text:
    Dara COOLEY, Appellant, v. Christopher COOLEY, Appellee.
    Case No. 2D16-5614
    District Court of Appeal of Florida, Second District.
    Opinion filed August 24, 2018.
    Ceci Culpepper Berman and Joseph T. Eagleton of Brannock & Humphries, Tampa, for Appellant.
    Paul S. Maney of Paul S. Maney, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Dara Cooley (the Former Wife) appeals a final judgment of dissolution of marriage in her short-term marriage to Christopher Cooley (the Former Husband) and challenges the unequal equitable distribution of assets and liabilities. We affirm the final judgment to the extent that it dissolves the marriage. We reverse the unequal equitable distribution scheme and remand for the trial court to effectuate an equal equitable distribution.

The parties were married on August 3, 2008, and separated on December 1, 2012. No children were born of the marriage. The Former Wife filed a petition for dissolution of marriage on September 26, 2014, and the Former Husband subsequently filed a counterpetition. In addition to requesting an equitable distribution of marital assets and liabilities, both the petition and counterpetition sought partition of the marital home, requesting that the property be sold and that the proceeds be divided equally.

The case was tried in September 2015. The issue before the trial court was an equitable distribution of the parties' marital assets and liabilities. The Former Wife sought an equal distribution while the Former Husband sought an unequal distribution in his favor.

Prior to the marriage, the Former Wife worked as a teacher, earning approximately $40,000 per year. She enrolled in law school in January 2008, about eight months before the parties married. The parties had lived together before the marriage, and the Former Husband supported the Former Wife's decision to attend law school, viewing it as a long-term investment for their future. In October 2009, the parties purchased the marital home for $181,649.

The parties' income decreased significantly while the Former Wife was attending law school. At that time the Former Husband had a "good, stable job" with the county and was earning about $50,000 per year, although he testified that he put on hold "any other advancement or risk-taking" that would have furthered his career while the Former Wife was in law school. The Former Wife earned some income while she was a law student, including approximately $30,000 one year as a summer associate with a law firm.

During the marriage, the Former Wife took out student loans of $76,400 and the parties used joint funds to pay off the Former Husband's student loans that he incurred prior to the marriage. The parties stipulated that as of the date of separation the principal and interest on the Former Wife's student loans was $91,362.11. The Former Wife testified that excess loan funds were deposited into the parties' joint account and were used for living expenses. The Former Husband acknowledged that excess loan funds "probably did go into some regular living expenses."

The Former Wife graduated from law school in December 2010 and was admitted to The Florida Bar in April 2011. She initially took a job as a staff attorney with the circuit court at an annual salary of about $40,000. In July 2012, she took a job with a private law firm, and by the time of trial she had taken a position with another law firm and was earning approximately $100,000 per year. She opened her own bank account just before she moved to her own apartment in August 2012.

In May of 2015, the Former Husband was earning about $64,000 per year. Because he had "worked [his] way up," he had a "great opportunity" to move to a new position that increased his salary to $112,000 per year. He remained in the marital home and paid the expenses associated with the home.

The parties agreed to use the date of separation, December 1, 2012, for valuation of most marital assets and liabilities, though they did not agree as to the date of valuation of the marital home and how appreciation of the home should be allocated. Thus, the primary issue before the court was the distribution of assets and liabilities and whether an unequal distribution would be justified.

In the final judgment entered on September 9, 2016, the trial court assessed the factors in section 61.075, Florida Statutes (2014), and awarded the Former Husband an unequal distribution. Despite the fact that both the credit card debt and the Former Wife's student loan debt were incurred during the marriage, the final judgment made the Former Wife responsible for the entirety of these debts. The trial court valued the home on the date of separation at $175,000, found that it had appreciated from the separation date to the trial date in the amount of $17,000, and determined that the Former Husband was entitled to the full appreciation. The trial court assigned the entire mortgage debt to the Former Husband but gave him credits for payments he made on the mortgage and other home expenses. The final judgment did not address the legal status of the marital home going forward.

Under the equal equitable distribution plan that the Former Wife proposed, the Former Husband would have been required to make an equalizing payment of $81,062.61 to the Former Wife. However, because the trial court awarded the Former Husband an unequal distribution, the court ordered the Former Wife to make "an adjusted equalizing payment" of $11,563.73 to the Former Husband. On appeal, the Former Wife primarily challenges the unequal distribution of marital assets and liabilities.

Our review of the trial court's distribution of marital assets and liabilities is for an abuse of discretion. Witt v. Witt, 74 So.3d 1127, 1129 (Fla. 2d DCA 2011). The equitable distribution statute begins with the premise that the distribution should be equal, see § 61.075(1), but the trial court may make an unequal distribution when proper justification is demonstrated, Rogers v. Rogers, 12 So.3d 288, 291 (Fla. 2d DCA 2009). Section 61.075(1) sets forth factors for the trial court to consider in making this determination, and the court must support its equitable distribution scheme with specific factual findings. See § 61.075(3) ; Witt, 74 So.3d at 1129. The factual findings must be "based on competent substantial evidence with reference to the factors enumerated in subsection (1)." § 61.075(3).

The trial court recited the factors of section 61.075(1) and made various findings. The main factors the court used to support the unequal distribution were the contribution to the marriage by each spouse, the economic circumstances of the parties, the duration of the marriage, and the interruption of personal careers. See § 61.075(1)(a)-(d).

With respect to the contribution to the marriage, the trial court found that the Former Husband supported the Former Wife emotionally and financially in her career pursuit and that he was the primary income source. The fact that the Former Husband was the primary source of income does not support an unequal distribution. When one spouse is the primary wage earner and makes a significant contribution to the marital assets, it "does not justify disparate treatment." Horne v. Horne, 711 So.2d 1310, 1312 (Fla. 1st DCA 1998). Further, it was undisputed that the Former Wife had earnings as a research assistant and one year earned approximately $30,000 as a summer associate at a law firm.

The trial court also found that the Former Husband contributed to the marriage by providing "substantial care for his handicapped sister-in-law while the Wife was in law school." Although the Former Wife does not dispute that the Former Husband helped care for her sister, his testimony was that he cared for his sister-in-law when the Former Wife or her mother was not available. There was no evidence that his assistance affected his career or the parties' financial situation.

With respect to the economic circumstances of the parties, the trial court found that their income significantly decreased when the Former Wife was in law school and again stated that the Former Husband primarily supported the parties. The court found "no demonstrable evidence whether the overage student loan funds were deposited into the joint account." Although specific amounts were not presented to the court, the Former Wife testified that excess student loan money went into the parties' joint account for living expenses, and the Former Husband did not dispute this; rather, he acknowledged that excess amounts "probably did go into some regular living expenses."

The trial court also found that just prior to the separation the Former Wife began to earn a salary significantly higher than she had ever earned and kept those wages to herself by opening her own bank account. The court recognized that the parties agreed to use the separation date to value all marital assets and liabilities other than the home and noted that the Former Husband paid the majority of marital expenses for several months before the separation date and for about three months after separation.

With respect to the duration of the marriage, the trial court recognized that this was a short-term marriage and stated that "a significant amount of debt was incurred"

during the marriage. The parties do not dispute that the student loan debt incurred during the marriage is a marital liability. See Rogers, 12 So.3d at 291. The trial court acknowledged that under the applicable law, "[t]he fact that one party will not receive any benefit from the other party's education because of the dissolution is not a factor to be considered when allocating a marital debt for student loans." See id.; Smith v. Smith, 934 So.2d 636, 641 (Fla. 2d DCA 2006). Yet the court also stated that "[f]or the Husband to now be burdened with such a large amount of debt, from which he did not benefit from the time the debt was incurred, is not equitable."

With respect to interruption of personal careers, the trial court found that the Former Husband delayed pursuing advancement opportunities due to the reduced household income and that the parties chose not to take additional financial risks. But the Former Husband's testimony also showed that he suffered no financial harm. He worked his way up with the county and then had a "great opportunity" with the Port of Tampa. He nearly doubled his salary to $112,000 per year by May of 2015.

The trial court found that there were no allegations of waste or dissipation of martial assets, see § 61.075(1)(i), but the court stated that the Former Wife "failed to account for her expenditures of her income after the filing of the petition." Because the assets and liabilities were valued on the date of separation, this finding is irrelevant to whether an unequal distribution is warranted. Further, under the catch-all factor, see § 61.075(1)(j), the trial court found that after the Former Wife was earning a significant income, she took vacations in the United States "rather than pay down her massive student loan debt" and that she "incurred unnecessary credit card debt." Yet the evidence established that the Former Wife was making payments on the student loan and credit card debt. Moreover, because the parties agreed to value the liabilities, apart from the home, as of the date of separation, any expenses the Former Wife incurred after separation are irrelevant to the equitable distribution. Indeed, the Former Wife points out that she is not asking the Former Husband to pay for her credit card charges made after separation.

To support an unequal distribution, the trial court stated that "a lengthy separation is a legally sufficient justification for a court's disparate treatment of marital assets," quoting Heslop v. Moore, 716 So.2d 276, 278 (Fla. 3d DCA 1998). In Heslop, the appellate court reversed a temporary injunction that prevented lottery winnings from being distributed for the benefit of the former wife. Id. at 277. The court suggested that in a situation where the parties had been separated for over five years and during the separation the former wife had won a $28.52 million lottery prize, the former wife may be entitled to an unequal distribution. See id. at 277-78.

The trial court also relied on Boyle v. Boyle, 30 So.3d 665 (Fla. 5th DCA 2010), and referred to it as factually similar to the present case. There, the parties had been married for twenty-five years and had an almost six-year-long separation in which they had separate households. Id. at 665-66. The trial court used the filing date to identify marital assets but adjusted the distribution to account for the assets and debts accumulated during the separation when the parties lived separate lives. Id.

Here, the parties were married for eight years and separated after four years. The petition for dissolution was filed less than two years after the separation date. Significantly, the parties agreed to use the date of separation for identifying and valuing nearly all of the marital assets and liabilities. Although they did not agree to the valuation date for the marital home, the trial court chose to use the date of separation for that asset as well. Under these circumstances, there was no need for an unequal distribution based on the parties living separate lives when the trial court used the separation date rather than the filing date for valuation.

In reviewing the evidence and the trial court's findings, we conclude that the trial court's decision to make an unequal distribution, particularly one in which the Former Wife is saddled with all the marital student loan and credit card debt, must be reversed. While the trial court addressed various factors in its decision, looked at as a whole, the evidence does not support an unequal equitable distribution. We recognize that the trial court was concerned regarding the Former Wife's student loan debt. Indeed, the trial court correctly recognized that the loans are marital debt. The court also correctly noted that under the law the fact that the Former Husband would not benefit from the Former Wife's education, which was obtained with the assistance of the loans, is not a factor to be considered. Despite this, the court found that it was inequitable for the Former Husband to "be burdened with such a large amount of debt, from which he did not benefit." Because we conclude that an unequal distribution is not supportable, we reverse the unequal distribution and remand for the trial court to effectuate an equal equitable distribution as is contemplated by section 61.075(1).

For purposes of remand, the trial court shall use the values as of the date of separation to which the parties agreed. With respect to the marital home, we note that the Former Husband is entitled to credits for the payments he made of the Former Wife's share of the expenses, that is, one half of the total expenses. He is responsible for the other half of the expenses. Finally, although the parties sought partition of the marital home, the trial court did not address the legal status of the home and must address this on remand.

Affirmed in part, reversed in part, and remanded.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Karissa SENOPOULOS, Appellant, v. Harry C. SENOPOULOS, II,
    In re: Estate of Harry Alexander Senopoulos, III, Appellee.
    No. 1D17-2928
    District Court of Appeal of Florida, First District.
    August 24, 2018
    Bentley M. Fisher, Pensacola, for Appellant.
    Robert J. Powell and James R. Green, Jr., Clark Partington, Pensacola, for Appellee.
   Per Curiam.

Karissa Senopoulos appeals the order appointing her former father-in-law, Harry C. Senopoulos, II, as personal representative for the estate of her late husband, Harry Alexander Senopoulos, III. She argues that as the surviving spouse, she is the rightful personal representative of the estate under § 733.301(1)(b), Florida Statutes. We reverse.

BACKGROUND

Decedent Harry Alexander Senopoulos, III, and Karissa Senopoulos met in college and began a relationship in 2013. They were engaged to be married in 2016, and on May 5, 2016, entered into a prenuptial agreement in which neither waived rights to the other's estate. The couple were married on May 9, 2016. Four days later, on May 13, 2016, the decedent died in his bedroom from a gunshot wound to the head.

On June 21, 2016, the decedent's father filed a Petition for Administration requesting the court appoint him as personal representative of the estate. He has alleged foul-play by Ms. Senopoulos in the death of his son. Ms. Senopoulos filed an objection and counter-petition asserting her right as the surviving spouse to be appointed as personal representative. The trial court held a hearing in February 2017, and entered an order appointing the decedent's father as personal representative in July 2017. In making the appointment, the order used the language of § 733.301(1)(b) 3, concluding that the decedent's father was "entitled to" appointment as the "nearest heir of the Decedent willing to serve as personal representative." Ms. Senopoulos appealed.

ANALYSIS

When an appeal turns on the interpretation of the terms of a statute, the court reviews the legal question de novo. State v. Rand , 209 So.3d 660, 663 (Fla. 1st DCA 2017). In this case, the court interpreted the statute to entitle the decedent's father to appointment as personal representative over Ms. Senopoulos, who is the surviving spouse. This was an error because the decedent's father is not "[t]he heir nearest in degree," and because there is a surviving spouse. § 733.301(1)(b), Fla. Stat. As the "surviving spouse," Ms. Senopoulos ranks first in the statute's order of preference for appointment as the personal representative. § 733.301(1)(b) 1. And so, the statute did not entitle the decedent's father to the appointment.

The decedent's father argues that we can affirm irrespective of the statute's preference for the surviving spouse based on the inherent authority of courts to evaluate a person's fitness for serving as a personal representative. See Padgett v. Estate of Gilbert , 676 So.2d 440, 443 (Fla. 1st DCA 1996) (recognizing the inherent authority of trial courts to consider "a person's character, ability and experience to serve as personal representative and ... refuse to appoint even a person occupying a position of statutory preference who is not specifically disqualified by the statute"). But doing so would ignore the order below. The order stated that decedent's father was appointed based upon his entitlement under the statute, not pursuant to trial court's discretion, or Ms. Senopoulos's lack of fitness to serve. It is not the appellate court's place to assess Ms. Senopoulos's fitness in the first instance, when the trial court hasn't decided this issue. See, e.g. , Frederick v. United Airlines , 688 So.2d 412, 413 (Fla. 1st DCA 1997) (warning against appellate courts usurping the factfinding prerogatives of the lower tribunal).

Accordingly, we reverse the order appointing the decedent's father as personal representative under the statute. And we remand for a determination of the issue based upon either the statutory order of preference, which favors Ms. Senopoulos, or the court's inherent authority to appoint someone else, including perhaps the decedent's father, if statutorily preferred persons lack the qualities and characteristics necessary to act as personal representative. See Padgett , 676 So.2d at 443.

REVERSED and REMANDED .

Wolf, Osterhaus, and Winsor, JJ., concur.


author: Wolf, J.

text:
    Jonathan CHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3860
    District Court of Appeal of Florida, First District.
    August 24, 2018
    Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Wolf, J.

Appellant challenges his convictions and sentences for second-degree felony murder and burglary. He argues the State's circumstantial evidence failed to rebut his reasonable hypothesis of innocence which constituted fundamental error. We find the evidence was sufficient and affirm.

FACTS

Appellant was charged by information with burglary and second-degree felony murder of Tyrone Ward, who was shot by a resident during the commission of the burglary. The State alleged appellant was in actual possession of a firearm for both offenses.

At trial, the State presented evidence that appellant and Tyrone Ward broke into an occupied apartment. A neighbor testified she saw two men working together to kick down her neighbors' front door. They had a black bag at their feet. One of the residents of that apartment hid in his en suite bathroom while his front door was being kicked down. The resident heard someone kick in his bedroom door and search his room. The intruder then opened the bathroom door where the resident was hiding, and the resident shot and killed the intruder. The resident exited his bedroom and saw a second intruder standing on the other side of the apartment. The resident fired a shot in his direction to "hold him back" while the resident fled. He did not see a firearm in either man's hand.

A second resident saw one of the intruders run down the back steps and flee in a red SUV, holding his shoulder. He took a picture of the SUV. Police stopped a vehicle matching the one photographed by the victim. A female was driving. There was blood in the driver's seat and a receipt from Walmart for painkillers. Appellant was later arrested at the home of a second woman. He was taken to the hospital for a shoulder injury, photos of which were submitted to the jury.

At the victims' apartment, police found a black bag in the foyer containing a gun, duct tape, two cell phones, and identification belonging to Ward. The residents stated the bag and gun did not belong to them.

Officers searched appellant and Ward's cell phones. Directly prior to the incident, Ward texted an unknown number and stated, "I need a ride south side for this lick." An officer testified a "lick" is a robbery, and the incident took place on the south side of town. Ward then texted appellant and asked, "you got the other stick." Appellant responded, "SMH [shaking my head]. Nah. Look like we don't need it." An officer testified a "stick" is a firearm. Ward replied, "okay OMW [on my way]." Appellant then texted, "am finnin try go get one."

Officers testified that location data placed appellant's phone near the victims' apartment at the time of the incident. Then, his phone traveled to the vicinity of the address of the woman who owned the red SUV with blood in the driver's seat. It then traveled to the area of Walmart at the same time reflected on the receipt for pain killers. Finally, it traveled to the apartment where appellant was later arrested.

Appellant's counsel moved for judgment of acquittal, arguing that while the State "may have evidence to go forth with a burglary or ... second degree murder" charge, there was no evidence that appellant was in actual possession of a firearm. The court denied the motion.

The jury found appellant guilty as charged of second-degree felony murder and burglary but found he was not in actual possession of a firearm. The court sentenced appellant to concurrent terms of 35 years in prison for each offense. This timely appeal follows.

ANALYSIS

"This Court reviews a defendant's unpreserved claim that a trial court committed fundamental error de novo ." Croom v. State , 36 So.3d 707, 709 (Fla. 1st DCA 2010).

Appellant argues the evidence was insufficient to prove either burglary or second-degree felony murder. He concedes that circumstantial evidence placed him in the victims' apartment, where he was shot and then fled. However, he argues mere knowledge that an offense is being committed and mere presence at the scene of the crime is insufficient to establish participation in the offense. He asserts there is no direct evidence that he had prior knowledge of or intent to commit the burglary and murder along with Ward, and the State's circumstantial evidence that he was in the apartment did not rebut his reasonable hypothesis of innocence that he merely gave Ward a ride. He concedes he failed to preserve this argument but asserts his convictions are fundamental error because the evidence did not prove that he committed the charged offenses. This argument fails for several reasons.

First, appellant cannot raise for the first time on appeal an argument that the special circumstantial evidence standard applies. "A special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." State v. Law , 559 So.2d 187, 188 (Fla. 1989) (internal citations omitted). However, "[t]he state is not required to 'rebut conclusively every possible variation' of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events." Id. (quoting State v. Allen , 335 So.2d 823, 826 (Fla. 1976) ).

This court held that where counsel makes a mere boilerplate motion for judgment of acquittal, "the issue of whether the State presented evidence inconsistent with Appellant's version of events was not preserved because counsel did not argue that this was a wholly circumstantial evidence case, thus triggering the special standard of review under which the trial court would have been required to rule on the motion. Nor did counsel outline a theory of defense and argue that the circumstantial evidence was consistent, rather than inconsistent, with that theory." Newsome v. State , 199 So.3d 510, 513 (Fla. 1st DCA 2016).

Here, as in Newsome , appellant's counsel failed to preserve a claim that the evidence was wholly circumstantial, and thus the special standard of review for circumstantial evidence claims was not triggered. Instead, in moving for judgment of acquittal, counsel conceded the State "may have evidence to go forth with a burglary ... or second degree [felony] murder" charge, and challenged only the sufficiency of the evidence that appellant was in actual possession of a firearm. Thus, appellant's challenge to the sufficiency of the evidence for the burglary and second-degree murder charges is reviewable only for fundamental error.

Insufficient evidence constitutes fundamental error only where the State failed to prove that the defendant "committed any crime." Monroe v. State , 191 So.3d 395, 401 (Fla. 2016). Here, there was sufficient evidence that appellant committed a crime. Appellant concedes circumstantial evidence placed him in the apartment as one of the intruders. Eyewitnesses saw only two intruders, and one eyewitness testified that both intruders worked to break down the front door to the victims' apartment. Thus, there was evidence that appellant participated in the commission of the offense and was not merely present at the scene of the crime. Cf. Garcia v. State , 899 So.2d 447, 450 (Fla. 4th DCA 2005) ("Mere knowledge that an offense is being committed and mere presence at the scene of the crime are insufficient to establish participation in the offense."). Appellant and Ward also texted about bringing a gun, and Ward indicated to an unknown third party that he was going to commit a robbery. Thus, the State presented sufficient evidence that appellant committed a crime - specifically, the charged offenses of burglary and second-degree felony murder. As such, we affirm.

AFFIRMED.

Osterhaus and Winsor, JJ., concur.

      Even if the special circumstantial evidence standard applied here, the State's evidence that appellant was one of the two intruders who broke down the door and entered the victims' apartment was inconsistent with appellant's theory of defense that he merely gave Ward a ride. Thus, even under that standard, the evidence would have been sufficient.


author: EDWARDS, J.

text:
    Jahquell DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-745
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock Mcguigan, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

This case deals with the application of the Melton elements to Appellant's claim that his transport to and lengthy detention at the sheriff's office constituted an "arrest" for purposes of Florida's speedy trial rule, which requires a person charged with a felony to be tried within 175 days of arrest. See Fla. R. Crim. P. 3.191(a), (d). Appellant, Jahquell Davis, argues that he was "arrested" on May 29, 2014, when he and several others were transported to the sheriff's office. Over a period of several hours, each was questioned in turn by a single detective as part of an investigation into a violent robbery that occurred earlier that day at a metal recycling facility.

When it was Appellant's turn to be interviewed he agreed to talk with the detective and voluntarily submitted to DNA and gunshot residue testing at the station. Following a pre-trial evidentiary hearing, the trial court denied Appellant's speedy trial-based motion for discharge. Appellant was tried, found guilty of attempted first-degree murder with a firearm, robbery with a firearm, and conspiracy to commit robbery with a deadly weapon, and sentenced to forty years in the Department of Corrections. We agree with the trial court's factual findings and its legal conclusion that an investigatory detention took place on May 29, 2014, which did not constitute an arrest for speedy trial purposes. For the reasons set forth in more detail below, we affirm the trial court's denial of Appellant's motion for discharge.

A trial court's ruling on a speedy trial-based motion for discharge presents mixed questions of fact and law. See State v. Glatzmayer , 789 So.2d 297, 301 (Fla. 2001). The trial court's factual findings must be sustained if supported by competent, substantial evidence, but its legal conclusions are subject to de novo review. Id.

BACKGROUND FACTS

On May 29, 2014, sheriff's deputies responded to a robbery and shooting at OU

Metal Recycling. Video surveillance was used to identify the getaway vehicle involved in the robbery; it was later found outside a house. Using a loudspeaker, deputies ordered the occupants out of the house. When nobody responded to that command, the S.W.A.T. team was deployed to the scene. The stand-off ended approximately ninety minutes later, when Appellant, four other males, and two females exited the house. The males were instructed to stand along the curb near the house while a show-up was conducted, during which one victim recognized one of the men-not Appellant-as the driver of the getaway vehicle.

Deputies believed that it would be impractical to interview the five males at the house because it was in a high crime area, the S.W.A.T. team and news media surrounded the area, and the detective handling the investigation had multiple people to interview. Accordingly, the males were handcuffed, placed into individual squad cars, transported to the sheriff's department, and placed in separate rooms in a secured area of the building, where their handcuffs were removed. After being read their Miranda rights, they were sequentially interviewed by the same detective. All the males were eventually swabbed for gunshot residue and DNA.

The detective, who referred to Appellant's status as "investigative detention," began his interview of Appellant by apologizing for the delay in getting to him. Appellant testified at his evidentiary hearing that he agreed to speak to the detective and consented to the gunshot residue and DNA testing because he wanted to help and also wanted to clear his name. During this time, Appellant was not informed he was free to leave. Indeed, outside the door of his interview room was a uniformed deputy who would not have permitted him to leave. During the approximately four to six hours that Appellant was at the sheriff's department, he was never told he was under arrest, that he was suspected of committing the robbery, or that he was charged with any crime.

The detective ended his interview of Appellant by advising him that he was not under arrest and that he was free to leave. The detective offered Appellant transportation, which Appellant declined. At the time Appellant was released, there was no information connecting him to the robbery or shooting beyond his presence at the house where the getaway vehicle was found.

Appellant was not formally arrested until June 17, 2015, after the investigation was essentially completed and after two different witnesses identified Appellant as one of the robbers. The information charging Appellant was filed on June 19, 2015. Appellant moved for discharge, arguing that his prosecution was barred by Florida's speedy trial rule as far more than 175 days had passed since his May 29, 2014 detention.

Appellant preserved this speedy trial issue by making a pre-trial motion, seeking a writ of prohibition, renewing his motion during trial, and pursuing this timely appeal following his jury trial and conviction.

ANALYSIS

The only disputed legal issue is whether Appellant's detention on May 29, 2014, constituted an arrest for speedy trial purposes. If it was an arrest for speedy trial purposes, then he was entitled to a permanent discharge as requested because of the time that passed between detention and trial. However, as the trial court did below and as we do now, employing the four Melton elements to analyze Appellant's May 29, 2014 detention leads to the conclusion that the detention was not an arrest for speedy trial purposes.

Before we begin our analysis of whether this was an "arrest," it is important to recognize and acknowledge that a person may be "in custody" for purposes of requiring Miranda warnings, yet not have been "arrested" for purposes of the speedy trial rule. Williams v. State , 757 So.2d 597, 599 (Fla. 5th DCA 2000) (citing Griffin v. State , 474 So.2d 777, 779 (Fla. 1985) ). Likewise, police "seizure" of an individual may trigger Fourth Amendment protection and yet not constitute an arrest for purposes of speedy trial. Id. The rights listed in the Miranda warnings and the Fourth Amendment's protection against unreasonable search and seizure are triggered when a person is taken into custody or seized, regardless of whether any criminal charges are contemplated or levied.

The Sixth Amendment guarantees the accused a speedy trial to limit the duration of possible public scorn, adverse impact on employment, and other consequences brought about by arrest or indictment that can only be cleared by a verdict of not guilty or permanent dismissal of the charges. See Klopfer v. North Carolina , 386 U.S. 213, 222, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). "This guarantee [of a speedy trial] is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United States v. Ewell , 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) ; see also State v. Lott , 286 So.2d 565, 566 (Fla. 1973) (quoting Ewell with approval ). Given that the speedy trial rule is designed to protect against the adverse impacts of arrest or indictment pursuant to criminal charges, it follows that the right to a speedy trial is triggered only "(1) when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged or (2) when the person is served with a notice to appear in lieu of physical arrest." Fla. R. Crim. P. 3.191(d).

Appellant, the State, the trial court, and this court all agree that the seminal case on what constitutes an arrest under the speedy trial rule is Melton v. State . In that case, the Florida Supreme Court defined an arrest as follows:

It is uniformly held that an arrest, in the technical and restricted sense of the criminal law, is "the apprehension or taking into custody of an alleged offender, in order that he [or she] may be brought into the proper court to answer for a crime." When used in this sense, an arrest involves the following elements: (1) A purpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.

Melton , 75 So.2d at 294 (internal citations omitted). All four Melton elements must be present to conclude that an arrest has occurred. Brown v. State , 623 So.2d 800, 802 (Fla. 4th DCA 1993).

The first Melton element is "[a] purpose or intention to effect an arrest under a real or pretended authority." 75 So.2d at 294. Here, the detective testified that it was not his purpose or intent to arrest Appellant on May 29, 2014, because Appellant was not suspected of having committed any crime at that point. Thus, the trial court's pretrial factual finding that there was no purpose or intent to effect an arrest on May 29, 2014, is supported by competent, substantial evidence. The trial court received additional evidence as the case progressed which confirmed that there was initially no probable cause to support a legal arrest, and that Appellant was not a suspect on May 29, 2014. The DNA testing was inconclusive as to Appellant, and the deputy who performed the gunshot residue testing could not recall the outcome of the test performed on Appellant. The testimony at trial established that he only became a suspect much later, when a co-defendant identified Appellant as the shooter in exchange for a plea. As another result of their ongoing investigation, the police located somebody who was very familiar with Appellant and testified that Appellant was one of the robbers in the surveillance video, based on his physical traits, clothing, and other mannerisms. This additional evidence was relevant to Appellant's repeated renewal of his motion for discharge.

There are many similarities between the subject case and State v. Lail , in which detectives went to Lail's house and told him they received a complaint that he sexually abused his stepdaughter. 687 So.2d 873, 873 (Fla. 2d DCA 1997). Lail agreed to go with them to further the investigation. Id. After reading Lail his Miranda rights, they placed him in a police car and drove him to the station where he remained for seven hours. Id. at 873-74. Initially, Lail was left alone in a holding cell for two hours while an officer went to the hospital to interview the victim. Id. at 874. After Lail again confirmed his willingness to talk and executed a Miranda -rights waiver form, a detective from the sex crimes unit interviewed Lail for approximately an hour and a half. Id. When his interview was completed, Lail stayed two more hours at the police station in order to voluntarily submit to a physical body inspection during which he provided hair and blood samples. Id. The detective testified that at that time the evidence was insufficient to establish probable cause to justify an arrest. Id. Lail was released. Fifteen months later, Lail was arrested on a warrant and formally charged with sexual battery. Id. The trial court ordered Lail discharged, ruling that he had been arrested for speedy trial purposes when he was detained initially for questioning. Id. The Second District reversed, finding that the detention was an investigatory detention that did not trigger the running of the speedy trial time period. Id. at 875.

We note that there are two factual distinctions between Lail and this case. First, it is unclear from the opinion whether Lail was handcuffed, whereas here Appellant was cuffed for several hours on the day of his initial interview. However, the fact that a defendant was handcuffed does "not convert [a] detention for questioning into an arrest." Id. (quoting State v. Christian , 442 So.2d 988, 990 (Fla. 2d DCA 1983) ). Second, Lail voluntarily accompanied the police to the station, whereas here Appellant was taken there involuntarily, although he testified that he voluntarily remained there to "help" and to "clear his name." In Christian , the Second District rejected the trial court's reasoning "that involuntary custodial interrogation by the police at the station was equivalent to an arrest which began the running of the speedy trial time." 442 So.2d at 989-90. Therefore, those two factual differences do not change the applicability of Lail or the analysis of the first Melton element-there was no evidence of an intent to arrest on May 29, 2014.

According to Brown , the May 29 detention cannot constitute an arrest because one of the Melton elements was not present. 623 So.2d at 802. Therefore, the trial court's decision that the speedy trial rule was not triggered can be affirmed based on the absence of the first element alone. Nevertheless, for the purpose of completeness, we will look at the presence or absence of the other three elements.

The second Melton element is "[a]n actual or constructive seizure or detention of the person arrested by a person having present power to control the person arrested." Melton , 75 So.2d at 294. It is undisputed that Appellant was actually seized and detained by the sheriff's deputies and the detective. Thus, the trial court's finding that the second Melton factor was satisfied is supported by competent, substantial evidence and is legally correct.

The third Melton element is "[a] communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest." Id. On May 29, 2014, Appellant was not formally arrested, in the sense that no booking report was prepared, no booking photos were taken, and Appellant was not fingerprinted. When initially denying Appellant's motion for discharge, the trial court found that there had been no actual communication from the detective to Appellant that he was under arrest or that the detective intended to arrest him. In fact, Appellant was not told on May 29, 2014, that he was under arrest. Following Appellant's voluntary submission to testing that day, the detective told Appellant that he was free to walk out of the sheriff's office, which is exactly what he did. Appellant's unconditional release parallels Lail , where that defendant was released following his lengthy detention. See Lail , 687 So.2d at 874. Thus, the trial court's finding here that the third Melton element was absent is supported by competent, substantial evidence and is legally correct as well.

The fourth and final Melton element is "[a]n understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him." Melton , 75 So.2d at 294. Appellant argues that he had a reasonable belief that he had been arrested because he was forced from the house, handcuffed, involuntarily taken to the police station in a police car, and locked in the interview room for several hours. Although nobody told him he was under arrest, nobody told him until the end of the day that he was free to leave. These facts could support a finding that the detective's actions reasonably led Appellant initially to believe that he was under arrest, but Appellant's belief as to whether he was under arrest was not static. As part of its reason for denying the motion for discharge, the trial court noted Appellant testified that after being at the sheriff's office for a period of time, he was cooperative in the interview and voluntarily submitted to testing. The trial court stated that Appellant presented no evidence that an arrest was contemplated, and further found the fact that Appellant was released rather than arrested would have led to the understanding that the police did not intend to arrest him then and there. Thus, the trial court's determination that the fourth Melton element was lacking is supported by competent, substantial evidence and is legally correct.

Appellant relies heavily on this court's opinion in Griggs v. State , 994 So.2d 1198 (Fla. 5th DCA 2008), to argue that the deputies' actions and what happened to him during his four- to six-hour detention amounted to a de facto arrest that triggered the speedy trial rule on May 29, 2014. First of all, Appellant's reliance on Griggs is misplaced because of significant factual differences between the two cases. In Griggs , the police performed a traffic stop of Griggs because they already had information of his involvement in a drug transaction. Id. at 1199. While at the scene of the traffic stop, a K-9 unit alerted to methamphetamines in Griggs's car and the drugs were removed from the vehicle by one of the ten police officers present. Id. A police investigator then asked Griggs if he wanted to "come down to my office and talk about it." Id. Thus, unlike in the instant case, the police in Griggs had every reason to suspect that Griggs had committed a crime before they began their encounter and certainly as they took him in. While Griggs agreed to go to the station where he was questioned, our court predicted that had Griggs refused the invitation, "[h]e would instead have been taken directly to jail." Id. at 1201. In fact, the investigator told Griggs he would only let him go if he agreed to act as a drug informant for the investigator. Id. at 1199. After agreeing to be an informant, Griggs was released. Id. The investigator testified that if Griggs had not agreed at that time to act as an informant, he would have been immediately booked and jailed. Id. That testimony established an intent to effect an arrest which would not be carried out only if, first, Griggs spoke with them and, second, he agreed to be an informant. In both cases the police officers denied they ever used the word "arrest." Id. Importantly, Griggs "testified that he thought he was under arrest because he had been told by police officers on two occasions that he occupied that unfortunate status." Id. On the other hand, here, Appellant never claimed that an officer told him he was under arrest.

In Griggs , our court analyzed the facts using the Melton elements and concluded that all four elements were present, meaning that Griggs had been arrested for speedy trial purposes and was entitled to discharge because he had not been charged or tried until more than a year after the traffic stop and custodial questioning. Id. at 1201. Somewhat confusingly, although this court acknowledged that the right to a speedy trial was a Sixth Amendment right codified in a rule of criminal procedure, the opinion discusses Florida's stop and frisk law, which protects the Fourth Amendment rights to be free from unreasonable search and seizure. However, Griggs did not raise any Fourth Amendment issues. Continuing down that same path, the Griggs opinion then cites to and quotes from several cases that each dealt with Fourth Amendment search and seizure issues, but none of which dealt with speedy trial issues. Similarly here, Appellant claimed no violation of his Fourth Amendment rights. Thus, Appellant erroneously relies upon the discussion of Fourth Amendment law in Griggs to argue that the Melton elements are trumped by involuntary, custodial questioning.

Notably, eight years before deciding Griggs , we decided Williams v. State , in which we explicitly stated that it was possible to be seized for Fourth Amendment purposes without being arrested for speedy trial purposes. 757 So.2d 597, 599 (Fla. 5th DCA 2000). Twenty-seven years before Griggs , we decided State v. Naughton , in which we noted that even an actual or constructive seizure or detention of the person to be arrested would not constitute being "in custody" for speedy trial purposes.

395 So.2d 581, 582-83 (Fla. 5th DCA 1981). Our opinion in Griggs makes no mention of the Williams or Naughton cases, nor does it mention any of the many other cases that noted the importance of distinguishing between an "arrest" for speedy trial purposes and a "seizure" for Fourth Amendment situations or being placed in "custody" for Miranda rights purposes. The Sixth Amendment guarantees the accused a speedy trial. As the discussion of Fourth Amendment seizure has no bearing on being arrested for speedy trial purposes, Appellant's reliance on that portion of the Griggs opinion is unavailing.

We find that the trial court's factual conclusions are supported by competent, substantial evidence, and its legal conclusion-that Appellant was not arrested on May 29, 2014, for speedy trial purposes based on the Melton elements-is also correct. Accordingly, we affirm the denial of Appellant's motion for discharge.

We agree with the Fourth District's conclusion in Brown , 623 So.2d at 802, that under the present state of the law all four Melton elements must be present for a custodial detention to constitute an arrest. In our opinion, requiring the presence of all four elements demands a level of clarity and certainty that is often lacking in these situations. It places too much emphasis on the presence or absence of any single element. Furthermore, two elements in the current test require the trial court to perform very subjective analysis. For element one, the court must somehow determine whether the officer subjectively intended to effect an arrest, and for element four, the court must divine the defendant's subjective understanding of whether the officer subjectively intended to effect an arrest. We believe that all concerned would be better served when considering speedy trial issues if a "totality of the circumstances" standard were employed, using more objective factors. Under the proposed changes no one element would be determinative, the need for analyzing predictable testimony regarding the subjective intent or understanding of the police or defendant would be minimized, and a proper balance could be struck between (1) giving the State leeway to investigate and build a case and (2) protecting the accused from unreasonably prolonged subjection to the potential personal, social, and economic harm attendant to being arrested for or charged with a crime. We recognize that under Hoffman v. Jones , 280 So.2d 431 (Fla. 1973), we are not authorized to make these changes; so, we certify the following question to be of great public importance:

Should the determination of whether an arrest has occurred for speedy trial purposes be based on an objective consideration of the totality of the circumstances, including but not limited to: (1) whether the person was detained with the intent to effect an arrest under a real or pretended authority; (2) whether there was an actual or constructive seizure or detention by someone with the present power to control the person detained; (3) whether there was a communication by the detaining officer to the person whose detention is sought of an intention or purpose then and there to effect an arrest; and (4) whether a reasonable person in the detainee's position would have understood that he or she was under arrest?

AFFIRMED; QUESTION CERTIFIED.

SAWAYA, J., concurs.

ORFINGER, J., concurring in result with opinion.

Because I am bound by our supreme court's decision in Melton v. State, 75 So.2d 291 (Fla. 1954), I concur, albeit reluctantly, with the result reached by the majority. However, I believe the four-part test established in Melton to determine when an arrest occurs is overly formalistic and relies too heavily on the subjective intent of the law enforcement officer who is questioning or detaining the individual.

The trial court denied Appellant's motion to discharge based on the first Melton element-"[a] purpose or intention to effect an arrest under a real or pretended authority," 75 So.2d at 294 -and concluded that the detective had no purpose or intent to arrest Appellant. In affirming that decision, the majority places great weight on both the first Melton element as well as the fourth Melton element-"[a]n understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him," id.-in concluding that the officer never communicated an intent to arrest Appellant. Both of these conclusions depend on the subjective intent of the police officer.

In my opinion, the subjective views of a police officer who detains an individual should have little bearing on whether the detention constitutes an arrest. Rather, an arrest should be determined using an objective standard-whether the individual's freedom of action is curtailed to a degree associated with a formal arrest, Park v. Shiflett, 250 F.3d 843, 850 (4th Cir. 2001), and how a reasonable person in the individual's position would have understood his or her position, Caso v. State, 524 So.2d 422, 423 (Fla. 1988). The objective standard assesses the coercive effect of the police conduct, as a whole, and not the isolated details of the conduct. 5 Am. Jur. 2d Arrests § 5 (2018). In making this assessment, the objective standard examines the totality of the circumstances, including the particular police conduct and the setting in which the conduct occurs. Id. Such an examination involves exploring, among others, the length of the detention; the restrictions placed on the individual's personal movement; the force, if any, that was exerted; the information conveyed to the individual; and the severity of the intrusion. United States v. Rasberry, 882 F.3d 241, 247 (1st Cir. 2018).

In this case, the detective described Appellant as being held in "investigative detention." One court defined "investigative detention" as

a seizure within the meaning of the Fourth Amendment but, unlike an arrest, it need not be supported by probable cause.... An officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause. Cortez [v. McCauley], 478 F.3d [1108,] 1115 [ (10th Cir. 2007) ] (quotations omitted). An investigative detention evolves into an arrest when the scope of police conduct is no longer reasonably related to the circumstances initially justifying the seizure.
United States v. Melendez-Garcia, 28 F.3d 1046, 1051 (10th Cir. 1994). "An arrest is distinguished by the involuntary, highly intrusive nature of the encounter." Cortez, 478 F.3d at 1115 (quotation omitted).

Manzanares v. Higdon, 575 F.3d 1135, 1148 (10th Cir. 2009). Here, Appellant was handcuffed and detained for four to six hours. The duration of detention alone provides strong evidence that Appellant was under arrest rather than merely subject to an investigative detention. Id. (indicating that detention of 90 minutes or longer constitutes arrest, rather than investigative detention).

Further, it is well-established that an officer may temporarily detain an individual and investigate if the circumstances reasonably indicate that the detained individual has committed, is committing, or is about to commit a crime. § 901.151(2), Fla. Stat. (2014) ; see also Terry v. Ohio, 392 U.S. 1, 38, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, the detention "shall not extend beyond the place where it was first effected or the immediate vicinity thereof." § 901.151(3), Fla. Stat. (2014). "Where ... the detained individual is physically removed from the scene and involuntarily transported to the police station for questioning and/or investigation, the courts have had little difficulty in construing such a detention to be a de facto arrest ...." Griggs v. State, 994 So.2d 1198, 1201 (Fla. 5th DCA 2008) (quoting Saturnino-Boudet v. State, 682 So.2d 188, 193 (Fla. 3d DCA 1996) ). Here, Appellant was handcuffed, placed in a squad car, and transported away from the scene and to the sheriff's office where he remained under guard and not free to leave for the next four to six hours. This is further evidence that Appellant was under arrest rather than simply subject to an investigative detention.

The majority holds the Appellant was not under arrest. But if not under arrest, what was his status? Is there something between a Terry stop and an arrest? I think not. To effectuate a Terry stop, the detention must be temporary, based on reasonable suspicion, and at the location of the stop. See § 901.151(3), Fla. Stat. (2014). To make an arrest, law enforcement needs probable cause. Here, the detective admittedly had neither and yet Appellant was detained for four to six hours. The majority never states what Appellant's status was while being detained. And if law enforcement needed more time to investigate, could Appellant's detention have been extended indefinitely?

To view the detention here as authorized creates a new level of citizen encounter not countenanced by Terry, a case decided well after Melton. I believe that we would be well served by adopting an objective, totality of the circumstances test to determine if an arrest has taken place for speedy trial purposes. However, because Melton continues to be controlling, I concur in the result reached by the majority.

      Melton v. State , 75 So.2d 291 (Fla. 1954).

      The Florida Supreme Court adopted rule 3.191 in 1971 to provide a procedural mechanism for ensuring that the constitutional right to a speedy trial guaranteed by the Sixth Amendment is enforced in this state. State v. Lott , 286 So.2d 565, 566 (Fla. 1973).

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Although Melton was decided in 1954, it remains the benchmark for defining "arrest" and has been repeatedly cited for that purpose, including as recently as 2012 by our court. See Ehmke v. State , 86 So.3d 591, 591 (Fla. 5th DCA 2012).

      The trial court stated that Lail had been placed in a holding cell and handcuffed, while the court of appeal simply stated that there was no evidence that Lail was ever handcuffed. Lail , 687 So.2d at 875.

      See Griffin v. State , 474 So.2d 777, 779 (Fla. 1985) (noting that a seizure may trigger Fourth Amendment protections without being a technical arrest, and that a person may be "in custody" for Miranda but not speedy trial purposes); Christian , 442 So.2d at 989 (noting that "[a] person may be deemed 'in custody' for purposes of his Miranda rights, yet not 'in custody' for purposes of the speedy trial rule"); Dean v. Booth , 349 So.2d 806, 807 (Fla. 2d DCA 1977) (holding that although defendant taken to the police station for questioning was "in custody" for Miranda purposes, he was not "in custody" within the meaning of the speedy trial rule); Snead v. State , 346 So.2d 546, 547-48 (Fla. 1st DCA 1976) (finding that defendant taken to station for questioning and released without being charged was not in custody for speedy trial rule purposes, while declining to discuss whether in custody for Fourth Amendment purposes).

      While the cases that I rely on are either search and seizure or Miranda cases, I believe they are applicable to the analysis here because an objective test is easier to apply and less influenced by the subjective views of the investigating officer.


text:
    Adrienne SWEARINGEN, Appellant, v. Christopher SWEARINGEN, Appellee.
    No. 1D17-5011
    District Court of Appeal of Florida, First District.
    September 5, 2018
    Mallory R. Bennett, Tallahassee, for Appellant.
    No appearance for Appellee.
   Per Curiam.

Adrienne Swearingen appeals a final judgment supplementing the parenting plan set forth in the previous marital settlement agreement approved by the court in 2013. Among other deficiencies, the previous plan failed to provide a time-sharing arrangement between the parties, or to specify the time that their minor son would spend with each parent. Disputes arose regarding time-sharing and other parenting matters, which led to Christopher Swearingen's petition for modification.

We find no legal error in the trial court's decision to supplement the previous parenting plan given its omission of a time-sharing schedule and provisions addressing the parties' communication rights with their child. Section 61.13(2)(b)2., Florida Statutes (2016), requires "at a minimum" that parenting plans "include the time-sharing arrangements that specify the time that the minor child will spend with each parent." The supplemental final judgment fixes this fundamental problem with the prior order.

We agree with Ms. Swearingen, however, that the new plan contains errors that must be fixed. There is a discrepancy in the amount of time the child spends with each parent. In the child support guidelines worksheet used by the court, Ms. Swearingen has 287 overnights per year and Mr. Swearingen has 78 overnights. The incorporated parenting plan has Ms. Swearingen at 303 overnights and Mr. Swearingen at 62 overnights. The number of overnights set forth in the worksheet is incorrect, similar to Quinn v. Quinn , 169 So.3d 268 (Fla. 2d DCA 2015), where there was also no accounting for the discrepancy. Thus, as in Quinn , we reverse and remand for recalculation of the child support award, or for further findings should the trial court decide to deviate.

The final judgment is otherwise affirmed. We do not read the parenting plan to require the child to change schools in Florida away from where Ms. Swearingen teaches. If it did, it would be erroneous without a request or record basis for changing the child's school (Mr. Swearingen currently resides in New Mexico). See Dillingham v. Dillingham , 667 So.2d 337, 338 (Fla 1st DCA 1995) (adjudicating issues not raised by the pleadings and not litigated during the hearing is voidable on appeal). We also do not reach the unresolved issues involved with the Ms. Swearingen's later-filed motion for contempt/enforcement of the initial parenting plan, because the trial court has not yet ruled on this motion.

AFFIRMED in part, REVERSED in part, and REMANDED .

B.L. Thomas, C.J., and Osterhaus and Bilbrey, JJ., concur.


text:
    Chad Vaughn MORELAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4436
    District Court of Appeal of Florida, First District.
    September 5, 2018
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Chad Vaughn Moreland appeals his conviction for resisting an officer with violence, claiming that the trial court used the wrong standard in denying his motion for a new trial. We disagree and affirm.

After a jury found Appellant guilty of resisting an officer with violence, Appellant moved for a new trial. His motion claimed that the court erred in three prior rulings and that the verdict was against both the weight and sufficiency of the evidence. Appellant listed five reasons specifically that he was due a new trial:

1. The Court erred in not granting Defendant's Motion for Judgment of Acquittal made at the close of the State's case.
2. The Court erred in not granting Defendant's Motion for Judgment of Acquittal made at the close of all the evidence.
3. The verdict is contrary to the weight of the evidence.
4. The verdict is contrary to the law.
5. The Court erred in denying the Defendant's [earlier] motion for mistrial ....

At a hearing, the court summarily denied Appellant's new trial motion saying: "The Court will rely on the rulings previously made in this case, and I will deny the motion for new trial at this time."

Appellant now argues that we should reverse because the trial court used the wrong standard in denying his new trial motion. He asserts that instead of acting as an "additional juror" to weigh the evidence, the trial court incorrectly applied a sufficiency of the evidence standard. See Moore v. State , 800 So.2d 747, 749 (Fla. 5th DCA 2001) ("[I]n deciding a motion for new trial which asserts that the verdict is contrary to the weight of the evidence, the trial court acts as a safety valve by granting a new trial where the evidence is technically sufficient ... but the weight of the evidence does not appear to support the jury verdict."). Appellant makes much of the trial court's stated reliance on previous rulings to further its point.

But we do not agree that the language in the trial court's order shows that it used the wrong standard. We recognize first that "[a] trial court is not compelled to use 'magic words' when ruling on a motion for new trial." Velloso v. State , 117 So.3d 903, 905 (Fla. 4th DCA 2013). In this instance, the trial court's ruling included two independent clauses that directly corresponded with the motion's arguments. The judge stated: "The Court will rely on the rulings previously made in this case , and I will deny the motion for new trial at this time." (Emphasis added). We understand the initial (italicized) part of this statement to correspond to the challenges stated in the new trial motion to the court's previous orders (see reasons 1, 2, and 5 above). The trial court decided at the hearing that it would not depart from its previous rulings on the motions for JOA and mistrial.

The other part of the trial court's ruling (see underlined above) simply denied the new trial motion without any comment. The court's subsequent written order also cursorily "Denied" the new trial motion without an explanation. Nothing in this summary style of denying the motion suggests that the trial court mistook or failed to apply the correct new trial standard. In the absence of demonstrated error, orders on new trial motions come to appellate courts cloaked with a presumption of correctness in which reasonable inferences and deductions must be taken in a manner favorable to affirming a trial court's ruling, not reversing it. See, e.g. , Allstate Ins. Co. v. Wood , 535 So.2d 699, 700 (Fla. 1st DCA 1988) (noting that new trial rulings "will not be disturbed unless it appears clear and patent on the record that prejudicial error occurred"). See also Ward v. Hopkins, 81 So.2d 493, 494 (Fla. 1955) ("It is well settled that the granting or denying of a motion for a new trial rests in the sound judicial discretion of the trial Judge and that his order is entitled to a presumption of correctness.").

We therefore affirm, because this is not a case in which the order's language shows that the trial court employed an incorrect legal standard. Compare, e.g. , Velloso , 117 So.3d at 905 (reversing where "the record shows that the trial court incorrectly applied a sufficiency of the evidence standard") with Bell v. State , 248 So.3d 208, 210 (Fla. 1st DCA 2018) (affirming where appellant failed to demonstrate error).

AFFIRMED .

B.L. Thomas, C.J., and Osterhaus J., concur; Bilbrey, J., dissents with written opinion.

Chad Vaughn Moreland challenges his conviction for resisting an officer with violence arguing the trial court erred by employing the wrong standard while considering his motion for a new trial. I agree and would reverse and remand for additional proceedings. Because the majority affirms, I respectfully dissent.

After the jury returned a guilty verdict, Moreland moved for a new trial raising several grounds including the ground that the verdict was contrary to the weight of the evidence. Moreland also argued that the verdict was contrary to law, that the trial court erred in denying his motions for a judgment of acquittal, that the trial court erred in denying his motion for a mistrial, and that the trial court erred in denying an objection made with regard to the State's rebuttal closing argument. The trial court later heard additional argument on the motion for a new trial, and after such argument was concluded, the trial court announced: "The Court will rely on the rulings previously made in this case, and I will deny the motion for new trial at this time." A written order thereafter entered summarily denying the new trial motion.

Moreland argues that the trial court used an incorrect standard when denying his new trial motion. I agree. As this court has recently explained, "[a] motion for new trial requires a trial court to evaluate whether a jury's verdict is contrary to the weight of the evidence and to act, in effect, as an additional juror." Jordan v. State , 244 So.3d 1178, 1179 (Fla. 1st DCA 2018) (citing Fla. R. Crim. P. 3.600(a)(2) ; Tibbs v. State , 397 So.2d 1120, 1123 n.9 (Fla. 1981) ). The standard governing a motion for a new trial is different from the one used by a court in ruling on a motion for a judgment of acquittal, which looks at the sufficiency of the evidence. Jordan ; see also Velloso v. State , 117 So.3d 903, 905 (Fla. 4th DCA 2013). The standard regarding a new trial motion also differs from the standard governing a motion for a mistrial which requires a trial court to evaluate an error to determine if it is "so prejudicial that it vitiates the entire trial, depriving the defendant of a fair proceeding." Jennings v. State , 123 So.3d 1101, 1125 (Fla. 2013) (quoting Floyd v. State , 913 So.2d 564, 576 (Fla. 2005) ). Needless to say, a trial court is not acting as a juror when it passes on an evidentiary objection or when it considers an objection to closing argument.

As the majority observes, "[a] trial court is not compelled to use 'magic words' when ruling on a motion for new trial, but the ruling should demonstrate that the court applied the proper standard to the motion." Velloso , 117 So.3d at 905 (quoting Geibel v. State , 817 So.2d 1042, 1045 (Fla. 2d DCA 2002) ). In referencing its prior rulings, the trial court here was no doubt referring to its prior denial of Appellant's motions for a judgment of acquittal and the motion for mistrial, as well as its ruling as to closing argument. Such prior rulings would not have required the trial court to have acted as "an additional juror" in assessing the weight of the evidence against Appellant as required by rule 3.600(a)(2), Florida Rules of Criminal Procedure, and the case law interpreting the rule. The explicit reference to prior rulings distinguishes the instant case from Bell v. State, 248 So. 3d 208, 210 (Fla. 1st DCA 2018), where there was "nothing to indicate" the wrong standard was employed. Further, the parsing of the trial court's ruling, which was an oral ruling memorialized by a court reporter, identifies one possible interpretation, but does not establish a definitive one. It should be noted that "[e]ven if it were simply unclear as to whether the trial court applied the correct standard, reversal for a new hearing on the motion for new trial would be required." Velloso , 117 So.3d at 906.

Accordingly, I would reverse and remand to the trial court to determine whether the verdict was against the weight of the evidence. In such a case, if the trial court were to conclude that the verdict was not contrary to the weight of the evidence, it could again deny the motion for a new trial and thereafter enter a new judgment and sentence. See Jordan ; Palmer v. State , 196 So.3d 1289, 1290 (Fla. 1st DCA 2016).


text:
    Vladislav LOBIDIN, Appellant, v. FLORIDA STATE UNIVERSITY, Appellee.
    No. 1D17-3880
    District Court of Appeal of Florida, First District.
    September 5, 2018
    Marie A. Mattox, Marie A. Mattox, P.A., Tallahassee, for Appellant.
    Lisa C. Scoles, Florida State University, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of the dismissal of his Whistle-Blower's Act complaint against Florida State University by the Florida Commission on Human Relations. Appellant contends that the Commission erred by summarily dismissing his complaint on the basis of untimeliness. We agree because, by rule, the sixty-day time period to file a complaint, see § 112.31895(1)(a), Fla. Stat. (2016), extended "until the end of the next day that is not a Saturday, Sunday, or legal holiday." Fla. R. Jud. Admin. 2.514(a) (computing time periods for statutes that do not otherwise specify a method of computing time).

In this instance, Appellant's complaint should not have been summarily dismissed despite being filed on the sixty-second day-May 30, 2017-after the date of harm it identified-March 29, 2017-because the sixtieth day fell on a weekend, and the complaint was filed on the first day following the weekend and holiday Monday. See Johnson v. Fla. Dep't of Corr. , 190 So.3d 259 (Fla. 1st DCA 2016) (reversing as improper a notice of dismissal entered on timeliness grounds).

We therefore REVERSE and REMAND this matter for additional proceedings.

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


text:
    Eric Donald JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3470
    District Court of Appeal of Florida, First District.
    September 5, 2018
    Andy Thomas, Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Eric Donald Jackson admitted to violating his probation and his corrected scoresheet reflected a total of 19 sentencing points. Pursuant to section 775.082(10), Florida Statutes (2015), the trial court was required to sentence Jackson to a nonstate prison sanction. However, the trial court made written findings that Jackson could present a danger to the public if subject only to a nonprison sanction and sentenced Jackson to 5 years' imprisonment. Jackson now raises a constitutional challenge to section 775.082(10), arguing that a jury, not a judge, is required to make the factual findings that were used to increase his punishment beyond the statutory maximum of a nonstate prison sanction.

The outcome of this case is controlled by our recent decision in Booker v. State , 244 So.3d 1151 (Fla. 1st DCA 2018). There, we held that section 775.082(10) was unconstitutional as it applied to Booker because it authorized the trial court to make factual findings that increased his maximum sentence from 1 year in county jail to 4 years in prison contrary to the holdings in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Booker , 244 So.3d at 1163-64 ; but see Brown v. State , 233 So.3d 1262 (Fla. 5th DCA 2017), review granted by 2018 WL 2069393 (Fla. Apr. 9, 2018). Here, the trial court made factual findings that increased Jackson's maximum sentence from 1 year in county jail to 5 years in prison. Thus, as required by our holding in Booker , we reverse Jackson's sentence and remand for resentencing under the prior version of section 775.082(10).

REVERSED and REMANDED .

Wolf, Lewis, and Rowe, JJ., concur.


text:
    Christopher BACHMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1723
    District Court of Appeal of Florida, First District.
    September 5, 2018
    Rachael E. Reese, O'Brien Hatfield, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Christopher Bachman appeals a "Final Order" denying almost all of his seventeen claims for postconviction relief raised pursuant to Florida Rule of Criminal Procedure 3.850. The circuit court issued the order after holding an evidentiary hearing.

One of the arguments Mr. Bachman asserts on appeal is that the court erred by not addressing one of his claims for relief. The claim alleged that defense counsel failed to object to certain improper and prejudicial arguments by the State.

Mr. Bachman is indeed correct that the court's order did not address the second of two claims that were labeled "Ground Six" in his motion. Rather than forming a basis to reverse the order, however, the lack of a ruling on this claim deprives this court of jurisdiction. See Hanner v. State , 228 So.3d 1161 (Fla. 1st DCA 2017) (dismissing where "[o]n appeal, Appellant argues that the postconviction court erred by failing to address all of the claims in his motion"). "It is well-settled that an order disposing of some, but not all of the claims in a motion for postconviction relief is not an appealable final order." Lake v. State , 53 So.3d 1125, 1126 (Fla. 1st DCA 2011). See also Fla. R. Crim. P. 3.850(f)(8)(C) ("The order issued after the evidentiary hearing shall resolve all the claims in the motion ...."). We therefore dismiss this appeal without prejudice to Mr. Bachman's ability to file a future appeal after the circuit court has ruled on all of his claims.

DISMISSED .

Wolf, Osterhaus, and Winsor, JJ., concur.


author: PER CURIAM.

text:
    S.C.B., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2627
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2018
    Daniel Wehking, Assistant Regional Counsel, Office of Regional Criminal Conflict & Civil Regional Counsel, 5th District, Casselberry, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 9, 2018 judgments and sentences rendered in Case Nos. 2018-CJ-001002-A, 2018-CJ-001116-A, 2018-CJ-001120-A, and 2018-CJ-001489-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., ORFINGER and EDWARDS, JJ., concur.


text:
    Tristan Jamaal FAIRLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2774
    District Court of Appeal of Florida, First District.
    September 5, 2018
    Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges his judgment and sentence for one count of trafficking in heroin and one count of possession of drug paraphernalia. We affirm but remand for correction of a scrivener's error in the judgment and sentence. Appellant filed a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), noting there was a scrivener's error in the statutory citations for the trafficking offense. The trial court granted the motion and entered an amended judgment and sentence that corrected this error on one page but failed to correct it on another. We remand for the trial court to correct the statutory citation for the trafficking offense on page 2 of the judgment and sentence to reflect section 893.135(1)(c)1., Florida Statutes.

AFFIRMED and REMANDED .

Wolf, Jay, and Winsor, JJ., concur.


text:
    Xavier Arsenio JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1854
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2018
    Robert Wesley, Public Defender and Robert Thompson Adams, IV, Assistant Public Defender, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We reverse the summary denial of Appellant's Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. Appellant filed a facially sufficient motion asserting that he was incompetent to proceed when he entered a plea in 2012. The post-conviction court summarily denied the motion based upon court minutes from separate cases from 2016, determining that Appellant's competency had been restored. These records do not conclusively refute Appellant's contention that he was incompetent in 2012.

Accordingly, we remand with instructions that the lower court either grant the relief, afford to Appellant an evidentiary hearing on his claim, or attach different records that conclusively refute the claim.

REVERSED AND REMANDED.

ORFINGER, TORPY and LAMBERT, JJ., concur.


author: SILBERMAN, Judge.

text:
    John Luke HENRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1254
    District Court of Appeal of Florida, Second District.
    Opinion filed September 7, 2018.
    Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SILBERMAN, Judge.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the revocation of John Luke Henry's drug offender probation and resulting sentence for dealing in stolen property. We remand only for the trial court to correct the written revocation order.

An amended violation of probation (VOP) affidavit alleged five new law violations that constituted violations of condition 5 of Henry's probation. At the VOP hearing, the State informed the court it would proceed on four of the five new law offenses as violations. After Henry admitted that he entered a plea to two of the charges (battery on a law enforcement officer and resisting arrest with violence) and had received six months in jail on them, the State informed the court it was striking the two conditions to which he did not enter a plea. Thus, only two violations remained. The trial court found Henry in violation based on the new law violations and revoked his probation.

Although there were only two violations of condition 5 remaining before the trial court at the hearing, the revocation order shows four violations of condition 5. Therefore, we remand for correction of the revocation order to reflect only two violations of condition 5. See Allen v. State, 228 So.3d 681, 681-82 (Fla. 2d DCA 2017) (remanding for correction of revocation order to conform to the oral pronouncement).

Affirmed and remanded.

CASANUEVA and MORRIS, JJ., Concur.


text:
    Lauren LINARES, Cecilia Loyola, James Stanley, Samuel Unger, Jacob Unger, Catherine Unger, Jessica Mager, Karl Mager, Marsha Mager, Amber Dinicola, Alexis Dinicola, Joseph Dinicola, Alexa McPheron, Michelle McPheron, Michelle Carvalho, Noah Radle, Benjamin Radle, Stephen Radle, Aj Nessler, Anthony Nessler and Alison Faiella, Appellants, v. SCHOOL BOARD OF PASCO COUNTY, Appellee.
    Case No. 2D17-1729
    District Court of Appeal of Florida, Second District.
    Opinion filed September 7, 2018
    Sharon Carlstedt Britton and Caroline Newton Catchpole of Phelps Dunbar LLP, Tampa, for Appellants.
    Dennis J. Alfonso and Knute J. Nathe of McClain, Alfonso, Meeker & Nathe, Dade City, for Appellee.
   PER CURIAM.

In this appeal, several Pasco County parents and students (Parents) challenged an Administrative Law Judge's determination that the Pasco County School Board validly exercised its delegated legislative authority in approving a change of school attendance boundaries for the 2017-2018 school year (the Attendance Boundary Rule). While this appeal was pending, the Parents also had pending in the trial court a related but separate lawsuit alleging that the School Board had violated Florida's Sunshine Laws during its deliberations on the Attendance Boundary Rule. The Parents prevailed in that lawsuit, and the trial court quashed the Attendance Boundary Rule. The trial court denied the School Board's subsequent motion for rehearing, and the School Board has not appealed.

The challenged rule having been quashed, this appeal is dismissed as moot. See Fla. Citizens All., Inc. v. Sch. Bd. of Collier Cty., 247 So.3d 720 (Fla. 2d DCA 2018) ; Lund v. Dep't of Health, 708 So.2d 645, 646 (Fla. 1st DCA 1998) ("The general rule in Florida is that a case on appeal becomes moot when a change in circumstances occurs before an appellate court's decision, thereby making it impossible for the court to provide effectual relief."); cf. Freni v. Collier County, 573 So.2d 1054, 1054 (Fla. 2d DCA 1991) (affirming an order denying as moot a temporary injunction to enjoin a referendum regarding a proposed tax where, after denial of the motion, the referendum was held and the appellants' position prevailed).

Dismissed.

VILLANTI, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.

      It appears that the School Board has since conducted additional proceedings and, based on those, has approved a new change of school attendance boundaries.