text:
    Randolph BAGGETT, Appellant, v. Jayne WEINTRAUB and Discovery Communications, Inc., Appellees.
    No. 3D18-401
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Michael C. EVANTE and Joyce Kavanaugh, Appellants, v. Frances M. ROSS, etc., Appellee.
    No. 3D18-64
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gabriel ESPINOSA, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, etc., et al., Appellees.
    No. 3D17-2743
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Raymond LUMARQUE, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 3D17-2481
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ronald GARCIA, Appellant, v. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 3D17-2316
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tony MITCHELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2210
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James M. DOMESESK, M.D., et al., Appellant(s)/Petitioner(s), v. Marlande LAZARD, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2460
    District Court of Appeal of Florida, Third District.
    OCTOBER 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Reginal DESROSIERS, Appellant v. The STATE of Florida, Appellee.
    No. 3D17-378
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Maria RODRIGUEZ, Appellant(s)/Petitioner(s), v. Dylan MACHADO, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0133
    District Court of Appeal of Florida, Third District.
    OCTOBER 08, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Alberto Nouel MORIS, Appellant(s)/Petitioner(s), v. Leon M. BIEGALSKI, etc., et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0957
    District Court of Appeal of Florida, Third District.
    OCTOBER 04, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Johnny JIMENEZ and Abilio Llanes, Appellant(s)/Petitioner(s), v. WELLS FARGO BANK, N.A., etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1538
    District Court of Appeal of Florida, Third District.
    OCTOBER 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Norma FREDRICK, et al., Appellant(s)/Petitioner(s), v. MTGLQ INVESTORS LP, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1064
    District Court of Appeal of Florida, Third District.
    OCTOBER 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Dismissed.


text:
    Charlotte GERRY, etc., Appellant(s)/Petitioner(s), v. MISS FLORIDA SCHOLARSHIP PAGEANT, INC., etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1587
    District Court of Appeal of Florida, Third District.
    OCTOBER 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Fred JAFFE and Barry Jaffe, Appellant(s)/Petitioner(s), v. Michael GRAY, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1666
    District Court of Appeal of Florida, Third District.
    October 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Joel D. PENA SALA, Appellant(s)/Petitioner(s), v. Karina A. SANDOVAL, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1682
    District Court of Appeal of Florida, Third District.
    OCTOBER 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Arnold COATS, Appellant(s)/Petitioner(s), v. SAFEPOINT INSURANCE COMPANY, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1743
    District Court of Appeal of Florida, Third District.
    OCTOBER 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Pauline Rae CAPUANO, Appellant(s)/Petitioner(s), v. Zoraida Catano JARAMILLO, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1915
    District Court of Appeal of Florida, Third District.
    OCTOBER 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    STATE FARM FIRE & CASUALTY COMPANY, Appellant(s)/Petitioner(s), v. GABLES INSURANCE RECOVERY, etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1732
    District Court of Appeal of Florida, Third District.
    OCTOBER 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted and remanded.


text:
    WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., Appellant(s)/Petitioner(s), v. Lawrence SHAPIRO, etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1987
    District Court of Appeal of Florida, Third District.
    OCTOBER 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Charles William MCSHANE, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1946
    District Court of Appeal of Florida, Third District.
    OCTOBER 04, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Transferred.


text:
    Kenneth Wayne PICKENS, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1970
    District Court of Appeal of Florida, Third District.
    OCTOBER 04, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Transferred.


text:
    Johnathan ALTMAN, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1974
    District Court of Appeal of Florida, Third District.
    OCTOBER 04, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Transferred.


text:
    APOLLO TRUST, Appellant, v. BNP PARIBAS JERSEY TRUST CORPORATION LIMITED, Appellee.
    No. 3D18-772
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mack WELLS, et al., Appellants, v. U.S. BANK, NATIONAL ASSOCIATION, etc., Appellee.
    Nos. 3D17-2804 & 3D17-2725
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason Aaron PRESCOTT, Appellant/Cross-Appellee, v. Erika Medillin PRESCOTT, et al., Appellees/Cross-Appellant.
    No. 3D17-2633
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ivasnier CRUZ, Appellant, v. Clement ZANZURI, Appellee.
    No. 3D17-2626
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael BARLATIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1900
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bidier COLAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1480
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David BELLEGARDE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1357
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    SEGAL PROPERTIES, LLC, Appellant, v. FORASTERO, INC., Appellee.
    No. 3D18-0002
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edward AARON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1861
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jonathan A. MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1043
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lourdes C. RODRIGUEZ, Appellant, v. ESTATE OF Maria D. LOPEZ, Appellee.
    No. 3D18-423
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Silvia Paoli DE BENEDETTI, Appellant/Cross-Appellee, v. COLINA INSURANCE LIMITED, Appellee/Cross-Appellant.
    No. 3D18-90
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jordan STUPAR, et al., Appellants, v. CARDONE TRAINING TECHNOLOGIES, INC., Appellee.
    No. 3D17-2710
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ludmilla DOMOND, Appellant, v. Alix ACCIME, Appellee.
    No. 3D17-1818
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Velan VERDIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1576
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Regina SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2876
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Payton Olajuwon WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1814
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    J.T., The Father, Appellant(s)/Petitioner(s), v. In re: In the Interest of B.T., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0114
    District Court of Appeal of Florida, Third District.
    FEBRUARY 08, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Transferred.


text:
    T.A., The Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-0863
    District Court of Appeal of Florida, Third District.
    JANUARY 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Petition denied.


text:
    J.C., The Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2737
    District Court of Appeal of Florida, Third District.
    JANUARY 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Mara THOMPSON, Appellant(s)/Petitioner(s), v. Jayson Eddie REYES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0397
    District Court of Appeal of Florida, Third District.
    MARCH 06, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Transferred.


text:
    A.R., the Father, et al., Appellant(s)/Petitioner(s), v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0001
    District Court of Appeal of Florida, Third District.
    January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Deny the consolidated petitions.


text:
    Robert BLAKE, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D15-1753
    District Court of Appeal of Florida, Third District.
    JANUARY 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    O.G., A Juvenile, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1895
    District Court of Appeal of Florida, Third District.
    JANUARY 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    TITLE CAPITAL MANAGEMENT LLC, Appellant(s)/Petitioner(s), v. PROGRESS RESIDENTIAL LP, etc., et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1667
    District Court of Appeal of Florida, Third District.
    FEBRUARY 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    K.B., The Father, Appellant(s)/Petitioner(s), v. The DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2554
    District Court of Appeal of Florida, Third District.
    FEBRUARY 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Steve AUSTIN Jr., Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0319
    District Court of Appeal of Florida, Third District.
    FEBRUARY 22, 2018 Rehearing Denied March 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    S.H., The Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2517
    District Court of Appeal of Florida, Third District.
    FEBRUARY 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Dismissed.


text:
    A.V., Appellant(s)/Petitioner(s), v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2487
    District Court of Appeal of Florida, Third District.
    March 06, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    S.S., the Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2690
    District Court of Appeal of Florida, Third District.
    MARCH 06, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Dismissed.


text:
    N.W.C., the Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2789
    District Court of Appeal of Florida, Third District.
    MARCH 06, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    M.W., the Mother, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2613
    District Court of Appeal of Florida, Third District.
    FEBRUARY 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    A.P.B., The Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0581
    District Court of Appeal of Florida, Third District.
    APRIL 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    P.M., the Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2749
    District Court of Appeal of Florida, Third District.
    MARCH 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Rafael J. CASTELLANOS, Appellant(s)/Petitioner(s), v. The STATE of Florida, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0362
    District Court of Appeal of Florida, Third District.
    March 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Ricardo MORALES, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0463
    District Court of Appeal of Florida, Third District.
    MARCH 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Stewart J. ANDREWS and Leda N. Andrews, Appellants, v. Donald J. BARTON, Appellee.
    No. 3D17-156
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bryant Keith WILLIAMS, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0461
    District Court of Appeal of Florida, Third District.
    APRIL 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    F.P., The Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2614
    District Court of Appeal of Florida, Third District.
    MARCH 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    A.G., the Father, Appellant(s)/Petitioner(s), v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2448
    District Court of Appeal of Florida, Third District.
    DECEMBER 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Johanna O'NEILL, Appellant, v. The FIRST LIBERTY INSURANCE CORPORATION, a Foreign Corporation, Appellee.
    No. 4D17-1534
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joseph PRANEVICIUS, Appellant, v. SMITH & SONS CONSTRUCTION COMPANY OF FLORIDA, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D17-3355
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marcel A. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3685
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    A.R., The Father, et al., Appellant(s)/Petitioner(s), v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2647
    District Court of Appeal of Florida, Third District.
    DECEMBER 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Denied.

Denied.


text:
    Nikolay GRYAZNOV, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3725
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David ROTHENBERG, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3835
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jean Marcel COULANGES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1211
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Donald STEVENSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1531
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Terrence COSGROVE, Appellant, v. Barbara COSGROVE, Appellee.
    No. 4D18-1590
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edward COBBS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1953
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Shane SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2271
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marie BAYOL, Appellant, v. Jean Gerard BAYOL, Appellee.
    No. 4D18-1765
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daina SCHWARTZ, Appellant, v. Christopher Robert SCHWARTZ, Appellee.
    Case No. 5D17-3391
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    William WONNER, Appellant, v. Romy MCMAHON, Appellee.
    Case No. 5D17-3037
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Mark Jeffery GRANT, Appellant/Cross-Appellee, v. Denise Jardin ROTOLANTE, Appellee/Cross-Appellant.
    Case No. 5D17-1616
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Karim A. CLARKE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1431
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John F. BOGETTO, Appellant/Cross-Appellee, v. WILMINGTON SAVINGS FUND SOCIETY, FSB d/b/a Christiana Trust, not Individually but as Trustee FOR PREMIUM MORTGAGE ACQUISITION TRUST, Appellee/Cross-Appellant.
    Case No. 5D17-1612
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joshua PARSHALL, Appellant, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee.
    Case No. 5D17-1486
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Patchaimmal BENJAMIN, Appellant, v. WELLS FARGO BANK N.A., as Trustee for Soundview Home Loan Trust 2007-OPT5, Asset-Backed Certificates Series 2007-OPT5 and Rashan Wood, Appellees.
    Case No. 5D17-211
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kurt A. HATCHER, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-681
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018 Rehearing Denied November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Salvatore V. ZICARI and Rosemary Zicari, Appellants, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a Christiana Trust, not individually, but as Trustee for Pretium Mortgage Acquisition Trust, Mortgage Electronic Registration Systems, et al., Appellees.
    Case No. 5D16-3421
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018 Rehearing Denied November 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Floyd D. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2756
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018 Rehearing Denied November 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Corey Denard THOMAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1347
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018 Rehearing Denied November 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Victor SPARROW, Appellant, v. STATE Of Florida, Appellee.
    Case No. 5D18-2427
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 16, 2018 Rehearing Denied November 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Edwin Francisco CABEZA, Appellant, v. STATE of Florida and Department of Corrections, Appellees.
    Case No. 5D18-1070
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 16, 2018 Rehearing Denied November 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: COHEN, C.J.

text:
    Darion JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-177
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 25, 2018 Rehearing Denied June 28, 2018
    Terrence E. Kehoe, of Law Office of Terrence E. Kehoe, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, C.J.

Following a jury trial, Darion Johnson was convicted of aggravated battery on a pregnant person. See § 784.045(1)(b), Fla. Stat. (2016). On appeal, Johnson argues that the State committed fundamental error in its method of impeaching his testimony and that he is entitled to a new trial because his court-appointed attorney was suspended from the practice of law during the trial. He also contends that he is entitled to the entry of sentencing documents correcting the credit for time served and modifying or removing certain costs. We affirm Johnson's conviction but remand for the entry of corrected sentencing paperwork.

At trial, Johnson testified on his own behalf. Johnson had three impeachable prior convictions-burglary of a dwelling, grand theft, and petit theft. The prosecutor inquired of Johnson whether he had any felony convictions, and Johnson responded that he had two. The prosecutor then asked Johnson whether he had any convictions for crimes involving dishonesty, and Johnson again answered two.

Johnson's answers were accurate: he was convicted of both grand theft and petit theft, crimes involving dishonesty, and both the burglary and grand theft convictions are felonies. However, Johnson's answers left the false impression that Johnson had four rather than three prior convictions. Although the questions could have been more precise, it does not appear that the prosecutor intended to mislead the jury. Nor do we believe that the testimony, to which there was no objection, rises to the level of fundamental error. "To be fundamental, an error must 'reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.' " Farina v. State, 937 So.2d 612, 629 (Fla. 2006) (quoting Harrell v. State, 894 So.2d 935, 940 (Fla. 2005) ).

The crux of this case involves the failure of Benjamin Davis, Johnson's court-appointed attorney, to complete The Florida Bar continuing legal education basic skills requirement. Johnson moved for a new trial alleging that Davis was suspended from the practice of law at the time of his trial. Johnson argued that representation by counsel unlicensed to practice law violated his constitutional rights under the Sixth Amendment.

It appears that Davis was unaware of the deficiency at the time of trial, which took place on November 14 and 15, 2016. The Florida Bar sent the deficiency notice on November 15, 2016. Davis received the notice on November 18, 2016, and filed a petition for removal of delinquency the same day. While the lack of knowledge of the suspension is important to our consideration, lawyers (and judges) are required to comply with their continuing legal education requirements and deadlines. That Davis was unaware of the suspension at the time of trial is not dispositive.

Rule 1-3.6 of the Rules Regulating The Florida Bar provides that members who fail "to comply with continuing legal education or basic skills course requirements" shall be deemed delinquent. Fla. Bar. R. 1-3.6. "Delinquent members shall not engage in the practice of law in Florida nor be entitled to any privileges and benefits accorded to members." Id. Rule 1-3.7 governs reinstatement of membership. Fla. Bar. R. 1-3.7. It provides that "reinstatement from delinquency for payment of membership fees or completion of continuing legal education or basic skills course requirements approved within 60 days from the date of delinquency is effective on the last business day before the delinquency." Id. Members reinstated within the sixty-day window are "not subject to disciplinary sanction for practicing law in Florida during that time." Id.

Pursuant to The Florida Bar Rules, the trial court correctly found that "as Attorney Davis was reinstated within the 60-day period as outlined above in [ rule 1-3.7 ], he is not subject to disciplinary sanctions and was reinstated on October 28, 2016 (the last business day before the delinquency)." Therefore, Davis was never technically suspended from the practice of law because his reinstatement was retroactive.

Nonetheless, Johnson argues that the lack of counsel licensed to practice law at a criminal trial is structural, per se reversible error. He suggests that The Florida Bar's retroactive reinstatement does not alter the fact that at the time of trial, he did not have the benefit of a licensed attorney, which violated his Sixth Amendment right to counsel. We disagree. The type of delinquency Davis suffered was not the type contemplated under cases finding that the unauthorized practice of law warranted a new trial. See, e.g., State v. Joubert, 847 So.2d 1023 (Fla. 3d DCA 2003) (finding attorney's disciplinary resignation, which was tantamount to disbarment, warranted vacating defendant's conviction; court noted that counsel intentionally misrepresented his status and the violation was neither technical nor ministerial); Huckelbury v. State, 337 So.2d 400 (Fla. 2d DCA 1976) (concluding defendant received ineffective assistance of counsel when defendant pleaded guilty to first-degree murder on counsel's advice and person representing defendant was "imposter in the legal profession" and knowingly misrepresented his status to defendant; court noted that delinquency was not simply failure "to comply with some administrative requirement").

Instead, we align with our sister courts who have rejected a per se reversible error standard in this context. See White v. State, 464 So.2d 185, 186 (Fla. 3d DCA 1985) (explaining that most courts "uniformly decline to adopt a per se rule that an attorney's suspension from the practice of law gives rise to a constitutional claim of denial of the right to counsel"). Because Davis's suspension was based on his failure to comply with continuing legal education requirements, it was unrelated to disciplinary proceedings, and he had no knowledge of his licensing deficiencies at the time of trial, we find no reversible error. See, e.g., id. at 186-87 (finding attorney's suspension for failure to pay bar dues did not deny defendant his Sixth Amendment right to counsel); Dolan v. State, 469 So.2d 142, 143 (Fla. 3d DCA 1985) (holding that attorney's reinstatement after suspension for failure to pay bar dues "is purely ministerial, the suspended status of the attorney simply has no bearing on his ability to effectively represent a criminal defendant" (citation omitted) ); see also Thornhill v. State, 103 So.3d 949, 951 (Fla. 4th DCA 2012) (holding that attorney's one-month suspension during defendant's representation constituted harmless error because attorney only performed ministerial tasks during suspension); Duval v. State, 744 So.2d 523, 526 (Fla. 2d DCA 1999) (concluding defendant's representation by legal intern without defendant's consent was harmless error; representation "did not result in the prejudice necessary for a finding of ineffective assistance of counsel"; declining to adopt a per se rule).

However, the State properly concedes that Johnson is entitled to the entry of sentencing documents reflecting the correction of his credit for time served and the correction of certain costs. Indeed, Johnson filed a motion under Florida Rule of Criminal Procedure 3.800(b), and the trial court granted the request. However, no corrected sentencing documents followed. See Hagan v. State, 193 So.3d 1008, 1009 (Fla. 2d DCA 2016) (remanding for entry of amended sentencing document that had not yet been entered after trial court granted relief on defendant's rule 3.800(b) motion).

AFFIRMED; REMANDED for entry of corrected sentencing documents.

TORPY and EISNAUGLE, JJ., concur.

      The prosecutor only referenced Johnson's criminal history in passing during closing argument, noting that Johnson was a prior-convicted felon and had been convicted of crimes of dishonesty without mentioning the number of prior convictions.


author: BLACK, Judge.

text:
    GREEN EMERALD HOMES, LLC, Appellant, v. RESIDENTIAL CREDIT OPPORTUNITIES TRUST; John Doe or any other Person in Possession; and Magnolia Park at Riverview Homeowners Association, Inc., Appellees.
    Case No. 2D17-4410
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018 Rehearing Denied July 27, 2018
    Brennan Grogan of Levine Law Group, Palm Beach Gardens, for Appellant.
    Melisa Manganelli of Law Offices of Mandel, Manganelli & Leider, P.A., Boca Raton, for Appellee Residential Credit Opportunities Trust.
    No appearance for remaining Appellees.
   BLACK, Judge.

Green Emerald Homes, LLC, challenges the order granting Residential Credit Opportunities Trust's motion to sequester rents pursuant to section 697.07, Florida Statutes (2017). The order requires that Green Emerald Homes-as title owner to property which is the subject of Residential Credit's foreclosure action-deposit rents collected on the property into the trust account of Residential Credit's attorneys pending resolution of the foreclosure action. We reverse.

In 2008, three individuals-Jonathan Orjuela, Yury Tatiana Mesa Diaz, and Michael Arjuela (the borrowers)-executed a promissory note and mortgage in favor of CTX Mortgage Company, LLC. The mortgage contains an assignment of rents provision and was recorded in the public records of Hillsborough County in March 2008.

In June 2014, as the result of a junior lienholder foreclosure action instituted by Magnolia Park at Riverview Home Owners Association, Inc., Green Emerald Homes purchased the property and was issued a certificate of title. In September 2014, Residential Credit was assigned the note and mortgage, becoming the senior lienholder. One month later, Residential Credit filed a foreclosure action, naming Green Emerald Homes, Magnolia Park, and unknown tenants as defendants. In April 2017, after issuing "demand for rents" letters to Green Emerald Homes and the borrowers but not receiving those rents, Residential Credit filed a "Motion to Sequester Earnings, Revenues, Rents, Issues, Profits, and Incomes," relying on section 697.07 and the terms of the mortgage. The motion sought an order directing any and all defendants, including specifically Green Emerald Homes, to deposit "all earnings, revenues, rents, issues, profits and income earned and derived from the property at issue."

Following a hearing, the trial court granted Residential Credit's motion and ordered Green Emerald Homes to file a copy of any rental agreements to which it was a party for 2017 and to deposit into the trust account of Residential Credit's attorneys any rents collected from March 2017 forward. The order also required that any rents due but not previously paid to Green Emerald Homes by renters of the property be tendered by the renters to Residential Credit's attorneys for deposit into their trust account. We conclude that the trial court erred in granting the motion to sequester rents.

The mortgage executed by the borrowers contains the following assignment of rents provision:

Borrower unconditionally assigns and transfers to Lender all of the rents and revenues of the Property. Borrower authorizes Lender or Lender's agents to collect the rents and revenues and hearby directs each tenant of the Property to pay the rents to Lender or Lender's agents. However, prior to Lender's notice to Borrower of Borrower's breach of any covenant or agreement in the Security Instrument, Borrower shall collect and receive all rents and revenues of the Property as trustee for the benefit of Lender and Borrower. This assignment of rents constitutes an absolute assignment and not an assignment for additional security only.
If Lender gives notice of breach to Borrower: (a) all rents received by Borrower shall be held by Borrower as trustee for benefit of Lender only, to be applied to the sums secured by the Security Instrument; (b) Lender shall be entitled to collect and receive all of the rents of the Property; and (c) each tenant of the Property shall pay all rents due and unpaid to Lender or Lender's agent on Lender's written notice to the tenant.
Borrower has not executed any prior assignment of the rents and has not and will not perform any act that would prevent Lender from exercising its rights under this paragraph 17.
Lender shall not be required to enter upon, take control of or maintain the Property before or after giving notice of breach to Borrower. However, Lender or a judicially appointed receiver may do so at any time there is a breach. Any application of rents shall not cure or waive any default or invalidate any other right or remedy of Lender. This assignment of rents of the Property shall terminate when the debt secured by the Security Instrument is paid in full.

"[A] mortgagor and mortgagee are free to contract for an assignment of rents, and enforcement of that assignment will be governed by [ section 697.07 ]." Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 498 (Fla. 3d DCA 1994). Section 697.07"establish[es] procedures designed to give effect to the parties' rent assignment agreement." Wane v. U.S. Bank, Nat'l Ass'n, 128 So.3d 932, 934 (Fla. 2d DCA 2013) (alteration in original) (quoting Ormond Beach Assocs., Ltd. P'ship v. Citation Mortg., Ltd., 634 So.2d 1091, 1092 (Fla. 5th DCA 1994) ). Section 697.07 provides, in pertinent part:

(1) A mortgage or separate instrument may provide for an assignment of rents of real property or any interest therein as security for repayment of an indebtedness.
(2) If such an assignment is made, the mortgagee shall hold a lien on the rents, and the lien created by the assignment shall be perfected and effective against third parties upon recordation of the mortgage or separate instrument in the public records of the county in which the real property is located, according to law.
(3) Unless otherwise agreed to in writing by the mortgagee and mortgagor, the assignment of rents shall be enforceable upon the mortgagor's default and written demand for the rents made by the mortgagee to the mortgagor, whereupon the mortgagor shall turn over all rents in the possession or control of the mortgagor at the time of the written demand or collected thereafter (the "collected rents") to the mortgagee less payment of any expenses authorized by the mortgagee in writing.
(4) Upon application by the mortgagee or mortgagor, in a foreclosure action, and notwithstanding any asserted defenses or counterclaims of the mortgagor, a court of competent jurisdiction, pending final adjudication of any action, may require the mortgagor to deposit the collected rents into the registry of the court, or in such other depository as the court may designate.

"[A]n assignment of rents creates a lien on the rents in favor of the mortgagee, and the mortgagee will have the right to foreclose that lien and collect the rents, without the necessity of foreclosing on the underlying mortgage." Ginsberg, 645 So.2d at 498 ; see also § 697.07(2). However, during the pendency of a foreclosure of the mortgage the statute also allows the rents to be deposited into the registry of the court or another depository designated by the court upon motion by the mortgagee or mortgagor. § 697.07(4) ; see also Wane, 128 So.3d at 934 (" Section 697.07 draws a clear line between a motion seeking sequestration of rents into the court registry [under subsection (4) ] and a motion seeking an actual assignment of rents to the lender pending foreclosure [under subsection (3) ]."). To be entitled to the sequestration of rents, the movant must establish only "a pending foreclosure action and an assignment of rents provision in the applicable mortgage." Wane, 128 So.3d at 934.

Green Emerald Homes does not dispute that Residential Credit has standing to enforce the assignment of rents or seek sequestration of rents. The mortgage establishes that CTX Mortgage Company, LLC, was the original lender and mortgagee. See § 721.82(6), Fla. Stat. (2008) (defining "mortgagee" as "a person holding a mortgage lien"). When Residential Credit was later assigned the mortgage and note, it assumed "all beneficial interest under the mortgage," as well as the debt evidenced by the note and "all rights accrued or to accrue under" the mortgage and note. Thus, Residential Trust became the mortgagee.

Green Emerald Homes does dispute, however, Residential Credit's claim of entitlement to sequestration of rents as against Green Emerald Homes. Green Emerald Homes asserts that it is not a party to the mortgage and is not the mortgagor for purposes of section 697.07. We agree.

The mortgage identifies the mortgagors and borrowers as the three individuals who executed the mortgage. See also § 721.82(7) (defining "mortgagor" as "a person granting a mortgage lien or a person who has assumed the obligation secured by a mortgage lien"). When Green Emerald Homes purchased the property at the Magnolia Park foreclosure sale, it did not become the mortgagor/borrower. See Bank of N.Y. Mellon, ex rel. Certificate Holders of CWABS Inc., Asset-Backed Certificates, Series 2007-5 v. Diaz, 232 So.3d 435, 436 (Fla. 4th DCA 2017) ("The title owner purchased the subject property at a prior foreclosure sale brought by a homeowner's association. The title owner was not the borrower under the note and mortgage."). It became the owner of the property subject to the superior interest and lien imposed by the recorded mortgage. See, e.g., Wells Fargo Bank, N.A., ex rel. Carrington Mortg. Loan Tr., Series 2006 FRE1 Asset-Backed Pass-Through Certificates v. Rutledge, 230 So.3d 550, 552 (Fla. 2d DCA 2017) ; PNC Bank, Nat'l Ass'n v. MDTR, LLC, 243 So.3d 456, 2018 WL 663792 (Fla. 5th DCA Feb. 2, 2018) (stating that the third-party purchaser took the property subject to a mortgage but did not become a party to the mortgage). Further, because Magnolia Park, which held the junior lien on the property, was not a party to the mortgage and note and therefore not obligated under those documents, the title passed to Green Emerald Homes through the junior-lien foreclosure could not bind Green Emerald Homes to the terms of those documents. Green Emerald Homes is a third party to the mortgage and note at issue; it is not an assignee of the mortgagors. See Rodriguez v. Fed. Nat'l Mortg. Ass'n, 220 So.3d 577, 578 (Fla. 5th DCA 2017). Green Emerald Home's title to the property does not reflect an assumption of rights and obligations; moreover, Residential Credit does not make such an allegation in its foreclosure complaint.

Finally, while the statute creates a lien on rents which is effective against Green Emerald Homes-as a third party-by virtue of recordation of the mortgage, see § 697.07(2), the statute does not require that the third-party title owner assign to the mortgagee rents owed to it under a separate document not subject to the foreclosure action. The statute specifically and repeatedly places the obligation on the mortgagor. It also specifically provides that "[n]othing herein shall alter the lien priorities, rights, or interests among mortgagees or other lienholders." § 697.07(7). Again, Green Emerald Homes purchased the property at a junior lien foreclosure sale and took title subject to the mortgage. In the same way that a nonparty to the mortgage cannot enforce the terms of the mortgage with regard to attorney's fees, neither can the mortgagor impose the obligations of the mortgage against a nonparty to the mortgage who has not otherwise assumed those obligations. See, e.g, PNC Bank, 243 So.3d at 458-59 ("[T]he status of prevailing party does not equate to the status of a mortgagor under the mortgage 'so as to trigger section 57.105(7)'s reciprocity provision.' Only a mortgagor under the subject mortgage is due such reciprocity." (quoting Fla. Cmty. Bank, N.A. v. Red Rd. Residential, LLC, 197 So.3d 1112, 1116 (Fla. 3d DCA 2016) ) ); cf. Madl v. Wells Fargo Bank, N.A., 244 So.3d 1134, 2017 WL 6624243 (Fla. 5th DCA Dec. 29, 2017) (denying rehearing on the order granting attorney's fees, finding that through valid assignment of the mortgage the foreclosing bank became a party to the mortgage and was required to pay prevailing party attorney's fees to the mortgagors).

We are aware of the ramifications of our conclusion in the existing foreclosure environment and are not indifferent to them. As has been discussed in prior opinions, the "innovative procedure" of third parties purchasing properties at junior lien foreclosure sales and subsequently renting those properties for a return on their investments has "a measure of good," potentially even benefiting the mortgagees, but also "a measure of bad," including significant delay of mortgage foreclosure proceedings, "that ought to be regulated or prohibited." See Bonafide Props. v. Wells Fargo Bank, N.A., ex rel. Certificate Holders of Banc of Am. Alt. Loan Tr. 2006-5, Mortg. Pass-Through Certificates, Series 2006-5, 198 So.3d 694, 696-98 (Fla. 2d DCA 2016) (Altenbernd, J., concurring). In instances of unwarranted delay, the inability of the mortgagee to sequester rents as against the third-party title owners-particularly where that third party is collecting rent but not paying the homeowners' association dues, property taxes, or property insurance, let alone the mortgage-further discourages a speedy resolution of the mortgage foreclosure action from the third party's perspective. However, we must apply the language of the mortgage and section 697.07 as they are plainly written.

Accordingly, we reverse the order granting Green Emerald Homes' motion to sequester rents.

Reversed.

CASANUEVA and VILLANTI, JJ., Concur.

      The note and mortgage appear to have been assigned from CTX to Countrywide Bank, FSB, then from Countrywide to Bank of America, N.A., then from Bank of America to Bayview Loan Servicing, LLC, and finally from Bayview to Residential Credit.

      The borrowers were not named as defendants.

      A transcript of the hearing was not provided to this court and, upon order to supplement the record, Green Emerald Homes has advised that a court reporter was not present at the hearing.

      We note that Residential Credit did not seek to enforce its statutorily-created lien on the rents subject to the assignment of rents provision in the mortgage, pursuant to section 697.07(3) ; it sought only sequestration of rents, pursuant to section 697.07(4). See Ginsberg, 645 So.2d at 498 ("According to the statute an assignment of rents creates a lien on the rents in favor of the mortgagee, and the mortgagee will have the right to foreclose that lien and collect the rents, without the necessity of foreclosing on the underlying mortgage.").

      On this record we cannot determine whether any tenants-assuming there are tenants-are long-term renters whose leases originated with the borrowers such that rents paid to the mortgagors/borrowers during the time the mortgagors/borrowers were the owners of record and in default would be subject to sequestration under section 697.07. Nonetheless, because Residential Credit did not name the mortgagors/borrowers in its foreclosure suit, it could not seek to enforce the mortgage terms for those rents in this case. Cf. Wane, 128 So.3d at 933 (discussing motion seeking assignment of rents from borrower's tenant); Terant v. Beltway Capital, LLC, 147 So.3d 1103 (Fla. 3d DCA 2014) (discussing sequestration of rents as against borrower). Our holding has no application to rents paid or payable to the mortgagors/borrowers had they been defendants below or to rents payable under a lease executed by the mortgagors/borrowers as landlords and assumed by the third-party purchaser.


author: PER CURIAM.

text:
    Bryan Thomas ROBINSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4227
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    James S. Purdy, Public Defender, and Glendon George Gordon, Jr., Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Bryan Thomas Robinson was charged by indictment with the first-degree premeditated murder of Stephen Gorney (Count One), robbery with a deadly weapon (Count Two), and dealing in stolen property (Counts Three and Four). Robinson was under the age of eighteen at the time of the offense. He was tried jointly with his codefendant, Tyzick Joseph Wall, before a jury. Robinson was found guilty as charged on all four counts. He was sentenced to concurrent life terms on Counts One and Two and to two consecutive fifteen-year terms on Counts Three and Four. Robinson was also ordered to pay, among other costs, $200 in prosecution and investigative costs, $300 in public defender costs and fees, and the $50 public defender application fee. Separately, the State Attorney's Office for the Fifth Judicial Circuit was awarded $5736.40 in restitution for additional prosecution costs incurred for trial witness travel expenses and expert witness fees.

We affirm Robinson's convictions and sentences on all counts without further discussion. However, we reverse the restitution order that awarded the State Attorney's Office $5736.40 and remand for the inclusion of this amount in the costs order in addition to the existing $200 line item for prosecution and investigative costs. See §§ 775.089(1)(c)1., 938.27(8), Fla. Stat. (2015). We also reverse the inclusion of public defender fees and costs in the cost order in excess of $100 in public defender fees and costs and the $50 application fee because documentation supporting a greater amount is not present in the record. See §§ 27.52(1)(b), 938.29(1)(a), Fla. Stat. (2015) ; Alexis v. State, 211 So.3d 81, 83 (Fla. 4th DCA 2017) ; Simmons v. State, 24 So.3d 636, 638 (Fla. 2d DCA 2009). We remand with instructions that public defender fees and costs be reduced to $100 and the $50 application fee or to hold a hearing with notice to obtain evidence from the public defender supporting the $300 public defender fee and cost award. See §§ 27.52(1)(b), 938.29(1)(a), Fla. Stat. (2015) ; Alexis, 211 So.3d at 83.

AFFIRMED, in part; REVERSED, in part; and REMANDED with instructions.

SAWAYA, BERGER and EISNAUGLE, JJ., concur.

      We reject Robinson's argument that he is entitled to be resentenced on Count One pursuant to Williams v. State, 242 So.3d 280, 288-89 (Fla. 2018) (citing Alleyne v. United States, 570 U.S. 99, 115, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ). Unlike the situation in Williams, Robinson was only charged with first-degree premeditated murder, and so the jury's guilty verdict contains an inherent unambiguous finding of intent to kill.


text:
    Stephen Chester PANTOR, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2489
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 17, 2018
    Blaise Trettis, Public Defender, Viera, and Michael Mario Pirolo, Chief Assistant Public Defender, Viera, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 26, 2018 judgment and sentence rendered in Case No. 2017-CF-045874, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., EVANDER and LAMBERT, JJ., concur.


text:
    Jimmy KIMBROUGH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-608
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 17, 2018
    Jimmy L. Kimbrough, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jimmy Kimbrough appeals the denial of his petition for writ of mandamus. Kimbrough was an indigent defendant in a criminal prosecution who was represented by the Public Defender's Office of the Eighteenth Judicial Circuit. Kimbrough requested that the Public Defender's Office provide to him free copies of certain CDs and DVDs that he alleged were previously prepared at public expense. The trial court summarily denied Kimbrough's petition, concluding that he had no "pending" prosecution and "the records of the Public Defender's Office are not part of the judicial branch record, and are therefore not subject to release by [the circuit] court." We reverse.

"Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law."

Wharen v. State , 170 So.3d 942, 943 (Fla. 5th DCA 2015) (quoting Poole v. City of Port Orange , 33 So.3d 739, 741 (Fla. 5th DCA 2010) ). Because a public defender is an "official," mandamus is an appropriate remedy to compel the public defender to provide to a former client copies of record documents prepared at public expense. Id. (quoting Brown v. State , 93 So.3d 1194, 1196 (Fla. 4th DCA 2012) ). Moreover, record documents that were prepared at public expense on behalf of an indigent defendant must be provided to him or her without charge for copying. Id. at 943-44 (citing Rosado v. State , 1 So.3d 1147, 1148 (Fla. 4th DCA 2009) ).

Where, as here, a petition for writ of mandamus sets forth a prima facie case for relief, the trial court is required to order the respondent to file a response. Id. at 944 (citing Brown , 93 So.3d at 1196 ). In the present case, and as properly conceded by the State, the trial court erred in summarily denying Kimbrough's petition without first ordering a response from the Public Defender's Office.

Accordingly, we reverse the order under review with directions to the trial court to order the Public Defender's Office to file a response as to whether the requested CDs and DVDs were obtained or prepared on Kimbrough's behalf at public expense. If so, then, as to those specific CDs and DVDs, the court shall order that they be copied for Kimbrough without charge. See id.

REVERSED and REMANDED.

ORFINGER, BERGER, and LAMBERT, JJ., concur.


text:
    Tray Charles RUDOLPH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-326
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 17, 2018
    Tray Charles Rudolph, Dothan, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Tray Charles Rudolph appeals the order summarily denying his motion for postconviction relief which raised twelve grounds for relief. See Fla. R. Crim. P. 3.850. We reverse the summary denial of the first ground for relief and remand for the postconviction court to either attach sufficient records to support a summary denial or to hold an evidentiary hearing. See Hird v. State, 204 So.3d 483, 485 (Fla. 5th DCA 2016) (citing Burgos v. State, 181 So.3d 572 (Fla. 5th DCA 2015) ). We affirm the summary denial of the remaining grounds. We note that review of grounds three through twelve has been waived. See Braddy v. State, 219 So.3d 803, 825 (Fla. 2017) (citing Duest v. Dugger, 555 So.2d 849, 852 (Fla. 1990) ).

AFFIRMED in part; REVERSED in part, REMANDED.

PALMER, TORPY and EISNAUGLE, JJ., concur.


text:
    Trevon Markques WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3889
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 17, 2018
    James S. Purdy, Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant's judgment and sentence but remand for correction of a scrivener's error. In lower court case number 2015-CF-002788, the sentencing documents should reflect that Appellant's sentence on Count 1 shall run concurrent with his sentence on Count 2.

AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENER'S ERROR.

PALMER, ORFINGER and EVANDER, JJ., concur.


text:
    Robert E. PHILYAW, II, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3251
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 17, 2018
    Robert E. Philyaw, II, Defuniak Springs, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant filed an appeal with this Court following the denial of his motion seeking postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. However, the issues and arguments Appellant raises here were not presented to the postconviction court. Accordingly, those issues and arguments are not properly before this Court. Evans v. State , 975 So.2d 1035, 1042 (Fla. 2007). We affirm the postconviction court's order denying Appellant's rule 3.850 motion.

AFFIRMED.

ORFINGER, EVANDER and EDWARDS, JJ., concur.


text:
    Rachel E. FIELDS, Appellant, v. Donnie B. FIELDS, Appellee.
    Case No. 5D17-3751
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Margaret E. Kozan, of Margaret E. Kozan, P.A., Winter Park, and Daniel C. Elkins, of Law Offices of Elkins & Freedman, Altamonte Springs, for Appellant.
    Megan D. Widmeyer, of Law Offices of Megan D. Widmeyer, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

Rachel E. Fields, the former wife, appeals the trial court's order granting the former husband's, Donnie B. Fields, motion to set aside the final judgment of dissolution of marriage. We affirm in part, reverse in part, and remand.

The former wife submitted a proposed final judgment to the trial judge that incorporated the parties' settlement agreement. The former husband objected to parts of the proposed final judgment.

Without ruling on the former husband's objections, the trial court entered the former wife's proposed final judgment. Thereafter, on the former husband's motion, the trial court set aside the final judgment and ordered the parties to attend mediation and re-notice the case for trial. The former wife challenges that order, arguing that there was no evidence of mistake, inadvertence, surprise, or excusable neglect justifying setting aside the final judgment under Florida Rule of Civil Procedure 1.540(b)(2), and that there was no evidence of fraud or another basis for setting aside the settlement agreement.

We affirm without discussion that portion of the order setting aside the final judgment under rule 1.540(b)(2) as it appears the trial court was unaware that the former husband had objected to the proposed final judgment. However, we reverse the order to the extent that the court also ordered the parties to attend mediation and re-notice the case for trial because it effectively set aside the parties' valid settlement agreement without any justification and granted relief the former husband did not request in his motion.

AFFIRMED in part; REVERSED in part; and REMANDED.

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

      We express no opinion on the merits or timeliness of the former husband's objections.


text:
    Anthony S. DESTEFANO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1521
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 17, 2018
    Anthony S. Destefano, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Anthony S. DeStefano appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds Two through Five. However, because the record does not conclusively refute DeStefano's claim that counsel was ineffective for failing to object to the prosecutor's comments on the law applicable to his sentencing, we reverse the summary denial of Ground One and remand for attachment of portions of the record conclusively refuting that claim or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996) ) ).

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER, BERGER, and EISNAUGLE, JJ., concur.


text:
    Allen Dewayne MCFADDEN, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2221
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 28, 2018
    James S. Purdy, Public Defender, and Alexandra K. Galvin, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Asencio v. State , 244 So.3d 294, 297 (Fla. 4th DCA 2018) (explaining that an audio recording may be authenticated by a records custodian of jail calls, even if that custodian is not personally familiar with the defendant's voice because the question for the trial court is not whether the evidence is authentic, but whether evidence exists from which the jury could reasonably conclude that it is authentic).

COHEN, C.J., BERGER and LAMBERT, JJ., concur.


text:
    G.F., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D18-0292
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2018
    Sanford Rockowitz, for appellant.
    Karla Perkins, Miami, for appellee Department of Children & Families; Sara Elizabeth Goldfarb (Tallahassee), for appellee Guardian ad Litem Program.
    Before LAGOA, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

G.F., the father to nine-year-old A.F., appeals the trial court's order terminating his parental rights. We reverse.

The child was removed from her mother's care on June 24, 2016, and sheltered by the department of children and families, because the mother was violent towards the child's grandmother. The department was unable to locate the father until October 2016, when he was put on a case plan requiring him to successfully complete: (1) a psychological evaluation; (2) a substance abuse evaluation; (3) outpatient substance abuse treatment; (4) individual counseling; (5) an evidence-based parenting program; (6) a domestic violence for batterer's course; and (7) supervised visitation. The case plan also required the father to: (8) maintain adequate employment and housing; and (9) show parental responsibility.

On April 6, 2017, the department petitioned to terminate the father's parental rights based on Florida Statutes sections 39.806(1)(e) 1. and 39.806(1)(e)2. Those statutes provide:

(1) Grounds for the termination of parental rights may be established under any of the following circumstances:
....
(e) When a child has been adjudicated dependent, a case plan has been filed with the court, and:
1. The child continues to be abused, neglected, or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 12 months after an adjudication of the child as a dependent child or the child's placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent's lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child. The 12-month period begins to run only after the child's placement into shelter care or the entry of a disposition order placing the custody of the child with the department or a person other than the parent and the court's approval of a case plan having the goal of reunification with the parent, whichever occurs first; or
2. The parent or parents have materially breached the case plan. Time is of the essence for permanency of children in the dependency system. In order to prove the parent or parents have materially breached the case plan, the court must find by clear and convincing evidence that the parent or parents are unlikely or unable to substantially comply with the case plan before time to comply with the case plan expires.

§ 39.806(1)(e) 1.-2., Fla. Stat. (2017). The trial court held a three-day hearing, and at the end of it found by clear and convincing evidence that the department established one of the circumstances for terminating parental rights, section 39.806(1)(e) 1., and that termination was in the child's best interests and the least restrictive means of protecting the child. (The trial court did not rule on the alternative circumstance for termination in the department's petition, section 39.806(1)(e) 2.)

"Each termination case involves three questions: (1) Does a ground for termination of parental rights exist? (2) Is termination in the manifest best interest of the child? (3) Is termination the least restrictive means of protecting the child from harm?" C.T. v. State, Dep't of Children & Families, 22 So.3d 852, 854 (Fla. 3d DCA 2009) (citations omitted) ). We deal, here, with the first question. The father argues that the department did not meet the legal criteria for termination of his parental rights under section 39.806(1)(e) 1. "The Department agrees as the record reflects that the child A.F. was sheltered on June 24, 2016, and adjudicated dependent as to the Father on September 14, 2016. The Department filed its petition to terminate Father's parental rights on April 6, 2017.... The Father has not had the full twelve (12) month period under the statute." (DCF Br. at 19.)

Even so, the department contends that under the tipsy coachman doctrine we should affirm because the father "materially breached" his case plan under section 39.806(1)(e) 2. We decline the invitation to apply the "right-for-the-wrong-reasons" doctrine because the trial court made no findings regarding this circumstance for terminating parental rights - including that the father materially breached his case plan - and it would not be appropriate for us, as an appellate court, to do so in the first instance based on this record. See HSBC Bank USA, Nat'l Ass'n v. Nelson, 246 So.3d 486, 489 (Fla. 2d DCA 2018) ("As an initial matter, we note that the trial court expressly declined to address this argument, and this court cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so.") (quotation omitted); Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) ("[A]n appellate court cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so.").

For these reasons, we reverse the trial court's order terminating G.F.'s parental rights and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

      The guardian ad litem program argues that this issue was not preserved for appellate review because it was not presented to the trial court. We disagree. The father's counsel argued in her closing that the father came in late into the proceedings and was not given the full twelve months to complete the case plan.

      It would be difficult for us to make such a finding given the father "completed his psychological evaluation;" "was evaluated and enrolled in an outpatient substance abuse program" (although his participation was "inconsistent"); "completed his sixteen week" evidence-based parenting course; "completed the 26 domestic violence session[s] required by the program"; and "consistently visited [A.F.] and the supervised interactions were overall appropriate."


text:
    L.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-893
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2018
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special Assistant Public Defender, and Marlene Brito and Elaine A. Carbuccia, Certified Legal Interns, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.

      Judge Lindsey did not participate in oral argument.

   PER CURIAM.

L.M., a juvenile, appeals an adjudication for trespass on school grounds ( section 810.097, Florida Statutes (2014) ) and the denial by the trial court of L.M.'s motion for a judgment of dismissal. For the reasons addressed below, we affirm the adjudication and order reviewed.

Facts and Procedural History

On November 20, 2014, L.M. was issued a printed form of "Notice of Suspension" by his Miami-area high school, with typewritten entries in the information fields. The form stated that L.M. was suspended from his school for a period of ten days and "may not return until Pending Parent Conference." The form further indicated that the suspension was a result of "Disruptive Behaviors, Defiance of School Personnel, Rude & Discourteous Repeated profanity constantly & Confrontation w/staff."

The notice was signed by "Principal or Designee"-L.M. refused to sign on the line provided for "Signature of Suspended Student." The completed notice was addressed to "Parent/Guardian" and specified that L.M. should not return to the school campus during the period of suspension. The form warned that "An unauthorized appearance could result in a charge of trespassing." It provided a telephone number for the parent, guardian, or L.M. to call the school for more information, or to arrange a conference regarding the suspension.

The dean of discipline at the high school testified at the adjudicatory hearing that he told L.M. that he could not return to the school grounds until a parent or guardian spoke with the principal. L.M. told him that his mother was out of town. The school tried her phone number but it did not work. L.M.'s mother did not make contact with the school until after L.M.'s arrest (December 3, 2014). A vice principal attempted to call all the numbers in the computer record for L.M.'s parents or guardians, but all of the numbers were non-working. The vice principal asked L.M. to call his guardian to come and pick him up, but L.M. told her that his grandmother did not drive. The vice principal testified that L.M. called someone and told them he was on suspension.

The dean of discipline and other school employees testified that L.M. entered the school cafeteria and classrooms on three separate days, culminating in his arrest for trespass on the last of those days.

L.M.'s grandmother testified that she was a legal guardian for L.M., and that no one had advised her of the suspension before L.M. was arrested for trespass. L.M. himself did not testify. The trial court adjudicated L.M. delinquent of trespassing on school grounds while on suspension. At a subsequent disposition hearing, the court placed L.M. on probation for six months. This appeal followed.

Analysis

"In a juvenile proceeding, we apply a de novo standard of review to a trial court's denial of a motion of dismissal." W.B. v. State, 179 So.3d 411, 412-13 (Fla. 3d DCA 2015). Such a motion tests the legal sufficiency of the State's evidence. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). "If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Id.

The elements of the crime of trespass upon grounds or facilities of a school, section 810.097(1)(b), Florida Statutes (2014), are that the person charged is "a student currently under suspension or expulsion," who enters or remains upon the campus or any other facility of a school. The issue raised by L.M. in this case is whether he was "currently under suspension" at the time of the charged trespass.

L.M. argues that his "suspension" never became effective under either: (1) the written "Notice of Suspension" signed by the dean of school discipline as the principal's designee (which L.M. refused to sign and, apparently, take to his grandmother in his mother's absence); or (2) these provisions within section 1006.09(1)(b), Florida Statutes (2014):

The principal or the principal's designee may suspend a student only in accordance with the rules of the district school board. The principal or the principal's designee shall make a good faith effort to immediately inform a student's parent by telephone of a student's suspension and the reasons for the suspension. Each suspension and the reasons for the suspension shall be reported in writing within 24 hours to the student's parent by United States mail. Each suspension and the reasons for the suspension shall also be reported in writing within 24 hours to the district school superintendent. A good faith effort shall be made by the principal or the principal's designee to employ parental assistance or other alternative measures prior to suspension, except in the case of emergency or disruptive conditions which require immediate suspension or in the case of a serious breach of conduct as defined by rules of the district school board.

The criminal trespass statute does not contain its own definition of "suspension," nor does it suggest that the terms of the Florida Education Code are applicable to the criminal trespass provision. Section 1003.01(5)(a) of the Florida Education Code does include a definition of "suspension," but the introduction to the terms defined in section 1003.01 is limiting ("As used in this chapter [chapter 1003]"):

(5)(a) "Suspension," also referred to as out-of-school suspension, means the temporary removal of a student from all classes of instruction on public school grounds and all other school-sponsored activities, except as authorized by the principal or the principal's designee, for a period not to exceed 10 school days and remanding of the student to the custody of the student's parent with specific homework assignments for the student to complete.

The written notice and the principal or designee's statutory notice of suspension are subject to modification or revocation if a parent or guardian requests a conference to discuss the suspension and the principal or designee is persuaded that modification or revocation is appropriate.

Under any reading of these statutes and the Notice of Suspension, however, a principal's directive to a student that the student "has been suspended," followed by the student's departure from the school property that day, may not be intentionally countermanded by the student during the period of the suspension and the school authorities' discussions, or attempts to discuss, the suspension with the student's parents or guardians. See, e.g., M.M. v. State, 187 So.3d 300 (Fla. 5th DCA 2016) (student, a minor, advised that he was suspended and ordered to remain in an office waiting area for his mother to pick him up; minor arrested for trespass for walking outside the office in a courtyard before his mother arrived).

Absent a constitutional violation, a student and his or her parents and guardians have administrative remedies available, as established by the local School Board, to appeal disciplinary actions, including suspension. See D.K. ex rel. Kennedy v. Dist. Sch. Bd. Indian River Cty., 981 So.2d 667 (Fla. 4th DCA 2008). Much as an adult defendant or civil litigant must obey a judicial order while pursuing rehearing, a stay, or an appeal, a student must obey a school principal's directive that the student "has been suspended" and must not return to the school property until the suspension is completed or revoked.

Concluding that L.M.'s motion for a judgment of dismissal was properly denied, we also affirm the trial court's conclusion, after hearing witness testimony and considering the legal arguments presented, that the State proved the trespass beyond a reasonable doubt.

Affirmed.

      Chapters 1000 through 1013, Florida Statutes.


author: Per Curiam.

text:
    DEPARTMENT OF REVENUE, ON BEHALF OF Stephanie Diane MCMILLAN, Appellant, v. McMorris Vincent MAGLOIRE, Appellee.
    No. 1D17-4595
    District Court of Appeal of Florida, First District.
    September 20, 2018
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   Per Curiam.

The Department of Revenue challenges a final administrative support order asserting that the Administrative Law Judge (ALJ) erred in calculating child support and retroactive child support. We affirm the ALJ's award of child support, but we reverse the award of retroactive child support.

The Department first argues that the ALJ miscalculated the amount of child support because he failed to credit the mother, Stephanie McMillan, the entire amount she pays for her own health care. However, the record shows that the ALJ credited her with the proper amount for her health and dental insurance; thus, this argument is without merit.

Next, the Department argues that the ALJ used an incorrect amount for the insurance costs of the father, McMorris Magloire, and failed to credit him for the amount he pays for health insurance for himself, his current wife, and his son. But the Department does not explain how this alleged error adversely affects it or the mother. Instead, Magloire, the party affected by the alleged error, did not object to the trial court's calculation of his insurance costs, did not appeal the support order, and did not file any brief in this Court. Thus, because the alleged error was not preserved for review, Magliore would not be entitled to relief even if he had appealed. See Alfred v. Dep't of Revenue , 204 So.3d 583, 585 (Fla. 4th DCA 2016). Moreover, the Department could not raise the unpreserved error on Magliore's behalf. "An appellant cannot 'concede error' on behalf of the appellee when that error has never been raised by appellee." Dep't of Revenue v. Lopez , 252 So.3d 823, 43 Fla. Law Weekly D1753, 2018 WL 3638010 (Fla. 1st DCA Aug. 1, 2018) (Winokur, J., concurring). Thus, we reject this concession of error.

Finally, the Department argues that the ALJ erred in calculating Magloire's retroactive child support. Section 61.30(3)(f), Florida Statutes (2017), provides that "[c]ourt-ordered support for other children which is actually paid" is an allowable deduction from gross income for purposes of calculating net income available for child support. Here, the ALJ applied the deduction to an eight-month period of time before the support order for Magloire's other children went into effect. Further, there is no indication in the record that Magloire actually made these support payments for his other children, a prerequisite to receiving the deduction. See Dep't of Revenue ex rel. Walker v. Cody , 131 So.3d 823 (Fla. 1st DCA 2014). For these reasons, we reverse the portion of the order awarding retroactive child support and remand for recalculation of the retroactive child support award.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    M.P., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-871
    District Court of Appeal of Florida, Second District.
    Opinion filed September 21, 2018
    Howard L. Dimmig, II, Public Defender, and Anthony C. Musto, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

M.P. appeals the restitution judgment entered after the trial court adjudicated him delinquent based on his admission to committing, among other delinquent acts, burglary and grand theft of Raul Laureano-Cheveres's motor vehicle. The written restitution judgment orders M.P. to pay Laureano-Cheveres $5080, which was the sum of the trial court's oral findings on Laureano-Cheveres's insurance deductible for repairing the vehicle, the amount that he had to personally pay to replace the vehicle's damaged tire and damaged rims, and the fair market value of items that had been inside the vehicle when it was stolen but were missing when the police recovered it.

We agree with M.P.'s argument that competent substantial evidence does not support the restitution awards for the electronic torque wrench, the Samsung Gear S watch, and the cordless screwdriver that were missing from the vehicle, but we reject without further comment his challenges to the trial court's findings regarding the other items. We also agree that the trial court erred in failing to determine whether the restitution award exceeded what M.P. could reasonably be expected to make or pay. Therefore, as explained below, we reverse the restitution judgment and remand for further proceedings.

I. Background

Laureano-Cheveres was the only witness at the restitution hearing. He testified that he had to pay an insurance deductible for damage to the body of his vehicle and had to pay out of pocket to replace one tire and two rims that had been damaged. He also testified that upon return of his vehicle in October 2016, he had noticed that the following items, which had been inside of the vehicle at the time of the theft, were missing: two impact wrenches, an air impact wrench, a cordless drill, an electronic torque wrench, a 100-round magazine for an AR-15, a Samsung Gear S watch, a cordless screwdriver, and Halloween costumes.

Laureano-Cheveres purchased the cordless screwdriver "[i]n the 2013 timeframe, 2014" for "[t]wo hundred and forty-some dollars, $44 -- $244 or $243," and "it was [in] fairly good working condition" before being stolen. He purchased the electronic torque wrench, which was "used for precision usage," "[a]round 2013, somewhere around there" for "[f]our-hundred and fifty-some dollars." He purchased the Samsung Gear S watch, which he described as "a phone as well," "in 2012, 2013, somewhere around that timeframe" for $300. He also mentioned that the tools were his "professional tools," but beyond that, his description of these three items was limited to the foregoing.

M.P. argued that the State failed to introduce sufficient evidence of the fair market value of most of the stolen items because Laureano-Cheveres testified merely to their purchase price and date, did not testify as to the condition of some items at the time of the theft, and never mentioned depreciation. The trial court disagreed, relying on this court's opinion in Duncan v. State, 192 So.3d 654 (Fla. 2d DCA 2016), and awarded restitution of $1200 for the two impact wrenches ($600 each), $400 for the air impact wrench, $700 for the cordless drill, $200 for the AR-15 magazine, $80 for the Halloween costumes, $1000 for the insurance deductible, and $500 for the one tire and two rims, the sum of which is $4080. The court also awarded $450 for the electronic torque wrench, $250 for the cordless screwdriver, and $300 for the Samsung Gear S watch, resulting in total restitution of $5080.

Following this oral pronouncement, M.P. objected because the trial court had failed to make a finding regarding what M.P. could reasonably be expected to make or pay. But the court merely responded, "Okay," and then imposed the restitution as a lien pursuant to the State's request. M.P. timely appeals.

II. Analysis

The court may order a delinquent child to pay restitution "for any damage or loss caused by the child's offense in a reasonable amount or manner to be determined by the court." § 985.437(2), Fla. Stat. (2016). When the trial court orders restitution, however, "the amount of restitution may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make." Id. The State has the burden of proving the amount of restitution by the greater weight of the evidence. See J.L.C. v. State, 189 So.3d 260, 261 (Fla. 2d DCA 2016). We review for an abuse of discretion the trial court's determination of the amount of restitution, and we will not disturb the findings underlying that determination if competent substantial evidence supports them. See id.

Unlike criminal offenses, in which the value of the property involved is an essential element that should be proven by establishing its fair market value at the time of the crime, restitution does not demand "such a rigid standard of proof." See State v. Hawthorne, 573 So.2d 330, 332 (Fla. 1991). Thus, "a court is not tied to fair market value as the sole standard for determining restitution amounts, but rather may exercise such discretion as required to further the purposes of restitution." Id. at 333. But when the court "determine[s]

that a restitution amount equal to fair market value adequately compensates the victim or otherwise serves the purposes of restitution, ... the value should be established either through direct testimony or through evidence of the four factors announced in Negron [ ]." Id. (footnote omitted). The direct testimony can be established by a victim who opines as to the fair market value at the time of the theft, so long as the victim is competent to testify to such by demonstrating sufficient familiarity with the item and its value. See S.M. v. State, 159 So.3d 966, 968 (Fla. 2d DCA 2015). Otherwise, the trial court should ascertain the fair market value by considering evidence of its original market cost, its manner of use, its general condition and quality, and the percentage of depreciation. See Hawthorne, 573 So.2d at 332-33.

A. The Cordless Screwdriver

Laureano-Cheveres testified that he purchased the cordless screwdriver two to three years before the incident for either $243 or $244, that it was one of his "professional tools," and that it was in fairly good working condition at the time of the theft. This was sufficient evidence for the trial court to determine an appropriate amount of restitution, even absent evidence of depreciation. See Duncan, 192 So.3d at 655-56 (affirming $1300 restitution award for a smart TV based on testimony that the victim purchased it one or two years earlier for $1300, that it was in good condition at the time of the theft, and that the "victim purchased a replacement television for $500, but unlike the stolen television, it was not a 'smart' television"); J.M. v. State, 661 So.2d 1285, 1285-86 (Fla. 4th DCA 1995) (holding that the evidence was sufficient to support the amount of restitution awarded for "a wallet, a money clip, a driver's license, antique Roman coins, a brief case, and tools" stolen from vehicle because the victim "estimated that it cost $100.00 to buy the Roman coins, $100.00 to buy the briefcase and $50.00 to buy the tools[, and a]lthough he did not know the exact fair market value of the rest of the items, [the victim] estimated that it cost approximately $10.00 to replace his wallet and driver's license, and $75.00 to replace the money clip").

Nevertheless, we reverse the restitution awarded for the cordless screwdriver because competent substantial evidence does not support the trial court's award of $250 in restitution for that item. There was no evidence that it had somehow appreciated in value since Laureano-Cheveres purchased it. See Ibrahim v. State, 866 So.2d 749, 751 (Fla. 5th DCA 2004) (agreeing with the State's concession "that the trial court erroneously awarded restitution in the amount of $2,400 for an 18 [k]arat gold rope chain, when the victim testified that the value of the chain at the time of the theft was $2,300").

B. The Electronic Torque Wrench and Samsung Digital Watch

We also reverse the restitution awarded for the electronic torque wrench and the Samsung Gear S watch because the State failed to introduce sufficient evidence to support an award of restitution for either item. Laureano-Cheveres never personally opined as to either item's fair market value at the time of the theft but merely testified to the price that he had originally paid for each approximately three to four years before the theft. With only this information and the absence of any testimony concerning either the condition of each at the time of the theft or depreciation, the trial court had insufficient evidence from which it could determine a fair market value at the time of the theft. See Thompson v. State, 68 So.3d 425, 427 (Fla. 4th DCA 2011) (holding that the victim's testimony of the items' original purchase price was insufficient to support the restitution award because the record contained "no competent evidence of the 'general condition and quality of the items' or the percentage of depreciation that would permit the trial court to calculate market value"); see also Hawthorne, 573 So.2d at 332, 333 & n.6 (explaining that absent direct evidence such as the owner's personal opinion of fair market value, the trial court can determine fair market value based on consideration of item's original market cost, manner of use, general condition and quality, and percentage of depreciation). Moreover, there was insufficient evidence to justify reliance on a method other than fair market valuation. See Hawthorne, 573 So.2d at 333 (explaining that the court has discretion to award restitution based on approach other than fair market value if needed to adequately compensate the victim or otherwise further the purpose of restitution).

C. Reasonable Expectation to Pay or Make

We also reverse the written restitution judgment because, as M.P. correctly argues, the trial court failed to make any findings concerning what M.P. or his parent(s) or guardian(s) could reasonably be expected to pay or make. See § 985.437(2) ; K.T.M v. State, 969 So.2d 542, 543 (Fla. 2d DCA 2007) ("[I]t is reversible error for a trial court to order restitution to be paid by a child without making findings concerning the child's ability to earn and ability to pay." (citing M.W.G. v. State, 945 So.2d 597, 601 (Fla. 2d DCA 2006) ) ).

We disagree with the State's argument that M.P. failed to adequately preserve this issue for review. In a criminal case, ability to pay is considered in enforcement proceedings after the court orders restitution, see § 775.089(6), Fla. Stat. (2016), but in a juvenile case, the court must determine before ordering restitution what the delinquent child or his or her parent(s) or guardian(s) can be reasonably expected to both pay and make, see § 985.437(2) ; L.W. v. State, 163 So.3d 598, 601 (Fla. 3d DCA 2015) ("The cases discussing and interpreting section 985.437 universally require the trial court to make a factual finding that the child and/or his parent or guardian could reasonably be expected to pay the amount of the loss at the time the restitution is imposed, not merely when the court is subsequently required to enforce the order or determine whether the juvenile violated his probation."); see also J.A.B. v. State, 993 So.2d 1150, 1152 (Fla. 2d DCA 2008) (en banc) (noting that section 775.089(6) previously required consideration at the restitution hearing of both the victim's losses and the defendant's financial resources, that a subsequent amendment shifted the consideration of the defendant's financial resources to the enforcement proceeding, and that the juvenile statute had not been not similarly amended so that trial courts must still consider the ability to earn and pay before ordering restitution). Especially because of this distinction in timing, M.P. adequately preserved the issue when he objected contemporaneously with the court's failure to make the requisite findings; he did not need to object again after the trial court imposed the lien.

We also disagree with the State's assertion that M.P. had the burden to prove what he and his parents could reasonably have been expected to pay or make and that by failing to provide any such evidence on which the court could premise such a finding, M.P. relieved the trial court of its duty to make such a finding. It is true that the criminal restitution statute imposes this duty on the defendant and that this court has previously noted that the criminal statute can provide guidance when the juvenile statute is silent on a matter. See J.A.B., 993 So.2d at 1152. The criminal restitution statute, however, cannot provide guidance regarding the evidentiary burden necessary to support a finding in a juvenile restitution proceeding that, as noted above, the criminal statute does not require be made in the criminal restitution proceeding. See § 985.437(2) ; L.W., 163 So.3d at 601 n.2 (noting that the restitution process applicable to juvenile delinquency proceedings "is precisely the opposite of the restitution process for adults, which requires the trial court to consider the defendant's ability to pay only at the time of enforcement of the restitution order, not at the time the restitution order is imposed"). Moreover, when the delinquent child fails to introduce evidence of what the child or the child's parents or guardians could be reasonably expected to pay or make, we remand for a new hearing on that issue. See K.T.M., 969 So.2d at 543 (reversing restitution award because the court failed to make any finding on K.T.M.'s ability to earn or pay, despite noting that "[n]either the State nor K.T.M. offered any evidence concerning K.T.M.'s ability to earn money or ability to pay restitution"); see also M.W.G., 945 So.2d at 601 ("When no evidence of what the child could reasonably be expected to earn is presented at the restitution hearing, the trial court cannot make a finding on this issue. In the absence of such a finding, an appellate court must reverse the restitution order and remand for a hearing on the child's ability to earn and ability to pay." (citations omitted) ).

III. Conclusion

We reject M.P.'s challenges to the trial court's findings regarding the two impact wrenches, the air impact wrench, the cordless drill, the AR-15 magazine, the Halloween costumes, the car insurance deductible, the tire, and the two rims. However, the trial court erred in its findings regarding the cordless screwdriver, electronic torque wrench, and Samsung Gear S watch. The trial court also erred because it failed to make any findings regarding what M.P. or his parent(s) or guardian(s) could be reasonably expected to make or pay. Accordingly, we reverse the restitution judgment and remand for a new restitution hearing consistent with this opinion.

Reversed and remanded.

NORTHCUTT and SALARIO, JJ., Concur.

      Negron v. State, 306 So.2d 104 (Fla. 1974), receded from on other grounds by F.B. v. State, 852 So.2d 226, 229 (Fla. 2003).


text:
    Mark F. BAUGHN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3277
    District Court of Appeal of Florida, First District.
    September 25, 2018 Rehearing Denied November 8, 2018
    Robert I. Barrar of Robert I. Barrar P.A., Miami, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DENIED . See Ratliff v. State , 914 So.2d 938 (Fla. 2005).

Wolf, Kelsey, and Jay, JJ., concur.