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    William Roger DAVIS, III, Appellant, v. STATE of Florida, Appellee.
    No. SC18-7
    Supreme Court of Florida.
    October 25, 2018
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Maria Christine Perinetti, Raheela Ahmed, and Lisa Marie Bort, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Pursuant to Florida Rule of Criminal Procedure 3.851, counsel for William Roger Davis, III, a prisoner under sentence of death, appeals the postconviction court's order dismissing the postconviction proceedings below but not discharging counsel. For the reasons explained below, we affirm the postconviction court's order.

BACKGROUND

A jury convicted Davis of first-degree murder, kidnapping, and sexual battery. Davis v. State , 148 So.3d 1261, 1264 (Fla. 2014). This Court's opinion on direct appeal explained the facts of the underlying crimes, which were committed in October 2009. Id. at 1265-66. Davis did not dispute that he committed the crimes but "contended at trial that he was insane at the time of these offenses." Id. at 1266.

After a penalty phase, where Davis "testified on his own behalf," id. at 1268, the jury recommended a sentence of death by a vote of seven to five. Id. at 1269. Following the jury's recommendation, the trial court-finding six aggravating factors, no statutory mitigation, and six nonstatutory mitigating circumstances-imposed a sentence of death. Id. at 1269-70.

On direct appeal, Davis challenged only his sentence of death. See generally id. Upon review, this Court affirmed Davis's convictions and sentence of death. Id. at 1283. His sentence of death became final in January 2015.

In December 2015, Davis filed a "Motion to Vacate Judgments of Conviction and Sentence of Death Pursuant to Florida Rule of Criminal Procedure 3.851," referred to herein as "Davis's Postconviction Motion." At a status conference on January 9, 2017, defense counsel advised the postconviction court that he had received a letter from Davis indicating that Davis "wished to waive all of his penalty phase claims," including his claim to Hurst relief. As a result, the postconviction court appointed two experts to evaluate Davis's competency.

While waiting for the experts to complete their reports, Davis, through counsel, filed a letter to the postconviction court. Davis's handwritten letter stated in full:

My name is William Roger Davis III ....
As you are no doubt aware, I have expressed my desire to waive my penalty phase claims in my pending Rule 3.851 motion.
One of the main reasons for this is that I am where I asked to be [and] believe I am where I should be. I have said that before; it's nothing new.
After a lot of reflection [and] conversations with family, I have decided that I would like to withdraw my entire pending Rule 3.851 motion. Yes, the entire motion.
The reasons are very simple. If I were to be given a new trial-a big if-it would then subject the [victim's] family to the whole thing all over again. I am not willing to do that. Nor am I willing to subject my family to that. Add to that the possibility of a life sentence that I don't want, and the choice is a clear one.
Thank you for everyone's time [and] I apologize for any inconvenience this may, or may have, caused.

Later, both experts submitted their reports, each finding that Davis was competent to proceed with waiving his pending rule 3.851 motion. No objections were made regarding the experts' findings. Thus, the postconviction court set a hearing to review whether Davis's waiver was valid. See Fla. R. Crim. P. 3.851(i)(6).

At the hearing, the following discussion took place regarding Davis's intent to dismiss his pending motion:

THE COURT: So it's my responsibility to determine that you are knowingly, voluntarily, and freely waiving your right to postconviction relief, you've been represented by Collateral Counsel in this matter during the entire course of this process. I've been apprised of the fact that you no longer want to proceed with your postconviction relief matters, and so I have to ask you: Is it your decision to waive your pending postconviction motions and discharge your counsel?
MR. DAVIS: I do want to discharge my motion, however, it's my understanding that through the 3.851 motion rule pertaining to this particular case that I'm supposed to waive my counsel. My counsel as well as CCR Middle are currently ...
....
MS. AHMED: We've talked to Mr. Davis about this for a while. His position is to waive his postconviction motions and the amended postconviction motion first. However, we'd ask the Court, and we spoke to Mr. Davis about keeping us as counsel, after the Court makes a determination about Mr. Davis' motion for purposes of, you know, competency down the road, any potential issues or federal issues that may come up. So certainly we would certainly ask the Court to allow us to stay on as counsel; we think it would be appropriate in the long [term].
THE COURT: And I have no problem with that.
MR. DAVIS: Okay.
THE COURT: So if you want me to continue your counsel in this case, I'm happy to do that for any issues that may arise in the future. But I have to tell you of a lot of things that will be like a domino effect and occur once you take these steps should you decide to do it. So that's why it's very important to go through each one of these questions.
MR. DAVIS: Okay.
THE COURT: So as far as your postconviction relief motions and the waiver of all of the ones that have been filed and are pending at this time; are you firm and fixed in that decision?
MR. DAVIS: Yes, sir.
THE COURT: Okay. Do you need any more time to talk to your lawyers prior to making this decision a finality?
MR. DAVIS: No, sir.
....
THE COURT: [D]o you understand that by waiving your right to a postconviction motion or a hearing on those motions, you are forever waiving your right to evidentiary hearing and to present eviden[ce] on your [behalf] at such a hearing?
MR. DAVIS: Yes, sir.
THE COURT: Do you understand the possible outcomes after an evidentiary hearing are that the Court may find you're entitled to a new guilt phase trial or a new penalty phase proceeding or no relief at all?
MR. DAVIS: Yes, sir.
THE COURT: Do you understand by waiving your postconviction motion at this stage you are waiving a right to have this Court make a determination on the merits of your motion?
MR. DAVIS: Yes, sir.

(Emphasis added.)

As to Davis's Hurst claim, which was raised in Davis's Postconviction Motion, the postconviction court explained that, on the merits, Davis would likely be entitled to a new penalty phase, at which the jury would be required to unanimously make all of the findings necessary to impose a sentence of death. See Mosley v. State , 209 So.3d 1248, 1253 (Fla. 2016) ; Hurst , 202 So.3d at 44. The postconviction court made clear to Davis that waiving this claim would be "for all time." Davis confirmed that he understood the permanent nature of the waiver and his intent to proceed with the waiver.

As to other possible claims and Davis's attorneys, the following discussion took place:

THE COURT: Do you understand that it is permanent and that you cannot wake up tomorrow morning or the next year or ten minutes after I make a decision or five years from now or at any point in time in the future and say that you've changed your mind?
MR. DAVIS: Yes, sir.
THE COURT: Do you understand that if the Court grants your request to discharge you-I'm sorry. I won't discharge your lawyers, but to dismiss your pending motions that you would be found warrant eligible , which means the governor of the State of Florida could sign a warrant for your execution?
MR. DAVIS: Yes, sir.
THE COURT: Do you understand that you are also permanently losing your right to take advantage of any changes that may occur in the law that could retroactively be applied to your case and benefit you?
... I'm not saying you don't have the right to challenge the legality of the way the sentence is carried out. So if there's challenges that come about to the Supreme Court with regard to the medications that are used for that purpose or the method by which they perform the execution ... those issues ... will stay with you to be able to challenge those parts of the process.
....
It's just the question of whether or not you can go forward and challenge your sentence of death and your postconviction ability to get ... postconviction relief at this time and have that hearing, you're giving that up. You're giving up the right to challenge the guilt phase findings, the penalty phase findings, and the sentence of death. It's most likely that when the governor gets to it, he'll issue the warrant. Whatever comes after that as far as warrant relief issues ... that relate to how the execution would be carried out is really always preserved constitutionally for you.... I would never allow you to waive that.

(Emphasis added.) Consistent with his handwritten letter, Davis confirmed that he understood the court's statements and intended to waive claims challenging "the guilt phase findings, the penalty phase findings, and the [imposition of a] sentence of death."

At several points during the hearing, Davis's counsel further explained the rights that Davis did not intend to waive:

MS. PERINETTI: Thank you, Your Honor, and that's why I wanted to address that. And that's partly why we want to remain as counsel, because just because he doesn't wish to have a new guilt phase or a new penalty phase and that he's accepting his sentence doesn't mean that he is consenting to the right to be tortured to death or anything like that.
THE COURT: Right.
....
MS. AHMED: [I]f I understand Mr. Davis' question, he wants to know what happens if, as in a Hurst situation or as in Freddy Lee Hall's case-or ... as in Atkins[ ] where they decide you cannot, you know execute mentally retarded or intellectually disabled people, and then Hurst where we found the-so the question becomes, and I explained to Mr. Davis, that when the law changes, we're going to have to see if it is retroactive to his case. If it is, certainly we will be counsel, we can make the appropriate pleadings and motions. If it is not, we can still fight and litigate should we believe it should be retroactive to him. But I did make clear-
THE COURT: As it pertains to Mr. Davis at the time that issue comes up as oppose[d] to what he is today, which is competent to proceed is what-
MS. PERINETTI: Right.
THE COURT: So I'm not hearing any objection that anyone's disagreeing that he's competent to proceed with these decisions today, what we're talking about. So I understand you and Mr. Davis understands, what I'm hearing is that should at some point in time Mr. Davis be found to be-suffer from a severe enough mental illness that under the then present law that an execution cannot be performed, and that's the type of issue that he wants to be able to preserve.
MR. DAVIS: Yes, sir....
THE COURT: And the methodology of how they carry out the execution as well, humaneness and those kinds of issues.
MR. DAVIS: Sure.
THE COURT: Of course those are always things that are challengeable for the Court as far as I'm concerned to the Court , but any other issues and what I meant by motions, writs, petitions, those things, the United States Supreme Court and court of appeals under the federal court system is all pertaining to the sentence of death and the postconviction relief. And the issues with ... regard to the guilt phase, penalty phase or sentence of death; just how they carry it out and who you are at that time or whether or not they can lawfully execute a person in your condition at that point.
MR. DAVIS: Yes, sir.

(Emphasis added.) After this explanation, the postconviction court again confirmed Davis's intent to proceed with dismissing the pending proceedings. Thus, as indicated above, Davis made clear that he intended to retain counsel in order to bring future claims, namely those related to his execution-claims challenging the method of execution or claims regarding whether he could constitutionally be executed. Cf. Atkins , 536 U.S. at 321, 122 S.Ct. 2242.

After the hearing, the postconviction court entered an "Order Dismissing Defendant's Motion to Vacate Judgments of Conviction and Sentence of Death Pursuant to Florida Rule of Criminal Procedure 3.851 and Second Amended Motion," referred to herein as "Postconviction Court's Order," stating in pertinent part:

After conducting an inquiry of the Defendant, the Court finds that the Defendant, William Roger Davis, III, has made the decision to dismiss his pending Rule 3.851 motion and terminate postconviction proceedings. He has done so fully aware of the legal consequences of that decision, including the legal consequences of abandoning his Hurst claims even though he would be entitled to Hurst relief. The Court also finds that [Davis's] decision to waive his pending Rule 3.851 motions was made knowingly, freely, and voluntarily. The Court notes that the Florida Supreme Court has not addressed whether a defendant can waive a Hurst claim, especially when the defendant would clearly be entitled to Hurst relief. However, in light of [Davis's] clear desire to dismiss his pending motions and terminate further postconviction proceedings, the Court finds that it [is] appropriate to grant [Davis's] request and to dismiss his pending motions.

Postconviction Ct.'s Order at 2-3 (emphasis added); see Fla. R. Crim. P. 3.851(i). Notably, the Postconviction Court's Order did not discharge Davis's counsel. The postconviction court allowed Davis to retain counsel to bring future, execution-related claims, such as "that an execution cannot be performed" or challenges to the "methodology of how they carry out the execution," as the court explained at the hearing. See Postconviction Ct.'s Order at 2. As required by rule 3.851(i)(8), Davis's counsel filed this appeal.

ANALYSIS

For the following reasons, we affirm the Postconviction Court's Order. This Court explained the basis for postconviction waivers in Trease v. State , 41 So.3d 119 (Fla. 2010) :

In Durocher [v. Singletary ], 623 So.2d [482,] 483 [ (Fla. 1993) ], this Court held that capital defendants who are competent can waive postconviction counsel and postconviction proceedings, reasoning "[i]f the right to representation can be waived at trial, we see no reason why the statutory right to collateral counsel cannot also be waived." This Court explained that it "cannot deny [a death row inmate] his right to control his destiny to whatever extent remains." [ Id. ] at 484. However, under such circumstances, this Court ruled that a Faretta -type inquiry was required to ensure that the waiver is knowing, intelligent, and voluntary. Id. at 485. Specifically, this Court stated the following:
[W]e also recognize that the state has an obligation to assure that the waiver of collateral counsel is knowing, intelligent, and voluntary. Accordingly, we direct the trial judge forthwith to conduct a Faretta -type evaluation of Durocher to determine if he understands the consequences of waiving collateral counsel and proceedings. If the judge finds a proper waiver by Durocher, he shall report that finding to this Court and the instant petition will be dismissed. If, however, Durocher does not understand the consequences of his decision, the judge shall report that fact to this Court and CCR will be allowed to proceed on Durocher's behalf. The attorney general's office and CCR may attend the evaluation, but may not participate unless permitted to do so by the judge. If the Faretta -type hearing raises questions in the judge's mind about Durocher's competency, he may order a mental health evaluation and make a competency determination thereafter.
Id.
Following Durocher , this Court has consistently held that both postconviction counsel and proceedings may be waived so long as the waiver is voluntary, knowing, and intelligent....
The procedures described in Durocher have been codified in rule 3.851(i), which applies when a defendant seeks to dismiss pending postconviction proceedings and discharge collateral counsel.

Id. at 123-24. Rule 3.851(i) states in pertinent part:

(7) If the court determines that the defendant has made the decision to dismiss pending postconviction proceedings and discharge collateral counsel knowingly, freely, and voluntarily, the court shall enter an order dismissing all pending postconviction proceedings and discharging collateral counsel. But if the court determines that the defendant has not made the decision to dismiss pending postconviction proceedings and discharge collateral counsel knowingly, freely, and voluntarily, the court shall enter an order denying the motion without prejudice.
(8) If the court grants the motion:
(A) a copy of the motion, the order, and the transcript of the hearing or hearings conducted on the motion shall be forwarded to the Clerk of the Supreme Court of Florida within 30 days; and
(B) discharged counsel shall, within 10 days after issuance of the order, file with the clerk of the circuit court 2 copies of a notice seeking review in the Supreme Court of Florida, and shall, within 20 days after the filing of the transcript, serve an initial brief. Both the defendant and the state may serve responsive briefs. Briefs shall be served as prescribed by rule 9.210.
(9) If the court denies the motion, the defendant may seek review as prescribed by Florida Rule of Appellate Procedure 9.142(b).

Fla. R. Crim. P. 3.851(i).

As the language of rule 3.851(i) indicates, postconviction waiver cases generally involve a defendant who seeks to waive both postconviction proceedings and counsel. See, e.g. , Robertson v. State , No. SC16-1297, 2016 WL 7043020, at *1 (Fla. Dec. 1, 2016) ; Slawson v. State , 796 So.2d 491, 492 (Fla. 2001) ; Durocher , 623 So.2d at 483. However, this case is atypical because Davis explicitly sought to waive only postconviction proceedings-not counsel-to preserve the right to raise potential future claims that may arise. While the State argues that the postconviction court should not have allowed counsel to remain on Davis's case because the postconviction waiver necessarily included a waiver of counsel and all future claims, a defendant has the right to enter a waiver to some or all postconviction claims.

THIS CASE

Although the validity of Davis's waiver is not challenged in this case, we conclude that the postconviction court did not abuse its discretion in determining that Davis's waiver was knowing, voluntary, and intelligent and, therefore, valid. The postconviction court also properly determined that Davis's waiver included his pending claim to Hurst relief. The record makes clear that Davis was aware that he was likely entitled to Hurst relief based on the jury's nonunanimous recommendation for death but nevertheless intended to waive that claim. See Mosley , 209 So.3d at 1253 ; Hurst , 202 So.3d at 44.

Consistent with the language of rule 3.851(i), the Postconviction Court's Order dismissed only Davis's pending claims. However, the colloquy made clear that Davis intended to permanently waive other claims, including those related to the guilt phase trial, the penalty phase trial, and the decision that death is the appropriate sentence in this case. Conversely, the record indicates that Davis also intended to retain counsel in order to preserve his ability to, if necessary, raise execution-related claims, such as challenging the intended method of execution or that he is otherwise ineligible for execution. Because Davis and his counsel made clear to the postconviction court that Davis did not intend to waive postconviction counsel or the right to bring execution-related claims, we conclude that the postconviction court properly allowed Davis to waive the instant proceedings while maintaining counsel.

CONCLUSION

For these reasons, we affirm the Postconviction Court's Order, finding Davis's waiver valid while permitting him to retain counsel for future claims, if any, related to his execution.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.

POLSTON, J., dissents with an opinion.

The majority's decision to affirm an order allowing Davis to waive only certain postconviction claims while retaining postconviction counsel to raise future claims violates our precedent as well as the plain language of Florida Rule of Criminal Procedure 3.851(i). Therefore, I respectfully dissent.

In Durocher v. Singletary , 623 So.2d 482, 485 (Fla. 1993), this Court held that capital defendants who are competent may waive postconviction counsel and postconviction proceedings if, after a Faretta -type hearing, the trial court determines that the capital defendant "understands the consequences of waiving collateral counsel and proceedings." This Court's authorization of a postconviction waiver in Durocher was based upon this Court's reasoning that, "[i]f the right to representation can be waived at trial, we see no reason why the statutory right to collateral counsel cannot also be waived." Durocher , 623 So.2d at 483. Further, this Court in Durocher , "[t]o forestall further argument, [also held] that CCR has no standing as a 'next friend' to proceed on Durocher's behalf." Id. at 485. Thus, Durocher only authorized a waiver of postconviction proceedings if the waiver was accompanied by a waiver of postconviction counsel.

"The procedures described in Durocher have been codified in rule 3.851(i), which applies when a defendant seeks to dismiss pending postconviction proceedings and discharge collateral counsel." Trease v. State , 41 So.3d 119, 124 (Fla. 2010) (emphasis added). In fact, subsection 3.851(i)(1) (emphasis added), expressly explains that "[t]his subdivision applies only when a defendant seeks both to dismiss pending postconviction proceedings and to discharge collateral counsel." Subdivision 3.851(i)(6) requires "a complete ( Durocher / Faretta ) inquiry to determine whether the defendant knowingly, freely and voluntarily wants to dismiss pending postconviction proceedings and discharge collateral counsel," and subdivision 3.851(i)(7) specifies that, "[i]f the court determines that the defendant has made the decision to dismiss pending postconviction proceedings and discharge collateral counsel knowingly, freely, and voluntarily, the court shall enter an order dismissing all pending postconviction proceedings." (Emphasis added.) However, "if the court determines that the defendant has not made the decision to dismiss pending postconviction proceedings and discharge collateral counsel knowingly, freely, and voluntarily, the court shall enter an order denying the motion without prejudice." Fla. R. Crim. P. 3.851(i)(7) (emphasis added).

Additionally, our precedent indicates that a valid waiver of both postconviction counsel and proceedings is a permanent waiver. "In James , 974 So.2d 365 [ (Fla. 2008) ], this Court did not allow the reappointment of counsel to resume postconviction proceedings after a prior waiver of postconviction counsel and proceedings." Trease , 41 So.3d at 125-26. In James , 974 So.2d at 368, this Court held that "a mere change of mind is an insufficient basis for setting aside a previous waiver." This Court also prohibited reinstatement of postconviction counsel and postconviction proceedings in Trease , 41 So.3d at 126, reasoning as follows:

If this Court were to allow Trease to reinstate his postconviction proceedings based upon a mere change of mind, there would be nothing to stop Trease from changing his mind again at a later date. In fact, based upon Trease's history, this is a likely scenario. Then, the trial court would be required to conduct another Durocher hearing because Trease has a right to waive postconviction counsel and proceedings. Thereafter, Trease could again change his mind, and the trial court would be required to reinstate the postconviction proceedings. The cycle could continue indefinitely. Cf. Waterhouse v. State , 596 So.2d 1008, 1014 (Fla. 1992) ("[A] defendant may not manipulate the proceedings by willy-nilly leaping back and forth between the choices [of self-representation and appointed counsel]." (quoting Jones v. State , 449 So.2d 253, 259 (Fla. 1984) ) ).

To summarize, our precedent and the plain language of the rule contemplate a valid waiver to be permanent and to include a waiver of all postconviction proceedings as well as a waiver of postconviction counsel. In other words, contrary to the majority's holding today, our precedent and the plain language of the rule do not authorize a partial waiver of only some postconviction claims while retaining postconviction counsel to raise postconviction claims at some point in the future. Accordingly, I respectfully dissent.

      We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

      The trial court found the following aggravating factors, assigning each great weight:
      (1) Davis was on felony probation when the murder was committed; (2)Davis was previously convicted of a felony involving the use or threat of violence to another person; (3) the murder was especially heinous, atrocious, or cruel (HAC); (4) the murder was committed in the course of committing sexual battery or kidnapping; (5) the murder was committed to avoid arrest; and (6) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP).
      Davis , 148 So.3d at 1269-70. As to statutory mitigation, the trial court "specifically reject[ed] the statutory mitigating circumstance that Davis committed the murder while under the influence of an extreme mental or emotional disturbance." Id. at 1270. As to nonstatutory mitigation, the trial court found the following six nonstatutory mitigating circumstances and assigned each the noted weight:
      (1) Davis suffers from long-term chronic mental health problems (some weight); (2) Davis can be properly treated with medication (some weight); (3) Davis is able to currently adapt to imprisonment (little weight); (4) Davis is able to hold employment (some weight); (5) Davis showed remorse for the murder (some weight); and (6) Davis showed appropriate courtroom demeanor (substantial weight).
      Id.

      After several amendments, Davis's Postconviction Motion claimed that trial counsel was ineffective for the following reasons: (1) failing to move the court to redact the irrelevant and highly prejudicial portions of Investigator Hemmert's first interview of Davis after the crime; (2) failing to move for a mistrial due to prosecutorial misconduct during Dr. Golden's testimony; (3) regarding Davis's prior insanity plea in the Tenth Judicial Circuit; (4) stipulating to the introduction of the certified judgments and sentences setting forth Davis's prior convictions during the guilt phase; (5) failing to limit evidence of a prior act for which Davis was never convicted; (6) failing to impeach a witness for whom the State knowingly failed to correct false testimony that was material in violation of Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; (7) failing to object to improper victim-impact evidence regarding the victim's brother; and (8) failing to object to prosecutorial misconduct when the State insinuated a motive for Davis's conduct after the crime and for failing to ask the court to take judicial notice of the time the sun set on the day of the crime. The motion further raised the following claims: (9) "the cumulative effect of the constitutional errors alleged under claims 1 through 8 deprived ... Davis of his Sixth Amendment right to a fair trial with the effective assistance of counsel"; (10) the Eighth Amendment of the United States Constitution prohibits the execution of a mentally ill person; (11) Davis "may be incompetent at the time of execution, in which case his Eighth Amendment right to be free from cruel and unusual punishments will be violated"; (12) Davis's sentence of death is unconstitutional under Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State(Hurst) , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; and (13) Davis's sentence of death is unconstitutional under the Eighth Amendment. The postconviction court granted an evidentiary hearing on claims 1-7. Davis waived his right to be present at the evidentiary hearing.

      Hurst v. State(Hurst) , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

      Present at the hearing were counsel for the State-Anna Valentini (Assistant State Attorney), Tayo Popoola (Assistant Attorney General)-counsel for Davis-Raheela Ahmed (CCRC Middle), Lisa Bort (CCRC Middle), Maria Perinetti (CCRC Middle)-and Davis.

      Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

      The postconviction court also confirmed that Davis was not under the influence of any medicines, drugs, or alcohol that affected his ability to enter the waiver and was not threatened, influenced, or bribed to enter the waiver. See Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; McGirth v. State , 209 So.3d 1146, 1156-57 (Fla. 2017).

      This case indicates that the language of rule 3.851(i) may be inconsistent with this Court's case law in two ways. First, the rule may not have contemplated partial waivers, such as here, where the defendant does not seek to waive both postconviction proceedings and counsel. Second, this Court's case law has interpreted waivers as encompassing all postconviction claims, possible future changes in the law, and execution-related challenges, despite the rule providing for the waiver of only "pending" claims. As a result, we refer this matter to the Criminal Court Steering Committee to consider possible revisions to rule 3.851(i).

      Of course, a majority of this Court has held that capital defendants may not appear pro se in any postconviction appeals. See Gordon v. State , 75 So.3d 200 (Fla. 2011). This Court has also prohibited capital defendants from appearing pro se in direct appeals. See Davis v. State , 789 So.2d 978 (Fla. 2001).

      I would be open to amending rule 3.851(i) to provide a mechanism for raising narrow claims, with representation, relating to execution, including claims that the defendant is incompetent or that the execution method is unconstitutional.


source: Caselaw Access Project

license: Public Domain

text:
    Jonathan HARDT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1136
    District Court of Appeal of Florida, First District.
    November 6, 2018
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
    November 15, 2018
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    District Court of Appeal of Florida, First District.
    November 15, 2018
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    No. 1D18-1130
    District Court of Appeal of Florida, First District.
    November 14, 2018
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    Cheryl RICHARDSON, Appellant, v. MEMORIAL HOSPITAL/BROADSPIRE, Appellee.
    No. 1D18-1274
    District Court of Appeal of Florida, First District.
    November 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John James DEAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-172
    District Court of Appeal of Florida, First District.
    November 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Greg WAKEHAM, John Freer and Joseph P. Freer, Appellants, v. Stephen BUERO and Paradis Holdings, LLC, Appellees.
    No. 1D17-2352
    District Court of Appeal of Florida, First District.
    November 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Sonny Lee SCALLION, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5568
    District Court of Appeal of Florida, First District.
    November 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Earon TYLER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.:2D18-0955
    District Court of Appeal of Florida, Second District.
    November 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    David J. ROY, Appellant/Petitioner(s), v. BRANCH BANKING AND TRUST COMPANY, Appellee/Respondent(s).
    CASE NO.: 2D18-1056
    District Court of Appeal of Florida, Second District.
    October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Ravis M. WILLIAMS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1091
    District Court of Appeal of Florida, Second District.
    August 14, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Victor GAVILLAN-MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5295
    District Court of Appeal of Florida, First District.
    March 6, 2018 Rehearing Denied May 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, et al., Appellant/Petitioner(s), v. BAY AREA INJURY REHAB SPECIALISTS HOLDINGS, INC., Appellee/Respondent(s).
    CASE NO.: 2D18-1294
    District Court of Appeal of Florida, Second District.
    November 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    OUTBIDYA, INC., Appellant/Petitioner(s), v. WILMINGTON SAVINGS FUND SOCIETY FSB, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-3523
    District Court of Appeal of Florida, Second District.
    November 05, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Angela DEBOSE, Appellant/Petitioner(s), v. UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, Appellee/Respondent(s).
    CASE NO.: 2D18-3940
    District Court of Appeal of Florida, Second District.
    November 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Manuel A. RODRIGUEZ, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2485
    District Court of Appeal of Florida, Second District.
    August 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    DEERFIELD BEACH OUTPATIENT SURGERY CENTER, LLC, Appellant/Petitioner(s), v. David R. THOMAS and Thomas G. Simota, Appellee/Respondent(s).
    CASE NO.: 2D18-3472
    District Court of Appeal of Florida, Second District.
    November 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Nelson Camilo NAVARRO, Appellant/Petitioner(s), v. Ricky WELLS, Sheriff, Appellee/Respondent(s).
    CASE NO.: 2D18-4049
    District Court of Appeal of Florida, Second District.
    October 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Carmen A. ZAMMIELLO, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3333
    District Court of Appeal of Florida, Second District.
    October 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    David LEAKS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3950
    District Court of Appeal of Florida, Second District.
    October 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Daryl PETERSON, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4043
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Jamel Lee BELL, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3231
    District Court of Appeal of Florida, Second District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Melvin PENN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3261
    District Court of Appeal of Florida, Second District.
    October 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Tajhon WILSON, Appellant/Petitioner(s), v. Mary Elizabeth KUENZEL, Clerk, Appellee/Respondent(s).
    CASE NO.: 2D18-3720
    District Court of Appeal of Florida, Second District.
    October 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    D.M., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-2911
    District Court of Appeal of Florida, Second District.
    November 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    SPORTS & ORTHOPEDIC REHABILITATION SERVICES, INC., et al., Appellant/Petitioner(s), v. Elsie M. RICHARDSON, Appellee/Respondent(s).
    CASE NO.: 2D18-3239
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    FAGAN ALLIGATOR FARM, LLC, Appellant/Petitioner(s), v. SOUTHERN OWNERS INSURANCE COMPANY, Appellee/Respondent(s).
    CASE NO.: 2D18-4039
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    J.R.H., Appellant/Petitioner(s), v. M.E.M., Appellee/Respondent(s).
    CASE NO.: 2D18-1519
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    L. M. W., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-3268
    District Court of Appeal of Florida, Second District.
    November 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    B.A., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-3540
    District Court of Appeal of Florida, Second District.
    November 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    VELASQUEZ & COLINDRES CARPENTRY, LLC, Appellant/Petitioner(s), v. OMEGA CONSTRUCTION OF FLORIDA, LLC, Natalie Cacciatore, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-4070
    District Court of Appeal of Florida, Second District.
    November 08, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Zolia V. WILLIAMS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3304
    District Court of Appeal of Florida, Second District.
    October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Jeramy Michael HOLDER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3316
    District Court of Appeal of Florida, Second District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Roland Blake HATTON, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3974
    District Court of Appeal of Florida, Second District.
    October 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    William PARSON, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3533
    District Court of Appeal of Florida, Second District.
    October 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Tory R. WILLIAMS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1508
    District Court of Appeal of Florida, Second District.
    October 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Roy L. BROWN, Appellant/Petitioner(s), v. GROW FINANCIAL CREDIT UNION, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-4503
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Todd BULGER, Appellant/Petitioner(s), v. The BOARD OF TRUSTEES OF the CITY PENSION FUND FOR FIREFIGHTERS AND POLICE OFFICERS IN the CITY OF TAMPA, Appellee/Respondent(s).
    CASE NO.: 2D18-4445
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    BY ORDER OF THE COURT:
   Petitioner's notice of voluntary dismissal is accepted and this petition for writ of certiorari is dismissed.


text:
    Jose L. GUTIERREZ, Appellant/Petitioner(s), v. DEPARTMENT OF REVENUE, Appellee/Respondent(s).
    CASE NO.: 2D18-3573
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Todd Michael HENRY, Appellant/Petitioner(s), v. Laura Ann MORELLI, Appellee/Respondent(s).
    CASE NO.: 2D18-2875
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Thomas E. KENVILLE, et al., Appellant/Petitioner(s), v. Robert BOYKIN, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-2569
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Euclides RIVERA, et al., Appellant/Petitioner(s), v. WILMINGTON SAVINGS FUND SOCIETY, FSB D/B/A Christiana Trust, Appellee/Respondent(s).
    CASE NO.: 2D17-4253
    District Court of Appeal of Florida, Second District.
    November 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Trentair Lavent BINGHAM, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4214
    District Court of Appeal of Florida, Second District.
    October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Nicky Joe PASQUALE, Appellant/Petitioner(s), v. Tamara Kathleen PASQUALE, Appellee/Respondent(s).
    CASE NO.: 2D18-3527
    District Court of Appeal of Florida, Second District.
    October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    A.M.R., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-3411
    District Court of Appeal of Florida, Second District.
    November 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    K.R., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-2091
    District Court of Appeal of Florida, Second District.
    November 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    J.R., Jr., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-2753
    District Court of Appeal of Florida, Second District.
    November 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Albert M. ROBINSON, Appellant/Petitioner(s), v. Jesse J. STOCKLEN and Jason J. Cotton, Appellee/Respondent(s).
    CASE NO.: 2D18-3299
    District Court of Appeal of Florida, Second District.
    October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    A.S., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-2797
    District Court of Appeal of Florida, Second District.
    November 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Lonnie Joe WALDEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2435
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jose MEDINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1214
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    NUMERO 991, LLC, Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0603
    District Court of Appeal of Florida, Third District.
    July 9, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    Adam SHEDROFF, Appellant(s)/Petitioner(s), v. CITY OF MIAMI BEACH, Florida, etc., et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1091
    District Court of Appeal of Florida, Third District.
    AUGUST 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Alexander DIAZ, et al., Appellant(s)/Petitioner(s), v. MONROE COUNTY, Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1588
    District Court of Appeal of Florida, Third District.
    AUGUST 08, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Valentin SPATARU, Appellant(s)/Petitioner(s), v. FLORIDA DEPARTMENT OF TRANSPORTATION, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2295
    District Court of Appeal of Florida, Third District.
    AUGUST 7, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied. Dismissed.


text:
    Richard Lee TERRY, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0144
    District Court of Appeal of Florida, Third District.
    JULY 05, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Altaria BUTLER, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0024
    District Court of Appeal of Florida, Third District.
    MAY 02, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    M.T., The Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s).
    CASE NO.: 3D17-2788
    District Court of Appeal of Florida, Third District.
    APRIL 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Dismissed.


text:
    Matthew COOPER, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2623
    District Court of Appeal of Florida, Third District.
    APRIL 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    V.J.R., the Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0097
    District Court of Appeal of Florida, Third District.
    APRIL 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Donny MARIN and Lorenzo Perez, Jr., Appellants, v. The BANK OF NEW YORK, etc., Appellee.
    No. 3D17-1730
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    T.M.F-C., the Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0152
    District Court of Appeal of Florida, Third District.
    APRIL 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Dismissed.


text:
    C.X., The Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0290
    District Court of Appeal of Florida, Third District.
    APRIL 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    B.T., The Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0029
    District Court of Appeal of Florida, Third District.
    APRIL 06, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    ORANGE REALTY MIAMI, INC., etc., Appellant, v. EL CHIOGGIOTTO CONDOMINIUM ASSOCIATION, INC., et al., Appellees.
    No. 3D18-245
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    D.G., Appellant(s)/Petitioner(s), v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-0090
    District Court of Appeal of Florida, Third District.
    MAY 14, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    J.R., the Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2790
    District Court of Appeal of Florida, Third District.
    APRIL 05, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    K.C., Foster Parents, et al., Appellant(s)/Petitioner(s), v. R.L., Mother and E.C., Father, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0889
    District Court of Appeal of Florida, Third District.
    MAY 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    L.H., the Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0305
    District Court of Appeal of Florida, Third District.
    MAY 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    J.B., the Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0370
    District Court of Appeal of Florida, Third District.
    MAY 08, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Dismissed.


text:
    A.J., a Juvenile, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0767
    District Court of Appeal of Florida, Third District.
    MAY 07, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Artavious WEST, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-2481
    District Court of Appeal of Florida, Fourth District.
    November 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Norman SCOTT and Jacqueline Scott, Appellant, v. SHOMA AT ROYAL PALM CONDOMINIUM ASSOC., INC., Appellee.
    No. 4D16-2268
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joel JASMIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-299
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    C.D., the Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0681
    District Court of Appeal of Florida, Third District.
    JUNE 01, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Ibraheem JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-837
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rachel PAPLOW, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1389
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Thoniel NOEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1889
    District Court of Appeal of Florida, Fourth District.
    November 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Luis OLIVARES-ROSARIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2088
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Maria MOSCARITOLO, Appellant, v. VENTURES TRUST 2013-I-H-R BY MCM CAPITAL PARTNERS, LLC, its Trustee, Appellee.
    No. 4D17-2319
    District Court of Appeal of Florida, Fourth District.
    November 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Justin CHISM, Appellant, v. Matthew Lee SEACRIST, Individually, Transdev Services, Inc., a Foreign Profit Corporation, and Veolia Transportation Maintenance and Infrastructure, Inc., a Foreign Profit Corporation, Appellees.
    No. 4D17-2773
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Shawn Allen BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2788
    District Court of Appeal of Florida, Fourth District.
    November 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Primo J. MORABITO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2878
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    M.L., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Guardian Ad Litem and J.P.F.B., the Father, Appellees.
    No. 4D18-2262
    District Court of Appeal of Florida, Fourth District.
    [November 2, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Theresa BATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2906
    District Court of Appeal of Florida, Fourth District.
    November 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    B.R.T., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-3039 4D17-3041
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Andrew MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2517
    District Court of Appeal of Florida, Fourth District.
    November 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marla YOUNG and Sonny Steel, Appellants, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Road Rangers of Broward, Inc., Sunshine Towing At Broward, Inc., and AECOM Technical Services, Inc., Appellees.
    No. 4D17-2409
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Corina Castillo MARQUEZ, Appellant, v. Fredy LOPEZ, Appellee.
    No. 4D17-2775
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Diane Neaman MANN, Appellant, v. PNC BANK, NATIONAL ASSOCIATION, Appellee.
    No. 4D17-3111
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    ADVANTA IRA SERVICES, LLC, FBO COHEN IRA #8003614, Appellant, v. JOY'S LIQUOR LLC, a Florida Limited Liability Company, Pradeep P. Sawh, Individually, Premier Beverage Company, LLC, a Delaware Limited Liability Company Authorized to Do Business in the State of Florida, the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco and the State of Florida Department of Revenue, Appellees.
    No. 4D18-1996
    District Court of Appeal of Florida, Fourth District.
    November 14, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sandra LARIVIERE, Appellant, v. HSBC BANK USA, N.A., AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, Mortgage Asset-Backed Pass-Through Certificates, Series 2007-PA3, Appellee.
    No. 4D17-2408
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    A.A., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian ad Litem Program, Appellee.
    Nos. 4D18-2099 & 18-2100
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Antonio BRYANT, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2967
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Timothy R. DACEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2780
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jean LOUVERTURE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2645
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jose Manuel VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2559
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    James FIELDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3273
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    QUEEN OF PAWNS & JEWELLERY, INC., d/b/a Queen of Pawns 5, Appellant, v. Edward F. KINNEY, Appellee.
    Case No. 5D17-2825
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Baron Duane HOGAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2128
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jean David GERMAIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-921
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    S.B., Father of M.S.H.F.K. and J.S.F.K., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-2069
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 14, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Grace Singh BHAIRO and Sergio Bhairo, Appellants, v. WACHOVIA MORTGAGE, FSB, Appellee.
    Case No. 5D17-3450
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    A.T., Father of A.T., D.T., and A.T. Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case Nos. 5D18-2482 5D18-2485
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Marlo J. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-361
    District Court of Appeal of Florida, Fifth District.
    Decision filed November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Levine, J.

text:
    TWIN RIVERS ENGINEERING, INC., Appellant, v. PACER USA, LLC, a Pennsylvania corporation, qualified to do business in Florida, Appellee.
    No. 4D17-3730
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Tino Gonzalez of Tino Gonzalez, P.A., Melbourne, for appellant.
    Susan V. Warner of FisherBroyles, LLP, Jacksonville, for appellee.
   Levine, J.

Pacer USA, LLC ("seller") sued Twin Rivers Engineering, Inc. ("buyer") for non-payment of goods the buyer claimed were defective. The seller moved for summary judgment, arguing that the buyer did not return the goods within thirty days as required by the terms and conditions allegedly attached to the quote sent to the buyer. The trial court granted summary judgment in favor of the seller despite the buyer's contention that it never received the terms and conditions. The seller said the terms and conditions were attached to the quote. Due to this conflict, we agree a genuine issue of material fact exists as to whether the terms and conditions were made part of the agreement. Thus, we reverse.

The seller issued a quote to the buyer for 10,000 pyroelectric detectors for $14.63 each. The quote stated, "All items are subject to our Standard Terms and Conditions, a copy of which is attached." The terms and conditions provided, in relevant part:

The Buyer shall have the right to inspect the goods upon tender of delivery. Failure of the Buyer to inspect the goods and give written notice to the Seller of any alleged defect or nonconformity within thirty (30) days after tender of delivery shall constitute an irrevocable acceptance by Buyer of the goods delivered to him. Notwithstanding the foregoing, use of any such goods by Buyer, its agents, employees or licensees, for any purpose after delivery thereof, shall constitute acceptance of the goods by Buyer.

The buyer sent a purchase order to the seller for the detectors. The seller shipped a total of 6,000 detectors to the buyer and issued invoices for $87,780. The buyer did not pay the invoices or give notice within thirty days from the date of delivery of any defects in the detectors.

The seller filed a complaint against the buyer for breach of contract, among other causes of action. The buyer filed an answer and affirmative defenses, denying that the terms and conditions were attached to the quote and asserting that the detectors were defective. As affirmative defenses, the buyer alleged that (1) the only binding terms were contained in the quote and purchase order; (2) the detectors were not of merchantable quality; (3) the seller had unclean hands; (4) the detectors were defective in design and manufacture; (5) the seller breached its express warranty because the detectors provided did not conform to previous samples; (6) the buyer was entitled to a setoff because the defective detectors caused the buyer to lose $1 million in orders from customers; (7) the seller knew the detectors had a design defect; (8) the seller failed to mitigate damages by refusing to accept return of the detectors and sending additional detectors after being informed that the buyer was experiencing problems with the detectors; (9) the seller was negligent; (10) the seller's alleged damages were unrelated to the buyer's conduct; and (11) the buyer rejected the detectors within a reasonable time after delivery.

The seller moved for summary judgment. In support, the seller submitted an affidavit from its general manager stating that the buyer blamed issues it was having with the detectors on the manufacturer who was incorporating the detectors into the buyer's product. The seller also submitted an affidavit from a sales manager stating that every quote sent to the buyer during their business relationship had contained a copy of the terms and conditions.

In opposition to the motion for summary judgment, the buyer filed an affidavit from its president stating that the terms and conditions were not attached to the quote. The affidavit stated that the detectors were defective in their design and manufacturing process and did not comply with the samples previously sent. The affidavit also stated that after the buyer discovered the defect through testing, the buyer sought to return 4,000 defective detectors, but the seller refused to accept them.

After a hearing, the trial court granted summary judgment in favor of the seller and subsequently entered a final judgment for $87,780.

An order granting summary judgment is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. Once the party moving for summary judgment "tenders competent evidence to support his motion, the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist." Landers v. Milton , 370 So.2d 368, 370 (Fla. 1979).

The trial court erred in granting summary judgment because genuine issues of material fact remained as to whether the buyer received the terms and conditions and, relatedly, whether the terms and conditions were part of the parties' agreement. The seller argues that the buyer incorporated the detectors into the buyer's product and did not notify the seller of any defect within thirty days as required by the terms and conditions. However, this argument presumes that the buyer actually received the terms and conditions. Although the seller submitted an affidavit that the terms and conditions were attached to the quote, the buyer submitted a competing affidavit specifically denying that the terms and conditions were attached to the quote. This gives rise to a material issue of fact. Whether the terms and conditions were attached to the quote is the relevant question as to whether they were a part of the parties' agreement. See BGT Grp., Inc. v. Tradewinds Engine Servs., LLC , 62 So.3d 1192, 1194-95 (Fla. 4th DCA 2011) (holding that where invoice stated that order was subject to attached terms and conditions but invoice contained no attachment, terms and conditions were not incorporated by reference because quote and purchase order did not sufficiently describe the terms and conditions).

The seller argues that affirmance is warranted even if the standard terms and conditions were not part of the agreement because the buyer did not timely reject the goods. § 672.602(1), Fla. Stat. (2016) ("Rejection of goods must be within a reasonable time after their delivery or tender."). However, whether the buyer's rejection of goods was within a reasonable time pursuant to the UCC is a factual issue to be decided by a jury and cannot be resolved on summary judgment. See Ballas v. Spolyar , 548 So.2d 1168, 1169 (Fla. 2d DCA 1989) ; Bair v. A.E.G.I.S. Corp. , 523 So.2d 1186, 1188 (Fla. 2d DCA 1988).

In sum, because issues of material fact remain, we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

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

      Buyer used the pyroelectric detectors in a device it developed to detect refrigerant gas leaks.


author: Per Curiam.

text:
    Igal ELHARRAR, Appellant, v. LAGO DEL REY CONDOMINIUM, INC. 1, Appellee.
    No. 4D18-2063
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Igal Elharrar, Boca Raton, pro se.
    No brief filed for appellee.
   Per Curiam.

Affirmed. See Fla. R. App. P. 9.315(a).

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


text:
    Neil LONDON, Appellant, v. John TEMERIAN, Appellee.
    No. 4D18-1092
    District Court of Appeal of Florida, Fourth District.
    [November 7, 2018]
    Troy William Klein of Law Office of Troy W. Klein, P.A., West Palm Beach, for appellant.
    Shai Ozery of Posada, Taddeo, Dietiker, P.A., Coral Springs, for appellee.
   Per Curiam.

Neil London appeals an order involuntarily dismissing his complaint and an order denying his verified motion to set aside the dismissal. We reverse.

The dismissal was entered as a result of London's counsel's failure to comply with the pre-trial order and failure to appear at calendar call. Thereafter, counsel moved to set aside the dismissal, explaining that he was unaware of the pre-trial order because of the death of his staff person. After a hearing, the motion was denied.

Although "[d]ismissing a complaint as a sanction for failing to appear is within the trial court's discretion.... a dismissal is too severe a sanction for failure to attend a pre-trial conference 'absent a record showing of willful or intentional disregard of a court order.' " Adlington v. Fla. Parole Com'n , 824 So.2d 256, 257 (Fla. 4th DCA 2002) (quoting Garland v. Dixie Ins. Co. , 495 So.2d 785, 785 (Fla. 4th DCA 1986) ). Accordingly, this court has long held that the trial court must expressly find willful noncompliance with or deliberate disregard of a court order before dismissing an action for noncompliance, and must include such a finding in the order of dismissal:

"An order dismissing a complaint as a sanction must 'contain an explicit finding of willful noncompliance.' " Carpenter v. McCarty , 810 So.2d 1053, 1054 (Fla. 4th DCA 2002) (quoting Commonwealth Fed. Sav. & Loan Ass'n v. Tubero , 569 So.2d 1271, 1273 (Fla.1990) ); see also Adlington v. Florida Parole Com'n , 824 So.2d 256, 257 (Fla. 4th DCA 2002) (citing Lenfestey v. U.S. Balloon Corp ., 699 So.2d 850 (Fla. 4th DCA 1997) ). The order granting dismissal with prejudice must include an explicit finding of willfulness, even when the lower court cites, with specificity, substantial facts that would support a finding of willfulness. Carpenter , 810 So.2d at 1054.

Young v. USAA Cas. Ins. Co. , 80 So.3d 1147, 1147-48 (Fla. 4th DCA 2012).

Because the orders on appeal do not contain a finding that appellant or his counsel willfully failed to comply with the court order, we reverse and remand for the trial court to conduct further proceedings.

Damoorgian, Klingensmith, JJ., and Kanner, Daniel J., Associate Judge, concur.


text:
    Robert D. CUMMINGS, Appellant, v. Nicole CUMMINGS, Appellee.
    No. 4D18-456
    District Court of Appeal of Florida, Fourth District.
    [October 31, 2018]
    Robert D. Cummings, North Port, pro se.
    No appearance for appellee.
   Per Curiam.

Affirmed. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979) ("When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.").

Warner, May and Forst, JJ., concur.


text:
    Michael Newkirk CORCORAN, Appellant, v. Jessica GRATTAN, Appellee.
    No. 4D18-2176
    District Court of Appeal of Florida, Fourth District.
    [November 7, 2018]
    Michael Newkirk Corcoran, Oakland Park, pro se.
    No brief filed on behalf of appellee.
   Per Curiam.

Affirmed. See Fla. R. App. P. 9.315(a).

May, Ciklin and Levine, JJ., concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Anthony COWART, DOC #H12326, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2820
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Without alteration other than the first letter, the operative "information" in this case charged Anthony Cowart with "FAILURE OF SEXUAL PREDATOR TO REREGISTER OR PROVIDE REQUIRED INFORMATION" in a single count as follows:

[O]n or between September 2, 2016 and September 29, 2016, in the County of Polk and State of Florida, ANTHONY FRANK COWART, a sexual predator, did knowingly and unlawfully fail to register, or after registering, did fail to provide during reregistration all changes to his address of a current temporary residence within the state or out of state, a rural route address and a post office box if there was no permanent or temporary address, a transient residence within the state, the address, location and description and dates of any current or known future temporary residences within the state or out of state, and/or failed to register in person at an office of the sheriff within 48 hours after establishing a permanent, temporary or transient residence within this state, and/or he failed to report in person to an office of the sheriff within 48 hours of vacating his permanent, temporary, or transient address and failing to establish or maintain another permanent, temporary or transient address, contrary to Florida Statute 775.21. (3 DEG FEL) (LEVEL 7)

Notwithstanding the State's indefensible linguistic buckshot, we affirm in light of the only challenges that Cowart has raised on appeal or below, which are that the information fails to charge an offense and fails to charge all of the elements of the violation of section 775.21(6)(g)(2)(b), Florida Statutes (2016), of which Cowart was convicted, i.e., that, having reported in person at the sheriff's office in the county in which he was located within forty-eight hours after establishing a transient residence, he failed to "report in person every 30 days to the sheriff's office in the county in which he ... [was] located while maintaining a transient residence" and failed to "provide the addresses and locations where he ... maintain[ed] a transient residence."

As an initial matter, and as is abundantly clear, the information charges a whole host of offenses. But we agree with Cowart that the information, in fact, omits two of the essential elements of the offense of failing to report a transient address every thirty days after initially establishing a transient residence as required by section 775.21(6)(g)(2)(b). Although the State alleged that Cowart is a sexual predator, it alleged neither that he had previously established a transient residence in Polk County nor that that he failed to report all of his transient residences within thirty days of the date that he had last reported all of his transient residences. See Fla. Std. Jury Instr. (Crim.) 11.15(m) (providing that the second element of the offense is that "(Defendant) established a transient residence in (name of county) County, Florida" and that the third element of the offense is that "(Defendant) knowingly failed to report the address and location where [he] [she] maintained a transient residence, in person, to the office of the sheriff in the county in which [he] [she] maintained a transient residence, every 30 days after [he] [she] initially reported to the sheriff that [he] [she] had established a transient residence"). The information's general citation to section 775.21 cannot begin to remedy the failure to charge these two essential elements because, as we noted in Richards v. State, 237 So.3d 426, 429-30 (Fla. 2d DCA 2018), and as is apparent from the information itself, that roughly eight-page statute contains a plethora of registration requirements, with even single paragraphs implicating multiple possible infractions.

The failure to adequately charge an offense, however, is not per se reversible error because "[g]enerally the test for granting relief based on a defect in the information is actual prejudice to the fairness of the trial." Weatherspoon v. State, 214 So.3d 578, 584 (Fla. 2017) (quoting Price v. State, 995 So.2d 401, 404 (Fla. 2008) ); see also Fla. R. Crim. P. 3.140(o) ("No ... information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the ... information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the ... information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense."). Notwithstanding the defective information, Cowart plainly was not misled or embarrassed in the preparation of his defense. At trial, the State introduced evidence sufficient to show that Cowart had established a transient residence in Polk County in 2014 and had registered it with the Polk County Sheriff's Office (PCSO) and that he had been complying with the requirement to report all of his transient residences to the PCSO every thirty days but that, after reporting on August 2, 2016, he had failed to report again until September 29, 2016. Far from expressing uncertainty of the charge against him, Cowart vehemently protested to the jury that he had not knowingly violated the thirty-day requirement because he had innocently misinterpreted it to mean that he had to report his transient residences once every calendar month. Moreover, he did not object to the trial court's instruction to the jury pursuant to Florida Standard Jury Instruction (Criminal) 11.15(m), which accompanies the thirty-day-transient-residence-reporting requirement in section 775.21(6)(g)(2)(b), and he has never suggested that he could again be subject to prosecution for the same offense.

Accordingly, Cowart's only challenges to the information on appeal and below afford him no relief. Cf. Richards, 237 So.3d at 430-31 (holding that the inadequate information, which failed to allege any essential elements and merely cited section 775.21(10)(a) as opposed to the violation of the registration requirement on which the State proceeded at trial, prejudiced Richards because defense counsel clearly demonstrated at the beginning of trial that he had been misled regarding which registration requirement the State was intending to prove that Richards had violated). Our affirmance, however, is without prejudice for Cowart, after issuance of the mandate in this appeal, to either timely file in the trial court a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 or timely file in this court a petition alleging ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(d), provided that he can do so in good faith.

Affirmed.

NORTHCUTT and CRENSHAW, JJ., Concur.

      We do not reach the related issue addressed in Richards of whether the trial court fundamentally erred in instructing the jury on an uncharged offense because Cowart does not raise that argument on appeal. Cf. Richards, 237 So.3d at 432 ("Richards also contends that the trial court committed fundamental error in instructing the jury on theories of the offense that were not charged in the information. Where the jury is instructed on an alternate theory of the charged crime but that alternate theory was not charged in the information, it is fundamental error if it is clear that the jury returned a verdict on that uncharged theory. This issue is directly related to the first issue. It is clear that the jury returned a verdict on the theory or theories that were uncharged because those were the only theories on which the jury was instructed." (citations omitted) ).


author: HARRIS, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Henry C. TANNER and State of Florida, Respondents.
    Case No. 5D18-2898
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 26, 2018
    Joyce L. Miller, Assistant Regional Counsel, Department of Children and Families, Tavares, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.
    No Appearance for Respondent, Henry C. Tanner.
   HARRIS, J.

The Department of Children and Families ("the Department") seeks certiorari review of a circuit court order committing Henry Tanner to the Department's custody. That order arose out of a criminal prosecution in which Tanner was originally charged with possession of cocaine. Less than three months after Tanner was placed on drug offender probation, Tanner's probation officer filed a violation of probation report, alleging that Tanner failed to attend the required substance abuse treatment.

Soon thereafter, concerns arose as to Tanner's competency to proceed, and the trial court appointed an expert to evaluate Tanner. The court-appointed expert concluded that Tanner was incompetent to proceed "resultant to his limited intellectual functioning." However, because Tanner was determined to not present a danger to himself or others, the expert recommendation was that Tanner not be committed.

A few days after Tanner's evaluation, he was again accused of violating his probation by testing positive for cocaine. The expert filed a supplemental evaluation, this time finding that Tanner did in fact present a danger to himself and recommending commitment to a residential competency program. The lower court accepted the recommendation, found Tanner incompetent to proceed due to mental illness and found that Tanner met the criteria of involuntary commitment under section 916.13(1), Florida Statutes (2018). Therefore, the court ordered Tanner committed. The Department challenges this order, arguing that there was no evidence that Tanner's incompetency was the result of a mental illness. The Department reasons that because Tanner does not meet the commitment criteria set forth in section 916.13, the commitment order was a departure from the essential requirements of the law. We agree and grant relief.

Section 916.13 authorizes the involuntary commitment of defendants who are incompetent to proceed if certain requirements are met. One of these requirements is that the defendant must have a mental illness that renders him substantially likely to cause serious bodily harm to himself or others. § 916.13(1) (a). In this case, neither the expert's initial evaluation nor his supplemental report concluded that Tanner had a mental illness. Because there was no competent evidence presented below to show that a mental illness caused Tanner to pose the danger to himself, section 916.13 does not authorize Tanner's commitment. An involuntary commitment not specifically authorized by statute amounts to a departure from the essential requirements of the law, causing irreparable injury which cannot be adequately remedied on post-judgment appeal. Thus, certiorari relief is appropriate. Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000) ; see also Dep't of Children & Families v. Davis, 114 So.3d 983, 984 (Fla. 5th DCA 2012) (holding Department has standing in similar cases).

While Tanner's commitment under section 916.13 was not authorized, he may still qualify for commitment under section 916.302, Florida Statutes (2018), which authorizes involuntary commitment of defendants incompetent to proceed due to intellectual disability or autism. The expert's conclusion in this case that Tanner has limited intellectual functioning may support a finding of intellectual disability that could then support his commitment under section 916.302, if the other requirements of that statute are also satisfied.

We therefore grant the petition, quash the trial court's August 14, 2018 "Order Adjudging Defendant Incompetent to Proceed" and remand to the trial court for further proceedings consistent with this opinion, including determining whether Tanner qualifies for commitment under section 916.302.

PETITION GRANTED, ORDER QUASHED, and REMANDED.

WALLIS and EDWARDS, JJ., concur.


text:
    Jeremy M. CARTER, Petitioner, v. Paul HERNANDEZ, Julio Giraldo, Carlos Acosta, and Oscar Suarez, Respondents.
    No. 1D18-2953
    District Court of Appeal of Florida, First District.
    October 24, 2018
    Jeremy M. Carter, pro se, Petitioner.
    No appearances for Respondents.
   Per Curiam.

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

Roberts, Bilbrey, and Winsor, JJ., concur.


author: EISNAUGLE, J.

text:
    Darin SKELLY, Appellant, v. Angelle SKELLY, Appellee.
    Case No. 5D18-576
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 26, 2018
    Non-Final Appeal from the Circuit Court for Seminole County, Michael Rudisill, Judge.
    Nadine A. Brown, of Law Office of Nadine A. Brown, P.A. Winter Springs, for Appellant.
    Matthew Rygh, of Barrister Law Firm, P.A., Orlando, for Appellee.
   EISNAUGLE, J.

Appellant, Darin Skelly, appeals a temporary child support order, arguing inter alia , that his due process rights were violated when the trial court referred Appellee's, Angelle Skelly, supplemental petition for modification of child support to a magistrate over his written objection. We agree and reverse.

Appellant's Written Objection to the Referral to a General Magistrate

After the trial court referred Appellee's motion to the general magistrate, Appellant timely filed a written objection pursuant to Florida Family Law Rule of Procedure 12.490, and requested that the trial court hear the petition. Despite his objection, the matter proceeded to a hearing before the general magistrate who made findings and recommended that Appellant's child support obligation be extended for one year.

Appellant filed exceptions, one of which was that he had properly objected to a hearing before the magistrate. The trial court rejected Appellant's exceptions, however, and entered an order on the magistrate's report, adopting the substance of the magistrate's recommendations. This appeal follows.

Appellant's Right to a Hearing before a Circuit Judge Pursuant to Rule 12.490

Due process requires an evidentiary hearing on a contested petition for modification of child support. Frazier v. Frazier , 616 So.2d 575, 580 (Fla. 2d DCA 1993). We recognize the important role a general magistrate plays in this process when a family law matter is properly referred and both parties consent. However, rule 12.490 governs the procedure for referrals to a magistrate and requires, in pertinent part:

(b) Reference.
(1) No matter shall be heard by a general magistrate without an appropriate order of reference and the consent to the referral of all parties . Consent, as defined in this rule, to a specific referral, once given, cannot be withdrawn without good cause shown before the hearing on the merits of the matter referred. Consent may be express or may be implied in accordance with the requirements of this rule.
(A) A written objection to the referral to a general magistrate must be filed within 10 days of the service of the order of referral.
....
(D) Failure to file a written objection within the applicable time period is deemed to be consent to the order of referral.

Fla. Fam. L. R. P. 12.490(b)(1) (emphasis added). As such, we are required to reverse an order where a party's proper objection to the referral to a magistrate is ignored. See, e.g. , Teague v. Girtman , 67 So.3d 284 (Fla. 5th DCA 2011).

Here, even though Appellant's written objection fully complied with rule 12.490, the evidentiary hearing was nevertheless held before the magistrate rather than a circuit judge. This was error.

Additional Requirements on Rule 12.490 Imposed by Administrative Order

Appellee seems to concede that Appellant's written objection complied with rule 12.490. Notwithstanding, Appellee argues that the objection was deficient because it did not comply with Eighteenth Judicial Circuit Administrative Order No. 17-08-S, which requires that a written objection also state the date, time, and place of mediation as well as identify the mediator. See In re: Mediation - Family Law Mediation Program , Admin. Order No. 17-08-S (Fla. 18th Cir. Ct. Jan. 9, 2017). We disagree.

An administrative order is "[a] directive necessary to administer properly the court's affairs but not inconsistent with the constitution or with court rules and administrative orders entered by the supreme court." Fla. R. Jud. Admin. 2.120(c). "When an administrative order conflicts with a rule promulgated by the supreme court, it is null and void." Obando v. Bradshaw , 920 So.2d 198, 200 (Fla. 4th DCA 2006).

We conclude that Administrative Order No. 17-08-S is null and void, at least as it relates to a party's written objection to a hearing before the magistrate, because it goes beyond merely supplying a "directive necessary to administer properly the court's affairs." Rather, the administrative order is inconsistent with rule 12.490 because it imposes the additional burden of scheduling mediation, which generally requires a cooperative and responsive opposing party, all within ten days of the referral. While this feat will be possible in some cases, it will not always be so-especially where an opposing party prefers a hearing before the magistrate and attempts to intentionally "run out the clock."

We therefore reverse the trial court's order entered on the magistrate's report and remand for a de novo hearing before the trial judge.

REVERSED and REMANDED with instructions.

LAMBERT and GROSSHANS, JJ., concur.


author: PER CURIAM.

text:
    Orlando HARRIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3730
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 30, 2018
    James S. Purdy, Public Defender, and Nicole J. Martingano, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Mapp v. State , 71 So.3d 776, 780-81 (Fla. 2011) ; Rivera v. State , 34 So.3d 207, 209 (Fla. 2d DCA 2010).

WALLIS, LAMBERT and EDWARDS, JJ., concur.


text:
    Richard E. HARRIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1762
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    Richard E. Harris, Cross City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Richard E. Harris, appeals a final order summarily denying his Florida Rule of Criminal Procedure 3.850 motion and an order denying his motion to amend his claims. We affirm in part, reverse in part, and remand for further proceedings.

In his motion, Appellant alleged, among other claims: (1) that his counsel suffered from a conflict of interest, (2) that his counsel was ineffective for failing to investigate several inconsistencies in the testimony of a key Williams rule witness when compared to the physical evidence, and (3) cumulative error. Appellant sufficiently alleged prejudice, asserting, for instance, in ground four that the result of the trial would have been different had his counsel attacked the credibility of the State's witness with the inconsistencies.

First, although the trial court did not abuse its discretion in denying Appellant's request to raise new and untimely claims, the court did err when it denied Appellant's motion to amend his existing and timely raised claims. See Johnson v. State , 247 So.3d 698, 699 (Fla. 1st DCA 2018) ; Norris v. State , 198 So.3d 1036, 1038 (Fla. 5th DCA 2016).

Second, we conclude that the records attached to the trial court's order do not conclusively refute Appellant's amended claims in grounds three and four. Therefore, we reverse the summary denial of grounds three, four, and five and remand for the circuit court to attach portions of the record that conclusively refute Appellant's amended claims or conduct an evidentiary hearing thereon.

AFFIRMED in part; REVERSED in part; REMANDED.

WALLIS, EISNAUGLE and HARRIS, JJ., concur.

      Williams v. State , 110 So.2d 654 (Fla. 1959).

      Appellant filed his proposed amended motion before the trial court denied his motion to amend.


text:
    Michael J. MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-3655
    District Court of Appeal of Florida, First District.
    October 31, 2018 Rehearing Denied November 15, 2018
    Michael J. Martin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DENIED .

Osterhaus and Winsor, JJ., concur; Wolf, J., dissents with opinion.

I would grant the petition for ineffective assistance of appellate counsel. See Andujar-Ruiz v. State , 205 So.3d 803 (Fla. 2d DCA 2016) (holding appellate counsel was ineffective for failing to argue trial court's instruction on duty to retreat constituted fundamental error).


text:
    Jeromy Allen BAILEY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1264
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    Jeromy Allen Bailey, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, 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 June 14, 2016 judgment and sentence rendered in Case No. 2014-CF-1658, in the Circuit Court in and for Putnam County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WALLIS, HARRIS and GROSSHANS, JJ., concur.


text:
    Danielle A. EVANS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-993
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the judgment and sentence but remand for correction of a scrivener's error in the judgment and order of probation. Danielle A. Evans filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct a sentencing error, noting that count IV of the judgment and order of probation reflects that she was charged and convicted of fleeing to elude a law enforcement officer at high speed or with wanton disregard when she was actually charged and convicted of aggravated fleeing or attempting to elude a law enforcement officer causing injury or damage. The trial court granted the motion and directed the clerk of court to reflect the correct offense in count IV of the judgment and order of probation. However, the corrected documents continue to reflect the scrivener's error. We remand with directions to the trial court to correct the judgment and order of probation. See King v. State, 201 So.3d 206 (Fla. 1st DCA 2016) (affirming Anders appeal but remanding for correction of scrivener's error).

AFFIRMED and REMANDED for correction of scrivener's errors.

ORFINGER, EVANDER and EISNAUGLE, JJ., concur.

      Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    David DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-103
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

David Davis appeals the order imposing investigative costs and restitution following his entry of a plea to burglary of a dwelling and grand theft. Based on the State's concession of error, we reverse the imposition of investigative costs. However, despite the State's concession of error regarding the imposition of restitution, we disagree and affirm.

When Davis entered his plea, the State informed him of the amount of restitution in his sentence, to which Davis agreed without objection. On appeal, he argues that the State presented insufficient evidence to support the amount of restitution ordered and that he was not given an opportunity to be heard. Davis contends that his Florida Rule of Criminal Procedure 3.800(b) motion preserved these arguments. Davis is only partially correct.

The sufficiency of evidence to support a restitution order is not a sentencing error cognizable in a rule 3.800(b) motion, and therefore, that issue was not preserved by Davis's motion. See Mapp v. State, 71 So.3d 776, 778 (Fla. 2011). However, Davis's motion did preserve his argument regarding his right to be heard. See Elmer v. State, 140 So.3d 1132, 1137 (Fla. 5th DCA 2014) (noting that appellant's claim of the lack of opportunity to be heard could have been preserved through a rule 3.800(b) motion). Ultimately, though, Davis's argument fails because he was present at the hearing and agreed to the amount of restitution ordered; therefore, he had the opportunity to be heard and declined. Accordingly, we affirm the order of restitution.

REVERSED IN PART, AFFIRMED IN PART, and REMANDED.

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

      Davis recognizes that he did not preserve these arguments at the hearing with an objection.