author: Taylor, J.

text:
    Calvin CALLWOOD, Appellant, v. Toleatha CALLWOOD, Appellee.
    No. 4D16-1595
    District Court of Appeal of Florida, Fourth District.
    [ July 5, 2017 ]

      James S. Cunha of the Law Offices of James S. Cunha, P.A., West Palm Beach, for appellant.
    Alan R. Burton, Boca Raton, for appel-lee.
   Taylor, J.

The former husband appeals a final judgment of dissolution of marriage. We affirm on the time-sharing issue without further comment. However, we reverse the equitable distribution plan because the trial court failed to make the required findings regarding the factors enumerated in section 61.075(1), Florida Statutes (2016). We also reverse the trial court’s determination of the husband’s income for child support purposes.

Equitable Distribution

Under the trial court’s equitable distribution schedule, the net equitable distribution to the wife was $86,613, and the net equitable distribution to the husband was $86,614. Additionally, each party was entitled to receive 50% of the proceeds of the sale of the marital home, which had about $400,000 in equity.

The trial court also distributed the parties’ entire interest in a property in the U.S. Virgin Islands called “Estate Peter-borg,” along with the liens and debt thereon, to the wife. The husband hired a contractor to build a single-family dwelling on the property, but construction is not complete.

The husband testified that the Estate Peterborg property was worth around $565,000, a figure he derived from the latest value provided by the tax assessor. However, the husband admitted that the value of the property would go up substantially as soon as an occupancy permit is issued.

The wife also testified the Estate Peter-borg property was currently worth about $500,000 without an occupancy permit, which was similar to the tax assessor’s valuation. However, the wife testified that once an occupancy permit is issued, the property “stands to be worth between three to five million dollars.”

The trial court found that there was no credible evidence as to the value of Estate Peterborg. It nonetheless relied upon the tax assessor’s valuation and found that Estate Peterborg was worth $565,300, less the outstanding liens totaling $635,000, for a total negative value of $69,700. However, the trial court did not actually factor the value of Estate Peterborg into the equitable distribution schedule, as the liability of Estate Peterborg’s negative value of $69,700 is not shown as being distributed to either party.

On appeal, the husband argues that the trial court erred in awarding the Estate Peterborg to the wife without making the findings of fact required by section 61.075, Florida Statutes (2016). We agree.

The standard of review for a trial court’s equitable distribution of marital assets and liabilities is abuse of discretion. Pierre v. Pierre, 185 So.3d 1264, 1265 (Fla. 4th DCA 2016). However, a trial court’s failure to consider mandatory statutory factors is error as a matter of law. Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003).

Section 61.075(1), Florida Statutes, “lists ten separate factors for the trial court to consider when determining the equitable distribution of assets and liabilities in a dissolution of marriage action, and whether the equitable distribution should be equal or unequal.” Richardson v. Knight, 197 So.3d 143, 146 (Fla. 4th DCA 2016).

Section 61.075(3), in turn, requires the trial court to make specific findings regarding equitable distribution in any contested dissolution action where there is no stipulation between the parties:

(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1)....

§ 61.075(3), Fla. Stat. (2016) (emphasis added).

The factors listed in section 61.075(1) “should be used in any contested case to justify any equitable distribution of marital assets, fifty-fifty or otherwise.” McMonagle v. McMonagle, 617 So.2d 373, 373-74 (Fla. 5th DCA 1993).

Reversible error occurs where “the equitable distribution in the final judgment is not supported by factual findings with reference to the factors listed in section 61.075(1), as required by section 61.075(3) when a stipulation and agreement has not been entered and filed.” Richardson, 197 So.3d at 146 (citation and internal quotation marks omitted). Although compliance with section 61.075(3)’s requirements of written findings of fact “is not necessary when the parties have reached a valid agreement regarding equitable distribution, these requirements must be met when there is no such agreement and a distribution scheme is ordered by the court.” Id. (citation omitted).

Here, regardless of whether the overall equitable distribution was equal or unequal, the trial court erred in entering an equitable distribution plan that was not supported by factual findings in the final judgment with reference to the factors enumerated in section 61.075(1). Such findings were required by section 61.075(3) because this was a contested' dissolution action in which “a stipulation and agreement has not been entered and filed.” .

We decline to reach the husband’s argument that a proper application of the factors under section 61.075(1) would favor an equitable distribution of Estate Peterborg to him or, in the alternative, a distribution of the property to both parties as tenants in common.

Based on the foregoing, we reverse and remand for the trial court to make the requisite findings using the factors outlined in section 61.075(1).

The Husband’s Income

After the husband’s release from prison, the husband began working from home as a dispatcher for a transportation company owned by his girlfriend. According to his most recent financial affidavit, the husband had a net monthly income of $2,103. The husband reported that his proposed/estimated monthly expenses would be $4,749, and claimed a monthly deficit of $2,646.

On the issue of the husband’s income, the trial court found that the husband receives a biweekly salary of $708.04 and rental income of $850 per month. Due to the husband’s criminal conviction and incarceration, the trial court found that the husband’s job prospects were somewhat limited.

The trial court, however, relied on the monthly defipit the husband claimed on his financial affidavit as the basis for finding that the husband was receiving additional income from his- family, his girlfriend, or some other undisclosed source. Specifically, the trial court found that the husband’s “expenses are being paid from an undisclosed source on a regular basis, at least to the extent of the claimed deficit.” Accordingly, the trial court found that .‘the husband “earns or is capable of earning at least $4749 net per month.”

On appeal, the husband argues that the trial court’s determination of his income was based on a misinterpretation of his financial affidavit and was not supported by competent substantial evidence. We agree.

A trial court’s determination of a party’s income for purposes of establishing support obligations must ,be supported by competent substantial evidence. Sallaberry v. Sallaberry, 27 So.3d 234, 236 (Fla. 4th DCA 2010). However, to the extent the trial court’s ruling was based on its interpretation of a written document, the standard of review is de novo. Muir v. Muir, 925 So.2d 356, 358 (Fla. 5th DCA 2006).

The competent substantial evidence standard “is not satisfied by evidence which merely creates a suspicion or which gives equal support to inconsistent inferences.” Fla. Rate Conference v. Fla. R.R. & Pub. Utils. Comm’n, 108 So.2d 601, 607 (Fla. 1959), “Surmise, conjecture.or speculation have been held not to be substantial evidence,” Id.

Gross income includes “[r]eim-bursed expenses or in kind payments to the extent that they reduce- living expenses.” § 61.30(2)(a)13., Fla. Stat. (2016). “Specific dollar values for the in kind contributions and reimbursed expenses must be determined, and the other statutory computations must be performed, in order to arrive at the parties’ net income levels, a proper support amount, and the respective shares of support.” Garcia v. Garcia, 560 So.2d 403, 404 (Fla. 3d DCA 1990).

A party’s income may also include gift income “if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.” Carlson v. Carlson, 204 So.3d 456, 457 (Fla. 4th DCA 2016) (citation and internal quotation marks omitted).

Here, competent substantial evidence did not ■ support the trial. court’s finding that the husband received additional income from his family, his girlfriend, or another undisclosed' source in the amount of $2,646. Although the husband’s parents provided financial support to the wife while the husband was in prison, there was no evidence that the husband’s parents gave him ongoing gifts that would continue in the future. Further, while the husband worked for his girlfriend and apparently lived with her, there was -no evidence that the husband received reimbursed expenses or in-kind payments from his girlfriend.

The trial court inferred that the husband received additional income of $2,646 because this was the amount of the deficit he claimed on his financial affidavit. Under the facts of this case, such an inference was conjecture, rather than competent substantial evidence.

First, the written instructions on the financial affidavit state:. “If this is a dissolution of marriage case and your expenses as listed below do not reflect what you actually pay currently, you should write ‘estimate’ next to each amount that is estimated.” Here, the deficit on the husband’s financial affidavit was-derived from “proposed/estimated” expenses that were not reflective of what the husband currently pays, and thus could not support an inference that the husband was currently receiving undisclosed income.

Second, the trial court’s analysis overlooked that the husband had the . ability to fund the claimed deficit with personal assets, at least until the children reached the age of majority. The husband reported a net worth of $672,732, including the roughly $200,000 he stood to receive once the marital home sold.

Finally, even if the deficit on the husband’s financial affidavit constituted competent substantial evidence of undisclosed income, it was fundamentally unfair for the trial court to treat the husband’s deficit differently than the wife’s deficit. If the trial court had applied the same reasoning to the wife’s deficit as .the court applied to the husband’s deficit, the court should have found that the wife was receiving additional income from her boyfriend or some other undisclosed source in an amount equal-to her actual deficit.

Although we understand the trial court’s frustration with the husband’s seeming lack of credibility on financial issues, the court’s determination of income must nevertheless be supported- by competent substantial evidence. Accordingly, we reverse on this issue and remand for further proceedings consistent with this opinion. On remand, the trial court may, in its discretion, either: (1) reduce the husband’s income by $2,646 and recalculate child support accordingly; or (2) take additional evidence regarding the husband’s income.

Affirmed in part, Reversed in part, and Remanded.

May and Ciklin, JJ., concur.

      . The trial court’s equitable distribution plan arguably favored the husband, even though the wife received the Estate Peterborg. The trial court found the Estate Peterborg to have a negative value—a finding the husband does not challenge—and the trial court evenly divided the remaining assets and liabilities.

      . In an appropriate case, however, a-spouse’s •puijrarted. deficit on. a financial affidavit might be probative evidence of undisclosed income,

      . The husband argues that, under the trial court’s reasoning, the roughly $5,100 monthly deficit that the wife claimed on her financial affidavit should have been included in her income. However, because the court found the wife’s income to be. significantly higher than the income she claimed on her financial affidavit, her actual monthly deficit would have been significantly less than the deficit she claimed on her financial affidavit, even assuming the expenses on her financial affidavit were correct.


source: Caselaw Access Project

author: EMAS, J.

license: Public Domain

text:
    Daneisis LOPEZ, Appellant, v. Carlos A. PEREZ, Appellee.
    No. 3D16-1013.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2016.
    Neil Morales, Naples, for appellant.
    Bofill Law Group and Jose C. Bofill, for appellee.
    Before WELLS, SHEPHERD and EMAS, JJ.
   EMAS, J.

Daneisis Lopez appeals from three orders entered by the trial court: an order granting Carlos Perez’s verified motion for temporary injunction to prevent removal of the minor child; an order denying Da-neisis Lopez’s verified motion to dissolve the temporary injunction and for immediate return of the minor child; and an “order appointing lawyer/guardian ad li-tem” for the minor child. We affirm in part and reverse in part.

We find no abuse of discretion in the trial court’s entry of an emergency injunction on an ex parte basis. We further find that the trial court properly exercised its discretion, supported by competent substantial evidence, in its subsequent order denying Lopez’s motion to dissolve the temporary injunction. We find no denial of due process in the manner in which the trial court addressed these motions and further conclude that the evidence supported Perez’s assertion that the minor child had been psychiat-rically hospitalized and was in need of immediate mental health treatment, given the evidence that the minor child was then a present danger to the child’s self or others.

However, we reverse the third order, entitled “Order Appointing Attorney/Guardian Ad Litem” for the minor child. It is true that the court has the discretion, if it finds it is in the best interest of the child, to appoint a guardian ad litem to act as next friend of the child. § 61.401, Fla. Stat. (2016). The court also has the discretion to appoint legal counsel for a child to act as attorney or advocate. Id. However, the statute expressly provides that “the guardian and the legal counsel shall not be the same person.” Id. The order is unclear as to the appointed person’s capacity, and Lopez correctly argues that one could reasonably read the order as encompassing both capacities. The trial court erred in entering such an order without designating whether the individual is appointed to act as guardian ad litem or as attorney for the minor child, and delineating the powers and responsibilities corresponding with such appointment. We therefore reverse that order and remand this cause for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded.

      . Contrary to the statement of facts set forth in Lopez's brief, we must view the facts below in a light most favorable to sustaining the determination of the trial court. See Regan v. Regan, 660 So.2d 1166, 1167 (Fla. 3d DCA 1995) (holding, on appeal from order modifying shared parental responsibility, that appellate court must review the entire record in a light most favorable to the prevailing party); Moore v. Staalac, Inc., No. 2, 166 So.2d 814, 815 (Fla. 3d DCA 1964) (holding appellate court must consider the record in a light most favorable to appellee when reviewing disputed issues of fact that have been resolved by the trier of fact).

      . Lopez makes much of the fact that, at the hearing on the motion to dissolve, counsel for Perez referred to the minor child as having been “Baker Acted,” see section 394.451 et seq., Fla. Stat. (2016), and asserts the trial court “relied” upon this characterization as the basis for denying the motion to dissolve. We do not agree. Read in context, this statement by counsel was a shorthand (if inartful) reference to the evidence presented at the hearing that the minor child had been hospitalized for several days (and was initially admitted to the psychiatric ward of the hospital) following certain bizarre behavior, disturbing incidents and indications that the minor child was a danger to the child’s self or others.


author: PER CURIAM.

text:
    Pablo JAPO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2138.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2016.
    Pablo Japo, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

We affirm without discussion the trial court’s" order denying Pablo Japo’s motion to correct illegal sentence.

ORDER TO SHOW CAUSE

Further, Pablo Japo has filed numerous postconviction appeals regarding his conviction and sentence in lower tribunal case No. 90-29389C. Our preliminary review of those prior postconviction proceedings evidences that Japo has engaged in the filing of appeals on claims that were successive, time-barred, or otherwise wholly without merit. We therefore order Pablo Japo, within thirty (30) days from the date of this order, to file a response and to show cause why this court should not prohibit him from submitting further pro se appeals, petitions, motions or other pleadings regarding case number 99-293890, unless such pleadings are signed by an attorney who is a duly licensed member of the Florida Bar in good standing.


author: ROTHENBERG, J. SHEPHERD, J.,

text:
    Arthur S. TURKISH and Shari Turkish, individually and as Trustees of the Ada Turkish Trask 2005 Trust Number One and Ada Turkish Trask 2005 Trust Number Two, Appellants/Cross-Appellees, v. Carole BRODY, Appellee/Cross-Appellant.
    Nos. 3D14-38, 3D14-1819.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2016.

      Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten, for appellants/cross-appellees.
    Samson Appellate Law, and Daniel M. Samson; Kluger, Kaplan, .Silverman, Kat-zen & Levine, P.L., and Bruce A. Katzen and Josh M. Rubens, for appellee/cross-appellant. ’
    Before SHEPHERD, ROTHENBERG, and SCALES, JJ.
   ROTHENBERG, J.

Arthur S, Turkish (“Arthur”) and Shari Turkish (“Shari”) (collectively, “Co-Trustees”) appeal, and Carole Brody (“Carole”) cross-appeals, from orders entered by the trial court relating to the following two adversary proceedings filed by the parties after Ada Turkish Trask’s (“Mrs.Trask”) estate (“the Estate”) was opened: (1) an action filed by Carole against the Co-Trustees, individually and as trustees, alleging breach of fiduciary duty and unjust enrichment (“Trust Litigation”), and (2) an action filed by Arthur, as the personal representative of Mrs. Trask’s estate, seeking to enforce three demand promissory notes executed by Carole and her late husband (“Promissory Notes Litigation”). We affirm in part and reverse in part.

I. FACTS AND PROCEDURAL HISTORY

Mrs. Trask died on June 2, 2010. Later that month, the Estate was opened, and Arthur was named as the Estate’s personal representative. Mrs. Trask’s last will and testament named two of her adult children, Arthur and Carole, as equal beneficiaries and disinherited a third adult child.

A. Trust Number One and Trust Number Two

Prior to her death, Mrs. Trask created the Ada Turkish Trask 2005 Trust Number One (“Trust Number One”) and the Ada Turkish Trask 2005 Trust Number Two (“Trust Number Two”) on January 27, 2005, naming Arthur and his daughter, Shari, as co-trustees.

1. Trust Number One

Carole and Arthur were the beneficiaries of Trust Number One during Mrs. Trask’s lifetime, and upon Mrs. Trask’s death, the remaining principal was to be divided equally between Carole and Arthur. Trust Number One vests the Co-Trustees with “absolute discretion” during Mrs. Trask’s lifetime to make distributions from the trust’s principal to Arthur and/or Carole “in equal or unequal amounts and to either one of them to the exclusion of the other.” Trust Number One also permits Arthur, as trustee, to make distributions to himself for his “support, health, education and/or maintenance without the consent of any other Trustee then serving.” The primary asset transferred into Trust Number One was a 99% interest in the Ada Turkish Trask Family Limited Partnership (“FLP”), which was valued at $2,299,700 when transferred.

2. Trust Number Two

Mrs. Trask was the sole beneficiary during her lifetime of Trust Number Two. Upon Mrs. Trask’s death, the remaining principal was to be divided equally between Arthur and Carole.

B. The Settlement of Mrs. Trask’s Gift Tax Liability

The year after Trust Number One and Trust Number Two were created, Mrs. Trask, through counsel, voluntarily disclosed to the Internal Revenue Service (“IRS”) that she owed over $3 million in outstanding gift taxes for the years 1991 through 2004. In June 2008, Mrs. Trask and the IRS settled for $1,022,500. Mrs. Trask requested that Arthur obtain the money to pay the IRS settlement from Trust Number One, and thereafter, to loan her the money. Without obtaining prior approval from Carole, the Co-Trustees approved the distribution to Arthur; Mrs. Trask executed an unsecured promissory note evidencing the $1,022,500 indebtedness to Arthur, individually; and Mrs. Trask paid the IRS the following day (“IRS transaction”).

C. Carole’s Objection to the IRS Transaction

In late July 2008, Carole’s counsel objected to the IRS transaction, asserting that the transaction was a breach of the Co-Trustees’ “responsibility” because the effect was to give over $1 million to Arthur from Trust Number One, which was intended to benefit both Arthur arid Carole.

D. Accountings for 2005 through 2007 for Trust Number One and Trust Number Two and the Resolution of Carole’s Objections to the IRS Transaction

On August 19, 2009, Carole received revised accountings for the time period covering January 27, 2005 through December 31, 2007, for Trust Number One and Trust Number Two (“2005 to 2007 accountings”), along with a Receipt and Release Agreement (“RRA”). These accountings included a statute of limitations notice consistent with section 736.1008(4), Florida Statutes (2009), which notified Carole that there is a six-month statute of limitations for any claim for breach of trust based on matters adequately disclosed in the accountings or any other written report of the trustees.

In September 2009, in response to Carole’s objections to the IRS transaction, the Co-Trustees and Carole executed a Supplemental Release Agreement (“SRA”), which provides that the SRA was supplementing the RRA for the 2005-2007 ac-countings. The SRA provides that the parties were settling all claims arising out of the IRS transaction. The SRA accurately reflects the IRS transaction and Carole’s objections to the IRS transaction. Specifically, the SRA provides that Arthur, individually, was willing to “assign the Note to Trust Number One in satisfaction of any and all claims against him by all beneficiaries of Trust Number One” arising out of the IRS transaction, and that “each interested party ... waives any right he or she has, might have or has had to object to any action or omission of Arthur Turkish and/or Shari Turkish, individually, or of Arthur Turkish and/or Shari Turkish, as Trustees of Trust Number One.” The SRA also provides that “the Trustees, Arthur Turkish and Shari Turkish, have described and provided the value (if known) of the assets of Trust Number One and Trust Number Two as of December 2007 in a Summary, of Assets being attached to this Supplemental Release Agreement.... ” The attached Summary of Assets provides that as of December 31, 2007, Trust Number One held, in part, a 99% interest in the FLP, and sets forth the value of the FLP. The Summary of Assets also reflects the value of Trust Number Two. Carole executed both the RRA and the SRA.

E.Accountings for 2008, 2009, and 2010

1. 2008 Accountings

On July 7, 2010, Carole received the accountings for Trust Number One and Trust Number Two for the time period stemming from January 1, 2008 to December 31, 2008 (“2008 accountings”), along with the RRA for those accountings. Along with the 2008 accountings and the RRA, the Co-Trustees submitted a Summary of Assets, which adequately disclosed the value of the assets in Trust Number One and Trust Number Two. The 2008 accountings contained the statute of limitations notice, notifying Carole of the applicable six-month statute of limitations for a breach of trust action based on matters disclosed in a trust accounting or other written report of the trustees.

2. 2009 to- 2010 Accountings

On October 11, 2011, Carole received the accounting for Trust Number One and Trust Number Two for the period -stemming from January 1, 2009 to June 30, 2010 (“2009 to 2010 accountings”).

F. The Adversary Proceedings

1. The Trust Litigation Filed by Carole

On April 6, 2011, Carole sued Arthur and Shari individually' and as trustees. The operative complaint asserts, in part, claims for breach of fiduciary duty and unjust enrichment based on their actions as co-trustees of Trust Number One during three separate time periods—January 27, 2005 through December 31, 2007; January 1, 2008 through December 31, 2008; and January 1, 2009 through June 30, 2010—contesting the numerous distributions to Arthur from Trust Number One, including the distribution to Arthur in the amount of $1,022,500 for the IRS transaction in 2008.

The Co-TrusteeS answered the operative complaint, asserting several affirmative defenses, including that Carole’s claims are barred by the RRA and SRA. Both the Co-Trustees and Carole moved for summary judgment. In moving for summary judgment, the Co-Trustees argued that; (1) the distributions, including the distribution for the IRS transaction, were disclosed in the accountings, and therefore, Carole’s claims are barred by the applicable six-month statute of limitations, for claims brought by a beneficiary against a trustee for breach of trust; (2) the distributions made to Arthur were permitted under the broad terms of Trust Number One; and (3) Carole’s claim as to the IRS transaction.is barred by the SRA, which supplemented the RRA for the 2005 to 2007 accountings. The trial court denied the motions.

2. The Promissory Notes Litigation filed by Arthur, as Personal . Representative of the Estate

In October 1991, Carole and her late husband, Jeffrey Brody, executed two demand promissory notés ($20,000 and $45,000) in favor of Arthur, individually, and in March 1997, they executed a third demand promissory note ($45,000) in favor of Arthur, individually. Following Mrs, Trask’s death, Carole learned that each time she asked Arthur to loan her money, Arthur obtained the funds from Mrs. Trask,

In October 1991, Mrs. Trask handwrote the following letter:

October 8th, 1991
To Whom it may Concern:
My son, Arthur Turkish, informed me that my daughter Carole and her husband Jeffrey Brody, were in need of $65,000. As I understand, Arthur tried to get a loan from the banks, but that would have taken too long, as they need the money before the end of October 1991, therefore Arthur had no alternative but to ask me for the money (Carole told Arthur not to mention this to Mother (meaning me)[.]
Accordingly, I am giving Arthur a check today in the amount of $20,000.00 and when the funds are available to me, .1 will give Arthur the balance of the $65,000.00,
Please-be advised, that I will not demand or expect' repayment of these monies that I have given and will,give to Arthur, who in turn,, will give to Carole and Jeffrey Brody, until such monies are repaid in full by Carole and Jeffrey Bro-dy. /s/ Ada Turkish Trask

Further, in March 1997, Mrs. Trask penned the following letter:

March 24th, 1997
Dear Arthur,
I am going to give you $30,000 this week so you can give it to Carole and her husband, Jeffrey Brody for his business. I do not want you to tell them that I am giving them this money or that you told me about it....
I will not demand or expect repayment of this money that I have given you until such money is repaid in full by Carole and Jeffrey.
I love you,
/s/Mother"'
(Ada Turkish Trask)

In July 2011, Arthur assigned the three promissory notes to himself as the personal representative of the Estate based on the theory that the money was never owed to Arthur, but to Mrs. Trask’s Estate. Thereafter, Arthur, as personal representative of the Estate, demanded payment of the three promissory notes plus accrued interest. After Carole failed to pay the amount demanded, Arthur, as personal representative of the Estate, filed suit against Carole to enforce the demand promissory notes. In response, Carole raised several affirmative defenses, including waiver by both Arthur and Mrs. Trask. The Estate moved for summary judgment, which Carole opposed.

G. Trial Court’s Orders

1. The December 6, 2013 Order

The trial court conducted an evidentiary hearing on the issues pertaining to the 2005 to 2007 accountings, the RRA for those accountings, and the SRA pertaining to the IRS transaction. The trial court found that prior to Carole’s execution of the SRA, Arthur failed to disclose to Carole that Mrs. Trask had very little money of her own and that the $1,000,000 condominium Mrs. Trask lived in was owned by a trust Mrs. Trask created in 1980 (“1980 Trust”), not by Mrs. Trask. The trial court ruled that Arthur’s failure to disclose this information “was a conflict of interest because Arthur Turkish was a Co-Trustee of Trust [Number] One,” and .therefore, “the SRA is not valid to bar Carole Bro-dy’s claims with respect to the [IRS] transaction covered in the SRA.” Based on these findings, the trial court ordered Arthur to repay $511,250. (one-half of the promissory note executed by Mrs. Trask for the funds loaned to her to satisfy her IRS debt) plus interest to Trust Number One.

At that same hearing, the trial court addressed the Estate’s motion for summary judgment filed in the Promissory Notes Litigation. Carole’s counsel argued that the Estate’s motion for summary judgment should be denied because genuine issues .of material fact exist as to Carole’s defenses, including waiver. The trial court.rejected this argument and granted summary judgment in favor of the Estate, finding that Carole owes the Estate $304,-525,90 for the three demand promissory notes, which includes interest, attorney’s fees, and costs. The trial court further ruled that the amount Carole owes to the Estate shall be set-off by .any amount Carole may ultimately receive from the Estate, Trust Number One, or Trust Number Two.

2. Trial Court’s Final Order

The trial court addressed the remaining issues during several days of trial. The trial court entered a final order finding that Arthur, as trustee," owed Carole a fiduciary duty when making distributions to himself from Trust Number One for his health, maintenance, and support. The trial court noted that Arthur had been “historically” receiving $114,000 per year, and that as the funds in Trust Number One were being depleted, .he should have reduced the historical distributions by half—from $114,000 to $57,000 annually. Thus, the trial court ruled that Arthur breached his fiduciary duty to Carole because, rather than decreasing the “historical” distributions by half, he began to increase the distributions. The trial court, therefore, ordered Arthur to return $258,000 to Trust Number One, which represents annual distributions over $57,000 for the time period from January 1, 2008 to June 2, 2010.

Following the entry of the trial court’s final order, the trial court denied rehearing. These appeals and cross-appeal followed.

II. ISSUES

The parties have raised numerous issues in these appeals. As to the Trust Litigation, the Co-Trustees appeal: (1) the portion of the trial court’s final order determining that Arthur breached his fiduciary duty to Carole by making certain distributions to himself for his health, maintenance, and support from Trust Number One from January 2008 to the date of Mrs. Trask’s death on June 2, 2010, and ordering Arthur to return a portion of the distributions to Trust Number One; and (2) the portion of the December 6, 2013 order finding that the SRA executed by the parties is invalid and unenforceable because Arthur, as trustee of Trust Number One, breached his fiduciary duty to Carole, and therefore, ordering Arthur to return $511,250 to Trust Number One. Carole appeals from the portion of the trial court’s December 6, 2013 order granting summary judgment and subsequent final judgment in favor of the Estate' in the Promissory Notes Litigation, thereby enforcing the three demand promissory notes. For the reasons that follow, we reverse the trial court’s determination that Arthur breached his fiduciary duty relating to the distributions he made to himself from Trust Number One for his health, maintenance, and support; affirm the trial court’s order finding that the SRA is invalid and unenforceable; and reverse the trial court’s granting of summary judgment in favor of the Estate in the Promissory Notes Litigation and remand for further proceedings.

III. ANALYSIS

A. Distributions to Arthur from Trust Number One from January 2008 through June 2, 2010

Arthur contends that the trial court erred by finding that he breached his fiduciary duty to Carole by making certain distributions to himself from Trust Number One and ordering Arthur to return $253,000 to Trust Number One. Because the distributions Arthur made to himself from January 2008 through June 2010 were authorized by the express terms of Trust Number One, we agree.

The trial court’s ruling ignores that Trust Number One gave Arthur and Shari, as trustees, “absolute discretion” to make distributions from the principal, “even to the extent of the whole thereof,” to either Carole or Arthur “in equal or unequal amounts and to either one of them to the exclusion of the other.” (emphasis added). Further, Trust Number One also permitted Arthur, as trustee, to make distributions to himself for his “support, health, education and/or maintenance without the consent of any other Trustee then serving.” Trust Number One did not limit the amount of the distributions.

The record before this Court reflects that, despite Arthur’s lack of significant outside employment for decades, he nonetheless maintained an extravagant lifestyle. His mother, Mrs. Trask, was aware of, participated in, and enjoyed Arthur’s lifestyle, and opted to finance his lifestyle through distributions from Trust Number One and other substantial gifts. Therefore, based on the broad language reflected in Trust Number One, including the “absolute discretion” given to the trustees by Mrs. Trask, and because we cannot circumvent Mrs. Trask’s clear intent, we conclude that Arthur did not breach his fiduciary duty to Carole relating to any distributions he made to himself between 2008 and the time of Mrs. Trask’s death on June 2, 2010. See Matter of Gilbert, 39 N.Y.2d 663, 385 N.Y.S.2d 278, 350 N.E.2d 609, 610-611 (1976) (“[I]n construing an [ijnter vivos trust, effect is to be given to [the probable intention of the grantor] unless it is contrary to public policy or law.”); Oakes v. Muka, 31 A.D.3d 834, 818 N.Y.S.2d 647, 648 (N.Y.App.Div.2006) (recognizing that “courts will, in construing a living trust, seek to honor the set-tlor’s intent unless, among other things, it is contrary to public policy”). Accordingly, we reverse the portion of the order under review requiring Arthur to return $253,000 to Trust Number One.

B. Trial Court’s Ruling as to the IRS Transaction

1. The Validity of the SRA

Carole contends, and the trial court found, that the SRA, which is a supplement to the 2005 to 2007 RRA, is invalid because Arthur, as a co-trustee, failed to disclose to Carole, a beneficiary, material facts pertaining to the matter being settled in the SRA. Specifically, Arthur failed to disclose to Carole that she was agreeing to settle all claims against Arthur and Shari, individually and a? co-trustees, relating to the IRS transaction based upon Arthur’s agreement to “contribute” the promissory note executed by Mrs. Trask, which was virtually a worthless piece of paper, to Trust Number One. Prior to Carole’s execution of the SRA, not only did Arthur know that Mrs. Trask had very few personal assets, he also knew, but failed to disclose, that the Bal Harbour condominium Mrs. Trask lived in was owned by the 1980 Trust, not Mrs. Trask; Arthur was the sole beneficiary of the 1980 Trust upon Mrs. Trask’s death; and the Bal Harbour condominium would hot become an Estate asset upon Mrs; Trask’s death, but instead would pass directly to Arthur.

We acknowledge that generally a release between adversaries constitutes a complete bar to an action which is the subject of the release. See, e.g., Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V., 17 N.Y.3d 269, 929 N.Y.S.2d 3, 952 N.E.2d 995, 1000 (2011) (“Generally, a valid release constitutes- a complete bar to an action on a claim which is the subject of the release.”) (internal citation and quotation marks omitted). However, the SRA was not merely a settlement between adversaries, but rather a supplement to the RRA entered into between the Co-Trustees and Carole, a beneficiary. Thus, under New York law, which the parties agree controls as to the SRA, Shari and Arthur, as co-trustees, owed a duty to fully disclose all pertinent facts to Carole, a beneficiary, even though the Co-Trustees and- Carole were adversaries at that point.

Under New York law, the SRA, as a supplement to the RRA, is binding only if the Co-Trustees made a “full disclosure.”

An agreement to discharge the fiduciary and settle an account will be binding provided (1) all interested parties who would be necessary parties in a judicial proceeding settling the account sign the agreement; (2) the fiduciary has made full disclosure-... in an account circulated to all signatories to the agreement; and (3) all signatories to the agreement are competent adults. Failure to make full disclosure will nullify the release.

In re LeoGrande, 13 Misc.3d 1070, 821 N.Y.S.2d 862, 867 (N.Y.Surr.2006) (internal citations and quotation marks omitted; emphasis added); see also Matter of Birnbaum, 117 A.D.2d 409, 416, 503 N.Y.S.2d 451 (N.Y.App.Div.1986) (noting that a “Release and Discharge” obtained by fiduciary from a beneficiary is “voidable” by the beneficiary “if the fiduciary fails to disclose material facts which he knew or should have known, if he used the influence of his position to induce the consent or if the transaction was not in all respects fair and reasonable”).

In the instant case, although the facts recited in the SRA were accurate, the Co-Trustees failed to make a “full disclosure” to,Carole, a beneficiary—that the promissory note Arthur agreed to “contribute” to Trust Number One in exchange for. Carole’s release was virtually worthless because Mrs. Trask did not have the ability to repay the promissory note during her lifetime and there would be insufficient estate assets to pay the promissory note upon her death because the Bal Harbour condominium was not owned by Mrs. Trask. Therefore, we affirm the trial court’s ruling that the' SRA is invalid due to Arthur’s failure to disclose material facts.

2. Adequacy of the Trust Disclosure Documents

The Co-Trustees argue that even if the SRA was voidable based on Arthur’s failure to disclose material facts to Carole before she signed the SRA, Carole!s claims for breach of trust relating to the IRS transaction are barred by Florida’s six-month statute of limitations because the 2008 trust disclosure documents, including the 2008 accountings, adequately disclosed the IRS transaction. We disagree.

Section 736.1008(2) of the Florida Statutes provides:

Unless sooner- barred by adjudication, consent, or limitations, a beneficiary is barred from bringing an action against a trustee for breach of trust with respect to a matter that was adequately disclosed in a trust disclosure document unless a proceeding to assert the claim is commenced within 6 months after receipt from the trustee of the trust disclosure document or a limitation notice that applies to that disclosure document, whichever is received later.

(emphasis added). Section 736.1008(4)(a), which addresses when “a matter” is adequately disclosed, provides as follows:. “A trust disclosure document adequately discloses a matter if the document provides sufficient information so that a beneficiary knows of a claim or reasonably should have inquired into the existence of a claim with respect to that matter.”

In the instant case, Carole’s claims against the Co-Trustees for breach of fiduciary duty was not based solely on the IRS transaction itself, but also on Arthur’s agreement to resolve Carole’s objections to the IRS transaction by “contributing” the promissory note executed by Mrs. Trask to Trust Number One without disclosing that he knew that the promissory note was virtually worthless. Therefore, we must determine whether the 2008 trust account-ings provided Carole with sufficient information such that she should have known of her claim or reasonably inquired into her claim.

The 2008 accounting for Trust Number One disclosed that Arthur received a $1,022,500 distribution on October 24, 2008, and that disclosure references Note 5 of the appendix attached to the 2008 accounting. Note 5-provides:

This amount was .-loaned by Arthur Turkish to Ada Turkish Trask to enable Ada Turkish Trask to settle a Federal tax assessment. Ada Turkish Trask gave, a promissory note, evidencing this indebtedness to Arthur Turkish in the amount of $1,022,500 plus annual interest at the rate of 3.45%. Arthur Turkish contributed the promissory note to this Trust on October 9, 2009 pursuant to an agreement by and among all of the qualified beneficiaries of this Trust.

Therefore, the 2008 accounting for Trust Number One discloses the IRS transaction itself, and that Arthur “contributed” the promissory note to Trust Number One as part of an agreement among the beneficiaries. The 2008 accounting, however, fails to disclose that the promissory note that Arthur contributed to Trust Number One was basically - worthless- due to Mrs. Trask’s lack of personal funds and due to the fact that the Bal Harbour condominium Mrs. Trask lived in would never-be part of the Estate because the condominium was owned by the 1980 Trust, not Mrs. Trask. • Further, the 2008 accounting for Trust Number One did not provide Carole with sufficient information that reasonably should have led her to inquire into her claim against the Co-Trustees. Therefore, the six-month statute of limitations set forth in section 736.1008(2) is not applicable because the matter was not “adequately disclosed in a trust disclosure document.” As such, Carole’s claims for breach of fiduciary duty against Arthur and Shari were not time barred.

C. Trial Court’s Ruling as to the Promissory Notes Litigation

Carole contends that the trial court erred by granting summary judgment in favor of the Estate in the Promissory Notes Litigation because genuine issues of material fact exist as to her affirmative defense of waiver. We agree.

“Summary judgment is proper if there is no genuine issue of material fact if the moving party is entitled to a judgment as a matter of law. Thus, our standard of review is de novo.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (citation omitted).

We have reviewed the letters written by Mrs. Trask in 1991 and 1997. The gist of those letters is that if Carole does not repay Arthur, Arthur does not have to repay his mother, Mrs. Trask. Therefore, as the three promissory notes have now been assigned to the Estate, which is not at issue in this appeal, it appears that repayment of those notes may have been waived because Arthur can no longer seek repayment from Carole, and Mrs. Trask specifically provided in her written “letters” that she (and thus now her Estate) would not seek repayment of the notes unless they were paid in full (to Arthur). Thus, there exists material issues in dispute as to whether Arthur waived his right to seek repayment of the notes by assigning them to the Estate, and whether the Estate may seek repayment of the notes where Mrs. Trask’s intent not to do so has been clearly stated and memorialized. Accordingly, we reverse the trial court’s ruling as to the promissory notes, and on remand, the trial court is to fully address this issue.

IY. CONCLUSION

Based on the above analysis, we reverse the portion of the order under review requiring Arthur to return $253,000 to Trust Number One; affirm the portion of the order finding that Arthur breached his fiduciary duty to Carole; and reverse the portion of the order enforcing the three demand promissory notes and remand for further proceedings to fully address Carole’s affirmative defense of waiver. All remaining issues raised by the parties are affirmed.

Affirmed in part; reversed in part and remanded for further proceedings.

SCALES, J., concurs.

SHEPHERD, J.,

concurring in part and dissenting in part.

I concur in Parts III. A and III. C of the majority opinion. I respectfully dissent from Part III. B, which affirms that portion of the trial court’s order requiring Arthur to return $511,250 (one-half of the promissory note executed by Mrs. Trask for funds loaned to her by Arthur to satisfy her IRS debt). As is well summarized in Parts I. C and I. D of the Facts and Procedural History of this ease, Carole objected to the IRS settlement transaction from July 2008 until the time the SRA was executed by the Co-Trustees and Carole in September 2009. As counsel for Arthur accurately sets forth in the Initial Brief, by this time:

The relationship between the parties was “no longer one of unquestioning trust.” They were adversaries, negotiating a settlement at arms length under threat of litigation. Carole chose to execute the SRA, which included a broad general release. Centro Empresarial Cempresa, S.A., 17 N.Y.3d at 275, 278, 929 N.Y.S.2d 3, 952 N.E.2d 995. Arthur assigned the promissory note to Trust One in satisfaction of “any and all claims against him ... arising out of the facts recited,” while Carol “waive[d] any right ... she has, might have or has had” to object to “any action or omission” of Arthur and Shari, individually or as trustees. (S.R.363). Carole further remised, released and discharged Arthur and Shari, both individually and as trustees “from any and all claims, demands or liabilities whatsoever which the beneficiaries have, or might have by reason of their “acts and omissions ... individually, or as Trustees of Trust One.” (S.R.868-64).
This is precisely the type of broad release which barred Carole’s claims regarding the IRS transaction. See Morefun [Co., Ltd. v. Mario Badescu Skin Care Inc.], 588 Fed.Appx. [54] at 55 [ (2d Cir.2014) ]: Bellefonte Re Insurance Company [v. Argonaut Ins. Co.], 757 F.2d [523] at 526-27 [(2d Cir.1985)]; Centro Empresarial Compresa, S.A., 17 N.Y.3d at 3[2]77—78 [929 N.Y.S.2d 3, 952 N.E.2d 995]; Long v. O’Neill, [126 A.D.3d 404, 405-08, 5 N.Y.S.3d 42] 2015 WL 869317 at 2-3 [(1st Dept.2015)].
Here, the probate court found the SRA was “not valid” because Arthur was a fiduciary and did not disclose to Carole that “Ada had very little money of her own” (with which to repay her promissory note), and that Ada’s condominium was held by a different trust. (R. 4307). Assuming that all of the court’s factual findings are correct, its legal conclusion was erroneous. As a matter of law, the SRA was still valid, binding and enforceable.
For this reason alone, the orders requiring Arthur to repay Trust One half of $1,022,500 plus interest (reflecting the IRS transaction) should be reversed.

I agree with this reasoning and would therefore completely reverse the judgment entered below.

      . It is undisputed that Mrs. Trask made numerous and substantial gifts to Arthur, and therefore, the IRS settlement directly benefited Arthur because Arthur would have been responsible for a large portion of any gift tax liability as he was the one who received a large portion of the gifts.

      . There is no indication in the record that the Summary of Assets attached to the SRA incor-reedy valued the assets in either Trust Number One or Trust Number Two.

      . This amount was later increased as a result of additional accrued interest/'

      . For example, during 2009, Arthur received $181,500 in distributions for his health, maintenance, and support. Therefore, for 2009, the trial court ordered Arthur to return $124,500 to Trust Number One. Although Arthur's distributions to himself may seem excessive, the record supports these distributions.

      . The parties have raised other issues in these appeals. We find that issues not addressed in this opinion are without merit and do not warrant discussion.

      .Carole also appealed the trial court's ruling that Carole’s claim relating to the distributions made to Arthur from Trust Number One from January 27, 2005 through December 31, 2007 was barred because these distributions were disclosed in the 2005 to 2007 account-ings, and thereafter, Carole executed the RRA in September 2009, approving these trust ac-countings and releasing the Co-Trustees of any liability in connection with the matters disclosed in these accountings. We conclude that Carole’s argument as to this ruling lacks merit and does not warrant discussion.

      .The relevant provision provides:
      1. During the Settlor’s lifetime, the Trustees shall invest and reinvest the principal of the trust and shall pay so much of the income therefrom and such sums out of the principal thereof (even to the extent of the whole thereof) to the Settlor's son, ARTHUR TURKISH, and/or the Settlor’s daughter[,] CAROLE BRODY, in equal or unequal amounts and to either one of them to the exclusion of the other, as the Trustees, in their absolute discretion, shall determine, accumulating any balance of the income at least annually and adding the same to principal....
      In accordance with section 10-10.1 of the New York Estates Powers and Trust Law, and notwithstanding anything to the contrary herein, any Trustee who is a permissible beneficiary under this Article shall be entitled to make distributions to himself or herself for his or her support, health, education and/or maintenance without the consent of any other Trustee then serving.

      . Prior to the creation of Trust Number One, Mrs. Trask chose to finance Arthur's lifestyle through distributions from other trusts. Mrs. Trask also made substantial and numerous monetary gifts to Arthur, which resulted in the gift tax liability to the IRS, which was settled in 2008.

      . The parties do not dispute that based on the language in Trust Number One and Trust Number Two, New York law governs all issues relating to the Trust Litigation, except for the statute of limitations defenses raised by the Co-Trustees, which is governed by Florida law.

      . Carole asserted other affirmative defenses. Carole’s arguments as to the remaining affirmative defenses lack merit and do not warrant discussion.

      . Based on our reversal of the entry of final summary judgment as to the Promissory Notes Litigation, we reverse the portions of the order awarding fees and costs to the Estate and requiring a setoff.


text:
    Taleen A. ASHBY and John W. Ashby, Appellants, v. WELLS FARGO BANK, N.A., as Trustee FOR the CERTIFICATEHOLDERS OF SOUNDVIEW HOME LOAN TRUST 2007-OPT4, Asset-Backed Certificates, Series 2007-OPT4, Appellee.
    CASE NO. 1D16-1046
    District Court of Appeal of Florida, First District.
    Opinion filed March 6, 2017
    Lynn Drysdale, Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellants.
    Monika E. Siwiec, Michael Eisenband, Nicole R. Topper, and David Ehrlich of Blank Rome, LLP, Boca Raton, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Bolous v. U.S. Bank Nat’l Ass’n, 210 So.3d 691 (Fla. 4th DCA 2016); Deutsche Bank Nat’l Trust Co. v. Marciano, 190 So.3d 166 (Fla. 5th DCA 2016).

OSTERHAUS, BILBREY, and WINOKUR, JJ., CONCUR.


author: BILBREY, J. JAY, J.,

text:
    Sonny Eric PIERCE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-1984
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017
    Rehearing Denied July 13, 2017

      Michael Ufferman, Tallahassee, for Appellant.
    ' Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   BILBREY, J.

Sonny Erie Pierce appeals his judgment of conviction and sentences raising several issues. Because the trial court erred in denying Pierce’s motion to suppress the statements made during his custodial interrogation,- we must reverse the judgment, vacate his sentences, and remand for a new trial.

Following his arrest for his participation in a shooting incident, Pierce was subjected to questioning by a police detective. During the interrogation, Pierce was handcuffed. The State does not deny that Pierce was in custody and thus'was not free to leave. The interrogation of Pierce was video recorded; and we have reviewed the video as well’as the transcript of it. The interrogation bégan as follows:

Q. Sir would you state your name for me?
A. Sonny Eric Pierce.
Q. And Mr. Pierce would you raise your right hand for me? Do you swear this statement' you’ll give is the truth, the whole truth,- nothing but the truth, so help you God?
A. I swear.
Q. Ok all right I got to just talk to you. We got to go over this real quick before we can discuss any parts of this case, okay? This is your Miranda form here. I’ll read it to you and we’ll go over anything. If you feel like we need to hit one of them again, we’ll talk about it and explain it in detail, ok. All right first of all, you have the right to remain silent. Anything you say can' be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. Ok. If you cannot afford a lawyer, one will be appointed to you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time until you have consulted a lawyer. You understand that part? Ok if you would those last 2 sentences could you read those out loud?
A. I have read the Statement of my Rights and I understand what my rights are. At this time I am willing to answer questions without a lawyer present.
Q. Is that a true statement?
A, I don’t know what I’m being charged for.
Q. Ok well I want to explain everything.
A. Okay.
Q. But I mean just for your, we’ll go back over this one. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time until you have consulted a lawyer.
A. Ok.
Q. Ok so it can’t hurt you to talk with me but it’s up to you. If you don’t want to say anything now, that’s fine. We’ll just do this and then just go with what happens, but if you want to talk about something [sic]. And I can explain to you some things; we can do it that way. I thought the whole reason why you wanted to talk to me is so we could talk and this [sic].
A. Yeah absolutely.
Q. Ok.
A. And I, I just, I don’t know what I’ve done. And I don’t want to get pinned doing something.
Q. Ok.
A. Do you know what I’m saying?
Q. Yeah that’s why if I was you, if that was the truth I’d want to talk.
A. Absolutely. I mean I do and just, so.
Q. Ok so you are willing to talk ok. I need you to sign right there.
A. All right.

(Emphasis added). At that point, Pierce signed a waiver of Miranda rights.

After substantial probing by the detective, Pierce confessed to being part of a drug sale in the parking lot of a Home Depot. The deal went awry, Pierce claimed, when the buyers grabbed the contraband and began to drive away with it without paying. As the buyers sped towards him, Pierce told the detective that he commenced shooting at the car. He fled the scene in the car of his associates.

After Pierce was charged with attempted second degree murder with a firearm and shooting into an occupied vehicle, he moved to suppress, on several grounds, the statements he made during his police interrogation. The argument raised below and renewed on appeal is that the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Traylor v. State, 596 So.2d 957 (Fla. 1992). After receiving the State’s response, but without the testimony presented, the trial court denied the motion without making any findings of facts.

The general rule is that law enforcement officers must give a suspect an appropriate warning under Miranda before conducting a custodial interrogation. Brookins v. State, 704 So.2d 576 (Fla. 1st DCA 1997). Florida’s Constitution also requires that prior to custodial interrogation in Florida suspects must be told that they have a right to remain silent, that anything they say will be used against them in court, that they have a right to a lawyer’s help, and if they cannot pay for a lawyer one will be appointed to help them. Art. 1, § 9, Fla. Const.; see Traylor.

The United States Supreme Court recognized in Miranda that “[e]ven without employing brutality, the ‘third degree’ or [other] specific stratagems, ... the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.” 384 U.S. at 455, 86 S.Ct. 1602. Because the “coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements” thus heightening the risk that a suspect will not be accorded his right not to be compelled to incriminate himself, the Court “laid down ‘concrete constitutional guidelines for law enforcement agencies and courts to follow.’ ” Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (quoting Miranda, 384 U.S. at 442, 86 S.Ct. 1602). As Chief Justice Rehnquist explained in Dickerson:

Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as “Miranda rights”) are: a suspect “has the right to remain silent, that anything he says can be usee] against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

Id. (quoting Miranda, 384 U.S. at 479, 86 S.Ct. 1602). These warnings “have become part of our national culture.” Id. at 443, 120 S.Ct. 2326.

The determination as to whether a waiver of Miranda rights was knowingly and voluntarily made is a two-pronged inquiry:

First, the evidence must show that the waiver was a free choice by the suspect and that it was not produced by police intimidation, coercion, or deception. Second, the evidence must show that the waiver was made with a full awareness of the nature and consequences of the rights given up.

Brookins, 704 So.2d at 577 (citing Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), and State v. Mallory, 670 So.2d 103 (Fla. 1st DCA 1996)). Each step of this inquiry employs a totality of the circumstances test. Brookins, 704 So.2d at 577 (citing Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)); see also Moran, 475 U.S. at 421, 106 S.Ct. at 1141, and North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). The burden is on the State to show by a preponderance of the evidence that a waiver of a defendant’s Miranda rights was knowingly and voluntarily made. Brookins, 704 So.2d at 577. On review, the question of the voluntariness of a confession is a legal one requiring independent review. Connor v. State, 803 So.2d 598 (Fla. 2001).

The highlighted portions of the interrogation quoted above show that the detective advised Pierce that speaking to police would not cause harm, but in fact, would benefit him. This is a clear misstatement of Miranda.

While it is true that a suspect need not be given all the information that “might” affect his decision to confess and that police do not have to supply a defendant “with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights,” Moran, 475 U.S. at 422, 106 S.Ct. 1135, it is also true that a waiver is not voluntarily and knowingly made if police have affected the ability of the suspect to understand the nature of the rights he. is waiving. A waiver is not. valid unless a suspect, “at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction.” Id. As Pierce’s waiver was procured by a misstatement as to effect of his waiver, it was not valid. See Ramirez v. State, 739 So.2d 568 (Fla. 1999) (holding that any evidence that the accused was threatened, tricked, or cajoled into a waiver of Miranda rights will show that the defendant did not voluntarily waive his privilege); Dooley v. State, 743 So.2d 65 (Fla. 4th DCA 1999). At trial, the State extensively utilized Pierce’s incriminating statements. The denial of the motion to suppress therefore cannot be deemed harmless, and we are constrained to reverse the resulting convictions and remand for further proceedings without use in the State’s ease in chief of the statements made during the 'interrogation. See Ramirez; Ross v. State, 45 So.3d 403 (Fla. 2010).

Pierce also challenges in this appeal the denial of his motion to suppress the search conducted'of his cell phone pursuant to a warrant. We do not agree that the affidavit filed in support of a search warrant failed to allege probable. cause. The trial court correctly decided this issue.

Because we are reversing and remanding for a new trial, we need not reach the question of whether the‘trial counsel rendered ineffective assistance in failing to object to the verdict form which did not list the lesser included offenses in the order from most serious to least serious. See Sanders v. State, 944 So.2d 203 (Fla. 2006). Additionally, while the scoresheet erroneously identified Pierce’s aggravated battery conviction as a level 8, rather than a level 7 offense, this error is rendered moot given our disposition. Finally, we note, for the trial court’s benefit, that the offense of shooting into an occupied vehicle is a non-qualifying offense under-section 775.087(2), and thus, had the convictions been affirmed in this cause, consecutive sentencing was required. See William v. State, 186 So.3d 989 (Fla. 2016).

Accordingly, the judgment of conviction is REVERSED, the sentences are VACATED, and the cause is REMANDED for further proceeding below consistent with this opinion.

WETHERELL, J„ CONCURS, JAY, J., CONCURS IN PART and DISSENTS IN PART WITH OPINION.

JAY, J.,

concurring in part and dissenting in part.

After reviewing the video and transcript of Pierce’s interrogation, I believe that Pierce’s Miranda waiver was knowingly and voluntarily made, and, therefore, I would affirm the trial court’s denial of his motion to suppress.

First, “[a] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Pagan v. State, 830 So.2d 792, 806 (Fla. 2002). Thus, we are required to evaluate the exchanges between Pierce and Detective Wray in a manner that is “most favorable” to affirming the trial court’s decision that Pierce voluntarily waived his- Miranda rights. Id.

Second, in our evaluation of Pierce’s interrogation, we should “ ‘make every effort to eliminate the distorting effects of hindsight’” bias and in doing so, analyze Detective Wray’s “performance from [his] perspective at the relevant time.” Martin v. State, 107 So.3d 281, 309 (Fla. 2012) (citations omitted). As Martin recognized, “[t]he fact that select statements from law enforcement officers may later be taken out of context and construed as misrepre-sentative, while relevant, is but one factor in a larger, totality of the circumstances evaluation of the interview.” Id. at 310.

Third, as referenced by the majority, “[a] valid'waiver of Miranda rights must ... be knowingly and intelligently made.” United States v. Gaddy, 894 F.2d 1307, 1312 (11th Cir. 1990) (citation omitted). “Whether a waiver is knowing and intelligent is determined by the particular facts and circumstances of the case, ‘including the background, experience, and conduct of the accused’ Id. (citation omitted) (emphasis added). “The relevant question is not whether the ‘criminal suspect [knew] and [understood] every possible consequence of a waiver ,.but rather whether the ‘suspect [knew] that he [could] choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time.’ ” Garner v. Mitchell, 557 F.3d 257, 261 (6th Cir. 2009) (en banc) (quoting Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987)).

In accord with these principles, I believe that Pierce’s Miranda waiver was the product of his own “free and deliberate choice” and was not related to any purported coercion or deception by Detective Wray. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Specifically, Detective Wray’s statements to Pierce were not coercive, and based on the video, Pierce’s interview was conducted in a civil and non-confrontational manner. Also, there is no evidence that Pierce was deceived ,by the purported misstatements highlighted by the majority or that Pierce detrimentally relied upon those representations. See United States v. Thompson, 422 F.3d 1285, 1295-96 (11th Cir. 2005) (“Sufficiently coercive conduct normally involves subjecting the accused to an ex-haustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession.” (quoting United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.1992) (emphasis added))); United States v. Small, 2013 WL 1400610, *5 (M.D. Fla. Feb. 11, 2013).

Moreover, as to Pierce’s “awareness of the nature and consequences of the rights” that he waived, it is undisputed that the Miranda rights were accurately read to Pierce and, subsequently, Pierce voluntarily signed the proffered Miranda waiver. See Thomas v. State, 894 So.2d 126, 136 (“Although a written statement is neither necessary nor by itself sufficient to establish waiver, it is strong proof that a waiver is valid.”). While Detective Wray’s statement that “it can’t hurt you to talk with me” was not ideal, the statement was an apparent attempt to communicate that cooperating would be to Pierce’s benefit—a permissible interrogation strategy. See United States v. Graham, 323 Fed.Appx. 793, 800 (11th Cir. 2009). Because the statement was made shortly after a full and accurate recitation of Pierce’s Miranda rights, common sense would suggest that Pierce would have asked about the conflict if he was confused about the discrepancy or, conversely, deferred signing the waiver until he was provided a clarification by Detective Wray. Neither event occurred.

From this record, the majority concludes that Pierce’s waiver was “procured by misstatement”—with a primary emphasis on the statement that “it can’t hurt you to talk with me.” However, there is no evidence that Pierce’s decision to speak with Detective Wray was induced by Wray’s statement that talking to Wray would not hurt Pierce. To the contrary, Pierce repeatedly confirmed that he wanted to speak with Detective Wray about Pierce’s version of what occurred. By presuming a causal nexus between Pierce’s decision to talk and Wray’s purported misstatement—without evidence that Pierce was deceived, deluded, or misled by the statement—the majority has gone beyond what Miranda requires. See State v. Pitts, 936 So.2d 1111, 1133 (Fla. 2d DCA 2006) (“[Njothing in the conduct of the police here shows that Pitts’ waiver resulted from a coerced choice. The State has met its burden of establishing the voluntariness of the waiver.” (emphasis added)).

Similar to this case, the defendant in Graham argued that his post-arrest statements were involuntary because an interrogating officer told him that cooperating with the police would be to his benefit. 323 Fed.Appx. at 794. Specifically, the interviewing detective testified that he had an “understanding” with Graham that if Graham cooperated and provided the police with information, “⅞ certainly wouldn’t hurt him.” Id. at 796 (emphasis added). In affirming the denial of Graham’s motion to suppress, the Eleventh Circuit held that the detective’s statements to Graham “merely confirmed what Graham already understood, namely, that he might be able to benefit in the future if he cooperated.” Id. at 800. In doing so, the court recognized that “ ‘[n]o public policy should castigate a confession of crime merely because it may have been prompted by the hope that cooperation’ ” might increase the chances of a less severe sentence. Id. at 801 (quoting United States v. Springer, 460 F.2d 1344, 1347 (7th Cir. 1972)).

Like the defendant’s disclosures in Graham, Pierce’s “statements were not the product of deception or coercion, but were ... the product of a voluntary and calculated decision to cooperate” because Pierce apparently believed it was in his self-interest to do so. Id. As a result, I would find a valid waiver of Pierce’s Miranda rights. See United States v. Sweetenburg, 186 Fed.Appx. 879, 883 (11th Cir. 2006) (“Defendant contends next that his Miranda waiver—given during the initial phase of his post-arrest interview, where he was asked about the offense for which he was arrested—was vitiated during the second, cooperation phase when agents indicated that, if Defendant helped law enforcement, his statements would be used only for his benefit. We disagree.”) (emphasis added); United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995) (“An indication by the arresting officers to the defendant that his cooperation will help him is only one factor to consider in determining whether the defendant’s waiver was given voluntarily. There is no inconsistency between the required warning that the defendant’s statement may be used against him and a further statement that cooperation can help him. Both are true.”); Martin, 107 So.3d at 315-16 (“Law enforcement must be afforded some leeway in how they conduct interrogations to ensure public safety and to further their objective of locating a missing person who might still be alive. The interview here cannot be characterized as so coercive as to render Martin’s confession involuntary. Although some of the tactics and techniques used by the detectives may have been less than ideal, West and Wolcott did not directly threaten, deceive, or delude Martin into confessing. Therefore, we affirm the trial court’s denial of Martin’s motion to suppress.”); cf. Hart v. Attorney Gen. of State of Fla., 323 F.3d 884, 894 (11th Cir. 2003) (finding that the voluntariness of the defendant’s Miranda waiver was vitiated by a detective’s statements—to a seventeen-year-old defendant—that having an attorney present would be a disadvantage and that “honesty wouldn’t hurt him”).

For all of the above reasons, I respectfully dissent from the reversal of the denial of the motion to suppress the statements made during Pierce’s custodial interview.

      . Generally, in reviewing a trial court's ruling on a motion to suppress, this court accords a presumption of correctness to the trial court’s findings of historical fact, reversing only if the findings are not supported by competent, substantial evidence, but reviews de novo “whether the application of the law to the historical facts establishes an adequate basis for the trial court's ruling.” Parker v. State, 873 So.2d 270, 279 (Fla. 2004) (citing Connor v. State, 803 So.2d 598, 608 (Fla. 2001)). However, the deference to a trial court’s findings of fact does not fully apply when the findings are based on evidence other than live testimony. Parker; Thompson v. State, 548 So.2d 198, 204 n.5 (Fla. 1989) ("[T]he clearly erroneous standard does not apply with full force in those instances in which the determination turns in whole or in part, not upon live testimony, but on the meaning of transcripts, depositions or other documents reviewed by the trial court, which are presented in essentially the same form to the appellate court.”). As noted, no findings of fact were made by the trial court in denying suppression.

      . Whether the interrogating detective intimidated, coerced, or deceived Pierce, or merely inadvertently misstated Miranda, the second prong of the Brookins test was not met, Therefore, Pierce’s waiver of his Miranda rights was riot knowingly and voluntarily made. See Brookins, 704 So.2d at 577.

      . The case on which the dissent principally relies, United States v. Graham, 323 Fed.Appx 793 (11th Cir. 2009), is factually distinguishable from the case before us. In Graham, based on what the interrogating officer testified, a magistrate concluded that the defendant was not misled by the officer as to the effect of Miranda. The magistrate concluded in pertinent part: "Defendant does not argue—and the court declines to find—that this case is comparable to those in which officers told defendants that honesty would not hurt them, in contradiction to the Miranda warning that anything they said could be used against them in court.” 323 Fed.Appx. at 797 (bold added).
      In affirming the denial of the motion to suppress, the 11th Circuit observed in Graham: "Graham’s incriminating statements were not the product of any deceptive comments made by Officer Conway. As discussed above, it-was Graham who came forward and wanted to cooperate, even before the officers asked him any questions. Thus, ... this case does not present a situation where an officer was attempting to elicit a confession from a recalcitrant or confused suspect. To the contrary, from the moment of his arrest, Graham had apparently made a calculated decision that his best option was to cooperate and hope for leniency.” Id. at 801.
      There was no such desire to cooperate evident in the instant case. Appellant was, instead, a "recalcitrant” as well as a “confused” suspect. Repeatedly, he indicated to the interrogating officer that he was confused and that he did not want endanger himself. Therefore, Graham is not on point.


text:
    Nelson Vladimir GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2134
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017.

      Nelson Vladimir Gonzalez, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE and SCALES, JJ.
   ON MOTION TO ENFORCE MANDATE

EMAS, J.

In Gonzalez v. State, 194 So.3d 380 (Fla. 3d DCA 2016), Gonzalez appealed from an order denying his pro se motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We held that the sentence imposed upon Gonzalez (following a probation violation hearing) failed to properly award Gonzalez credit for prison time he had previously served on his probationary split sentence. However, we also held that an entirely new sentencing proceeding was unnecessary; instead, and in light of the clear and unequivocal intent of the trial court as articulated at the sentencing hearing, we remanded this cause to the trial court with directions to “restructure the sentence to reflect the trial court’s articulated sentencing goal, while properly awarding the prison credit to which Gonzalez is entitled.” Id. at 381.

Our opinion did not expressly require that Gonzalez be present and represented by counsel at the resentencing. Following our mandate, the original sentencing judge, without'Gonzalez or his counsel being notified or present, entered a resen-tencing order on June 3, 2016, sentencing Gonzalez to twenty-five years in prison. The record contains no transcript of any proceeding at which this was accomplished, and we do not know the method by which the original sentencing judge determined that this amended sentence complied with our mandate. What we do know is that, because neither Gonzalez nor his counsel was present at the resentencing, Gonzalez was not aware that the resen-tencing was taking place and was not aware of the entry of this order until after the time for filing a direct appeal had expired. Gonzalez filed this motion to enforce mandate contending, inter alia, that he had a right to be present and represented by counsel.

The State contends that our opinion, and the mandate which followed, merely required the trial court to undertake a ministerial task and that, therefore, Gonzalez did not have a right to be present for the resentencing. This statement of the law, however, is not precisely correct. Instead, and as the Florida Supreme Court has held, a “defendant has a right to be present and to be represented by counsel at any resentencing proceeding from a rule 3.800(a) motion,” but a “violation of the right to be present is subject to a harmless error analysis.” Jordan v. State, 143 So.3d 335, 338 (Fla. 2014).

This distinction is important, because the rule is a recognition of the basic constitutional principle that “a defendant has the right to be present in the courtroom at every critical stage of the proceeding.” Jackson v. State, 767 So.2d 1156, 1159 (Fla. 2000); Fla. R. Crim. P. 3.180(a)(9)(providing that “the defendant shall be present,,. at the pronouncement of judgment and the imposition of sentence”) The “ministerial act” is simply a recognized exception to that rule, and the failure to ensure a defendant’s presence at resentencing, even if for a ministerial act, requires “the state to show beyond a reasonable doubt, that the error (absence) was not prejudicial.” Jordan, 143 So.3d at 339 (quoting Garcia v. State, 492 So.2d 360, 364 (Fla. 1986)).

Here, the State cannot demonstrate that the error was harmless. Indeed, the record establishes that the sentence imposed following remand was erroneous: As discussed above, following our mandate, the original sentencing judge, on June 3, 2016 vacated the sentence and imposed a sentence' of twénty-five years. It does not appear that this newly-imposed sentence comported with our directive that the trial court “restructure the sentence to reflect the trial court’s articulated sentencing goal [of fourteen years and five months], while properly awarding the prison credit to which Gonzalez is entitled.” Gonzalez, 194 So.3d at 381.

In fact, after the original sentencing judge imposed this twenty-five year sentence on remand, the Florida Department of Corrections sent a letter to the trial court, asking for clarification of this new sentence. By that time, a successor judge had been assigned to the division and, after reviewing the matter, entered an order on November 2, 2016 entitled “Order Clarifying and Resentencing Defendant.” In that order, the successor judge acknowledged that the twenty-five year sentence imposed following remand “would result in a net sentence of at least three (3) years longer than the Trial Court had unequivocally articulated on the record.” (Emphasis added.) Nevertheless, the successor judge reduced the sentence by only one and one-half years, to twenty-three years and six months. As with the first resentencing order following remand, there is no record evidence that Gonzalez and his counsel knew of, or were present for, the proceeding at which the successor judge entered the clarified resentencing order. The presence and participation of Gonzalez and his counsel at either of these two resentencing proceedings certainly would have increased the likelihood that the resentencing order complied with our prior opinion and mandate.

We therefore grant the motion to enforce mandate, vacate the clarified resen-tencing order entered on November 2, 2016 (as well as the resentencing order of June 3, 2016) and remand for entry of a sentence that properly grants all previous jail and prison credit, and otherwise complies with the opinion and mandate previously issued in this cause. The defendant shall be present for, and represented by counsel at, the resentencing.

      . To be fair, this court (including, regrettably, this author) has made the veiy same mistake of conflating the analysis and stating, as a principle of law, .that a defendant does not have the right to be present at a resentencing which merely involves a ministerial task. See, e.g., Holmes v. State, 100 So.3d 281 (Fla. 3d DCA 2012); Jordan v. State, 83 So.3d 910 (Fla. 3d DCA 2012) (aff’d but criticized in 143 So.3d 335 (Fla. 2014)); Velez v. State, 988 So.2d 707 (Fla. 3d DCA 2008). Although it may be implicit in those cases that the defendant’s absence from the resentencing was harmless error, the instant case illustrates the importance of starting the analysis with the proposition that a defendant does indeed have a right to be present and represented by counsel at resentencing,, but recognizing that reversal of that, sentence is not required if the State can establish that a violation of this right was harmless error.

      . It may well be that the clarified sentence of twenty-three years and six months (nunc pro tunc to the original sentencing date of June 25, 2013) does in fact achieve the original articulated sentencing goal of a net sentence of fourteen years and six months. However, the clarified sentencing order entered by the successor judge awarded jail credit “from 12/4/12 per court” (without indicating the appropriate end date for calculation purposes). Further, the sentencing order failed to include prior jail credit from 2/9/02 to 7/9/04 (the time Gonzalez spent in the county jail prior to the original plea and sentence in 2004), and did not indicate the actual amount of credit for prior prison time served.


author: Conner, J.

text:
    Charmarkco S. EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1969
    District Court of Appeal of Florida, Fourth District.
    June 7, 2017

      Carey Haughwout, Public Defender, and Stacey Kime, 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.
   Conner, J.

The appellant, Charmarkco S. Evans, appeals his judgments and sentences for two counts of felony battery. On appeal, the appellant asserts that the trial court erred by admitting inadmissible hearsay evidence and by adjudicating and sentencing him on both counts of felony battery in violation of Double Jeopardy. We affirm without discussion the trial court’s rulings on the hearsay claims. We also affirm the judgments and sentences on both counts of felony battery, having determined there was no Double Jeopardy violation.

Factual Background and Trial Court Proceedings

The appellant was tried on four criminal charges: (1) felony battery-serious bodily injury with prior conviction, (2) false imprisonment, (3) sexual battery, and (4) stalking. The jury acquitted him of false imprisonment and stalking; hence, we focus our discussion of the factual background regarding the evidence and proceedings pertaining to count 1 (felony battery-serious bodily injury with pri- or conviction) and count 3 (sexual battery).

The State presented evidence that the appellant and the victim were in a relationship for a period of time before the alleged crimes were committed. As sometimes happens in domestic violence cases, the victim was a relatively reluctant witness at trial. Nonetheless, she testified that on a Sunday, she had been drinking heavily and went to the appellant’s apartment. Although the victim was unable to remember all of the circumstances, she testified she “very much remember[ed] him striking me in my face” on Sunday. Lay and medical testimonial evidence, as well as physical evidence, showed that the victim suffered a nasal fracture, severe swelling around both eyes, a perforated left eardrum, and significant facial bruising.

The victim further testified that, out of fear that it would be discovered he had beaten her, the appellant would not let her leave his apartment for several days. She eventually was able to trick the appellant into leaving the apartment on the following Thursday to get some food, at which time she ran to a neighbor’s house. The neighbor called 911, leading to the appellant’s arrest.

The victim gave equivocal testimony about being sexually battered by the appellant on multiple occasions between Monday and Thursday. There was no testimony of any sexual battery occurring on Sunday, the day she was severely beaten in the face by appellant. The victim’s testimony was equivocal in the sense that she testified that she consented to and even initiated some of the sexual activity between Monday and Thursday. However, she also testified that there were times she participated in sex with the appellant out of fear that he would resume beating her if she did not.

As to both counts 1 and 3, the jury was instructed on a lesser included offense of battery. During deliberations, the jury sent the following question to the trial court:

Your Honor, does Count III, Battery, Lesser Included Offense, differ from Count I, Battery, Lesser Included Offense? In other words, does Count III Battery have more of a sexual connotation?

The trial court responded that “in both of those cases, the meaning of battery doesn’t change,” and again gave the definition of a simple battery. Both the appellant and the State agreed to .the response.

After deliberating, the jury returned a verdict finding the appellant guilty of felony battery-serious bodily' injury as charged; not guilty of false imprisonment; guilty of the lesser included offense of battery (on the sexual battery charge); and not guilty of stalking, In the second portion of the bifurcated trial, the jury also found that .the appellant had previously been convicted of a felony- battery, leading to the enhancement of the simple battery verdict on count 3 -into a felony battery. The appellant was convicted and sentenced on both felony battery offenses. The appellant gave notice of appeal. '

Appellate Analysis

The appellant argues his convictions of felony battery (serious bodily injury) under count 1 and felony battery (prior conviction) as a lesser included offense of count 3 violate Double Jeopardy.

“Because double jeopardy issues involve purely legal determinations, the standard of review is de novo.” Rimondi v. State, 89 So.3d 1059, 1060 (Fla. 4th DCA 2012) (quoting Benjamin v. State, 77 So.3d 781, 783 (Fla. 4th DCA 2011)).

“The most familiar concept of the term ‘double jeopardy’ is that the Constitution prohibits subjecting a. person to multiple prosecutions, convictions and punishments for the same criminal offense.” Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009). However, “[mjultiple punishments and convictions may rest on offenses occurring within differing criminal episodes,” Partch v. State, 43 So.3d 758, 760 (Fla. 1st DCA 2010).

In State v. Paul, 934 So.2d 1167 (Fla. 2006), our supreme court gave the following guidance for determining whether multiple convictions arise out of the same criminal episode in'analyzing an asserted Double Jeopardy violation:

“[Cjourts look to whether there are multiple victims, whether the .offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses.” Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004) (quoting Staley v. State, 829 So.2d 400, 401 (Fla. 2d DCA 2002)); see also Russo v. State, 804 So.2d 419, 420-21 (Fla. 4th DCA 2001) (same); Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004) (holding that in order for crimes to be considered to have occurred in more than one criminal episode, there must be a sufficient temporal break between the two acts in order to allow the offender to reflect and form a new criminal intent for each offense).

Id. at 1173 (emphasis added). See also Hammel v. State, 934 So.2d 634, 635 (Fla. 2d DCA 2006) (quoting McCann v. State, 854 So.2d 788, 792 (Fla. 2d DCA 2003)) (“The test used to determine whether offenses arise from a single criminal episode requires a trial court to ‘look to whether there was- a separation of time, place, or circumstances between the crimes' because those factors are objective criteria utilized to determine whether there are distinct and independent criminal acts or whether there is one continuous criminal act with a single criminal intent.’ ”),

The premise of the appellant’s argument has two prongs, based on the fact that the jury acquitted him of the sexual battery: (1) because the sexual battery offense allegedly occurred during a time frame starting on Monday and ending on Thursday, the jury must have been confused about how to apply the law to the facts, and improperly convicted him on a lesser included crime for conduct occurring on Sunday (when the victim was severely beaten on the face); and (2) if the victim’s consent to the appellant’s conduct was the reason for the acquittal on sexual battery, that consent equally applied to any conviction for a lesser included offense based on the same conduct. We disagree with both prongs of the appellant’s argument.

As to both prongs, we are satisfied that the appellant got the benefit of a jury nullification verdict in deciding count 3 of the information. The jury’s question regarding whether the lesser included battery offense instruction for count .3 required a sexual connotation, as distinct from the lesser included battery offense instruction for count 1, clearly indicates the jury was concerned about the victim’s testimony that she initiated some of the sexual activity with the appellant between Monday and Thursday. However, we are satisfied the jury concluded there was at least one occasion during .the Monday-Thursday period in which ■ the appellant touched her against her will because any consent given was out of fear she would receive further beating. See Doyle v. State, 39 Fla. 155, 22 So. 272, 273 (1897) (“Consent of the woman from fear of personal violence is void.”).

We also agree with the State’s argument that the temporal break between -the appellant’s injurious battery conduct on Sunday and his battery conduct between Monday and Thursday was ample time for him to reflect and form a new criminal intent for each offense. Thus, we conclude there was no Double Jeopardy violation by the judgments and punishments for two felony battery offenses in this case.

Affirmed.

May and Damoorgian, JJ., concur.