text:
    Joshua ZELAYA, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2710
    District Court of Appeal of Florida, Fourth District.
    [October 17, 2018]
    Carey Haughwout, Public Defender, and Claire Victoria Madill, 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.
   Damoorgian, J.

Appellant, Joshua Zelaya, appeals his judgment and sentence for three counts of robbery with a weapon, two counts of attempted robbery with a weapon, one count of aggravated battery with a deadly weapon, and one count of resisting arrest without violence. On appeal, Appellant argues that his trial counsel was ineffective on the face of the record and that the court made several evidentiary mistakes. We affirm on these arguments without further comment. However, because the jury returned an inconsistent verdict on the aggravated battery with a deadly weapon count, we reverse and remand for a reduced charge and resentencing on that count. On remand, Appellant is also entitled to have several errors on his scoresheet corrected.

Background

Appellant and his co-defendant were accused of robbing a group of five young adults on a beach while using shirts to cover their faces and brandishing concealed items they portrayed as guns. While demanding property, Appellant struck, but did not injure, one of the victims with the concealed item he represented was a gun. Despite their attempt at disguise, the victims recognized and were able to describe Appellant and his co-defendant as the robbers based on earlier interactions they had with them. Using the descriptions provided by the victims, the police quickly encountered Appellant and his co-defendant in the parking lot of a nearby motel. Appellant fled, but was apprehended shortly thereafter. When he was arrested, Appellant had one of the victim's debit cards in his pocket. The victims later positively identified Appellant out of photo-lineups.

Based on the foregoing, the State charged Appellant with three counts of robbery with a firearm/deadly weapon, two counts of attempted robbery with a firearm/deadly weapon, one count of aggravated battery with a deadly weapon, and one count of resisting a police officer without violence. The State also filed a pre-trial notice of intent to seek the imposition of a mandatory sentence pursuant to Appellant's status as a Prison Releasee Reoffender ("PRR").

A jury found Appellant guilty of three counts of robbery with a weapon (lesser included offenses of robbery with a firearm/deadly weapon), two counts of attempted robbery with a weapon (lesser included offenses of attempted robbery with a firearm/deadly weapon), one count of aggravated battery with a deadly weapon, and one count of resisting arrest without violence. The court adjudicated Appellant guilty pursuant to the jury's verdict and set the matter for sentencing.

At Appellant's sentencing hearing, the State submitted a scoresheet which scored Appellant for two offenses he was not convicted of: attempted first degree murder (116 points) and robbery with a firearm (46 points). It also assessed 40 additional points against Appellant for a severe victim injury although the evidence did not establish that any of the victims in the case were actually injured. In total, the scoresheet assigned Appellant 417.80 points which equated to a lowest permissible sentence of 292.35 months (24+ years) in prison and a maximum sentence of 135 years plus 364 days. Defense counsel did not object to the scoresheet.

Because Appellant qualified as a PRR, however, he was not sentenced according to his scoresheet and was instead sentenced to the minimum mandatories under the PRR statute: 30 years in prison on each first degree felony count (robbery with a weapon), 15 years on the second degree felony counts (attempted robbery with a weapon and aggravated battery), and 364 days on the resisting without violence count, all to run concurrent. This appeal follows.

Analysis

a) Inconsistent Verdict

Appellant argues that by finding Appellant guilty of the lesser included offenses of robbery and attempted robbery with a weapon in lieu of robbery and attempted robbery with a firearm/deadly weapon, the jury essentially acquitted Appellant of possession of a firearm or deadly weapon. Thus, Appellant maintains that the jury's verdict finding him guilty of aggravated battery with a deadly weapon created a legal inconsistency. We agree.

"An inconsistent verdicts claim presents a pure question of law and is reviewed de novo." Brown v. State , 959 So.2d 218, 220 (Fla. 2007).

In Brown , the Florida Supreme Court described the general principles of inconsistent jury verdicts as follows:

As a general rule, inconsistent jury verdicts are permitted in Florida. Inconsistent verdicts are allowed because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant.
This Court has recognized only one exception to the general rule allowing inconsistent verdicts. This exception, referred to as the "true" inconsistent verdict exception, comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent.... [T]rue inconsistent verdicts are those in which an acquittal on one count negates a necessary element for conviction on another count.

Id. (internal citations and quotation marks omitted).

Based on these principles, a jury's finding that a defendant did not possess a firearm but at the same time used a firearm or deadly weapon is legally inconsistent when the possession or use is a necessary element of the crime. See Gerald v. State , 132 So.3d 891, 895 (Fla. 1st DCA 2014) (holding that jury's verdict finding a defendant guilty of aggravated assault while at the same time finding the defendant did not possess a firearm or deadly weapon was legally inconsistent since a necessary element of aggravated assault is use of a deadly weapon).

Here, the jury acquitted Appellant of the offenses of robbery with a firearm or a deadly weapon and attempted robbery with a firearm or a deadly weapon and, instead, found him guilty of the lesser included offenses of robbery and attempted robbery with a weapon. In other words, through its verdict, the jury found as a matter of law that Appellant did not possess a firearm or deadly weapon when he committed the robbery and attempted robbery offenses. Despite this finding, the jury nonetheless found that Appellant was guilty of the offense of aggravated battery, which can be committed in any of three ways: (1) intentionally or knowingly causing great bodily harm, permanent disability, or permanent disfigurement; or (2) using a deadly weapon; or (3) committing a battery on a victim who is known to be pregnant. § 784.045(1), Fla. Stat. (2014). The jury specifically found that Appellant committed aggravated battery by "using a deadly weapon." Indeed, this was the only manner in which Appellant could have been convicted as there was no evidence that the victim was injured or was pregnant. Accordingly, in light of the fact that the jury acquitted Appellant of possessing a firearm or deadly weapon when he committed the robbery offenses, it was legally inconsistent for the jury to find that Appellant was guilty of simultaneously committing an aggravated battery with a deadly weapon. Cf. State v. Carswell, 914 So.2d 9, 12 (Fla. 4th DCA 2005).

Although Appellant did not raise the issue of the inconsistent verdict below, the error is fundamental as it pertains to Appellant's aggravated battery with a deadly weapon conviction. Proctor v. State , 205 So.3d 784, 789 (Fla. 2d DCA 2016) (jury's legally inconsistent verdict finding defendant guilty of aggravated assault with a deadly weapon created fundamental error as to that count). Based on the presence of fundamental error in the aggravated battery with a deadly weapon count, the remedy is reversal of Appellant's conviction for aggravated battery with a deadly weapon and remand for the trial court to enter a judgment on the lesser included offense of battery. Id. As Appellant was sentenced to a 15 year PRR minimum mandatory on the aggravated battery conviction (a second degree felony) which would not apply to a battery conviction (a first degree misdemeanor), Appellant is also entitled to resentencing on this count. Id.

b) Scoresheet Errors

Appellant argues that he is also entitled to resentencing based on the scoresheet errors discussed above. We disagree.

A defendant who illustrates an erroneous imposition of points on his scoresheet is entitled to have the errors corrected. Ledesma v. State , 958 So.2d 477, 479 (Fla. 4th DCA 2007). However, that defendant is not entitled to resentencing if the errors were harmless. Id. A scoresheet error "is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet." Brooks v. State , 969 So.2d 238, 241 (Fla. 2007).

In this case, Appellant was sentenced to the lowest sentence possible under the PRR statute. Thus, regardless of the minimum score reflected on Appellant's scoresheet, Appellant could not have received a lower sentence unless the State did not seek to sentence him as a PRR. Although Appellant argues that the State's decision to seek a PRR sentence may have been influenced by his scoresheet, the record reflects that the State filed its notice of intent to seek a PRR sentence prior to trial-well before Appellant's scoresheet was prepared. Accordingly, there is no possibility that the scoresheet errors affected either the State's PRR decision or Appellant's ensuing sentence. Thus, the scoresheet errors complained of by Appellant are harmless.

Conclusion

Based on the foregoing, we reverse Appellant's conviction and sentence for aggravated battery and direct the court to adjudicate Appellant guilty of the lesser included offense of battery and resentence him on that offense accordingly. In doing so, the court should also enter a corrected scoresheet.

Reversed and remanded.

Ciklin, J., concurs.

Conner, J., concurs in part and dissents in part with opinion.

I concur with the majority opinion except for the holding that the trial court erred by determining that the jury's verdict on the aggravated battery charge was not legally inconsistent with the robbery and attempted robbery charges. I respectfully dissent because the allegations in the information, the evidence presented, and the jury instructions established that the aggravated battery charge was not legally interlocking with the robbery and attempted robbery charges.

Appellant was charged by information with three counts of robbery and two counts of attempted robbery, all of which alleged that Appellant "carried a firearm or other deadly weapon." Additionally, Appellant was charged with one count of aggravated battery which alleged that he touched or struck the victim "with a deadly weapon, to wit: a firearm used as a bludgeon." As to the robbery and attempted robbery counts, the State specifically alleged that Appellant was "in actual possession" of a firearm. L.S. was the victim of one of the counts of robbery, as well as the aggravated battery count.

Four of the five robbery victims testified at trial, and all four testified that both Appellant and his codefendant carried guns. All four testified that the guns were covered by some kind of cloth and admitted that they did not actually see a gun. All four testified that Appellant carried a "big gun" or long gun. L.S. and another victim described the gun Appellant carried to be an "AK 47." L.S. and a different victim testified that Appellant hit L.S. on the head with the gun he was carrying. More specifically, L.S. testified:

[Appellant] said: Hey bitch, I want all your sh**. I saw, I know you have something. And then he kind of-he like hit me on the face [with the gun]. It wasn't hard, he tried to scare me.

One of the four witnesses also testified that Appellant said, with reference to the long gun he carried, that he "was not afraid to use it."

After instructing the jury on the basic elements of robbery and attempted robbery, the trial court instructed the jury that:

If you find the defendant guilty of the crime of [robbery] [attempted robbery] then you must further determine beyond a reasonable doubt if in the course of committing the [robbery] [attempted robbery] the defendant carried some kind of a weapon.... A weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm .
If you find the defendant carried a weapon that was not a firearm or a deadly weapon in the course of committing the robbery, you should find him guilty of robbery with a weapon . A weapon is defined to mean any object that could be used to cause death or inflict serious bodily injury .

(emphases and bold emphases added).

As to the aggravated battery count, the trial court instructed the jury that the crime had two elements. The first element was that Appellant "intentionally touched or struck" L.S. The second element was that in committing the battery Appellant "used a deadly weapon, to wit a firearm," followed by the same definition of a deadly weapon used for the robbery and attempted robbery counts.

As to the robbery and attempted robbery counts, the verdict form gave five options:

A. Guilty of [Robbery] [Attempted Robbery] (Firearm/Deadly Weapon ), as charged in the Information;
B. Guilty of [Robbery] [Attempted Robbery] (Weapon ), a lesser-included offence;
C. Guilty of [Robbery] [Attempted Robbery], a lesser included offense;
D. Guilty of Petit Theft; a lesser-included offense; and
E. Not Guilty.

(bold emphasis added). Below option A, the jury was asked to answer "yes" or "no" to the interrogatory: "During the course of the crime committed, did the Defendant, JOSHUA ZELAYA, actually possess a firearm ?" (bold emphasis added). For each of those counts, the jury checked option B, "Guilty of [Robbery] [Attempted Robbery] (Weapon )." (bold emphasis added). The firearm interrogatory was not answered, as it applied to only option A.

As to the aggravated battery count, the verdict form gave three options:

A. Guilty of Aggravated Battery (Deadly Weapon), as charged in the Information;
B. Guilty of Battery, a lesser-included offense; and
C. Not Guilty.

As to that count, the jury checked option A, "Guilty of Aggravated Battery (Deadly Weapon)."

The majority correctly points out that our supreme court has determined that "[a]s a general rule, inconsistent jury verdicts are permitted in Florida." Brown v. State , 959 So.2d 218, 220 (Fla. 2007) (quoting State v. Powell , 674 So.2d 731, 732 (Fla. 1996) ). The only recognized exception to the general rule is the "true" inconsistent verdict, which "comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent." Id. (quoting Powell , 674 So.2d at 733 ). In other words, "true inconsistent verdicts are those in which an acquittal on one count negates a necessary element for conviction on another count ." Id. (emphasis added) (quoting Powell , 674 So.2d at 733 ).

Relying on Gerald v. State , 132 So.3d 891 (Fla. 1st DCA 2014), the majority contends that because the jury in the instant case determined that Appellant did not actually possess a firearm or deadly weapon for the robbery charges, it was legally inconsistent for the jury to find Appellant guilty of aggravated battery with a deadly weapon . However, the majority's reliance on Gerald is problematic, because there, the First District addressed an inconsistency between the jury's verdict on the underlying offense, aggravated assault, and the interrogatory propounded for that offense regarding whether the defendant actually possessed a firearm during the aggravated assault. Id. at 892. In the instant case, the majority is using a verdict on a lesser-included offense to robbery and attempted robbery counts to negate an element relating to the aggravated battery count. I have found no other case in Florida to make such an application.

While it is true that in the information all of the robbery and attempted robbery counts, as well as the aggravated battery count, contained an allegation regarding a firearm, I contend the firearm allegation in the aggravated battery count is significantly different from the firearm allegation in the robbery and attempted robbery counts. More specifically, the aggravated battery count alleged Appellant touched or struck the victim "with a deadly weapon, to wit: a firearm used as a bludgeon ." In addition, as to all of the robbery and attempted robbery counts, as well as the aggravated battery count, the jury was instructed that "[a] weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm." Moreover, as to the robbery and attempted robbery counts, but not the aggravated battery count, the jury was instructed that "[a] weapon is defined to mean any object that could be used to cause death or inflict serious bodily injury ."

The structure of the verdict form also indicated to the jury a difference as to the deadly weapon allegation between the aggravated battery count and the robbery and attempted robbery counts. As to the robbery and attempted robbery counts, the verdict form makes two specific references to a firearm: "Guilty of [Robbery] [Attempted Robbery] (Firearm /Deadly Weapon)," followed by an interrogatory asking whether Appellant "actually possess[ed] a firearm ." Significantly, however, the verdict form as to the aggravated battery count, is completely devoid of the word "firearm." As discussed above, the jury was instructed that a deadly weapon is "used in a way likely to produce death or great bodily harm ," and a weapon is an "object that could be used to cause death or inflict serious bodily injury ."

As L.S. and another witness testified, and the State clearly argued to the jury, L.S. was hit in the head with what was perceived to be a long gun under a cloth. Like the majority, it appears to me that the jury was satisfied that whatever Appellant was holding under the cloth was in fact not a long gun. However, it appears to me that the jury could logically have concluded, based on the allegations, the evidence, and the jury instructions, that whatever Appellant was holding under the cloth, which he used to hit L.S. in the head, was a weapon "threatened to be used in a way likely to produce death or great bodily harm," particularly in light of the testimony that he "was not afraid to use it." Thus, I conclude that the jury's verdicts were not legally inconsistent when the jury found Appellant guilty of robbery and attempted robbery using a weapon, and aggravated battery involving a deadly weapon, particularly where the State alleged the weapon was used as a bludgeon.

Additionally, I think our opinion in Debiasi v. State , 681 So.2d 890 (Fla. 4th DCA 1996) is instructive for the resolution of this case. There, the defendant was charged with battery on a law enforcement officer and resisting arrest with violence. Id. at 890. The same officer was alleged to be the victim for both counts. Id. As to both counts, the evidence was that the defendant resisted the officer by striking him during an arrest. Id. The jury found the defendant not guilty of battery on a law enforcement officer, but guilty of resisting arrest with violence. Id. On appeal, the defendant argued the jury verdict finding him guilty of resisting arrest with violence was inconsistent with the verdict finding him not guilty of battery on a law enforcement officer, where the conduct was the same for both offenses. Id. We held that "even if the charges are essentially mirror images of each other, battery on a law enforcement officer is not an element of resisting arrest with violence." Id. at 891. If battery on a law enforcement officer and resisting arrest with violence are "mirror image charges" because the conduct of the defendant in striking the officer was the same for both offenses, then it seems to me that Appellant carrying an object under a cloth which appeared to be a long gun to the witnesses, makes the aggravated battery charge a "mirror image charge" to the robbery and attempted robbery charges in this case. However, similar to Debiasi , aggravated battery is not an element of the robbery or attempted robbery charges. In other words, similar to Debiasi , the charges in this case are not legally interlocking.

I concede that all of the robbery, attempted robbery, and aggravated battery charges in this case were factually interlocking (Appellant was carrying an object covered by a cloth that the witnesses believed was a long gun while committing all of the offenses). However, I do not agree the aggravated battery charge was legally interlocking with the robbery and attempted robbery charges. I also do not agree that a verdict on a lesser-included offense for one charge can be used to negate an element of a completely different and legally distinct charge.

As our supreme court has said, "Inconsistent verdicts are allowed because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant." Brown , 959 So.2d at 220 (quoting Powell , 674 So.2d at 733 ). Our supreme court has defined "true inconsistent verdicts" as "those in which an acquittal on one count negates a necessary element for conviction on another count." Id. (emphasis added) (quoting Powell , 674 So.2d at 733 ). I understand "an acquittal on one count" to refer to an entire charge. The First District has extended the definition of "true inconsistent verdicts" to include an inconsistency between a determination of guilt as to one count and an interrogatory response as to the same count . Gerald , 132 So.3d at 892. The majority in this case is now expanding the definition of a "true inconsistent verdict" to include an inconsistency between a verdict on a lesser-included offense on one count and a determination of guilt as to a separate count charging a distinctly different crime . Where an entire count serves as a predicate element for another count, logically the two counts are legally interlocking. Where an interrogatory response is a predicate for a determination of guilt as to the same count, logically the interrogatory response and the determination of guilt are legally interlocking as to the same count . However, where both the charging document and the jury instructions describe a particular element differently, I do not agree that a lesser-included offense to one charge is legally interlocking with a determination of guilt as to a distinctly different crime. Thus, I respectfully dissent.


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    Symone Justine BENT, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3885
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

May an officer, based on information provided by store employees, handcuff an appellant on suspicion of shoplifting although the shoplifting did not occur in the officer's presence? Because the legislature enacted section 812.015(3)(a), Florida Statutes, which provides that law enforcement may detain based on probable cause developed from a store employee's report of suspected shoplifting, we answer in the affirmative. Accordingly, we affirm.

A Wal-Mart loss prevention employee observed appellant taking merchandise from the shelves and placing it into her cart without looking at the prices. Appellant paid for only some of the merchandise and then attempted to leave the store. Based on this behavior, the loss prevention associate stopped appellant on suspicion of shoplifting and detained her in a back office before calling police. Police subsequently arrived and, based on the information relayed to them by store employees, handcuffed appellant while the loss prevention associate searched her purse and cart for stolen merchandise. At trial, appellant sought to suppress the merchandise found, alleging that her detention by police violated the Fourth Amendment. The trial court denied the motion.

In reviewing a ruling on a motion to suppress, we apply a mixed standard of review. While we defer to the trial court's factual determinations, we review de novo whether the application of the law to the facts establishes a basis for the trial court's findings regarding reasonable suspicion or probable cause. Lee v. State , 868 So.2d 577, 579 (Fla. 4th DCA 2004).

The issue on appeal is governed by section 812.015, Florida Statutes (2016). That statute provides, in relevant part:

A law enforcement officer ... who has probable cause to believe that a retail theft ... has been committed by a person and, in the case of retail or farm theft, that the property can be recovered by taking the offender into custody may, for the purpose of attempting to effect such recovery or for prosecution, take the offender into custody and detain the offender in a reasonable manner for a reasonable length of time.

§ 812.015(3)(a), Fla. Stat. (2016). This, of course, is an exception to the general rule that an officer normally may effect a warrantless arrest only for a misdemeanor that occurs in his or her presence. See § 901.15(1), Fla. Stat.

In State v. Lord , 150 So.3d 260 (Fla. 1st DCA 2014), the First District addressed similar facts under the same statute. There, a Wal-Mart asset-protection employee called police to report "a shoplifting incident in which a person had stolen spark plugs and had left the store." Id. at 261. Upon arriving at the store, police officers located the customer's vehicle based on a description by the employee. Id. The officers followed the vehicle, eventually stopping it, handcuffing the occupants, and searching for the allegedly stolen spark plugs. Id. The First District held that the officers' stop of the vehicle was authorized by section 812.015, Florida Statutes, because the officers had received information on the suspected shoplifting from the Wal-Mart employee. Id. at 262.

The Third District has similarly held that information furnished to an officer by a store employee who has witnessed shoplifting may give rise to probable cause. Weissman v. K-Mart Corp. , 396 So.2d 1164, 1167 (Fla. 3d DCA 1981). There, as in this case, a store employee observed suspicious behavior by the appellant that the employee concluded was indicative of shoplifting. Id. at 1166. After detaining the appellant in the store's security office, the store employee called police to report the suspected shoplifting. Id. An officer arrived, questioned the appellant and charged him with shoplifting. Id. The Third District concluded that the officer had acted appropriately, noting that for the purposes of a section 812.015 detention or arrest, "[f]irst hand knowledge by an officer is not required; the receipt of information from someone who it seems reasonable to believe is telling the truth is adequate." Id. at 1167.

The instant case is comparable to Lord and Weissman . Appellant was observed and detained by a store employee who, based on his training in loss prevention, believed she might be shoplifting. Based on the dispatch call and information provided to the officer by the store employees when he arrived on the scene, the officer developed probable cause. See id. (observing that "first hand knowledge" is not necessary to meet section 812.015's probable cause requirement). The officer could have reasonably concluded that the loss prevention employee was reliable in his conclusion that appellant had attempted to steal merchandise from the store. Therefore, the officer could handcuff appellant for the purpose of attempting to effect a recovery of the merchandise. See § 812.015(3)(a), Fla. Stat. We affirm.

Affirmed.

Gerber, C.J., and Klingensmith, J., concur.

      We find the other issues raised by appellant to be without merit.


author: Gross, J.

text:
    Marcia SUPRIA, Appellant, v. GOSHEN MORTGAGE, LLC, in Substitution for the Original Plaintiff Christiana Trust, A Division of Wilmington Savings Fund Society FSB, as Trustee for Stanwich Mortgage Loan Trust, Series 2012-13, Appellee.
    No. 4D16-4356
    District Court of Appeal of Florida, Fourth District.
    [October 31, 2018]
    Catherine A. Riggins, Miami, for appellant.
    Thomas Wade Young and Joseph B. Towne of Lender Legal Services, LLC, Orlando, for appellee.
    ON MOTION FOR REVIEW
   Gross, J.

We review an order taxing costs in favor of a prevailing appellant. We reverse the order because the motion to tax costs was untimely; in the absence of a motion for rehearing directed at this court's opinion, the time to file the motion was not extended by a motion for rehearing directed at a separate order denying attorney's fees.

On December 6, 2017, we issued Supria v. Goshen Mortgage, LLC , 232 So.3d 422 (Fla. 4th DCA 2017), which reversed a final judgment of foreclosure because the lender failed to prove standing. On the same day, we entered three separate orders denying (1) the lender's motion for attorney's fees; (2) Supria's motion for appellate attorney's fees as a sanction; and (3) Supria's motion for appellate attorney's fees based on a provision in the mortgage.

On December 21, 2017, Supria moved for rehearing of our order denying her motion for appellate attorney's fees as a sanction. She did not seek rehearing of the other two orders denying fees, nor of the opinion itself, in which she prevailed. We denied her motion for rehearing on January 10, 2018. The mandate issued on January 26, 2018.

On February 21, 2018-77 days after the opinion issued and 42 days after the motion for rehearing was denied-Supria moved to tax appellate costs in the circuit court as the prevailing party. At a hearing, the lender argued that the motion was untimely because Supria failed to serve the motion within 45 days after rendition of the December 6, 2017 opinion. Supria maintained that the motion was timely because it was filed within 45 days after this court denied rehearing of her motion for attorney's fees as a sanction. The trial court granted the motion and entered judgment awarding Supria $2,304.07 in costs.

Supria's motion for costs was untimely because her motion for rehearing directed at an order on attorney's fees did not have the effect of stopping the clock on matters pertaining to the substantive case. Florida Rule of Appellate Procedure 9.400(a) provides, in part:

Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court's order . If an order is entered either staying the issuance of or recalling a mandate, the lower tribunal is prohibited from taking any further action on costs pending the issuance of a mandate or further order of the court.

(Emphasis added). Rule 9.020(f) defines "order" as "[a] decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries." Further, Florida Rule of Appellate Procedure 9.020(j) describes "rendition of an appellate order": "If any timely and authorized motion under rule 9.330 or 9.331 is filed, the order shall not be deemed rendered as to any party until all of the motions are either withdrawn or resolved by the filing of a written order."

Under the framework set by the appellate rules, (1) a motion to tax costs must be filed "no later than 45 days" after rendition of an opinion and (2) a motion for rehearing authorized under Rule 9.330 stays rendition only of "the order" at which the motion was directed, not all orders in the case.

Here, Supria did not seek rehearing of the opinion in which she prevailed. She sought rehearing only of a separate order denying her motion for attorney's fees as a sanction. Under rule 9.020(j), the motion for rehearing stayed rendition only of the order to which it was directed and not the opinion in the case. Because the opinion determined the prevailing party, the timing for filing a motion for costs is measured from the rendition of the opinion. Neither party moved for rehearing of this court's decision on the merits, so the case was not tolled for purposes of filing a motion to tax appellate costs in the trial court. Supria's motion was therefore untimely.

We reverse the award of appellate costs and remand to the circuit court for the entry of judgment for the lender on the issue of appellate costs.

May and Klingensmith, JJ., concur.

      We have jurisdiction to review the circuit court's order taxing costs pursuant to Florida Rule of Appellate Procedure 9.400(c).


author: Per Curiam.

text:
    Russell G. DEPASQUALE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1487
    District Court of Appeal of Florida, Fourth District.
    [November 7, 2018]
    Russell DePasquale, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell Egber, Assistant Attorney General, West Palm Beach, for appellee.
    CONCESSION OF ERROR
   Per Curiam.

Russell DePasquale appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We conclude that the trial court erred in denying the motion as successive and untimely. We therefore reverse and remand for the court to consider the motion on its merits.

DePasquale was charged in this case with trafficking in oxycodone while he was on probation in three other cases for possession of cocaine. The court found that he violated probation by committing the new offense and sentenced him to three consecutive terms of five years in prison. DePasquale filed a rule 3.850 motion in August 2012 that was denied following an evidentiary hearing.

In November 2014, DePasquale entered a negotiated plea to the trafficking charge and was sentenced to eight years in prison. He did not appeal. On November 1, 2016, he filed a rule 3.850 motion arguing that counsel misadvised him to enter the plea. He amended the motion in January 2018. The trial court denied the motion as untimely and successive to the August 2012 motion. This appeal followed.

The trial court erred in denying the motion as successive. The motion filed in this case cannot be deemed successive to the motion filed in the VOP cases because DePasquale is challenging a different conviction and sentence. See Rogers v. State , 970 So.2d 884, 885 (Fla. 2d DCA 2007). Also, DePasquale could not have raised his challenge to the November 2014 plea in his first motion because that motion was filed more than two years before the plea was entered.

The trial court also erred in denying the motion as untimely. Because DePasquale did not file a direct appeal, the judgment and sentence became final in December 2014, after the time for filing a notice of appeal expired. See Rincon v. State , 996 So.2d 922, 923 (Fla. 4th DCA 2008). DePasquale timely filed his rule 3.850 motion less than two years later, on November 1, 2016. See Fla. R. Crim. P. 3.850(b). He was free to amend the motion in January 2018 because he did not allege any new claims and the court had not taken any action on the motion. See Fla. R. Crim. P. 3.850(e).

Accordingly, we reverse the denial of DePasquale's rule 3.850 motion as successive and untimely and remand for the trial court to consider the January 2018 amended motion on its merits.

Reversed and remanded.

Damoorgian, Klingensmith and Kuntz, JJ., concur.


author: Damoorgian, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Gwendolyn E. ODOM, Personal Representative of the Estate of Juanita Thurston, Appellee.
    No. 4D14-3867
    District Court of Appeal of Florida, Fourth District.
    [November 7, 2018]
    Jeffrey S. Bucholtz, Val Leppert, William L. Durham II, Philip R. Green and Jeffrey L. Furr of King & Spalding LLP, Washington, DC, Atlanta, GA, and Charlotte, NC, for appellant.
    David J. Sales of David J. Sales, P.A., Jupiter, and Rosalyn Sia Baker-Barnes, Mariano Garcia and T. Hardee Bass of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for appellee.
    ON REMAND FROM THE SUPREME COURT OF FLORIDA
   Damoorgian, J.

This matter is before us on remand from the Supreme Court of Florida following its decision in Odom v. R.J. Reynolds Tobacco Co. , No. SC17-563, 2018 WL 4496563 (Fla. Sept. 20, 2018), quashing our decision in R.J. Reynolds Tobacco Co. v. Odom , 210 So.3d 696 (Fla. 4th DCA 2016). In accordance with the supreme court's mandate, we affirm and remand for reinstatement of the final judgment.

Affirmed and remanded with instructions.

May and Ciklin, JJ., concur.


author: Kuntz, J.

text:
    R.N., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3554
    District Court of Appeal of Florida, Fourth District.
    [November 7, 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 Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

A juvenile appeals the circuit court's order adjudicating him delinquent for intentional or knowing malicious harassment or interference with a police dog. The State charged the juvenile with violating section 843.19(4), Florida Statutes (2017), which provides that "[a]ny person who intentionally or knowingly maliciously harasses, teases, interferes with, or attempts to interfere with a police dog ... while the animal is in the performance of its duties commits" a second-degree misdemeanor. The issue presented is one of statutory interpretation. Is the statute directed to a person who maliciously harasses or teases a police dog? Or is it directed to a person who maliciously harasses or maliciously teases a police dog? Because we conclude the latter construction is the correct one, we vacate the adjudication of delinquency and remand for dismissal of the charge.

Background

Two officers and a K-9, Kona, responded to a vehicle accident involving the juvenile. Kona's handler instructed Kona to conduct an exterior narcotics search of the vehicle. Kona conducted the exterior search and alerted the handler to narcotic odor. Based on Kona's alert, the two officers conducted an interior search of the vehicle.

When the officers began the interior search of the vehicle, the juvenile "interrupted" them, "became loud and belligerent," and told them they "couldn't do that." One officer testified that the juvenile was "talking loud" and that he projected his voice in the direction of the dog. The other officer testified that the juvenile was "loud," "belligerent," and "disruptive." Neither officer could identify the exact words the juvenile used to distract Kona. And at no point was the juvenile closer than five to ten feet from Kona.

The officers warned the juvenile two times to stop distracting Kona, and they ultimately arrested the juvenile. Both officers testified they conducted the search with no further interruptions or distractions after they arrested the juvenile. The entire search lasted around five minutes.

The State charged the juvenile with violating section 843.19(4), Florida Statutes (2017). After the State rested, the juvenile moved for a judgment of dismissal:

Weighing the evidence most favorable to the State, the prosecutor failed to show that [Appellant] either maliciously - - maliciously harassed, teased, interfered or attempted to interfere with K-9 Kona, so we're asking the Court to enter an Order dismissing the petition for insufficiency of evidence.

The court denied the motion and later adjudicated the juvenile delinquent for violating section 843.19(4), Florida Statutes. The juvenile appeals.

Analysis

The juvenile argues the court erred in denying his motion for judgment of dismissal. We review the court's denial of a motion for judgment of dismissal in a juvenile case de novo. D.J.D. v. State , 143 So.3d 1115, 1118 (Fla. 4th DCA 2014) (citing A.R. v. State , 127 So.3d 650, 653 (Fla. 4th DCA 2013) ). And "[t]he construction and application of a statute is an issue of law subject to de novo review." Wiley v. State , 125 So.3d 235, 237 (Fla. 4th DCA 2013) (citing Boca Airport, Inc. v. Fla. Dep't of Revenue, 56 So.3d 140, 142 (Fla. 4th DCA 2011) ).

The juvenile asserts the State failed to establish that he acted "in a knowingly malicious manner towards the police dog." Section 843.19(4), Florida Statutes (2017), states:

Any person who intentionally or knowingly maliciously harasses, teases, interferes with, or attempts to interfere with a police dog, fire dog, SAR dog, or police horse while the animal is in the performance of its duties commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

§ 843.19(4), Fla. Stat. (emphasis added).

The police dog, Kona, was undeniably in the performance of its duties at the times in question. So the issue is limited to whether the juvenile had the requisite intent under the statute. That analysis revolves around the word "maliciously." First, what does it mean? Second, where does it apply? Finally, we apply these answers to the case before us.

i. The Definition of Malice in Section 843.19(4), Florida Statutes

"Maliciously" is not defined in the statute, so it "must be understood as a word of common usage having its plain and ordinary sense." See Seese v. State , 955 So.2d 1145, 1149 (Fla. 4th DCA 2007) (citing State v. Hagan , 387 So.2d 943, 945 (Fla. 1980) ; State v. Mitro , 700 So.2d 643, 645 (Fla. 1997) ).

In law, malice can be defined in two ways. Id. (citing Reed v. State , 837 So.2d 366, 368 (Fla. 2002) ). The first is legal malice, which "means 'wrongfully, intentionally, without legal justification or excuse[.]' " Id. (footnote omitted) (quoting Reed , 837 So.2d at 368 ). The second is actual malice, which "means 'ill will, hatred, spite, an evil intent.' " Id. (footnote omitted) (quoting Reed , 837 So.2d at 368 ).

We analyzed the proper application of malice in Seese . 955 So.2d at 1149-50. Seese involved the use of "maliciously" in section 784.048(4), Florida Statutes (2004). That statute provides: "Any person who, ... after any ... court-imposed prohibition of conduct toward the subject person ..., knowingly, willfully, maliciously, and repeatedly ... harasses ... another person commits the offense of aggravated stalking ...." § 784.048(4), Fla. Stat.

We explained that we take the text of the statute "as a whole." Seese , 955 So.2d at 1149. And "considering its context and the discernible purposes of the legislature, we conclude[d] that the plain meaning of the statutory term maliciously is legal malice." We concluded that the statute used legal malice "because the essence of this entire subsection is to criminalize the stalker who violates a court order prohibiting the contact with the subject." Id.

The State argues the terms "knowingly" and "maliciously" in the stalking statute analyzed in Seese are like the terms here, and should be construed similarly. It is true that the words knowingly and maliciously appear in the statute at issue in Seese and the statute here. But we do not determine the definition of the word malice by looking at individual words in isolation. We must consider the words in the statute in context and after considering the entire statute.

A review of section 843.19, Florida Statutes, shows that different subsections within the section employ different terms. For example, section 843.19(2) provides: "Any person who intentionally and knowingly, without lawful cause or justification , causes great bodily harm ... upon[ ] a police dog ... commits" a third-degree felony. (Emphasis added). Thus, section 843.19(2) specifically applies the legal definition of malice. In contrast, subsection 843.19(4), uses the terms "intentionally or knowingly maliciously harasses[.]" (Emphasis added).

Using different terms in different portions of the same statute can convey different meanings. In re Failla , 838 F.3d 1170, 1176-77 (11th Cir. 2016) ("The presumption of consistent usage instructs that '[a] word or phrase is presumed to bear the same meaning throughout a text' and that 'a material variation in terms suggests a variation in meaning.' " (quoting Antonin Scalia & Bryan A. Garner, Reading Law 170 (2012) ) (citing Russello v. United States , 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ) ). We have explained that using different terms in the same statute is "strong evidence" that the terms have different meanings. Bortell v. White Mountain Ins. Group, Ltd. , 2 So.3d 1041, 1045 (Fla. 4th DCA 2009) (quoting Maddox v. State , 923 So.2d 442, 446 (Fla. 2006) ); see also Barber v. State , 988 So.2d 1170, 1172-73 (Fla. 4th DCA 2008).

Thus, the use of the legal definition of malice in section 843.19(2), and the different use in section 843.19(4), is "strong evidence" that the definition of malice in section 843.19(4) means actual malice. In other words, section 843.19(4) requires the State to prove beyond a reasonable doubt that the juvenile intentionally or knowingly maliciously harassed Kona, meaning with "ill will, hatred, spite, [or] an evil intent." See Seese , 955 So.2d at 1149 (quoting Reed , 837 So.2d at 368 ).

ii. Maliciously Modifies Each Subsequent Word

The State also argues that the juvenile's actions need not be malicious. The statute provides: "... intentionally or knowingly maliciously harasses, teases, interferes with, or attempts to interfere with a police dog ...." § 843.19(4), Fla. Stat. (emphasis added). The State argues the word "maliciously" modifies only the act of harassing and not the acts of teasing or interfering with a police dog. In other words, it did not have to prove malice at all, only interference.

The State relies on Yarn v. State , 106 So.3d 39 (Fla. 2d DCA 2013). In Yarn , the relevant statute provided: "Any person who actually and intentionally maliciously touches, strikes, or causes bodily harm to a police dog" commits a first-degree misdemeanor. 106 So.3d at 41 (quoting § 843.19(3), Fla. Stat. (2009) ). Because it was undisputed that Yarn did not touch the police dog, the Second District concluded that the State "had to prove that Yarn intentionally struck or caused harm to the police dog." Id. at 40-41. The Second District did not discuss a requirement of malice. Instead, it held that the trial court erred in denying Yarn's motion for judgment of acquittal because "the State failed to prove that Yarn knew that there was a police dog in the vehicle he struck and that he intended to strike or cause harm to the police dog." Id. at 42. So, in our case, the State argues the Second District must have construed "maliciously" to modify only "touches," rather than also each other verb.

But the Second District did not discuss the applicability of the word maliciously in Yarn . It had no need to do so based on its holding that there was no intentional act.

Unlike Yarn , here, we must apply the word maliciously in the statute, and we conclude it modifies each of the words in the series that follows it. In Porto Rico Ry., Light & Power Co. v. Mor , 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944 (1920) (citations omitted), the Supreme Court explained that "[w]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all."

The Fourth Circuit applied this canon of statutory construction in Long v. United States , 199 F.2d 717 (4th Cir. 1952). In Long , the defendant was convicted of violating a statute that provided: "Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designed in section 1114 of this title ...." Id. at 718 (quoting 18 U.S.C. § 111 ). The Fourth Circuit explained that "[t]he use of the adverb 'forcibly' before the first of the string of verbs, with the disjunctive conjunction used only between the last two of them, shows quite plainly that the adverb is to be interpreted as modifying them all." Id. at 719.

In another case, the Maryland Court of Special Appeals noted that in the statutory phrase "[w]illfully damage or tamper with any vehicle without the consent of its owner," the word willfully applied to both damage and tamper. In re John R. , 41 Md.App. 22, 394 A.2d 818, 819 n.1 (Md. Ct. Spec. App. 1978).

Section 843.19(4), Florida Statutes, therefore, requires the State to establish that a defendant "intentionally or knowingly maliciously harasses, [maliciously ] teases, [maliciously ] interferes with, or [maliciously ] attempts to interfere with a police dog, fire dog, SAR dog, or police horse while the animal is in the performance of its duties."

iii. The State Failed to Establish the Juvenile Maliciously Interfered with Kona, the Police Dog

The officers testified that the juvenile was "getting loud and belligerent" and "projecting his voice in the direction of the dog." But neither officer could recall the words used by the juvenile. One officer testified the juvenile was six to eight feet from Kona, and the other officer testified the juvenile was five to ten feet from Kona. A witness testified the juvenile was about ten steps behind Kona during the incident.

In response to the motion in the circuit court, the State argued that it took "no position on [ ] whether it's malicious harassment, teases ...." Although the State established that the juvenile "interfered" with the police dog, more was required-evil intent or ill will. And, the State took "no position" on whether it actually proved malice. Thus, the motion for judgment of dismissal must be granted.

Conclusion

We reverse the circuit court's denial of the juvenile's motion for judgment of dismissal and direct the court to vacate the adjudication of delinquency and dismiss the charge.

Reversed and remanded.

Taylor and Klingensmith, JJ., concur.

      We note that our proper inquiry is not into the "discernible purposes of the legislature," but into all the words used in the statute in their context. See, e.g. , Pictet Overseas Inc. v. Helvetia Tr. , 905 F.3d 1183, 1190 (11th Cir. 2018) (William Pryor, J., concurring) ("[W]e must look at all of the words in their context ." (emphasis in original) ). If the law was defined by the intent of the legislature, the law may be known only in the mind of the legislators. Which, of course, leads to another question: which legislator's mind would we use to determine the intent of the legislative body?

      This construction, defining malice in section 843.19(4) as actual malice, is consistent with the Rule of Lenity and section 775.021(1), Florida Statutes (2017). Section 775.021(1) states that "[t]he provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused."


author: SILBERMAN, Judge.

text:
    James FISCHER, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION as Trustee FOR DEUTSCHE ALT-A SECURITIES, INC., MORTGAGE LOAN TRUST, SERIES 2006-AR1; and Debra Fischer, Appellees.
    Case No. 2D16-5307
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    Inger M. Garcia of Florida Litigation Group, P.A., Lighthouse Point; and Rachel M. Coe of Polaris Legal Group, Lighthouse Point, for Appellant.
    Zina Gabsi of Bryan Cave LLP, Miami; and W. Bard Brockman of Bryan Cave LLP, Atlanta, Georgia, for Appellee HSBC Bank USA.
    No appearance for remaining Appellee.
   SILBERMAN, Judge.

James Fischer appeals a final judgment of mortgage foreclosure in favor of HSBC Bank USA, National Association, as Trustee for Deutsche Alt-A Securities, Inc., Mortgage Loan Trust, Series 2006-AR1 (HSBC), and contends that the trial court should have granted his motion for involuntary dismissal for lack of standing at inception. He contends that the trial court erred in taking judicial notice of the Third Amended Chapter 13 Plan in his bankruptcy proceedings and in preventing Fischer, based on the doctrine of judicial estoppel, from presenting a standing defense. We conclude that the judicially noticed bankruptcy documents do not show that Fischer is prohibited from opposing HSBC's foreclosure action. Because the trial court determined that the original plaintiff lacked standing at the inception of the lawsuit, we reverse and remand for the trial court to enter an involuntary dismissal.

The promissory note was executed in 2005, and the original lender was First National Bank of Arizona. A mortgage on property located at 830 Bloxham Avenue, Punta Gorda, secured repayment of the note. On May 7, 2008, Residential Funding Company, LLC (RFC), filed its two-count complaint against Fischer for mortgage foreclosure and to reestablish a lost note. In 2014, the case was placed on inactive status due to a bankruptcy stay. After RFC gave notice of the Order Confirming Plan (the Order), the trial court granted RFC's motion to reopen the foreclosure case.

Fischer then filed a verified motion to strike sham pleading on the basis that RFC did not have standing to file the complaint and contended that the complaint was falsely or fraudulently filed. RFC filed a motion to substitute HSBC as party plaintiff, and the trial court granted the motion. In 2016, HSBC voluntarily dismissed the lost note count.

The trial occurred on November 8, 2016, and the trial court prohibited Fischer from raising standing as a defense because the trial court determined, based on judicially noticed bankruptcy documents, that Fischer had surrendered the subject property in the bankruptcy. The trial court judicially noticed the Third Amended Chapter 13 Plan, the Order, and the Discharge of Debtor After Completion of Chapter 13 Plan. Paragraph I of the Third Amended Chapter 13 Plan is entitled "Surrender of Collateral/Leased Property." It provides that "Debtor will surrender the following collateral/leased property no later than thirty (30) days from the filing of the petition unless specified otherwise in the Plan." The property at "830 Bloxham Ave." is one of the three properties listed as "Property/Collateral to be Surrendered" with the creditor for that property listed as "Ocwen Loan Svc." Paragraph 4 of the Order provides that "[c]laims are allowed and security surrendered to creditors set forth in Exhibit 'A.' " But Exhibit A does not list the Bloxham Avenue property or "Ocwen Loan Svc." or HSBC. The Order provides that modifications to the plan, whether by order or in open court, are incorporated in the Order.

The trial court allowed Fischer to proffer some evidence on standing, and HSBC's only witness, an employee of Ocwen Financial Servicing, admitted that it was his understanding that RFC did not own or hold the note at the time the lawsuit was filed. The note was not attached to the original complaint. The trial court found that the evidence failed to show that RFC had standing at inception but found that HSBC had standing at the time of trial. Fischer argued for an involuntary dismissal on the basis of lack of standing and other grounds. The trial court entered a final judgment of foreclosure in favor of HSBC.

Fischer contends that the trial court abused its discretion in taking judicial notice of the Third Amended Chapter 13 Plan when HSBC did not comply with the requirements for judicial notice. But regardless of whether judicial notice was proper, the bankruptcy documents that HSBC presented failed to show that Fischer actually surrendered the Bloxham property in his chapter 13 bankruptcy. Thus, the trial court erred in applying the doctrine of judicial estoppel to prevent him from presenting a defense of lack of standing.

The provisions of "a confirmed chapter 13 plan 'bind[ ] the debtor and each creditor.' " In re Scott, 567 B.R. 847, 851 (Bankr. S.D. Fla. 2017) (alteration in original) (quoting 11 U.S.C. § 1327(a) (2012) ). A "chapter 13 plan provides for the disposition of each piece of property, including whether the debtor will surrender a property." Id. Although "debtors who surrender their property can no longer contest a foreclosure action," the creditor must still take the legal action of a foreclosure proceeding to recover the property. In re Failla, 838 F.3d 1170, 1177 (11th Cir. 2016) (dealing with a chapter 7 case); see also Scott, 567 B.R. at 851 (applying Failla to a chapter 13 case); In re Metzler, 530 B.R. 894, 899 (Bankr. M.D. Fla. 2015) (determining in a chapter 13 case that a surrender of property prohibited the debtor from "taking an overt act to prevent the secured creditor from foreclosing its interest in the secured property"). The Failla court recognized that "a creditor may be able to invoke the doctrine of judicial estoppel in state court to force debtors to keep a promise made in bankruptcy court." Failla, 838 F.3d at 1179.

The doctrine of judicial estoppel prevents a litigant from taking inconsistent positions in separate judicial proceedings. Zeeuw v. BFI Waste Sys. of N. Am., Inc., 997 So.2d 1218, 1220 (Fla. 2d DCA 2008). For the doctrine to apply, the party to be estopped must have successfully maintained the position assumed in the earlier proceedings. Id. Thus, the court in the first proceeding must have adopted that position for judicial estoppel to apply. Id. In addition, the doctrine of judicial estoppel "requires a mutuality of parties." Id. at 1221.

In Scott, the court stated that by opposing the state foreclosure action the debtor had violated the confirmed plan. 567 B.R. at 852. The court noted that the debtor was "bound by the confirmed chapter 13 plan" providing "that Debtor will surrender the homestead property." Id.; see also Rivera v. Bank of Am., N.A., 190 So.3d 267, 267 (Fla. 5th DCA 2016) (stating that the bankruptcy court had entered an "order confirming the debt and surrender of the property" to Appellee Bank of America); In re Lapeyre, 544 B.R. 719, 720 (Bankr. S.D. Fla. 2016) ("[T]he confirmed plan provides for the surrender of the property.").

Nothing in the documents judicially noticed shows that by contesting standing Fischer would be violating the confirmed plan. The documents show that he indicated an intent to surrender the property to "Ocwen Loan Svc." But the Order states that Exhibit A sets forth the "security surrendered to creditors," and Exhibit A does not include the Bloxham property or "Ocwen Loan Svc." or HSBC. We do not know if the plan had been modified or what else may have occurred in the bankruptcy proceedings. Because the documents that the trial court judicially noticed do not reflect that the bankruptcy court adopted the surrender of the Bloxham property, the trial court should not have applied the doctrine of judicial estoppel to prohibit Fischer from raising the defense of standing.

Therefore, we reverse the final judgment of foreclosure. Because the trial court explicitly found that there was no standing at the inception of the lawsuit, we remand for the trial court to enter an involuntary dismissal. See Corrigan v. Bank of Am., N.A., 189 So.3d 187, 189 (Fla. 2d DCA 2016) (en banc) ("[I]t is axiomatic that standing must be shown as of the filing of the complaint." (quoting Eagles Master Ass'n v. Bank of Am., N.A., 198 So.3d 12, 14 (Fla. 2d DCA 2015) ) ).

Reversed and remanded with directions.

LaROSE, C.J., and SALARIO, J., Concur.


author: ORFINGER, J.

text:
    PMT NPL FINANCING 2015-1, Appellant, v. CENTURION SYSTEMS, LLC, as Successor Trustee Under the 5055 Shale Ridge Trail Land Trust Dated July 6, 2012, Mortgage Electronic Registration Systems, Inc., et al., Appellees.
    Case No. 5D17-2711
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Nancy M. Wallace, of Akerman LLP, Tallahassee, William P. Heller, of Akerman LLP, Fort Lauderdale, and Eric M. Levine, Akerman LLP, West Palm Beach, for Appellant.
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellee, Centurion Systems, LLC, as Successor Trustee Under the 5055 Shale Ridge Trail Land Trust Dated July 6, 2012.
    No Appearance for Other Appellees.
   ORFINGER, J.

PMT NPL Financing 2015-1 ("PMT") appeals from the dismissal of a foreclosure complaint entered in favor of Centurion Systems, LLC, as Successor Trustee Under the 5055 Shale Ridge Trail Land Trust Dated July 16, 2012 ("Centurion"). Because the trial court erroneously concluded that PMT did not have standing at the time of trial, we reverse and remand for a new trial. We do not address the remaining issues, as they are rendered moot by our reversal.

Jenny and Wayne Alfred executed a promissory note in favor of the original lender, The CIT Group/Consumer Finance, Inc. ("CIT"). The note was secured by a mortgage encumbering the Alfreds' real property in Orange County, Florida. The Alfreds defaulted on their loan in December 2010 and then filed for bankruptcy protection. The bankruptcy trustee conveyed the property to Realty Asset Exchange LLC, which immediately conveyed the property to Centurion. The Alfreds were granted a discharge in August 2012.

PennyMac Mortgage Investment Trust Holdings I, LLC ("PennyMac Mortgage") then filed the underlying foreclosure complaint. PennyMac Mortgage alleged that it held the note and mortgage and attached copies of both to the complaint. The note contained an indorsement by CIT in favor of CitiMortgage, Inc. and an undated blank indorsement by "CitiMortgage, Inc./By and through its Attorney in Fact PNMAC Capital Management, LLC." After PennyMac Mortgage changed its name, PennyMac Holdings, Inc. was named as the party plaintiff in January 2014. PennyMac Holdings, Inc. thereafter filed the original note with the same two indorsements and a certified copy of the mortgage with the court. In August 2015, PennyMac Holdings, Inc. moved to substitute PMT as the party plaintiff, asserting that the mortgage had been assigned to PMT, and thus, PMT was the real party in interest. The court granted the motion without objection. As party plaintiff, PMT moved the court to release the previously filed original note and mortgage. However, the trial court denied the motion without elaboration. Centurion subsequently filed an answer, denying that PMT was the holder of the note, and raising, among others, lack of standing as an affirmative defense.

At the non-jury trial, PMT entered several documents into evidence. Of importance, despite its earlier ruling, PMT was allowed to remove from the court file and enter into evidence, the certified copy of the mortgage and the original note with the CIT indorsement to CitiMortgage and the blank indorsement from CitiMortgage by and through PNMAC. After PMT rested its case, Centurion moved for an involuntary dismissal. The trial court dismissed PMT's foreclosure action, finding that PMT failed to establish standing at the time of trial because the original note was filed with the court before PMT was substituted as the party plaintiff.

We review de novo an order granting a motion for involuntary dismissal at the close of the plaintiff's case. E.g., Nationstar Mortg., LLC v. Kee Wing, 210 So.3d 216, 218 (Fla. 5th DCA 2017) ;

Deutsche Bank Nat'l Tr. Co. v. Baker, 199 So.3d 967, 968 (Fla. 4th DCA 2016). In doing so, we "view the evidence and all inferences of fact in a light most favorable to the nonmoving party" and affirm "only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." Deutsche Bank Nat'l Tr. Co. v. Clarke, 87 So.3d 58, 60 (Fla. 4th DCA 2012). We similarly review de novo whether a party has standing in the foreclosure action. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla. 2011) ; Bank of N.Y. Mellon v. Burgiel, 248 So.3d 237, 237, 2018 WL 2370456 (Fla. 5th DCA May 25, 2018).

A foreclosure plaintiff must have standing both at the time the foreclosure complaint is filed as well as when judgment is entered. Burgiel, 248 So.3d at 237 ; Bowmar v. SunTrust Mortg., Inc., 188 So.3d 986, 988 (Fla. 5th DCA 2016). In this case, PMT was not the original plaintiff. However, as the substitute plaintiff, PMT stood in the shoes of the original plaintiff/mortgagee and acquired the standing, if any, of the original plaintiff at the time the case was filed. Nationstar Mortg., LLC v. Bo Chan, 226 So.3d 330, 332 (Fla. 5th DCA 2017). Here, the unrefuted evidence established that the original plaintiff, PennyMac Mortgage, filed with the court the original note with the blank indorsement that was in the same condition as the copy that it attached to the initial complaint with no subsequent contradictory indorsements. This is sufficient to establish that the original plaintiff had standing to bring the foreclosure action, which was conveyed to PMT as the substitute plaintiff. See U.S. Bank, NA for Truman 2012 SC2 Title Tr. v. Glicken, 228 So.3d 1194, 1196 (Fla. 5th DCA 2017) ("When the note with an undated blank indorsement has been attached to the original complaint, this is sufficient to prove standing provided that the plaintiff produces the original note at trial or files it with the trial court with the same indorsement and there are no subsequent contradictory indorsements.").

PMT further established its own standing at the time of trial. While the trial court denied PMT's request to release the original note prior to trial, PMT's introduction of the original note bearing the blank indorsement into evidence at the trial was sufficient to establish its standing at trial. See Fed. Nat'l Mortg. Ass'n v. Rafaeli, 225 So.3d 264, 267 (Fla. 4th DCA 2017) (holding that after note owner was substituted for original servicer as plaintiff in action, it had standing at trial where it introduced into evidence original blank-indorsed note, which had been filed in court two years before substituting note owner as party plaintiff); see also Nationstar Mortg., LLC v. Johnson, 250 So.3d 808, 809, 2018 WL 3193521 (Fla. 2d DCA June 29, 2018) (holding that bank's physical possession of original blank-indorsed note at beginning of trial was sufficient to establish standing at trial); Bank of N.Y. Mellon v. Heath, 219 So.3d 104, 106 (Fla. 4th DCA 2017) ("Here, Bank established standing because the original note and blank-endorsed allonge was properly authenticated and introduced into evidence at trial, which was identical to the copy of the note and blank-endorsed allonge attached to the complaint."). See generally § 671.201(21)(a), Fla. Stat. (2017) (defining "holder" as "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession").

We reject Centurion's argument that PMT did not have standing to foreclose at the time of trial since the blank indorsement was allegedly deficient. According to Centurion, the blank indorsement, which was executed "Without Recourse CitiMortgage, Inc./By and through its Attorney in Fact PNMAC Capital Management LLC," was deficient because there was no competent evidence that PNMAC was authorized to execute the indorsement as attorney-in-fact for CitiMortgage.

An indorsement is a "signature" on the note "for the purpose of negotiating the instrument." § 673.2041(1), Fla. Stat. (2013). A signature can be placed on an instrument by a person or a person's representative. Id. § 673.4021(1). "In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings." Id. § 673.3081(1). The Uniform Commercial Code ("U.C.C.") Comment to this provision explains that "until some evidence is introduced which would support a finding that the signature is forged or unauthorized, the plaintiff is not required to prove that it is valid." Id., U.C.C. cmt. 1. Here, assuming, without deciding, that this issue was properly pled, Centurion did not introduce any evidence to support a finding that the signature on the blank indorsement was forged or unauthorized. Thus, PMT was not required to prove that the signature was authorized. See Rivera v. Wells Fargo Bank, N.A., 189 So.3d 323, 328 (Fla. 4th DCA 2016) (finding that bank was not required to prove that borrower's signature was valid where borrower did not introduce any evidence to support finding that signatures were forged or unauthorized); Bennett v. Deutsche Bank Nat'l Tr. Co., 124 So.3d 320, 323 (Fla. 4th DCA 2013) (holding bank could rely on statutory presumption of validity of signatures on allonge, based on section 673.3081(1), in absence of any evidence from mortgagors that signature was unauthorized).

Because the original plaintiff had standing to foreclose when it filed the complaint with a copy of the blank-indorsed note attached and PMT established standing in its own right by entering the original blank-indorsed note into evidence, the trial court erred in granting Centurion's motion for involuntary dismissal. Accordingly, we reverse the order dismissing the foreclosure action and remand for a new trial.

REVERSED and REMANDED.

SAWAYA and WALLIS, JJ., concur.

      For this reason, Centurion's reliance on Geweye v. Ventures Trust, 189 So.3d 231 (Fla. 2d DCA 2016), and Creadon v. U.S. Bank N.A., 166 So.3d 952 (Fla. 2d DCA 2015), is misplaced. Unlike the banks in Geweye and Creadon, PennyMac Mortgage had standing to foreclose when it filed the complaint with a copy of the blank-indorsed note attached, and PMT established standing in its own right by physically possessing the original blank-indorsed note at the trial and entering it into evidence. Compare Geweye, 189 So.3d 231 (holding evidence was insufficient to support standing of assignee of mortgage to enforce note at time of trial in foreclosure action because even though mortgagee had standing when foreclosure complaint was filed and assignee was substituted as party plaintiff, assignee did not submit note with blank or special indorsement, assignment of note, or affidavit otherwise proving assignee's status as holder of note; mortgagee filed original note indorsed in blank with court long before assignee was substituted in action, and nothing in assignment of mortgage conferred standing on assignee to enforce note), and Creadon, 166 So.3d 952 (holding purported successor trustee, which was substituted as plaintiff in foreclosure action, failed to establish standing to foreclose note and mortgage where original note was filed in court registry years before successor trustee appeared in suit, and thus, successor trustee could not be holder of note or nonholder in possession with standing to foreclose, and successor trustee did not advance any alternative basis for standing), with Nationstar Mortg., LLC v. Johnson, 250 So.3d 808, 809, 2018 WL 3193521 (Fla. 2d DCA June 29, 2018) (distinguishing case from Geweye and Creadon due to substitute plaintiff's possession of original note at trial).

      Although the commentary to the U.C.C. is not controlling authority, see Corfan Banco Asuncion Paraguay v. Ocean Bank, 715 So.2d 967, 971 (Fla. 3d DCA 1998), Florida courts look to U.C.C. Comments in interpreting the corresponding provisions of Florida's U.C.C. See, e.g., Rivera v. Wells Fargo Bank, N.A., 189 So.3d 323, 328 (Fla. 4th DCA 2016) (looking to U.C.C. Comment in interpreting section 673.3081).


author: PER CURIAM.

text:
    Thomas MENTION, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4482
    District Court of Appeal of Florida, Second District.
    Opinion filed September 26, 2018
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed without prejudice to Appellant's right to file a motion under Florida Rule of Criminal Procedure 3.850.

LaROSE, C.J., and KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: KELLY, Judge.

text:
    Roderick WASHINGTON, a/k/a Roderick Antwon Washington. Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3206
    District Court of Appeal of Florida, Second District.
    Opinion filed September 26, 2018
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Roderick Washington was convicted of two counts of kidnapping and two counts of first-degree murder. He was seventeen years old when he participated in the offenses with several codefendants. His original sentences were overturned as violations of the Eighth Amendment, Lawton v. State, 181 So.3d 452, 453 (Fla. 2015), and he was resentenced to two life terms and two forty-year terms under section 775.082(1)(b)(1), Florida Statutes (2016), with the proviso that he could petition the court for review after twenty-five years under section 921.1402(2)(a), Florida Statutes (2016). In resentencing Washington, the sentencing court found that Washington intended to kill the victims.

In this appeal, Washington again challenges the sentences imposed on him, citing Williams v. State, 242 So. 3d 280 (Fla. 2018), which holds that Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), requires a jury, rather than a judge, to make the factual finding as to whether the juvenile offender actually killed, intended to kill, or attempted to kill the victim. See 242 So.3d at 288. Although the court in Williams concluded that Alleyne violations are subject to harmless error review, 242 So.3d at 289, the violation here cannot be deemed harmless. Therefore, we remand for the trial court to resentence Washington under section 775.082(1)(b)(2). See Williams, 242 So.3d at 294.

Reversed and remanded for resentencing.

NORTHCUTT and BLACK, JJ., Concur.