author: Kuntz, J.

text:
    STATE of Florida, Petitioner, v. Tashane M. CHANTILOUPE, Respondent.
    No. 4D18-162
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for respondent.
   Kuntz, J.

The State petitions for a writ of prohibition or a writ of certiorari to quash the circuit court's order refusing to allow it to file an untimely notice of intent to seek the death penalty. We agree with the State that the circuit court incorrectly concluded it lacked authority to enlarge the forty-five-day deadline to file a notice of intent to seek the death penalty. But, based on the specific facts of this case, we cannot conclude the circuit court departed from the essential requirements of the law when it declined to exercise its discretion and grant the State's request for extension. Thus, we deny the petition.

Background

The Palm Beach State Attorney's Office indicted the Defendant on charges of first-degree murder with a firearm and being a felon in possession of a firearm. The date of his arraignment was August 18, 2017, which is critical to the resolution of this petition because both section 982.04(1)(b), Florida Statutes (2017), and Florida Rule of Criminal Procedure 3.181, allow the State forty-five days from the date of arraignment to file a notice of intent to seek the death penalty.

Fifty-six days after arraignment, the Defendant moved to preclude the State from seeking the death penalty. The State responded three days later by moving for leave to file a notice to seek the death penalty. In its four-paragraph motion, the State listed two aggravating factors, which included a prior conviction and evidence that the Defendant planned his acts in advance. The State also asserted that "[i]t has been approximately 59 days since the Defendant's arraignment on these charges. Discovery has just begun and no depositions have been taken of any witness. The Defendant is not prejudiced by the delay of 14 days." In other words, the State provided no basis for the extension, nor any cause for failing to seek the extension until after the deadline had passed.

The court held a hearing on the competing motions. It pointed out that the State knew of the two aggravating factors upon which it sought leave at the time of indictment. The State asked for additional time to file a supplemental memorandum because, they stated, "it's an important issue, and the language is really odd in the statute." After a colloquy, the court responded, stating "unless they can show excusable neglect, and perhaps you could argue, judge, excusable neglect in this case, but you haven't made that. And I don't think 'I'm continuing my investigation' is excusable neglect." Nevertheless, the court ultimately allowed the State additional time to file a supplemental memorandum.

The supplemental memorandum was filed as the State's motion to deny defendant's motion to preclude the State from seeking the death penalty. While acknowledging it was untimely, the State argued there would be no prejudice to the Defendant:

The defendant asks this Court to impose the harshest punishment available, i.e., prohibit the State from seeking the appropriate sentence of death in this case simply because the state filed its Notice To Seek The Death Penalty fourteen days late. The State acknowledges that pursuant to Fla. Stat. § 782.04(1)(b) and Fla. R. of Crim. Pro. 3.181, the Notice is untimely, however, the two-week delay has not in any way prejudiced the defendant, nor has it violated any of his constitutional rights.

This five-page memorandum, like the original four-paragraph motion, failed to provide a reason to extend the deadline and focused on the legality of extending the forty-five-day deadline.

The court held a continued hearing after the State filed its supplemental memorandum, at which time the State raised excusable neglect for the first time:

[Assistant State Attorney]: One of the things I wanted to put on the record, although we didn't plead it, is you mentioned early in the week about excusable negligence.
THE COURT: Excusable neglect.
[Assistant State Attorney]: Neglect, I'm sorry. That I didn't argue that, but I know that the court knows in that 45 days immediately following the arraignment, this courthouse was shut down because we suffered a hurricane. And then-
THE COURT: So I can give you those extra six days or whatever.
...
[Assistant State Attorney]: And then the day after the hurricane before the courthouse was even reopened, I left the country for two weeks. I didn't plead that.

On excusable neglect, the court orally found that it appeared "the prosecutor forgot the time line or forgot" and that "even with the good faith exception, I would find against you, in this, under the facts of this case." In other words, even if the court believed it had the authority to extend the deadline it would not have done so because it did not think that the State had shown good cause or excusable neglect.

The court took the issue under advisement to allow it time to review the State's supplemental memorandum. The court then issued a detailed order granting the Defendant's motion to preclude the State from seeking the death penalty and denying the State's motion for enlargement. The State filed this petition for writ of prohibition or certiorari asking that we quash the court's order.

Analysis

The State seeks the issuance of a writ of prohibition or, alternatively, a writ of certiorari. We begin our analysis with the standard of review applicable to each. Second, we consider the evolution and the language of the governing statute and rule. Third, we apply the statute and rules and hold the court incorrectly concluded it lacked jurisdiction to extend the deadline. Fourth, we consider whether the court departed from the essential requirements of the law when it declined to exercise its discretion to extend the deadline and conclude the court did not.

1. Standard of Review

"The state attorney has complete discretion in making the decision to charge and prosecute." Cleveland v. State , 417 So.2d 653, 654 (Fla. 1982). A writ of prohibition is appropriate if a trial court interferes with the prosecutor's discretion by refusing to allow a first-degree murder prosecution to proceed as a capital case. State v. Bloom , 497 So.2d 2, 3 (Fla. 1986) ("A writ of prohibition is the appropriate remedy when a trial court attempts to interfere with the prosecutorial discretion of a state attorney."); see also State v. Lopez , 219 So.3d 865 (Fla. 4th DCA 2017).

A writ of certiorari may also be appropriate to review certain "non-final orders of lower tribunals other than as prescribed by rule 9.130." Fla. R. App. P. 9.030(b)(2)(A). The "extraordinary writ is reserved for those situations where there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." State v. Pettis , 520 So.2d 250, 254 (Fla. 1988). A petition for writ of certiorari requires the State to establish the court departed from the essential requirements of the law in a way that results in material injury to the remainder of the case and that cannot be remedied on post-judgment appeal. See, e.g., State v. Pettis , 520 So.2d 250, 253 (Fla. 1988) ; Lake v. State , 193 So.3d 932, 933 (Fla. 4th DCA 2016).

2. Rule 3.202(a) , Rule 3.181, and Section 782.04(1)(b), Florida Statutes : The Forty-Five-Day Deadline to File a Notice of Intent to Seek the Death Penalty

In 1995, the Florida Supreme Court enacted Florida Rule of Criminal Procedure 3.202(a), which stated:

(a) Notice of Intent to Seek Death Penalty. The provisions of this rule apply only in those capital cases in which the state gives written notice of its intent to seek the death penalty within 45 days from the date of arraignment. Failure to give timely written notice under this subdivision does not preclude the state from seeking the death penalty.

Amendments to Fla. Rule of Criminal Procedure 3.220 Discovery , 674 So.2d 83, 84 (Fla. 1995). This rule remained in place until 2016 when the Supreme Court of the United States found Florida's "sentencing scheme" unconstitutional. Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 624, 193 L.Ed.2d 504 (2016).

As a result of Hurst , the legislature amended Florida's capital-punishment statute. The legislature codified a requirement that the State file a notice of intent to seek the death penalty:

(b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment. If the prosecutor intends to seek the death penalty, the prosecutor must give notice to the defendant and file the notice with the court within 45 days after arraignment. The notice must contain a list of the aggravating factors the state intends to prove and has reason to believe it can prove beyond a reasonable doubt. The court may allow the prosecutor to amend the notice upon a showing of good cause.

Ch. 2016-13, § 2, Laws of Fla. (enacting § 782.04(1)(b), Fla. Stat. (2016) ). The statute provides that a notice of intent to seek the death penalty must be filed within forty-five days after arraignment. In other words, the legislative enactment incorporated Rule 3.202(a) into the Florida Statutes.

After the legislature enacted section 782.04(1)(b), the Florida Supreme Court amended the rules. It amended Rule 3.202 and added new Rule 3.181. In In re Amendments to Florida Rules of Criminal Procedure , 200 So.3d 758, 759 (Fla. 2016), the court stated that the amendments "implement chapter 2016-13, section 2, Laws of Florida." The court's opinion also noted that the changes included the "removal [of] language from existing rule 3.202(a) in order to avoid possible conflict with the statute and new rule." Id. The Appendix to the court's opinion shows the amendments to Rule 3.202 and new Rule 3.181 :

APPENDIX
RULE 3.181. NOTICE TO SEEK DEATH PENALTY
In a prosecution for a capital offense, if the prosecutor intends to seek the death penalty, the prosecutor must give notice to the defendant of the state's intent to seek the death penalty. The notice must be filed with the court within 45 days of arraignment. The notice must contain a list of the aggravating factors the state intends to prove and has reason to believe it can prove beyond a reasonable doubt. The court may allow the prosecutor to amend the notice upon a showing of good cause.
[...]
RULE 3.202. EXPERT TESTIMONY OF MENTAL MITIGATION DURING PENALTY PHASE OF CAPITAL TRIAL; NOTICE AND EXAMINATION BY STATE EXPERT
a) Notice of Intent to Seek Death Penalty. The provisions of this rule apply only in those capital cases in which the state gives timely written notice of its intent to seek the death penalty within 45 days from the date of arraignment. Failure to give timely written notice under this subdivision does not preclude the state from seeking the death penalty.
(b)-(e) [No Change]

Id. at 759-60.

3. A Court May Extend the State's Forty-Five-Day Deadline to File a Notice of Intent to Seek the Death Penalty

With this foundation set, we now determine whether a trial court may extend the deadline imposed by section 782.04(1)(b), Florida Statutes (2017), and Florida Rule of Criminal Procedure 3.181. "The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review." Kasischke v. State , 991 So.2d 803, 807 (Fla. 2008) ; see also State v. Nelson , 26 So.3d 570, 573-74 (Fla. 2010) (applying de novo review to the Florida Rules of Criminal Procedure).

"Substantive law prescribes the duties and rights under our system of government.... Procedural law concerns the means and method to apply and enforce those duties and rights." Benyard v. Wainwright , 322 So.2d 473, 475 (Fla. 1975). Generally, substantive rules fall under the authority of the legislature; whereas procedural rules relating to the court system are within the authority of our supreme court. That said, the legislature can repeal any rule of court by a two-thirds vote. Art. V, § 2, Fla. Const. ("Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature."); see also State v. Raymond , 906 So.2d 1045, 1051 (Fla. 2005) ("Although the Legislature may repeal a court procedural rule, it cannot create a new procedural rule by statute.").

Time limits and requirements fall into both categories. Some time limits are procedural, while others are substantive. Splash & Ski, Inc. v. Orange Cty. , 596 So.2d 491, 495 (Fla. 5th DCA 1992). For example, the power to establish time limitations for bringing some actions resides with the legislature. See, e.g. , § 775.15, Fla. Stat. (2017). But when the legislature intends a time bar to be jurisdictional, it generally states as much. See, e.g. , § 194.171(2), Fla. Stat. (2017). Here, in section 782.04(1)(b), the legislature did not expressly state that it intended the forty-five-day time limit to be a substantive bar on seeking the death penalty. Nor did the legislature repeal the then-existing provisions of Rules 3.050 and 3.202, which permitted an enlargement of time. Because no party asserts the time limit is within the exclusive authority of either branch, we evaluate each and assume both to be valid.

First, the statute. Section 782.04(1)(b) appears to require the state file a timely notice of intent. It specifically allows the state to amend a notice but it neither provides a procedure for obtaining an extension, nor does it prohibit seeking an extension. It should be noted that other substantive statutes that authorize the state to seek the death penalty do not do so, either. See, e.g. , §§ 775.082, 921.141(1), Fla. Stat. (2017).

Second, we turn to Rule 3.181. Again, our supreme court enacted this rule after the legislature codified section 782.04(1)(b). While Rule 3.181 provides no mechanism for seeking an enlargement of time to file a notice of intent to seek the death penalty, it also does not prohibit enlarging the deadline.

The State argues this lack of a prohibition in section 782.04(1)(b) and Rule 3.181 means enlarging the deadline is permissible. It relies on Massey v. State , 609 So.2d 598, 600 (Fla. 1992), where our supreme court found the failure to comply with the notice requirements for habitual felony offender sentencing to be harmless. It also points to other situations in which mandatory notice requirements have not been strictly applied. State v. Naveira , 873 So.2d 300, 308 (Fla. 2004) ; Small v. State , 630 So.2d 1087, 1088-89 (Fla. 1994). We note that a statute may present a mandatory but non-jurisdictional deadline. State v. Goode , 830 So.2d 817, 828 (Fla. 2002) (holding that time limit for bringing a defendant to trial in a Jimmy Ryce civil commitment proceeding was mandatory but not jurisdictional).

The Defendant attempts to distinguish these cases. He argues in Massey "habitual offender sentencing is a simple matter involving no hugely expensive investigations and litigation or extended hearings, so that the state may serve the notice any time before the sentencing hearing. Hence, there is no need for the notice to be served early in the case." As for Naveira , he states "in that case the supreme court ruled that the time periods in the speedy trial rule must be applied strictly. It wrote that the rule does not incorporate the reasonableness and prejudice standards which apply to the constitutional speedy trial provision." (emphasis omitted). The Defendant also generally addresses many of the other cases the State relies on, arguing that the cases are "beside the point" and that here "we are concerned with the death penalty statute, an area uniquely within the ambit of the Legislature."

We think the conclusion is simpler. And it is found in a different rule. Florida Rule of Criminal Procedure 3.050, which applies to all of the Florida Rules of Criminal Procedure, establishes a rule for enlarging deadlines:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may, at any time, in its discretion (1) with or without notice, order the period enlarged if a request therefor is made before the expiration of the period originally prescribed or extended by a previous order or (2) upon motion made and notice after the expiration of the specified period, permit the act to be done when the failure to act was the result of excusable neglect; but it may not, except as provided by statute or elsewhere in these rules, extend the time for making a motion for new trial, for taking an appeal, or for making a motion for a judgment of acquittal.

This rule provides the trial courts with broad discretion to extend any deadline imposed by the rules, except for specifically-enumerated exceptions. Our supreme court has applied Rule 3.050 to extend deadlines in other rules not specifically excluded from the rule. Davis v. State , 887 So.2d 1286, 1289 (Fla. 2004) ; see State v. Boyd , 846 So.2d 458 (Fla. 2003) ; Abreu v. State , 660 So.2d 703 (Fla. 1995).

The deadline to file a notice of intent to seek the death penalty is not a specifically-enumerated exception. Thus, the court incorrectly concluded that it lacked the authority to extend the deadline. We hold that Rule 3.050 provides authority for a circuit court to extend the deadline to file a notice of intent to seek the death penalty.

4. The Court Did Not Depart From the Essential Requirements of the Law When it Denied The State's Motion to Enlarge the Deadline to File a Notice of Intent to Seek the Death Penalty

Despite our conclusion that the circuit court here had the authority to extend the deadline, the State's petition must still be denied unless the court departed from the essential requirements of the law when it denied the State's motion.

Before addressing the court's decision, we again present the various events at issue chronologically:

• August 3, 2017-Indictment;
• August 18, 2017-Arraignment;
• September 7-13, 2017-Fifteenth Circuit closed because of Hurricane Irma;
• October 2, 2017-Deadline for State to file notice of intent to seek death penalty;
• October 13, 2017-Defendant's motion to preclude the State from seeking the death penalty;
• October 16, 2017-State's motion for leave of court to file and to seek the death penalty;
• October 16, 2017-State's notice of intent to seek death penalty;
• October 23, 2017-Hearing held;
• October 27, 2017-State's motion to deny Defendant's motion to preclude State from seeking the death penalty;
• October 27, 2017-Hearing continued; and
• December 15, 2017-Order precluding State from seeking the death penalty.

It is undisputed that the deadline here expired before the State sought to enlarge it. And after the deadline "has expired, rule 3.050 allows a trial judge to permit the untimely filing of a motion upon a showing of 'good cause,' 'when the failure to act was the result of excusable neglect.' Before the expiration of the [time] period, a defendant must show only 'good cause.' " Parker v. State , 907 So.2d 694, 695 (Fla. 4th DCA 2005) (quoting State v. Boyd , 846 So.2d 458 (Fla. 2003) ). Thus, the burden on the movant is more stringent when seeking to enlarge a deadline that has already lapsed. Id.

Our understanding of Rule 3.050 and the additional requirements on a movant seeking to enlarge a lapsed deadline is consistent with our supreme court's recent discussion of the analogous civil rule, Florida Rule of Civil Procedure 1.090. Koppel v. Ochoa , 243 So.3d 886, 2018 WL 2251709 (Fla. May 17, 2018). In Koppel , the supreme court explained that " Rule 1.090 allows for the time period set forth in [other rules] to be enlarged, but this enlargement is at the trial court's discretion if the motion was filed before expiration of the time period and cause has been shown." Id. But, the court stated, "[a]fter the time period has expired, the trial court still has discretion to enlarge the time period if the moving party can demonstrate excusable neglect in addition to cause." Id.

Because it sought to enlarge a lapsed deadline, the State needed to establish both good cause and excusable neglect. The State made two arguments in its motion for leave, which we presume to be an attempt to show good cause. Its four-paragraph motion listed two aggravators, including a prior conviction and evidence that the Defendant planned his acts in advance. But, as the court found in its order, "at the hearings, the State acknowledged that it was in possession of the evidence supporting the two aggravating circumstances alleged in its Notice at the time it returned its Indictment against" the Defendant.

The State conceded to the circuit court that it made no arguments about excusable neglect in its written motion. The State did make two oral arguments at the hearing directed to excusable neglect: first, the effect of Hurricane Irma; and second, and in passing, a two-week trip counsel began before the court reopened after Hurricane Irma.

First, the State argued that the court should have enlarged the deadline based on the effect of Hurricane Irma. Indeed, Hurricane Irma caused serious impact throughout the State of Florida, but the Florida Supreme Court's tolling order relating to Hurricane Irma for the Fifteenth Judicial Circuit extended deadlines from September 6, 2017 until September 14, 2017. The order specifically states that "the extension of time periods under this order shall apply only when the last day of those periods falls within the time extended." The tolling order does provide a potential remedy for other deadlines not met because of the hurricane, stating "[i]f such a claim is made, it shall be resolved by the court in which jurisdiction is vested on a case-by-case basis when a party demonstrates that the lack of compliance with requisite time periods was directly attributable to this emergency and that equitable remedy is required."

Here, the State did not seek to establish the failure to file the notice was directly attributable to Hurricane Irma. The State did not even mention the hurricane in its motion. Not until the court asked about excusable neglect did the State raise the hurricane as a potential reason. In any event, Hurricane Irma caused a closure of the Fifteenth Judicial Circuit from "Thursday, September 7, 2017, through Wednesday, September 13, 2017." The deadline to file the notice of intent did not run until nineteen days after the court had reopened.

Second, at the continued hearing, counsel for the State stated that "the day after the hurricane before the courthouse was even reopened, I left the country for two weeks. I didn't plead that." Based on counsel's statement, she returned well before the deadline to file the notice. Even so, this argument was not raised in a motion or argued at the hearing. It was merely a comment in passing and one upon which the State did not otherwise rely.

Our supreme court has explained good cause as "a substantial reason, one that affords a legal excuse, or a cause moving the court to its conclusion, not arbitrary or contrary to all the evidence, and not mere ignorance of law, hardship on petitioner, and reliance on another's advice." State v. Boyd , 846 So.2d 458, 460 (Fla. 2003) (quotation omitted). Here, the State's motion to enlarge the deadline contained no assertion of excusable neglect nor good cause. Thus, we cannot conclude that the court departed from the essential requirements of the law when it determined the State failed to meet its burden and denied the State's motion for an extension to file the belated notice of intent to seek the death penalty.

Conclusion

To grant the State's petition and quash the circuit court's order, we must accept both arguments presented by the State: first, that the court improperly concluded it lacked the authority to extend the deadline for the State to file a notice of intent to seek the death penalty; and second, the court erred in refusing to extend the deadline.

First, we agree with the State that a court may extend the deadline to file a notice of intent to seek the death penalty. Section 782.04(1)(b), Fla. Stat. (2017) and Florida Rule of Criminal Procedure 3.181 (2017) require the state to file a notice of intent to seek the death penalty within forty-five days of arraignment. But Florida Rule of Criminal Procedure 3.050 (2017) allows a court to extend the forty-five-day deadline.

Second, we conclude the court did not depart from the essential requirements of the law when it concluded that "the State has failed to allege a good faith delay, excusable neglect, or any other circumstances which justify the filing of the Notice more than 45 days after the date of arraignment."

Because the court did not depart from the essential requirements of the law when it denied the State's motion for extension, the petition is denied.

Petition denied.

Taylor and Conner, JJ., concur.

      "New language is indicated by underscoring; deletions are indicated by struck-through type." Id. at 759.

      To extend a lapsed deadline, Rule 3.050 requires a motion and notice. On the other hand, to extend a deadline that has not yet lapsed, Rule 3.050 specifically states that notice is not required. We assume for purposes of this opinion that the State's failure to address excusable neglect in its motion was not dispositive.


source: Caselaw Access Project

license: Public Domain

text:
    Seraphin EXANTUS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D16-3937 4D16-3967 4D16-4099
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Carey Haughwout, Public Defender, and Melanie L. Casper, Special Assistant Public Defender, Boca Raton, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

In this appeal of three consolidated cases, the Defendant appeals his judgment and sentence revoking probation. We affirm in part and reverse in part.

The State charged the Defendant in three separate cases: in the first, the Defendant was charged with aggravated battery of a law enforcement officer, aggravated assault with a firearm, and aggravated fleeing and eluding; in the second, the Defendant was charged with aggravated battery on a pregnant female; and in the third, he was charged with carrying a concealed firearm. He pleaded no contest in each, and the court sentenced him to three years' imprisonment followed by two years' probation. The court sentenced him as a youthful offender.

After serving his prison sentence and while on probation, he was arrested for multiple violations of probation (VOP). Following a VOP hearing, the court made findings as to each violation and found him guilty of each. The court then sentenced him to: twenty-five years' imprisonment and 81.15 months, with credit for 804 days, on the first case; fifteen years' imprisonment, with credit for 680 days, in the second case; and 81.15 months' imprisonment, with credit for 680 days, on the third case. Notably, the court declined to resentence the Defendant as a youthful offender, noting that he "got very lucky" with the assignment of a different judge in the prior case and that he "would not be so lucky this time."

On appeal, the Defendant argues the court erred when it failed to sentence him as a youthful offender, and the State concedes error. Even if a youthful offender commits a substantive violation of probation, a "court must maintain the defendant's youthful offender status upon resentencing for a violation of probation." Yegge v. State , 88 So.3d 1058, 1060 (Fla. 2d DCA 2012). Thus, the court erred when it failed to resentence the Defendant as a youthful offender.

Next, the Defendant argues the court erred by failing to file formal written revocation of probation orders consistent with the court's oral ruling. The State again agrees with the Defendant, stating "[t]he trial court found that [the Defendant] committed multiple violations of probation and entered a disposition order finding [the Defendant] violated probation, but it failed to enter a written order of violation of probation," and a written order should be entered. On remand, the court should enter a written order of violation of probation.

Finally, the Defendant argues the State failed to prove a violation of probation by the greater weight of the evidence. On this issue, we affirm without further comment.

Affirmed in part; reversed in part; remanded.

Gross and Taylor, JJ., concur.


author: Gerber, C.J.

text:
    Zanja WALTERS, Appellant, v. Richard PETGRAVE, Appellee.
    No. 4D18-446
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Robin Bresky and Jeremy Dicker of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Steven S. Guekjian and Crystal C. Roland of Roland Guekjian, P.A., Miami, for appellee.
   Gerber, C.J.

The mother appeals from the circuit court's final judgment establishing paternity, timesharing, and child support. The mother raises multiple grounds, including that the circuit court denied the mother's due process rights by precluding her from presenting her case-in-chief at the final hearing. We agree with this argument, reverse the final judgment, and remand for completion of the final hearing to allow the mother to present her case-in-chief.

We recognize that the circuit court set a limited amount of time for the hearing and endeavored to balance both sides' time allotment. However, "[d]ue process requires that a party be given the opportunity to be heard and to testify and call witnesses on the party's behalf ... and the denial of this right is fundamental error." Julia v. Julia , 146 So.3d 516, 520 (Fla. 4th DCA 2014) (citation omitted).

Julia is instructive. In Julia , we summarized our findings and conclusions as follows:

The record clearly evidences a pattern of depriving the Wife of her opportunity to be heard and present her case throughout the trial. Although the trial court made statements that the parties would be given equal time and that the Wife would get the opportunity to present her case-in-chief, no such opportunity was presented. The Wife was not able to call any witnesses on her behalf or present argument of counsel at the end of the Husband's case in violation of the guarantees of due process.
Additionally, this Court has recognized that justice cannot be "administered arbitrarily with a stopwatch," yet that is what happened in the instant case. Throughout the hearing, the trial court made it clear that it intended to complete the trial in one day without going much beyond 5:00 p.m. Although this goal is not inherently violative of due process, summarily shortening proceedings can give rise to a due process violation when they fail to afford a party a full, fair, and meaningful opportunity to be heard, such as in this case where the Wife was severely restricted in time to examine witnesses, to call any of her own witnesses, or to make any argument as to the evidence presented.

Id. (internal citation omitted).

Julia is slightly distinguishable from the instant case. Here, when the parties exceeded the initial one day allotment for the final hearing, the circuit court appropriately scheduled a second day to attempt to complete the final hearing. And on that second day, the circuit court gave both parties an opportunity to present closing arguments. However, on that second day, despite the court having stated repeatedly that the mother would have the opportunity to present her case-in-chief, the circuit court ultimately stated that due to its time limitations, the mother would not have the opportunity to present her case-in-chief, and instead would be limited to presenting closing argument.

This was error. "Even if [a party's] evidence would not have impressed the court, a party has the right to present evidence and to argue the case at the conclusion of all the testimony." Minakan v. Husted, 27 So.3d 695, 699 (Fla. 4th DCA 2010) (emphasis added).

Although a harmless error analysis does not apply to the fundamental error of a due process violation, we can say from our review of the record that the violation was not harmless. The circuit court, in announcing its findings, stated "there was not sufficient testimony" regarding certain financial issues, and the court "didn't hear any testimony" from the mother about the child's school and health issues. In the final judgment, the court echoed its oral findings by writing "there was no testimony from the Mother" to contradict the father's allegation's regarding school and health issues. Based on the court's precluding the mother from presenting her case-in-chief, it is unknown whether the mother could have presented testimony which may have addressed these issues.

Based on the foregoing, we reverse the final judgment, and remand for completion of the final hearing to allow the mother to present her case-in-chief. After the mother completes her case-in-chief, both parties shall be provided a meaningful opportunity to present closing arguments. Julia , 146 So.3d at 520.

As for the mother's other arguments on appeal, we note that, on remand, the mother may renew her attempt to use charts and summaries to establish the father's income, provided that the mother complies with section 90.956, Florida Statutes (2017), and provided that the summaries are not otherwise objectionable. The mother's remaining arguments, challenging certain findings in the court's final judgment, are moot given our reversal of the final judgment on due process grounds.

Reversed and remanded.

Gross and Conner, JJ., concur.


text:
    Antonio LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-725
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Antonio Lopez, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant, after being sentenced for a violation of probation, appeals from the circuit court's order granting in part and denying in part his Florida Rule of Criminal Procedure 3.801 motion for correction of jail credit. The defendant's motion alleged he was given credit for 1,189 days, and should have been awarded 1,624 days. The circuit court's order, without explanation or record attachments, granted the defendant an additional 68 days of credit, but not the additional 435 days which the defendant requested.

In response to this court's order to show cause, the state agrees that the defendant's motion was facially insufficient. Thus, the circuit court, instead of addressing the merits of the defendant's motion, should have stricken the motion as facially insufficient and given the defendant leave to amend within sixty days. We reverse and remand for that purpose.

Florida Rule of Criminal Procedure 3.801(c) provides that a motion for correction of jail credit shall be under oath and include:

(1) a brief statement of the facts relied on in support of the motion;
(2) the dates, location of incarceration, and total time for credit already provided;
(3) the dates, location of incarceration, and total time for credit the defendant contends was not properly awarded;
(4) whether any other criminal charges were pending at the time of the incarceration noted in subdivision (c)(3), and if so, the location, case number, and resolution of the charges; and
(5) whether the defendant waived any county jail credit at the time of the sentencing, and if so, the number of days waived.

The defendant's motion does not state all of the dates and location of incarceration, whether any other criminal charges were pending at the time of these incarceration periods, and if so, the location, case number and resolution of the charges. More importantly, the defendant's motion refers to various "V.O.P. holds" without explanation of whether he was served with the VOP warrant for this case while incarcerated in another county. The defendant would not be entitled to jail credit for this case while incarcerated in another county if there was merely a "V.O.P. hold," i.e., a detainer, for this case without being served with the VOP warrant for this case. See Gethers v. State , 838 So.2d 504, 505 (Fla. 2003) ("[A]bsent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.").

Based on the foregoing, we reverse the circuit court's order granting in part and denying in part the defendant's rule 3.801 motion for additional jail credit. We remand for the circuit court to instead enter an order striking the motion as facially insufficient, and granting the defendant sixty days to file a facially sufficient motion providing the information specified in rule 3.801(c) and this opinion. See Fla. R. Crim. P. 3.801(e) (applying rule 3.850(f) to proceedings under rule 3.801 ); Fla. R. Crim. P. 3.850(f)(2) ("If [a] motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion."); Cadet v. State , 239 So.3d 113, 115 (Fla. 3d DCA 2018) (where the defendant's motion for jail credit failed to allege whether or when a probation violation arrest warrant was executed on him, the circuit court should not have denied the defendant's motion on its merits, but instead should have entered a nonfinal, nonappealable order allowing the defendant sixty days to amend the motion to state a legally sufficient claim).

Reversed and remanded for proceedings consistent with this opinion .

Warner and Damoorgian, JJ., concur.


author: LUCAS, Judge.

text:
    Keli N. JOHNSON and Thomas E. Johnson, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS, as Trustee RALI 2007-QS1, Appellee.
    Case No. 2D16-4262
    District Court of Appeal of Florida, Second District.
    Opinion filed May 11, 2018
    Mark P. Stopa of Stopa Law Firm, Tampa, for Appellants.
    William L. Grimsley, Kimberly Held Israel, and N. Mark New, II, of McGlinchey Stafford, Jacksonville, for Appellee.
   LUCAS, Judge.

Keli and Thomas Johnson appeal the circuit court's entry of a final summary judgment against them in a residential mortgage foreclosure case brought by Deutsche Bank National Trust Company Americas, as Trustee RALI 2007-QS1 (RALI). They raise five arguments on appeal. We find merit within the fourth-that RALI failed to conclusively establish its standing to enforce the Johnsons' promissory note-and reverse the summary judgment on that basis.

The Johnsons borrowed $236,000, apparently in connection with a home improvement construction loan, which was memorialized by a promissory note in that amount dated April 28, 2006. The Johnsons' note was originally payable to National City Mortgage, a division of National City Bank of Indiana, and secured by a mortgage on the Johnsons' property in Polk County, Florida. The promissory note contained three endorsements, the last of which made the note payable to "Deutsche Bank Trust Company Americas as Trustee," with no further identifying information of which trust this entity was acting on behalf of.

When the Johnsons allegedly defaulted on the note in 2011, RALI filed the underlying complaint. It later amended its complaint twice, so that in its final, operative iteration, RALI alleged it had standing to enforce the Johnsons' note as a holder of the note. The Johnsons generally denied RALI's allegations in their answer and asserted several affirmative defenses, including lack of standing on the part of RALI to enforce the note. RALI eventually filed the original note, which contained endorsements appearing to match those on the copy attached to its pleading.

The case proceeded with itinerant discovery and motion practice, and on July 8, 2016, RALI filed a motion for summary judgment. In support of its motion, it also filed an affidavit signed by Sarah Greggerson, an employee of PNC Mortgage, an entity that purported to be servicing the Johnsons' loan. It appears from the record that RALI relied upon PNC's status as its servicer as a basis to establish RALI's status as a holder of the Johnsons' note (Ms. Greggerson's affidavit was the only one filed in support of RALI's motion for summary judgment). In our view, that was insufficient evidence of RALI's standing for purposes of summary judgment in this case.

We review a summary judgment under a de novo standard of review. Herendeen v. Mandelbaum, 232 So.3d 487, 489 (Fla. 2d DCA 2017) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) ).

Summary judgment is proper only where the moving party shows conclusively that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. When the nonmoving party has alleged affirmative defenses, the moving party must conclusively refute the factual bases for the defenses or establish that they are legally insufficient. "The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof."

Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So.3d 251, 253 (Fla. 2d DCA 2011) (emphasis added) (citations omitted) (quoting Deutsch v. Global Fin. Servs., LLC, 976 So.2d 680, 682 (Fla. 2d DCA 2008) ). "If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Atria Grp., LLC v. One Progress Plaza, II, LLC, 170 So.3d 884, 886 (Fla. 2d DCA 2015) (quoting Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991) ).

This court has held that in residential mortgage foreclosure cases, the plaintiff bears the burden of proving its standing at the time of trial and at the time it filed its complaint if the issue of standing is contested. See Corrigan v. Bank of Am., N.A., 189 So.3d 187, 189 (Fla. 2d DCA 2016) (en banc); see also Winchel v. PennyMac Corp., 222 So.3d 639, 642-43 (Fla. 2d DCA 2017) (noting the "legal oddity" that standing has become in residential foreclosure cases and summarizing, "[o]nce put at issue by a defendant, then, standing becomes a part of the prima facie case that a foreclosure plaintiff must prove in order to secure a judgment"). The summary judgment evidence regarding RALI's standing-challenged, as it was, by the Johnsons' affirmative defense-fell short of what was required for a summary adjudication.

Ms. Greggerson's affidavit stated only that "Plaintiff has owned and held the Note since prior to the filing of the Complaint in this action." The problem with that assertion, however, is that Ms. Greggerson was not affiliated in any way with the plaintiff, RALI. The limited facts stated in her affidavit failed to address how she derived this knowledge about RALI's connection to the Johnsons' note or how RALI became an owner or holder of the Johnsons' note; and there was no claim within her affidavit that PNC was holding the Johnsons' note on behalf of RALI. See, e.g., Peters v. Bank of N.Y. Mellon, 227 So.3d 175, 180 (Fla. 2d DCA 2017) (finding testimony of "case manager" employed by servicer-who took over servicing after the filing of the lawsuit-was insufficient to establish ownership of the lost note because "Ms. Stevens had no personal knowledge about the Bank's claim to have acquired ownership of the note in 2006. Moreover, Ms. Stevens's testimony in this regard was not supported by the limited documentary evidence about the loan that was available. Because Ms. Stevens's testimony was not based on personal knowledge and was not supported by any documentation, we conclude that the testimony was insufficient to establish the Bank's ownership of the lost note."); Rosa v. Deutsche Bank Nat'l Tr. Co., 191 So.3d 987, 988-89 (Fla. 2d DCA 2016) (holding that "the record in this case does not establish that Deutsche Bank had standing to foreclose at the time it filed its complaint" because its sole witness, an employee of its servicer, Wells Fargo, "was unable to provide any testimony as to Deutsche Bank's acquisition of the note" and remarking that "[t]he only testimony as to possession of the note suggests that Wells Fargo, not Deutsche Bank, was the last entity to have possession of the note prior to the filing of the complaint");

Stoltz v. Aurora Loan Servs., LLC, 194 So.3d 1097, 1098 (Fla. 2d DCA 2016) (finding second servicer's representative's testimony was insufficient to prove first servicer's standing at time of inception of suit because "[t]hat testimony established at most that the first servicer was in fact servicing the mortgage when it filed suit, not that the first servicer held the note when it filed suit"); Jaffer v. Chase Home Fin. LLC, 92 So.3d 240, 242 (Fla. 4th DCA 2012) ("Under [ Florida Rule of Civil Procedure 1.510(e) ], affidavits must be based on personal knowledge, set forth facts which would be admissible in evidence, and show 'the affiant is competent to testify to the matters stated therein.' " (quoting Coleman v. Grandma's Place, Inc., 63 So.3d 929, 932 (Fla. 4th DCA 2011) ) ). And in this case, the documents attached to Ms. Greggerson's affidavit did not dispel the question of this note's ownership or who was the note's holder such that there was not "the slightest doubt that an issue might exist" concerning RALI's standing. See Atria Grp., 170 So.3d at 886. Indeed, on this record, it is not even clear that PNC had the underlying authority to act as a servicer for RALI or to hold the Johnsons' note on RALI's behalf. Cf. Rosa, 191 So.3d at 988 n.2 (noting that foreclosing plaintiff, Deutsche Bank, did not argue constructive possession of its note by its servicer, Wells Fargo, or that Wells Fargo was acting as Deutsche Bank's agent that was authorized to hold the note on Deutsche Bank's behalf (citing Phan v. Deutsche Bank Nat'l Tr. Co., 198 So.3d 744 (Fla. 2d DCA 2016) ) ). With respect to PNC's authority, Ms. Greggerson's affidavit stated only that "PNC is the mortgage servicer for the Plaintiff ... for the mortgage loan account that is the subject of this litigation (the 'Mortgage Loan'). A copy of the Power of Attorney from the Deutsche Bank Trust Company Americas, as Trustee to PNC is attached hereto as Exhibit 'A.' " The limited power of attorney attached to her affidavit actually named Ocwen Loan Servicing, LLC, as RALI's servicer, not PNC. Having elected to rely solely on this affidavit and its attachments, RALI failed to meet its burden of proving there was no material issue of fact concerning RALI's standing. We must, therefore, reverse the final summary judgment.

In so holding, we do not reach the remaining issues the Johnsons present; first, because we need not do so in order to resolve this appeal, but second, because we are hesitant to do so in a case where we have no transcript from the summary judgment hearing in our record. This latter point is one we believe merits some elucidation.

Some of the arguments raised by the Johnsons in this appeal, while perhaps meritorious, presented the very real potentiality that they were either unpreserved or even waived. To take one example, the first issue the Johnsons advanced in their briefing was that RALI should not have obtained a summary judgment premised upon a loan modification agreement that RALI had neither pleaded nor attached to its operative complaint. We can see from our record that the final summary judgment in this case was indeed based, in part, upon a loan modification agreement that was introduced through Ms. Greggerson's affidavit. We can also see that that loan modification agreement was not mentioned anywhere within RALI's second amended complaint or attached as an exhibit to that pleading. See Fla. R. Civ. P. 1.130(a) ("All bonds, notes, bills of exchange, contracts, accounts, or documents on which action may be brought ... must be incorporated in or attached to the pleading."); cf. Tracey v. Wells Fargo Bank, N.A., --- So.3d ----, 44 Fla. L. Weekly D652, D655 (Fla. 2d DCA 2018) (holding that the trial court erred in permitting a foreclosing lender to amend its complaint to conform to the evidence at trial in order to recover on unpled loan modification agreements). What we cannot see is whether the Johnsons brought that pleading impropriety to the circuit court's attention at any time prior to or during the summary judgment hearing. See Martinez v. Abraham Chevrolet-Tampa, Inc., 891 So.2d 579, 581 (Fla. 2d DCA 2004) (holding that employer's failure to object to the sufficiency of employee's administrative complaint's verification during the administrative process "acted as a waiver of any objection" to the pleading's sufficiency (citing Ingersoll v. Hoffman, 589 So.2d 223 (Fla. 1991) ) ); Gordon v. Gordon, 543 So.2d 428, 429 (Fla. 2d DCA 1989) ("An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court's determination."). Were we to take up this argument, we would have to tacitly assume that the Johnsons had presented it below in the face of a record that is completely silent on that point.

Florida law calls upon appellate courts to provide a careful de novo scrutiny of summary judgment rulings, given what is at stake. See Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997) (observing that summary judgment "brings a sudden and drastic conclusion to a lawsuit, thus foreclosing the litigant from the benefit of and right to a trial on the merits of his or her claim"). In that spirit, we, along with our sister courts, have occasionally remarked that the lack of a transcript of a summary judgment hearing will not necessarily thwart an appellate review of a summary judgment. See, e.g., Kamin v. Fed. Nat'l Mortg. Ass'n, 230 So.3d 546, 548 n.2 (Fla. 2d DCA 2017) ("[A] hearing transcript is usually 'not necessary for appellate review of a summary judgment.' " (quoting Houk v. PennyMac Corp., 210 So.3d 726, 730 (Fla. 2d DCA 2017) ) ); Shahar v. Green Tree Servicing LLC, 125 So.3d 251, 254 (Fla. 4th DCA 2013) ("[H]earing transcripts ordinarily are not necessary for appellate review of a summary judgment."); Gonzalez v. Chase Home Fin. LLC, 37 So.3d 955, 958-59 (Fla. 3d DCA 2010) (holding that it was "not necessary to procure a transcript of the summary judgment hearing" where "the [summary judgment] evidence-in the form of the pleadings, [the defendant's] affidavit, and the county records"-demonstrated that genuine issues of material fact remained (quoting Seal Prods. v. Mansfield, 705 So.2d 973, 975 (Fla. 3d DCA 1998) ) ).

But the context in which this observation arises is almost universally confined to appeals concerning the sufficiency of the summary judgment evidence before the trial court. See, e.g., Kamin, 230 So.3d at 548 ; Shahar, 125 So.3d at 253-54 ; Gonzalez, 37 So.3d at 958-59. That was why in Houk, 210 So.3d at 731, a case where we devoted a section of analysis to the absence of a summary judgment hearing transcript, we took care to point out that "in this case," where the summary judgment evidence about enforcement of a lost note included "the operative complaint, ... [the] answer and affirmative defenses, the motion and the order for substitution of the plaintiff, the amended motion for summary judgment, and the supporting and opposing affidavits, including the affidavit of lost note," we had "all of the portions of the record necessary for us to determine whether the summary judgment was properly entered." "Under these circumstances," we concluded, a hearing transcript would provide no further insight about the evidentiary record's sufficiency. Id. These kinds of pronouncements, issued within case-specific, de novo reviews of evidentiary records, should not be read to the neglect of securing court reporters to transcribe summary judgment hearings. To the contrary, presenting an adequate record-one that demonstrates not only what evidence was presented below but also which arguments were preserved-remains the appellant's burden in an appeal of a summary judgment. See Aills v. Boemi, 29 So.3d 1105, 1109 (Fla. 2010) ("Except in cases of fundamental error, an appellate court cannot consider any ground for objection not presented to the trial court." (citing Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982) ) ); Cagwin v. Thrifty Rents, Inc., 219 So.3d 1003, 1004 (Fla. 2d DCA 2017) (discussing appellant's argument that the affiant who executed a summary judgment affidavit did not have sufficient knowledge to attest to the matters in the affidavit but concluding "we cannot determine whether such a challenge was properly raised or addressed at the summary judgment hearing because we have no transcript" (citing Zarate v. Deutsche Bank Nat'l Tr. Co., 81 So.3d 556, 557-58 (Fla. 3d DCA 2012) ) ); Black Point Assets, Inc. v. Fed. Nat'l Mortg. Ass'n, 220 So.3d 566, 567 (Fla. 5th DCA 2017) (addressing the sufficiency of a complaint and summary judgment evidence to establish foreclosure and noting "Black Point's additional objections to the summary judgment were not preserved for appeal"); Rose v. Clements, 973 So.2d 529, 530 (Fla. 1st DCA 2007) ("Any basis for reversal of summary judgment must be preserved by raising the issue in the trial court.").

All of which is to say, the de novo review that we employ for summary judgment rulings is not a gateway to reach unpreserved legal arguments, as if they were fundamental error. Cf. Coba v. Tricam Indus., Inc., 164 So.3d 637, 646 (Fla. 2015) ("[I]n civil cases, reversal based on the concept of 'fundamental error' where a timely objection has not been made is exceedingly rare."). So while a lack of a transcript, in and of itself, will not necessarily prohibit appellate review of the evidence underlying a summary judgment ruling, it could in some cases stymie the fullness of a legal argument challenging that ruling on appeal if there is a question about whether the argument was preserved. We reiterate, then, what we stated in Houk: while it might not be necessary to procure a transcript from a summary judgment hearing in every case, it is indeed "often helpful to do so," id. at 731 (quoting Seal Prods., 705 So.2d at 975 ), especially in cases where preservation of a legal argument might otherwise be in question.

Here, however, we are satisfied that the record we do have reflects a genuine issue of material fact that was argued below. RALI's standing was a contested point almost from the beginning of this litigation, and the evidence of its standing as an owner or holder of the Johnsons' promissory note was insufficient to sustain a summary judgment in its favor. For that reason, we reverse the circuit court's final summary judgment and remand this case for further proceedings.

Reversed and remanded.

SILBERMAN and SLEET, JJ., Concur.

      Independently of the endorsements, RALI also filed a series of assignments, which it maintained established its standing as an owner and a holder of the Johnsons' note. These assignments would not establish RALI's standing for purposes of summary judgment, however, because the final assignment in the series only purported to assign the Johnsons' mortgage to RALI, not the note itself. See, e.g., Houk v. PennyMac Corp., 210 So.3d 726, 732 (Fla. 2d DCA 2017) (holding that plaintiff "did not acquire standing to foreclose based on an assignment of only the mortgage"); Caballero v. U.S. Bank Nat'l Ass'n ex rel. RASC 2006-EMX7, 189 So.3d 1044, 1046 (Fla. 2d DCA 2016) ("[A]ssignment was insufficient to show standing because it only purported to assign the mortgage, not the note."); Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1041 (Fla. 4th DCA 2015) ("A bank does not have standing to foreclose where it relies on an assignment of the mortgage only."). RALI's second amended complaint asserts its standing solely on the theory that it was the holder of the Johnsons' note.

      RALI has not argued, either below or in this appeal, that it was entitled to an inference of possession of the note at the time the complaint was filed under Ortiz v. PNC Bank, National Ass'n, 188 So.3d 923, 925 (Fla. 4th DCA 2016) ("[I]f the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary."). Moreover, the trial court never made a finding upon which we could conclude that the Ortiz inference would have been applicable. See, e.g., Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) ("[A]n appellate court cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue.").

      A separate "certification" of one of Ocwen Loan Servicing, LLC's assistant secretaries was also attached as an exhibit to Ms. Greggerson's affidavit, and it appeared to include an enumerated list of certain PNC employees authorized to act on Ocwen's behalf. Ms. Greggerson's name did not appear on that list.


author: EMAS, J.

text:
    The CITY OF CORAL GABLES, Appellant, v. Peter BLANCO, et al., Appellees.
    No. 3D17-1897
    District Court of Appeal of Florida, Third District.
    Opinion filed May 23, 2018
    Hernandez Lee Martinez, LLC, and Eric A. Hernandez and Arturo Martinez, for appellant.
    Robert W. Rodriguez, P.A., and Robert W. Rodriguez ; Law Office of Ramon J. Diego, P.A., and Alexandra Casals, for appellees.
    Before SALTER, EMAS and LINDSEY, JJ.
   EMAS, J.

On November 14, 2014, Peter Blanco was driving in the City of Coral Gables when his vehicle was struck by another vehicle fleeing from police. Blanco was seriously injured as a result of the accident, and he sued the City of Coral Gables ("the City") for the allegedly negligent acts of the City's police officer involved in the vehicle chase.

The City filed a motion to dismiss the complaint, asserting that dismissal was required because, as a matter of law, the City was entitled to sovereign immunity. After a hearing, the trial court denied the City's motion to dismiss without prejudice, finding that "sovereign immunity is not self-evident under the facts pled" in the complaint. This appeal followed.

Because the trial court did not determine that, as a matter of law, the City is not entitled to sovereign immunity, we do not have jurisdiction to review the nonfinal order and therefore dismiss this appeal for lack of jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(xi) (providing that appeals of nonfinal orders "are limited to those that ... determine ... that, as a matter of law, a party is not entitled to sovereign immunity"); Citizens Prop. Ins. Corp. v. Calonge, 3D16-854, 246 So.3d 447, 2018 WL 1832325 (Fla. 3d DCA April 18, 2018) (dismissing consolidated appeals for lack of jurisdiction where trial court's orders denied, without elaboration, appellant's motions to dismiss grounded upon claim of sovereign immunity); Miami-Dade County v. Pozos, 242 So.3d 1152, 2017 WL 621233 (Fla. 3d DCA February 15, 2017) (dismissing appeal for lack of jurisdiction where trial court's unelaborated order denying summary judgment did not determine that, as a matter of law, appellant was not entitled to sovereign immunity); Eagle Arts Acad., Inc. v. Tri-City Elec. Co., Inc., 211 So.3d 1083 (Fla. 3d DCA 2017) (dismissing appeal for lack of jurisdiction where trial court's order summarily denied motion to dismiss but did not determine that, as a matter of law, appellant was not entitled to sovereign immunity). See also Florida Highway Patrol v. Jackson, 238 So.3d 430, 436 (Fla. 1st DCA 2018) (criticizing Pozos but holding that, "[l]ike the Pozos court, we are constrained to find that Hastings [v. Demming, 694 So.2d 718 (Fla. 1997) ] and Reeves [v. Fleetwood Homes of Florida, Inc., 889 So.2d 812 (Fla. 2004) ] preclude appellate review").

Appeal dismissed.

      Blanco's wife, Yvette Blanco, is also a plaintiff, alleging a count against the City for loss of consortium.

      The court noted that the City could "raise sovereign immunity at a later time."


author: Kelsey, J.

text:
    Kishon Larhame BIRCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1668
    District Court of Appeal of Florida, First District.
    May 25, 2018 Rehearing Denied July 10, 2018
    Andy Thomas, Public Defender; Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Angela R. Hensel and Quentin Humphrey, Assistant Attorneys General, Tallahassee, for Appellee.
   Kelsey, J.

On appeal from his conviction for possession of a firearm by a convicted felon, Appellant raises four issues, all of which we reject. We affirm Appellant's conviction and sentence, and write to address two of his arguments: (I) that the charging language was constitutionally defective and precluded the state from pursuing a theory of constructive possession, and (II) that the evidence was insufficient to support a finding of constructive possession.

I. THE CHARGING LANGUAGE .

A. The Information, Verdict Form, and Instructions.

The state charged Appellant by information with both second-degree murder and possession of a firearm by a convicted felon. Both counts of the information charged that Appellant "actually possessed" a firearm-language required to invoke the 10-20-Life sentence enhancement. § 775.087(2)(a)1., Fla. Stat. (2012) (requiring that the accused "actually possessed a 'firearm' or 'destructive device' "); Arnett v. State , 128 So.3d 87, 87-88 (Fla. 1st DCA 2013) ("In order to enhance a defendant's sentence under section 775.087(2), the grounds for enhancement must be clearly charged in the information."). The information caption and the charge for felon in possession provided as follows:

INFORMATION FOR:

1) MURDER IN THE SECOND DEGREE
2) POSSESSION OF A FIREARM BY A CONVICTED FELON
...
COUNT 2
KISHON LARHAME BIRCH on May 16, 2012, in the County of Duval and the State of Florida, did actually possess a firearm, to-wit, a handgun, having been convicted of a felony in the courts of the State of Florida, to-wit: Armed Robbery, in the Circuit Court, in and for the Fourth Judicial Circuit of Florida, on December 11, 2003, contrary to the provisions of Sections 790.23(1)(a) [felon in possession] and 775.087(2)(a)(1) [10-20-Life], Florida Statutes.

The verdict form for felon in possession started with "We, the jury, find the defendant guilty of Possession of a Firearm by a Convicted Felon, as charged in the information ." The "as charged" phrase fuels Appellant's first argument: that the state was limited to pursuing actual possession because the information used the phrase "actually possess" to satisfy 10-20-Life.

On the same page of the verdict form, just below the option of guilty as charged, was a special interrogatory verdict asking whether Appellant did or did not actually possess a firearm during the commission of the offense. This special interrogatory is a mandatory prerequisite to 10-20-Life sentence enhancement, because the enhancement requires the jury to find facts different from the facts necessary to convict of the underlying crime. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."); State v. Overfelt , 457 So.2d 1385, 1387 (Fla. 1984)

("The question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury."), overruled in part by Washington v. Recueno , 548 U.S. 212, 221, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), as recognized in Galindez v. State , 955 So.2d 517, 522-23 (Fla. 2007) ; Banks v. State, 949 So.2d 353, 355 (Fla. 4th DCA 2007) ("To impose a three-year mandatory minimum sentence ... the factfinder must make a specific finding of actual possession.") (quoted in Arnett , 128 So.3d at 87-88 ).

In contrast to the 10-20-Life sentence enhancement, the crime of felon in possession is not limited to actual possession. The felon in possession statute prohibits convicted felons, among others, from owning or having in their "care, custody, possession, or control any firearm, ammunition," and other weapons or devices. § 790.23(1), Fla. Stat. Thus, "[a] finding of either actual or constructive possession will support a conviction" for felon in possession. Swain v. State , 226 So.3d 1002, 1003 (Fla. 1st DCA 2017) ; see also State v. Mulus , 970 So.2d 349, 350 (Fla. 3d DCA 2007) (noting courts interpret section 790.23 as meaning possession can be actual or constructive).

A jury can infer constructive possession when the evidence shows a gun was in plain view or the defendant otherwise knew of its presence and had the ability to control it. Barlatier v. State , 26 So.3d 29, 32 (Fla. 3d DCA 2009) (holding presence of gun under driver's seat where defendant was sitting established constructive possession); Hunter v. State, 914 So.2d 985, 986 (Fla. 4th DCA 2005) (holding evidence sufficiently supported constructive possession of a firearm in plain view next to defendant's position in the driver's seat; he knew of its presence and had the ability to control it); see also Ubiles v. State , 23 So.3d 1288, 1291 (Fla. 4th DCA 2010) (holding the state proved constructive possession of marijuana in defendant's vehicle where passenger was smoking it while defendant was driving, and burnt marijuana cigarettes were plainly visible in center ashtray).

Consistent with the felon in possession statute and case law holding that either actual or constructive possession will support a felon in possession conviction, this jury was instructed accurately and without objection that "possession" could be either actual or constructive. The instruction defined each form of possession, tracking the pertinent portions of Standard Jury Instruction (Criminal) 10.15, as follows:

To "possess" means to have personal charge of or exercise the right of ownership, management, or control over.
Possession may be actual or constructive.
Actual possession means
a. the [gun] is in the hand of or on [Appellant's] person, or
b. the [gun is] in a container in the hand of or on [Appellant's] person, or
c. the [gun] is so close as to be within ready reach and is under the control of [Appellant].
Mere proximity to an object is not sufficient to establish control over the object when the object is not in a place over which the person has control.
Constructive possession means the object is in a place over which [Appellant] has control, or in which [Appellant] has concealed it.
If an object is in a place over which [Appellant] does not have control, the State establishes constructive possession if it proves that [Appellant] (1) has knowledge that the object was within [Appellant's] presence, and (2) has control over the object.
Possession may be joint, that is, two or more persons may jointly possess an object, exercising control over it. In that case, each of those persons is considered to be in possession of that object.

On the facts presented, we must affirm. As explained in subsections B and C below, we conclude that the information was not defective or fundamentally erroneous, and did not preclude a conviction for either actual or constructive possession. The jury's special interrogatory verdict finding no actual possession under 10-20-Life is not properly extended to preclude guilt of the underlying offense by constructive possession. Point II demonstrates that the evidence of possession was more than sufficient to survive Appellant's motion for judgment of acquittal, and to support the guilty verdict for felon in possession.

B. Unpreserved and Not Fundamental Error.

Appellant did not preserve his present arguments arising from the charging language for possession of a firearm, and cannot show fundamental error. Any defect in the charging instrument did not rise to the level of a deprivation of due process.

The charging paragraph under "Count 2" did not use the word "constructive," and did not recite the statutory language making it unlawful to "own or to have in his or her care, custody, possession, or control" a firearm or other prohibited item. Instead, the information caption designated the charge in Count 2 as "Possession of a Firearm by a Convicted Felon," and the charging paragraph stated that Appellant's actions were "contrary to the provisions of Sections 790.23(1)(a) and 775.087(2)(a)(1)." The word "possess" appears only in the phrase "actually possess," which the State argues was included to satisfy Arnett. 128 So.3d at 87-88. Appellant argues that by charging actual possession as required under Arnett to invoke 10-20-Life, the state gave up the right to pursue constructive possession as the basis for a felon in possession charge.

Appellant concedes he did not challenge the adequacy of the information below. His motion for judgment of acquittal made after the state rested, and renewed at the close of evidence, did not distinguish between actual and constructive possession, but argued superficially that there was no evidence that Appellant had, used, or possessed a firearm. Appellant did not object to the jury instruction on constructive possession, nor to the verdict form. Likewise, his new-trial argument did not distinguish between actual and constructive possession. The alleged error was not preserved.

An unpreserved error is reviewed only for fundamental error, meaning it must "reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Brown v. State , 124 So.2d 481, 484 (Fla. 1960). Fundamental error in a charging instrument exists only when the alleged defect deprives the defendant of due process. No such deprivation occurs so long as the defendant is on notice of the charges against him, and this requirement is satisfied when the information cites the statute defining the crime. State v. Burnette, 881 So.2d 693, 695 (Fla. 1st DCA 2004) ("An information may withstand an untimely challenge to a technical deficiency (1) where a statutory citation for the crime is given, but all elements are not properly charged, or (2) where the wrong or no statutory citation is given, but all elements of the crime are properly charged.").

A document charging both felon in possession and 10-20-Life sentence enhancement can be written in a variety of ways and still be valid. Here, the information was captioned as "Possession of a Firearm by a Convicted Felon," and the body of the charge cited section 790.23(1)(a), the felon in possession statute. The statute includes all elements of the possession crime, and its citation in the information placed Appellant on notice of the charges against him. Burnette, 881 So.2d at 695. In addition, Appellant was well aware of the evidence supporting each form of possession, from his own personal knowledge as a direct participant in the fatal encounter, from the facts revealed during discovery, from the evidence introduced at trial, and from argument of counsel at trial. This was not a deprivation of due process. We therefore reject Appellant's argument arising out of an alleged defect in the charging information.

C. 10-20-Life Does Not Redefine The Underlying Crime.

Appellant's other argument arising from the charging language is that the information must be construed as precluding prosecution for constructive possession. Appellant suggests that the jury's acquittal of second-degree murder and its 10-20-Life finding of no actual possession preclude guilt of constructive possession. To the contrary, it is analytically incorrect to interpret 10-20-Life charging language as limiting the permissible scope of the prosecution for the underlying crime. The charge, instruction, and interrogatory for 10-20-Life sentence enhancement are analytically distinct from the underlying crime. The state was free to prosecute Appellant for both actual and constructive possession. The jury's separate interrogatory finding of no actual possession "during the commission of the offense" precludes only the minimum-mandatory sentence enhancement under 10-20-Life, not guilt of the underlying possession offense.

By definition, the 10-20-Life sentence enhancement applies only in cases of actual physical possession, not for constructive possession and not through some other theory such as principal. Kenny v. State , 693 So.2d 1136, 1136-37 (Fla. 1st DCA 1997). The sentence enhancement created in section 775.087(1) is not itself a substantive offense or an element of any underlying offense. Even though a connection between the enhancement and underlying crime may seem facially logical, a jury's 10-20-Life finding has no legal bearing on the findings or evidence required to convict of an underlying crime. The statute and case law governing the underlying crime apply to determine whether the state has established guilt of that crime. A special interrogatory verdict such as for 10-20-Life is thus analytically separate from verdicts for underlying crimes, and neither eliminates nor supplies an element of the underlying crimes.

The need to recognize that functional limitation on a 10-20-Life finding, and similar enhancement and reclassification findings, is one reason why it is advisable to present special interrogatories separately from verdicts for underlying crimes. The Florida Supreme Court has advised that, in the course of sequencing charged and lesser offenses in descending order in verdict forms, "[a]ny factor required to be found by the jury for reclassification or enhancement purposes may then [after sequencing charged and lesser offenses by degree] be placed in a separate interrogatory at the appropriate place." Sanders v. State , 944 So.2d 203, 207 (Fla. 2006). The court did not specify what "the appropriate place" is, but the three-Justice concurring opinion suggested that it be a place separate from the verdict form for the substantive offense:

[T]rial courts should provide an interrogatory separate from the verdict form for the core or substantive offenses for the jury to determine the existence of circumstances that can result in mandatory minimum sentences, sentence enhancements, or offense reclassifications..... Substantive or core offenses and the facts supporting reclassifications, enhancements, and mandatory minimum sentences for these offenses are distinct . Trial courts instructing juries on lesser included offenses should give instructions and provide verdict forms that comport with this distinction.

Id. at 207, 208 (Pariente, J., concurring) (emphasis added); see also Staten v. State , 203 So.3d 169, 2016 WL 5156689, at *1-3 (Fla. 3d DCA 2016) (Emas, J., concurring). Judge Emas "strongly echo[es]" the suggestion of the Sanders concurrence that special interrogatories be physically separated from the core verdict forms. Id. at *2. He emphasizes that special interrogatories are "not a determination of guilt for the core or substantive offense." Id. He recommends separate forms with separate signature lines for the foreperson. Id. at *3. His analysis emphasizes the distinction between determinations of guilt of the core offense and the existence of facts necessary for reclassification or mandatory minimum sentences. Id.

These cogent analytical observations drive home the point that jury determination of the two issues-guilt and additional circumstances-is a "distinct, sequential task[ ]." Sanders , 944 So.2d at 208. Likewise, because guilt and reclassification or enhancement are distinct inquiries, we as a reviewing court must not merge the two. Just as jurors are instructed that they must consider separately each crime charged, so too must we respect the legal distinction between separately-charged crimes, and between crimes and sentence reclassifications or enhancements. Applying the proper analysis, we must reject Appellant's argument that the special interrogatory verdict finding no actual possession for purposes of 10-20-Life requires us to vacate the verdict on felon in possession.

II. THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE VERDICT .

Just as a sentence enhancement is analytically distinct from the underlying crime, each crime charged is distinct and involves its own elements. Acquittal of second-degree murder does not require acquittal of felon in possession. Again, while there may be facial logic in tying the two together, as a matter of law they are distinct. If the evidence, viewed in a light most favorable to sustaining the jury's verdict, can satisfy the elements of felon in possession, that verdict must stand regardless of the jury's decision on second-degree murder.

Here, the jury could have acquitted Appellant of second-degree murder by finding that he constructively possessed the gun during the incident, but did not fire the fatal shot. The jury could have found that Appellant did fire the fatal shot but did so by accident. Or the jury could have found that regardless of who pulled the trigger or was holding the gun when it discharged, there was a moment after the victim was shot when Appellant alone had control of the gun. In any such scenario, Appellant was not guilty of second-degree murder, but could have been a felon in possession. Alternatively, as the state argued, the jury could have exercised its power of lenity and found that the state did not prove second-degree murder, but that Appellant had some guilty involvement of a lesser degree, choosing the only other option offered to it. All of these are valid scenarios, and under any of them, Appellant's judgment and sentence must be affirmed.

The evidence established without contradiction that the victim died of a gunshot wound to the head. The barrel of the gun was between her cheek and left molars when the gun discharged. The physical evidence at the crime scene established that Appellant was in the kitchen with the victim before she died, when she was shot, and after she was shot; then fled the scene. The inescapable threshold conclusion from that evidence is that there was a gun in the kitchen and that Appellant was in the kitchen at the same time. It was a small galley kitchen. He could reach it without taking more than a step or two no matter where it was. It was within ready reach. He was there when it discharged, within inches of the victim and facing her. He knew it was there. He could control it.

Appellant is a man, taller and, based on the evidence of the victim's non-lethal injuries, stronger than she was. The forensic evidence established that before she died, the victim sustained impact injuries resulting in bruising on the back of her left arm; under and beside her left eye, resulting in a black eye; over her left cheekbone and teeth; behind her right ear; and ligature marks on her neck consistent with a necklace having been yanked off of her. The bruise on her left cheek was deep, through to the inside of her mouth and all the way down to the bone. The victim's two daughters, ages five and eight at the time, had seen and heard Appellant and the victim fighting-both verbally and physically-throughout the apartment and in the kitchen. They were standing in the kitchen when they saw Appellant "slinging" their mother around. The older girl saw him beating her mother's head on the window. Both girls saw and heard her yelling for him to stop banging her against the window. They saw her pushing him away with both hands. A neighbor boy was playing outside the kitchen and saw the screen from the kitchen window pop out and nearly hit him during the struggle because of something hitting the window from the inside. He immediately went and told his mother they were fighting in the apartment and the victim was "slung into the window and the screen popped out." The girls then saw Appellant push their mother to the floor. This is competent evidence that Appellant had control of the victim and he had control of the place.

The state adduced independent evidence that Appellant possessed a gun. The victim's older daughter testified that she saw Appellant grab her mother, push her to the floor by the stove, and then commit an action that resulted in blood coming from her mother's mouth and neck: "I saw him beating her head on the window. Then that's when she went on the floor. And he did something by the stove, and then that's when blood came out of her mouth and neck." The younger girl, only five at the time of the death, testified that she saw Appellant push her mother to the floor and then grab "a small pot" from the stove, containing grease, which he poured "a lot of" on the victim and then it turned into blood. At about this time (working backwards from when Appellant was seen running from the apartment), the neighbors heard a "boom" that caused them to come to the apartment to see what was going on. Although both girls testified that they did not hear a shot or see a gun, the jury was entitled to interpret the girls' descriptions of the crime as the girls' way of depicting the shooting that very obviously did, in fact, occur. Both of them as direct eye-witnesses identified Appellant as having engaged in the actions that resulted in blood pouring out of their mother's mouth and neck. Separate, undisputed evidence identified the causative action as a shooting. That was legally sufficient evidence to allow the jury to convict Appellant of either actual or constructive possession of a firearm.

In addition, there was evidence from which the jury could conclude that shortly before the shooting, Appellant had exclusive access to a box of cartridges from which the fatal bullet could have come. Appellant and the victim had lived together off and on in the victim's apartment.

The older girl testified that at one point during the fight, Appellant went in the master bedroom alone and locked the door. She saw her mother pound on the bedroom door and heard her call for him to open it. Law enforcement investigating the scene found the box of cartridges in open view on a closet shelf. The box held 44 cartridges matching the caliber of the bullet found in the victim's head. Although there was only one empty spot in the box, it contained five cartridges that did not match the original contents. The defense argued at trial that the sole empty spot in the box supported a suicide theory; but the same evidence, including the absence of six cartridges matching the caliber of the fatal shot, would equally support the theory that Appellant took from the bedroom one cartridge or a gun containing one or up to all six of the missing cartridges matching the caliber of the fatal bullet.

If we properly interpret and apply the governing law to this evidence, we must conclude that the evidence was legally sufficient to sustain the jury's verdict. We reject as meritless Appellant's remaining arguments, and affirm his judgment and sentence.

AFFIRMED .

B.L. Thomas, C.J., and Ray, J., concur.


text:
    STATE of Florida, Appellant, v. Jacob LACKEY, Appellee.
    Case No. 2D16-3026
    District Court of Appeal of Florida, Second District.
    Opinion filed June 1, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellee.
   LUCAS, Judge.

Jacob Lackey pleaded guilty to one count of first-degree burglary, two counts of second-degree burglary, and one count of attempted second-degree burglary in three consolidated proceedings. At Mr. Lackey's request, the circuit court imposed a downward departure and sentenced him to ten years of probation to run concurrently as to all four counts, which the State appeals. We agree that, on these facts, the record did not support a downward departure sentence.

When the Pasco County circuit court accepted Mr. Lackey's plea and commenced a sentencing hearing in November of 2015, the defense indicated (and the State appeared to accept) that Mr. Lackey would likely qualify for a youthful offender designation pursuant to section 958.04, Florida Statutes (2015). Mr. Lackey's sentencing hearing, however, was continued and not completed until June 30, 2016. In the months between the November plea hearing and the continued sentencing hearing in June, the Pinellas County circuit court applied a youthful offender designation to Mr. Lackey in a separate criminal proceeding. The youthful offender designation in the Pinellas County proceeding effectively eliminated the ability of the Pasco County circuit court to apply the designation to the four charges that underlie this appeal. See § 958.04(1)(c) ; Christian v. State, 84 So.3d 437, 441 (Fla. 5th DCA 2012) ("Youthful offender sentencing is not available for ... defendants who have been sentenced pursuant to the Youthful Offender Act for a prior offense.").

The Pasco County circuit court expressed some degree of frustration when it learned of this development at the continued sentencing hearing. As the court observed, the Pinellas County case designation deprived Mr. Lackey of what had likely been an available youthful offender designation in the Pasco County proceeding; and the guideline sentencing range Mr. Lackey faced in the Pasco County proceeding was more severe than the one he would likely face in the Pinellas County proceeding. Without the youthful offender designation, Mr. Lackey's Criminal Punishment Code scoresheet in the Pasco County proceeding indicated a lowest possible prison sentence of 64.05 months. The Pasco County circuit court, however, sentenced him to probation for all four felony counts. Unable to lawfully apply a youthful offender designation, the presiding judge stated that he was imposing a downward departure for Mr. Lackey's sentence because of the "need for restitution." The circuit court provided no written findings as required under section 921.002(1)(f), Florida Statutes (2015). Cf. State v. Naylor, 976 So.2d 1193, 1196 (Fla. 2d DCA 2008) (noting that the trial court must articulate in writing its reasons supporting a downward departure, but if no written reasons are filed, the trial court's oral findings at the sentencing hearing can be sufficient if supported by competent, substantial evidence). The State now appeals that decision.

There is a mixed standard of review for appeals of downward departure sentences. See State v. Johnson, 224 So.3d 877, 879 (Fla. 2d DCA 2017). First, we "must determine whether the trial court applied the correct rule of law, and whether competent, substantial evidence supports the trial court's reason for imposing a downward departure sentence." Id. (quoting State v. Simmons, 80 So.3d 1089, 1092 (Fla. 4th DCA 2012) ). If so, then we must "decide whether the trial court [abused its discretion] in determining that the downward departure sentence was the best sentencing option for the defendant by weighing the totality of the circumstances in the case." Id. (alteration in original) (quoting Simmons, 80 So.3d at 1092 ). The defendant bears the burden of presenting competent, substantial evidence to support the reason for a downward departure. See State v. Carlson, 911 So.2d 234, 236 (Fla. 2d DCA 2005) ("[T]he trial court may not impose less than the lowest permissible sentence required by the Code unless the defendant establishes a valid basis for departure."); State v. Browne, 187 So.3d 377, 378 (Fla. 5th DCA 2016) ("The defendant bears the burden of proving a departure factor by the preponderance of the evidence.").

"A trial court must impose a guidelines sentence unless the court finds that the evidence supports a valid reason for a departure sentence." State v. Barnes, 753 So.2d 605, 606 (Fla. 2d DCA 2000). One potential valid reason, section 921.0026(2)(e), Florida Statutes, provides that a downward departure beneath the lowest permissible sentence under the Criminal Punishment Code may be issued if "[t]he need for payment of restitution to the victim outweighs the need for a prison sentence." The Fifth District summarized when such a need can justify a downward departure in a criminal sentence:

[A] downward departure is only justified if the harm suffered by the victim as a result of the theft was greater than normally expected, and restitution could mitigate that increased harm. Demoss v. State, 843 So.2d 309, 312 (Fla. 1st DCA 2003). Thus, a downward departure will be reversed where the record does not support a conclusion that there is a pressing need for restitution. See [State v. ]Schillaci, 767 So.2d [598,] 600 [ (Fla. 4th DCA 2000) ]. In weighing the need for restitution against the need for imprisonment, a sentencing court must also take into consideration relevant factors such as the nature of the loss, the efficacy of restitution, and the consequences of imprisonment. See Banks[ v. State], 732 So.2d [1065,] 1069 [ (Fla. 1999) ]. In considering the efficacy of restitution, the trial court must evaluate "the power of the restitution plan to restore the victim to his or her previous state," which includes the defendant's ability to pay restitution and the impact of the restitution plan on the victim. Demoss, 843 So.2d at 312.

State v. Wheeler, 180 So.3d 1117, 1119 (Fla. 5th DCA 2015). However, as we emphasized in Naylor, 976 So.2d at 1196, "[w]hen a downward departure sentence is imposed based on the need for restitution, some evidence of the victims' needs must be presented to the trial court to support a downward departure sentence." (citing Demoss, 843 So.2d at 312-13 ).

In the case before us, we must agree with the State that there was no evidence to support restitution as a basis for a downward departure on this record. The stolen property at issue in the Pasco County proceeding included several thousand dollars' worth of stolen cigarettes from convenience stores and cash and personal belongings stolen from an individual with whom Mr. Lackey had been living. There was no evidence presented of any "pressing need" for restitution by any of the victims of Mr. Lackey's crimes. See Wheeler, 180 So.3d at 1119 ("[A] downward departure will be reversed where the record does not support a conclusion that there is a pressing need for restitution."). To the contrary, the one victim who provided an impact statement in connection with Mr. Lackey's sentencing hearing (and who had apparently attended nearly every hearing in his criminal proceeding) stated unequivocally that the camcorder and laptop that were stolen from her-which held treasured family photographs and video footage-"can never be replaced or replicated." This victim actually expressed a desire that Mr. Lackey serve a prison sentence.

Because there was no showing of a need for restitution by any victim, or that restitution would be effective, we do not find competent, substantial evidence in this record to justify a departure beneath the Criminal Punishment Code's minimum prison sentence under section 921.0026(2)(e). See Naylor, 976 So.2d at 1196-97. While the circuit court may have felt compelled to impose the downward departure that it did, on the facts presented to the court, it could not do so on the ground of restitution. Accordingly, we reverse Mr. Lackey's sentences and remand for resentencing in conformance with the Criminal Punishment Code, which may include a new downward departure sentence if there are valid legal grounds to support the departure sentence and those legal grounds are supported by competent, substantial evidence. See Jackson v. State, 64 So.3d 90, 93 (Fla. 2011) ; State v. Pinckney, 173 So.3d 1139, 1140 (Fla. 2d DCA 2015).

Reversed and remanded.

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

      Mr. Lackey was eighteen years old at the time of the offenses. As a youthful offender, he would have been subject to a maximum probation, community control, or prison sentence of six years. See § 958.04(2)(a)-(d).

      Mr. Lackey later filed a motion to withdraw his plea in the Pinellas County case, but that court denied his motion.


author: Per Curiam.

text:
    Dejuane JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5394
    District Court of Appeal of Florida, First District.
    June 4, 2018
    Bruce A. Miller, Public Defender, and Nicholas Flippo, Assistant Public Defender, Pensacola; Randall J. Etheridge, Pensacola; Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This direct criminal appeal was filed December 20, 2017, seeking review of a judgment and sentence rendered over thirty days earlier, on October 31, 2017. The appeal is untimely and must be dismissed for lack of jurisdiction. See Fla. R. App. P. 9.140(b)(3) ; Miami-Dade County v. Peart , 843 So.2d 363 (Fla. 3d DCA 2003). We write only to address Appellant's argument, filed in response to our show-cause order, that the time to appeal was extended by a timely motion for reduction of sentence.

Appellant filed a "Motion to Reduce Sentence" on November 1, 2017, pursuant to Florida Rule of Criminal Procedure 3.800(c). In the motion, Appellant asked the trial court to reconsider its earlier sentence in light of pertinent facts, such as the possible sentencing range and the nature of the charges, as well as the effect the sentence will have on Appellant's family and the cost of incarceration. The motion properly appeals to the discretion of the sentencing court under rule 3.800(c). It does not allege any error or otherwise seek correction of the judgment and sentence under Florida Rule of Criminal Procedure 3.800(b)(1). Therefore, Appellant's motion did not extend the time to appeal. Cf. Fla. R. App. P. 9.020(i) (listing rule 3.800(b)(1) motion among the authorized motions that suspend rendition). Accordingly, the appeal is DISMISSED .

Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Wetherell, Ray, and Osterhaus, JJ., concur.