author: Taylor, J.

text:
    Noelson ANDREVIL, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-4700
    District Court of Appeal of Florida, Fourth District.
    [August 16, 2017]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

This appeal challenges concurrent 35-year prison sentences imposed on a juvenile offender on resentencing after the United States Supreme Court decided Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and the Florida Legislature enacted chapter 2014-220, Laws of Florida. We reverse appellant’s sentences and affirm as to the other points raised on appeal.

In 2008, appellant was 17 years old when he was charged as an adult with attempted armed robbery while wearing a mask (Count I), burglary of a dwelling with an assault or battery while armed (Count II), robbery with a weapon while wearing a mask (Count III), and robbery with a deadly weapon while wearing a mask (Count IV). In 2010, appellant entered a no contest plea to Counts II-IV and was sentenced to 35 years in prison, followed by ten years of probation on Counts II and IV, and to 30 years in prison on Count III, concurrent with the sentences on Counts II and IV. The state entered a nolle prose-qui on Count I.

Ten days after appellant’s sentence, the United States Supreme Court decided Graham. Graham held that the Eighth Amendment prohibits life sentences without parole for juvenile offenders who commit nonhomicide crimes. Graham, 560 U.S. at 74-75, 130 S.Ct. 2011. The Court noted that there were fundamental differences in development and reasoning between juveniles and adults, including a juvenile’s (1) lack of maturity and underdeveloped sense of responsibility; (2) vulnerability to negative influences and outside pressures; and (3) character that is not as well formed as that of adults. Id. at 68, 130 S.Ct. 2011 (citing Roper v. Simmons, 543 U.S. 551, 569-70, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)). The Court thus held that states must give such juvenile offenders “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75, 130 S.Ct. 2011.

In light of Graham, in May 2011, appellant moved for postconviction relief. He argued, among other things, that his trial counsel was ineffective for failing to inform him that he could have withdrawn his "plea due to the material change in the law following Graham. After an evidentiary hearing, the trial court ruled that appellant’s trial counsel was ineffective for failing to file a motion to withdraw appellant’s plea after Graham was decided.

In August 2014, appellant was 23 years old when he again pled no contest to the chargés against him. This time, appellant pled to armed burglary with an assault or battery (Count II) and robbery with a deadly weapon (Count IV). The state nolle pressed Counts I and III. Following the sentencing hearing, in November 2014, the court adjudicated appellant and sentenced him to concurrent terms of 35 years in prison, followed by ten years of probation, with credit for 1,933 days.

Appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) with the sentencing court, arguing that he should have been sentenced based on the guidelines in Graham and section 921.1402(2)(d), Florida Statutes (2014). The trial court denied the motion because appellant’s offense predated the July 1, 2014 offense date stated in section 921.1402, and because appellant’s sentence was not a de facto life sentence subject to the requirements of Graham.

On appeal, appellant argues that the 35-year prison sentence, followed by ten years of probation, does not afford a meaningful opportunity for early release based on a demonstration of maturity and rehabilitation and, thus, violates the Eighth Amendment’s ban on cruel and unusual punishment.

In appellant’s initial brief, he argued that’ his concurrent 35-year sentences com stitute a de facto life sentence, based on mortality statistics, quality of life measr ures, and the lack of a meaningful opportunity for release based on maturity and rehabilitation. As such, appellant argued that he should be resentenced with retroactive application of the new juvenile sentencing legislation enacted by the Florida Legislature in chapter 2014-220, Laws of Florida. See Horsley v. State, 160 So.3d 393, 395, 404-06 (Fla. 2015) (holding that the appropriate remedy for cases involving juvenile offenders whose sentences are unconstitutional under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) is to apply' chapter 2014-220, Laws of Florida, even if their offenses were committed prior to the legislation’s effective date).

"During much of the pendency of this appeal, the law in Florida regarding Graham’s application to term-of-years sentences was uncertain. Several Florida districts courts, including ours, had concluded that Graham does not apply to lengthy term-of-years sentences which do not constitute de facto life sentences requiring resentencing under chapter 2014-220. See, e.g., Davis v. State, 199 So.3d 546, 550 (Fla. 4th DCA 2016) (holding that a defendant’s 75-year sentence does not constitute a de facto life sentence because the defendant has a meaningful opportunity for release during his natural life); Abrakata v. State, 168 So.3d 251, 251-52 (Fla. 1st DCA 2015) (finding that a juvenile’s 25-year sentence, day-for-day, does not amount to a de facto life without parole sentence since the defendant will be in his early forties when he is released from prison and declining to retroactively apply the sentencing provisions of chapter 2014-220, Laws of Florida); Austin v. State, 127 So.3d 1286, 1287 (Fla. 1st DCA 2013) (affirming juvenile’s 45-year mandatory minimum terms because it did not exceed his life expectancy); Johnson v. State, 108 So.3d 1153, 1153-54 (Fla. 5th DCA 2013) CJohnson 1) (affirming a juvenile’s 100-year sentence on a charge of burglary of a dwelling while armed because.a term-of-years sentence does.not violate Graham); Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011) (affirming juvenile’s concurrent 50-year sentences with 25-year mandatory mínimums because the sentence does not amount to a life without parole sentence even though the juvenile will be in his late sixties when released from prison). But see Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012) (reversing a juvenile’s combined 80-year sentence for two counts of armed robbery, concluding that it constitutes the functional equivalent of a life sentence and is therefore unconstitutional under Graham ).

In Henry v. State, 175 So.3d 675 (Fla. 2015), the Florida Supreme Court quashed the Fifth District’s decision in Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012), which had determined that Graham did not apply to term-of-years prison sentences because such sentences do not constitute life, imprisonment. Henry, 175 So.3d at 676. Our supreme court disagreed with the Fifth District, reasoning that Graham is implicated when the sentence does not afford any “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 679 (quoting Graham, 560 U.S. at 75, 130 S.Ct. 2011). The supreme court concluded that Henry’s aggregate 90-year sentence, which required him to be imprisoned until he was at least about 95 years old, did not afford a meaningful opportunity for release during his natural life, and was therefore unconstitutional under Graham. Id. at 679-80.

The Henry court further noted that a de facto life sentence is not a requirement for review and emphasized that the focus in these cases should not be on the length of the sentence imposed, but rather on whether the sentence affords a “meaningful opportunity for early release based on a demonstration of maturity and rehabilitation.” Id. at 680 (citing Graham, 560 U.S. at 75, 130 S.Ct. 2011). The court concluded that “the Eighth Amendment will not tolerate prison sentences that lack a review mechanism for evaluating this special class of offenders for demonstrable maturity and reform in the future because any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult.” Id. Accordingly, the court remanded Henry’s cases for resentencing under chapter 2014-220. Id.

In appellant’s supplemental brief, filed after the Florida Supreme Court’s decision in Kelsey v. State, 206 So.3d 5 (Fla. 2016), appellant argued that a finding of a de facto life sentence was not determinative of his entitlement to resentencing under chapter 2014-220. He contended that Kelsey clarified that Graham applies to term-of-years sentences that may not be equivalent to life sentences and requires that juveniles who are serving lengthy sentences be given periodic judicial review to determine whether they can demonstrate maturity and rehabilitation.

Kelsey held that a juvenile defendant whose original sentence violated Graham and who was subsequently' resentenced prior to July 1, 2014 was entitled to be resentenced pursuant to the provisions of chapter 2014-220. Kelsey, 206 So.3d at 10-11. In Kelsey, the juvenile defendant was originally sentenced to two life sentences and two concurrent 25-year terms for non-homicide offenses. Id. at 6. After Graham, he was resentenced to concurrent 45-year sentences. Id. at 7. On appeal, he asked the court to vacate those sentences and resentence him under the new juvenile sentencing legislation with a review mechanism, consistent with the Florida Supreme Court’s decision in Henry. See Kelsey v. State, 183 So.3d 439, 441 (Fla. 1st DCA 2015). The First District denied his request for relief, reasoning that his 45-year sentence was not a de facto life sentence in violation of Graham. Id. at 441-42. As discussed above, the Florida Supreme Court later disagreed and held that he was entitled to resentencing and judicial review. Kelsey, 206 So.3d at 10-11.

In Kelsey, the Florida Supreme Court explained that its holding in Henry “was not predicated on the term of the sentence but rather on the status of, and the opportunity afforded, the offender.” Id. at 9. The court described its decision in Henry as “unequivocal” and reaffirmed that the special class of juvenile nonhomicide offenders recognized in Graham should receive the remedy outlined in Horsley. Id. at 9-10. The court in Kelsey considered the decisions in Henry, Horsley and Thomas, along with the Legislature’s intent in passing chapter 2014-220, Laws of Florida, and determined that “juveniles who are serving lengthy sentences are entitled to periodic judicial review to determine whether they can demonstrate maturation and rehabilitation.” Id. at 10-11.

We recently applied Kelsey to reverse a juvenile’s 45-year sentence. See O’Neal v. State, 211 So.3d 303, 304 (Fla. 4th DCA 2017) (holding that a defendant whose original sentence violated Graham, and who was subsequently resentenced prior to July 1, 2014, is entitled to be resentenced pursuant to the provisions of chapter 2014-220, Laws of Florida).

Recently, the Florida Supreme Court resolved the conflict between Johnson I and Floyd. See Johnson v. State, 215 So.3d 1237 (Fla. 2017) (Johnson II). As mentioned above, in Floyd, the First District reversed a juvenile’s combined 80-year sentence for two counts of armed robbery, concluding that the sentence constitutes the functional equivalent of a life sentence and violates Graham. 87 So.3d at 45-47. By contrast, in Johnson I, the Fifth District affirmed a juvenile’s 100-year sentence for two counts of armed robbery, holding that Graham does not apply to term-of-years sentences. 108 So.3d at 1153-54. After considering Graham and its decisions in Henry and Kelsey, the supreme court quashed the Fifth District’s decision. Johnson II, 215 So.3d at 1244. The court concluded that the sentence imposed in Johnson I did not provide the juvenile nonhomicide offender a meaningful opportunity for early release based on maturity and rehabilitation during his natural life. Id.

Based on Johnson II and the rationale underlying Henry and Kelsey, we conclude that appellant must be afforded periodic review under chapter 2014-220, Laws of Florida. Johnson II stated that its holding in Henry “was not predicated on the term of the sentence, but on the status of, and the opportunity afforded, the offender.” 215 So.3d at 1240. Johnson II noted that the length of the sentence alone is not dispositive because “any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult.” Id. at 1239-40 (citing Henry, 175 So.3d at 680). Johnson II further disagreed that gain time could satisfy the requirements of Graham because this avenue of early release is not adequately based on a juvenile’s demonstration of maturity and rehabilitation. Id. at 1239, 1242.

In Johnson II, the supreme court further clarified its position in Kelsey that Graham “does indeed apply to term-of-years sentences” and that such sentences need not be “de facto life” sentences. Id. at 1240 (quoting Kelsey, 206 So.3d at 10). Here, the trial court denied appellant’s postconviction motion to be sentenced under section 921.1402(2)(d), Florida Statutes, because his offense predated July 1, 2014 and because appellant’s 35-year sentence was not a de facto life sentence. However, like the sentences in Kelsey and Johnson II, appellant’s post-Graham sentences were based on offenses he committed before the statute’s July 1, 2014 effective date, and while he was a juvenile. Moreover, unlike the defendant in Kelsey, appellant was resentenced after the July 1, 2014 effective date of chapter 2014-220. We thus conclude that appellant was entitled to the benefit of the new sentence review statute and a meaningful opportunity for release based on demonstrated maturity and rehabilitation, as detailed in Johnson II.

Accordingly, we reverse appellant’s sentence and remand for resentencing in accordance with the sentencing procedures set forth in chapter 2014-220, Laws of Florida, as codified in sections 921.1401 and 921.1402, Florida Statutes.

Affirmed in part, Reversed in part and Remanded.

Conner and Forst, JJ., concur.

      . The juvenile sentencing provisions in chapter 2014-220 were enacted in 2014 in response to Graham and Miller v. Alabama, 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders"), and provided judicial review for juvenile offenders who were tried as adults and received prison terms longer than 20 years.

      . In Horsley, our supreme court concluded that applying chapter 2014-220 to all juvenile offenders whose sentences are unconstitutional under Miller is the proper remedy to give effect to the commandment of the United States Supreme Court in Miller. 160 So.3d at 395, 405.

      . We have also certified to the Florida Supreme Court the question of whether chapter 2014-220 is triggered by all juvenile sentences that exceed the statutory threshold, including offenses committed before July 1, 2014. See Davis, 199 So.3d at 552.


source: Caselaw Access Project

author: May, J.

license: Public Domain

text:
    Orlando MCCORMACK, Appellant, v. STATE of Florida, Appellee
    No. 4D15-2886
    District Court of Appeal of Florida, Fourth District.
    [August 16, 2017]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

May, J.

We grant the State’s motion for rehearing. In its motion, the State advised the court that the record submitted on appeal failed to include the order denying the defendant’s motion under Florida Rule of Criminal Procédure 3.800(b)(2), which addressed Williams v. State, 186 So.3d 989 (Fla. 2016). In fact, the record included an affidavit attesting “there had been no order addressing the 4-12-16 Motion to. Correct Sentencing Error.” This was the sole basis for our reversal.

The State has now filed the order and the transcript from the hearing on the Rule 3.800(b)(2) motion. We supplement the record with both, withdraw our prior opinion, and affirm on all issues raised in the appeal.

Affirmed.

Taylor and Ciklin, JJ., concur.


author: Damoorgian, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA, Inc., Appellants, v. Linda Purdo ENOCHS, individually and as Personal Representative of the Estate of Thomas Purdo, Appellee.
    No. 4D16-2025
    District Court of Appeal of Florida, Fourth District.
    [August 16, 2017]

      Val Leppert, William L. Durham II and Jeffrey S. Bucholtz of King & Spalding LLP, Atlanta, GA, and Washington, DC, for appellant R.J. Reynolds Tobacco Company, and Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC, for appellant Philip Morris USA, Inc.
    John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, Alex Alvarez of The Alvarez Law Firm, Coral Gables, Gary M. Paige of Gordon & Doner, Davie, and David J. Sales. of David J. Sales, P.A., Jupiter, and Jordan L. Chaikin of Chaikin Law Firm PLLC, Fort Myers, for appellee.
   Damoorgian, J.

In this Engle progeny case, R.J. Reynolds Tobacco Company and Philip Morris USA, Inc. (“Defendants”) appeal the final judgment entered in favor of Linda Purdo Enochs as Representative of the estate of her deceased husband, Thomas Purdo (“Plaintiff’). Defendants argue that the trial court erred by: (1) failing to engage in the requisite genuineness analysis in granting Plaintiffs peremptory challenges to two prospective jurors; (2) misapplying the Melbourne analysis in granting Plaintiffs peremptory challenges as to two other prospective jurors; (3) allowing Plaintiff to misstate the law on Engle class membership; (4) denying their motion to remit the jury’s compensatory awards to the Decedent’s two surviving children ($7 million each); and (5) applying the Engle findings in violation of Defendants’ due process rights. Wé affirm on' all counts and write only to address the failure to engage in the requite genuineness analysis issue.

During voir dire, Plaintiff was the first to use a peremptory challenge, striking prospective juror 18, a white male. Defendants objected based on gender and race grounds, prompting the following response:

[PLAINTIFF]: He’s a white male, I don’t understand what -
[COURT]: Everybody is a protected class under the. case law,
[PLAINTIFF]: Okay. Well, he’s a smoker, and that’s why I’m striking him, he’s a smoker,
[COURT]:. All right. That’s a gender- and-race-neutral reason.. I will overrule defense objection.

Shortly thereafter, Plaintiff used a peremptory challenge to strike prospective juror 95, who was also a white male, and Defendants again objected on gender and race grounds, prompting the following response:

[PLAINTIFF]: This is what [prospective juror 95] said when [defense counsel] asked him about the smoking history of his family members, do you think that the tobacco company is responsible, and instead of him saying no, I don’t think they’re responsible, you know what he said? He said zero.
[COURT]: I heard that. ... With an emphasis.
[PLAINTIFF]: Yes.
[COURT]: I heard it. Okay. That certainly satisfies the Melbourne test. I’m going to overrule ... defense objection to [prospective juror 95].

At the end of the selection process and before the jury was sworn, Defendants renewed their objections to Plaintiffs peremptory challenges to prospective jurors 18 and 95. In again denying Defendants’ objections, the trial court referenced the racial make-up of the venire and noted on the record that there were white males on the jury. This timely appeal follows.

In Florida, whenever a peremptory strike is challenged as discriminatory, the following three-part procedure must-be employed:

First, the objecting party must make a timely objection, show that the venire person is a member of a distinct protected group, and request that the court ask the striking party to provide a reason for the strike. Second, the burden shifts to the proponent of the strike to come forward with a race-neutral or gender-neutral explanation. Third, if the explanation is facially race-neutral or gender-neutral, the court must determine whether the explanation is a pretext “given all the circumstances surrounding the strike.”

Siegel v. State, 68 So.3d 281, 286 (Fla. 4th DCA 2011) (internal citations omitted) (quoting Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996)).

With regard to the third-step genuineness inquiry, “‘[t]here is nothing in Melbourne which requires trial judges to articulate their thought process on the issue of pretext.’ ” Id. (quoting Johnson v. State, 706 So.2d 401, 404 (Fla. 3d DCA 1998)). Nor are trial judges required to “specifically use the word ‘genuine.’ ” Hayes v. State, 94 So.3d 452, 463 (Fla. 2012). Nonetheless, “Melbourne does not relieve a trial court from weighing the genuineness of a reason just as it would any other disputed fact.” Dorsey v. State, 868 So.2d 1192, 1202 (Fla. 2003). Accordingly,

“where a gender or race neutral reason was advanced for the strike, the reason advanced is itself reasonable, and the record is devoid of any indication that the trial judge considered the relevant circumstances surrounding the strike in concluding that it was motivated by improper purposes,” an appellate court must conclude that the trial judge failed to adequately engage in the “genuineness inquiry” mandated by Melbourne.

Siegel, 68 So.3d at 286 (quoting Jones v. State, 787 So.2d 154, 157 (Fla. 4th DCA 2001)); see also Cook v. State, 104 So.3d 1187, 1187-90 (Fla. 4th DCA 2012) (holding that the trial court’s response of “I think it’s race-neutral. So ... I’ll sustain the challenge,” standing alone, was insufficient for the reviewing court to satisfy itself that the trial court engaged in the genuineness inquiry).

In the present case, it is undisputed that the trial court never used the word “genuine” when overruling Defendants’ objections to prospective jurors 18 and 95. With that being said, however, the record overall reflects that the court did determine the proffered race-and-gender-neutral reasons were genuine. Specifically, when Defendants re-raised their objections prior to the jury being sworn, the court referred to the racial make-up of the veni-re and noted on the record that there were white males on the jury. See Siegel, 68 So.3d at 287 (listing the racial or gender make-up of the venire as one of the circumstances relevant to the genuineness inquiry); Knight v. State, 919 So.2d 628, 633 (Fla. 3d DCA 2006) (rejecting defendant’s argument that the court failed to satisfy the genuineness inquiry, reasoning that “the record reflects that four females were picked as jurors and two females were picked as alternates, which would support the trial court’s decision that the peremptory challenge was not pretextual”). Moreover, in overruling the initial objection to prospective juror 95, the trial court noted that in responding “zero” when asked if he held the tobacco companies responsible for the smoking history of his family members, the answer was given “[w]ith an emphasis.”

In light of the overall record and total course of the voir dire in this case, we are satisfied that the trial court did in fact engage in the genuineness inquiry in overruling Defendants’ objections to prospective jurors 18 and 95. See Wimberly v. State, 118 So.3d 816, 826 (Fla. 4th DCA 2012). In so holding, however, we emphasize that it is important for trial courts to make an on-the-record genuineness inquiry so as to permit meaningful appellate review. See Hayes, 94 So.3d at 463.

Affirmed.

Kuntz, J., and Cynamon, Abby, Associate Judge, concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).


author: CIKLIN, J.

text:
    Margaret SAJIUN, as Personal Representative of the Estate of Jose Alberto Soto Santiago, Appellant, v. Daniel HERNANDEZ, Appellee.
    No. 4D16-589
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]

      Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach; Carlos A. Bodden and W. David Bennett of Ellis, Ged & Bodden, P.A., Boca Raton; and Laurence U.L. Chandler, Jr., Boca Raton, for appellant.
    Todd R. Ehrenreich and Noel F. Johnson of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Miami, for appellee.
   CIKLIN, J.

After a wrongful death jury trial, the personal representative of the decedent’s estate recovered nothing. She believes that certain improper evidence resulted in the defense verdict, and she challenges several of the trial court’s rulings. We find the trial court did not abuse the wide and sound discretion afforded to trial judges in these types of evidentiary rulings, and we affirm.

This case arose from a collision between a motorcycle driven by the decedent, Jose Alberto Soto Santiago (“motorcycle driver”), and a truck driven by the defendant, Daniel Hernandez (“truck driver”), resulting in the death of Santiago. During trial, the trial court permitted the introduction of the following evidence over the plaintiffs objection: 1) witness testimony regarding the speed the decedent motorcycle driver traveled on his motorcycle in the moments preceding the accident; 2) evidence of the weight of the truck, which was used by the defense expert to calculate the motorcycle’s speed at impact; and 3) statements the motorcycle driver’s child made to a psychotherapist regarding an argument between the decedent and his girlfriend shortly before the accident.

“A trial court has wide discretion in determining the admissibility of evidence, and, absent an abuse of discretion, the trial court’s ruling on evidentiary matters will not be overturned.” Kellner v. David, 140 So.3d 1042, 1046 (Fla. 5th DCA 2014) (citation omitted). “The trial court’s discretion, however, is limited by the rules of evidence.” Wyatt v. State, 183 So.3d 1081, 1084 (Fla. 4th DCA 2015). “[A] trial court’s decision does not constitute an abuse of discretion ‘unless no reasonable person would take the view adopted by the trial court.’ ” McCray v. State, 71 So.3d 848, 862 (Fla. 2011) (quoting Peede v. State, 955 So.2d 480, 489 (Fla. 2007)). Stated another way, “[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Bass v. City of Pembroke Pines, 991 So.2d 1008, 1011 (Fla. 4th DCA 2008) (citation omitted). We review each of the challenged evidentiary issues in turn, applying this limited'—and very well established—scope of review.

Testimony Regarding Speed of Motorcycle

Before trial, the plaintiff moved in limine to exclude the testimony of three witnesses the defense had listed but who did not actually see the accident, arguing that their testimony was not relevant, and that if it was, any probative value was substantially outweighed by the prejudicial effect of the testimony. The trial court deferred ruling on one witness, and denied the motion without prejudice with respect to the other witnesses.

One of the witnesses testified at trial that he had operated motorcycles since 1980. Based on his familiarity with motorcycles, he could tell the difference between the sounds emitted by the engines of a Japanese motorcycle and a Harley Davidson. A Harley Davidson engine has a distinct sound which has been patented.

Shortly before the accident, the witness was sitting in his backyard. A fence blocked his view of the street, but he heard the sound of a motorcycle engine. Defense counsel asked the witness what he heard, and he responded, “A motorcycle traveling at a high rate of speed, revved up.” The court denied plaintiffs motion for mistrial. During a voir dire of the witness, he explained that his testimony was based on his years of experience with hearing motorcycles, and that he did not have any specialized training in the sounds of motorcycle engines. The court ruled that the witness may “say based on what he heard and based on his familiarity with the motorcycles that it was going at a high rate of speed,” but that he may not “speculate or guess what the speed was.” The witness then testified that he had previously heard “a Japanese motorcycle rev its engine real high ... [Y]ou can hear him going through his gears. And when it’s revving really loud ..., that means [it is] traveling at a high rate of speed.” He equated that sound to the sound he heard the day of the accident. The witness testified that shortly after he heard the sound of a motorcycle revving its engine, he heard a “popping” noise, as if the motor shut off. He went to investigate and observed that a Japanese motorcycle had been involved in an accident.

Two other defense -witnesses, a mother and daughter traveling together, encountered the motorcycle and testified about their observations. The daughter recalled that the “noise of [the] engine” drew her attention to the motorcycle. The motorcycle was “gofing] by really fast” and “cutting off cars.” Within minutes of losing sight of the motorcycle, she came upon the accident scene. The mother testified that the motorcycle was “making a very zoom noise, you know, as in accelerating very quickly,” that the motorcycle driver “sped off very rapidly,” and that he was traveling at a “much higher” rate of speed than the mother was driving, which was somewhere between 30 and 45 miles per hour. She and her daughter were so startled by the motorcycle that they commented to one another regarding “the noise, the speed, the closeness to our car.” After the motorcycle passed her, it took between thirty and ninety seconds before she came upon the accident scene.

The parties’ experts disputed the speed the motorcycle was traveling. The plaintiffs accident reconstruction expert testified that the motorcycle driver was traveling an average of fifty-five miles per hour, but going about sixty miles per hour at the time of impact. The defense expert opined that the motorcycle driver was going about ninety to ninety-five miles per hour at the time he braked, but could have been going faster before that point. He believed the motorcycle was going between eighty and eighty-five miles per hour at impact.

On appeal, the plaintiff argues that the three lay witnesses should not have been permitted to testify regarding their perceptions of the motorcycle’s operation because their observations before the accident did not correlate to the operation of the motorcycle at the time of the accident.

“As a general rule, the decision of whether to permit evidence of a driver’s conduct at a point some distance from the scene of the accident is left to the sound discretion of the trial judge.” Russ v. Iswarin, 429 So.2d 1237, 1240 (Fla. 2d DCA 1983); see also Hill v. Sadler, 186 So.2d 52, 55 (Fla. 2d DCA 1966) (‘Whether evidence should be admitted tending to show the rate of speed of a vehicle at a time and place other than that at the instant of, or immediately prior to, the accident dépends upon the facts in the particular case, and rests largely in the discretion of the trial Judge.”). Here, the mother and daughter testified as to the decedent’s speed somewhere between thirty seconds (according to the mother) and two minutes at most (according to the daughter) before the accident. The other witness’s testimony indicates that he heard the motorcycle engine revving up moments before the accident. The trial court’s determination that the witnesses’ observations were close enough in time to the accident to be relevant was within the trial court’s broad discretion. See Russ, 429 So.2d at 1240-41 (affirming exclusion, of testimony regarding erratic driving more than a mile from accident site and three or four minutes before accident, but finding court erred in excluding testimony about the driving pattern and speed only three blocks- before the accident); Baynard v. Liberman, 139 So.2d 485, 487 (Fla. 2d DCA 1962) (finding that witnesses’ testimony that defendant ran the two red lights south of the intersection where the crash occurred was relevant).

With respect to the witness who was sitting in his backyard, the plaintiff also argues that the trial court erred in permitting the -witness to give what amounted to expert testimony when he testified that he could determine the speed from the sound of the motorcycle. This court has elaborated on lay witness opinion testimony:

“Generally, a lay witness may not testify in terms , of an. inference or opinion, because it usurps the function of the jury. The jury’s function is to determine the credibility and weight of such testimony.” Floyd v. State, 569 So.2d 1225, 1231-32 (Fla. 1990) (citation omitted), cert. denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed. 2d 1075 (1991). However, a lay -witness is permitted to testify in the form of an opinion or inference as to what he perceived if two conditions are met:
(1) The witness1 cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.
§ 90.701, Fla. Stat. (1991). “Lay witness opinion testimony is admissible if it is within .the ken of an intelligent person with a degree of experience.” Floyd, 569 So.2d at 1232.
Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived. § 90.701, Fla. Stat. (1991); Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So.2d 140 (Fla. 4th DCA 1985). Acceptable lay opinion testimony typically involves matters such as distance, time, size, weight, form and identity. Vosburgh, 480 So.2d at 143. Before lay opinion testimony can be properly admitted, a predicate must be laid in which the witness testifies as to the facts or perceptions upon which the opinion is based. Beck v. Gross, 499 So.2d 886, 889 (Fla. 2d DCA 1986), rev. dismissed by 503 So.2d 327 (Fla. 1987). “[BJefore one can render an opinion he must have had sufficient opportunity to observe the subject matter about which his opinion is rendered.” Albers v. Dasho, 355 So.2d 150, 153 (Fla. 4th DCA), cert. denied, 361 So.2d 831 (Fla. 1978).

Fino v. Nodine, 646 So.2d 746, 748-49 (Fla. 4th DCA 1994) (alteration in original) (footnote omitted); see also § 90.701, Fla. Stat. (2015). .

This court has recognized that a vehicle’s speed “is generally viewed as a matter of common observation rather than expert opinion, and it is well settled that any person of ordinary ability .and intelligence having the means or opportunity of observation is competent to testify to the rate of speed of such a moving object.” Lewek v. State, 702 So.2d 527, 532 (Fla. 4th DCA 1997) (citation omitted). The subtle twist in this case, of course, is that the witness testified to a “high rate of speed” based on sound rather than sight.

Although the witness’s testimony was based on sound rather than sight, his opinion was based on his personal ordinary experience hearing the sounds that Japanese and non-Japanese motorcycle engines make when a driver accelerates. The witness’s testimony was not based on a methodology requiring something beyond everyday reasoning. That makes this case akin to L.L. v. State, 189 So.3d 252, 259 (Fla. 3d. DCA 2016) (finding no error in law enforcement officer’s lay opinion testimony that substance was marijuana, where the opinion was based on officer’s personal knowledge gleaned from his ordinary police experience and his reasoning process did not involve a methodology beyond his ordinary reasoning). To the extent that the plaintiff is arguing that witnesses cannot testify about the significance of sounds they heard, this argument is not consistent with the statute governing lay opinion testimony, which permits a witness to testify as to what he has personally perceived. See § 90.701, Fla. Stat. (2015). The statute does not limit perception to visual perception. Id. Indeed, in L.L., the officer’s opinion was based in part o,n the odor of the substance. L.L., 189 So.3d at 259-60 (“Officer Munecas’s testimony was admissible lay opinion testimony under Section 90.701 .because it was based on sufficient personal knowledge and his senses, of sight and smell ....”). We find that the trial court did not abuse its broad discretion in permitting the witnesses’ testimony regarding the speed of the motorcycle.

Evidence of Truck’s Weight

Before trial, the defense, arranged for the weighing of the truck driven by the defendant truck driver during the accident. A receipt of the weigh-in'was made, reflecting the weight of the truck. 'Shortly before trial, the defense noticed its intent to seek admission of' the weight receipt into evidence and filed an affidavit by the person who weighed the truck, attesting to the creation of the receipt. The plaintiff did not file an objection. During trial, the weight receipt was admitted into evidence over plaintiffs “foundation” and “hearsay” objections. The defense expert testified at trial that he used the weight of the truck in calculating the speed the . motorcycle was traveling.

In her initial brief, the plaintiff argues that' the weight receipt should not have been admitted based on the affidavit, because the affidavit was filed shortly before trial and the defense did not make the evidence available for inspection, in violation of section 90.803(6)(c), Florida Statutes. However, the defense provided notice of its intent to rely on the affidavit in its “Trial Brief’ filing and thus complied with section 90.803(6)(c). The plaintiff waived any objection to admission of the evidence by not filing an objection to the defendant’s notice. Additionally, the plaintiff does not dispute that she was aware of the weight receipt well before trial. We find that the plaintiff has not established that the trial court abused its broad discretion in admitting the weight receipt into evidence and permitting testimony based on the weight receipt.

Testimony Regarding Statements Made by Decedent’s Child to Psychotherapist

The plaintiffs suit sought damages for “pain and suffering” on behalf of the two children who survived the motorcycle driver. The trial court entered an agreed order which granted the defense motion to compel production of records from a psychotherapist who had treated one of the children. Subsequently, the plaintiff listed the records as a trial exhibit, In a joint trial exhibit list with objections filed by the parties, the plaintiff indicated that she had no objection to the defense admitting the records and deposition transcripts related to the child’s treatment.

During trial, plaintiffs counsel stated that she was no longer seeking mental anguish damages and thus the psychotherapist privilege should be reinstated. Inexplicably, however, she requested the jury be instructed on pain and suffering. The trial court ruled that the therapist’s records were admissible as. the plaintiff sought an .instruction on pain and suffering.

During closing argument, the defense asserted that the child told his therapist that he blamed his father’s girlfriend for the accident, because she and the decedent argued before the decedent left the house, and that the decedent drove recklessly because he was blowing off steam after the argument. The jury was instructed on pain and suffering damages.

The plaintiff argues that the trial court should have restored the psychotherapist privilege once she withdrew the claim for pain and suffering damages, as her other claims did not relate to mental injury.

Section 90.503(2), Florida Statutes (2015), provides the following in pertinent part:

A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition ... between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

The privilege may be claimed by, among other persons, the patient or the patient’s attorney on the patient’s behalf. § 90.503(3)(a), Fla. Stat. (2015). The statute further provides that the privilege does not apply to “communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense.” § 90.503(4)(c), Fla. Stat. (2015).

Section 90.507, Florida Statutes (2015), governs waiver of privileges by voluntary disclosure and provides in pertinent part:

A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person ... consents to disclosure of, any significant part of the matter or communication.

The waiver of the psychotherapist privilege is not irrevocable. See Garbacik v. Wal-Mart Transp., LLC, 932 So.2d 500, 503 (Fla. 5th DCA 2006); Sykes ex rel. Sykes v. St. Andrew’s Sch., 619 So.2d 467, 469 (Fla. 4th DCA 1993). However, a revocation of a waiver will not reinstate the privilege as to already disclosed information. See Bolin v. State, 793 So.2d 894, 898 (Fla. 2001) (recognizing that “information revealed after a privilege is waived cannot be concealed by reinvoking the privilege”); Hamilton v. Hamilton Steel Corp., 409 So.2d 1111, 1114 (Fla. 4th DCA 1982) (“It is black letter law that once the privilege is waived, and the horse out of the bam, it cannot be reinvoked.”).

The parties do not dispute that the plaintiff initially put the son’s mental condition at issue. Additionally, the record indicates that the plaintiff did not actually withdraw the claim, as she requested a jury instruction on pain and suffering. Even if the plaintiff withdrew the claim in the midst of trial, this would not reinstate the privilege as to records already disclosed. As such, the trial court did not abuse its broad discretion in admitting the records and allowing testimony regarding the records.

We find that under the abuse of discretion standard of review, the plaintiff has not established error, and we affirm.

Affirmed.

Taylor and May, JJ., concur.

      . Section 90.803(6)(c), Florida Statutes (2015), provides in pertinent part:

        A party intending to offer evidence [of a business record] by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence, ... A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver.

      . It does not appear that the "Trial Brief” was filed in response to any order entered by the trial court. In any event, the plaintiff does not argue on appeal that the notice was defective based on the manner in which it was provided, other than to complain that it was provided shortly before trial: On the record before us; we are not able to find that the notice was not ‘/reasonable” notice. See § 90.803(6)(c), Fla! Stat.

      . As discussed further below, the privilege does not apply insofar as communications between a psychotherapist and the patient regarding the patient’s mental or- emotional condition are related to a patient’s claim or defense in any proceeding.


author: Levine, J.

text:
    Peterson Baltazare SIMBERT, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1633
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

Appellant was charged with three counts of lewd or lascivious battery on-a child over twelve years old. After the victim testified, the state amended the information, over appellant’s .objection, to change one count from oral to digital penetration. Thus, we are asked to determine if the mid-trial amendment constituted prejudice to appellant. We find that in these circumstances, where the amendment changed an “essential element” of the charged crime and was not merely a clárification of some details, the amendment prejudiced appellant and thus we reverse count III. We further find the state’s closing argument improperly asked the jury to determine if the victim was lying as the test for determining appellant’s guilt, but we. nevertheless affirm because the issue was not properly preserved. We affirm appellant’s other arguments without discussion.

The state filed .a criminal .informatidn alleging three counts of lewd or lascivious battery of a child over twelve years of age but less than sixteen years of age. Count I alleged that appellant engaged.in sexual activity with the victim by “causing his penis to penetrate or unite with [the victim’s] vagina.” Count II alleged that appellant engaged in sexual activity with the victim by “causing his sexual organ to penetrate or unite with [the victim’s] mouth and/or tongue.” Count III alleged that appellant engaged in sexual activity with the. victim by “causing his mouth and/or tongue to penetrate .or unite with [the victim’s] sexual organ.” None of the counts in the filed criminal information alleged digital penetration.

At trial, the victim- testified that while appellant was living with her family, he woke her up in the middle of the night and led her out into the hallway. Appellant then placed his hand under her underwear and touched her vagina. After that first incident, appellant put his fingers inside her vagina on five or six occasions. Appellant tried to put his penis inside of her but she did not know if he succeeded. Appellant told her that “it wasn’t going to hurt” and “that it never went in.” The victim performed oral sex on appellant two times, and appellant performed oral sex on her more than five times. After appellant moved out, he continued to communicate with the victim. Appellant told her to keep their sexual relationship a secret because he could get in trouble for it.

During the trial, and after the victim’s testimony on direct, the state moved to amend count III of the information, which had alleged oral penetration, to allege that appellant engaged in sexual activity with the victim by causing “[a]n object, to wit, his finger(s) to penetrate the [victim’s] vagina.” The state, however, did not seek to change the statute alleged to have been violated, section 800.04(4)(a). Defense counsel objected, arguing that the amendment would change an element of the crime and would prejudice the defense. The trial court overruled the objection and permitted the amendment. The jury ultimately found appellant guilty as charged of all counts.

On appeal, appellant argues the trial court erred in allowing the state to amend count III of the information during trial. Appellant claims that by amending the count from oral to digital penetration, the state alleged a completely different means of committing .sexual battery and effectively filed a new charge.

A trial court’s ruling allowing the state to amend the information is reviewed for abuse of discretion. Jean v. State, 11 So.3d 421, 422 (Fla. 4th DCA 2009), ,“[T]he state may substantively amend an information during trial, even over the objection of the defendant, unless there is a showing of prejudice to the substantial rights of the defendant.” Green v. State, 728 So.2d 779, 780 (Fla. 4th DCA 1999). Prejudice occurs where the amendment “constitutes the charging of a different crime” or “change[s] the ‘essential elements of the charged offense.’ ” Toussaint v. State, 755 So.2d 170, 171-72 (Fla. 4th DCA 2000) (citation omitted). “[A]n amendment that substantively alters the elements of the crime charged is per se prejudicial.” Wright v. State, 41 So.3d 924, 926 (Fla. 1st DCA 2010). In contrast, an “amendment is permissible when it merely clarifies some detail of the existing charge and could not reasonably have caused the defendant any prejudice.” Green, 728 So.2d at 781. See also Toussaint, 755 So.2d at 171-72 (finding no prejudice in amending the information during trial to change the defendant’s age because it was not an element of the crime of sexual battery).

In the instant case, count III of the original information charged appellant with oral penetration, while count III of the amended information charged appellant with digital penetration. Both the original and amended information alleged a violation of section 800.04(4)(a). Section 800.04(4)(a), Florida Statutes (2013), provides that a person “commits lewd or lascivious battery” when he “[ejngages in sexual activity with a person 12 years of age or older but less than 16 years of age.” “Sexual activity” is defined as “the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” § 800.04(1)(a), Fla. Stat. (2013).

We find the trial court erred in permitting the amendment. Although the amendment did not change the crime charged, that being section 800.04(4)(a), the amendment did change an essential element of the charged offense from oral to digital penetration. See Toussaint, 755 So.2d at 171-72. Further, the amendment did not merely clarify some detail of the existing charge. See Green, 728 So.2d at 781.

In Green, this court found harmful error in permitting mid-trial amendment to allege a different victim in a charge for battery of a law enforcement officer. This court found this was not an amendment but rather “the filing of a new and entirely different offense.” Id. The court explained, “This is not a case of an amendment which merely clarified or corrected a simple misnomer,” “[n]or is it a case of simply correcting the name of the victim where only a single officer was involved and no one, including the defendant, reasonably could have been misled as to the identity of the victim.” Id. By permitting the amendment, the trial court allowed the jury to find the defendant guilty of “a crime for which he had not been charged and for which he was not on trial.” Id. See also Hutchinson v. State, 738 So.2d 473, 474 (Fla. 4th DCA 1999) (finding harmful error in permitting the state to amend the information, after a motion for directed verdict, to name a different police officer in the charge for resisting arrest without violence).

In Green and Hutchinson, like in the present case, the amendment did not change the statute, but substituted an essential element. In Green, the amendment substituted one law enforcement officer for another. In the present case, the amendment substituted oral penetration with digital penetration. Like in Green and Hutchinson, the mid-trial amendment constituted “the filing of a new and entirely different offense,” and was not merely clarification of details. Green, 728 So.2d at 781. See also Blue v. State, 876 So.2d 1273, 1274 (Fla. 2d DCA 2004) (holding the trial court erred in allowing an amendment to the charging document that “was not a mere correction of a scrivener’s error but instead was a change to an element of the offense”); Diaz v. State, 38 So.3d 791, 793 (Fla. 4th DCA 2010) (reversing where the state amended the information, after defense counsel moved for a judgment of acquittal, to allege oral union instead of digital penetration).

Appellant also argues the trial court abused its discretion in overruling defense counsel’s objections to improper arguments during closing argument. “[A]ttorneys are afforded wide latitude in presenting closing arguments. The control of these comments is within the trial court’s discretion, and an appellate court will not interfere unless an abuse of such discretion is shown.” Dufour v. State, 905 So.2d 42, 64 (Fla. 2005) (citation omitted).

During rebuttal closing argument, the state argued:

The judge is going to read you the law. One of the things that he’s going to tell you is that it’s not the number of witnesses or the number of exhibits that the state attorney, that’s me, puts into evidence, it is the quality. I can prove a case with just one witness just on their testimony. If you believe [the victim] he sits here guilty.

Defense counsel objected on the ground of improper characterization, and the trial court overruled the objection.

The state also argued:

But let’s give you that and say she is a pathological liar, she lied on the stand, she lied to the nurse, she lied to- everybody, and she lied about the injury to her, and then she deleted all of the messages and she tried to somehow railroad him into this because she is a criminal mastermind and not a teenage girl who was sitting up here crying while she tried to recount to you one of the worse things that ever happened. If you believe all of that you should walk him. If you believe all of that, if all of that is true [appellant] is either the unluckiest man alive or he is guilty.

Defense counsel objected based on improper argument, and the trial court overruled the objection.

On appeal, appellant asserts these arguments constituted improper burden-shifting because they asked the jury to determine who was lying as the test for deciding if appellant was guilty. Initially, appellant’s argument is not preserved. With respect to the first closing argument challenged on appeal, the objection raised below, that being improper characterization, is different from the argument raised on appeal, improper burden-shifting. “In order to preserve an issue for appeal, counsel must preserve the issue by making a specific objection to the admission of evidence on the same grounds as raised on appeal.” Castro v. State, 791 So.2d 1114, 1115 (Fla. 4th DCA 2000).

With respect to the second closing argument challenged on appeal, the objection of “improper argument” was insufficient to preserve the issue for appeal. See Braddy v. State, 111 So.3d 810, 850 (Fla. 2012) (finding that objection on grounds of improper argument was “nonspecific” and insufficient to preserve argument for appeal); Jones v. State, 760 So.2d 1057, 1058 (Fla. 4th DCA 2000) (holding that objection on grounds of “[ijmproper argument” “did not apprise the trial court of the precise argument made here”).

These arguments, though un-preserved, were inappropriate and thus error. As the. supreme court has stated:

The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the State has proven every essential element of the crime beyond a reasonable doubt. For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.

Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998); see also Clewis v. State, 605 So.2d 974, 975 (Fla. 3d DCA 1992) (“The test for reasonable doubt is not which side is more believable, but whether, taking all of the evidence in the case into consideration, guilt as to every essential element of the charge has been proven beyond a reasonable doubt.”). For this reason, it is “impermissible [to] ... ask[ ] the jury to determine who was lying as the test for deciding if appellant was not guilty.” Northard v. State, 675 So.2d 652, 653 (Fla. 4th DCA 1996).

The comments in the instant case are similar to those which have been found improper. In Gore, the supreme court reversed where the prosecutor argued that if the jury believed defendant was lying, he was guilty. 719 So.2d at 1200-01. Similarly, in Northard, this court reversed where the prosecutor argued that if the’jury believed the defendant, it must conclude the police officers were lying. 675 So.2d at 653. See also Freeman v. State, 717 So.2d 105, 106 (Fla. 5th DCA 1998) (finding improper burden-shifting where the prosecutor told the jurors that if they believed the police officers instead of the defendant, then they should find the defendant guilty). We do not reverse on this particular issue because it was not properly preserved. We remind prosecutors again to refrain from arguments such as those in the instant case.

In sum; we affirm appellant’s convictions for counts I and II, reverse appellant’s conviction for count III, and remand for the trial court to vacate his conviction and sentence on that count.

Affirmed in part, reversed in part, and remanded.

Conner, J., and Small, Lisa, Associate Judge, concur.


text:
    VICTORVILLE WEST LIMITED PARTNERSHIP, Appellant, v. The INVERRARY ASSOCIATION, INC., a Florida Non-Profit Corporation, Appellee.
    No. 4D16-2266
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]

      Matthew P. Leto of Hall, Lamb and HaU, P.A., Miami, for appellant.
    Geralyn M. Passaro and Angela M. Swenka of Litchfield Cavo, LLP, Fort Lauderdale, for appellee.
   Levine, J.

Appellant purchased a golf course with a restrictive covenant and now seeks to cancel the covenant because the golf course has become unprofitable. Appellant contends there has been a substantial change in circumstances such that the covenant’s purpose can no longer be carried out and that the covenant is an unlawful restraint on alienation. Additionally, appellant argues that the statute of limitations did not bar its claim. Thus, we are confronted with the issue of whether a property owner may cancel, a restrictive covenant when that covenant has become financially onerous. Although we find appellant’s claim not to be time-barred, we conclude that the restrictive covenant may not be cancelled because it remains beneficial to the dominant estate holders and does not create an unlawful restraint on alienation;

The Inverrary Golf Course and Clubhouse within the Inverrary community has been encumbered by a restrictive covenant since 1971. This covenant states as follows:

The [Golf Course] shall henceforth be used solely for recreational purposes, including all sports as defined herein, and for the Facilities and amenities appurtenant thereto, such as clubhouses and recreational, maintenance, and storage facilities and equipment. For the purposes of this Declaration, the term “sports” shall be deemed to include, by way of illustration arid not in limitation thereof, the following: Golf, tennis, horseback riding, swimming and all such other recreational activities as may be appropriate and in keeping with the overall development of Inverrary....
Developer agrees that henceforth, when at any time [the Golf Course] has a roster of Fifteen Hundred (1500) Golf Memberships ... it will not at any such time offer, sell, or admit to golf membership any persons or families not then bona , fide residents of Inverrary,
Duration. The foregoing Restrictions shall run with, and be binding upon, the [Golf Course] as an .obligation and charge against the same, running with the land for the benefit of the owners of the property •... for a term of twenty-five (2.5) years from the date this Declaration is recorded, after which time the said restrictions shall be automatically renewed for successive ten (10) year periods; provided however that at the expiration of the initial term or any renewal thereof, the foregoing restrictions may be amended, modified or terminated by the affirmative vote of the owners of not less than two-thirds (2/3) of the land area ....

This covenant is recorded in the Broward County records and is incorporated into the deeds of the surrounding residential properties.

In 2006, Victorville West Limited Partnership purchased the golf course “SUBJECT TO ... all covenants ... listed in the Public Records of Broward County, Florida.” Since purchasing the golf course, membership, particularly among Inverrary residents, has dropped significantly. As a result, Victorville has suffered financially.

Victorville asked The Inverrary Association, Inc., the local homeowners association, to facilitate a vote of local residents so Victorville could relieve itself of the restrictive covenant. The association refused. When Victorville attempted to hold its own meeting, only one to two percent of residents chose to attend. Members of the community indicated they liked the golf course, even if they did not have a membership, because it provided a tranquil view, prevented overcrowding, and preserved the nature of the community.

Victorville filed suit against the association in 2012, arguing the covenant was an economic hardship and sought to cancel the covenant. Following a non-jury trial, the trial court concluded Victorville’s claim was time-barred because the statute of limitations began to run when it purchased the golf course and it did not bring its claim within the five-year statutory limit. The trial court further found that even if the statute of limitations had not run, Victorville was not entitled to vacate the restrictive covenant, stating the covenant remained beneficial to the surrounding community. Victorville appealed.

On appeal, Victorville argues the trial court should have cancelled the restrictive covenant because a substantial change in circumstances prevented the covenant’s original purpose from being carried out and the covenant was an unlawful restraint on alienation.

We review the trial court’s findings of fact under the clearly erroneous standard of review and its legal conclusions and application of the law to the facts de novo. See Fito v. Attorney’s Title Ins. Fund, Inc., 83 So.3d 755, 757-58 (Fla. 3d DCA 2011).

[I]n an action to cancel a restrictive covenant the test is whether or not the covenant is valid on the basis that the original intention of the parties can be carried out despite alleged materially changed conditions or, on the other hand, whether the covenant is invalid because changed conditions have frustrated the object of the covenant without fault or neglect on the part of the party who seeks to be relieved from the restrictions.

Essenson v. Polo Club Assocs., 688 So.2d 981, 984 (Fla. 2d DCA 1997) (citation omitted); see also AC Assocs. v. First Nat’l Bank of Fla., 453 So.2d 1121, 1127 (Fla. 2d DCA 1984) (“If a restriction on the servient estate was for the benefit of, and is still of substantial value to, the dominant estate, it will be enforced regardless of changed conditions.”). A restrictive covenant’s purpose is “determined by a fair interpretation of the entire text of the covenant.” Wilson v. Rex Quality Corp., 839 So.2d 928, 930 (Fla. 2d DCA 2003) (citation omitted).

The golf course continues to benefit the “dominant estate[s],” the surrounding residential properties. Although few Inverrary residents have memberships at the golf course, the golf course preserves the character of the community and provides residents with a pleasant view. These are reasonable objectives of a restrictive covenant. See Metro. Dade Cty. v. Sunlink Corp., 642 So.2d 551, 555 (Fla. 3d DCA 1992); Imperial Golf Club, Inc. v. Monaco, 752 So.2d 653, 654 (Fla. 2d DCA 2000). Thus, even if the golf course is failing financially, the covenant must be enforced because it remains a “substantial value to” the surrounding residences, the dominant estates. AC Assocs., 453 So.2d at 1127.

Victorville argues that the covenant anticipates a bilateral relationship where members of the community get memberships in the club and the club provides a recreational facility. Although the covenant prioritizes community members over non-community members, nothing in the covenant shows that its intent is for the golf course to be a profitable enterprise. Vic-torville’s financial hardships do not support cancellation of the covenant because “the law does not permit cancellation of property restrictions for the purpose of accommodating the best or most profitable use of a particular piece of property affected by the restriction.” Essenson, 688 So.2d at 983.

Victorville also argues the covenant is perpetual, as getting a two-thirds vote is virtually impossible without the association’s assistance. “The rule against restraints on alienation ‘has long been recognized as precluding only unlimited or absolute restraints on alienation.’ ” Camino Gardens Ass’n v. McKim, 612 So.2d 636, 640 (Fla. 4th DCA 1993) (citation omitted). “When determining the validity of restraints on alienation, courts must measure such restraints in terms of their duration, type of alienation precluded, or the size of the class precluded from taking.” Id. at 639. The duration of the covenant is significant though not perpetual because the covenant may be removed by a two-thirds vote of surrounding homeowners. See Sunlink Corp., 642 So.2d at 554. Further, there is no restriction on the “type of alienation precluded” or “the size of the class precluded from taking.” See Camino Gardens, 612 So.2d at 639. Indeed, no evidence suggested Victorville ever attempted to even market the property. Therefore, the covenant does not create an “unlimited or absolute restraint[ ] on alienation.” Id. at 640 (citation omitted).

The trial court also concluded Victorville filed its claim after the five-year statute of limitations had run because its claim came into existence when it purchased the golf course. See § 95.11(2)(b), Fla. Stat. (2013). We find this portion of the trial court’s order to be error. The statute of limitations begins to run “when the action ‘may be brought.’ ” See Harris v. Aberdeen Prop. Owners Ass’n, 135 So.3d 365, 368 (Fla. 4th DCA 2014) (quoting City of Riviera Beach v. Reed, 987 So.2d 168, 170 (Fla. 4th DCA 2008)). For the statute of limitations to have begun to run when Victorville purchased the golf course, a substantial change in circumstances would have had to have taken place before Victorville purchased the property, but no evidence was presented to indicate that such a change had taken place.

In summary, although we conclude the trial court incorrectly found the statute of limitations barred Victorville’s claim, we nevertheless affirm because the trial court correctly found the covenant could not be cancelled because it remained a substantial benefit to the surrounding homeowners and was not an unlawful restraint on alienation.

Affirmed.

Gerber, C.J., and Conner, J., concur.


author: Kuntz, J.

text:
    Matthew V. HAWKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2403
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The Defendant appeals his conviction and sentence, arguing the court erred when it failed to conduct a hearing and issue a written order determining his competency after previously finding reasonable grounds to question his competence. We agree, vacate the conviction and sentence, and remand for further proceedings.

Background

In 2014, the State charged the Defendant by information with making a false report of placing a bomb or other deadly explosive with the intent to deceive. He pled no contest, and the court withheld adjudication and placed him on probation for five years.

One of the special conditions of his probation prohibited him from “accessing the Internet or other computer services with Internet access.” After he accessed Face-book during his probationary period, the State issued an affidavit of violation of probation.

On two occasions his counsel moved for a competency determination and asked for a court-appointed physician to examine him. The court granted both motions, but the record does not contain any medical evaluations nor any indication as to what the Defendant’s medical evaluations may have revealed.

The only reference to the Defendant’s competency found in the record occurred during a change of plea hearing when the court asked him if he was taking any medication. The Defendant responded that he was taking “like six” psychotropic medications. The court noted the Defendant’s prior mental health issues and then asked defense counsel whether there was an evaluation of the Defendant and whether he was competent. Counsel responded affirmatively to both questions. After this brief inquiry, the court accepted the change of plea and entered judgment against the Defendant. The court sentenced him to ten years in prison followed by two years of community control. This appeal followed.

Analysis

The procedure for determining a defendant’s competency is governed by Florida Rules of Criminal Procedure 3.210 through 3.215. We review the court’s judgment and its compliance with these rules de novo. Baker v. State, 221 So.3d 637 (Fla. 4th DCA 2017) (citation omitted).

Under Rule 3.210, “once a trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing,” Monte v. State, 51 So.3d 1196, 1202 (Fla. 4th DCA 2011) (citing Fla. R. Crim. P. 3.210-3.212). The court’s obligation is triggered upon its initial finding that occurs when it enters an order appointing an expert to evaluate a defendant’s competency. Id.; see also Moorer v. State, 187 So.3d 315, 317 (Fla. 1st DCA 2016). Rule 3.210 is clear and is designed to “safeguard a defendant’s due process right to a fair trial and to provide the reviewing court with an adequate record on appeal.” Dougherty v. State, 149 So.3d 672, 676 (Fla. 2014).

Here, based upon two motions filed by defense counsel, the court determined it had reasonable grounds to question the Defendant’s competency and appointed a physician to evaluate him. That finding triggered the court’s obligation to conduct a competency hearing. The record does not indicate whether the court reviewed the evaluations it ordered or made any findings based upon any evaluations. Merely asking counsel whether the Defendant is' competent was not sufficient to satisfy Rule 3.210(b), which requires the court to hold a hearing to independently determine the Defendant’s competency.

Further, Florida Rule of Criminal Procedure 3.212(b) “mandates the entry of a written order of competency.” Holland v. State, 185 So.3d 636, 637 (Fla. 2d DCA 2016) (citing Dougherty, 149 So.3d at 677). Even if an evaluation indicates that a defendant is competent to proceed, the law requires the court to issue a written order finding the defendant competent. Deferrell v. State, 199 So.3d 1056, 1061 (Fla. 4th DCA 2016). The court did not enter such a written order.

To summarize, Rule 3.210 is triggered when a court makes an initial determination that it has reasonable grounds to question the competency of a defendant. When that initial determination is made, the court must take the following three steps.

First, the court must enter an order that schedules a competency hearing, appoints experts to evaluate the defendant’s competency, and satisfies the requirements of Rule 3.210(b)(4).

Second, as required by Rule 3.212(b), the court must hold the scheduled hearing during which any party or the court may call the appointed experts to testify, and the parties may introduce any other evidence that has bearing on the defendant’s competence.

Third, the court must issue a written order making findings as to the competency of the defendant as is specifically required by Rule 3.212(b).

In this case, while the court appointed an expert to evaluate the Defendant’s competency, it did not hold the required hearing or issue an order making findings as to the Defendant’s competency. This was error. Therefore, we vacate the court’s judgment and sentence.

Now we turn to the proceedings on remand. “Generally, failing to find a defendant competent after previously finding reasonable grounds to question his competency would entitle the ‘defendant to receive a new trial, if deemed competent to proceed on remand.’” D.B. v. State, 222 So.3d 627, 2017 WL 2665073, 42 Fla. L. Weekly D1401 (Fla. 4th DCA June 21, 2017) (quoting Dougherty, 149 So.3d at 678-79). However, based upon statements of the Defendant’s counsel to the court, there is some indication in the record that a competency evaluation was conducted. Therefore, a retroactive determination of competency may be possible if the expert and fact witnesses are able to testify based upon observations and conclusions made contemporaneously with the court’s earlier adjudication. Id.; see also A.L.Y. v. State, 212 So.3d 399, 404 (Fla. 4th DCA 2017); Bain v. State, 211 So.3d 139, 140 (Fla. 4th DCA 2017).

In determining whether a nunc pro tunc evaluation is possible, the court must be mindful of the Defendant’s due process rights and must not make a nunc pro tunc determination if those rights are not protected. Baker, 221 So.3d 637 (citing A.L.Y., 212 So.3d at 404). In that instance, the court must adjudicate his current competency and, if he is found competent, the court may proceed on the merits on the charges.

Conclusion

When the court made the initial determination that it had reasonable grounds to question the Defendant’s competency, it was required to hold a hearing and determine whether the Defendant was competent to proceed. Because the court failed to hold the requisite hearing and failed to enter an order finding the Defendant competent, we vacate the conviction and sentence and remand for further proceedings consistent with this opinion.

Vacated and remanded for further proceedings.

Taylor and Damoorgian, JJ., concur.

      . Rule 3.210(b)(4) mandates the order to "(A) identify the purpose or purposes of the evaluation, including the nature of the material proceeding, and specify the area or areas of inquiry that should be addressed by the evaluator; (B) specify the legal criteria to be applied; and (C) specify the date by which the report should be submitted and to whom the report should be submitted.”


text:
    Edwin MENA and Carla Mena, Appellants, v. Santiago URIBE, Appellee.
    No. 4D16-3267
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]

      Edwin Mena and Carla Mena, Homestead, pro se.
    No appearance for appellee.
   Damoorgian, J.

Edwin and Carla Mena (“Defendants”) appeal from a final summary judgment entered in favor of Santiago Uribe (“Plaintiff”). For the reasons discussed below, we affirm the summary judgment on the issue of liability but reverse and remand on the issue of damages.

In 2014, Plaintiff sued Defendants for $22,000 after they defaulted on certain loans. The complaint alleged that Plaintiff and Defendants entered into “business transactions” which resulted in Plaintiff lending them money. As collateral for the loans, Plaintiff was given a possessory lien on a Ford F850 truck belonging to Defendants. Plaintiff was also given physical possession of the truck while the loans were being repaid. According to the complaint, the $22,000 represented money “that is due with interest since March 29, 2013 for money lent by Plaintiff to Defendants” as well as “storage fees and repairs on the [truck].” Attached to Plaintiffs complaint was a pre-suit demand letter sent from Plaintiffs attorney to Defendants offering to settle the $22,000 debt for $17,000.

Defendants answered the complaint and denied all the material allegations. They also raised several affirmative defenses including, amongst others, that Plaintiff never specified a due date for the repayment of “any loans that purportedly were made to the Defendants.” Defendants also denied pledging the truck as a collateral, maintaining instead that Plaintiff was actually lent the truck in exchange for him agreeing to pay all monthly finance and insurance payments.

Plaintiff eventually moved for summary judgment and, contrary to the amount alleged in the complaint, now alleged $44,587.98- in damages. In support of his motion, Plaintiff attached: (1) the pre-suit demand letter listing the amount of damages as $22,000; and (2) an affidavit written by Plaintiff attesting that Defendants presently owed the following itemized amounts:

• $10,000 for Bank of America loan payments.
• $3,600 for insurance on the truck.
• $5,965.88 for truck repairs.
• $22,200 in storage fees for having to store the truck for five years.
• $2,422.10 for cell phones.
• $400 for traffic citations paid for by Plaintiff.

The affidavit also referenced and attached a series of text messages between Plaintiff and Defendants. In those text messages, which were sent after Plaintiffs attorney mailed the pre-suit demand letter but before he filed the complaint, Defendants repeatedly assured Plaintiff that they were getting the money together to repay him and “resolve” everything.

Defendants did not timely respond to the motion for summary judgment. The record reflects that the matter proceeded to a summary judgment hearing and that all parties were in attendance. The hearing, however, was not transcribed. Following the hearing, the court entered final summary judgment in favor of Plaintiff in the amount of $44,587.98.

Defendants thereafter moved for rehearing and argued, amongst other things, that they did not owe Plaintiff any money and “never acknowledged the debt.” Defendants attached affidavits to their motion wherein they expressly acknowledged that Plaintiff had lent them money; paid to have the truck returned after it was repossessed; paid to have the truck repaired; purchased a cell phone for them; and paid their traffic citations. They also attached three bank slips showing that after the pre-suit demand letter was sent but before the complaint was filed, Defendants paid Plaintiff a total of $2,500. Defendants nonetheless maintained that they owed Plaintiff no money. The trial court ultimately denied the motion. This appeal follows.

“We review a trial court’s order on a motion for summary judgment de novo.” Hibbs Grove Plantation Homeowners Ass’n v. Aviv, 193 So.3d 977, 979 (Fla. 4th DCA 2016). “A trial court may enter summary judgment only when there are no genuine issues of material fact conclusively shown from the record and the movant is entitled to judgment as a matter of law.” Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002). Moreover, “[a]ll doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.” Id. (emphasis added).

In the present case, the unrebutted summary judgment evidence conclusively demonstrated that a debt was owed and that Defendants were liable for that debt. The same, however, cannot be said for the amount owed as Plaintiffs own conflicting summary judgment evidence created an issue of fact as to the proper amount of damages. Specifically, the pre-suit demand letter and complaint both alleged damages in the amount of $22,000 whereas Plaintiffs affidavit alleged damages in the amount of $44,587.98. In light of the conflicting evidence, it was error for the trial court to enter summary judgment on the issue of damages. See Reeves, 821 So.2d at 321. Accordingly, we affirm the summary judgment in favor of Plaintiff on the issue of liability and reverse and remand for further proceedings on the issue of damages only.

Affirmed in part, reversed in part, and remanded.

Taylor and Kuntz, JJ., concur.


author: Per Curiam.

text:
    Donnie WINFREY, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4140
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]
    Donnie Winfrey, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Donnie Winfrey appeals the summary denial of his amended rule 3.850 motion for postconviction relief. The trial court failed to rule on Winfrey’s claim within ground one that counsel failed to advise him, before he entered an open plea, that the court could impose consecutive sentences. We therefore reverse and remand for the trial court to consider that claim. See, e.g., Hebert v. State, 162 So.3d 64 (Fla. 4th DCA 2014). We affirm the denial of Winfrey’s other claims.

Affirmed in part; reversed and remanded in part.

Damoorgian, Ciklin and Levine, JJ., concur.


text:
    Gigi CRUZ, Appellant, v. The VINEYARDS OF PLANTATION, CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D17-366
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]
    Bruce Botsford of Bruce Botsford, P.A., Fort Lauderdale, for appellant.
    Ilian Rashtanov of The Rashtanov Law Firm, P.L., Fort Lauderdale, for appellee.
   Per Curiam.

The trial court denied appellant’s motion to vacate a final summary judgment that foreclosed a condominium lien. We exercise de novo review and reverse because appellant was denied proper service of the notice of the final hearing. Vercosa v. Fields, 174 So.3d 550, 552 (Fla. 4th DCA 2015). Appellee did not give the pro se appellant notice and an opportunity to be heard at the summary judgment hearing because it did not serve the notice of hearing by e-mail and physical mail as required by a prior court order.

A previous order granting appellant’s counsel’s motion to withdraw provided that all papers or other filings were to be served on appellant at a stated physical mailing address and an e-mail address. This dual service was to accommodate appellant’s work-related travel requirements. The trial court also stayed the case to allow appellant time to obtain new counsel.

Appellant did not retain new counsel and about a month after the stay expired, appellee served appellant with a notice of hearing on the motion for summary judgment by regular and certified mail. Appel-lee did not serve the notice by e-mail as required by the withdrawal order.

Appellant did not appear at the hearing and the trial court entered the final summary judgment. About a month later appellant moved to set the judgment aside, noting that she was not served by email, that she was out of town when the notice was mailed, and that she did not return until after the hearing. There was no dispute that the certified mailing was returned as undelivered.

Appellant argued that the final judgment was void for lack of service and/or that it was entered upon mistake, inadvertence, surprise or excusable neglect. Fla. R. Civ. P. 1.540. The trial court denied appellant’s motion, commenting that appellant failed to demonstrate excusable neglect or a meritorious defense. Neither is required because the judgment was entered without proper notice, thereby denying appellant due process. Hendrix v. Dep’t Stores Nat’l Bank, 177 So.3d 288, 290 (Fla. 4th DCA 2015). Here, appellee failed to comply with the court’s order that required all papers or other filings to be served on appellant at a stated physical mailing address and an e-mail address. Thus, we reverse the order denying the motion to vacate and remand for the trial court to vacate the final summary judgment.

Reversed and remanded.

Warner, May and Levine, JJ., concur.


text:
    Mark H. LEINBERGER and Kyle Foreman, Petitioners, v. Joel MAGEE, Respondent.
    No. 4D17-1400
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]

      Roger Levine and Amy- D. Shield of Shield & Levine, P.A., Boca Raton-, and Bennett S. Cohn of Law Offices of Bennett S. Cohn, West Palm Beach, for petitioners.
    Scott D. McKay of McKay Law Firm, P.A., Bradenton, for respondent.
   Per Curiam.

Petitioners Mark Leinberger and Kyle Forman seek certiorari review of a trial court order that granted respondent Joel Magee’s motion for leave to claim punitive damages. Certiorari lies to review this order because the trial court failed to follow the procedures required for such pleadings. See Tilton v. Wrobel, 198 So.3d 909 (Fla. 4th DCA 2016).

The complaint alleged tortious interference with a business relationship and defamation. An email attached to the complaint was sent to a hotél representative at a site where respondent had contractually agreed to conduct a toy buying event. The email contained a claim that respondent was acting beyond his .contractually limited territory in conducting the event there, had a poor reputation in the collectible toy community and had “run afoul of the Better Business Bureau.”'

The trial court conducted a hearing on respondent’s motion for leave to amend, but- there was no court reporter present and thus no transcript can be provided. The court granted the motion in an order that did not explain its rationale'"and did not indicate for which counts it intended to allow a punitive damages claim.

Section 768.72(1), Florida Statutes (2016), provides that a punitive damages claim is permitted only on a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” In Varnedore v. Copeland, 210 So.3d 741 (Fla. 5th DCA 2017), the Fifth District recently granted a petition while framing the procedural requirements for a motion for leave to amend to seek punitive damages.

First, the movant must attach "the pro-1 posed amended pleading to the motion seeking leave to amend, in compliance with Florida Rule of Civil Procedure 1.190(a). Id. at 744-47. The record in this case reveals no proposed amended pleading was attached to respondent’s motion for leave to amend. Petitioner correctly argues that this failure warrants certiorari relief. “Moving to amend without attaching a copy of the proposed amended pleading is insufficient.” Id. at 745.

Second, Vamedore held that pursuant to rule 1.190(f), the “proffer” or .other evidence of record’ to support the punitive damages claim must be served prior to the hearing on the motion for leave to amend. Id. at 747. The rule requires that it be served at least twenty days before the hearing. Our record does not demonstrate compliance with this requirement either.

Third, the trial court must make an affirmative finding that the plaintiff made a “ ‘reasonable showing by evidence,’ which would provide a ‘reasonable evidentiary basis for recovering such damages’ if the motion to amend is granted.” Id. at 747-48 (quoting SAP Am. Inc. v. Royal Flowers, Inc., 187 So.3d 946, 947 (Fla. 3d DCA 2016)). The trial court’s order under review contained no such finding and did not reference such an affirmative finding made at the hearing either.

In granting the petition, this court is not reweighing or considering the sufficiency of the evidence presented. That is not permitted under the case law. Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla. 1995). Rather, we conclude that the trial court failed to comport with the procedural requirements for entertaining and ruling on a motion to amend under section 768.72(1), Florida Statutes (2016), Florida Rule of Civil Procedure 1.190(a) and the case law.

Petition granted. Order quashed.

Gross, Levine and Klingensmith, JJ., concur.


text:
    Clifford LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1705
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]
    Clifford Lynch, Sylvania, GA, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Villanueva v. State, 200 So.3d 47 (Fla. 2016).

Taylor, Levine and Klingensmith, JJ., concur.