author: SASSO, J.

text:
    SHAMROCK-SHAMROCK, INC., a Florida for Profit Corporation, Appellant, v. Tracey REMARK, Appellee.
    Case No. 5D18-1987
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 26, 2019
    Dorothy F. Easley, of Easley Appellate Practice, PLLC, Miami, for Appellant.
    Gary M. Glassman, Assistant City Attorney, Daytona Beach, for Appellee.
   SASSO, J.

This case presents the issue of whether Florida law imposes a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation. We hold that it does not and therefore affirm the summary final judgment in favor of Appellee, Tracey Remark.

Factual Background and Procedural History

Appellant, Shamrock-Shamrock, Inc. ("Shamrock"), owns property in Daytona Beach that it sought to rezone and develop into a hotel and marina. The City of Daytona Beach Zoning Department considered and denied Shamrock's rezoning request. Shamrock appealed, but the Daytona Beach Planning Board upheld the decision. Remark was a member of the Planning Board at the time.

Thereafter, Shamrock sued the City of Daytona Beach and its Planning Board (collectively "the City"), eventually alleging that the City intentionally and for its own gain thwarted Shamrock's right to develop its property.

Remark was never a party to Shamrock's action against the City. However, Shamrock's operative complaint contained two references to Remark in its general allegations. The first was an allegation that prior to joining the Planning Board, Remark had sent a letter to a Planning Board member opposing Shamrock's rezoning request. The second reference was an allegation that after joining the Planning Board, Remark took part in hearings before the Board and voted on Shamrock's appeal "despite having bias and a pre-determined opinion against SHAMROCK, the Hotel and the Marina."

During Shamrock's litigation against the City, Shamrock sought to take Remark's deposition. It served several notices of deposition and subpoenas on Remark, beginning in May 2011 and ending ten months later with a sixth amended notice of taking deposition. Only the sixth amended notice, served on March 28, 2012, included a duces tecum request for documents to be produced at the deposition.

Remark's deposition was taken on April 20, 2012. Relevant to this appeal, Remark testified during her deposition that she had obtained a new desktop computer and had destroyed her old computer in December 2011. She did not preserve any records, documents, or emails from her old computer and did not inform anybody, including the City Attorney, that she was destroying it. She did not review her old computer to see if it contained documents relevant to the notices of taking deposition she received to date. Overall, Remark's testimony established that she destroyed her old computer after receiving the first deposition notice but before receiving the sixth amended deposition notice that for the first time included a duces tecum request.

Shamrock thereafter filed a two-count complaint against Remark, alleging that Remark either intentionally destroyed her old computer or "negligently destroyed [it] in bad faith." In that case, Remark and Shamrock filed competing motions for summary judgment regarding whether Remark had a duty to preserve her computer or its contents. Shamrock argued, inter alia, that Remark had a duty to preserve evidence because she had notice of the litigation between Shamrock and the City by virtue of the complaint and deposition notices, even though those notices did not specifically request that Remark produce any tangible items. Shamrock argued, citing League of Women Voters of Florida v. Detzner , 172 So.3d 363 (Fla. 2015), that Remark therefore had a duty to preserve evidence based on the foreseeability of litigation.

The trial court denied Shamrock's summary judgment motion and granted Remark's. It found that there was no genuine issue of fact that Remark had no statutory or contractual duty to preserve evidence; thus, Shamrock had to rely on a duty imposed by a discovery request. It also found no genuine issue of fact that by the time Shamrock served Remark with a subpoena duces tecum , she already had destroyed her old computer. As a result, the trial court held that Remark had no legal duty to preserve her old computer or its contents on the date she destroyed it.

Standard of Review

Our standard in reviewing the trial court's summary judgment order is de novo. Baxter v. Northrup , 128 So.3d 908, 909 (Fla. 5th DCA 2013). In evaluating the trial court's order, we must determine if the record evidence presented to the trial court shows there is no genuine dispute regarding the material facts. Id. We view the facts in the light most favorable to the non-moving party below. Id.

Analysis

Unlike some jurisdictions, Florida courts have recognized an independent cause of action for spoliation of evidence against third parties that accrues when a person or entity, though not a party to the underlying action causing the plaintiff's injuries or damages, loses, misplaces, or destroys evidence critical to that action. See , e.g. , Gayer v. Fine Line Constr. & Elec., Inc. , 970 So.2d 424 (Fla. 4th DCA 2007) (holding that special employer had duty under workers' compensation law to preserve evidence for injured laborer's claim against third-party tortfeasor based on section 440.39(7), Fla. Stat.).

To establish a spoliation cause of action, the plaintiff must prove each of the following six elements: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. Gayer , 970 So.2d at 426 (citation omitted); Cont'l Ins. Co. v. Herman , 576 So.2d 313, 315 (Fla. 3d DCA 1990) (citation omitted). This appeal involves only the second element, whether Remark had a duty to preserve evidence.

As to duty, Florida courts have held a duty may arise in third-party spoliation cases based on the existence of a contract, statute, or properly served discovery request. See , e.g. , Gayer , 970 So.2d at 426 ("Because a duty to preserve evidence does not exist at common law, the duty must originate either in a contract, a statute, or a discovery request." (citing Royal & Sunalliance v. Lauderdale Marine Ctr. , 877 So.2d 843, 845 (Fla. 4th DCA 2004) ) ). However, neither the Florida Supreme Court nor Florida's intermediate appellate courts have imposed a common law duty on a third party to preserve evidence based on foreseeability, or even actual knowledge, of litigation. Even so, Shamrock cites several cases to support its contention that third parties have an affirmative duty under Florida law to preserve evidence based on foreseeability of litigation. We address several of those cases in turn.

Primarily, Shamrock relies on Detzner , 172 So.3d 363, a case in which the trial court drew an adverse inference from the Florida Legislature's deletion of documentation relating to its redistricting plan. Shamrock's reliance on Detzner is misplaced for two reasons. First, Detzner was not a third-party spoliation case. Second, the language relied on by Shamrock is dicta. Specifically, the Florida Supreme Court stated in dicta that Florida courts have found a duty to preserve evidence when "a party should reasonably foresee litigation." 172 So.3d at 391 (citing Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So.2d 547, 549 (Fla. 4th DCA 2005) ). Notably though, the supreme court did not apply a presuit duty in that case. Id. Instead, it affirmed the trial court's adverse inference as a sanction, stating that "even in the absence of a legal duty," spoliation of evidence results in an adverse inference against the party that discarded or destroyed the evidence. That limited dicta cannot be said to establish an affirmative third-party duty under Florida law.

Nor does Hettiger , cited by the supreme court in Detzner , establish a common law duty to preserve evidence. Hettiger , like Detzner , discussed the obligations of a party to litigation and noted that a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim. Hettiger , 904 So.2d at 549 (citing Hagopian v. Publix Supermarkets, Inc. , 788 So.2d 1088, 1090 (Fla. 4th DCA 2001) ). However, the duty issue was not discussed in detail and was not relevant to the court's ultimate holding. Instead, the Hettiger court was primarily concerned with an erroneous jury instruction establishing a rebuttable presumption of negligence given as a result of the spoliation. Id. at 551.

Further, the Fourth District later clarified that the duty issue was not relevant to its holding in either Hagopian or St. Mary's Hospital, Inc. v. Brinson , 685 So.2d 33 (Fla. 4th DCA 1996), a case it cited in Hagopian . Royal & Sunalliance , 877 So.2d at 845-46. Indeed, the Fourth District declared that "neither Hagopian nor Brinson establishes a duty to preserve evidence when litigation is merely anticipated." Id. at 846.

While the aforementioned cases touched on the possibility that a party to litigation may have a presuit duty to preserve relevant evidence, none of those courts reached that ultimate issue in their holding. Likewise, none of those cases address a nonparty's duty to preserve.

Shamrock also cites to this Court's decision in Torres v. Matsushita Electric Corp. , 762 So.2d 1014 (Fla. 5th DCA 2000), as "instructive." To the contrary, the Torres majority opinion does not analyze the duty issue at all. Instead, this Court sitting en banc issued a per curiam opinion with a majority of the court concurring that the purchaser of a vacuum cleaner, which allegedly caught fire, could not raise a legal inference that the product was defective because the product was unavailable due to the purchaser's negligent destruction of the vacuum. Torres, 762 So.2d at 1014-18. Even so, Shamrock relies on language from a concurring and concurring specially opinion stating, "If one knows that he, she, or it is about to become involved in a civil action, this alone should be sufficient special circumstances to impose a duty of care to preserve such evidence in such potential party's possession that a reasonable person would foresee is material to that action." Id. at 1019 (Harris, C.J., concurring and concurring specially). We note that as a concurring opinion, the opinion on which Shamrock relies has no precedential value and that the only support cited in the opinion is an Illinois case. Thus, Torres similarly does not establish the duty Shamrock promotes.

Because we conclude that no Florida court has yet recognized a common law duty for third-party preservation of evidence based on the knowledge or foreseeability of litigation, we now consider whether we should. Our inquiry begins by determining whether, and under what circumstances, a duty to preserve evidence arises. In evaluating the existence of a common law duty, courts assess the interests of each party and society to determine whether a duty should be imposed. Rupp v. Bryant , 417 So.2d 658, 667 (Fla. 1982).

" '[D]uty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection [or not]." Gracey v. Eaker , 837 So.2d 348, 354-55 (Fla. 2002) (quoting Rupp , 417 So.2d at 667 ).

Under this framework, jurisdictions that permit an independent tort for third-party spoliation generally decline to recognize a broad, common law duty to preserve evidence. Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998) ("There is no general duty in the common law to preserve evidence in a third-party spoliation situation."); Koplin v. Rosel Well Perforators, Inc. , 241 Kan. 206, 734 P.2d 1177, 1179 (1987) (noting general rule that there is no duty to preserve possible evidence for another party to aid that other party in some future legal action against third party); Coleman v. Eddy Potash, Inc. , 120 N.M. 645, 905 P.2d 185, 191 (1995) ("We hold that in the absence of [certain enumerated circumstances] a property owner has no duty to preserve or safeguard his or her property for the benefit of other individuals in a potential lawsuit."), overruled on other grounds by Delgado v. Phelps Dodge Chiro, Inc. , 131 N.M. 272, 34 P.3d 1148 (2001) ; Hannah v. Heeter , 213 W.Va. 704, 584 S.E.2d 560, 568 (2003) (stating "there is no general duty to preserve evidence" in third-party spoliation cases); Andersen v. Mack Trucks, Inc. , 341 Ill.App.3d 212, 276 Ill.Dec. 203, 793 N.E.2d 962, 966 (2003) (noting no general duty to preserve evidence exists).

And in defining the scope of a third party's duty in spoliation cases, courts tread carefully due to a number of competing concerns. Chief among those concerns is respect for individual property rights. See , e.g. , Fletcher v. Dorchester Mut. Ins. Co. , 437 Mass. 544, 773 N.E.2d 420, 424-25 (2002) ("Automatic imposition of such a duty [to preserve evidence] on all witnesses would interfere with a witness's own property rights."); Hannah , 584 S.E.2d at 568 ("According to the individual autonomy theory, tort liability for spoliation interferes with individual property rights." (quoting Bart S. Wilhoit, Spoliation Of Evidence: The Viability Of Four Emerging Torts , 46 UCLA L. Rev. 631, 671 (1998) ) ). Courts have also raised concerns with third-party spoliation litigation, such as ensuring the finality of judgments, the potential for conflicting judgments, speculative damages, and imposing undue financial burdens on nonparties to litigation. See , e.g. , Temple Cmty. Hosp. v. Superior Court , 20 Cal.4th 464, 84 Cal.Rptr.2d 852, 976 P.2d 223, 230 (1999) (noting potential for meritless claims and confusion of jury exists in third-party spoliation situations); Trevino v. Ortega , 969 S.W.2d 950, 952 (Tex. 1998) (acknowledging courts that have recognized evidence spoliation tort note that damages are speculative); Metlife Auto & Home v. Joe Basil Chevrolet, Inc. , 303 A.D.2d 30, 753 N.Y.S.2d 272, 281-82 (2002), aff'd , 1 N.Y.3d 478, 775 N.Y.S.2d 754, 807 N.E.2d 865 (2004) (noting that benefits of recognizing action for third-party spoliation are outweighed by burden to litigants, witnesses, and judicial system that would be imposed by potentially endless litigation over speculative loss and by cost to society of promoting onerous record and evidence retention policies).

Weighed against these considerations, courts have recognized the importance of ensuring that spoliation does not improperly impair a litigant's rights. But as other jurisdictions have noted, and as is available in Florida, litigants may employ various legal mechanisms to impose upon a third party a duty to preserve necessary evidence. For example, a third party may be required to produce particular evidence it possesses in response to a subpoena duces tecum , which may be enforced by court orders and the sanction of contempt. See Fla. R. Civ. P. 1.410(c), (f).

In this case, there was no statute, contract, or discovery request that would impose a clearly defined duty on Remark to preserve any potentially relevant evidence. Thus, a duty would arise only through Remark's purported knowledge of Shamrock's pending litigation and her anticipation that something in her control could potentially be of use to that litigation. As such, Shamrock would like us to announce that Remark owed a duty to it based on the foreseeability of litigation. Considering the traditional approach to defining legal duty, we decline to do so. Indeed, such a broad pronouncement would be tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others' lawsuits. There are innumerable circumstances in which a nonparty to litigation may have evidence relevant to a case and may know of its relevance. But that knowledge, by itself, should not give rise to a duty to safeguard the evidence in anticipation of litigation. Mukamal v. Gen. Elec. Capital Corp. (In re Palm Beach Fin. Partners II, L.P.) , 517 B.R. 310, 327 (Bankr. S.D. Fla. 2013) ("In fact, 'that an actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action unless a special relationship exists between the actor and the other which gives the other the right to protection.' " (quoting Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979) ) ). While we do not speculate as to every circumstance under which a third party to litigation may have a legal duty to preserve evidence, we hold that the trial court properly determined here that Remark did not owe a legal duty to Shamrock. The summary judgment in favor of Remark is affirmed.

AFFIRMED.

COHEN and EISNAUGLE, JJ., concur.

      In contrast, "[f]irst-party spoliation claims are claims in which the defendant who allegedly lost, misplaced, or destroyed the evidence was also a tortfeasor in causing the plaintiff's injuries or damages." Martino v. Wal-Mart Stores, Inc. , 908 So.2d 342, 346 n.2 (Fla. 2005). An independent cause of action does not exist for first-party spoliation of evidence. Id. at. 347.

      The plaintiff in Hettiger sued the defendant for both negligence and spoliation of evidence. The jury decided the case on the negligence claim only and the Fourth District noted its intervening decision that a first party may not maintain both negligence and spoliation claims against the same defendant. 904 So.2d at 551 n.1.

      Sponco Manufacturing, Inc. v. Alcover , 656 So.2d 629 (Fla. 3d DCA 1995), and Palmas Y Bambu, S.A. v. E.I. DuPont de Nemours & Co. , 881 So.2d 565 (Fla. 3d DCA 2004), also do not establish a third-party duty to preserve evidence based on the foreseeability of litigation. In Sponco , the issue on appeal was the propriety of the sanction and not whether the manufacturer had a duty to preserve the ladder. 656 So.2d at 630. In Palmas , the court "assume[d] for the sake of discussion the trial court correctly determined a duty was owed" and therefore did not decide whether the third party in that case had a duty to preserve evidence. 881 So.2d at 580 n.11.


source: Caselaw Access Project

author: M.K. Thomas, J.

license: Public Domain

text:
    Sharon VARRICCHIO, Appellant, v. ST. LUCIE COUNTY CLERK OF COURTS and Ascension Insurance, Appellees.
    No. 1D17-3229
    District Court of Appeal of Florida, First District.
    April 29, 2019 Rehearing Denied May 29, 2019
    Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Gary M. Schloss of Hayes, Schloss & Alcocer, P.A., West Palm Beach, for Appellees.
   M.K. Thomas, J.

Sharon Varricchio ("Claimant") appeals a workers' compensation order denying her claim for temporary disability benefits. We affirm but write to address retroactive assignment of maximum medical improvement ("MMI") and the claim that section 440.13(4)(c), Florida Statutes (2013), allowing ex parte conferences, violates the privacy clause of the Florida Constitution.

I. Facts

In 2013, the Claimant injured her back moving boxes. The E/C accepted compensability and authorized medical care with two doctors-Drs. McCollom, a neurosurgeon, and Weidenbaum, a pain management physician. Dr. McCollom placed the Claimant at neurosurgical MMI and released her care to Dr. Weidenbaum.

Dr. Weidenbaum performed a lumbar rhizotomy in June 2015. The operative report detailed: "The patient was instructed to call us for follow-up within 2 weeks' time." However, the Claimant did not return to see Dr. Weidenbaum for almost a year. On that return visit, the Claimant reported 100% pain relief following the rhizotomy until approximately two weeks prior to her return. In completing the DWC-25 form, Dr. Weidenbaum indicated that the Claimant had reached MMI but did not specify the specific MMI date in the field provided on the form. However, due to continued pain complaints, the Claimant underwent a second rhizotomy shortly thereafter. She returned for a follow-up visit and reported no relief from the procedure. Dr. Weidenbaum indicated on the DWC-25 form that the Claimant was at MMI but again did not specify a date or address permanent impairment rating.

On November 30, 2016, the Claimant returned to Dr. Weidenbaum and reported no improvement. Physical therapy and medications were prescribed. At this visit, Dr. Weidenbaum fully completed the DWC-25 form to include a specific MMI date to correspond with the date of the visit with a 5% permanent impairment rating and no work restrictions. Previously, he had assigned essentially light duty restrictions.

Upon receiving the impairment rating, the E/C began paying permanent impairment benefits ("IBs") pursuant to section 440.15(3), Florida Statutes (2013). The E/C then filed the required DWC-4 form giving notice of the Claimant's change of status and identifying the MMI date as November 30, 2016.

The Claimant filed a petition for benefits (PFB) seeking temporary total disability (TTD) and/or temporary partial disability (TPD) benefits from September 26, 2013, and continuing. The E/C asserted that no TTD/TPD benefits were due as the Claimant had reached MMI, among other defenses.

At deposition, Dr. Weidenbaum testified that the Claimant was likely at MMI after the initial rhizotomy performed on June 10, 2015 and that he would have placed the Claimant at MMI sooner had she, as instructed, returned within a few weeks after the procedure and reported no pain. According to Dr. Weidenbaum, the second rhizotomy would not necessarily change the MMI date as exacerbations of pain are anticipated. He classified the medication and physical therapy as palliative in nature and, therefore, did not affect MMI status. Dr. Weidenbaum identified questionnaires he completed and signed in April and June 2017 (the latter at an ex parte conference with an E/C representative), in which he retroactively assigned the Claimant's MMI date to be June 30, 2015, and that the Claimant was capable of performing her job duties.

The Claimant testified at the merits hearing. She denied ever being advised, orally or in writing, by Dr. Weidenbaum or his staff that she was to return to him two weeks after the rhizotomy. Furthermore, she denied being provided copies of the DWC-25 forms in which Dr. Weidenbaum had placed her at MMI. She learned she was at MMI in November 2016 when the claims adjuster advised her that IBs were being initiated.

Following a merits hearing, the JCC entered a Final Order framing the determinative issue as "the correct MMI date." Because he concluded the Claimant reached MMI on June 30, 2015, the claim for TTD/TPD benefits was denied. The Claimant argues that the JCC erred when he accepted Dr. Weidenbaum's retroactive MMI date of June 30, 2015, thus, precluding an award of TTD/TPD benefits for the claimed time period from November 5, 2015 (date of termination from E/C), through November 30, 2016, the date the Claimant argues she reached MMI.

II. Analysis

Claim for TTD/TPD

To the extent an issue turns on resolution of the facts, the standard of review is competent, substantial evidence ("CSE"); to the extent it involves an interpretation of law, the standard is de novo. See Benniefield v. City of Lakeland , 109 So.3d 1288, 1290 (Fla. 1st DCA 2013).

In a workers' compensation proceeding, the JCC is the finder of fact who "may accept or reject an expert's testimony, or give it the weight deserved considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all other evidence in the case." White v. Bass Pro Outdoor World, LP , 16 So.3d 992, 994 (Fla. 1st DCA 2009). This Court does not substitute its judgment for that of the JCC on matters supported by CSE. See Louisiana Pacific Corp. v. Harcus , 774 So.2d 751, 757 (Fla. 1st DCA 2000).

The question of whether a claimant has reached MMI is a medical question that should be answered by medical experts. Lemmer v. Urban Elec., Inc. , 947 So.2d 1196, 1198 (Fla. 1st DCA 2007). However, a JCC's reliance on a physician's opinion must be supported by the substance of that doctor's medical testimony and not merely by the doctor's conclusion. Id.

Although the JCC acknowledged that Dr. Weidenbaum had suggested several MMI dates, he ultimately accepted Dr. Weidenbaum's rationale for assigning the June 30, 2015, MMI date. The JCC acted within his discretion, and the only medical evidence before him related to the date of pain management MMI was from Dr. Weidenbaum. In the Final Order, the JCC stated:

It must be noted that there is no medical opinion regarding claimant's MMI date other than that provided by Dr. Weidenbaum (with exception of Dr. McCollum's opinion that the claimant previously reached MMI April 20, 2015). This evidence is solely presented via Dr. Weidenbaum's office notes, forms, and testimony.

On appeal, the Claimant argues that the JCC's acceptance of the June 30, 2015, MMI date constitutes error because Dr. Weidenbaum did not examine the Claimant on that day. As authority, the Claimant cites Peterson v. Georgia-Pacific Corporation , 510 So.2d 1015 (Fla. 1st DCA 1987). However, Peterson is readily distinguishable as its holding was not that a doctor must have actually examined a patient on the date assigned for MMI or restrictions; instead, Peterson expresses only that there must be an evidentiary foundation to support such an assignment or the finding cannot be supported by CSE. Id. at 1018. Here, the only medical evidence before the JCC regarding MMI was that of Dr. Weidenbaum. As CSE exists to support the JCC's determination, we are constrained to affirm. See Harcus , 774 So.2d at 757.

The Claimant relies on this Court's prior decisions in Delgado v. Omni Hotel , 643 So.2d 1185, 1187 (Fla. 1st DCA 1994), Utley-James, Inc. v. Lady , 448 So.2d 1191, 1193 (Fla. 1st DCA 1984), and Rolle v. Picadilly Cafeteria , 573 So.2d 94, 97 (Fla. 1st DCA 1991), for the proposition that the MMI assignment of June 2015 is precluded because she continued to receive medical care with an expectation of some degree of further recovery. Again, the only medical evidence before the JCC regarding the pain management treatment and MMI was that of Dr. Weidenbaum who testified that all care after the initial rhizotomy was palliative in nature.

The Claimant also argues that this case is "eerily similar" to Gauthier v. Florida International University , 38 So.3d 221 (Fla. 1st DCA 2010). She argues that the E/C's failure to confirm MMI and acquire a permanent impairment rating prior to November of 2016 precludes her acquisition of the benefits requested. To the extent that the Claimant seeks a broad expansion of the doctrine of equitable estoppel, her reliance on Gauthier is unpersuasive. To demonstrate estoppel, the Claimant must establish that: (1) the E/C misrepresented a material fact; (2) the Claimant relied on the misrepresentation; and (3) the Claimant changed her position to her detriment because of the misrepresentation. See, e.g., Deere v. Sarasota Cty. Sch. Bd. , 880 So.2d 825, 826 (Fla. 1st DCA 2004). We acknowledge that estoppel may be a viable bar to retroactive assignment of MMI or work restrictions under certain facts. However, as the Claimant here did not satisfy the required elements of estoppel or demonstrate supporting facts, her argument fails.

Constitutional Right to Privacy

The attorney for the E/C had a one-on-one meeting with Dr. Weidenbaum shortly before he completed the April 2017 questionnaire specifying the MMI date of June 30, 2015. The Claimant contends that section 440.13(4)(c) -the statutory provision giving the E/C the right to discuss Claimant's medical condition with her doctors, outside of her presence and without prior notice-violates her constitutional right to privacy.

Our review of constitutional claims is de novo. See Medina v. Gulf Coast Linen Servs. , 825 So.2d 1018, 1020 (Fla. 1st DCA 2002). Under Article I, Section 23 of the Florida Constitution, "[e]very natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein." The right to privacy is a fundamental right, see Winfield v. Div. of Pari-Mutuel Wagering, Dep't of Bus. Regulation , 477 So.2d 544, 547 (Fla. 1985), but there must first be evidence of a "legitimate" expectation of privacy, considering all the circumstances. See S & A Plumbing v. Kimes , 756 So.2d 1037, 1041 (Fla. 1st DCA 2000) (citing City of N. Miami v. Kurtz , 653 So.2d 1025, 1028 (Fla. 1995) ).

Here, no legitimate expectation of privacy can be asserted. See Kimes , 756 So.2d at 1041. In Kimes , this Court expressly held that section 440.13(4)(c) does not violate Florida's constitutional right to privacy. 756 So.2d at 1041. The Claimant suggests that Kimes no longer controls the constitutional question here in light of the supreme court's decision in Weaver v. Myers, 229 So.3d 1118 (Fla. 2017), and the 2003 amendments to section 440.13(4)(c). In Weaver , the supreme court held that certain amendments to the medical malpractice law, which required the release of medical records and permitted ex parte secret interviews with medical providers, violated the appellant's right to privacy. Id. at 1141-42 ("Here, the constitutional protection operates in the specific context of shielding irrelevant, protected medical history and other private information from the medical malpractice litigation process."). But the Weaver court distinguished Kimes , cited by way of analogy, on two grounds: first, that workers' compensation, as a self-executing system, is substantially different from the adversarial and traditional actions in tort; and second, that "the only medical professional to be interviewed was explicitly hired for the purposes of workers' compensation to evaluate the causal connection between the work performed and the injury." Id. at 1138.

The Claimant contends that the second distinction, noted in dicta in Weaver , is an acknowledgement by the supreme court that the Kimes decision turned on an injured worker's lack of an expectation of privacy with regard to only those physicians authorized to treat under workers' compensation law. The Claimant argues that section 440.13(4)(c) was substantially amended in 2003 and these amendments expand the scope of the law to permit E/Cs to obtain records from, and secretly meet with, all physicians, not just those authorized to treat workplace injuries. But this statutory change has had no effect on the Claimant, whose position is identical to that of the claimant in Kimes -exclusion from an ex parte meeting between the authorized treating physician and the E/C's representative, where the discussion was limited to the workplace injury.

As a consequence, the Claimant has not demonstrated injury that is anything more than conjecture. And, because Claimant has provided no support in the record that the recent amendments to section 440.13(4)(c) violate her right to privacy causing " 'an injury which is both real and immediate, not conjectural or hypothetical,' " her constitutional challenge must also fail. See Punsky v. Clay Cty. Bd. of Cty. Comm'rs , 60 So.3d 1088, 1092 (Fla. 1st DCA 2011) (holding claimant's constitutional argument must fail where evidence fails to show real and immediate injury) (quoting Montgomery v. Dep't of Health & Rehab. Servs. , 468 So.2d 1014, 1016 (Fla. 1st DCA 1985) ). Accordingly, we find that section 440.13(4)(c), as amended, does not violate the constitutional right to privacy.

AFFIRMED .

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

      A rhizotomy is a surgical procedure to sever nerve roots in the spinal cord. The procedure effectively relieves chronic back pain and muscle spasms.

      Form DFS-F5-DWC-25 ("DWC-25") has been adopted by the Florida Division of Workers' Compensation in Rule 69L-7.602, Florida Administrative Code, as the required reporting form for physicians to recommend medical treatment/services and report the medical status of the injured employee to insurers/employers, including the establishment of MMI and assignment of a permanent impairment rating.

      Form DFS-F2-DWC-4 ("DWC-4") has been adopted by the Florida Division of Workers' Compensation in Rule 69L-3.025, Florida Administrative Code, as the required reporting form for reporting changes in medical and indemnity status.


author: PER CURIAM.

text:
    Haydee Alfaro GONZALEZ, Petitioner, v. CITY OF MIAMI, a Municipal Corporation of the State of Florida, Respondent.
    No. 3D18-2242
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Rex E. Russo, Coral Gables, for petitioner.
    Victoria Méndez, City Attorney, and Kerri L. McNulty, Sr. Appellate Counsel, for respondent.
    Before SALTER, LINDSEY, and MILLER, JJ.
   PER CURIAM.

ON MOTION FOR REHEARING

Upon consideration of Petitioner's Motion for Rehearing, we grant rehearing and withdraw the opinion of February 20, 2019, and substitute the following opinion in its place.

ON PARTIAL CONFESSION OF ERROR

Petitioner Haydee Alfaro Gonzalez seeks to reinstate two separate appeals, which the Eleventh Judicial Circuit Appellate Division consolidated and then dismissed. The City of Miami concedes that there was no basis to dismiss the appeal from the Code Enforcement Board (Case No. 18-88 AP). With respect to the appeal from the Unsafe Structures Panel (Case No. 18-249 AP), we hold that dismissal was improper because the notice of appeal was timely filed. We therefore grant the petition for writ of certiorari, quash the appellate division's dismissal order, and remand for reinstatement of the consolidated appeals.

Petition granted; order quashed.

      Petitioner appealed (1) an order from the Code Enforcement Board (Case No. 18-088 AP) and (2) an order from the City's Unsafe Structures Panel (Case No. 18-249 AP).


text:
    Craig Lazar BENT, Petitioner, v. STATE of Florida and Louis A. Quinones, Jr., as Chief of Orange County Corrections, Respondents.
    Case No. 5D19-1060
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 1, 2019
    Lauren Elizabeth Bobek, Orlando, for Petitioner.
    Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.
    No Appearance for other Respondent.
   PER CURIAM.

Petitioner, Craig Lazar Bent, petitions this Court for a writ of habeas corpus, claiming that he is illegally detained and entitled to a new hearing to determine reasonable bail. Because we agree that Petitioner is entitled to a hearing, we grant the petition.

On February 21, 2017, Petitioner was charged by information with second-degree felony murder (with a firearm), attempted first-degree murder with a firearm, and shooting at, within, or into an occupied vehicle. At an April 21, 2017 bond hearing, the investigating officer testified that two witnesses, Richardson and Roth, identified Petitioner from a photo lineup as present at the scene of the crime with a firearm. Richardson's identification of Petitioner was unequivocal, while Roth's identification was not as reliable. Based in large part on the positive identifications, the trial court denied the motion to set bond on the second-degree felony murder and attempted first-degree murder with a firearm counts.

However, Richardson later testified during her deposition that the investigating officer pressured her into selecting Petitioner from the photo lineup. Based on this testimony, Petitioner filed a second motion to set bond, which was denied without explanation following a March 12, 2018 hearing.

After the second hearing, the State filed a notice indicating that another officer, who was present during the photo lineup, stated that Richardson's testimony regarding coercion was true. Based on the State's notice, Petitioner filed a third motion to set bond. The next day, the trial judge's judicial assistant informed the parties that the trial judge would not entertain another bond hearing on this case. No written order was entered.

The trial court's refusal to set Petitioner's third motion for a hearing is the basis for the instant petition. In response to this Court's show cause order, the trial court advised that it had held a status conference and determined that the third motion to set bond was insufficient, and therefore, denied both the motion and Petitioner's request for a hearing.

Considering the record before us and Richardson's seeming recantation of the certainty of her identification, which is now allegedly supported by the statement of a law enforcement officer, we conclude the motion was sufficient and the trial court abused its discretion in denying the motion without a hearing. Accordingly, we grant the petition and remand this matter to the trial court to promptly conduct a full bond hearing.

PETITION GRANTED; CAUSE REMANDED.

EISNAUGLE, GROSSHANS and SASSO, JJ., concur.


author: Per Curiam.

text:
    Michael Deshon DANIEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0516
    District Court of Appeal of Florida, First District.
    May 6, 2019 Rehearing Denied May 30, 2019
    Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant.
    Ashley Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant led police on a high-speed car chase through a residential neighborhood after an officer attempted to pull him over for running a stop sign. The chase ended when Appellant's car collided with a minivan and came to rest in a nearby yard. The driver of the minivan was killed in the crash and one of the passengers was seriously injured. The other passengers in the minivan also suffered injuries, as did several persons in the yard where Appellant's car came to rest. Appellant fled the scene on foot but was apprehended a short distance away.

Appellant was charged with multiple offenses arising out of this criminal episode, including vehicular homicide and fleeing or eluding. The victims listed in the information for the fleeing or eluding count were the deceased driver, the injured passengers, and the injured persons in the yard where Appellant's car came to rest; but, for reasons not explained in the record, the jury instructions for the fleeing or eluding count omitted "serious bodily injury" as an element of the offense.

Appellant's sole defense at trial was that he was not driving the car that collided with the minivan. This defense was extremely weak and was rejected by the jury, which found Appellant guilty "as charged" on all counts. The trial court adjudicated Appellant guilty on all counts and sentenced him to concurrent 25-year prison terms on the vehicular homicide and fleeing or eluding counts and to time-served on the other counts.

On appeal, Appellant argues that his dual convictions for vehicular homicide and fleeing or eluding are barred by the judicially-created "single homicide rule" because due to how the jury was instructed on the fleeing or eluding count, both convictions were necessarily based on the death of the minivan's driver and "there can be but one penalty imposed for causing the death of a single victim." State v. Cooper , 634 So. 2d 1074, 1074 (Fla. 1994) ; see also Houser v. State , 474 So. 2d 1193, 1197 (Fla. 1985) ("Florida courts have repeatedly recognized that the legislature did not intend to punish a single homicide under two different statutes."). We agree with this argument based on Crusaw v. State , 195 So. 3d 422 (Fla. 1st DCA 2016), in which we held that the single homicide rule precludes dual convictions for vehicular homicide and careless driving causing death or great bodily injury where both offenses involved the same victim. Accord McCullough v. State , 230 So. 3d 586, 593 (Fla. 2d DCA 2017) (holding that the single homicide rule bars dual convictions for vehicular homicide and fleeing or eluding when the offenses involve the same victim).

The appropriate remedy under these circumstances is-as Appellant argues-to vacate the first-degree fleeing or eluding conviction and remand for entry of a judgment of conviction on the lesser included offense of second-degree fleeing or eluding under section 316.1935(3)(a) , Florida Statutes. See Cooper , 634 So. 2d at 1074-75 (holding that a defendant convicted of DUI manslaughter may not also be convicted of driving with a suspended license and carelessly or negligently causing death, but he may also be convicted of a lesser included offense of the latter crime);

Linton v. State , 212 So. 3d 1100, 1103 (Fla. 5th DCA 2017) (vacating defendant's first-degree fleeing or eluding conviction under the single homicide rule where the defendant was also convicted of felony murder and remanding for entry of a judgment convicting the defendant of second-degree fleeing or eluding). Appellant is also entitled to resentencing. See Linton , 212 So. 3d at 1103 ("The trial court shall also conduct appropriate proceedings to resentence Appellant based on his modified convictions.").

VACATED and REMANDED with directions.

Wetherell and Osterhaus, JJ., concur; Winokur, J., concurs in result only with opinion.

Winokur, J., concurring in result only.

Alma Hardy died as a result of Daniel's car colliding into the minivan she was driving. Several other persons suffered serious bodily injury as a result of the collision. The so-called single homicide rule should not have been implicated in this case at all: the death of Alma Hardy was sufficient to support Count I (vehicular homicide), and the serious bodily injury to any or all of the six other persons was sufficient to support Count II (fleeing or attempting to elude a law enforcement officer at high speed causing serious bodily injury or death). There is no dispute that the collision caused the death of Alma Hardy and the serious injury to the others. While it is true, as the majority notes, that the jury instructions on Count II inexplicably indicated only that the fleeing caused death (omitting serious bodily injury), that instruction error is harmless beyond a reasonable doubt. Nonetheless, in spite of the fact that the two counts plainly did not implicate the single homicide rule because Count II could have been based on the serious injury to multiple victims (and not the death of Ms. Hardy), I find that we are constrained to reverse Daniel's conviction under the authority of Lee v. State , 258 So. 3d 1297 (Fla. 2018), which prohibits us from considering the evidence, the jury instructions, the verdict form, or any matter other than the charging document alone, in determining whether Daniel improperly suffered multiple punishments for the same act.

I.

The State charged Daniel in Count I with vehicular homicide/leaving the scene of the accident, pursuant to section 782.071(1)(b), Florida Statutes, and identified the deceased victim, Alma Hardy. In Count II, the State charged Daniel with fleeing or attempting to elude a law enforcement officer at high speed causing serious bodily injury or death pursuant to section 316.1935(3)(b), Florida Statutes, and named as victims "ALMA L HARDY and/or RICHARD LEE HARDY and/or TOMIKI MONIQUE HARDY and/or LAQUIA ANDRONETTE REDMOND and/or SONJA DENISE HAYES and/or MARTIN HENDRICKS and/or RICHARDO HARDY." The evidence showed that none of those victims other than Alma Hardy died as a result of Daniel's driving, but that all six of them suffered serious bodily injury.

At the beginning of trial, the trial court informed the jury that Count II alleged "fleeing or attempting to elude a law enforcement officer in an agency vehicle with sirens and lights activated at high speed causing death or serious bodily injury," and the State's opening statement in reference to Count II stated that the crash "resulted in both death and serious bodily injuries." The State presented multiple victims who testified about the serious injuries they suffered in the crash, which included multiple concussions, a crushed skull, and scarring; the crash landed one victim in an intensive care unit for several days.

After the parties rested, the trial court and parties reviewed the verdict form and agreed that Count II required a finding of "serious bodily injury or death." The trial court proceeded to review the jury instructions, and Daniel similarly agreed that the jury would be instructed that Count II required "serious bodily injury or death." The State, during closing arguments, referred to Count II, noting the multiple serious injuries and that Daniel "caused serious bodily injury or death." Daniel not once disputed the death or serious injuries caused in the crash, arguing only that the State's evidence that he was the driver was insufficient.

The trial court then read the jury instructions, which stated that Count II required a finding that Daniel's actions "caused the death of another person," for unknown reasons omitting the "serious bodily injury" language. Daniel stated that he had no objections to the instructions as read.

The jury found Daniel guilty as charged on all counts. The jury foreperson checked next to the following offense in Count II: "Guilty of Fleeing to Elude a Law Enforcement Officer - Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death, as charged."

Daniel argued at sentencing that it was impermissible to sentence him on both Counts I and II under the authority of State v. Cooper , 634 So. 2d 1074 (Fla. 1994), which applied the single homicide rule to approve the reversal of convictions for DUI manslaughter and driving while license suspended and carelessly or negligently causing death, where there was only a single death. The premise of Daniel's argument was that both Count I and II were based on the death of Alma Hardy. The trial court rejected Daniel's argument.

II.

Vehicular homicide, as its name implies, requires death of a victim. § 782.071, Fla. Stat. For this reason, Alma Hardy was listed alone as a victim in Count I. Conversely, the offense of fleeing or attempting to elude a law enforcement officer at high speed causing serious bodily injury or death, does not require the death of victim; serious bodily injury of a victim is sufficient to support this offense. § 316.1935(3)(b), Fla. Stat. See also Fla. Std. Jury Instr. (Crim.) 28.8(a). For this reason, all victims were listed in Count II, including the victims who were seriously injured but not killed.

III.

Daniel notes that the jury instructions for Count II omitted the "serious bodily injury" language and only indicated that the jury had to find that Daniel's fleeing an officer "caused the death of another person." Daniel argues, and the majority accepts, that this formulation implicates the single homicide rule because only one victim died, and her death was an element of Counts I and II. I disagree. Jury instruction errors are generally subject to harmless error analysis. Hunter v. State , 8 So. 3d 1052, 1071 (Fla. 2008). In Hunter , the instructions used "and/or" between the names of the appellant and his co-defendants in each element of the offenses requiring the appellant's name. Id. at 1070. He argued that this erroneous instruction allowed the jury to convict him "solely upon a finding that a codefendant's conduct satisfied an element of the offense."

Id. The supreme court acknowledged the error, but found it harmless due in part to overwhelming evidence. Id. at 1070-71 ; see also Victorino v. State , 23 So. 3d 87, 101 (Fla. 2009) (finding the same error harmless due to other instructions given, overwhelming evidence of guilt, and the jury's ability to understand the verdict); Fleming v. State , 88 So. 3d 288, 289 (Fla. 1st DCA 2012) (holding that absence from the jury instructions of any question regarding facts that had to be found by the jury pursuant to Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was harmless in light of the evidence, which showed that the jury would have found the stated factors if they had been in the instructions); Lindsay v. State , 1 So. 3d 270 (Fla. 1st DCA 2009), rev. den'd 6 So. 3d 52 (Fla. 2009) (permitting imposition of a minimum mandatory sentence even though the court erroneously failed to give the jury a special interrogatory to decide the question of actual possession of a firearm because the evidence showed that no reasonable jury could have found that he did not possess the firearm); Noel v. State , 125 So. 3d 243 (Fla. 4th DCA 2013) (affirming conviction in spite of the court's erroneous failure to instruct the jury on an essential element of the crime, on the ground that the instruction error was harmless).

Similarly, I find it beyond dispute that a rational jury would have found that Daniel's fleeing caused serious bodily injury to one or more of the victims indicated in Count II. The information, the opening statement, the evidence, the closing arguments, and the verdict form all indicated that the fleeing caused serious bodily injury to several victims, and demonstrate that the instruction error was an oversight. More importantly, Daniel never disputed that a crash occurred or that several people were seriously injured as a result; he only argued that the State did not adequately show that he was the driver. For this reason, the failure to include the serious bodily injury language in the jury instruction was harmless beyond a reasonable doubt. See State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986). As such, it appears that this case does not implicate the single homicide rule at all because Count II is supported by serious injury to several victims, not just the death of Alma Hardy.

IV.

Even though the evidence in this case is overwhelming that Count II is supported by the injuries to persons other than Alma Hardy, this result is foreclosed by the recent decision of Lee v. State . Lee imposed an extraordinary approach to multiple-punishment issues that we are obliged to apply here. Under Lee , in analyzing whether Daniel would improperly suffer multiple punishments for the same act, the trial court was not to consider the undisputed evidence of serious injury, nor the fact that Daniel never disputed that the crash caused serious injury, nor the fact that the jury found, as shown by the verdict form, that Daniel's fleeing caused "Serious Bodily Injury or Death, as charged." Instead, the court was required to look past all these matters and look only to the charging document in determining whether conviction for Counts I and II constituted multiple punishment. See Lee , 258 So. 3d at 1304 (holding that, in determining whether multiple convictions "are based on the same conduct for purposes of double jeopardy, the reviewing court may consider only the charging document"). The question in multiple-punishment issues is no longer whether a defendant received multiple punishment for the same act, it is whether different acts can necessarily be discerned from the charging document alone. Regardless of whether the evidence that Daniel's fleeing caused serious injury was overwhelming, regardless of whether the evidence is clear that Count II did not involve only the death of Alma Hardy, if we look only at the information, it is "impossible to know," id. , whether Daniel was convicted only of killing Alma Hardy in two separate counts. Accordingly, the convictions violate the single homicide rule. Therefore, Lee compels us to reverse Daniel's conviction. We should do so in the manner indicated in the majority opinion.

V.

The explicit holding of Lee requires the reviewing court to consider only the charging document in determining "whether multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy," consistent with State v. Shelley , 176 So. 3d 914 (Fla. 2015) (involving "solicitation and traveling after solicitation based upon the same conduct"). Lee , 258 So. 3d at 1299, 1304. There appears to be no principled reason not to apply the Lee holding to any same-conduct multiple-punishment claim. Nonetheless, to be clear on this matter I believe we should certify a question to the supreme court asking whether Lee applies to all same-conduct multiple-punishment claims, or only to the soliciting and traveling claims indicated in that decision.

      We use the phrase "fleeing or eluding" as a shorthand reference for the first-degree felony offense of fleeing or attempting to elude a law enforcement officer in an agency vehicle with siren and lights activated, at high speed, causing death or serious bodily injury. See § 316.1935(3)(b) , Fla. Stat. (2016).

      The jury instructions provided in pertinent part:
      To prove the crime of Fleeing or Eluding a Law Enforcement Officer, the State must prove the following five elements beyond a reasonable doubt:
      * * *
      5. As a result of [Appellant's] fleeing or eluding at high speed, or wanton disregard for safety, he caused the death of another person .
      (emphasis supplied).

      We recognize that in McKinney v. State , 51 So. 3d 645 (Fla. 1st DCA 2011), review denied , 95 So. 3d 213 (Fla. 2012), we held that fleeing or eluding is not a "homicide offense" subject to the single homicide rule because the offense can be committed without causing a death. However, because the offense at issue in Crusaw could also be committed without causing a death, the holdings in McKinney and Crusaw conflict and the later decision (Crusaw ) controls. See R.J. Reynolds Tobacco Co. v. Marotta , 214 So. 3d 590, 604 (Fla. 2017) (citing Little v. State , 206 So. 2d 9, 10 (Fla. 1968), for the proposition that "where intradistrict conflict exists, the decision later in time overrules the former as the decisional law of the district"); State v. Walker , 593 So. 2d 1049, 1049-50 (Fla. 1990) (same).

      This does not mean that Appellant's overall sentence will change because the trial court is free to reimpose the 25-year sentence on the vehicular homicide count.


author: Winsor, J.

text:
    Aaron Beal WANLESS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-448
    District Court of Appeal of Florida, First District.
    May 6, 2019 Rehearing Denied June 4, 2019
    Andy Thomas, Public Defender, and Terry P. Roberts, Special Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Aaron Wanless appeals his convictions and sentences for five counts of aggravated assault. The convictions followed a disturbing episode during which Wanless threatened his father and law enforcement officers. On appeal, Wanless argues the trial court erred in allowing certain testimony about his sanity and, separately, in imposing consecutive 10-20-Life mandatory-minimum sentences. We affirm the convictions but reverse the consecutive 10-20-Life mandatory-minimum sentences.

I.

After fighting with his wife, Wanless got drunk and went to his father's house. Once there, Wanless accused his father of stealing a gun and demanded to know where it was. Wanless then grabbed a knife from the kitchen and threatened to slit his father's throat unless the father produced the gun.

Fearing for his life, Wanless's father left the house and called 911. After three sheriff's deputies responded, Wanless walked outside with a gun and fired a single shot into the air. The sheriff's deputies ordered Wanless to drop the gun, but Wanless refused, yelling that they would have to shoot him. After a tense standoff, Wanless retreated into the house and fled out a back door. He was arrested the next day.

Wanless asserted an insanity defense. A licensed psychologist testified that Wanless's medication was not working and that a manic episode was to blame for his conduct. The State called its own expert, who testified that Wanless was not insane. Wanless objected to the State's expert testimony, arguing the expert was not qualified to opine about sanity because he was not a "psychiatrist, licensed psychologist, or physician," but was instead a mental health counselor with a Ph.D. in Education. The court overruled Wanless's objection, finding the State's expert qualified based on his "education, training, and experience."

The jury convicted Wanless on all five counts of aggravated assault. The first count was for Wanless's assaulting his father with the knife. The next four were for Wanless's assaulting the three deputies and his father with the gun. (The jury found that Wanless discharged a firearm as to the latter four counts.) The court sentenced Wanless to just over eight years for the knife assault; three concurrent twenty-year terms (pursuant to 10-20-Life) for the assaults against the deputies; and a consecutive twenty-year term (also pursuant to 10-20-Life) for the remaining count.

II.

Wanless's first argument is that the trial court should have excluded the State's expert testimony about his sanity. Wanless argues that section 916.115(1)(a), Florida Statutes -which provides that court-appointed experts who evaluate defendants for sanity "each shall be a psychiatrist, licensed psychologist, or physician"-precludes expert testimony from anyone who is not a psychiatrist, licensed psychologist, or physician. But this argument confuses the qualifications of experts the court appoints to evaluate sanity with the qualifications of experts parties present at trial. Although experts appointed pursuant to section 916.115 sometimes testify at trial, see Fla. R. Crim. P. 3.216(i) ("Any experts appointed by the court may be summoned to testify at the trial ...." (emphasis added)), the parties may also introduce "[o]ther evidence regarding the defendant's insanity or mental condition," so long as it is otherwise admissible, see id.

Accordingly, the fact that the State's expert was not a "licensed psychologist, psychiatrist, or physician" did not preclude his testimony at trial. Whether the witness was qualified to testify as an expert was therefore left to the trial court's discretion, see, e.g. , Penalver v. State , 926 So. 2d 1118, 1134 (Fla. 2006) ("The qualification of a person as an expert is within the sound discretion of the trial judge."), and we find no abuse of that discretion.

III.

Wanless's second argument is that his consecutive sentences under 10-20-Life were illegal because his convictions stemmed from a single criminal act. He argues that under the facts of his case-one gunshot, multiple assault victims, no physical injuries-the court lacked authority to impose consecutive sentences.

The issue of whether and when consecutive sentences are permissible under 10-20-Life has long been a subject of confusion. Although the Florida Supreme Court has continued to establish new rules in this area, the facts of this case do not fit neatly into any of them. Nonetheless, we conclude that Florida Supreme Court precedent precluded Wanless's consecutive sentences.

In Williams v. State , the supreme court walked through some of its earlier cases and concluded that the "controlling precedent establishes [these] points of law for purposes of sentencing under the current 10-20-Life statute." 186 So. 3d 989, 993 (Fla. 2016). First, as a general matter, "consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged." Id. Second, if "multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory." Id. But these points do not help here: Wanless did discharge his firearm (he did not "merely possess[ ]" it), but he did not shoot "at" multiple people; he shot once-and in the air.

Williams therefore does not explicitly answer the question presented here: whether consecutive mandatory-minimum sentences can stand when there are multiple victims but only a single gunshot. Nor is the answer in the 10-20-Life statute's text. As Justice Canady explained, "[t]he distinction ... made based on whether a firearm was fired is totally untethered from anything in the text of the relevant statutes." Walton v. State , 208 So. 3d 60, 69 (Fla. 2016) (Canady, J., dissenting). Indeed, "[u]nder the statutory provisions, the firing of a firearm is relevant only to the length of the mandatory minimum sentence." Id. (Canady, J., dissenting); accord Lifred v. State , 643 So. 2d 94, 96 (Fla. 4th DCA 1994) (Pariente, J.) (noting that "[a]lthough section 775.087(2) does not contain any explicit language restricting trial courts from imposing consecutive mandatory minimums for separate criminal offenses involving the use of a firearm," the Florida Supreme Court has limited authority of trial courts to impose consecutive sentences (citing Palmer v. State , 438 So. 2d 1 (Fla. 1983) )).

With no help from the statutory text and no explicit answer from the Florida Supreme Court, this court has done its best to discern the answer from Williams (and the cases that preceded it). And our cases, interpreting Williams , have held that one gunshot is enough. In Thornes v. State , for example, we noted that " Williams did not directly address whether or not consecutive mandatory minimum sentences were permissible [when] the defendant only shot at one victim but was convicted of multiple firearm offenses arising out of the same criminal episode." 223 So. 3d 411, 411-12 (Fla. 1st DCA 2017). This court went on to hold that-"based on Williams ,"-consecutive sentences are permissible in that circumstance. Id. at 412. Similarly, in Burns v. State , this court applied Williams and held that consecutive mandatory-minimum sentences were allowed after attempted second-degree murder and felon-in-possession convictions when the defendant "discharged a firearm striking a single victim"

in a single episode. 212 So. 3d 546, 546 (Fla. 1st DCA 2017) ; see also Plummer v. State , 246 So. 3d 506, 509 (Fla. 1st DCA 2018) ("Under Williams , consecutive mandatory minimum sentences are permissible, but not required if there is a discharge of a firearm."); Bradley v. State , 223 So. 3d 421, 422 (Fla. 1st DCA 2017) (quoting Thornes without attribution and finding consecutive sentences permissible when defendant shot at single victim); Fleming v. State , 219 So. 3d 1038, 1038 (Fla. 2017) (consecutive mandatory-minimum sentences permissible for attempted-murder and felon-in-possession convictions in one criminal episode with single victim; no mention of multiple gunshots); Tate v. State , 194 So. 3d 564, 565 (Fla. 1st DCA 2016) (consecutive mandatory-minimum sentences permissible for second-degree murder and felon-in-possession convictions in one criminal episode; no mention of multiple gunshots); Howard v. State , 100 So. 3d 136 (Fla. 1st DCA 2012) (explaining, pre- Williams , that "[t]he imposition of consecutive minimum mandatory sentences under section 775.087(2) is improper where the offenses occurred during a single criminal episode, unless the defendant discharged the firearm and injured multiple victims or caused multiple injuries to one victim.").

We are of course bound to follow our own decisions unless and until an intervening decision from the Florida Supreme Court, the United States Supreme Court, or this court sitting en banc compels otherwise. See Schlesinger v. Jacob , 240 So. 3d 75, 78 (Fla. 3d DCA 2018) (Luck, J., concurring). We therefore must consider whether the Florida Supreme Court's newest decision in this area- Miller v. State , 265 So. 3d 457 (Fla. 2018) -conflicts with our post- Williams decisions.

The defendant in Miller was convicted of kidnapping with a firearm, aggravated battery, and possession of a firearm by a convicted felon. Id. at 458. His offenses were part of one criminal episode that involved one victim and no gunshot. Id. at 459. Applying Williams , the court concluded that under those facts, "consecutive sentences are impermissible." Id. This outcome is consistent with the pronouncement in Williams (and earlier cases) that multiple offenses in a single criminal episode generally cannot support consecutive mandatory-minimum sentences absent a gun discharge. Williams , 186 So. 3d at 933. And if Miller did nothing but reiterate that rule, it would not conflict with our decisions in Bradley , Burns , Thornes , Fleming , or Tate -each of which featured a firearm discharge.

But Miller also expressly approved Torres-Rios v. State , 205 So. 3d 883 (Fla. 5th DCA 2016), in which there was a discharge but in which the court nonetheless found consecutive mandatory-minimum sentences impermissible. Id. at 883. Citing Williams , the court in Torres-Rios concluded consecutive sentences were illegal "where there was only a single discharge of the firearm and only one person was shot during a single criminal episode." Id. Several of our own decisions had cited conflict with Torres-Rios , see Bradley , 223 So. 3d at 422 ; Thornes , 223 So. 3d at 412 ; Fleming , 219 So. 3d at 1038 ; Burns , 212 So. 3d at 546, and to the extent there was a conflict, the Florida Supreme Court has now sided with Torres-Rios .

Wanless shot only once, so had there been just one victim, this would be like Torres-Rios. And because it approved Torres-Rios , the supreme court's decision in Miller would therefore compel us to reverse, notwithstanding our earlier precedent. But unlike the defendant in Torres-Rios , Wanless had multiple victims. There is some language in Miller suggesting that this fact changes the result. In fact, Miller explained that in Williams , "consecutive sentences were permissible because there were multiple victims and the gun was fired." 265 So. 3d at 459. If the rule is that simple, we must affirm because here, too, there were multiple victims and the gun was fired.

Other language in Miller also supports Wanless's consecutive sentences. The court said, for example, that "[w]here, during a single criminal episode, there are multiple victims or multiple injuries to a single victim, consecutive sentences are permitted at the discretion of the trial judge." Id. at 458. And it said that the 10-20-Life statute "permits consecutive sentences at judicial discretion for specified crimes committed in a single criminal episode with either multiple victims or injuries." Id. at 459 (emphasis added). But the court also reminded us that it "does not reverse itself sub silentio and the cases upon which Williams relied are still good law." Id. at 459 n.1. And those cases, unlike Miller itself, suggest that Wanless's consecutive sentences were unlawful.

Among the cases Williams relied on are Palmer v. State , 438 So. 2d 1 (Fla. 1983) ; State v. Thomas , 487 So. 2d 1043 (Fla. 1986) ; and State v. Christian , 692 So. 2d 889, 891 (Fla. 1997). The defendant in Palmer interrupted a funeral service, brandished a gun, and demanded money from the mourners. 438 So. 2d at 2. He took money and wallets and left without firing a shot. Id. His sentence included thirteen consecutive three-year mandatory minimums based on thirteen robbery convictions. Id. The Florida Supreme Court found that unlawful, noting that it did "not believe the legislature intended such a result." Id. at 3. The court did not explicitly hinge its decision on the fact that no shot was fired, but it did say that it would not prohibit consecutive mandatory-minimum sentences if multiple offenses arose "from separate incidents occurring at separate times and places." Id. at 4.

Then, in State v. Thomas , the court concluded a defendant who shot multiple times was eligible for mandatory minimums. 487 So. 2d at 1045. The multiple shots constituted the "separate and distinct offenses" missing from Palmer . Id. ; cf. also State v. Enmund , 476 So. 2d 165, 168 (Fla. 1985) (finding Palmer distinguishable where there were "two separate and distinct homicides"). Finally, in Christian , which also involved a defendant who shot multiple people, the court explained that the separate acts "bifurcate[d] the crimes for stacking purposes." 692 So. 2d at 890-91. In simpler terms, the court explained that "Christian shot two people. Stacking is permissible." Id. at 891.

In several cases, including Williams and Miller , the Florida Supreme Court has returned to the concept that separate acts "bifurcate the crimes for stacking purposes." Miller , 265 So. 3d at 459 (quoting Christian ); accord Williams , 186 So. 3d at 993 (quoting Christian ); State v. Sousa , 903 So. 2d 923, 926 (Fla. 2005). Multiple gunshots could constitute the separate acts necessary for this bifurcation, which is why the court consistently explains that "shooting at" multiple people is enough. But in Wanless's case, with just one shot, there are no distinct acts to effect the bifurcation. There were multiple victims, but each was victimized by the same act, the same assault, the same single gunshot. See State v. Sousa , 903 So. 2d 923, 926 (Fla. 2005) (explaining that "[t]he holding of Christian [turned on] the fact that the defendant fired his gun multiple times, injuring multiple victims"); see also Cooper v. State , 739 So. 2d 82, 86 (Fla. 1999) (holding that "each violation of the mandatory minimum statute must cause a separate injury" to allow stacking based on multiple injuries or multiple victims (quoting Christian ; marks omitted)); Lifred v. State , 643 So. 2d 94, 98 (Fla. 4th DCA 1994) (Pariente, J.) ("In the case of armed robberies of multiple victims, as in Palmer , the firearm is used simultaneously and in the same manner to rob more than one person. However, discharge of a firearm in the course of an armed robbery changes the nature of the crime and manner of commission. With each successive discharge of the firearm at each additional victim, the firearm is being used separately and distinctly, and in a different manner.").

Without distinct acts, our case is more like Palmer , in which multiple mourners became multiple robbery victims leading to multiple convictions, but in which the court found no distinct acts to support consecutive mandatory-minimum sentences. Palmer , 438 So. 2d at 3 ; see also State v. Parker , 812 So. 2d 495, 498 (Fla. 4th DCA 2002) (concluding consecutive mandatory-minimum sentences impermissible because "[a]lthough [defendant] pointed the guns at four victims, Parker fired the gun only once"). We therefore conclude that, based on Florida Supreme Court precedent, Wanless was entitled to concurrent sentences.

As the Florida Supreme Court continues to develop rules in this area, it may well conclude that any gunshot is enough. Or it may decide that a single act can be "bifurcated" if it simultaneously harms multiple people. Or it may abandon its current rules altogether and decide to untether the legality of consecutive mandatory-minimum sentences from the number of victims or gunshots. But based on the Florida Supreme Court precedent as we now understand it, Wanless's consecutive mandatory-minimum sentences cannot stand.

AFFIRMED in part; REVERSED in part.

Winokur, J., concurs; Makar, J., concurs in part and dissents in part with opinion.

Makar, J., concurring in part, dissenting in part.

When confronted by three sheriff's deputies, Aaron Beal Wanless fired a single shot skyward, had a tense standoff with the officers while wielding his gun, and fled. Because his father was present during the entire confrontation, Wanless was charged with four separate counts of aggravated assault with a deadly weapon, three on the officers and one on his father. If only one deputy (or just the father) were present, the single gunshot and standoff would likely be insufficient to impose consecutive sentences under Florida's 10-20-Life statute, § 775.087(2)(d), Fla. Stat. (2018), because the incident involved a single criminal episode with a single shot and only one victim. Torres-Rios v. State , 205 So. 3d 883 (Fla. 5th DCA 2016), approved , Miller v. State , 265 So.3d 457 (Fla. 2018).

But what happens when more than one person was victimized by Wanless's conduct?

Did the presence of three officers and the father when Wanless fired his weapon and brandished it thereafter give the trial court discretion to impose consecutive mandatory-minimum sentences? Here, the trial court did not impose four consecutive mandatory-minimum sentences; instead, it imposed three concurrent mandatory-minimum sentences of twenty years for the aggravated assault on the three officers but imposed a consecutive mandatory-minimum sentence of twenty years for the aggravated assault on the father. In other words, Wanless must serve twenty years for the aggravated assault with a gun on the officers followed by twenty years for the aggravated assault with a gun on his father, a total of forty years.

On this point, our supreme court in Williams v. State , 186 So. 3d 989, 993 (Fla. 2016), addressed whether the imposition of consecutive mandatory-minimum sentences was permissible, but not required, where a defendant fired multiple shots in the air during a squabble with four men during a single criminal episode. It concluded that if "multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory." Id.

Here, the father and each of the officers were victimized by the gun's discharge and brandishment, i.e., an aggravated assault with the gun. The deputies at the scene said they were scared and fearful throughout the encounter due to the gunshot and Wanless's brandishing his weapon openly during the tense standoff that followed. One deputy testified that he was "extremely close" to shooting Wanless; the other said he was "as close as any human has ever come" to doing so. The father, who had been threatened by Wanless just before the officers arrived, was scared and became distraught after the gunshot, pleading with the officers not to shoot his only son. Under these circumstances, where there are multiple victims arising from a single gunshot and an ongoing encounter with an armed and unstable suspect, consecutive sentencing is permissible. Wanless's actions amounted to an aggravated assault upon each of the three officers and his father, thereby giving the trial judge the authority to impose consecutive sentences as to one or all of the charges. The trial judge was not required to do so, but had the discretion to do so, see Williams , choosing to make consecutive only the sentence for the aggravated assault against the father (oddly, the trial judge initially imposed only concurrent probation, but changed that to a consecutive sentence of mandatory twenty years when the prosecutor pointed out that probation was impermissible).

Palmer v. State , 438 So. 2d 1, 2 (Fla. 1983), has similarities to this case but is distinguishable because it did not involve the actual discharge of a firearm, it pre-dates the 1999 revisions to the 10-20-Life statute, and its holding was premised on the then-existing parole system (that statutorily required parole considerations that consecutive sentencing would thwart). In Palmer , an intruder, Ronald Gene Palmer, walked into a funeral parlor during a wake with a pistol and ordered mourners to give up their money and valuables. Palmer brandished the pistol in front of the group, resulting in aggravated assault charges; no shot was fired, however. Palmer was found guilty and sentenced to "seventy-five years' imprisonment on each of thirteen robbery counts, the sentences to run consecutively for a total of 975 years." Id. As to the "counts of aggravated assault and carrying a concealed firearm Palmer received sentences of five years for each, consecutive to each other and to the robbery counts." Id. The trial court in Palmer "also imposed the mandatory minimum of three years on each robbery count for a total of thirty-nine years." Id.

On appeal, the Florida Supreme Court was "primarily concerned with the issue of whether the trial court erred in imposing three-year mandatory minimums on each of thirteen consecutive sentences, for a total of thirty-nine years without eligibility for parole ." Id. at 3 (emphasis added). As to that issue alone, the Court reversed, holding that consecutive sentencing of the thirteen mandatory-minimums was impermissible due to the then-existing statutory necessity that Palmer be eligible for parole in three years. Conflicting statutory provisions and the absence of clear authority for stacking required that thirteen mandatory-minimum sentences on the robbery counts could not be imposed consecutively. Id. at 3-4. The Court, however, left in place the consecutive sentences for the robbery and aggravated assault/carrying firearm counts against Palmer totaling almost a millennium. See State v. Boatwright , 559 So. 2d 210, 213 (Fla. 1990) (noting that the Court in Palmer "found no reversible error in the trial court's imposition of sentences of seventy-five years' imprisonment on each of the thirteen robbery counts ... with the sentences to run consecutively for a total of 975 years. Nor did the trial court err in imposing five-year sentences on the counts of aggravated assault and carrying a concealed weapon, such sentences to run consecutively to each other and to the robbery counts.").

Unlike Palmer , where no clear statutory directive existed to overcome the statutory requirement of parole consideration, the legislature in 1999 enacted section 775.087(2) as a part of the 10-20-Life revisions, which marked a major shift in sentencing laws, moving away from a parole-oriented system toward a more certain and punitive sentencing regime. From that point forward, no statutory conundrum with the parole system stood in the way of longer sentences that might be imposed consecutively; indeed, the legislature made its intent clear:

(d) It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law , and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

§ 775.087(2)(d), Fla. Stat. (1999) (emphasis added) (subsection (d) remains unaltered today); see also § 775.021(4)(a) & (b), Fla. Stat. (2019) (both subsections remain the same since their enactment in 1988) (subsection (b) states that the "intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity ... to determine legislative intent" with exceptions); cf. State v. Suarez , 485 So. 2d 1283, 1283 (Fla. 1986) (noting that " Palmer is still operative under the guidelines").

Our supreme court doesn't overrule itself sub silentio, but it seems that Palmer -a 4-3 precedent with a limited holding-has been elbowed aside, though not put on a shelf to die, in light of both Williams and the court's most recent pronouncement, Miller v. State , 265 So.3d 457(Fla. 2018), whose language supports affirming the consecutive mandatory-minimum sentence imposed against Wanless. Unlike this case, Miller was a single shot, single victim, single criminal episode case, i.e., the prototype for a prohibition on consecutive minimum-mandatory sentences. In the course of overturning the consecutive sentences in Miller , the court said two things. First, it said that "[w]here, during a single criminal episode, there are multiple victims or multiple injuries to a single victim, consecutive sentences are permitted at the discretion of the trial judge." Id. at 458 (emphasis added). Second, it said-in describing the holding in Williams -that "consecutive sentences were permissible because there were multiple victims and the gun was fired ." Id. at 459 (emphasis added).

The takeaway from the highlighted language, albeit persuasive dicta, is that the existence of multiple victims matters greatly in deciding whether consecutive sentences are permissible, a factor present in this case. In addition, the firing of a gun matters-multiple shots into the air in Williams , for example. Though our supreme court has not had an aggravated-assault-single-shot-in-the-air-with-multiple-victims case (yet), it is more consistent with its existing jurisprudence to apply Williams and affirm the trial court's discretionary imposition of a consecutive sentence in this case. Though no officer or the father was physically injured by the skyward gunshot, each was a "victim" of Wanless's aggravated assault with the gun; each felt fear from the assault, which included not just the gunshot but the ongoing standoff with Wanless brandishing the weapon. Because "multiple victims" were assaulted in this manner, the imposition of a consecutive sentence as to the aggravated assault of the father was permissible, even if Wanless's conduct is considered a single criminal episode.

For twenty years, the complexity and conundrums of Florida's sentencing law have created a degree of confusion as to when consecutive or concurrent sentences are permissible. See William A. Haddad, "Appellate Sentencing" in Florida: A Plea for Less Complexity at the Trial Level , 70 FLA. BAR. J. 28 (1996) (discussing the need for the reform of sentencing laws, including concurrent and consecutive sentencing, prior to the added complexities of the 10-20-Life law, which passed in 1999). This case showcases the muddle, as Judge Winsor's opinion cogently explains. Though I disagree with the result in this case as to the consecutive mandatory-minimum sentencing issue, I agree that our supreme court ought to bring greater clarity to this area of the law and, if possible, return to a textually-based jurisprudence; likewise, the legislature ought to consider clarifying the statutory framework to bring it into alignment with current criminal justice priorities. I concur as to the expert testimony issue.

      § 775.087, Fla. Stat. (2015).

      The separate acts in Christian were separate shots, and although the court found multiple injuries-and that the multiple injuries bifurcated the crimes-it clarified that there need not be "injuries" in the traditional sense. 692 So. 2d at 891 n.1. Instead, "[t]he injury may consist of the heightened danger caused by a fired weapon." Id. So multiple shots count as multiple injuries when deciding whether there were "bifurcate[d] crimes for stacking purposes"-regardless of whether there were injuries. Id. ; see also Williams , 186 So. 3d at 993 (noting consecutive sentences permissible when multiple people "are shot at"); Thomas , 487 So. 2d at 1044 (approving consecutive mandatory-minimum sentences when the defendant shot twice but missed once); Valentin v. State , 963 So. 2d 317, 320 (Fla. 5th DCA 2007) ("Firing the weapon at an individual without striking him or her may be enough to cause the type of injury that will allow imposition of consecutive minimum mandatory sentences under the statute." (citing Christian )).


author: SCALES, J.

text:
    George HEATH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2117
    District Court of Appeal of Florida, Third District.
    Opinion filed May 8, 2019
    George Heath, in proper person.
    Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and HENDON, JJ.
   SCALES, J.

George Heath appeals the trial court's June 20, 2018 order summarily denying, as legally insufficient, Heath's May 16, 2016 "Motion for Nunc Pro Tunc Based on Defendant's Official Jail Time Credit." For the following reasons, we treat this appeal as if Heath's motion sought postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, we reverse the June 20, 2018 order denying same and remand for further proceedings consistent with this opinion.

In his motion, Heath alleged that his guilty plea was conditioned on Heath's state sentence running concurrently with Heath's longer federal sentence in federal case number 16-CR-20903. Though not entirely clear from his motion, it appears that Heath alleged that, once Heath was released from custody in the Miami-Dade County jail and returned to federal custody, Heath did not receive the benefit of his plea bargain in lower tribunal case number F16-22715. That is, according to Heath's motion, the federal authorities have not permitted Heath to serve his state and federal sentences concurrently. Heath's motion therefore sought an order from the circuit court resentencing Heath "to time served nunc pro tunc to his original sentencing date" in lower tribunal case number F16-22715 in order to effectuate the terms of Heath's alleged plea deal. Indeed, there is precedent in Florida that would authorize a trial court to resentence a defendant under such circumstances by granting postconviction relief sought pursuant to a rule 3.850 motion. See Glenn v. State, 776 So. 2d 330, 331 (Fla. 4th DCA 2001) ("Where a condition of a guilty plea is that the defendant will serve the agreed-upon state sentence in federal prison concurrently with a longer federal sentence, the defendant is entitled to postconviction relief if the terms of the agreement are not met."); see also Taylor v. State, 710 So. 2d 636, 637 (Fla. 3d DCA 1998).

In its answer brief, while questioning the legal sufficiency of Heath's motion, the State commendably concedes both that: (i) the lower court failed to attach any documents to its June 20, 2018 order conclusively showing that Heath's motion is legally insufficient; and (ii) on the limited record before this Court, it is unclear whether Heath is entitled to any relief on his postconviction motion. See Fla. R. App. P. 9.141(b)(2)(D) ; Ahedo v. State, 877 So. 2d 926, 927 (Fla. 5th DCA 2004).

For us to affirm the trial court's summary denial of Heath's motion, the record must conclusively demonstrate that Heath is not entitled to relief. See Fla. R. App. P. 9.141(b)(2)(D). Because the record before us fails to make the required showing, we reverse and remand for further proceedings. If, on remand, the trial court again enters an order summarily denying Heath's postconviction motion, the lower court shall attach record excerpts conclusively showing that Heath is not entitled to any relief.

Reversed and remanded with instructions.

      The State charged Heath with resisting an officer without violence and possession of a controlled substance in lower tribunal case number F16-22715.

      Specifically, Heath's motion asserts that, because Heath was sentenced to 319 days in jail with credit for time served, the parties and the lower court agreed that Heath would receive "319 days credit towards his Federal sentence."

      Neither a transcript of Heath's plea colloquy, nor a written plea agreement, have been provided to this Court.


text:
    Shane HARDISON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1532
    District Court of Appeal of Florida, Fourth District.
    May 8, 2019
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The defendant appeals his revocation of probation, judgment, and sentence rendered in case numbers 11-003397CF10A (the "2011 case") and 16-00894CF10A (the "2016 case"), raising six issues for our consideration. We affirm the defendant's judgment and sentence in both cases and write only to address his arguments that the trial court erred by (1) failing to enter a written order of revocation of probation stating the basis for revocation; and (2) miscalculating his credit for time served.

First, as the state concedes, the trial court erred when it failed to enter a written order in both cases stating the specific grounds for revocation of probation. See King v. State , 46 So.3d 1171, 1172 (Fla. 4th DCA 2010) ("If a trial court revokes a defendant's probation, the court is required to render a written order noting the specific conditions of probation that were violated."). Second, as the state concedes, the trial court miscalculated the defendant's credit for time served in both cases. The parties agree that the defendant is entitled to 526 days of jail credit in the 2016 case, but disagree regarding the amount of jail credit to be awarded in the 2011 case, and the defendant's entitlement to post-sentencing credit. Section 921.161(1), (2), Florida Statutes (2018), "requires the trial court to determine and give credit for all time spent in county jail prior to sentencing and for the Department [of Corrections] to calculate the time after sentencing, including time in the county jail after sentencing." Kitchen v. State , 20 So.3d 975, 976 (Fla. 4th DCA 2009). Relief sought for "jail time spent after sentencing must be sought through administrative proceedings with the Department of Corrections." Stokes v. State , 851 So.2d 788, 788 (Fla. 2d DCA 2003). Thus, as the state argues, the trial court was not required to award the defendant jail credit for time served post-sentencing, so that the defendant is entitled to 1,103 days of jail credit for time served in the 2011 case. To the extent the defendant believes he is entitled to additional credit for the jail time he served after sentencing on the 2011 case, he must seek relief through administrative proceedings with the Department of Corrections. See id .

Accordingly, we affirm the revocation of the defendant's probation, and his sentences in both cases, but remand with instructions for the trial court to (1) enter written orders of revocation of probation setting forth the reasons for the revocation; and (2) award the defendant 1,103 days of jail credit on the 2011 case and 526 days of jail credit on the 2016 case, nunc pro tunc to April 19, 2018, the day of sentencing.

Warner, Gross and Forst, JJ., concur.


author: Rowe, J. Bilbrey, J., concurring.

text:
    Tyler SUMNERS, Appellant, v. Lindsey THOMPSON, Appellee.
    No. 1D18-3637
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Trudy E. Innes Richardson of Trudy Innes Richardson, PLLC, Tallahassee, for Appellant.
    M.B. Adelson of Law Offices of M.B. Adelson IV, P.A., Tallahassee, for Appellee.
   Rowe, J.

Tyler Sumners appeals a final judgment of injunction for protection against dating violence entered against him in favor of Lindsey Thompson. We reverse because the evidence was legally insufficient to show that Thompson had an objectively reasonable fear of imminent harm from Sumners.

After meeting on Craigslist, Thompson and Sumners were in an on-again-off-again sexual relationship for about four years. Their sexual relationship would pause temporarily when one of the two dated someone else. In July 2018, Thompson broke off the relationship with Sumners. For two weeks after the breakup, Sumners texted Thompson, called her, left unpleasant voice messages, and contacted Thompson on social media. Thompson tried to block Sumners from contacting her by text or social media, but Sumners persisted in his efforts to reach her. One time, he showed up at her home unannounced and refused to leave until she threatened to call the police. Based on Sumners' conduct, Thompson sought an injunction against dating violence.

Thompson testified at the injunction hearing that Sumners never verbally threatened her in any of his communications, nor did he physically threaten her. But she was worried that he might harm her. Sumners testified that he continued to contact Thompson because he wanted to understand the reason for the breakup. After Thompson sought the injunction, Sumners did not contact her again, and he testified that he had no desire to do so. The trial court granted a one-year injunction for protection against dating violence. Sumners appeals, arguing that the injunction was not supported by competent, substantial evidence. He asserts that the evidence did not show that he and Thompson were in a dating relationship or that Thompson had an objectively reasonable fear of imminent harm from Sumners.

We review a final judgment of injunction for "a clear abuse of discretion." See Pickett v. Copeland , 236 So. 3d 1142, 1146 (Fla. 1st DCA 2018). But we review de novo whether the evidence was legally sufficient to support the issuance of the injunction. Id. at 1144.

Section 784.046(2)(b), Florida Statutes (2018), authorizes a court to issue an injunction against dating violence when

[a]ny person who is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence, or any person who has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence.

"Dating violence" means "violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature." § 784.046(1)(d), Fla. Stat. (2018).

Sumners argues that Thompson lacked standing to seek an injunction against dating violence because their relationship was casual and not a "dating relationship." Sumners testified that he had never gone anywhere "together" with Thompson. Instead, their relationship was mainly for sex. For this reason, Sumners argues he and Thompson were not dating. We disagree. Under the plain language of the statute, a dating relationship exists when the parties "have or have had a continuing and significant relationship of a romantic or intimate nature." § 784.046(1)(d), Fla. Stat. (2018). Nothing in the statute requires that the parties go out on a date, at least in the traditional sense of a couple going to dinner and a movie. Rather, the statute requires only that the relationship is continuous, significant, and intimate. The evidence of the four-year, intimate sexual relationship between Thompson and Sumners clearly supports a finding of a dating relationship. See, e.g. , Gill v. Gill , 50 So. 3d 772, 774 (Fla. 2d DCA 2010) (noting that "the trial court must consider the current allegations, the parties' behavior within the relationship, and the history of the relationship as a whole"). Thus, the trial court did not err in so finding.

However, the evidence does not support a finding that Thompson had an objectively reasonable fear that she was in danger of imminent harm from Sumners. § 784.046(2)(b), Fla. Stat. (2018). Thompson never alleged that she had been the victim of dating violence. Instead, she asserted that she believed that Sumners might harm her and that she did not know what he was capable of. Thompson acknowledged that Sumners never verbally threatened her in person or in any text, phone call, or voice message. Cf. Johnson v. Brooks , 567 So. 2d 34, 35 (Fla. 1st DCA 1990) (holding that numerous harassing phone calls, some containing threats, could not support trial court's decision to grant injunctive relief). And she admitted that Sumners never acted violently toward her or ever touched her without her consent. Although Thompson testified that she felt threatened the one time Sumners arrived at her home uninvited, she conceded that Sumners was not violent and did not verbally threaten her. She theorized that based on Sumners' pattern of behavior-an unspecified number of contacts over two weeks by text, voice message, and social media, and a one-time unannounced visit to her home-she was "afraid he was going to hurt me next."

We hold that the evidence offered by Thompson is too conclusory and vague to support the issuance of an injunction for dating violence. See Corrie v. Keul , 160 So. 3d 97, 99 (Fla. 1st DCA 2015) (reversing injunction when there was no allegation or evidence of an overt act that showed respondent had the ability to carry out threats or that justified a belief that violence was imminent); Alderman v. Thomas , 141 So. 3d 668, 670-71 (Fla. 2d DCA 2014) (reversing injunction where petitioner's testimony "that she feels 'insecure and unsafe with' [respondent] and that he scares her" was "conclusory and vague"). Evidence of a single visit by Sumners to Thompson's home, coupled with Sumners' efforts to contact Thompson by text, voice message, and social media, was legally insufficient to create an objectively reasonable fear that Thompson was in imminent danger of harm from Sumners. See, e.g. , C.S., ex rel. D.A.S. v. T.S.P., ex rel. A.M.P. , 82 So. 3d 1132, 1133-34 (Fla. 2d DCA 2012) (reversing stalking injunction where, although petitioner "felt as if she was being stalked" when respondent showed up uninvited one time at her house, there was no evidence of any threat or act of physical violence). We therefore REVERSE the final judgment of injunction for protection against dating violence and VACATE the injunction.

Kelsey, J., concurs; Bilbrey, J., concurring with opinion.

Bilbrey, J., concurring.

I fully concur in the majority opinion. I write separately to point out that while the proof necessary to obtain an injunction against dating violence under section 784.046(2)(b), Florida Statutes (2018), requires the petitioner to establish the "imminent danger of becoming the victim" of an act or a subsequent act of dating violence, the prospect of a future act is not required to prove an injunction against repeat violence under section 784.046(2)(a) or against sexual violence under section 784.046(2)(c). Such proof is also not required for an injunction against stalking under section 784.0485, Florida Statutes (2018). Additionally, a petitioner being in imminent danger of a future act of domestic violence is but one way to prove an injunction against domestic violence under section 741.30, Florida Statutes (2018). Since all of these various injunctions for protection arise from statutes, the proof necessary under the applicable statute must be carefully considered in assessing whether a particular cause of action has been established.