author: Per Curiam.

text:
    Geraldo A. ALEXIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-788
    District Court of Appeal of Florida, Fourth District.
    [November 7, 2018]
    Geraldo A. Alexis, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Geraldo Alexis appeals the summary denial of his Florida Rule of Criminal Procedure Rule 3.850 motion for post-conviction relief. We reverse as to Alexis' claim that his scoresheet improperly included victim injury points for sexual penetration and remand for resentencing with a corrected scoresheet.

Alexis entered an open plea to lewd or lascivious battery, burglary of a dwelling, and grand theft. He scored 192.6 sentencing points, including eighty victim injury points for sexual penetration, which resulted in a lowest permissible sentence of about ten years. He was sentenced to twelve years in prison followed by three years of probation. In his timely rule 3.850 motion, he argued that his scoresheet improperly included victim injury points for sexual penetration. The trial court summarily denied the motion and this appeal followed.

When a defendant pleads to an offense that does not require proof of sexual penetration as charged, victim injury points for penetration cannot be assessed unless the defendant stipulates that penetration occurred or agrees to inclusion of the points as part of a plea bargain. See Blair v. State , 201 So.3d 800, 803 (Fla. 4th DCA 2016) ; Dames v. State , 186 So.3d 593, 595 (Fla. 4th DCA 2016) ; see also Mann v. State , 974 So.2d 552 (Fla. 5th DCA 2008).

Here, Alexis entered an open plea to the offense of lewd or lascivious battery, which does not require proof of penetration. § 800.04(4), Fla. Stat. (2013) (defining the offense as "engaging in sexual activity with a person 12 years of age or older but less than 16 years of age" or "encouraging, forcing, or enticing any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity"). Neither the information nor the factual basis for the plea alleged penetration. Alexis did not stipulate that penetration occurred or otherwise agree to the assessment of victim injury points for penetration. As a result, the points could not be included on his scoresheet.

When a scoresheet error is raised in a timely rule 3.850 motion, resentencing is required unless the record shows conclusively that the trial court would have imposed the same sentence using a corrected scoresheet. Sanders v. State , 35 So.3d 864, 870-71 (Fla. 2010) (citing Brooks v. State , 969 So.2d 238, 241-42 (Fla. 2007) ; State v. Anderson , 905 So.2d 111, 118 (Fla. 2005) ). The test requires "conclusive proof that the scoresheet error did not affect or contribute to the sentencing decision." Anderson , 905 So.2d at 115-16. Here, we cannot conclude from the record that the court would have imposed the same sentence with a scoresheet that did not include the eighty victim injury points for sexual penetration.

Accordingly, we reverse the denial of Alexis' claim of scoresheet error and remand for resentencing with a corrected scoresheet. We affirm the denial of Alexis' other claims without comment.

Affirmed in part; reversed in part; remanded for resentencing.

Gross, Damoorgian and Conner, JJ., concur.


source: Caselaw Access Project

author: Conner, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. I.J., a child, Appellee.
    No. 4D17-2982
    District Court of Appeal of Florida, Fourth District.
    [November 7, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellee.
   Conner, J.

The State of Florida appeals the trial court's delinquency disposition asserting the trial court erred by failing to commit I.J. to a mandatory fifteen days in secure detention for the offense of armed burglary of a conveyance. We agree that the fifteen days' detention was a mandatory enhancement for disposition under the facts of this case, and therefore, we reverse and remand the disposition of that charge.

Background

A witness reported that she saw four males attempting to open car door handles in a parking lot. Officers responded, set up a perimeter, and I.J. was apprehended and placed under arrest. While detaining I.J., the officers learned that a handgun had been taken from one of the vehicles burglarized by the four suspects. I.J. told the officers that he knew where the missing handgun was located and took the officers to the location where the handgun was found.

One of the other suspects, the co-defendant, told officers that a third suspect (not I.J.) handed him the gun, so he hid the gun in the bush where it was found. The co-defendant "did not say who removed the gun from the vehicle."

I.J. was charged with armed burglary of a conveyance, grand theft of a firearm, burglary of a conveyance, and resisting without violence. He entered a plea to all four counts. At the plea hearing, the State mentioned that "given that [this] is a firearm case, it was explained at staffing that this would require 15-day mandatory detention" pursuant to section 790.22(9)(a), Florida Statutes (2017). I.J.'s counsel stated that he "never possessed a gun personally," so it was "kind of difficult to comprehend" that he would face the enhancement. The trial court agreed to reset the case, so that both parties could further research the issue.

When the disposition hearing commenced, the State relied on and cited to a case from the Third District, State v. R.C.S. , 837 So.2d 517 (Fla. 3d DCA 2003), arguing that the case held that the juvenile defendant did not have to personally use or possess a firearm for the enhancement statute to apply. In opposition, I.J. relied on our decision in B.O. v. State , 25 So.3d 586 (Fla. 4th DCA 2009), contending B.O. requires actual possession to impose the detention penalty. The trial court agreed with I.J., and declined to impose the fifteen days in secure detention requested by the State. The State gave notice of appeal.

Appellate Analysis

"The legality of a sentence is a question of law and is subject to de novo review." Flowers v. State , 899 So.2d 1257, 1259 (Fla. 4th DCA 2005). "We also review de novo a trial court's interpretation of a statute." State v. Sanchez , 133 So.3d 1038, 1040 (Fla. 4th DCA 2014).

The only issue on appeal is whether the trial court erred in failing to impose fifteen days in secure detention as part of the disposition of I.J.'s armed burglary of a conveyance charge, pursuant to section 790.22(9)(a). Section 790.22(9)(a) states:

(9) Notwithstanding s. 985.245, if the minor is found to have committed an offense that involves the use or possession of a firearm , as defined in s. 790.001, other than a violation of subsection (3), or an offense during the commission of which the minor possessed a firearm, and the minor is not committed to a residential commitment program of the Department of Juvenile Justice, in addition to any other punishment provided by law, the court shall order:
(a) For a first offense, that the minor shall serve a minimum period of detention of 15 days in a secure detention facility ; and
1. Perform 100 hours of community service; and may
2. Be placed on community control or in a nonresidential commitment program.

§ 790.22(9)(a), Fla. Stat. (2017) (emphases added). The question raised in this case is whether the statute requires that the minor actually use or possess a firearm in order for the enhancement to apply. We agree with the Third District and hold that it does not.

The parties and the trial court relied on two cases, one from the Third District, and one from this Court. In the case from the Third District, R.C.S. , a juvenile entered a no contest plea to armed burglary with a firearm and theft of a firearm. R.C.S. , 837 So.2d at 517. At the disposition hearing, the juvenile claimed that he was only the lookout during the incident, and therefore, the provisions of section 790.22(9)(a) did not apply to him. Id. The trial court agreed, and did not sentence the juvenile to the mandatory fifteen-day detention period. Id. at 517-18. On appeal, in a short opinion, the court stated:

We are of the view that the legislature purposely intended the mandatory minimum detention provision of that section to act as an example of what might lie ahead should one persist in further criminal activity. We reject the juvenile's argument that we should analogize section 790.22(9), with section 775.087(1), Florida Statutes (1999). Moreover, we do not think there is any ambiguity present because the subsection at issue expressly provides for such penalty for the "use" of a firearm. Here, even though the juvenile acted only as a lookout, he was involved in a crime which involved the use of a weapon. This was sufficient to mandate the minimum fifteen day detention at issue. Accordingly, we reverse the order under review and remand for additional sentencing.

Id. at 518 (footnote omitted).

In the case from our Court, B.O. , an unarmed juvenile, took two handguns from a home, and was charged with two counts of grand theft of a firearm. B.O. , 25 So.3d at 587. He pled guilty to the two crimes, and on appeal, challenged the fifteen-day secure detention sentence he received pursuant to section 790.22(9)(a). Id. This Court cited to principles of due process, and phrased the analysis as:

The statute does not specify that it applies when the subject of the theft is a firearm. Rather its express term is use or possession of a firearm in the commission of an offense. The question presented in this case is therefore whether the statute applies when the petition neither cited the statute nor alleged that, in committing the theft, the child used or possessed a firearm.

Id. at 587-88. Citing to several cases, this Court explained that "[s]tate law now recognizes a broadly applicable Constitutional rule about punishment: the accused must be given notice in the charging document of any fact on which a sentencing enhancement will be based." Id. at 589.

[T]he charging document serves an important purpose beyond merely alleging the elements of the crime charged. These cases hold that the charging document must also support the sentence imposed after a finding of guilt. Hence it is irrelevant to the disposition issue that the petition in this case charged all the elements of grand theft. The present issue involves the penalty that may be properly inflicted for the crime actually charged in the petition: the standard penalty or an enhanced penalty depending on facts in addition to the crime's raw elements that were not alleged.

Id. (emphasis added). Therefore, our holding in B.O. was based on due process concerns, and not on the possession requirements of section 790.22(9)(a).

There are two reasons that the sentence in this case must be reversed: (1) the statute requires the fifteen-day mandatory secure detention sentence; and (2) the notice requirements that we found lacking in B.O. were satisfied in this case.

"In construing the meaning of a statute, we first look at its plain language." Montgomery v. State , 897 So.2d 1282, 1285 (Fla. 2005). "When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Id. (quoting Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) ). Section 790.22(9)(a) is unambiguous, and supports the State's interpretation. The statute states that the enhancement is required when a "minor is found to have committed an offense that involves the use or possession of a firearm[.]" § 790.22(9)(a), Fla. Stat. The statute does not require actual use or actual possession, and to the contrary, only requires conviction of an offense that involves the use or possession of a firearm. Therefore, the statute does not focus on the specific actions of the defendant, but instead, the category of the offense.

The determinative offense here is armed burglary. As the State argues, armed burglary of a conveyance certainly involves the use or possession of a firearm. See Gaber v. State , 684 So.2d 189, 191 (Fla. 1996) ("Burglary becomes armed burglary if, in the course of committing the offense, the offender '[i]s armed, or arms himself within such structure or conveyance, with explosives or a dangerous weapon.' " (alteration in original) (quoting § 810.02(2)(b), Fla. Stat. (1993) ) ). The offense necessitates that the defendant is "armed" or "arms himself," meaning the defendant uses or possesses an explosive or dangerous weapon. See Armed , BLACK'S LAW DICTIONARY (10th ed. 2014) (defining "armed" as "[e]quipped with a weapon" or "[i]nvolving the use of a weapon"). In the instant case, the State specifically alleged that I.J. and his co-defendant "in the course thereof HE/THEY were armed or armed HIMSELF/THEMSELVES within such conveyance with explosives or a dangerous weapon, to-wit: .40 CALIBER SMITH AND WESSON 6040 HANDGUN ...."

As the juvenile did in R.C.S. , I.J. here also attempts to analogize section 790.22(9)(a) with the 10-20-Life statute, and cites to cases interpreting that statute. However, I.J.'s citation to cases interpreting the 10-20-Life statute actually demonstrates the error of his argument. The two relevant subsections of section 775.087, Florida Statutes (2017), Florida's 10-20-Life statute, expressly state that actual use or possession is required before enhancement under that statute is mandated. See § 775.087(1), Fla. Stat. (2017) ("[D]uring the commission of such a felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm[.]" (emphasis added) ); § 775.087(2)(a), Fla. Stat. (2017) (referencing when a "person actually possessed a 'firearm' or 'destructive device,' " "possessed a 'firearm' or 'destructive device,' " and "discharged a 'firearm' or 'destructive device' ... and, as the result of the discharge, death or great bodily harm was inflicted upon any person[.]" (emphases added) ). Although the legislature chose to make actual possession a requirement under the 10-20-Life statute, it did not do the same under section 790.22(9)(a).

Our interpretation of section 790.22(9)(a) is also consistent with the intent of juvenile disposition goals. In addressing an Equal Protection Clause challenge to a previous version of section 790.22(9)(a), the Third District explained that "the state's interests in juvenile offenders is vastly different from its interests in adult offenders." T.M. v. State , 689 So.2d 443, 445 (Fla. 3d DCA 1997). "With adult offenders, the state's primary objective is that of retributive punishment. One of the primary purposes of the Juvenile Justice Act, however, is ... 'that the most appropriate control, discipline, punishment and treatment can be administered' with 'the specific rehabilitation needs of the child[.]' " Id. (quoting § 39.001(1)(c), Fla. Stat. (1995) ). The court also explained:

The statute is obviously designed to get the immediate attention of all juveniles and to issue a "wake-up call" that the state deems their firearm offenses to be serious enough to warrant the automatic deprivation of their liberty for a period of time, even on a first offense. Its intent clearly is to have a deterrent effect to hopefully prevent the juvenile's escalation into the adult criminal justice system.

Id. at 446.

As for the notice requirements under B.O. , here, the State complied. The delinquency petition charged both I.J. and the co-defendant with burglary of a conveyance, stating: "HE/THEY were armed or armed HIMSELF/THEMSELVES" with a handgun.

In Delgado v. State , 43 So.3d 132 (Fla. 3d DCA 2010), the defendant was charged with and convicted of two counts of armed robbery with a firearm, and sentenced to a minimum mandatory term pursuant to Florida's 10-20-Life statute. Id. at 133. On appeal, the defendant argued that the information charging him did not allege that he possessed a firearm during the robbery, and therefore, the information was not specific enough to support application of the minimum mandatory. Id.

Like the charging document in this case, the information in Delgado charged the defendant and co-defendant together under each count, stating that "said defendant possessed a firearm or destructive device" during the commission of the offense. Id. at 134. The court found this language enough to charge both defendants with the possession of the firearm or destructive device, because:

The phrase, "said defendant," likewise applies to both defendants since, under Florida law, the singular form of a phrase includes the plural form. In this case, the phrase, "said defendant," includes the phrase, "said defendants." § 1.01, Fla. Stat. (2009) ("In construing the statutes in each and every word, phrase or paragraph, where the context will permit: (1) the singular includes the plural and vice versa.").

Id.

Here, the charging document was more specific than simply using the singular form for the two co-defendants. The petition stated that "HE/THEY" armed "HIMSELF/THEMSELVES," clearly using the singular as well as the plural forms. Since the singular form alone would have been sufficient, certainly the singular form plus the plural form was enough to put I.J. on notice. As the concurring opinion stated in B.O. : "If the State seeks to 'get the immediate attention of all juveniles and to issue a wake-up call' ... all it must do is simply add the words 'and in so doing used or possessed a firearm' to its charging document." B.O. , 25 So.3d at 590 (Ciklin, J., concurring specially). Similar language was used in the charging document here ("in the course thereof HE/THEY were armed or armed HIMSELF/THEMSELVES ... with ... a ... weapon"), and therefore, the requirements of B.O. were satisfied.

We hold that the trial court erred in failing to impose the mandatory fifteen days in secure detention as part of I.J.'s disposition for armed burglary of a conveyance. We reverse for proceedings consistent with this opinion.

Reversed and remanded with instructions.

Damoorgian and Ciklin, JJ., concur.

      The State does not appeal the dispositions of the other charges to which I.J. pled.


author: Gross, J.

text:
    Matthew WARE, Jessica Bell, Tereza Landrum, Caroline Wells, Calli Pastor, James Jacobs and Jesse Campbell, Appellants, v. CITRIX SYSTEMS, INC., Appellee.
    No. 4D18-1372
    District Court of Appeal of Florida, Fourth District.
    [November 7, 2018]
    James A. Gale, Samuel A. Lewis, and David M. Stahl of Cozen O'Connor, Miami, for appellants.
    April Boyer and Yamilet Hurtado of K&L Gates LLP, Miami, for appellee.
   Gross, J.

We confront an increasingly common factual scenario: whether Florida can assert personal jurisdiction over the defendant employees of a Florida company who work remotely in another state and whose contacts with Florida are something less concrete than those of an employee physically located in the state.

In this case, a Florida corporation sued seven former employees who reside in North Carolina. The employees challenged Florida's personal jurisdiction over them in a motion to dismiss. The two sides filed competing affidavits. The trial court denied the defendants' motion without holding an evidentiary hearing. We reverse because the facts that emerge from the clash of affidavits cannot be harmonized in order to establish personal jurisdiction. On remand, the circuit court shall hold a limited evidentiary hearing on the jurisdictional issue.

The appellants here are all former employees of Citrix Systems, Inc., a software company with its principal place of business in Broward County, Florida. All seven appellants worked in sales at the company's office in Raleigh, North Carolina, and are North Carolina residents. This suit arose when the appellants left Citrix to work for another software company, Egnyte. Egnyte is a Delaware company with its principal place of business in California, but the appellants all work out of its North Carolina office.

Citrix sued the appellants in Broward County, claiming breach of contract, misappropriation of trade secrets, unfair and deceptive trade practices, conversion, and unjust enrichment. Citrix alleged that the appellants had accessed confidential business information from their Citrix ShareFile accounts and later shared that information with Egnyte.

Citrix contends that in leaving Citrix for Egnyte, the appellants violated their non-compete agreements. Those agreements all contain the same forum selection clause:

I understand that this Agreement will be governed by, construed and enforced in accordance with the laws of the State of Florida, where Citrix's corporate headquarters are located, without regard to its principles of conflict of laws. I agree that any action, suit or proceeding, including but not limited to any proceeding for injunctive or declaratory relief, arising out of this Agreement, shall be initiated only in the state or federal courts located in Broward County in the State of Florida, and I waive any objection (including objections regarding lack of personal jurisdiction and objection to the convenience of the forum) that I may now or hereafter have to such venue or jurisdiction in any action, suit or proceeding brought in any State or federal court located in Broward County, Florida. I hereby specifically consent to appear in the state and federal courts of the State of Florida and agree that this Agreement as well as such other contact I have had with the State of Florida is sufficient to provide me with notice that the state or federal courts located in Broward County, in the State of Florida, will be the forum for any action, suit or proceeding arising out of this Agreement.

Citrix pleaded several bases for jurisdiction in its complaint:

• Appellants consented to jurisdiction via the forum selection clause.
• Appellants "engaged in or conducted business in Florida" and "had substantial contacts with Florida" while employed by Citrix.
• A substantial part of the appellants' tortious conduct was directed to Florida and caused damage in Florida and "some of the tortious conduct" occurred in Florida.
• Appellants "would have had access to and used applications and IT services delivered from servers and other IT resources housed in Florida."
• Appellants breached contractual obligations to a Florida company.

We review de novo a trial court's denial of a motion to dismiss for lack of personal jurisdiction. Dickinson Wright, PLLC v. Third Reef Holdings, LLC , 244 So.3d 303, 306 (Fla. 4th DCA 2018).

Among its bases for jurisdiction, Citrix's complaint pleads three statutory grounds for long-arm jurisdiction, alleging that the appellants:

1. Operat[ed], conduct[ed], engag[ed] in, or carr[ied] on a business or business venture in this state or ha[d] an office or agency in this state.
2. Commit[ed] a tortious act within this state.
...
7. Breach[ed] a contract in this state by failing to perform acts required by the contract to be performed in this state.

§ 48.193(1)(a)1-2, 7, Fla. Stat. (2017).

The Florida Supreme Court laid out the test for long-arm personal jurisdiction in Venetian Salami Co. v. Parthenais , 554 So.2d 499 (Fla. 1989) :

In determining whether long-arm jurisdiction is appropriate in a given case, two inquiries must be made. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient "minimum contacts" are demonstrated to satisfy due process requirements.

Id. at 502 (citation omitted).

This two-step process governs our analysis of this case even though there was a forum selection clause. This is so because a forum selection clause cannot serve as the sole basis for Florida to exercise personal jurisdiction over an objecting non-resident defendant. McRae v. J.D./M.D., Inc. , 511 So.2d 540, 544 (Fla. 1987) ; Hatfield v. AutoNation, Inc. , 915 So.2d 1236, 1243 (Fla. 4th DCA 2005).

Under step one of Venetian Salami , once a defendant contests the factual allegations forming the basis for jurisdiction, the burden shifts to the plaintiff to prove by its own affidavit or affidavits that jurisdiction exists. Venetian Salami , 554 So.2d at 502. "In most cases, the affidavits can be harmonized, and the court will be in a position to make a decision based upon facts which are essentially undisputed." Id. at 502-03. When the affidavits cannot be harmonized, however, the trial court must hold a limited evidentiary hearing with regard to jurisdiction. Id.

The trial court below denied the appellants' motion to dismiss, concluding that the appellants did not "adequately contest all of [Citrix's] jurisdictional allegations." "For instance," the court wrote, "the affidavits ... do not contest [Citrix's] allegation the [appellants] committed tortious acts in Florida by misappropriating confidential and proprietary information ... which, as alleged by [Citrix], is maintained on servers located in Florida and to which [appellants] had access."

We proceed keeping in mind the principle that "a nonresident employee-defendant who works only outside of Florida, commits no acts in Florida, and has no personal connection with Florida will not be subject to the personal jurisdiction of Florida courts simply because he or she is a corporate officer or employee." Kitroser v. Hurt , 85 So.3d 1084, 1088 (Fla. 2012) (observing that it "may be unfair" to make an individual defend himself in a forum in which his only relevant contacts are acts performed outside of the forum solely for the benefit of his employer).

In light of this principle and our observation that notions of personal jurisdiction have evolved with the growth of technology, Le v. Tralongo, LLC , 239 So.3d 704, 707 (Fla. 4th DCA 2018), we consider all of the bases for jurisdiction pled by Citrix. In doing so, we apply the first prong of Venetian Salami -that is, whether the affidavits from the two sides can be harmonized so as to support a finding of jurisdiction based on "essentially undisputed" facts or whether a hearing on the facts regarding jurisdiction is required. See Venetian Salami , 554 So.2d at 503.

Forum Selection Clause

As discussed above, a forum selection clause designating Florida as the forum state cannot serve as the sole basis for Florida to exercise personal jurisdiction over an objecting non-resident defendant. McRae , 511 So.2d at 544. Thus, without more, the employees' contractual forum selection clauses are not enough to hale them into Broward County. We note that "a [forum selection] clause may be considered as a factor that weighs in favor of exercising personal jurisdiction over a nonresident defendant where other grounds exist to exercise such jurisdiction." Hatfield , 915 So.2d at 1243 (citing Global Satellite Commc'n Co. v. Sudline , 849 So.2d 466, 469 (Fla. 4th DCA 2003) ("[W]hen jurisdiction is based on the breach of a contract in Florida coupled with a Florida venue selection clause, the defendant has given implied consent to personal jurisdiction in the forum State and has, in essence, conceded minimum contacts[.]") ).

Florida Business Contacts

Citrix also pleads personal jurisdiction over the seven North Carolina employees based on their various contacts with Florida over the course of their employment. This ground for jurisdiction based on Florida business contacts is found in section 48.193(1)(a) 1, Florida Statutes. According to Citrix, the appellants' Florida contacts included supervision by the company's Florida headquarters, remote calls and conferences with Florida, communications with the Florida office, and attendance at training and other meetings in Florida.

However, all seven employees denied having any meaningful or routine contacts with Florida and generally denied Citrix's characterization of their relationship to the Florida office. For example, most of them claimed to have been supervised for only a short time, if at all, by employees in the Florida office, in almost all cases indirectly. Additionally, the appellants claimed that their meetings in Florida were infrequent and short, with the longest lasting just a few days. The appellants also denied any regular video or teleconferences with Citrix's Florida headquarters.

Citrix, meanwhile, submitted its own affidavits from Florida employees claiming to be the direct supervisors of the North Carolina employees. These affidavits described routine sales phone calls and training programs based out of Florida that the appellants were required to attend. Thus, the parties dispute how routine the appellants' contact with Florida was and to what degree they interacted with the Florida office.

Where affidavits contest the factual allegations of jurisdiction, the court must consider whether only those harmonizable, "essentially undisputed" allegations could support a finding of personal jurisdiction. See Venetian Salami , 554 So.2d at 503. Considering the appellants' and appellee's dueling affidavits here, the only "essentially undisputed" allegations on the section 48.193(1)(a) 1 grounds are that the appellants each had some contact with the Florida office and that most of them traveled to Florida one to three times as part of their work for Citrix.

Given how little is "essentially undisputed" here, it is not proper to find personal jurisdiction on the basis of the appellants' Florida business contacts; instead, an evidentiary hearing on the subject is required. See id . Because Florida courts have ruled differently based on the extent of a non-resident's Florida contacts, a hearing is necessary to establish the degree to which the appellants were engaged with business in Florida via Citrix. See, e.g. , Biloki v. Majestic Greeting Card Co., Inc. , 33 So.3d 815, 821 (Fla. 4th DCA 2010) (finding no general jurisdiction where nonresident defendants contracted with Florida company, traveled to Florida for one meeting, and ordered products from Florida office); Hatfield , 915 So.2d at 1242-43 (finding "continuous and systematic general business contact" warranting exercise of jurisdiction where evidence showed that defendant attended meetings, regularly communicated with Florida office, used Florida website almost daily, and attended weekly conference calls); Ocean Chem. Trans., Inc. v. Cotton , 702 So.2d 1272, 1272 (Fla. 1st DCA 1997) (finding that defendant-shipowner's port stops, phone calls, and agency relationships in Florida were insufficient to give rise to specific personal jurisdiction); Nordmark Presentations, Inc. v. Harman , 557 So.2d 649, 651 (Fla. 2d DCA 1990) (noting that defendant's uncontested attendance at two Florida meetings, assignment of work by Florida company, supervision by Florida company, and exchange of job information with Florida company were sufficient minimum contacts).

Tortious Conduct

The appellants all generally denied misappropriating Citrix's confidential information. Citrix responded, essentially restating the grounds for personal jurisdiction from its complaint and attaching declarations from Citrix employees regarding the appellants' various Florida contacts throughout the course of their employment with the company.

However, to the degree the trial court's order was based on the allegations of tortious conduct in Florida, its conclusion appears to be unsupported by the record. As discussed above, each of the appellants denied misappropriating information and unequivocally claimed that the appellants did not retain or share any Citrix information. All seven appellants denied providing information to Egnyte.

To be sure, the appellants did not deny that Citrix's information was stored on Florida servers, but the denial of any misappropriation in the first place is enough to bring the entire allegation of tortious conduct in or directed at Florida into question, at least for the purpose of squaring jurisdictional affidavits. Additionally, even if taken as true, the fact that Citrix was injured by the appellants' alleged conduct would not be enough to support jurisdiction. See Consol. Energy, Inc. v. Strumor , 920 So.2d 829, 832 (Fla. 4th DCA 2006) ("[M]ere injury in Florida resulting from a tort committed elsewhere is insufficient to support personal jurisdiction over a non-resident defendant." (citation omitted) ).

While the question of whether the appellants misappropriated Citrix's business information is one of the ultimate merits issues in the case, it may still be the subject of a Venetian Salami inquiry. See Holland v. Anheuser Busch, Inc. , 643 So.2d 621, 623 n.2 (Fla. 2d DCA 1994) (recognizing that "under certain circumstances a trial court, on a motion to dismiss supported by affidavit, has the authority to decide ultimate issues of fact relating to jurisdiction over the person"). On remand, the trial court should consider whether, as a factual matter, the appellants would have been able to access Citrix's Florida servers to obtain confidential business information, which could bring them under the ambit of Florida's long-arm statute. In doing so, it need not decide the ultimate legal question of whether the appellants are actually liable for the various acts alleged in Citrix's complaint.

Access to Florida Servers and I.T. Resources

Citrix also claims that Florida can assert personal jurisdiction over the appellants because they utilized Citrix's Florida-based computer servers and I.T. resources while working for the company. This basis for jurisdiction has no foundation in Florida's long-arm statute except to the extent that it could tie in to a general allegation of Florida business contacts, which we have already considered. As such, it is not a valid standalone basis for extending long-arm jurisdiction. Relatedly, although we do not reach the issue here, the Third District has warned that finding personal jurisdiction based merely on a party's use of computer resources housed in a state might raise due process issues. See Pres-Kap, Inc. v. System One, Direct Access, Inc. , 636 So.2d 1351, 1353 (Fla. 3d DCA 1994).

Breach of Contractual Obligation to Florida Company

Finally, Citrix asks Florida to assert personal jurisdiction based on the appellants' breach of their contract with Citrix, a Florida company. While this ground for jurisdiction resembles that laid out in section 48.193(1)(a) 7, Florida Statutes, it differs in one important way. Section 48.193(1)(a) 7 only extends jurisdiction when a party breaches a contract "by failing to perform acts required by the contract to be performed" in Florida. § 48.193(1)(a) 7 (emphasis added).

Here, there is no allegation that the appellants failed to perform any acts required by their contracts to be performed in Florida. Thus, Florida cannot assert jurisdiction based on section 48.193(1)(a) 7. Nor is jurisdiction proper under the theory that the appellants contracted with Citrix, a Florida company. See Wash. Capital Corp. v. Milandco, Ltd., Inc. , 695 So.2d 838, 841 (Fla. 4th DCA 1997) ("It is not enough that a foreign defendant merely contract with a Florida resident."). Therefore, this ground for jurisdiction fails.

Citrix has claimed jurisdiction based on several facts that were contested by the appellants' affidavits. Once the appellants filed affidavits denying Citrix's factual assertions, the factual bases for jurisdiction were sufficiently challenged so as to trigger the first prong of Venetian Salami . Under that prong, Citrix properly presented its own affidavits supporting jurisdiction. However, because the parties' affidavits were irreconcilable as to the essential facts giving rise to jurisdiction, a Venetian Salami jurisdictional hearing was required. 554 So.2d at 503. The trial court erred in failing to hold the hearing and we reverse for it to hold one.

Reversed and remanded.

Damoorgian and Forst, JJ., concur.

      ShareFile is the Citrix product the appellants sold while working for Citrix. It is an online server-based storage system that allows users to access files by logging into a secure system from a computer. In the course of their employment with Citrix, each of the appellants had access to a ShareFile account used to store both professional and personal information.


text:
    Merlande RICHARD and Elie Richard, Appellants, v. BANK OF AMERICA, N.A., Appellee.
    No. 4D18-1581
    District Court of Appeal of Florida, Fourth District.
    [November 14, 2018]
    James Jean-Francois of the Law Offices of James Jean-Francois, P.A., Hollywood, for appellants.
    Paul W. Burke, Eric Retter, and Kristen Johnson of Drew Eckl & Farnham, LLP, Atlanta, Georgia, for appellee.
   Per Curiam.

Merlande and Elie Richard ("borrowers") appeal an order denying a rule 1.540 motion for relief from judgment seeking to vacate a 2011 summary judgment. The borrowers contend the judgment was void because the court granted summary judgment without notice or a hearing four days after Bank of America ("bank") filed a motion for summary judgment. Following a non-evidentiary hearing, the trial court denied the motion for relief from judgment concluding that the judgment was voidable, not void, and as a result, the rule 1.540 motion had to be filed within one year of the judgment.

The borrowers made a preliminary showing that their due process rights were violated. The bank suggests this case is like Sterling Factors Corp. v. U.S. Bank Nat'l Ass'n , 968 So.2d 658 (Fla. 2d DCA 2007), but the limited record in this appeal does not support that conclusion. The bank did not present any evidence that the borrowers knew of the judgment in time to seek rehearing or to appeal. Because that issue may control whether the judgment was void, we reverse and remand for the trial court to hold an evidentiary hearing to determine when the borrowers learned of the final judgment.

Procedural history

On July 30, 2010, the bank filed a breach of contract action against the borrowers to recover $334,034.23 from an unpaid loan. On October 25, 2010, the bank moved for default. Two days later, the borrowers moved to dismiss the complaint. While that motion was pending, the bank moved for a default judgment on March 17, 2011. The bank withdrew its motion for default judgment less than two weeks later. On April 1, 2011, the bank filed a response to the motion to dismiss and moved for leave to amend the complaint. It appears that a default judgment was erroneously entered, and on April 11, 2011, the court entered an agreed order vacating the default.

On May 9, 2011, while the motion to dismiss and motion to amend the complaint were pending, the bank moved for summary judgment. On May 13, 2011, the court entered an order granting a motion for default judgment against the borrowers. Although the title indicated that it was granting default, the body of the order grants summary judgment. No summary judgment hearing was held. The borrowers contend that they were not served with the final order. Unaware of the summary judgment, they filed an answer, affirmative defenses, a response to request for admissions, interrogatories, and a request for production of documents.

The docket does not reflect any other motions until April 5, 2018, when the borrowers filed this rule 1.540 motion to reopen the case and vacate the summary judgment. The trial court heard argument from the parties. The bank did not dispute that there was no notice or hearing. It argued that the judgment was on the docket and the borrowers' remedy was to move for rehearing or appeal. The bank maintained that the judgment was at most voidable and the motion to vacate was time barred. The trial court agreed and denied the motion for relief from judgment.

Whether the judgment is void or merely voidable

If a judgment is void it can be challenged at any time, and the movant does not need to show excusable neglect, a meritorious defense, or due diligence in moving to set it aside. Fla. R. Civ. P. 1.540(b)(4) ; Vercosa v. Fields , 174 So.3d 550, 552 (Fla. 4th DCA 2015).

"A judgment is void when it is entered by a court lacking jurisdiction over the subject matter of the case or jurisdiction over the person of the defendant or where there is a violation of due process." State Farm Mut. Auto. Ins. Co. v. Statsick , 231 So.3d 528, 531 (Fla. 2d DCA 2017) (citing Tannenbaum v. Shea , 133 So.3d 1056, 1061 (Fla. 4th DCA 2014) ).

The bank suggests that a judgment is void only where the trial court lacks personal or subject matter jurisdiction. However, this court has repeatedly recognized that a judgment is also void where it violates the due process guarantees of notice and an opportunity to be heard. Bank of Am., N.A. v. Fogel , 192 So.3d 573, 575 (Fla. 4th DCA 2016) ("If a party's due process rights are violated, the underlying final order is void."); Hendrix v. Dep't Stores Nat'l Bank , 177 So.3d 288, 290 (Fla. 4th DCA 2015) ; Vercosa , 174 So.3d at 552 ; Shiver v. Wharton , 9 So.3d 687, 690 (Fla. 4th DCA 2009) ; Tannenbaum , 133 So.3d at 1061 ; Viets v. Am. Recruiters Enters., Inc. , 922 So.2d 1090, 1095 (Fla. 4th DCA 2006).

It is undisputed that the trial court granted summary judgment without a hearing four days after the bank filed its motion.

Florida Rule of Civil Procedure 1.510(c) contemplates a hearing on a summary judgment motion. "The rule does not provide the trial court with discretion to decide whether 'a hearing is required.' " Kozich v. Hartford Ins. Co. of Midwest , 609 So.2d 147, 148 (Fla. 4th DCA 1992). A trial court's failure to conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the due process guarantee of notice and an opportunity to be heard. Id. ("An order granting summary judgment on liability determines a party's right to the relief requested and to deny either party a hearing must be construed as a denial of due process."); accord Greene v. Seigle , 745 So.2d 411 (Fla. 4th DCA 1999) (where trial court granted defendant's motion for summary judgment without a hearing or notice to plaintiff it violated Rule 1.510(c) and plaintiff's due process rights requiring reversal).

State Farm Fire & Cas. Co. v. Lezcano , 22 So.3d 632, 634 (Fla. 3d DCA 2009) (footnote omitted); see also Chiu v. Wells Fargo Bank, N.A. , 242 So.3d 461, 463 (Fla. 3d DCA 2018).

On appeal, the bank argues that due process was satisfied because a summary judgment hearing is not necessarily required. The bank relies on The Florida Bar v. Rapoport , 845 So.2d 874 (Fla. 2003), but that opinion does not support the bank's argument. Rapoport involved the unauthorized practice of law. The Florida Supreme Court recognized this situation is different and expressly declined to consider whether the summary judgment rule always requires a hearing in a civil proceeding if there was adequate notice and opportunity to be heard and the non-movant simply fails to show any material issue in dispute.

The bank also suggests that due process was satisfied because the borrowers should have been aware of the order from the docket and their remedy was to move for rehearing or appeal. Generally, notice after the fact does not satisfy due process. "A motion for rehearing is not a sufficient, meaningful opportunity to be heard. To be fair or meaningful, the opportunity to be heard must be provided 'before rights are decided.' "

Epps v. State , 941 So.2d 1206, 1207 (Fla. 4th DCA 2006) (quoting Peoples Bank of Indian River Cty. v. State, Dep't of Banking & Fin. , 395 So.2d 521, 524 (Fla. 1981) ); see also Viets , 922 So.2d at 1095 ("Generally, due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgment is rendered."). Moreover, even if the docket could provide constructive notice, the docket entry in this case does not correctly reflect the nature of the order. It refers to an order granting a motion for default judgment after the parties had agreed to set aside the default.

Assuming a summary judgment hearing was required, the bank maintains that the borrowers' rule 1.540 motion was still properly denied because the failure to hold a hearing is a mere procedural defect that could make the judgment voidable, but not void, citing Sterling Factors . The bank has not shown that this case is factually similar to Sterling Factors .

In Sterling Factors , the Second District affirmed the denial of a rule 1.540 motion concluding that, although Sterling did not have notice of the summary judgment hearing, it admitted that it had actual notice of the judgment in time to move for rehearing or appeal, and under these circumstances, the judgment was at best voidable, not void. The court distinguished this situation from Shields v. Flinn , 528 So.2d 967 (Fla. 3d DCA 1988), where the defendant had no notice of the trial and did not appear. Sterling Factors , 968 So.2d at 666-67. The Second District found that Sterling's actual knowledge of the judgment and failure to timely pursue available relief for the procedural error precluded relief at any time under rule 1.540(b)(4).

Here, the borrowers made a preliminary showing that their due process rights were violated. The bank has not pointed to any evidence that the borrowers had actual knowledge of the judgment in time to pursue relief other than by a rule 1.540(b)(4) motion. The limited record before this court does not show that the judgment was merely voidable. Because the borrowers' actual knowledge may control whether the summary judgment was merely voidable, we reverse and remand for the trial court to hold an evidentiary hearing to determine when the borrowers learned of the final judgment.

Reversed and remanded for further proceedings .

Levine, Conner and Kuntz, JJ., concur.


author: PER CURIAM.

text:
    Nathaniel WOODARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-779
    District Court of Appeal of Florida, Third District.
    Opinion filed April 25, 2018
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and LINDSEY, JJ.
   PER CURIAM.

See Tennyson v. State, 254 So.3d 510, 517-18, 2018 WL 1734490, at *5-6 (Fla. 3d DCA Apr. 11, 2018) (Affirming the conviction and sentence of Woodard's codefendant because "there is no indication that the trial court abused its discretion when it denied defense counsel's request for impeachment on recross examination, and any possible error would be harmless.").


author: Jay, J. Makar, J., dissenting.

text:
    Barry Edward ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2922
    District Court of Appeal of Florida, First District.
    May 3, 2018 Rehearing Denied December 13, 2018
    Andy Thomas, Public Defender, Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Jay, J.

In this direct criminal appeal, Ellis claims that the trial court erred in denying his motion for judgment of acquittal on the charge of aggravated fleeing or attempting to elude "a law enforcement officer in an authorized law enforcement vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated" pursuant to section 316.1935(3), Florida Statutes (2014). Because the state presented legally sufficient evidence that the agency insignia and other jurisdictional markings were prominently displayed on the law enforcement vehicle in this case, we affirm.

During the midnight shift, Officer Landy of the Pensacola Police Department was flagged down by a convenience store employee who informed Landy that a man had stolen cigarettes and left in a white car headed west on Bayou Street. Landy headed in that direction and, within seconds, came upon a white car stopped at an intersection with no other traffic on the road. Landy initiated a traffic stop by activating the lights on her patrol vehicle.

At trial, Landy described her patrol vehicle as "a Chevy Tahoe, marked police vehicle, all the decals , lights and everything ." (Emphasis added). Landy confirmed that the vehicle had the words "Pensacola Police Department" on it and that it was "clearly " a police vehicle. Officer Spikes arrived at the scene after Landy, and the video from Spikes' body-cam was also admitted into evidence. The video showed "PENSACOLAPOLICE.COM" on the back of Landy's vehicle and "POLICE" along the upper edge of the rear window.

Landy approached the white car and asked the driver, Ellis, for his license, which he provided. However, when Landy asked Ellis to roll down the back-passenger window so that she could speak to the person in the back seat, Ellis snatched his license from Landy's hand and sped away, injuring Landy in the process. Both officers pursued Ellis' vehicle with their police lights and sirens activated. The brief, high-speed chase ended when Ellis turned his vehicle into a dead-end street and abandoned it. Later in the morning, Ellis was taken into custody.

After the state rested, defense counsel moved for a judgment of acquittal on the ground that Officer Landy's testimony was not enough to show that agency insignia were prominently displayed on her vehicle. The trial court denied the motion. Ellis then took the stand. Notably, Ellis testified that before he was approached by Officer Landy, he "was sitting still and the police car ... pulled up behind me." (Emphasis added). After the defense rested, defense counsel renewed the motion for judgment of acquittal, which again was denied by the trial court. The jury returned a verdict finding Ellis guilty as charged.

On appeal, Ellis claims that the trial court erred in denying his motion for judgment of acquittal because the state failed to establish that agency insignia were prominently displayed on Officer Landy's patrol vehicle, citing Slack v. State , 30 So.3d 684 (Fla. 1st DCA 2010). In Slack , this court held that a deputy's testimony that he was driving a "marked patrol car" with "lights on top" did not establish that there were "agency insignia and other jurisdictional markings prominently displayed on the vehicle" so as to sustain a conviction for fleeing or attempting to elude a law enforcement officer. Id. at 687. In noting that not all markings on law enforcement vehicles constituted agency insignia, the court cited the Third District's decision in Gorsuch v. State , 797 So.2d 649, 651 (Fla. 3d DCA 2001), which held that two officers' unmarked vehicles and a third officer's vehicle marked with a fifteen-inch City of Miami seal did not have the agency insignia required by section 316.1935(3). Id .

The facts of this case are distinguishable from those in Slack . Even though Officer Landy stated that she was driving a "marked police vehicle," she supplemented this by testifying that the vehicle had the words "Pensacola Police Department" on it, that it had "all the decals" and "lights[,]" and that it was "clearly a police vehicle[.]" This testimony was confirmed by the video from Officer Spikes' body-cam showing "PENSACOLAPOLICE.COM" and "POLICE" conspicuously exhibited on the back of Landy's Tahoe. Viewed in a light most favorable to the state, this evidence established that agency insignia and other jurisdictional markings were prominently displayed on Officer Landy's vehicle. Accordingly, the trial court properly denied Ellis' motion for judgment of acquittal. See Dupree v. State , 705 So.2d 90, 93 (Fla. 4th DCA 1998) (en banc) ("Generally, on a motion for judgment of acquittal, the court should not grant the motion unless, viewed in a light most favorable to the state, the evidence does not establish the prima facie case of guilt.").

To the extent that the dissent equates "agency insignia"-exclusively-with an agency badge or seal, there is no authority requiring such a narrow interpretation of the statutory language. Notably, the word "insignia" is not defined by the statute, "which means we give the term its plain and ordinary meaning, resorting to dictionaries where necessary and helpful." S.C. v. State , 224 So.3d 249, 250 (Fla. 3d DCA 2017). For accuracy, "a comparative weighing of dictionaries is often necessary." Antonin Scalia & Bryan A. Garner, A Note on the Use of Dictionaries , 16 Green Bag 2d 419, 422 (2013).

The Oxford English Dictionary (Second Edition) defines "insignia" as (1) "badges or distinguishing marks of office or honor"; or (2) "marks or tokens indicative of anything." The Cambridge Dictionary defines "insignia" as "an object or mark which shows that a person belongs to a particular organization or has a particular rank." Webster's New World College Dictionary (Fifth Edition) defines insignia as "badges, emblems, or other distinguishing marks, as of rank, membership, etc." And, the MacMillan Dictionary defines insignia as "a mark on an object that shows who made it, who it belongs to, or what organization it is connected with."

Under any of the above definitions, agency insignia were prominently displayed on Officer Landy's Tahoe insofar as the vehicle was marked to clearly identify it as belonging to the Pensacola Police Department. Specifically, the words "Pensacola Police Department" and "PENSACOLAPOLICE.COM" would qualify as agency insignia. See Mercury Cab Owners' Ass'n v. Jones , 79 So.2d 782, 783 (Fla. 1955) ("Each member cab is painted in distinctive colors (red and yellow) and bears the insignia 'Mercury Cab.' "); Hudson v. State , No. 12-03-00035-CR, 2004 WL 1852965, *2 (Tex. App. Aug. 18, 2004) ("The question here is whether the letters D.P.S. on a hat are an insignia identifying the wearer as a peace officer. We conclude that they are."); Fallin v. State , 93 S.W.3d 394, 396 (Tex. App. 2002) ("We find the phrase 'an insignia of a law enforcement agency,' as used in section 37.12, unambiguously refers to any distinguishing mark that identifies the item as one originating from an official law enforcement agency.") (emphasis added); see also Holiday Inns, Inc. v. Holiday Inn , 645 F.2d 239, 241 (4th Cir. 1981) ("It has also distributed towels, parking lot identification stickers and notices to guests bearing the insignia 'HOLIDAY INN TM.' "); Fabri-Tek Inc. v. Nat'l Labor Relations Bd. , 352 F.2d 577, 580 (8th Cir. 1965) ("In addition to the large and vari-vue buttons described heretofore, there were exhibited on company premises during working time other union insignia, including a woman's blouse that was stenciled on the back with the words 'VOTE I.B.E.W.' in very black 2 1/2-inch letters, and earrings fashioned from customary union buttons."); Hartley v. Suburban Radiologic Consultants, Ltd. , 295 F.R.D. 357, 364 (D. Minn. 2013) ("Apex prints the letters on preprinted letterhead bearing the insignia 'CT Inc. Services.' "); Amerisource Corp. v. Rx USA Int'l, Inc., No. 02-CV-2514 (JMA), 2010 WL 2730748, at *2 (E.D.N.Y. July 6, 2010) ("The Drucker fax header versions also bear an 'rxusal' insignia in the upper left corner, which according to Amerisource's computer forensics expert, indicates that they were printed from a computer on the RxUSA network."); Allmond v. Bank of Am ., No. 3:07-cv-186-J-33JRK, 2008 WL 205320, at *4 n.3 (M.D. Fla. Jan. 23, 2008) ("In the upper, left-hand corner, the document bears the insignia 'pps.' .... This Court assumes that this is a mark used by Early Warning when it did business as Primary Payment Systems."); Wood v. United States , 125 F.Supp. 42, 46 (S.D.N.Y. 1954) ("At 0633 it returned with a capsized lifeboat which was hoisted to the side of the ship and upon inspection was found to bear the insignia 'LT 170'-the designation assigned to The Bucentaur by the British Registry Office."); People v. Anderson , 221 Cal.App.3d 331, 270 Cal. Rptr. 516, 519 (1990) ("Valles and Anderson were dressed in blue jumpsuits bearing the insignia 'A.T.F.' on the back and wore what appeared to be police badges on their chests.").

Finally, even assuming that the phrase "agency insignia" only means agency badges or seals-an assumption contrary to the above definitions and caselaw-there was nothing to preclude the state from proving the existence of such insignia by circumstantial evidence. See State v. Castillo , 877 So.2d 690, 693 (Fla. 2004) (observing that it has long been established that circumstantial evidence is competent to establish the elements of a crime); State v. Surin , 920 So.2d 1162, 1164 (Fla. 3d DCA 2006) ("[T]he Florida Supreme Court has long accepted that the State may prove an essential element of an offense through circumstantial evidence ..., and one Florida court has affirmed a conviction where the age of the victim-an essential element of the crime of child abuse-was proven by circumstantial evidence alone."). Although there was no photographic evidence of an agency seal or badge on Officer Landy's patrol vehicle, Landy's testimony, the body-cam video, and Ellis' testimony constituted circumstantial evidence from which a jury could have concluded-beyond a reasonable doubt-that Landy's vehicle was marked with the type of agency insignia commonly found on law enforcement vehicles. Accordingly, we affirm.

AFFIRMED .

Roberts, J., concurs; Makar, J., dissents with opinion.

Makar, J., dissenting.

Florida law penalizes those who willfully flee or attempt to elude a " law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated," and more so if the eluder drives at a high speed or with wanton disregard for the safety of others. § 316.1935(2) & (3), Fla. Stat. (2017) (third degree felony for the former, second degree for the latter). Whether sufficient evidence was presented that the vehicle used by law enforcement officers in their pursuit of Barry Edward Ellis had "agency insignia and other jurisdictional markings prominently displayed on the vehicle" is the question posed.

A convenience store employee waved down and told Officer Maria Landy, a twenty-year veteran of the Pensacola Police Department working the midnight shift, that a male had stolen cigarettes and left in a white car headed west on Bayou Boulevard. Officer Landy headed in that direction and within seconds came upon a red light at 9th Avenue, where a "little white car" was stopped-it being the only vehicle in sight at that late hour. Ellis was driving and a second occupant could be seen in the front passenger seat. A second police officer arrived almost immediately, informing Officer Landy that a third occupant-who was difficult to see-was in the back seat. Ellis had turned the car off at Officer Landy's direction, but cranked it back up when she asked him to lower the back-seat windows. Ellis then sped away, injuring Officer Landy in the process. Both officers took pursuit with their police lights flashing and sirens on. The chase-though brief-was over the speed limit and resulted in Ellis's vehicle turning into a dead-end street and being abandoned. Ellis was taken into custody soon thereafter.

At trial, after the close of the State's case, Ellis moved for a judgment of acquittal on the basis that the State failed to present sufficient evidence that Officer Landy's vehicle had "agency insignia and other jurisdictional markings prominently displayed" on it. His motion was denied, and denied again at the conclusion of the case. Ellis was convicted of a second-degree felony under section 316.1935(3)(a), Florida Statutes. Ellis appeals, again claiming the lack of evidence of "agency insignia" on the police vehicle requires reversal of his conviction under subsection (3)(a) (though, as mentioned below, on remand he would be re-sentenced to a violation under subsection (1) ).

Analysis begins, and ultimately ends, with the statutory language the Florida Legislature has used to define criminality for fleeing or attempting to elude law enforcement officers. Violations and penalties are based on specific statutorily-defined scenarios. Penalties are severe, ranging from third to second degree felonies, plus mandatory revocation of drivers' licenses and forfeiture of motor vehicles, if involved in the flight. § 316.1935(1) - (7), Fla. Stat. (entitled "Fleeing or attempting to elude a law enforcement officer; aggravated fleeing or eluding.").

The basic fleeing/eluding charge in subsection (1) of the statute does not require that the officer be in a law enforcement vehicle or that pursuit by such vehicle occur. Instead, it makes it unlawful "for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order" or "having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer[.]" § 316.1935(1), Fla. Stat.

In contrast, subsections (2) and (3) limit themselves to fleeing/eluding law enforcement officers who are physically inside a specifically-defined subset of police vehicles. Under subsection (2), it is unlawful for a person to flee or attempt to elude a law enforcement officer while that officer is "in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated," which is a third degree felony. Id. § 316.1935(2). Similarly, subsection (3)(a)-under which Ellis was charged-makes it unlawful to engage in the criminal conduct defined in subsection (2), if the person "[d]rives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property[.]" Id. § 316.1935(3)(a). Such conduct is punishable as a second degree felony. A person who knowingly flees a police officer violates subsection (1), but not subsections (2) or (3), which require proof that the officer is in the statutorily-defined law enforcement vehicle.

In this subsection (3) case, no doubt exists that Officer Landy was in a law enforcement patrol vehicle, that Ellis fled at high speed and dangerously from her lawful authority, and that the pursuit thereafter involved "siren and lights activated" on the officer's vehicle. She testified that she was in a "marked police vehicle" with "all the decals, lights and everything" but she did not describe what the decals were, what they said, where they were located, or their size. She confirmed that the words "Pensacola Police Department" were on the vehicle, but did not say where, how large the letters were, or whether the words were part of or considered the Department's agency insignia. No picture of the vehicle was put into evidence. Though not relied upon by the State on appeal, body-cam video-shown to the jury-fleetingly shows that decals of "PENSACOLAPOLICE.COM" and "POLICE" were displayed on the rear of Officer Landy's vehicle and along the rear window's upper edge, respectively. At best, these general references fall within the common understanding of "jurisdictional markings," which define an agency's geographic domain, such as "Pensacola Police Department."

No effort was made below or on appeal to establish that either of these letter decals was an "agency insignia," a phrase not defined by statute, but best understood contextually as an official governmental symbol of criminal justice authority-typically a shield or badge-like emblem-that only authorized law enforcement officers may use. The popularity of police insignias is reflected in a vibrant and long-established marketplace where collectors buy/sell patches and badges nationally and internationally. It has fostered the establishment of innumerable police insignia collectors' associations. "Insignia" alone-as reflected by its many and assorted dictionary definitions -is a much broader concept and different from "agency insignia," which has a narrower and commonly-understood meaning in the context of law enforcement patrol vehicles: badges and shields reflecting official police authority.

An "agency insignia" is distinct from, but often accompanies and complements, the requisite "jurisdictional markings." Here's a common example of both an "agency insignia" (the official badge-like emblem) and jurisdictional markings ("Sheriff Manatee County") on a law enforcement patrol vehicle:

This contrasts with what we have in this case, which is, at best, only the "jurisdictional markings" of the Pensacola Police Department without an official agency insignia:

The statutory requirement of a prominently displayed agency insignia provides greater assurance to the general public that persons operating such vehicles are real police officers with the authority to make official stops, thereby increasing the punishment against those who willfully flee; it also dovetails with the laws punishing those who impersonate police officers and vehicles to facilitate crimes. See also §§ 843.08-.085, Fla. Stat. (making unlawful impersonation of officers, use of blue lights, and use of badges and other indicia of authority). Agency insignia and jurisdictional markings are separate and distinct statutory requirements; both must be proven to establish that Ellis violated subsection (3).

On this point, Florida appellate courts have taken a generally unified approach as to whether evidence is legally sufficient to support a guilty verdict under subsections (2) or (3), both of which utilize the "agency insignia" language. Excepting one Fourth District case, every district court decision has taken a strict approach, holding the State to its evidentiary burden of proving that an officer's vehicle has "agency insignia and other jurisdictional markings prominently displayed." The exception, discussed below, takes a different and insupportable approach, concluding that an offender may violate subsection (2) when an offender knowingly flees a law enforcement vehicle, even if proof of all the requisite markings is lacking.

As to the majority approach, in Gorsuch v. State , 797 So.2d 649 (Fla. 3d DCA 2001), the Third District held that a vehicle marked with a fifteen-inch "City of Miami seal" on the door was insufficient to satisfy the statutory language that the pursuing officer was in "an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings[.]" Id. at 650. The defendant fled recklessly from officers, all of whom were wearing t-shirts with police insignia at the time of the initial stop arising from narcotics surveillance. Two officers in the pursuit drove unmarked vehicles and the third had the vehicle with the city seal. Because there "was no evidence ... that any of the vehicles had an insignia as required by subsection 316.1935(3)," and no demonstration that sirens had been operated during the flight, the conviction under subsection (3)(a) was reversed and corrected to a violation of subsection (1).

This Court followed Gorsuch 's reasoning in Slack v. State , 30 So.3d 684 (Fla. 1st DCA 2010), which held that the State had failed to present evidence of prominently displayed agency insignia and jurisdictional markings. The officer in Slack "testified he was driving a 'marked patrol car, lights on top,' and was wearing a uniform at the time. He testified that, to make the [suspect vehicle] stop, he 'engaged' his exterior lights and activated his siren." Id. at 686. This testimony was not enough.

While [the officer] testified he was driving a "marked patrol car" with "lights on top" and that he activated his lights and siren, there was no evidence of "agency insignia and other jurisdictional markings prominently displayed on the vehicle." ... That not all markings on law enforcement vehicles constitute agency insignia was made clear in Gorsuch. By neglecting to adduce any evidence that [the officer's] vehicle had agency insignia or other jurisdictional markings, the state failed to make out a prima facie case of fleeing or attempting to elude a law enforcement officer ... and the trial court erred in denying Mr. Slack's motion for judgment of acquittal.

Id. at 687. This Court noted that the trial judge in Slack (like the trial judge here) denied the motion for judgment of acquittal based, in part, by presuming that the vehicle had to be marked in a particular way. Id. ("[T]he trial judge denied the motion for judgment of acquittal, reasoning: 'He did refer it was a marked patrol vehicle, and he did identify himself as a member of the sheriff's department. I know by Florida law their patrol vehicles must be marked in a certain scheme as required by Florida law .' ") (emphasis added). Neither the evidence presented nor the trial court's presumption as to the vehicle's markings, however, was deemed sufficient to satisfy the statutory requirement of a prominently displayed agency insignia and markings.

Similarly, in Jackson v. State , 818 So.2d 539 (Fla. 2d DCA 2002), the Second District held that the lack of evidence that a police vehicle's markings were "prominently displayed" justifies vacating a conviction under subsection (2).

Here, the State presented [the officer's] testimony that his overhead lights and siren were activated, but there was no testimony that his vehicle was otherwise marked. The deputy [who observed the officer's patrol car] recounted that he observed the Lake Alfred patrol car. But he did not say that he recognized it as such because of its markings, or even that it was marked, or that he even knew the car was from the Lake Alfred Police Department before he stopped to assist. In the absence of proof that the car was prominently marked, the evidence was insufficient to support a conviction for felony fleeing under section 316.1935(2).

Id. at 542. Of note, the mere fact that another officer observed the patrol car was insufficient to create an inference that it was appropriately marked as required under sections 316.1935(2) - (3). See also Hanson v. State , 92 So.3d 288 (Fla. 5th DCA 2012) (finding evidence was legally insufficient to establish the requisite "prominently displayed" agency insignia or markings); Erskine v. State , 23 So.3d 1207, 1209 (Fla. 3d DCA 2009) (finding "no evidence that the police car involved in the chase in question had agency insignia and other jurisdictional markings prominently displayed").

Our decision in Slack mirrors the situation here. Officer Landy's testimony established only that her vehicle was "marked" with "decals" and the words "Police" and "Pensacola Police Department." But Slack held that generic statements ("marked" and "decals") fall short of what is legally-sufficient, and Gorsuch , adopted by Slack , held that general jurisdictional markings such as "City of Miami" are likewise insufficient. Slack specifically warned that evidence of generalized markings on police vehicles generally do not meet the statutory requirements because "not all markings on law enforcement vehicles constitute agency insignia" as the law requires. 30 So.3d at 687. For the same reason, that Officer Landy said it was "clearly a police vehicle" does not mean it had the "agency insignia and other jurisdictional markings prominently displayed," as required. Agency insignia and jurisdictional markings are separate and independent requirements under the statute (and the jury instructions). Nothing in the evidentiary record presented to the jury, however, provides a basis to conclude that an agency insignia existed-let alone that it was prominently displayed.

Like that faced by the trial judges here and in Slack , there is a judicial temptation to presume that Officer Landy's vehicle must have had an agency insignia and that it was "prominently displayed" on her vehicle. But patrol vehicles may have jurisdictional markings (like the "City of Miami" seal in Gorsuch ) without the requisite agency insignia. The judicial role, as defined in Slack and related cases, and as applied here, requires that this evidentiary gap not be filled with an assumption or inference-particularly when the assumption or inference may be incorrect and the statutory requirement can be easily proven with a photo of the agency insignia on the vehicle or via answers to questions about the description, size, and placement of the agency insignia and markings.

In its appellate brief, the State sidesteps the agency insignia issue, saying the most important fact is that Ellis knew he was fleeing a police car, which is insufficient under Slack and related precedents to support a conviction under subsections (2) or (3). In effect, the State's position is aligned with a Fourth District case, Dumais v. State , 40 So.3d 850 (Fla. 4th DCA 2010), which addressed whether testimony from an officer that his police vehicle was "marked," combined with the defendant knowing he was fleeing a police officer, was sufficient to sustain a conviction under subsection (2).

Viewing the officers' references to "marked unit" and "marked police vehicle" in the light most favorable to the state, in conjunction with the defendant's admission that he knew he was fleeing from the police, we conclude that competent, substantial evidence supports the defendant's conviction for aggravated fleeing and eluding.
The defendant relies upon three cases in which our sister courts reversed convictions for aggravated fleeing and eluding because the state did not prove the "agency insignia and other jurisdictional markings" element: Gorsuch v. State , 797 So.2d 649, 651 (Fla. 3d DCA 2001) ; Jackson v. State , 818 So.2d 539, 542 (Fla. 2d DCA 2002) ; and Slack v. State , 30 So.3d 684, 687 (Fla. 1st DCA 2010). However, none of those cases involved a defendant admitting that he knew he was fleeing from the police, as occurred here. We find that fact significant. The purpose of requiring the state to prove that "the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated" is to guarantee that the defendant "[knew] he had been directed to stop by a duly authorized law enforcement officer [and] willfully refused or failed to stop ." Fla. Std. Jury Instr. (Crim.) 28.7 (2007). The defendant's admission here provides that guarantee. We leave for another day our consideration of whether reference to a "marked" vehicle, standing alone, is sufficient to prove the "agency insignia and other jurisdictional markings" element.

Id. at 852-53 (Fla. 4th DCA 2010) (emphasis added). A concurring opinion, which rejected the approach taken in Gorsuch , Jackson , and Slack , found that the officer's testimony satisfied the statute.

The italicized language from Dumais says that a fleeing offender's admission that he was pursued by law enforcement officers negates the need to fulfill the statutory requirement of "prominently displayed" agency insignia and markings. But that is insufficient under the language of the statute and all other caselaw. Such an admission is enough to meet the requirements of subsection (1), which penalizes willfully-fleeing offenders who know they have "been ordered to stop such vehicle by a duly authorized law enforcement officer," yet flee anyway. § 316.1935(1), Fla. Stat. But the Legislature created a different type of crime in subsections (2) and (3), which add the requirement that willful flight be from an "authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated[.]" Id. §§ 316.1935(2) & (3). Offenders flee police officers in many different ways, only one of which involves the distinguishing element of these subsections: flight from a law enforcement vehicle "with agency insignia and other jurisdictional markings prominently displayed" on it. This language must be viewed, as do the standard jury instructions, as requiring adequate proof of "prominently displayed" agency insignia and markings as an independent element of the offense. That an offender knew he was fleeing a law enforcement officer does not satisfy this element; nor does evidence that a vehicle was marked, absent additional evidence that the requisite agency insignia and jurisdictional markings were prominently displayed. Ellis's testimony that he knew Officer Landy was a legitimate police officer, and that his flight from her vehicle was willful, is no substitute for agency insignia and jurisdictional markings in accordance with the statute. Affirming Ellis's conviction under subsection (3) is consistent with the Fourth District's decision (and concurrence) in Dumais , but it is contrary to our precedent in Slack .

The State failed to meet its evidentiary burden to show that Officer Landy's patrol vehicle had "prominently displayed" "agency insignia" as required by the statute, such that reversal and a remand for entry of judgment for the lesser-included offense under subsection (1) is proper. Slack , 30 So.3d at 688.

      Affirmance of the trial court's denial of Ellis's motion to suppress is proper, a minimally sufficient basis for the initial investigatory stop existed based upon these and other related facts. Moreover, any causal link of illegality from the stop was broken when Ellis fled and injured Officer Landy. See United States v. Bailey , 691 F.2d 1009, 1013 (11th Cir. 1982) (finding flight from police that amounts to a new, distinct crime purges initial police illegality); see also Tims v. State , 204 So.3d 536 (Fla. 1st DCA 2016) (finding that "fruit of the poisonous tree" doctrine does not "immunize a defendant from arrest for new crimes" committed during illegal searches, else a defendant would have "an intolerable carte blanche to commit further criminal acts") (quoting Bailey , 691 F.2d at 1017 ).

      One example is the Police Insignia Collectors Association of Great Britain, which has an American following and a page devoted to United States police insignias, which are unvaryingly shields and badges. See http://www.pica.co.uk/america_page.html (last visited April 2, 2018). Numerous U.S.-based associations also exist, though focused more generally on police memorabilia including badges, emblems and other police insignia.

      United States v. Costello , 666 F.3d 1040, 1043-44 (7th Cir. 2012) ("[D]ictionaries must be used as sources of statutory meaning only with great caution. ... Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings."); see also Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation , 17 Harv. J.L. & Public Policy 61, 67 (1994) ("In interesting cases, meaning is not 'plain'; it must be imputed; and the choice among meanings must have a footing more solid that a dictionary-which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.").

      In another case, the court reversed a conviction, without discussion, based on inadequate evidence of the required markings. Sanner v. State , 63 So.3d 934 (Fla. 4th DCA 2011) ("We agree that the state failed to put on proof of this statutory element, requiring reversal.").

      Dumais , 40 So.3d at 853 (Stevenson, J., concurring in result) ("I would find that the testimony of [the officer] that (1) the attempted stop occurred in Fort Lauderdale, (2) while he was on duty as a police officer with the City of Fort Lauderdale Police Department, (3) in uniform, (4) on road patrol assignment, and (5) driving a 'marked unit,' was more than enough to satisfy the statute's requirement that the vehicle was 'an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed.' ").

      See Fla. Std. Jury Instr. (Crim.) 28.8 (Fleeing To Elude A Law Enforcement Officer; Siren and Lights Activated with High Speed or Reckless Driving):
      To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following four elements beyond a reasonable doubt:
      1. (Defendant) was operating a vehicle upon a street or highway in Florida.
      2. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer.
      3. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.
      4. During the course of the fleeing or the attempt to elude, (defendant) drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property.
      (Emphasis added).

      Williams v. State , 200 Md.App. 73, 24 A.3d 210, 234 (Md. Ct. Spec. App. 2011) ("To the extent the State contends that the testimony of defense witness, Sullivan, confirmed the State's point that appellant knew he was being pursued by a police vehicle, this is of no significance, as we, like other Courts, observe that the State bears the burden to prove all elements of an offense beyond a reasonable doubt.") (surveying the law of seven states, including Florida, on the issue of markings on police vehicles).


text:
    Alvatina FLUCKER, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D17-3579
    District Court of Appeal of Florida, First District.
    June 28, 2018 Rehearing Denied December 13, 2018
    Alvatina Flucker, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied on the merits.

Wetherell, Rowe, and Winokur, JJ., concur.


author: B.L. Thomas, C.J. Wolf, J., dissenting.

text:
    Kraig Alexander WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-731
    District Court of Appeal of Florida, First District.
    August 16, 2018 Rehearing Denied December 13, 2018
    Andy Thomas, Public Defender, M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges the trial court's denial of his cause challenge of Juror Gilbreath, who once worked as a prosecutor for the state attorney's office and whose husband is an investigator for that office. We affirm.

Facts

Appellant was charged by information with possession of oxycodone, morphine, heroin, cocaine, and cannabis, and was charged with knowingly driving while license suspended or revoked. During voir dire before trial, prospective juror Gilbreath stated that she had been an attorney for thirty-seven years and that her husband worked for the state attorney's office. In response to questions from the State, Gilbreath stated she currently worked as a family law attorney, was a prosecutor for eight years in the state attorney's office, followed by criminal defense work for two or three years. Gilbreath also stated that her husband is an investigator in the state attorney's office. Gilbreath stated that nothing about her experience as a prosecutor or her husband's employment would affect her ability to be fair and impartial.

Appellant moved to strike Gilbreath for cause, based on her past relationship with the state attorney's office and her husband's current employment with the state attorney's office. The State argued that Gilbreath indicated she could be fair and impartial, and additionally argued that she had also been a criminal defense attorney for two or three years. The trial court denied Appellant's motion to strike. Because Appellant had already exhausted six peremptory strikes, Appellant requested an additional strike, which the trial court denied, stating there was no basis.

Before proceeding to trial, Appellant objected to the jury panel being sworn, based on the court's denial of the cause challenge of Juror Gilbreath. The State again argued Gilbreath's impartiality and her previous criminal defense work. The trial court found there was no reasonable doubt that Gilbreath could be fair and impartial, adding that he had known her for thirty-seven years, that no one challenged her unequivocal statements in voir dire that she could be fair and impartial, and that she had been a well-respected attorney in Jacksonville for many years.

Analysis

"The standard of review of a trial court's ruling on a cause challenge is one of abuse of discretion." Ranglin v. State , 55 So.3d 744, 746 (Fla. 4th DCA 2011) (citing Singleton v. State , 783 So.2d 970, 973 (Fla. 2001) ). "The trial court has broad discretion in determining whether to grant a challenge for cause, and the decision will not be overturned on appeal absent manifest error." Kopsho v. State , 959 So.2d 168, 170 (Fla. 2007).

"The test for determining juror competency is whether the juror 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." Busby v. State , 894 So.2d 88, 95 (Fla. 2004). "Where the record demonstrates a reasonable doubt about a juror's ability to be impartial, the trial court abused its discretion in denying the cause challenge." Carratelli v. State , 961 So.2d 312, 319 (Fla. 2007).

The Florida Supreme Court has repeatedly rejected the argument that "a law enforcement position inherently creates a disability to serve as a fair and impartial juror." State v. Williams , 465 So.2d 1229, 1230 (Fla. 1985). A law enforcement connection, standing alone, is generally not enough to render a potential juror partial to the State. See, e.g. Busby , 894 So.2d at 95 (stating "[t]his Court has consistently held that the mere fact that someone is a correctional officer is not per se grounds for a cause challenge"); see also Blake v. State , 110 So.3d 534, 535 (Fla. 1st DCA 2013) (holding it was error to strike a potential juror who was engaged to a public defender in a different circuit); Livingston v. State , 512 So.2d 223, 224 (Fla. 4th DCA 1987) (holding trial court did not err "in disallowing appellant's challenge to the husband of a former secretary in the state attorney's office, after he had run ou[t] of peremptory challenges").

Reversible error has been found in failing to excuse potential jurors for cause who had connections to law enforcement and made equivocal statements indicating that the connection may affect their ability to be impartial. See Williams v. State , 638 So.2d 976, 977-978 (Fla. 1994) (holding juror who had contacts with U.S. Attorney's Office, stated that he had "deep feelings in this kind of case," and made equivocal statements that "I hope that I can" be impartial and "I'll be impartial because that's my character" should have been stricken for cause); Jefferson v. State , 489 So.2d 211, 212 (Fla. 3d DCA 1986) (finding error in failing to excuse juror for cause who repeatedly made equivocal remarks about whether her husband's career in law enforcement would affect her ability to be impartial).

Appellant cites cases from the Third and Fourth Districts where jurors' employment with the state attorney's office was grounds for reversal. In Bethel v. State , the Fourth District held that a juror who was currently working as an assistant state attorney for the same state attorney's office that was currently prosecuting the case should have been stricken for cause. 122 So.3d 944, 949 (Fla. 4th DCA 2013). Similarly, in Denson v. State , the Fourth District found reversible error in a trial court's failure to strike for cause a juror who currently was an assistant state attorney and was the supervisor of the assistant state attorney who was trying the case. 609 So.2d 627, 628 (Fla. 4th DCA 1992). And in Henry v. State , the defendant challenged a potential juror for cause who currently worked as a legal secretary for the state attorney's office. 586 So.2d 1335, 1336 (Fla. 3d DCA 1991). The potential juror gave equivocal answers to questions about her impartiality, saying "I don't think so" when the trial court asked if her working in the state attorney's office would affect her impartiality. Id. The Third District held that the juror's "employment at the state attorney's office does not provide an inherent reason to preclude her service on the jury," but her employment created some doubt that was not relieved by her equivocal responses. Id. at 1337. The cases above are distinguishable from the present case, however, because in each of the above-cited cases, the juror in question was currently employed by the state attorney's office, and had some connection to the attorney trying the case or was related to someone who participated in the trial.

Here, Juror Gilbreath began her career by working for the state attorney's office for eight years, but afterward moved to criminal defense work for two to three years, and has since been working in family law for the past twenty-six years. Gilbreath's husband worked as an investigator for the state attorney's office, but did not participate in the trial. Juror Gilbreath stated unequivocally that her former employment and her husband's current employment would not affect her ability to be impartial. Conversely, Henry held that a connection to the state attorney's office, on its own, was not enough to establish the lack of impartiality of a juror; rather, the connection, coupled with equivocal statements about impartiality, rendered a juror partial to the State. 586 So.2d at 1337.

Juror Gilbreath's employment with the state attorney's office nearly twenty-seven years earlier, and her husband's employment as an investigator with the state attorney's office, standing on its own, does not establish that Juror Gilbreath was partial to the State. Williams , 465 So.2d at 1230-31. Further, Gilbreath's unequivocal statements that she would not be biased by any connections to the state attorney's office were sufficient to remove any reasonable doubt as to her impartiality.

Appellant also argues that the court abandoned its role as a neutral arbiter by stating that he knew Juror Gilbreath and that she had been a respected attorney for many years. Appellant cites Jones v. State , 54 So.3d 503 (Fla. 1st DCA 2010), in which the trial judge suggested a line of questioning to the prosecutor. This court noted that the judge's actions were "ill-advised," but found that the actions did not constitute fundamental error. Id. at 505-06. Here, the trial court's comments that Juror Gilbreath was a well-respected attorney are not as suggestive as the comments in Jones , which this court ultimately held were not in error; thus, there was no error here, and the trial court did not abuse its discretion in denying Appellant's cause challenge to Juror Gilbreath.

We affirm without comment the trial court's denial of Appellant's motion for judgment of acquittal.

AFFIRMED .

Ray, J., concurs; Wolf, J., dissents with opinion.

Wolf, J., dissenting.

I would reverse because appellant's challenge for cause of juror Gilbreath should have been granted, and the trial court impermissibly utilized its own personal knowledge of the prospective juror to determine lack of bias. The prospective juror's husband is an investigator in the office that is prosecuting this criminal case. Due to the special relationship between spouses and the husband's conflicting employment related to this particular case, an appearance of unfairness and partiality was created. This appearance of unfairness was further bolstered by the judge effectively becoming a witness in support of the juror's ability to be impartial. A judge's personal knowledge concerning a prospective juror does not overcome the appearance of unfairness in this proceeding and cannot be utilized in any manner in the judge's decision to deny a challenge for cause.

During the voir dire, appellant attempted to excuse juror Gilbreath for cause. The trial court denied the motion. The defense, which had used all its peremptory challenges, requested an additional one. The court denied this request.

On the day of trial, appellant objected to the jury panel being sworn due to the denied cause challenge for juror Gilbreath:

[DEFENSE COUNSEL]: Your Honor, we would object to the jury panel being sworn based on our denied cause challenge for Juror No. 16, Miss Gilbreath. As she testified during voir dire, her husband is currently employed by the State Attorney's Office, which is the agency that's prosecuting [appellant]. She receives family income from the agency that's prosecuting [appellant]. We'd ask that she be stricken and possibly replaced with the alternate juror.
THE COURT: Mr. Milo?
[PROSECUTOR]: Judge, we would rely on previous argument from yesterday. She indicated that she would be fair and impartial, and she has also been a criminal defense attorney. And she was actually a criminal defense attorney after she was employed with the State Attorney's Office.
THE COURT: Well, I'll find that there, in my mind, is absolutely no reasonable doubt that she can be fair and impartial. I happen to know the woman.

(Emphasis added).

The test for whether an individual should be excused for cause is whether a juror "can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court." State v. Williams , 465 So.2d 1229, 1231 (Fla. 1985) (quoting Lusk v. State , 446 So.2d 1038, 1041 (Fla. 1984) ). While the test initially appears to be a solely subjective one concerning the ability of a particular juror to render an impartial verdict, certain relationships a prospective juror has with people who are connected to the case being tried create such an objective appearance of partiality that challenges for cause should be granted. Polynice v. State , 568 So.2d 1346 (Fla. 4th DCA 1990). "In order to satisfy the appearance of justice, a sworn jury should not include as its foreman, the step father of an officer who testified in the case." Id. at 1347 (emphasis added). Our justice system needs not only to be fair but also to appear fair to the public at large. In Denson v. State , 609 So.2d 627, 629 (Fla. 4th DCA 1992), the court stated:

Not only for the reasons cited above but also for the integrity of the judicial process and the guarantee of the defendant's constitutional right to trial by a fair and impartial jury, we hold that it is error to fail to excuse from jury service an assistant state attorney from the very office charged with prosecuting a defendant.

(Emphasis added).

In analyzing whether the appearance of integrity in the judicial system is met, certain factors must be evaluated, including the connection of a prospective juror or the person with a close relationship with that juror with a particular case.

Thus, a person's employment or status will not necessarily require exclusion if there is no connection with a particular case. See, e.g. , Williams , 465 So.2d at 1230-31 (holding a juror's employment as a corrections officer did not necessarily require exclusion from jury for battery on a corrections officer because there was no showing of any connection with a particular case).

Where, however, an extremely close relationship exists between the prospective juror and a person with a connection to the case being prosecuted, disqualification is required. See Bethel v. State , 122 So.3d 944 (Fla. 4th DCA 2013) (holding a potential juror who was an assistant state attorney in the office prosecuting the case should have been disqualified for cause); Henry v. State , 586 So.2d 1335 (Fla. 3d DCA 1991) (holding reversal was required where a legal secretary in the state attorney's office that was handling the case was not disqualified for cause); Polynice , 568 So.2d at 1347 (holding disqualification was required where juror's stepson was one of the State's witnesses).

While there is no case directly on point with the facts of the instant case, the perceived integrity of the criminal justice system requires reversal in this case.

The relationship between the juror and the state attorney employee could not have been any closer, wife and husband. The juror's husband was an investigator for the state attorney prosecuting this case. While an investigator is not an attorney in the prosecutor's office, the close relationship required between attorneys and their investigators and the important role that investigators play in the prosecution of cases is undeniable. Clearly, the relationship is as important as the one established in Henry , which required disqualification.

The bottom line is that we should not seat a juror where there is a reasonable perception that the juror's verdict may be based on not wanting to upset her husband or his co-workers. Even if automatic disqualification is not required, mere assurances of impartiality should not be sufficient to allow a juror with close connections to the state attorney's office prosecuting the case to serve on a jury. See Denson , 609 So.2d at 628-29. As held in Ortiz v. State , 543 So.2d 377 (Fla. 3d DCA 1989), under circumstances where partiality can easily be inferred, there should be a strong showing of no partiality prior to allowing a juror to serve.

The record here does not indicate such a showing. In fact, the trial judge, at least in part, made his determination that the juror could be impartial on non-record evidence - his own personal knowledge of the juror. Determinations of this type should be made on record evidence that can be challenged by the parties.

Appellant should be granted a new trial.