gate noted that a major theme of its case concerned alleged false representations by Mrs. Parr about her cellphone usage at the time of the slip and fall incident. The trial court denied Westgate’s motions to interview Juror 121 and for a new trial.

We review orders rendered by the trial court disposing of motions for juror interviews for an abuse of discretion. Barrios v. Locastro, 166 So.3d 863, 865 (Fla. 4th DCA 2015). Florida Rule of Civil Procedure 1.431(h) permits a party to request an interview with a juror within ten days after the verdict if the party believes there are grounds for a legal challenge to the verdict. A trial court should grant a juror interview only when the motion contains sworn factual allegations that, if proven, would warrant a new trial. Egitto v. Wittman, 980 So.2d 1238, 1240 (Fla. 4th DCA 2008). “While trial courts should be hesitant to grant motions for post-trial juror interviews, ‘[w]here there are reasonable grounds to believe concealment of a material fact has taken place, a party is entitled to conduct a jury interview.’ ” Barrios, 166 So.3d at 865 (alteration in original) (quoting Sterling v. Feldbaum, 980 So.2d 596, 598 (Fla. 4th DCA 2008)).

Trial courts apply a three-part test when ruling on a motion to interview a juror:

First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.

De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla. 1995) (citing Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379, 380 (Fla. 2d DCA 1972)). Materiality means that “the omission of the information prevented counsel from making an informed judgment—which would in all likelihood have resulted in a peremptory challenge.” Barrios, 166 So.3d at 865 (quoting Duong v. Ziadie, 125 So.3d 225, 227 (Fla. 4th DCA 2013)). Although all litigation history is relevant, materiality and remoteness depend on the facts of each case. Egitto, 980 So.2d at 1240; Leavitt v. Krogen, 752 So.2d 730, 733 (Fla. 3d DCA 2000).

We find that the trial court abused its discretion in denying Westgate’s motion to interview Juror 121. Westgate’s post-trial research allegedly revealed twenty criminal cases against Juror 121; seven resulted in convictions, of which four resulted in a period of her incarceration. Juror 121’s alleged concealment of her past, combined with her enthusiasm to serve as a juror, deprived Westgate of the ¡opportunity to make an informed judgment about its use of a peremptory challenge. See De La Rosa, 659 So.2d at 241; Leavitt, 752 So.2d at 732-33. Furthermore, unlike Egitto, where the party questioned the juror on some, but not all, of the juror’s litigation history, Westgate had no indication that Juror 121 had any litigation history, and thus it had no reason to question her regarding her attitude towards the courts or her concept of justice. Cf. 980 So.2d at 1240.

We reject the Parrs’ argument that Westgate did not exercise diligence during voir dire because its questions were too imprecise to elicit a response from Juror 121. We find that this argument lacks merit because Juror 121’s questionnaire and her responses during jury selection gave Westgate’s attorney no reason to delve further into her litigation or criminal history. See Taylor v. Magana, 911 So.2d 1263, 1270 (Fla. 4th DCA 2005). The trial court informed the potential jurors that they should answer questions posed to others if those questions were relevant to them as well. Westgate’s counsel had nothing to work with regarding past litigation or criminal history for Juror 121.

We reverse the trial court’s order denying Westgate’s motion to interview Juror 121 and remand with instructions to conduct the requested interview. Thereafter, the trial court must apply the De La Rosa factors to determine whether Westgate is entitled to a new trial. Because the trial court may ultimately award a new trial in this case, we find it premature to rule on the remaining issues. Accordingly, we stress that our reversal is without prejudice to Westgate re-raising those issues in the event that the trial court does not award Westgate a new trial.

REVERSED and REMANDED with Instructions.

TORPY and LAMBERT, JJ., concur.

      . Juror 121 disclosed her divorce on the juror questionnaire.


author: LAMBERT, J.

text:
    Renaldo J. BELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1417
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAMBERT, J.

Following a jury trial, Renaldo Bell was convicted of one count of fighting and baiting animals, two counts of cruelty to animals, and one count of attending the fighting or baiting of animals, all counts being third-degree felonies. For the convictions for fighting and baiting animals and cruelty to animals, the trial court sentenced Bell, on each count, to serve one year in the county jail, with two days of jail credit, to be followed by four years of probation, with the sentences to run concurrently. As to his conviction for attending the fighting or baiting of animals, Bell was sentenced to serve a concurrent two days in jail with two days of jail credit and, thereafter, four years of probation, but his probation on this count was ordered to run consecutively to the four years of probation imposed on the other three counts. The court also ordered Bell to pay a $3000 “donation” to the ASPCA, which the court described in its written order as “miscellaneous court related charges.”

In this appeal, Bell does not challenge his convictions, but he raises two issues with his sentences. As to his sentence on the conviction for attending the fighting or baiting of animals, Bell argues that because the probation portion of this sentence does not immediately follow the two-day incarceration sanction and is instead delayed until after he completes the four years of probation from his other convictions, his sentence on this count is illegal because of the gap between the conclusion of his jail sentence and the start of probation. See Turner v. State, 551 So.2d 1247, 1248 (Fla. 5th DCA 1989) (remanding for resentencing because “the nonincarcerative portion of a split sentence must immediately follow the prison sanction”.

We find that Turner is distinguishable from the present case and affirm on this issue. In Turner, the defendant was sentenced to serve twenty-four months in prison followed by thirty-six months of probation on one count and to a consecutive 364 days in jail on a second count after the entire sentence on the first count was completed. Id. at 1247. In contrast, Bell received an aggregate sentence in this case of one year in jail that will be completed in full before he begins the eight years of probation. See Horner v. State, 617 So.2d 311, 313 (Fla. 1993) (holding that “when there is one sentencing that includes incarceration and either community control or probation on a variety of counts or cases, a probationary split sentence does not create [improper] gap time so long as” there is a single collective probationary period that immediately follows a single collective period of incarceration); Hatton v. State, 689 So.2d 1195 (Fla. 4th DCA 1997) (holding that “incarcerative portions of all counts must be completed before the probationary portion of any count begins”). Here, unlike in Turner, there is no gap or interruption between the incarcerative and non-incarcerative portions of Bell’s entire sentence, and thus, the sentencing structure utilized in the instant case is lawful.

We do, however, find merit in Bell’s second argument. Bell contends, and the State agrees, that there is no statutory authority permitting the trial court to order him to make a $3000 donation to the ASPCA and that absent such authority, the imposition of the fine or cost is improper. See Hayes v. State, 686 So.2d 602, 602-03 (Fla. 2d DCA 1996) (striking from a defendant’s sentence an assessment to the Hillsborough County Court Improvement Fund as not being authorized under any existing statute as either a fine or cost); Antosh v. State, 510 So.2d 1158, 1159 (Fla. 3d DCA 1987) (striking a probationary condition that the defendant make a monetary contribution to a named charity because “there is no statutory authority which authorizes a trial court to impose as a condition of probation that the defendant make a contribution to a charity”). Accordingly, while we understand the trial court’s rationale for imposing this sanction, we nevertheless reverse and remand for the trial court to strike the $3000 donation to the ASPCA from the sentence.

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER and ORFINGER, JJ., concur.

      . § 828.122(3), Fla. Stat. (2013).

      . § 828.12(2), Fla. Stat. (2013).

      .§ 828.122(3)(h), Fla. Stat. (2013).

      . American Society for the Prevention of Cruelty to Animals.

      . Bell has not challenged the legality of each individual sentence.


author: RAY, J., OSTERHAUS, J., MAKAR, J.,

text:
    HARBOUR POINTE OF PERDIDO KEY CONDOMINIUM ASSOCIATION, INC., Appellant, v. James HENKEL, Appellee.
    CASE NO. 1D15-3123
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017.
    Jay Roberts of Becker & Poliakoff, P.A., Ft. Walton, for Appellant.
    Appellee James Henkel, pro se.
   RAY, J.,

This appeal originates from a housing discrimination complaint filed by James Henkel with the Florida Commission on Human Relations (“Commission”) pursuant to the Fair Housing Act, sections 760.20-760,37, Florida Statutes (2012). Mr. Henkel alleged that Harbour Pointe of Perdido Key Condominium Association, Inc. (“Association”) committed discriminatory housing practices by making modifications that created inaccessible routes and entries to public and common use areas at the condominium where Mr. Henkel resides. After an evidentiary hearing before the Division of Administrative Hearings, the Administrative Law Judge (“ALJ”) issued a recommended order to the Commission, concluding that Mr. Henkel had failed to establish that the Association discriminated against him based on his handicap and recommending dismissal of the complaint. The Commission disagreed with the ALJ’s conclusions of law, and the Association appealed the final order of the Commission.

We find merit in the Association’s argument that the Commission erred in its determination that the Association committed discriminatory housing practices by allegedly making modifications to the opening pressures of the entrance and exit doors of the condominium that rendered them non-compliant with the Fair Housing Act’s design-and-construction standards. While the ALJ found that “[t]he subject doors have opening pressures that vary, but are usually out of compliance with applicable Florida and Federal standards for handicap access,” the ALJ properly concluded that Mr. Henkel had not proven a prima facie case of discrimination because the Association did not design or construct the condominium, and the evidence was insufficient to show that the Association had modified the doors since ownership of the condominium was transferred and the Association became responsible for the management and operation of the condominium. See Harding v. Orlando Apartments, LLC, 748 F.3d 1128, 1134 (11th Cir. 2014) (holding that purchaser of apartment complex who was not involved in the design or construction of the dwelling was not liable for the failure of the apartment complex to comply with federal Fair Housing Act design-and-construction standards). Accordingly, we reverse the order under review and remand for further proceedings consistent with this opinion. In all other respects, the order is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

OSTERHAUS, J., CONCURS WITH OPINION; MAKAR, J., DISSENTS.

OSTERHAUS, J.,

concurring.

I am sympathetic to the difficulties faced by Mr. Henkel at his condominium and wish that the lobby doors would better allow him to move freely in and out of the building. But the merits of Mr. Henkel’s legal case must turn on the terms of the statute under which he sued. The problem with his Fair Housing Act (FHA), 42 U.S.C. § 3601, et seq., claim is that the law doesn’t allow Mr. Henkel to visit his accessibility problems arising from the design and construction of his building upon a subsequent owner of his building, the respondent condominium association in this case.

To be sure, § 3604(f)(3)(C) of the Act forbids discrimination connected with “the design and construction” of a covered dwelling. The Act specifically says:

(3) For the purposes of this subsection, discrimination includes—
(C) in connection with the design and construction of covered multifamily dwellings, a failure to design and construct those dwellings in such a manner that—
(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;
(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
(iii) all premises within such dwellings contain the following features of adaptive design:
(I) an accessible route into and through the dwelling[.]

In this case, however, the respondent did not design or construct Mr. Henkel’s building, nor make any alterations to the disputed door pressures after assuming ownership of the building. Rather, according to the facts found by the administrative law judge below:

• The condo was developed by an entity named Harbour Pointe Land and Finance, LLC, to whom Respondent is a successor in interest;
• “Respondent had no role in the design or development of the Condominium”;
• The subject entrance and exit doors have opening pressures that vary, but are usually out of compliance with applicable [standards]”;
• “Although the door pressures were out of compliance, Respondent did not install the doors and the evidence was insufficient to show that Respondent altered the doors since it took over operations”; and
• “Despite Petitioner’s allegations, the evidence does not support a finding that any of the door closers that are out of compliance have been altered since ownership of the Condominium was transferred and Respondent became responsible for management and operation of the Condominium.”

These findings were firmly supported by the testimony of multiple witnesses. In fact, the evidence indicated the door pressures aren’t even adjustable. A former association manager testified that in responding to Mr. Henkel’s complaint, “[w]e did have maintenance try to adjust the doors, but they were not adjustable.”

Because Respondent had nothing to do with the design and construction of the condominium’s lobby doors, the Act’s discrimination in § 3604(f)(3)(C) does not apply to it, or require it to fix the nonconforming doors. The FHA’s terms squarely visit design-and-construction discrimination on entities that discriminate “in connection with the design and construction.” And this court is not at liberty under the statute to turn subsequent property owners into guarantors of noncompli-ant designs and construction. Congress could have done it, but not us.

The Eleventh Circuit nailed this issue in Harding v. Orlando Apartments, LLC, 748 F.3d 1128 (11th Cir. 2014), in which a petitioner also attempted to shoehorn an FHA design-and-construction claim against a subsequent owner of his apartment complex. The Eleventh Circuit panel unanimously rejected the claim, finding the statute not to visit design-and-construction discrimination liability on subsequent owners.

Despite the fact that BHDR was not involved in the design or construction of the District, all of Harding’s claims that BHDR violated subsections (f)(1) and (f)(2) are alleged through the lens of the design-and-construction guidelines in subsection (f)(3). Harding alleged a series of inaccessible conditions resulting from Orlando Apartments’ initial failure to comply with the guidelines and argued that BHDR’s failure to remedy those conditions constitutes an independent act of discrimination prohibited by the FHA. Harding’s underlying premise is that § 3604(f)(3)(C) not only requires designers and builders to adhere to certain standards of accessibility but also imposes an ongoing duty on subsequent owners to ensure that a dwelling conforms to those standards. As the FHA’s plain text demonstrates, this premise is erroneous.

Harding at 1131. The Eleventh Circuit correctly noted that the statute’s text connects liability for design-and-construction-related discrimination explicitly to a dwelling’s actual design and construction: “discrimination includes .., —(C) in connection with the design and construction of [a covered dwelling], a failure to design and construct those dwellings in [a non-accessible] manner[.]” 42 U.S.C. § 3604(f)(3)(C) (emphasis added); Harding, 748 F.3d at 1132 (discussing the "plain text” and Congress’ intent). Whereas here, similar to the facts in Harding, the ALJ found that “Respondent had no role in the design or development of the Condominium .., [and had not] altered the doors since it took over operations.”

For these reasons, despite having sympathy for Mr. Henkel’s difficult situation, the text of the FHA prevents us from finding his condo association liable for discrimination and forcing it to modify or replace the doors.

MAKAR, J.,

dissenting.

James Henkel, wheel-chair bound and without a lawyer, sought to correct problems with three doors (entry, pool, and dock) that impeded his access to public spaces at the condominium complex where he resides. In his petition to the Florida Commission on Human Relations, he asked that the access he previously enjoyed be restored. He specifically said he was not asking for modifications to the design/construction of the doors, only that access be restored by, for example, ensuring that the closers on entry doors meet push-weight requirements so that he can push on doors and enter as he did in the past (“Condo management refuses to readjust these door opening force settings to accessible levels despite our many complaints at board meetings and repeated letters.”).

After a hearing, the administrative law judge (ALJ) found that the entry doors were out of compliance with push weight standards but concluded that no actionable claim based on door pressures existed, relying on an Eleventh Circuit case, Harding v. Orlando Apartments, LLC, 748 F.3d 1128, 1132 (11th Cir. 2014). That case held that subsequent owners need not comply with design-and-construction standards, which don’t apply to owners other than those who initially designed and constructed the housing in question. Id. at 1134. Here, the ALJ also concluded that the pool door added by the current owners had been brought into compliance and that Henkel was not permitted access to the dock as a non-slip owner.

The Florida Commission on Human Relations rejected the ALJ’s recommendation, concluding that although the design and construction standards only applied to new additions (such as the pool door), the failure to maintain the standards for preexisting features (e.g., pressures for the closers on the entry door) was actionable, citing to Question 21 in the Joint Statement of the HUD and DOJ:

21. May owners of covered multifamily buildings designed and constructed in compliance with the Fair Housing Act make subsequent changes to the building so that it no longer meets the Act’s requirements?
Original and subsequent owners of covered multifamily buildings that were designed and constructed in compliance with the Fair Housing Act’s design and construction requirements must maintain the building’s accessible features so that the building continues to meet the Act’s requirements,

(Italics added). Requiring subsequent owners to maintain a building’s original accessibility features makes sense; a gaping loophole would exist otherwise if subsequent owners could fail to maintain accessibility features such as door closers on the premise that doing so involves a modifying design or construction standards for which they aren’t legally responsible. Imagine if elevators/ramps aren’t maintained and became inoperable/impassible. This type of “failure to maintain” claim is neither novel nor extravagant. The Joint Statement is not the law—it’s only guidance—but courts have entertained such claims under the FHA. See, e.g., Mehta v. Beaconridge Improvement Ass’n, 432 Fed.Appx. 614, 616-17 (7th Cir. 2011) (“Under the FHA, a homeowner may sue a homeowners’ association if the association engages in invidious discrimination when failing to provide maintenance services or when limiting the use of privileges, services, or facilities associated with the homeowner’s dwelling.”); The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 714 (9th Cir. 2009) (“In common parlance, issues relating to ‘maintenance or repairs’ or ‘services or facilities associated with a dwelling tend to be issues arising after the tenant or owner has come into possession of the dwelling and sought out maintenance, repair, or services.”); Cox v. Phase III, Invs., CIV.A. H-12-3500, 2013 WL 3110218, at *7 (S.D. Tex. June 14, 2013) (section 3604(a) of the FHA has been “construed this provision to prohibit ‘failing or delaying maintenance or repairs’ of the plaintiffs dwelling because of race”); Matarese v. Archstone Pentagon City, 761 F.Supp.2d 346, 363 (E.D. Va. 2011) (individual with chemical sensitivity asserted claim that “neutral policy of routine maintenance” with regular paints was discriminatory, but failed to present “evidence of the application of this policy on others” with her disability); Savanna Club Worship Serv., Inc. v. Savanna Club Homeowners’ Ass’n, Inc., 456 F.Supp.2d 1223, 1230 (S.D. Fla. 2005) (“[I]n the context of planned communities, where association members have rights to use designated common areas as an incident of their ownership, discriminatory conduct which deprives them of exercising those rights would be actionable under the FHA.”); Congdon v. Strine, 854 F.Supp. 355, 363 (E.D. Pa. 1994) (on a claim that building elevator not maintained, owner demonstrated that “he had a regular elevator maintenance contract” and had made other accommodations to claimant, thereby defeating the claims).

Keep in mind that Henkel was not asking the Association to redesign or replace the doors, only that they be maintained by adjusting the closers to appropriate push-weights, which is not a request for a structural alteration or modification for which he must pay. If he wanted wider doorways, which would require demolition and new construction, he might be required to pay. 42 U.S.C.A. § 3604(f)(3)(a) (2017); § 760.23(9), Fla. Stat. (2017). But he just wants to get through the doorways like he did in the past. Door closers can be tricky to adjust, but that doesn’t provide a defense for not maintaining them.

Finally, Harding doesn’t apply here because that case involved a claim against a subsequent owner for accessibility problems created during the initial design and construction phase by the original owner when incorporating accessibility features was easier. As the Eleventh Circuit concluded, the sins of the original owner are not visited upon the subsequent purchaser. In contrast to Harding, as the Commission noted in this case, “there is no allegation that the Condominium in question was initially out of compliance with the applicable design-and-construction guidelines when it was built.” Instead, the original design met accessibility standards, which the subsequent purchaser is required to maintain. The Association is only being asked, at least as to the entry doors at issue, to maintain them push pressures at accessible levels, which seems a small lift. Affirmance of the Commission’s conclusion is proper,

      . The Commission’s Order did not dispute the ALJ's findings, nor make any attempt to state "with particularity in the order, that the findings of fact were not based upon competent substantial evidence.” § 120.57(1)(Z), Fla. Stat.

      . The Commission's decision and Judge Ma-kar’s opinion cite guidance from the joint statement of two federal agencies as the basis for extending the FHA's coverage to subsequent owners and to this particular Respondent. But the guidance they cite doesn't apply to the facts here. Question 21 of the Joint Statement of HUD and DOJ asked: "May owners of [covered dwellings] make subsequent changes to the building so that it no longer meets the Act’s requirements?” It is true that the guidance answered this question "no.” But Question 21 doesn't apply here because Respondent made no subsequent changes to the lobby doors.


author: BLACK, Judge.

text:
    Justine FREZZA, Appellant, v. Daniel L. FREZZA, Appellee.
    Case No. 2D16-1123
    District Court of Appeal of Florida, Second District.
    Opinion filed April 19, 2017.

      James E. Moon of Quintairos, Prieto, Wood & Boyer, P.A., for Appellant.
    Daniel L. Frezza, pro se.
   BLACK, Judge.

Justine Frezza (former wife) challenges the final judgment of dissolution of marriage, raising several issues on appeal. Because there are no transcripts of the proceedings below and the former wife failed to submit a statement of the evidence, we affirm. Due to an apparent conflict in the attorney’s fees provisions in the final judgment, however, we remand for clarification or correction.

“The appellant has the burden of providing a proper record to the reviewing court, and the failure to do so is ’usually fatal’ to the appellant’s claims.” Esaw v. Esaw, 965 So.2d 1261, 1264-65 (Fla. 2d DCA 2007) (quoting Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990)). In the absence of a record of the lower court proceedings, this court is precluded from reviewing the factual or legal basis for the trial court’s decisions regarding the tax refund, water bills, boat loan, past medical and child care expenses, and parental responsibility and decision making. See Jericka v. Jericka, 198 So.3d 661, 662-63 (Fla. 2d DCA 2015). “[W]e will only reverse where the error appears on the face of the judgment.” See Cranney v. Cranney, 206 So.3d 162, 164 (Fla. 2d DCA 2016). Having determined that there are no so such errors, we affirm these issues. Cf. id. at 165 (holding that the final judgment of dissolution was facially erroneous warranting reversal even in the absence of a transcript where the trial court awarded one party ultimate decision-making authority despite making a specific finding in the judgment that “both parties were capable of parenting the children”).

Regarding the award of attorney’s fees, paragraph 13 of the final judgment includes a finding that the former husband was entitled to recover his attorney’s fees from the former wife for causing unnecessary litigation:

[The, former husband] is claiming attorney fees due to unnecessary litigation caused by [the former wife]. This case initially went to trial on October 15, 2015[,] during which the parties announced they had reached complete agreement. [The former husband’s] attorney drafted a proposed judgment which [the former wife] refused to agree to.[] As a result, the trial had to be reset. [The former husband] is entitled to recover his attorney fees incurred as a result of [the former wife’s] actions. The amount of seven hours of attorney time at $300.00 per hour is reasonable.

The former wife contends that the trial court erred in awarding the former husband $2100 in attorney’s fees without considering the parties’ financial positions, the former husband’s need for fees, and the former wife’s ability to pay fees. See § 61.16(1), Fla. Stat. (2014); Arena v. Arena, 103 So.3d 1044, 1045-46 (Fla. 2d DCA 2013) (citing Rosen v. Rosen, 696 So.2d 697, 699 (Fla. 1997)). While an award of attorney’s fees in a dissolution proceeding pursuant to section 61.16 and Rosen requires specific findings of fact, to support the trial court’s entitlement determination, such findings may be made in the written final judgment or at the hearing. See Arena, 103 So.3d at 1046; Perez v. Perez, 100 So.3d 769, 771 (Fla. 2d DCA 2012). In the absence of a hearing transcript, we cannot say that the trial court erred in this regard.

The former wife also 'asserts that the trial court’s findings as to the amount of the attorney’s fees awarded are insufficient under Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985). She claims that the final judgment “simply indicates that the amounts are reasonable.” See Keeley v. Keeley, 899 So.2d 387, 389 (Fla. 2d DCA 2005) (holding that the final judgment of dissolution directing the former husband to pay the former wife’s attorney’s fees and costs was insufficient under Rowe because it stated simply that the total amounts “are reasonable time spent and hourly rates”). “[A]n award of attorney’s fees without adequate findings justifying the amount of the award is reversible even where the appellant has provided an inadequate record of the trial court proceedings.” Esaw, 965 So.2d at 1265; accord Voronin v. Voronina, 995 So.2d 1049, 1050 (Fla. 2d DCA 2008) (“[A]n order which fails to set forth the specific findings required by Rowe is fundamentally erroneous on its face.”). Contrary to the former wife’s assertion, the trial court did comply with Rowe as it made specific findings as to the reasonable number of hours of “attorney time” expended and the reasonable hourly rate for the “attorney time.” See Beck v. Beck, 852 So.2d 934, 938 (Fla. 2d DCA 2003) (holding that Rowe requires the trial court, in determining the amount of attorney’s fees to award, to make specific findings as to “the hourly rate [and] number of hours reasonably expended in the case”).

While the former wife’s contentions regarding paragraph 13 of the final judgment are unavailing, we do recognize an apparent conflict between paragraph 13 and a second attorney’s fees provision found in the final judgment. Paragraph E of the final judgment provides that “[e]ach party shall pay their own attorney’s fees.” In response to the former wife’s assertions of error as to paragraph 13 of the final judgment, the former husband cites paragraph E and argues that the trial court ordered the parties to pay their own attorney’s fees. Based on the limited record before us it is not clear whether one of the attorney’s fees provisions in the final judgment controls such that the other was included in error or whether the trial court meant for them to be read together such that the former wife would be responsible for the fees incurred by the former husband following her refusal to agree to the former husband’s proposed judgment. Therefore, the attorney’s fees provisions need to be clarified or corrected on remand. Cf. O’Connor v. O’Connor, 184 So.3d 1149, 1149 (Fla. 2d DCA 2015) (affirming final judgment of dissolution but remanding for correction of scrivener’s error); Lee v. Lee, 56 So.3d 819, 820 (Fla. 2d DCA 2011) (remanding for clarification of inherent conflict in the trial court’s treatment of certain assets in the equitable distribution); Wagner v. Wagner, 61 So.3d 1141, 1143 (Fla. 1st DCA 2011) (remanding “to the trial court for clarification of whether it intended to provide an unequal distribution of [the] property”).

Accordingly, we affirm the dissolution of marriage but remand for the clarification or correction of the attorney’s fees award.

Affirmed; remanded with instructions.

SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . The former wife asserts on appeal that she did not agree to the former husband’s proposed final judgment because it contained errors. The most notable error, according to the former wife, was in regard to the number of overnights the former husband claimed to spend with the parties’ minor children each year which in turn affected the former husband’s child support arrearages. The former wife argues that the former husband indicated in the proposed final judgment that he spends 156 overnights with the children despite allegedly claiming in a previous filing that he spends 104 overnights with the children. The former wife referenced this previous filing—a child support guidelines worksheet filed on August 6, 2015—repeatedly throughout the initial brief in support of her assertion that the former • husband’s proposed final judgment contradicted his prior claim regarding ovemights with the children. However, it was the former wife not the former husband who filed the child support guidelines worksheet at issue.


author: PER CURIAM.

text:
    Michael CURLS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3758
    District Court of Appeal of Florida, Second District.
    Opinion filed April 19, 2017
    Dane K. Chase of Chase Law Florida P.A., St. Petersburg, for Appellant.
   PER CURIAM.

Affirmed. See Tucker v. State, 726 So.2d 768 (Fla. 1999); Kirby v. State, 198 So.3d 15 (Fla. 2d DCA 2015); McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013); Doby v. State, 25 So.3d 598 (Fla. 2d DCA 2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Pratte v. State, 946 So.2d 1184 (Fla. 2d DCA 2006); Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Luttrell v. State, 513 So.2d 1298 (Fla. 2d DCA 1987); Small v. State, 556 So.2d 780 (Fla. 1st DCA 1990).

NORTHCUTT, BLACK, and LUCAS, JJ., Concur.


author: PER CURIAM

text:
    J.H., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1117
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017
    Robert Wesley, Public Defender, and Derreck Quarles, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM

J.H. petitions this court for issuance of a writ of habeas corpus releasing him from the custody of the Orange County Juvenile Detention Center following the trial court’s order finding him to be in indirect contempt of court and directing that he be detained for ten days. Because the trial court failed to follow the mandatory procedures for indirect contempt set forth in Florida Rule of Juvenile Procedure 8.150 and section 985.037, Florida Statutes (2017), we grant the writ and quash the order of contempt.

We recognize that J.H.’s ten-day detention has expired and that he was released, technically rendering the petition moot. However, there are several petitions pending in our court, which similarly allege that orders of indirect contempt, resulting in short-term detentions, are being entered without the courts complying with rule 8.150 and section 985.037. Therefore, “this case presents a controversy capable of repetition, yet evading review, which should be considered on its merits.” N.W. v. State, 767 So.2d 446, 447 n.2 (Fla. 2000); see also Kelley v. Rice, 800 So.2d 247, 250 (Fla. 2d DCA 2001); AW. v. State, 711 So.2d 598, 599 (Fla. 5th DCA 1998). We have jurisdiction and choose to consider the merits of the petition.

“[A] prosecution for indirect criminal contempt is to follow the procedural due process set forth in [Florida Rule of Juvenile Procedure] 8.150 and section 985.037.” KM. v. State, 962 So.2d 969, 970 (Fla. 4th DCA 2007); see also G.C. v. State, 901 So.2d 1021, 1021 (Fla. 4th DCA 2005). Here, the trial court did not follow these procedures, resulting in a failure to provide J.H. with due process. Accordingly, we determine that J.H. was entitled to immediate release from custody. The order of detention is quashed.

PETITION GRANTED

BERGER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    F.P., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1115
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017
    Robert Wesley, Public Defender, and Derreck Quarles, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM

F.P. petitions this court for issuance of a writ of habeas corpus releasing him from the custody of the Orange County Juvenile Detention Center following the trial court’s order finding him to be in indirect contempt of court and directing that he be detained for ten days. Because the trial court failed to follow the mandatory procedures for indirect contempt set forth in Florida Rule of Juvenile Procedure 8.150 and section 985.037, Florida Statutes (2017), we grant the writ and quash the order of contempt.

We recognize that F.P.’s ten-day detention has expired and that he was released, technically rendering the petition moot. However, there are several petitions pending in our court which similarly allege that orders of indirect contempt, resulting in short-term detentions, are being entered without the courts complying with rule 8.150 and section 985.037. Therefore, “this case presents a controversy capable of repetition, yet evading review, which should be considered on its merits.” N.W. v. State, 767 So.2d 446, 447 n.2 (Fla. 2000); see also Kelley v. Rice, 800 So.2d 247, 250 (Fla. 2d DCA 2001); AW. v. State, 711 So.2d 598, 599 (Fla. 5th DCA 1998). We have jurisdiction and choose to consider the merits of the petition.

“[A] prosecution for indirect criminal contempt is to follow the procedural due process set forth in [Florida Rule of Juvenile Procedure] 8.150 and section 985.037.” KM. v. State, 962 So.2d 969, 970 (Fla. 4th DCA 2007); see also G.C. v. State, 901 So.2d 1021, 1021 (Fla. 4th DCA 2005). Here, the trial court did not follow these procedures, resulting in a failure to provide F.P. with due process. Accordingly, we determine that F.P. was entitled to immediate release from custody. The order of detention is quashed.

PETITION GRANTED

EVANDER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: CASANUEVA, Judge.

text:
    Davion PARSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D14-5908
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017
    Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Davion Parson seeks review of his judgments and sentences for two counts of first-degree murder and one count of second-degree murder. Mr. Parson also challenges an order granting in part and denying in part his motion to correct sentencing errors, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We reverse only as to a judgment lien for costs. In all other respects, we affirm without comment.

In the order on Mr. Parson’s motion to correct sentencing errors, the trial court directed the clerk of court to amend the monetary obligations order to show “an amount of $468.00 instead of $513.00 on the first line under Mandatory Costs next to the word Felony.” A corrected monetary obligations order was entered on January 25, 2016, but the judgment lien has not been corrected. We thus reverse the judgment lien and remand for entry of a corrected hen reflecting the $45.00 reduction in costs. See McMillan v. State, 8 So.3d 1237, 1238 (Fla. 2d DCA 2009).

Affirmed in part; reversed in part; remanded with instructions.

WALLACE and-LUCAS, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Ronald HOLT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3388
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017.
    Connie Mederos-Jacobs of Bradenton, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Ronald Holt seeks review of his judgment and sentences for trafficking in cannabis and manufacture of marijuana. We affirm Holt’s convictions without further comment. Based on the State’s concession of error, we reverse the portion of Holt’s sentence imposing a $50,000 fine. On remand, the trial court is required to impose the mandatory $25,000 fine under section 893.135(l)(a)(l), Florida Statutes (2013), which is the applicable trafficking statute.

Affirmed in part, reversed in part, and remanded.

MORRIS and BLACK, JJ., Concur.


text:
    Steven Earl KIMMONS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0963
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017
    Steven Earl Kimmons, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is granted. Case numbers 1D16-0204 and 1D16-0206 are hereby reinstated. Within 30 days of the date of the issuance of this opinion, the Office of Criminal Conflict and Civil Regional Counsel shall file either the initial briefs or notices of designation of the Public Defender in the appeals.

ROBERTS, C.J., MAKAR, and JAY, JJ., CONCUR.


text:
    Antonio MOORER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3816
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017.
    Antonio Moorer, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Antonio Moorer appeals the trial court’s order denying as untimely his rule 3.850 motion. We affirm in part and reverse in part.

In 2013, Moorer pleaded no contest to multiple felonies in two separate cases (lower-court cases 12-CF-3583 and 13-CF-790). The court sentenced him to a total of twenty years’ imprisonment. Moor-er appealed in both cases, and this court affirmed in both cases. This court’s mandate as to case 12-CF-3583 issued in March 2014, and its mandate as to case 13-CF-790 issued in August 2014.

In July 2016, Moorer filed the rule 3.850 motion at issue here. The trial court denied the motion as untimely, concluding that “[s]ince Defendant’s instant motion was not filed within two years of the mandate, his motion is time-barred.” See Fla. R. Crim. P. 3.850(b) (establishing deadlines). But the trial court relied entirely on the March 2014 mandate. Although the timing of that mandate made the motion untimely as to case 12-CF-3583, the motion was timely as to ease 13-CF-790. We therefore reverse in part and remand for the trial eourt to address the motion as it applies to case 13-CF-790. We otherwise affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

ROBERTS, C.J., and LEWIS and WINSOR, JJ., CONCUR.


author: KELSEY, J.

text:
    Preston PAMPHILE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-3387
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017
    Preston Pamphile, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Respondent.
   KELSEY, J.

Petitioner argues his appellate counsel ineffectively handled his direct appeal in four ways. We find three of Petitioner’s arguments meritless, and deny his petition as to those grounds; but we agree with the State’s proper concession of error on the question of establishing Petitioner’s competency.

Petitioner’s trial counsel requested a competency evaluation, and the trial court appointed an expert to evaluate Petitioner and submit a report. The court set a hearing on the issue. However, the expert’s report was not filed with the court, the issue was not addressed at the scheduled hearing nor any other hearing, and the trial court did not expressly adjudicate Petitioner’s competency. We must, therefore, reverse Petitioner’s judgments and sentences, pending further proceedings on remand.

On remand, the court may make a nunc pro tunc competency determination if there is evidence to support a finding that Petitioner was competent at the time of trial. See Dougherty v. State, 149 So.3d 672, 678-79 (Fla. 2014) (approving remand for nunc pro tunc determination of competency if possible); Brooks v. State, 180 So.3d 1094, 1095 (Fla. 1st DCA 2015) (“[A] new trial is required only if the trial court is unable to conduct a nunc pro tunc evaluation of the defendant’s competency at the time of the original trial.” (citing Reynolds v. State, 177 So.3d 296, 298 (Fla. 1st DCA 2015))). If the trial court can make this determination, no change to Petitioner’s judgments or sentences is required.

If the court cannot make this retroactive determination, it must adjudicate Petitioner’s present competency to stand trial; and if the court determines him presently competent, then conduct a new trial. Brooks, 180 So.3d at 1096; Cotton v. State, 177 So.3d 666, 668-69 (Fla. 1st DCA 2015). The remedy is “dependent on the circumstances of each case.” Id. at 669 (quoting Dougherty, 149 So.3d at 678-79).

Accordingly, we GRANT the petition as to the issue of Petitioner’s competency only; and REMAND the case to the trial court for further proceedings. Otherwise the petition is DENIED.

ROWE and JAY, JJ., CONCUR.


text:
    Anthony D. KELLEM, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0589
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017.
    Anthony D. Kellem, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the May 27, 2016, order denying defendant’s motion for postconviction relief in Duval County Circuit Court case number 16-2008-CF-10660-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

ROBERTS, C.J., MAKAR, and JAY, JJ., CONCUR.


text:
    Marvin COOPER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0076
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017.
    Marvin Cooper, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the July 27,2016, order denying motion for jail credit in Alachua County Circuit Court case number 01-2014-CF-003576-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

ROBERTS, C.J., MAKAR, and JAY, JJ., CONCUR.


text:
    Christopher M. CHARLES, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-5103
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017
    Christopher M. Charles, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the September 19, 2016, order granting in part and denying in part defendant’s motion to correct sentencing error in Duval County Circuit Court case number 16-2013-CF-002092-AXXX. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

ROBERTS, C.J., MAKAR, and WINSOR, JJ., CONCUR.


author: MORRIS, Judge.

text:
    T.R., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2523
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2017.

      Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

T.R. appeals his juvenile adjudication of delinquency for the offense of battery and a disposition order placing him on probation for one year. T.R. argues—and we agree—that the trial court committed fundamental error by failing to make a proper inquiry into T.R.’s waiver of counsel at both the plea and disposition hearings in violation of Florida Rule of Juvenile Procedure 8.165. See, e.g., State v. T.G., 800 So.2d 204 (Fla. 2001); D.A.C. v. State, 201 So.3d 1249 (Fla. 2d DCA 2016); C.K. v. State, 909 So.2d 602 (Fla. 2d DCA 2005); D.C.W. v. State, 775 So.2d 363, 364 (Fla. 2d DCA 2000). The State concedes error. Accordingly, we reverse and remand for further proceedings.

Reversed; remanded.

CRENSHAW and BLACK, JJ., Concur.


text:
    Shawn A. BLANTON, DOC #530293, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3972
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2017
    Shawn Blanton, pro se.
   PER CURIAM.

Affirmed.

KELLY, BADALAMENTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Vincent Joseph RIGSBY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4403
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2017
   PER CURIAM.

Affirmed. See State v. Dickey, 928 So.2d 1193 (Fla. 2006); Bolender v. State, 658 So.2d 82 (Fla. 1995); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

WALLACE, SALARIO, and BADALAMENTI, JJ., Concur.


text:
    James A. JORDAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4832
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2017
   PER CURIAM.

Affirmed. See Knight v. State, 808 So.2d 210 (Fla. 2002); Betancourt v. State, 804 So.2d 313 (Fla. 2001); Dale v. State, 703 So.2d 1045 (Fla. 1997); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Johnson v. State, 973 So.2d 1192 (Fla. 2d DCA 2008); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Walls v. State, 730 So.2d 294 (Fla. 1st DCA 1999).

WALLACE, SALARIO, and BADALAMENTI, JJ., Concur.


text:
    Elijah BETHUNE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4834
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2017
    Elijah Bethune, pro se.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006) (en banc); Carpenter v. State, 884 So.2d 385 (Fla. 2d DCA 2004); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Almendares v. State, 916 So.2d 29 (Fla. 4th DCA 2005); Pruitt v. State, 801 So.2d 143 (Fla. 4th DCA 2001).

WALLACE, SALARIO, and BADALAMENTI, JJ., Concur.


author: Kuntz, J.

text:
    STATE of Florida, Appellant, v. William CAPELETTI, Appellee.
    No. 4D16-3015
    District Court of Appeal of Florida, Fourth District.
    May 3, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND MOTION FOR CLARIFICATION

Kuntz, J.

The defendant has filed a motion for rehearing and a motion for clarification of our instructions on remand. We grant the motion for rehearing and motion for clarification, withdraw our prior opinion, and substitute this opinion in its place.

The State appeals the court’s order dismissing an affidavit charging the defendant with violations of probation (“VOP”) for lack of subject matter jurisdiction. The court concluded that it lost jurisdiction at the time the probationary period expired, which occurred prior to service of the warrant for the VOP. The State argues that because the VOP affidavit and warrant alleged that the defendant absconded, and the warrant issued while he was still serving probation, his probationary term was tolled. The defendant concedes that the State is correct but argues the State’s argument was not preserved. We agree with the State, find the argument was properly preserved, and reverse.

The defendant pled no contest to charges of tampering with evidence, possession of cannabis, resisting officer without violence, and possession of drug paraphernalia. He was sentenced to time served on the resisting arrest and possession of drug paraphernalia counts, the court withheld adjudication on the tampering with evidence and possession of cannabis counts, and he was placed on probation. The parties agree that his original probationary term was set to expire on February 28,2015.

Prior to the expiration of the original probationary term, the defendant failed a drug test, failed to report, and absconded. He pled to a violation of probation and the probationary term was reinstated, modified, and extended to June 30, 2016.

Four months before the expiration of the extended probationary period, the State filed a VOP affidavit stating that the defendant: (1) failed to report; (2) absconded or changed his residence without first procuring the consent of the probation officer; (3) failed to pay the State of Florida toward the cost of supervision; (4) failed to make court costs payments; and (5) failed to make Drug Fee payments. A warrant was issued on February 24, 2016, but not served until the defendant self-surrendered on August 16, 2016—after the expiration of the extended probationary period.

Relying upon Mobley v. State, 197 So.3d 572 (Fla. 4th DCA 2016), the defendant argued to the court that it lost jurisdiction over the VOP when the extended probationary period expired on June 30, 2016. In response, the State argued that “failing to report and absconding ... the absconding could be considered a new crime.” The court agreed with the defendant and, citing Mobley, concluded that the signing of the warrant did not toll the probationary period.

On appeal, the State argues that the affidavit charging the defendant with absconding tolled his probationary term until he was returned to supervision. In support, the State relies upon Williams v. State, 202 So.3d 917 (Fla. 4th DCA 2016). In Williams, we provided a detailed analysis of Mobley and distinguished it, holding that “Mobley is inapplicable here because, unlike in Mobley, the VOPs in this case ultimately alleged that, during the defendant’s probation term, he had absconded from supervision, culminating with the allegation that his ‘current whereabouts is unknown.’ ” Id. at 920. Williams held “when a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision.” Id. at 920-21.

As in Williams, in this case the VOP alleged that the defendant absconded, which was an independent basis for tolling the probationary period. The defendant does not dispute this conclusion. Instead, he argues that the State failed to preserve the argument. We find the issue was properly preserved. Here, the VOP affidavit and warrant both charged the defendant with “ABSCONDING.” Further, at the hearing, the State highlighted the absconding charge. These actions were sufficient to bring the issue to the attention of the court. Therefore, the issue was preserved.

The State charged the defendant with a VOP, including a charge that he absconded. Consistent with Williams, we reverse to allow the circuit court to determine if the defendant did abscond from probationary supervision as alleged in the State’s VOP affidavit. If the circuit court determines that the defendant did abscond, which it may find but is not required to find, then the probationary term was tolled until he was again under probationary supervision and the circuit court would have jurisdiction over the VOP warrant.

Reversed.

Warner and Gerber, JJ., concur.