text:
    C.V., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1369
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    E.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1205
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alcindo DE ABREU and Antonio De Ornelas, Appellants, v. Anthony Victor De Freitas FERNANDEZ, et al., Appellees.
    No. 3D17-1133
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Helen B. MONZON, Appellant, v. Antonio MONZON, Appellee.
    No. 3D16-2915
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Terrell L. SPARKS, Appellant, v. CIC INVESTORS #60, LTD., etc., et al., Appellees.
    No. 3D16-2290
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael J. MADRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1890
    District Court of Appeal of Florida, Fourth District.
    November 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lamont DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3016
    District Court of Appeal of Florida, Fourth District.
    [November 30, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2459
    District Court of Appeal of Florida, Fourth District.
    [November 2, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven KADASH, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1028
    District Court of Appeal of Florida, Fourth District.
    [December 14, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edgardo ACOSTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1362
    District Court of Appeal of Florida, Fourth District.
    [December 14, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Phares SYLINCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3081
    District Court of Appeal of Florida, Fourth District.
    [December 7, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gerry PARISH, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2551
    District Court of Appeal of Florida, Fourth District.
    [November 30, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jose Ismael Velasquez RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2233
    District Court of Appeal of Florida, Fourth District.
    [December 14, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Casimir GRIGLIK, III, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2477
    District Court of Appeal of Florida, Fourth District.
    [December 14, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kurt MAKOVSKY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3227
    District Court of Appeal of Florida, Fourth District.
    [December 14, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert F. OWENS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3029
    District Court of Appeal of Florida, Fourth District.
    [December 14, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Veronica Buchanon RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1739
    District Court of Appeal of Florida, Fourth District.
    [December 21, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    N.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1780
    District Court of Appeal of Florida, Fourth District.
    [December 21, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Carlos D. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2257
    District Court of Appeal of Florida, Fourth District.
    [December 21, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edgar J. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2636
    District Court of Appeal of Florida, Fourth District.
    [December 21, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Patrick LAWRENCE and Kathleen Kammer, Appellants, v. U.S. BANK NATIONAL ASSOCIATION as Trustee FOR LEHMAN XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-16N, Appellee.
    No. 4D17-1097
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    NURSE ON CALL, INC., Appellant, v. Marcella LYNCH, Jacqueline Olson, Altercare, LLC and Altercare of Palm Beach County, LLC d/b/a Trilogy Homecare, Vitality Home Care, Inc. d/b/a Trilogy Home Healthcare, Keith Carregal and Kinderhook Industries, LLC, Appellees.
    No. 4D17-1853
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marvin N. DOUZE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2282
    District Court of Appeal of Florida, Fourth District.
    [December 21, 2017]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    K.M-A, the mother a/k/a K.M., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D17-3077
    District Court of Appeal of Florida, Fourth District.
    [February 2, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Timothy BOBERG, Appellant, v. Thomas W. CONLEY, III, Appellee.
    No. 4D17-2469
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    AVANTI SERVICES, INC., Lewis Pincus and Global Health Network, LLC, Appellants, v. David R. CAMPBELL and Robin Dale Campbell, Appellees.
    No. 4D17-736
    District Court of Appeal of Florida, Fourth District.
    February 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tavaris COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1274
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Timothy Finell WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2024
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Harold HOLDREN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-93
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joshua BOYCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-879
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mark Eugene PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1249
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nathaniel STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1570
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Oneal Ron MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2646
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael J. NUZZO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1313
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christopher EMBREE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3010
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    B.H., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES Guardian Ad Litem, Appellee.
    No. 4D17-3516
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    M.L., the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D17-2857
    District Court of Appeal of Florida, Fourth District.
    [January 22, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Willard N. PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3206
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    ALL ELEMENTS INSURANCE RESTORATION a/a/o Michael and Tammy McFarlane, Appellant, v. FIRST PROTECTIVE INSURANCE COMPANY d/b/a Frontline Homeowners Insurance, Appellee.
    No. 4D17-2294
    District Court of Appeal of Florida, Fourth District.
    [January 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Maria Sella ANCELL and Geoffrey Ancell, Appellants, v. U.S. BANK, N.A., as Trustee FOR HARBOR VIEW MORTGAGE LOAN TRUST 2006-4, MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2006-4, Appellee.
    No. 4D17-224
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Donna Marion BOWEN, Appellant, v. Norice MATTHEWS, Trustee of the 5970 N.W. 16th CT Trusts 2014, Appellee.
    No. 4D17-0267
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Matthew ARCHER, Appellant, v. SANDALWOOD HOMEOWNERS ASSOCIATION, INC. and Florida Housing Finance Corporation, Appellees.
    No. 4D17-347
    District Court of Appeal of Florida, Fourth District.
    January 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Johenson SALOMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2990
    District Court of Appeal of Florida, Fourth District.
    [January 11, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daniel Lynn THOMAS, Appellant, v. Joseph NASTASI, Appellee.
    No. 4D17-540
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    CAY PARTNERS, LLC, Appellant, v. Gerald W. BASHANT, Sr., and the Bashant Family Limited Partnership, Appellees.
    No. 4D17-672
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jennifer RENDFREY, Appellant, v. ACE RENT A CAR and City of Fort Lauderdale, Appellees.
    No. 4D17-734
    District Court of Appeal of Florida, Fourth District.
    January 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Merlande RICHARD, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 4D17-738
    District Court of Appeal of Florida, Fourth District.
    January 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Courtnay MONTGOMERY, Appellant, v. The NORTHERN TRUST COMPANY and Hilda Santana, as Co-Trustees of the Mary M. Montgomery Trust Dated July 28, 2006, as amended, and John Cramer and John Neason, as Co-Guardians of Mary M. Montgomery, Appellees.
    No. 4D17-1346
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Courtnay E. MONTGOMERY, Appellant, v. John CRAMER et al., Appellees.
    No. 4D17-1371
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    V.B-D., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellee.
    No. 4D17-2448
    District Court of Appeal of Florida, Fourth District.
    [January 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    R.G., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D17-2772
    District Court of Appeal of Florida, Fourth District.
    [January 29, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    J.T., the Father, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D17-2843
    District Court of Appeal of Florida, Fourth District.
    [January 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    A.A., the father, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D17-3079
    District Court of Appeal of Florida, Fourth District.
    [January 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wolfdy Gerald DOMOND, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-0772
    District Court of Appeal of Florida, Fourth District.
    [January 11, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Stacy S. O'NEILL, Appellant, v. Charles V. O'NEILL, Appellee.
    No. 4D17-1470
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Stacy Dawn JAEGER, Appellant, v. Robert M. JAEGER, D.O., Appellee.
    No. 4D17-829
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    CITY OF DELRAY BEACH, Appellant, v. Ralph PHILLIPS, Appellee.
    No. 4D17-913
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Elizabeth SIEBERT, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Circuit: 19 Indian River Unit: 88510, Appellee.
    No. 4D17-1043
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alecia Eckardt GRAY, a/k/a Alicia Gray and Shane Higgins as Personal Representative of the Estate of Donald D. Gray, Appellants, v. Thomas G. DIGGES, Jr., as Trustee of the Denise Z. Digges Family Trust, Appellee.
    Nos. 4D16-3820 4D17-125
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kurt MARIN, Maurice Symonette and Michael Albertine, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee FOR IMPAC REAL ESTATE ASSET TRUST SERIES 2006-SDI, Erron Reid, Josie Belorme a/k/a Josia S. Belorme, Etchika M. Pierre a/k/a Etchika Pierre, State of Florida, Department of Revenue, and KeyBank N.A., Appellees.
    No. 4D17-0277
    District Court of Appeal of Florida, Fourth District.
    [February 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David Junior LOPEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4033
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 24, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Zachary SMOREY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3780
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Rodrick JORDAN a/k/a Roderick Jordan, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2470
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Earnest JOHNSON, Appellant, v. Yettie THOMPKINS, Appellee.
    Case No. 5D17-1685
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    George A. HAMMER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1835
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Simon Samuel TADROS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3000
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    LAND TRUST SERVICE CORPORATION as Trustee of Trust No. 8ss Dated July 9, 2013, Appellant, v. NATIONSTAR MORTGAGE, LLC, Eduard Solokhin and Nataliya Solokhina, Appellees.
    Case No. 5D16-3641
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 1, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kelly WHITED, Vicki Whited and Darrin Lavine, Appellants, v. U.S. BANK, N.A., Successor Trustee to Bank of America, NA, Successor in Interest to Lasalle Bank, NA as Trustee on Behalf of the Holders of the Wamu Mortgage Pass-through Certificates, Series 2007-HY1, Appellee.
    Case No. 5D17-1163
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Felicia Deneen MAYE, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    Case No. 5D17-942
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert A. BORDELON, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2964
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Gary R. RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2787
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Cedrick BARRINER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2597
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Johnny Lee SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2573
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dustin Scott HAYNES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2450
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Andrew Allen ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2094
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    James Allen BREMMER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2030
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Scott Allen MOORE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1493
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Brett CADIEU, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1214
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dana LOYD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1070
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Stephanie MOORE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-509
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    James Patrick WHITE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4222
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Raydel ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3269
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Daniel W. DAVID, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2160
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dana Michael LITTLE, Appellant, v. DEPARTMENT OF CORRECTIONS and State of Florida, Appellees.
    Case No. 5D17-2104
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony BARRETT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3466
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Gregory Earl MURPHY, Sr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2188
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Scott Delmar STEVENS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1754
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kenneth FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3895
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Arsenio STEWART, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3336
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David MCRAE, Appellant, v. James BAKER, Appellee.
    Case No. 5D17-682
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    FERRELLGAS, L.P., LLP, Appellant, v. Joseph Anthony SIEBERT, Ferrellgas, Inc. and Robert Wayne Doby, Appellees.
    Case No. 5D17-640
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    INVESTOR TRUSTEE SERVICES, LLC as Trustee for the Integra Land Trust, Appellant, v. NATIONSTAR MORTGAGE, LLC, Eleanor R. Clark, Pines of Wekiva Homeowners Association, Inc., Donna Gartner and Barclays Bank Delaware, Appellees.
    Case No. 5D17-188
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Johnny NOEL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4175
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    J.W., Putative Father of J.L.F., A Child, Appellant, v. Joshua FUCHS and Wendy Fuchs, Appellees.
    Case No. 5D17-2538
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael L. CROFTS, P.A., as Successor Trustee of the 853 Eagle Claw Court Land Trust Dated November 5, 2007, et. al., Appellants, v. BANK OF NEW YORK MELLON f/k/a Bank of New York as Successor in Interest to JPmorgan Chase Bank, N.A. as Trustee for Structured Adjustable Rate Mortgage Loan Trust, etc., et al., Appellees.
    Case No. 5D16-2787
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Gross, J.

text:
    Paul J. POLITO, an individual, Appellant, v. KEYBANK NATIONAL ASSOCIATION, Appellee.
    No. 4D17-1322
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2017]
    Robert W. Murphy, Fort Lauderdale, and Rebecca J. Covey of Rebecca J. Covey, LLC, Fort Lauderdale, for appellant.
    Susan E. Trench, Alan G. Kipnis and Steven M. Appelbaum of Arnstein & Lehr LLP, Miami, for appellee.
   Gross, J.

We sua sponte dismiss this appeal of two counts of a counterclaim for lack of jurisdiction. The dismissed counts intertwine with pending pleaded claims and are compulsory counterclaims to the original action.

This litigation began when appellee KeyBank National Association sued appellant Paul Polito, seeking a deficiency judgment of $34,932, the debt remaining after Polito's default on a boat loan, followed by the repossession and sale of the boat. A two-count second amended complaint asserted claims for breach of contract and unjust enrichment, contending that Ohio law applied to actions arising under the loan agreement.

Polito answered and counterclaimed for damages, seeking class action relief for deceptive acts concerning the repossession and sale of consumers' boats. The counterclaim had five counts:

Claim Basis for Claim Count I Violation of § 9-610, UCC Unlawful repossession (§ 1309.610, Ohio Revised Code) of the boat (breach of KeyBank deprived Borrower and the peace)1 other class members of substantial rights granted to them under the UCC, including, but not limited to, the right to obtain a reasonable notification of disposition that properly discloses their rights upon repossession. Count II Violation of § 9-611, UCC Defective notice of sale § 1309.611, Ohio Revised Code) (inadequate notice) KeyBank failed to provide reasonable notice of disposition of collateral. Count III Violation of § 9-612, UCC Defective notice of sale § 1309.612, Ohio Revised Code) (timeliness of notice) KeyBank failed to provide reasonable notice of disposition of collateral. Count IV Equitable Relief (Common Law) Unlawful collection KeyBank wrongfully collected activities and credit and/or reported credit information reporting (reporting to the CRAs with respect to the derogatory consumer reports of Borrower and information to other class members. consumer reporting agencies) Count V Equitable Relief (UCC) Unlawful collection KeyBank wrongfully collected activities and credit and/or reported credit information reporting (reporting to the CRAs with respect to the derogatory consumer reports of Borrower and information to other class members. consumer reporting agencies)

[Editor's Note: The preceding image contains the reference for footnote ]

KeyBank moved for summary judgment on counts II and III of the counterclaim, arguing that the notice of sale comported with Ohio law. The circuit court granted KeyBank's motion and entered a partial final judgment in favor of KeyBank on counts II and III of the counterclaim.

The jurisdictional problem with this appeal is that the two dismissed counts are not now appealable. "An appeal from an order dismissing a count of a complaint, where other counts against the same parties remain, is authorized only when the dismissed count arises from a separate and distinct transaction independent of the other pending, pleaded claims."

Biasetti v. Palm Beach Blood Bank, Inc. , 654 So.2d 237, 238 (Fla. 4th DCA 1995) ; see also Fla. R. App. P. 9.110(k). "[P]iecemeal appeals should not be permitted where claims are legally interrelated and in substance involve the same transaction." Mendez v. West Flagler Family Ass'n, Inc. , 303 So.2d 1, 5 (Fla. 1974). "Only when it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims should the appeal be permitted." Biasetti , 654 So.2d at 238 (internal citations and quotations omitted).

An analysis of "interdependence" requires the court to look primarily to the facts upon which the claims are based. If the claims arise out of the same incident, the order dismissing some, but not all, of the counts will not constitute a final appeal, even if the counts involve separate and severable legal theories.

Id.

Here, the dismissed counts are interdependent with the remaining causes of action in the counterclaim. Defective notices of sale form at least a partial basis for the relief sought in the other counts.

Also, insofar as Polito would be a class representative on the counterclaim, counts II and III of the counterclaim arose out of the seizure and sale of his boat, so they arose "out of the transaction or occurrence that formed the subject matter of the plaintiff's claim." Londono v. Turkey Creek, Inc. , 609 So.2d 14, 19 (Fla. 1992). This means that the two counts were compulsory counterclaims. This court does not have jurisdiction because an order dismissing a compulsory counterclaim is "not appealable until a final disposition of the original cause has [been] obtained on the merits." 4040 Ibis Circle, LLC v. JPMorgan Chase Bank , 193 So.3d 957, 960 (Fla. 4th DCA 2016) (quoting Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A. , 621 So.2d 507, 509 (Fla. 2d DCA 1993) ).

Dismissed for lack of jurisdiction .

May and Klingensmith, JJ., concur.

      Although not explicitly mentioned within this specific count, it appears that this count was based on the unlawful repossession of Polito's boat, which he contends was a breach of the peace.


author: Ciklin, J.

text:
    Leroy SINGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2171
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]
    Carey Haughwout, Public Defender, and John M. Conway and Paul E. Petillo, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Nancy Jack and Heidi L. Bettendorf, Assistant Attorneys General, West Palm Beach, for appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Ciklin, J.

On remand from the Florida Supreme Court, we are tasked with reconsidering our previous decision in light of State v. Dominique , 215 So.3d 1227 (Fla. 2017). The defendant was charged with first-degree murder with a firearm and convicted of the lesser included offense of second-degree murder with a firearm. He argues that the manslaughter by act instruction, previously deemed to constitute fundamental error for requiring a finding of an intent to kill, was not cured by the giving of the manslaughter by culpable negligence jury instruction. We disagree and affirm.

In Haygood v. State , 109 So.3d 735, 743 (Fla. 2013), the court held as follows:

[G]iving the manslaughter by culpable negligence instruction does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of an offense not more than one step removed from manslaughter and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable negligence of the defendant.

Subsequently, in Dominique , another case involving a conviction for the lesser included offense of second-degree murder, the supreme court elaborated on the circumstances under which giving the manslaughter by culpable negligence instruction cures the error addressed in Haygood :

[W]here a jury determines that the evidence does not prove an intent to kill, the jury must then determine if any lesser included offense not requiring an intent to kill is available for their consideration and has been proven. Where the instruction on manslaughter by culpable negligence is given as well as the instruction for second-degree murder, the jury will examine the evidence for proof of the level of disregard for safety and human life and for evidence, if any, of an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. Both lesser included offenses lack any requirement of an intent to kill. Whether the defendant is guilty of one or the other will turn in large part on whether the defendant is proved to have committed the homicide with a level of ill will, hatred, spite, or evil intent rising to the level of a depraved mind required for second-degree murder. Therefore, we examine the evidence presented during trial to determine if it reasonably could support a finding by the jury that the killing resulted from culpable negligence, thus providing the jury with a viable alternative to second-degree murder that also did not require an intent to kill.

215 So.3d at 1235. The court then reviewed the evidence introduced at trial:

The testimony established that on the night of the shooting, Dominque was on the telephone with his girlfriend, Vonshell Lindsay, when she told him their breakup was final and that she was getting back together with Clementson, the victim in this case. At that same moment, Dominique, who was sitting in a borrowed car in Lindsay's neighborhood, saw Clementson drive toward the house where Lindsay was visiting. Although Dominique was in the neighborhood, he told police it was only to talk with Lindsay, and there was no evidence that Dominique knew Clementson would be there. Dominique told police that he had a gun with him in the car he borrowed from his sister, explaining to police that he usually had it with him. When Dominique started walking toward Lindsay's house, Clementson drove by him. Dominique told officers that at that point, he grabbed the gun and went after Clementson, firing "a whole bunch of shots" while running. He told police he was shooting wildly without aiming, and that he hoped Clementson was still alive. Witnesses also testified that Dominique was running in the dark while firing with his arm extended. The only witness who saw Dominique actually fire the gun testified first that he took aim, but she almost immediately receded from that testimony and agreed that "[i]t was not like he stood there and [sighted in on] the man before he took the shot."

Id. at 1236 (alterations in original). The court affirmed the defendant's conviction, reasoning as follows:

[T]his evidence reasonably meets the test for "reckless disregard for human life" and [ ] the defendant must have known, or reasonably should have known, that these actions were likely to cause death, as required by the jury instruction for manslaughter by culpable negligence as well as second-degree murder. Certainly, Dominique's actions demonstrated want of care, wantonness, recklessness, or gross disregard for the safety of others, as is required under both the manslaughter by culpable negligence jury instruction and the instruction for second-degree murder. Accordingly, the jury had before it two viable alternatives, neither of which required an intent to kill. It was for the jury to determine if the evidence rose to the level of depraved mind such that second-degree murder was proven, a conclusion the jury reached in this case.

Id.

Here, as in Dominique , the evidence supported both second-degree murder and manslaughter by culpable negligence. There was testimony that Singh and the victim had a fraught history and that on the day of the shooting, they had a heated argument that nearly turned physical.

There was also testimony that the defendant intended to shoot the victim, that he aimed at the victim, and that they were standing near one another. However, there was also evidence that the defendant did not know how to aim, that he did not know how many bullets were in the gun that another man handed to him shortly before the shooting, and that he shot in a panicked rather than methodical manner. Indeed, there was testimony that a bullet ricocheted off of a nearby vehicle that was facing the apartment building where the victim was shot. Further, during closing argument, the prosecutor pointed out that the defendant "started shooting at everything that moved."

After examining all of the evidence, we find that the jury had "two viable alternatives, neither of which required an intent to kill," and that it determined that "the evidence rose to the level of depraved mind such that second-degree murder was proven."

Affirmed.

Gerber, C.J., and Forst, J., concur.

      State v. Montgomery , 39 So.3d 252, 254 (Fla. 2010).


author: Per Curiam.

text:
    Nelson BAPTISTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-185
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm the denial of appellant's motion for postconviction relief after an evidentiary hearing. See Fla. R. Crim. P. 3.850.

However, we remand for resentencing. In Baptiste v. State , 165 So.3d 746 (Fla. 4th DCA 2015), we held that appellant's convictions for home invasion robbery and burglary arising from a single criminal episode violated double jeopardy. On remand, the burglary conviction was vacated in February, 2016. The record does not reflect whether appellant was resentenced with a corrected scoresheet that does not include the burglary conviction. Appellant is entitled to be sentenced with a new scoresheet. See Fernandez v. State , 199 So.3d 500, 502 (Fla. 2d DCA 2016). We note that there is no record evidence that the court would have imposed the same sentence with a different scoresheet. Cf. Tundidor v. State , 221 So.3d 587, 605-07 (Fla. 2017).

Remanded for resentencing.

Gerber, C.J., Gross and May, JJ., concur.


author: Klingensmith, J.

text:
    Ruben Israel RENTAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-533
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]
    Carey Haughwout, Public Defender, and Karen Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant Ruben Israel Rentas appeals his criminal convictions for two counts of sexual activity with a child, two counts of lewd or lascivious molestation of a child over the age of twelve but under the age of sixteen, one count of lewd or lascivious molestation of a child under the age of twelve, one count of sexual performance by a child, and one count of showing obscene material to a child. He claims the trial court erred in denying cause challenges to two prospective jurors based on statements raising doubts as to their impartiality. He also argues that the trial court erred by permitting the jury to rehear a portion of the minor victim's testimony without also rehearing the corresponding cross-examination. We agree on both issues, and grant appellant's request for a new trial. We affirm without comment as two other issues raised, specifically the denial of appellant's motion to suppress as well as the admission of the inextricably intertwined evidence.

Part of appellant's defense theory was that he gave a false confession. During voir dire, defense counsel asked the prospective jurors, "Do you believe people confess to crimes they did not commit?" The first three jurors to answer each stated they believed that under certain conditions, false confessions could occur. The fourth prospective juror to speak on the issue, Juror 1-5, stated that he did not believe a person would falsely confess to committing such a serious offense and that the validity of an involuntary confession was contingent on the severity of the alleged crime. He explained, "If the person is accused of a serious crime, I seriously doubt that they would say they did it if they didn't think so." Juror 1-5 later reiterated his belief that an innocent person would not confess to a crime he did not commit:

But I would say you know-and I'll clarify that-they certainly would have been involved in it. And I think your question was would they agree to admitting to a crime that they did not commit and my answer to that would be no.

(Emphases added).

Juror 1-5 unequivocally said he would be fair and impartial, but was not further questioned by the State or the trial court concerning his views on false confessions. Defense counsel challenged this juror for cause because he candidly expressed difficulty accepting false confessions for serious crimes and that a person who confessed was certainly involved in some way. The State responded that Juror 1-5's opinions were entirely reasonable and that his statements actually meant false confessions were extremely unlikely, not that they did not occur in serious cases. The trial court agreed with the State and denied the challenge for cause to Juror 1-5.

During the voir dire discussion, a second juror, Juror 3-7, was asked for his thoughts about false confessions. Juror 3-7 also found it hard to believe that a person would falsely admit to committing the charged crimes:

Well, it-it's kind of hard for me to believe that someone would admit guilt to a crime of this nature if they were in fact innocent. I mean very unreasonable. I mean anything's possible of course. But something of this nature would just be very unreasonable for someone to admit guilt to.

(Emphases added).

Defense counsel tried to decipher whether Juror 3-7 would be fair and impartial, and asked him if he would have difficulty accepting an involuntary confession theory. Juror 3-7 answered that he "would look at everything evenly and as fair as possible to make a fair decision." But when defense counsel inquired further as to whether Juror 3-7's position was that involuntary confessions were "possible" or "completely unreasonable," Juror 3-7 responded, "It's possible. But a crime of this nature I mean who would be crazy enough to admit guilt? " (Emphasis added).

After Juror 3-7's comment, defense counsel asked if any other juror felt the same way, to which Juror 4-3 responded:

What he's saying makes total sense. Okay? I mean the crime we're talking about the sexual crime that's-that's talking about this situation with [Juror 3-7], I-I'm 100% on his side for that because you would have to be mentally ill okay to-to go to plead guilty to something like that because you have no sense of thought. There's no there's no way anybody with common logic and sense would do something to uh-to jeopardize their lives to commit a-to admit they're guilty for something they didn't do.

(Emphases added.)

Appellant also challenged Jurors 3-7 and 4-3 for cause arguing that, like Juror 1-5, both rejected the false confession defense as unreasonable while believing a person would have to be crazy to do so. The State argued that while a prospective juror may find such a defense "hard to believe," they are permitted to have whatever beliefs they want so long as they are able to keep an open mind and follow the evidence. The trial court recalled that Juror 3-7 specifically stated he would be as fair as possible and if he listened to the evidence fairly, there was no reasonable doubt as to his impartiality. However, defense counsel noted that Juror 3-7's reference to fairness needed to be considered in context of his candid disbelief of false confessions to serious crimes.

Ultimately, the trial court denied appellant's cause challenge to Juror 3-7, but granted appellant's challenge to Juror 4-3. After appellant exercised all his peremptory challenges, the trial court rejected appellant's request for additional peremptory challenges for each cause challenge the trial court previously denied.

During jury deliberations after trial, the jury submitted a note to the trial judge which read: "There is a request for a transcript of [minor victim]'s testimony. Is that something that can be provided?" The court informed the jury that the minor victim's testimony was recorded, the complete testimony was an hour and fifty-eight minutes long, and would take about thirty minutes to prepare on a disk. The judge then instructed the jury to return to the jury room and decide whether they wanted the entire testimony played back, or only a narrowed portion. After some deliberation, the jury sent a second note: "We would like to see the first [twenty] minutes of [minor victim]'s testimony." Upon receiving the second request, the trial court immediately asked for the jury to be brought in and granted their request. Appellant objected to the jury only hearing direct examination testimony and requested that the jury also hear the relevant cross-examination testimony relating to the first twenty minutes of direct examination. The trial court overruled appellant's objection and played the first twenty minutes of the minor victim's direct testimony for the jury.

The jury returned a verdict of guilty to all seven counts against appellant. He was sentenced to life in prison followed by two consecutive thirty-year prison sentences. This appeal followed.

1. For Cause Challenges

"The standard of review of a trial court's ruling on a cause challenge is one of abuse of discretion.... Abuse of discretion occurs when the record reveals reason to doubt impartiality." Ranglin v. State , 55 So.3d 744, 746 (Fla. 4th DCA 2011). Additionally, the failure to strike a juror for cause is not subject to a harmless error analysis. See Bryant v. State , 765 So.2d 68, 69 (Fla. 4th DCA 2000).

A juror's expressions of doubt about an ability to decide the case impartially provides reasonable doubt about the juror's ability to decide the case solely on the evidence. See Lowry v. State , 963 So.2d 321, 326-27 (Fla. 5th DCA 2007). "When a party seeks to strike a potential juror for cause, the trial court must allow the strike when there is basis for any reasonable doubt that the juror had 'that state of mind which would enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.' " Guardado v. State , 176 So.3d 886, 897 (Fla. 2015) (quoting Carratelli v. State , 961 So.2d 312, 318 (Fla. 2007) ).

Potential jurors who express significant reservations about their ability to be impartial should be excused for cause where their responses to attempts at rehabilitation are conditional or equivocal. See Carratelli v. State , 832 So.2d 850, 855 (Fla. 4th DCA 2002). "A juror is not impartial when one side must overcome a preconceived opinion in order to prevail." Reid v. State , 972 So.2d 298, 300 (Fla. 4th DCA 2008) (quoting Hill v. State , 477 So.2d 553, 556 (Fla. 1985) ). However, a juror who can lay aside any bias or prejudice, and render a verdict solely on the evidence presented and the instructions on the law given by the court, may be permitted to serve on the case. See Dorsett v. State , 941 So.2d 587, 588 (Fla. 4th DCA 2006).

Here, when defense counsel further inquired about Juror 1-5's beliefs, the juror explained that someone who confessed to a serious crime would have to have been involved in some way, thus implying that he already believed appellant was involved in the alleged offenses. As a result, Juror 1-5 should have been stricken for cause because of his preconceived beliefs regarding involuntary confessions.

In Montozzi v. State , 633 So.2d 563, 565 (Fla. 4th DCA 1994), a prospective juror expressed disapproval of the kind of activity defendant was involved in based on her experiences. Following the State's attempt to rehabilitate the juror, the trial court attempted further rehabilitation, to which the juror responded that she "hoped" she could be fair and impartial, and equivocally agreed that she would be able to follow the law. Id. at 564-65. This court held, "While this is indeed an area of trial judge discretion, nevertheless we have ordered new trials ourselves where we were convinced of the existence of reasonable doubts." Id. at 565. "Qualified promises by a would-be juror to be fair and impartial are simply not enough to guarantee a fair trial, at least in the face of such prior testimony as this juror gave." Id. This court further reasoned:

Few jurors would resolutely continue to admit that they have a bias after having a prosecutor and a trial judge cloak them in a duty to be fair. Some answers by prospective jurors should simply be deemed alone disqualifying, no matter how earnestly counsel and the trial judge seek to save them. In this case, the bell earlier rung by this juror was sounded again even while she was being "rehabilitated."

Id.

Like the facts in Montozzi , Juror 3-7 also candidly expressed difficulty accepting that a person accused of a serious crime would falsely admit guilt. He qualified his statement by saying he would be fair and impartial, but when subsequently asked about whether false confessions were possible, he admitted, "It's possible. But a crime of this nature I mean who would be crazy enough to admit guilt? " (Emphasis added). Even though Juror 3-7 unequivocally stated that he would be fair and impartial, his colloquy ended with a rhetorical question that reiterated his prior statements of potential bias. Accordingly, it was error to deny the cause strike against Juror 3-7 as well.

2. Testimony Read-Back

Trial courts have "wide latitude in the area of the reading of testimony to the jury" pursuant to Florida Rule of Criminal Procedure 3.410. Avila v. State , 781 So.2d 413, 415 (Fla. 4th DCA 2001). As such, the standard of review for evaluating a trial court's decision regarding the read-back of requested testimony is abuse of discretion.

See Garcia v. State , 644 So.2d 59, 62 (Fla. 1994). This court and others have determined that a play-back of a portion of direct-examination, without the relevant cross-examination, can be error if doing so is misleading or emphasizes one party's version of events. See Mullins v. State , 78 So.3d 704, 705 (Fla. 4th DCA 2012) ; Gormady v. State , 185 So.3d 547, 551 (Fla. 2d DCA 2016).

In Mullins , the defendant claimed the trial court erred in allowing the jury to hear the play-back of specific direct-examination testimony by not replaying the cross-examination of the same subjects. 78 So.3d at 705. The jury specifically asked for play-back of the testimony of two different witnesses relating to a specific event. Id. In response, the trial court replayed the relevant portions of the witnesses' testimony on direct examination, but did not replay the relevant cross-examination testimony. Id. This court found that the trial court erred and held that "the partial play-back served to emphasize a version of events favorable to the State and diminish a version favorable to the defense." Id. at 706.

Most recently in Gormady , the trial court improperly permitted the jury to cease the read-back of the investigating detective's testimony at any time. 185 So.3d at 551. The Second District relied on Mullins to determine that allowing the jury to hear a partial read-back without hearing cross-examination testimony placed undue emphasis on and bolstered the State's version of events concerning the charged offenses. Id.

The rule expressed in both Mullins and Gormady provides that when a jury requests a play-back of testimony, the trial court must generally furnish both direct-and cross-examination testimony to the jury to ensure fairness when the portion of the testimony requested involves an essential element of any of the charged offenses. See Mullins , 78 So.3d at 706 ; Gormady , 185 So.3d at 551-52.

In this case, the play-back of the first twenty minutes of the minor victim's testimony exclusively supported the State's case against appellant. The failure to include in the play-back for the jury the cross-examination concerning the subjects discussed during the first twenty minutes of the victim's testimony resulted in unduly emphasizing the State's version of events.

Since the trial court failed to ascertain what specific subject matter the jury sought from the testimony, refusing to include the related cross-examination testimony was error. In so holding, we acknowledge a jury's practical ability to decide what evidence to focus on during its deliberations. The fact that this jury requested to rehear only a portion of a witness's direct testimony provides no reason to create a bright-line rule that in all cases a trial court is required to force-feed the jury a play-back of testimony it expressly deems unnecessary. However, given the lack of inquiry into the specifics of the testimony to be reheard, the court in this case erred by not requiring the jury to rehear the relevant cross-examination testimony without confirming that the jury had no need for it.

The State argues that the failure to play-back the victim's relevant cross-examination testimony was harmless error. The harmless error test requires the State "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict." Ventura v. State , 29 So.3d 1086, 1089 (Fla. 2010) (quoting State v. DiGuilio , 491 So.2d 1129, 1138 (Fla. 1986) ). Because the first twenty minutes of the victim's direct testimony at trial introduced the only evidence of an incident that allegedly occurred before she was twelve, we conclude that the State has not met its burden to show that trial court's partial play-back was not harmful as to the charge of lewd or lascivious molestation of a child under the age of twelve.

In conclusion, we find that the trial court's failure to grant appellant's for cause challenges as to Jurors 1-5 and 3-7 denied him a fair trial. Moreover, we cannot say beyond a reasonable doubt that the trial court's partial play-back did not contribute to appellant's conviction for lewd or lascivious molestation of a child under the age of twelve. Therefore, we are compelled to reverse and remand for a new trial on all counts.

Reversed in part, reversed in part, and remanded for a new trial.

Ciklin and Conner, JJ., concur.


author: May, J.

text:
    RASIER-DC, LLC, Appellant, v. B & L SERVICE, INC., a Florida corporation and Broward County, Florida, a Political Subdivision, Appellees.
    No. 4D16-3070
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]
    Alyssa M. Reiter and Jordan S. Cohen of Wicker Smith O'Hara McCoy & Ford, P.A., Fort Lauderdale, for appellant.
    Daniel L. Wallach and Allen M. Levine of Becker & Poliakoff, P.A., Fort Lauderdale, and Mark J. Stempler of Becker & Poliakoff, P.A., West Palm Beach, for appellees.
   May, J.

Business competition and a battle between government transparency and entrepreneurial confidentiality lay the foundation for this appeal. Uber, the intervenor in a suit over a public records request, appeals an order that required Broward County to produce redacted reports in response to a broader request for records. Uber argues the trial court erred in granting a rehearing and ordering Broward County to produce redacted Uber reports to Yellow Cab. We disagree and affirm the order.

Uber and Broward County entered into a license agreement governing Uber's services at the airport and Port Everglades. Article 2.6.4 of the agreement addressed Uber's monthly self-reporting requirements. Article 9.4 required Broward County to maintain the confidentiality of Uber's trade secret information and assert its exempt status in response to a public records request.

Uber's monthly reports contained both aggregate and granular data. The aggregate data is the number of pickups and drop-offs at the airport and seaport, "multiplied by the fee in each of those zones." The granular data is information on every pickup and drop-off, including a time stamp, the longitude and latitude, and the first three characters of the driver's license plate which identifies the individual. Uber marked the reports as containing trade secret information, exempt from the Public Records Act.

Yellow Cab made a public records request to Broward County for: "All reports or documents reflecting pick-ups by Rasier-DC, LLC or Uber at the [airport], and the sums of money paid or owing to [the county] for those trips, beginning in October, 2015 and through the present." (Emphasis added). The county responded that any reports marked trade secret would not be disclosed without Uber's authorization, pursuant to the license agreement, and produced a redacted set.

Yellow Cab then filed a complaint against Broward County for violating Florida's Public Records Act, seeking un-redacted monthly reports on Uber's pickups at the airport. Uber then moved to intervene as the owner of the trade secret information and real party in interest. The trial court granted the motion to intervene.

After an evidentiary hearing, the court ordered that Broward County had complied with the public records request and reserved ruling as to whether the requested records were trade secrets. The court later found the information was protected trade secrets and exempt from disclosure under Florida's Public Records Act.

Yellow Cab moved for rehearing, arguing the trial court had overlooked that the request was limited to the amount of money paid to the county and the number of pickups. The trial court conducted an in camera inspection of the un-redacted documents, and found

that the aggregate number of pick-ups and the sum of money paid by [Uber] to the County as a usage fee at the [airport] does not constitute trade secret information such that it would be exempt from public disclosure. The remaining information in the reports, however, including the longitude and latitude and the specific dates and times of pick-ups and drop-offs, and the first three characters of license plates of [Uber]'s drivers ... does constitute trade secret information that is exempt from public disclosure.

The trial court ordered Broward County to produce the non-exempt information.

On appeal, Uber argues the trial court abused its discretion in granting rehearing and requiring production of the redacted reports. We disagree. The trial court correctly determined, after an in camera review of the documents, "the aggregate number of pick-ups and the sum of money paid by [Uber] to the County as a usage fee at the [airport did] not constitute trade secret information such that it would be exempt from public disclosure."

Florida policy requires "all state, county, and municipal records" to be open for inspection and copying by any person. § 119.01(1), Fla. Stat. (2016). Public custodians must allow a requested record to be inspected and copied by "any person desiring to do so, at any reasonable time, [and] under reasonable conditions." § 119.07(1)(a), Fla. Stat. (2016). The Public Records Act is construed liberally and favors openness. Christy v. Palm Beach Cty. Sheriff's Office , 698 So.2d 1365, 1366 (Fla. 4th DCA 1997).

In a similar case, a federal district court found that Lyft's commissions and revenue from certain products were not trade secrets. Cotter v. Lyft, Inc. , No. 13-cv-04065-VC, 2016 WL 3654454, at *2 (N.D. Cal. June 23, 2016).

While the algorithms and "proprietary price models" that Lyft uses to set its fares and the rate of Prime Time premiums and, in turn, its commissions from those moneys are trade secrets, the bare output of those algorithms and price models (i.e., the total amount of commissions taken) is not. Though the manner in which Lyft determines its pricing is an important part of its competitive strategy, its revenue is not strategy but rather the result of that strategy.

Id.

Several non-Florida cases have also held that sales volume, income statements, and gross sales of a corporation are not trade secrets. See Luigino's, Inc. v. Peterson , 317 F.3d 909 (8th Cir. 2003) ; Matosantos Commercial Corp. v. SCA Tissue N. Am., LLC , 369 F.Supp.2d 191 (D.P.R. 2005) ; Augat, Inc. v. Aegis, Inc. , 409 Mass. 165,565 N.E.2d 415 (1991).

"A public record cannot be transformed into a private record merely because an agent of the government has promised that it will be kept private." Nat'l Collegiate Athletic Ass'n v. Associated Press , 18 So.3d 1201, 1208 (Fla. 1st DCA 2009) (citing Browning v. Walton , 351 So.2d 380, 381 (Fla. 4th DCA 1977) ).

The right to examine public records belongs to the public. Nat'l Collegiate Athletic Ass'n , 18 So.3d at 1209.

In short, the total number of pickups and the fees paid to Broward County do not meet the definition of trade secrets under sections 688.002(4) or 812.081(1)(c), Florida Statutes (2016). Nothing indicates the fees or total pickups provide an advantage to Yellow Cab or that Uber derives independent economic value from keeping that information secret. The trial court carefully reviewed the documents and complied with Florida's Public Records law in requiring production of redacted records that were not exempt.

Affirmed.

Taylor and Kuntz, JJ., concur.

      Rasier is a subsidiary of Uber Technologies, Inc. It licenses technology from Uber Technologies, Inc., and then licenses it to Uber drivers. While Uber Technologies, Inc., is not a party to the case, Rasier is referred to as Uber for ease of understanding.

      While Yellow Cab's president and counsel later stated that the company would be okay with not receiving all of the information in the reports, Yellow Cab initially requested the entirety of the reports and its counsel specifically told the trial court that Yellow Cab was entitled to "all the information in the reports." At oral argument, Yellow Cab again claimed its request was limited, but the wording of its request belies that assertion.

      The dollar figure along with the number of pickups does not reveal Uber's fare pricing or revenue. Payment to the driver, cost to the rider, and revenue to the company differ for each of Uber's services. Without knowing the level of service provided, a competitor would not know the type of riders being serviced. Nor does the monthly fee to the county and the total number of pickups reveal the number of miles traveled or the duration of each pickup.


text:
    Marie Ann JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1454
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2018]
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    No appearance required for appellee.
   Per Curiam.

Marie A. Johnson appeals her convictions and sentences following an open guilty plea. Her court-appointed counsel filed a motion to withdraw and supporting brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the convictions and sentences but remand to the trial court to correct the written order of sex offender probation to indicate that Appellant entered guilty pleas to the 88 counts charged, rather than pleas of nolo contendere. Kim v. State , 187 So.3d 950 (Fla. 4th DCA 2016).

Affirmed and remanded with instructions.

Damoorgian, Conner and Forst, JJ., concur.


author: Forst, J.

text:
    David BARTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-0280
    District Court of Appeal of Florida, Fourth District.
    [January 24, 2018]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant David Barton was found guilty of attempted murder in the second degree, and attempted manslaughter by act with a firearm. On appeal, Appellant argues that the trial court improperly admitted a photograph, and that his defense counsel was ineffective. We affirm the trial court on all issues. We find no error with the admission of the photograph, as it was relevant and sufficiently connected to the crimes. See Holloway v. State , 114 So.3d 296, 297 (Fla. 4th DCA 2013). Additionally, as discussed below, there is insufficient evidence on the face of the record to show that Appellant's trial counsel was ineffective for failing to file a motion to suppress evidence retrieved from a warrantless search of Appellant's cell phone.

Background

The State presented witness testimony that two weeks prior to the shooting at issue, Appellant and another student got into a fight, resulting in a one week suspension. Later that week in the early morning, a gunman fired four or five times towards a school bus stop near an elementary school, where there were fifteen to twenty-five students at the time. The student that fought with Appellant earlier that week was one of those students. Another student was seriously injured by a projectile lodged in her neck as a result of the shooting.

While investigating, police found projectiles consistent with a .22 caliber gun; however, police were unable to recover the weapon. Police also found a cell phone and its back cover near the scene of the crime. Specifically, the cell phone was found lying on the grass inside an apartment complex, just a few feet away from a fence separating the apartments from the street. In turn, that fence was located about fifteen feet away from the bus stop. A student testified that at the time of the event, he saw muzzle flash along the fence line. Moreover, police discovered three bullet holes in the fence rails, indicating that the shots came from the apartment complex.

After discovering the cell phone, police immediately took it to their Covert Electronic Surveillance Unit to extract data. While doing so, police were questioning witnesses to find the identity of the shooter. Within a few hours of finding the phone, police obtained the phone's number, as well as some contacts and text messages stored on the phone. Police initially matched the phone to Appellant since some of the text conversations mentioned his name. Police could also match the phone to Appellant because a student had provided them with Appellant's phone number during an interview. Several weeks later, police obtained a search warrant to get more detailed information from the phone, such as call logs, GPS locations, and subscriber information, definitively showing that the phone belonged to Appellant.

At trial, the State admitted the phone data without objection. The jury rendered a verdict finding Appellant guilty of attempted murder in the second degree, and attempted manslaughter by act with a firearm. This appeal followed.

Analysis

Generally, a claim of ineffective assistance of counsel is not cognizable on direct appeal since the issue is so fact-specific. Michel v. State , 989 So.2d 679, 681 (Fla. 4th DCA 2008) (citing Gore v. State , 784 So.2d 418, 437-38 (Fla. 2001) ). However, as this Court noted, "such a claim can be raised where the face of the record demonstrates ineffective assistance of counsel." Id. (citing Bruno v. State , 807 So.2d 55, 63 n.14 (Fla. 2001) ).

To prove ineffective assistance of counsel, the defendant must show that counsel's actions fell below an objective standard of reasonableness, and that the defendant would have received a different result in the proceeding, but for such representation. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Phillips v. State , 225 So.3d 269, 271 (Fla. 4th DCA 2017). Appellant has failed to demonstrate deficient performance or prejudice on the face of the record.

As a preliminary matter, it is unclear whether Appellant's phone was password-protected when police found it near the scene of the crime, and thus unclear whether a warrant was required under State v. K.C. , 207 So.3d 951, 958 (Fla. 4th DCA 2016), which held that if a defendant abandons a password-protected cell phone, police must generally first obtain a search warrant to access its contents.

Regardless of K.C. , the exigent circumstances exception to the warrant requirement applies to the facts of this case. See Riggs v. State , 918 So.2d 274, 278 (Fla. 2005) ("[A] well-established exception exists for 'the sort of emergency or dangerous situation, described in our cases as 'exigent circumstances,' that would justify a warrantless entry into a home [or other object] for the purpose of either arrest or search.' " (quoting Payton v. New York , 445 U.S. 573, 583, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) )); see also Hanifan v. State , 177 So.3d 277, 279-80 (Fla. 2d DCA 2015) (applying the exigent circumstances exception to allow police to search a cell phone without a warrant). In Riley v. California , the U.S. Supreme Court acknowledged "[o]ne well-recognized exception" to the search warrant requirement-an "exigencies of the situation" exception that could include "pursu[ing] a fleeing suspect." --- U.S. ----, 134 S.Ct. 2473, 2494, 189 L.Ed.2d 430 (2014) (quoting Kentucky v. King , 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ).

To determine whether an exigent circumstance exists, we look to the totality of the circumstances and consider various factors, including:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; and (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public.

United States v. Standridge , 810 F.2d 1034, 1037 (11th Cir. 1987) ; accord Herring v. State , 168 So.3d 240, 243 (Fla. 1st DCA 2015).

In this case, any delay in finding the gunman may have had catastrophic consequences. At the time of the search, police knew the gunman fired several bullets towards fifteen to twenty-five students at a bus stop near an elementary school; a student was seriously injured; the gunman had not been detained; and the gun had not been located. These circumstances dictated a prompt response on the part of the authorities to discover the gunman's identity. See United States v. Caraballo , 831 F.3d 95, 104 (2d Cir. 2016) (holding that officers' warrantless pinging of the defendant's cell phone was justified under the exigent circumstances exception in part because the defendant, who had just brutally killed a victim execution style, was still likely armed and on the loose).

Conclusion

There is no evidence on the face of the record that Appellant's counsel was ineffective for failing to file a motion to suppress evidence discovered per the warrantless search of the abandoned cell phone, as such a motion would likely have been fruitless due to the exigencies of the situation justifying this warrantless search. Appellant's conviction and sentence are therefore affirmed.

Affirmed .

Taylor and Klingensmith, JJ., concur.


text:
    INSIDE THE ART OF CRAFTSMANSHIP CORPORATION, Appellant, v. DESIGN CENTER OF THE AMERICAS, Appellee.
    No. 4D17-1411
    District Court of Appeal of Florida, Fourth District.
    [January 17, 2018]
    Kevin Fabrikant, Fabrikant & Associates PLLC, Hollywood, for appellant.
    Alex P. Rosenthal, Rosenthal Law Group, Weston, for appellee.
   Per Curiam.

Affirmed. See Poal Wk Taft, LLC v. Johnson Med. Ctr. Corp. , 45 So.3d 37 (Fla. 4th DCA 2010).

Taylor, Forst and Klingensmith, JJ., concur.


text:
    Wayne GOLDMAN, Marianne Goldman and Sean Acosta, Appellants, v. Stephen LUSTIG, Appellee.
    No. 4D16-1933
    District Court of Appeal of Florida, Fourth District.
    [January 24, 2018]
    Matthew P. Leto of Hall, Lamb, Hall & Leto, P.A., Miami, for appellants.
    Andrew J. Baumann and Telsula C. Morgan of Lewis, Longman & Walker, P.A., West Palm Beach, for appellee.
   Forst, J.

In a case of "what's up, dock?," both Appellants Marianne Goldman, Wayne Goldman, and Sean Acosta ("Unit Owners") and Appellee/Cross-appellant Stephen Lustig seek a declaration of their rights to a dock located behind Lustig's property. As set forth below, we find that the trial court should have determined the parties' rights and, upon adjudication of those rights, should have found that Unit Owners were entitled to use a portion of the dock, but were not entitled to access that dock by way of an easement by necessity. We reverse and remand for the trial court to amend its final judgment consistent with this opinion.

Background

This case involves a multi-year dispute over the right to use and access a wooden dock located behind Lustig's waterfront property. In 2007, Unit Owners filed a complaint seeking a declaration of their right to use a portion of that dock, as well as a permanent injunction to prevent Lustig from prohibiting their continued use of the dock. Unit Owners and Lustig lived in a community called 900 Hillsboro Mile, located in Broward County. Blue Paper, Inc. originally developed the community. It is comprised of four separate townhouse units, common areas, and a dock located behind the first unit. The Declaration of Covenants and Restrictions ("Declaration") for 900 Hillsboro Mile established a homeowner's association ("Association"). In their complaint, Unit Owners explained that the Association and Lustig entered into a quitclaim assignment ("Assignment") in which Lustig expressly severed his riparian rights to a portion of the dock.

Lustig answered and filed his counterclaim. He also sought a declaratory judgment that would detail his rights to the dock behind his unit, and requested a permanent injunction to enjoin Unit Owners from using any portion of the dock as well as accessing it from his property.

After years of litigation, the parties attended a bench trial in 2014. Lustig argued that he was entitled to exclusive possession and control of the dock by way of his special warranty deed. He admitted it was true that plans for 900 Hillsboro Mile originally demonstrated that there would be two different access piers connecting to one horizontal strip of the dock, such that both Lustig and Unit Owners would use the dock. However, he explained that those plans since changed. He then addressed the Assignment, and argued it was invalid because the Association did not have the authority under the Declaration to assign any dockage rights.

In rebuttal, Unit Owners pointed to the Assignment, where "Mr. Lustig ... recognized [that] his right to use the dock consisted only [of] 44 feet of dock located in the outside northwest corner of the dock, as described in the attached drawing on the dock." Unit Owners then explained that the original license for the dock, issued by the Broward County Department of Planning and Urban Protection, stated the dock was "for a multi-family unit, or units in question."

Lustig then testified. During direct examination, he added that he should have exclusive possession and control of the dock because, years earlier, the Florida Department of Environmental Protection ("DEP") declined to grant a request for a license that would allow the Association and Unit Owners to construct a marginal dock in addition to the already existing dock. Lustig noted how DEP "specifically said that they [the Association] need my consent to build the dock." However, later during cross-examination, he stated that "I'm contending that I own the vertical piece, and the horizontal piece to a certain point." He further agreed with Unit Owners' counsel that Unit Owners "have the rest of the dock," but that "they just can't get to it." He explained he would have no problem with Unit Owners having a portion of the dock, as long as they built their own pier to access that dock: "They can [use their portion of the dock] if they build a pier, and I have no objection to that....

They can get to what they own on their own manner."

After trial, the trial court entered its written final judgment, dismissing both Unit Owners' complaint and Lustig's counterclaim, and concluding that "no party prevailed." Both parties appeal that final judgment.

Analysis

A. Dockage Rights

We generally review an order dismissing a declaratory action for an abuse of discretion. Acad. Express, LLC v. Broward Cty. , 53 So.3d 1188, 1190 (Fla. 4th DCA 2011). "However, to the extent that the dismissal is based upon a legal determination, our review is de novo." Bloch v. Del Rey , 208 So.3d 189, 192 (Fla. 3d DCA 2016).

The parties agree that the trial court erred by failing to determine the parties' rights to the dock, and that this Court can adjudicate the matter on appeal. The Unit Owners maintain that Lustig clearly and unambiguously severed his riparian rights and agreed not to impede or interfere with the riparian rights of the Unit Owners when he executed the Assignment, as the Assignment contemplated that Lustig could only use a forty-four-foot strip of that dock, and that the Unit Owners had a right to use the remaining portion. Lustig argues that only he has any rights to the dock and the Assignment was invalid as a matter of law because the Association could not assign any rights. Moreover, Lustig contends that the DEP already decided the instant matter on appeal when it denied Blue Paper, Inc.'s original application for a permit to construct a marginal dock due to there being insufficient evidence of upland interest.

We find that Unit Owners are entitled to use a portion of the dock. As an initial matter, and as both parties assert, the trial court's final judgment is inadequate. The trial court, pursuant to Florida's Declaratory Judgment Act, should have provided both parties with a declaration of their rights to the dock as they had requested. See § 86.011, Fla. Stat. (2017) ; see also Sears, Roebuck & Co. v. Forbes/cohen Fla. Props., L.P. , 223 So.3d 292, 298 (Fla. 4th DCA 2017) ("[C]onclusory final judgments on declaratory judgment claims, which are devoid of factual findings or conclusions of law, are inadequate.").

Still, we can adjudicate the instant dispute given that it is entirely legal in nature. See Sears , 223 So.3d at 298. Here, Unit Owners have a right to use a certain portion of the dock given that they and Lustig executed the Assignment. See Haynes v. Carbonell , 532 So.2d 746, 748 (Fla. 3d DCA 1988) ("[R]iparian interests may be severed only by an 'express bilateral agreement to do so.' " (quoting Belvedere Dev. Corp. v. Dep't of Transp. , 476 So.2d 649, 653 (Fla. 1985) )). First, the title of the Assignment is telling: "Nonrecourse Quitclaim Assignment of Dockage Rights. " Next, in the text of the Assignment itself, Lustig agreed to the fact that the dock was "constructed for the benefit of the owners of townhouses at the Association for the dockage of vessels adjacent thereto," and then agreed that he was acquiring "the right to the use of a portion of the Dock described as the Forty Four (44) feet of dock located at the outside northwest corner of the Dock." He also "agree [d] not to impede or interfere with any other party's rights at the dock." Three pages later, he signed the plat map which designated the portion of the dock that he could only use. In light of the title of the Assignment, as well as its specific provisions, Lustig unequivocally severed his riparian rights.

Lustig makes several arguments on appeal for why the Assignment was invalid. Regardless of their merit, we find them all waived since he conceded at trial that Unit Owners had a right to use a portion of the dock. He stated during cross-examination that "I'm contending that I own the vertical piece, and the horizontal piece to a certain point." Then, he agreed that Unit Owners "have the rest of the dock," but that "they just can't get to it." He further explained he would have no problem with Unit Owners using a portion of the dock, as long as they built their own access pier to it. His main concern was evident: he no longer wanted to see his neighbors accessing the dock by encroaching on his land and pier.

B. Easement by Necessity

Lustig's main concern brings us to our next issue on appeal: whether Unit Owners, who have a right to use the dock, have the right to access that dock by way of an easement by necessity. We review this legal question de novo, see St. Vincent's Med. Ctr., Inc. v. Memorial Healthcare Grp., Inc. , 967 So.2d 794, 799 (Fla. 2007), and find that they do not have the right to access Lustig's pier by way of such an easement.

A party who seeks "to establish a way of necessity, whether in regard to an implied grant or statutory way, has the burden of proof to establish that he or she has no practicable route of ingress or egress." Moran v. Brawner , 519 So.2d 1131, 1133 (Fla. 5th DCA 1988). Section 704.01(1), Florida Statutes (2017), codifies the requirements for obtaining an implied easement by necessity:

Such an implied grant exists where a person has heretofore granted or hereafter grants lands to which there is no accessible right-of-way except over her or his land, or has heretofore retained or hereafter retains land which is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of egress, or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved.

§ 704.01(1), Fla. Stat. (2017). In the instant case, there is no dispute that the only way for Unit Owners to currently access the dock by land is by first crossing into Lustig's backyard and then walking on his pier.

However, just because Unit Owners cannot currently access the dock by land does not mean that they have a need for an easement. As stated by the Florida Supreme Court in Tortoise Island Communities, Inc. v. Moorings Association, Inc. , 489 So.2d 22 (Fla. 1986), an easement by necessity requires a showing of an "absolute necessity. " Id. at 22 (emphasis added). Given that Unit Owners live on waterfront property, they can reach the dock by constructing their own access pier, which would be a "reasonable and practicable way of egress, or ingress." § 704.01(1), Fla. Stat. Or, they can find an alternate means of accessing the dock, such as using a canoe or kayak departing from their own property.

Our decision is guided in part by Hunter v. Marquardt, Inc. , 549 So.2d 1095 (Fla. 1st DCA 1989). There, the First District Court of Appeal overturned the granting of an easement by necessity because the appellee could access certain wet storage slips, located beyond appellant's dock, "by water through the navigable Mexico Canal or by an extension of the dock from [the appellee's] original marina." Id. at 1097. The court held that "the navigable waterway provides practicable access to the property for that purpose." Id. Here, the Intracoastal Waterway behind the parties' units also provides practicable access to the dock. Although we are sympathetic of the inconvenience and cost to Unit Owners of now having to build their own access pier, these factors do not outright determine whether an easement is absolutely necessary. See Roy v. Euro-Holland Vastgoed, B.V. , 404 So.2d 410, 413 (Fla. 4th DCA 1981) ("The fact that one means of access may be more convenient than another does not suffice [for purposes of obtaining an easement by necessity].").

Conclusion

We reverse and remand for the trial court to amend its final judgment and find that Unit Owners are entitled to use a portion of the dock, but are not entitled to an easement by necessity in order to access it. Lustig expressly severed some of his riparian rights to the dock in the Assignment, and conceded as much at trial. However, Unit Owners do not merit an easement by necessity because they have failed to demonstrate an absolute need for such an easement.

Reversed and remanded.

Taylor and Klingensmith, JJ., concur.

      Appellants have since sold their units. The new unit owners are pursuing this action on their behalf. See Fla. R. Civ. P. 1.260(c) ; Levine v. Gonzalez , 901 So.2d 969, 972-73 (Fla. 4th DCA 2005) (discussing the Rule which allows for an action to be continued in the name of the original plaintiff after a transfer of interest without requiring substitution).

      Although these two stipulations were included as "whereas clauses," which are usually prefatory and non-binding in nature, see Orlando Lake Forest Joint Venture v. Lake Forest Master Cmty. , 105 So.3d 646, 648 (Fla. 5th DCA 2013), these stipulations expressly became binding through paragraph one of the Assignment, which stated: "The recitals set forth above are true and correct and are incorporated herein by reference."


text:
    Vincent Clarence NEWTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3750
    District Court of Appeal of Florida, Fourth District.
    [January 24, 2018]
    Carey Haughwout, Public Defender, and Jeffrey Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuna, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant, Vincent Clarence Newton, Jr., appeals his conviction for high speed or wanton fleeing from a law enforcement officer with lights and sirens activated. He contends it was error for the trial court to admit his booking photograph as evidence. We disagree, and affirm the conviction.

At trial, a deputy testified that, while on routine patrol, he heard a loud motorcycle nearby. He observed what he described as a dirt bike pass vehicles in a no-passing area. The deputy noted that the rider was also speeding. He began pursuit, but the rider refused to stop, even after the deputy activated his lights and siren. The pursuit was called off, but the deputy continued to observe the dirt bike from a distance when he saw the rider brake and fly over the handle bars into a canal while trying to navigate a sharp turn. The deputy confirmed that the rider and dirt bike he found on the canal bank were the same that had fled from him just moments before because he never lost sight of the rider. The rider was subsequently arrested.

In his testimony, the deputy referenced his arrest report and stated that the dirt bike's rider identified himself as Vincent Newton via his driver's license, and was booked using that name. The State asked the deputy if he could identify the rider of the dirt bike in the courtroom, and he replied, "Uh, I'm going to assume it's the gentleman right there, but it has been since December. I can't be positive it's him, but I'm pretty sure it's him." The deputy believed that the rider's hair was longer, and said, "but other than that, I'd say, yes, it's him." The State then asked, "Okay, uh, and so you're under oath. Can you positively identify him as the rider of that bike?" The deputy responded, "I would say, yes."

When the defense raised the issue of appellant's identification after another witness was unable to positively identify appellant as the rider, the State sought to recall the deputy to introduce appellant's booking information into evidence. The State intended to use the information to show the name appellant was booked under, the date and time he was booked, and to refresh the deputy's recollection.

The deputy was recalled as a witness, and the State presented the booking information to the deputy. The booking information contained appellant's booking photograph. The deputy agreed that the information refreshed his memory as to who was arrested on the day of the alleged crime. He testified that the rider was arrested for fleeing on the dirt bike, which was the same person that the deputy attempted to identify during his earlier testimony. The booking information and photograph were published to the jury.

Ultimately, appellant was found guilty and sentenced to nine months in jail with two years of probation. This appeal followed.

"Generally, a trial court's ruling on the admissibility of evidence will be upheld absent an abuse of discretion." Williams v. State , 967 So.2d 735, 747-48 (Fla. 2007). "The Evidence Code provides that '[a]ll relevant evidence is admissible, except as provided by law.' " Id. at 753 (quoting § 90.402, Fla. Stat. (2006) ). In any criminal prosecution, the State must establish the identity of the accused as perpetrator of the charged offense beyond a reasonable doubt. See Akridge v. State , 970 So.2d 917, 918 (Fla. 2d DCA 2007) ; Ponsell v. State , 393 So.2d 635, 636 (Fla. 4th DCA 1981).

This court has decided an issue similar to the one at hand. See Roberts v. State , 778 So.2d 512 (Fla. 4th DCA 2001). In Roberts , the prosecution attempted "to show a [booking photograph] of defendant to an eyewitness who was unable to identify defendant in court." Id. at 513. The trial court allowed the prosecution to use the photograph to refresh the witness's recollection. Id. "The State wanted to show that [the witness] had identified defendant from the [booking photograph] at the time of the events in the case." Id. However, the use of the photograph to refresh the witness's recollection was deemed "simply too suggestive." Id. ; see also Way v. State , 502 So.2d 1321, 1323 (Fla. 1st DCA 1987) ("Certainly, use of a single photograph is one of the most suggestive methods of identification possible and is impermissibly suggestive under most circumstances."). This court reversed and remanded for a new trial. Roberts , 778 So.2d at 513.

However, there is a fundamental difference between Roberts and this case. In Roberts , a non-law-enforcement witness identified the defendant from a single booking photograph. Id. Here, because the defense raised questions about the deputy's ability to identify appellant as the person he arrested and transported to jail, the State used the booking information, including the booking photograph, to have the deputy confirm that it was appellant that he arrested and transported to the station. Unlike the witness in Roberts , the deputy had first-hand knowledge that the photograph taken during the booking process was of appellant.

Even if the admission of the photograph was error, it was harmless beyond a reasonable doubt. See State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986). During the deputy's testimony, he was able to identify appellant through other means. The deputy referenced his arrest report and testified that he never lost sight of the rider prior to the crash. Additionally, the rider was found with the same dirt bike that fled from the deputy, was taken to jail, presented his license to the deputy, and was booked under the name "Vincent Newton."

Under these circumstances, the trial court's admission of the booking photograph for identification purposes was not error. We also affirm without comment as to the other issues raised by appellant.

Affirmed.

Gross and May, JJ., concur.


text:
    Lawrence A. DALRYMPLE, Sr., Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D17-3161
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2018]
    Lawrence A. Dalrymple, Sr., Coral Springs, pro se.
    No brief filed for appellee.
   Per Curiam.

The Court has reviewed the initial brief and the record filed in this case. Finding there is no preliminary basis for reversal of the order on appeal, namely the order granting a writ of possession, we summarily affirm. See Fla. R. App. P. 9.315(a). The arguments raised by the appellant attack the underlying final judgment which was not appealed after it was rendered in July 2015.

Affirmed .

Warner, Damoorgian and Forst, JJ., concur.


text:
    Keara BERRY, Appellant, v. Joshua BERRY, Appellee.
    No. 4D17-2619
    District Court of Appeal of Florida, Fourth District.
    [January 24, 2018]
    Richard F. Hussey of Richard F. Hussey, P.A., Fort Lauderdale, for appellant.
    No appearance for appellee.
   Per Curiam.

Affirmed. To the extent that appellant petitions for a writ of prohibition, this Court takes judicial notice of Case No. 4D17-2669 and sua sponte dismisses the petition.

May, Conner and Forst, JJ., concur.