author: HENDON, J.

text:
    Allen CADET, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-178
    District Court of Appeal of Florida, Third District.
    Opinion filed June 12, 2019. Rehearing Denied June 18, 2019
    The Law Offices of Robert David Malove, P.A., and Robert David Malove (Fort Lauderdale), for appellant.
    Ashley Moody, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES, and HENDON, JJ.
   HENDON, J.

Allen Cadet challenges the trial court's denial of his 3.800 motion to correct an illegal sentence. We affirm.

As part of a negotiated plea, Cadet was sentenced in 2008 to three years in state prison followed by five years of administrative probation, which could terminate early if he did not violate the terms. On August 28, 2010, Cadet was released from prison to begin serving the probationary portion of his split sentence. In January 2013, Cadet was arrested in Broward County for violating his Miami-Dade County probation by committing three new law violations: possession of a firearm by a convicted felon, battery on a law enforcement officer, and resisting an officer with violence. The trial court dismissed the firearm allegation and determined by a preponderance of the evidence that Cadet willfully and substantially violated probation by committing the two new offenses of battery on a law enforcement officer and resisting an officer with violence. The court revoked Cadet's probation and sentenced him to an 18-year prison term, with credit for time served. Cadet's 2018 petition to correct an illegal sentence was denied.

Cadet argues on appeal that the trial court was without jurisdiction to impose administrative probation in the first instance. Thus, he asserts that his violation of probation and subsequent sentence are based on an illegal probationary term, his sentence should be reversed, and he should be allowed to withdraw his original 2008 plea. We disagree.

Administrative probation is non-reporting probation. By law, this is a type of probation that can only be imposed by the Department of Corrections. See § 948.001, Fla. Stat (2008) ; State v. Nazario, 100 So. 3d 1246 (Fla. 4th DCA 2012). Cadet is, however, estopped from raising the issue because he initially accepted the terms of the plea, did not challenge the terms of the plea or appeal from the sentence, and he has since reaped the benefits of that plea.

This Court has upheld otherwise defective sentences when they were voluntarily accepted by the defendant as a part of a mutually advantageous agreement with the State. See, State v. Ortiz, 79 So. 3d 177 (Fla. 3d DCA 2012) (holding that a defendant who has reaped the benefit of an illegal sentence is estopped from challenging the sentence, especially in the context of a negotiated plea); see also Novaton v. State, 610 So. 2d 726, 727 (Fla. 3d DCA 1992) (holding that "a defendant who enters into a negotiated plea and sentence bargain with the prosecution thereby waives an otherwise viable double jeopardy objection to sentences which form a part of the agreement"); Jacobs v. State, 522 So. 2d 540, 541 (Fla. 3d DCA 1988) (affirming the denial of a motion to correct an illegal sentence as a result of a negotiated plea); Preston v. State, 411 So. 2d 297, 298-99 (Fla. 3d DCA 1982) (holding that a defendant who should have been sentenced as a youthful offender but was placed on probation waived his right to question the legality of a probation he enjoyed and violated).

Although the imposition of administrative probation was incorrect, Cadet has waived any challenge to that probation by accepting the benefits of the 2008 plea. Furthermore, his subsequent violation was significant and properly resulted in revocation of probation and imposition of a legal sentence. Cadet cannot claim the original 2008 sentence was illegal in an attempt to vacate that plea, to avoid the consequences of his new criminal offenses.

Affirmed.


source: Caselaw Access Project

author: B.L. Thomas, C.J.

license: Public Domain

text:
    David L. ROSS, Appellant, v. CITY OF JACKSONVILLE, Appellee.
    No. 1D18-2994
    District Court of Appeal of Florida, First District.
    June 12, 2019
    Brett A. Hastings, Jacksonville Beach, for Appellant.
    R. Anthony Salem, Assistant General Counsel, City of Jacksonville, Jacksonville, for Appellee.
   B.L. Thomas, C.J.

David Ross appeals the trial court's order which granted summary judgment to the City of Jacksonville. The order ruled that the city was not liable for injuries sustained by Appellant, whose vehicle was struck by a fleeing suspect eluding law-enforcement officer. The action arose when the suspect, a fourteen-year-old driver, sped out of a driveway, momentarily losing control, and drove directly toward several pedestrians who barely managed to avoid the car and escape serious injury. Appellant sued the Jacksonville Sheriff's Office alleging that the officers' overly aggressive pursuit breached their duty to conduct law enforcement activities in a manner that does not needlessly endanger Duval County citizens.

Appellee filed a motion for summary judgment, arguing that the city was immune from suit under section 768.28(9)(d)(1), Florida Statutes. That statute provides that the employing agency of a law enforcement officer is not liable for injuries caused by a person being pursued by law enforcement, if 1) the pursuing officers did not act in a manner "which is so reckless or wanting in care as to constitute a disregard of human life, human rights, safety, or the property of another"; 2) the pursuing officers who initiated pursuit reasonably believed the person fleeing had committed a forcible felony as defined in section 776.08, Florida Statutes ; and 3)

the pursuit was conducted in accord with a written agency policy that "contain[ed] specific procedures concerning the proper method to initiate and terminate high-speed pursuit (and the) law enforcement officer ...received instructional training" on the policy.

Appellee attached to the motion an affidavit from the officer who initiated the pursuit, in which the officer stated that he saw a vehicle speed out of a driveway, causing the front end of the vehicle to spin around and causing three or four pedestrians in front of the driveway to jump to avoid being hit by the vehicle. Appellee also attached an operational order describing the Jacksonville Sheriff's policy for vehicle pursuits. In addition, the City provided an affidavit from another sheriff's officer stating that after reviewing the pursuing officer's report, he determined that the pursuit was conducted in compliance with the Sheriff's Office's standards.

At the summary judgment hearing, Appellee described the route of the pursuit based on the vehicle-pursuit report. After the initial officer began pursuit, the suspect continued driving down side streets, passing other pedestrians who also jumped out of the way, before the first officer lost sight of the driver and radioed other officers to look for the fleeing car. The suspect and law enforcement reached speeds of eighty miles per hour. The car made a U-turn and drove on pedestrian sidewalks, hit a vehicle and continued driving before another officer threw a "stop stick" to puncture the tires of the fleeing car. The fleeing car hit Appellee's car, and the driver of the fleeing car got out and ran before being apprehended by the officer who initiated the pursuit. The pursuit covered a total of 5.5 miles. Appellee noted that the officer indicated in the report that he initiated pursuit because the driver committed "Felony, fleeing, eluding and reckless driving."

The trial court found that the evidence viewed in the light most favorable to Appellant did not establish that the pursuit was conducted in a manner so reckless and wanton as to constitute a disregard for human life, "[g]iven the limited distance, brief duration, and the exercise of judgment by [the initial officer] ... in his decision to terminate and then reinitiate pursuit in cooperation with other officers." The court also found that the initial officer pursued the driver because he saw the car almost strike pedestrians, and thus the driver witnessed an aggravated assault, a forcible felony. The court found that the Jacksonville Sheriff's Office's vehicle-pursuit policies contained detailed provisions on initiating and terminating pursuit, and there was no factual dispute regarding these policies. The court ruled that Appellee was not liable for Appellant's injury under section 768.28(9)(d), Florida Statutes, and because there were no genuine issue of material disputed fact, the court granted Appellee's motion for summary judgment.

Analysis

"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. Palms West Condominium Ass'n, 736 So. 2d 58 (Fla. 1st DCA 1999) ). Thus, our standard of review is de novo. Id.

Appellant first asserts that a material factual dispute existed as to whether the initial officer acted so recklessly or in a manner "wanting in care as to constitute a disregard of human life, human rights, safety or the property of another." Section 768.28(9) (d)(1), Florida Statutes. Appellee argues that the undisputed facts do not establish that the pursuit was so reckless as to constitute a disregard for human life as so described in the controlling statute.

The question of whether an officer acted with disregard for human rights may be answered summarily as a question of law, or decided by a trier of fact, depending on the facts presented. See McGhee v. Volusia Cty. , 679 So. 2d 729, 733 n.7 (Fla. 1996) (holding that "the question must be put to the fact-finder whether [a sheriff's deputy] acted in bad faith, with malicious purpose, or in a manner exhibiting wanton or willful disregard of human rights, safety, or property" but noting "that this holding is based on the questions presented by the facts at hand. There may be cases in which summary dismissal would be proper based on different facts").

The current version of section 768.28(9)(d) was enacted in 2006. Ch. 2006-234, Laws of Fla. No appellate court has interpreted that section. Section 768.22(9)(a), a similar provision, grants immunity from liability and suit to individual state officers, agents, and employees acting within the scope of employment if, inter alia, they do not act "in a manner exhibiting wanton and willful disregard of human rights, safety, or property." While this language is slightly different from the language of subsection 768.28(9)(d)(1), both subsections provide immunity on similar bases, that is, whether the state officer or employee engaged in conduct that was even more egregious than gross negligence. Elliott v. Dugger, 579 So. 2d 827, 830 (Fla. 1st DCA 1991). Thus, cases interpreting section 768.28(9)(a) are informative and instructive when interpreting subsection (9)(d)(1).

In Dugger , this court held that acts of gross negligence do not rise to the level of recklessness to violate section 768.28(9), as " section 768.28(9)(a) grants immunity to a state employee who merely acts with gross negligence and not the greater degree of culpability set forth in the statute." 579 So. 2d at 830. The lesser culpability of gross negligence is defined as "that course of conduct which a reasonable and prudent [person] would know would probably and most likely result in injury to persons or property." Carraway v. Revell , 116 So. 2d 16, 22 (Fla. 1959).

Here, the undisputed facts viewed in the light most favorable to Appellant do not establish that the initial officer's actions were so reckless as to constitute disregard for human life, rights, safety, or property. Appellant asserts that because the officer drove eighty miles per hour down roads that are typically crowded, the officer acted recklessly. But this argument, if accepted, would render all high-speed chases on public roads by law enforcement reckless, and this proposition was rejected in City of Miami v. Horne , 198 So. 2d 10, 12 (Fla. 1967) (rejecting the argument that an officer engaged in "reckless conduct simply because he pursued the offender, on the theory that mere pursuit creates a highway danger," and holding that a ticketing officer chasing a fleeing motorist at ninety-five miles per hour in a thirty-mile-per-hour zone was not negligent, rejecting argument that officers must pursue offenders "at lawful rates of speed").

While it is correct that the high-speed chase was found to deprive officers of immunity in City of Pinellas Park v. Brown , 604 So. 2d 1222 (Fla. 1992), that pursuit covered five times the distance as in the present case, reached speeds of 120 miles per hour and involved officers who disregarded multiple traffic signals and an order to terminate pursuit. The fleeing suspect in that case hit the deceased victims' car at 90-miles-per-hour, killing two people. More significantly, the supreme court in Pinellas Park created a common-law duty of care as a matter of public policy that imposed liability for negligence, a much lower legal threshold than the legislature has since required in section 768.28(9)(d)(1), Florida Statutes, which provides immunity unless officers engaged in conduct that demonstrated recklessness and was so wanting in care as to show a "disregard for human life, rights and property." Thus, the legal duty the court created in Pinellas Park as public policy was far broader and more inclusive than the duty of care enacted by the legislature in granting sovereign immunity for officers in conducting high-speed pursuit in section 768.28(9)(d)(1), Florida Statutes. In addition to the distinguishing facts of Pinellas Park , that decision's limitation of sovereign immunity cannot control over the legislature's authority to define sovereign immunity of law enforcement officers pursuing suspects who then injure innocent third parties.

Under the state's strict separation of powers in Article II, section three, Florida Constitution, the legislature is supreme in deciding when and how to limit or waive sovereign immunity:

The doctrine of sovereign immunity, which provides that a sovereign cannot be sued without its own permission, has been a fundamental tenet of Anglo-American jurisprudence for centuries and is based on the principle that "the King can do no wrong." The doctrine was a part of the English common law when the State of Florida was founded and has been adopted and codified by the Florida Legislature. The original justification for incorporating the doctrine into American jurisprudence was the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. Florida law has enunciated three policy considerations that underpin the doctrine of sovereign immunity. First is the preservation of the constitutional principle of separation of powers. Second is the protection of the public treasury. Third is the maintenance of the orderly administration of government.
However, the Florida Constitution provides that the Legislature can abrogate the state's sovereign immunity. See art. X, § 13, Fla. Const. ("Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating."). Only the Legislature has authority to enact a general law that waives the state's sovereign immunity. Further, any waiver of sovereign immunity must be clear and unequivocal. In interpreting such legislative waivers of sovereign immunity, this Court has stated that it must strictly construe the waiver. Moreover, waiver will not be found as a product of inference or implication.

Am. Home Assur. Co. v. Nat'l R.R. Passenger Corp. , 908 So. 2d 459, 471-72 (Fla. 2005) (emphasis added) (internal quotations and citations omitted).

Cases describing what actions do not constitute negligence under the earlier standard are instructive here because if negligence was not established in those cases, similar facts could never rise to the level required to show a waiver of sovereign immunity under section 768.28(9)(d)(1), Florida Statutes. For example, pursuits involving speeding on public roads at eighty miles per hour while violating a department policy were deemed not to be negligent in Porter v. State, Dep't of Agriculture & Consumer Servs. , 689 So. 2d 1152 (Fla. 1st DCA 1997), much less rising to a level above gross negligence required to constitute a disregard for human life under section 768.28(9)(d).

The pursuit in the present case was conducted in a manner "necessary to apprehend the offender" without exceeding "proper and rational bounds" of conduct. Horne , 198 So. 2d at 13. Thus, Appellee satisfied the first prong of section 768.28(9)(d), Florida Statutes.

On the second prong, whether the officer reasonably believed the fleeing motorist had committed a forcible felony as defined in section 776.08, Appellant argues that documents prepared contemporaneous to the incident demonstrate that the officer initiated the pursuit because the motorist committed "reckless driving" and "fleeing and eluding," neither of which are forcible felonies under section 776.08, Florida Statutes. Appellee argues that its affidavit stated that three or four people had to jump out of the way of the fleeing car when it backed out of a driveway, demonstrating that the officer observed an aggravated assault, a forcible felony as defined in section 776.08, Florida Statutes. Appellee argues that the police report forms limited officers to listing two reasons for initiating and did not require them to list every reason, and therefore the officer's listing of "reckless driving" and "fleeing and eluding" on the form does not establish that he did not observe an aggravated assault.

The officer stated in his affidavit that he initially saw the vehicle in question pull out of a driveway, causing its front end to spin around, and three or four pedestrians had to jump out of the way to avoid serious injury. We hold therefore that the officer witnessed an aggravated assault, a forcible felony under section 776.08, Florida Statutes. See § 784.021(1)(a), Fla. Stat. (2019) (an aggravated assault includes an assault with a deadly weapon).

Section 768.28(9)(d) does not require an arrest or citation for a forcible felony, but only that the pursuing officer reasonably believe the person being pursued had committed an aggravated felony. The Vehicle Pursuit Report and affidavit establish that the officer observed a forcible felony, a fact not disputed by the absence of an arrest or citation for aggravated assault. Thus, Appellee also met its burden regarding the second prong under Section 768.28(9)(d)(2).

On the third prong, whether the pursuit was conducted in accordance with a written policy governing high-speed pursuit adopted by the employing agency, Appellant argues that officers violated the relevant vehicle-pursuit policy. Appellant first argues that the officers violated a section of the policy that requires officers to evaluate whether the risk to public inherent in pursuit is offset by the risk to the public by not immediately apprehending the violator. But the arrest report and the officer's affidavit indicate that members of the public were at risk because of the driver's actions. The undisputed facts therefore show that officers considered public safety in compliance with the agency's written policy.

Appellant next argues that officers violated a section of the policy prohibiting officers from continuing to follow a violator in an attempt to maintain visual observation once pursuit has been terminated. The evidence established, however, that the initial officer stopped pursuing the fleeing vehicle when it left his sight, and that he only continued pursuit after the vehicle reentered his sight. He did not follow the suspect in an attempt "to maintain visual observation," and therefore the officer acted in accordance with the written policy.

Appellant also argues the officers violated the policy by failing to terminate pursuit when the risks of pursuit outweighed the need for apprehension. But in addition to the initial endangerment of the pedestrians near the driveway, the arrest report stated that the fleeing vehicle ran several cars off the road and repeatedly drove on the sidewalk to get around traffic. The evidence thus established that the fleeing driver endangered the public before the pursuit and continued to endanger the public during pursuit, and as such established that the need for apprehension continued throughout the pursuit. The evidence does not establish that the officers violated written policy and does not dispute the lieutenant's assessment in his affidavit that the pursuit was conducted in accordance with the policy. The undisputed facts viewed in the light most favorable to Appellant therefore establish that the officers acted in accordance with a written policy, satisfying the third prong of section 768.28(9)(d), Florida Statutes.

Finally, Appellant argues that the trial court applied an incorrect "qualified immunity" standard instead of an "immunity from liability" standard. Appellant is correct that, unlike section 768.28(9)(a), which grants individual state officers immunity from judgment and suit in certain cases, section 768.28(9)(d) only grants employing agencies immunity from judgment. However, in entering summary judgment, the court properly determined that Appellee was not liable based on the undisputed material facts. The court applied the correct statute, and ruled that based on the presented facts, Appellee satisfied the elements of section 768.28(9)(d), and entered judgment in Appellee's favor. The court did not rule that Appellee was immune from suit, but rather ruled that based on the undisputed facts Appellee was immune from judgment, in accordance with section 768.28(9)(d), Florida Statutes.

The undisputed facts establish that Appellee was not liable under section 768.28(9)(d), Florida Statutes. Based on the undisputed facts, no reasonable jury could have found that the officers acted recklessly or with such a lack of care as to demonstrate a disregard for human life, safety or property. Thus, summary judgment was proper because sovereign immunity was not waived based on these facts under section 768.28(9)(d).

AFFIRMED .

Jay, J., concurs; Bilbrey, J., concurs in result with opinion.

Bilbrey, J., concurring in result.

I agree with much of what the majority concludes and with the result reached. I write to discuss the second prong for an "employing agency of a law enforcement officer" to claim immunity under section 768.28(9)(d), Florida Statutes, that is whether "the officer reasonably believes that the person fleeing has committed a forcible felony" and to explain that while I may disagree with some of the majority's reasoning on this issue, I nonetheless believe we are correct to affirm.

I agree with the majority that the crimes listed on the police report forms were not conclusive, and the officers could have been in pursuit after observing a forcible felony even though no forcible felony was listed on the forms. Appellant's only argument regarding the forcible felony prong for immunity is that we should ignore the purported "self-serving" statements by the Jacksonville Sheriff's officers. I agree with the majority that we are correct to consider the reports and statements contained therein.

The majority opinion holds "that the officer witnessed an aggravated assault, a forcible felony under section 776.08, Florida Statutes." Majority op. at 7. I do not necessarily agree, but still believe we are correct to affirm. An aggravated assault can be proven with evidence of an assault with a deadly weapon. § 784.021(1)(a), Fla. Stat. For almost a hundred years, Florida law has held that intentionally putting a victim in fear of getting hit by an automobile qualifies as aggravated assault. See Williamson v. State , 92 Fla. 980, 111 So. 124 (1926). But here proof of intent is questionable. See § 784.011(1) (defining assault, in part, as "an intentional, unlawful threat by word or act to do violence to the person of another"). To prove an assault, while there is no requirement to show that the perpetrator intended "to do violence to the victim," it must be shown that there was "an intentional threat that creates a fear of imminent violence." Pinkney v. State , 74 So. 3d 572, 576 (Fla. 2d DCA 2011) (en banc); see also Williams v. State , 238 So. 3d 915 (Fla. 1st DCA 2018).

Undoubtedly, the pedestrians who were almost hit by the fleeing driver were afraid of being struck by the vehicle. But did the fourteen-year-old driver intend to put the pedestrians in fear of being struck or did the driver recklessly endanger the pedestrians? See § 316.192(1)(a), Fla. Stat. (defining reckless driving as "willful or wanton disregard for the safety of persons or property"); Anderson v. State , 247 So. 3d 680 (Fla. 1st DCA 2018), rev. granted , SC18-1059, 2018 WL 6681770 (Fla. Dec. 19, 2018) (distinguishing the crime of reckless driving from aggravated assault). While aggravated assault is a forcible felony, reckless driving is not. § 776.08, Fla. Stat. On this record, I do not believe we can say a forcible felony was committed, and I would not go as far as the majority in definitively concluding a forcible felony occurred.

However, the Appellant does not make this argument regarding proof of intent being lacking. Barring some fundamental error, not present here, we can only reverse when "an appellant raises claims of error." D.H. v. Adept Cmty. Servs., Inc. , 271 So.3d 870, 880, 2018 WL 5660595, *6 (Fla. Nov. 1, 2018). Appellant does argue that the pursuit occurred because of reckless driving, but I do not believe the intent issue I mention was raised by Appellant such that we could reverse on that ground. See Doe v. Baptist Primary Care, Inc. , 177 So. 3d 669 (Fla. 1st DCA 2015) (holding that an appellate court will only consider points raised in the initial brief or the points are deemed waived). I therefore believe that affirmance is the correct result.

      Of course any statement in support of summary judgment would likely be self-serving. See Fla. R. Civ. P. 1.510(c) (defining "summary judgment evidence" to be used by the proponent of a motion for summary judgment).


author: LAMBERT, J.

text:
    GREEN TREE SERVICING, LLC, Appellant, v. Jill-Capri SIMMS, Mortgage Electronic Registration Systems, Inc., as Nominee for Countrywide Bank, Florida Housing Finance Corporation and Eden Isle Homeowners' Association, Inc., Appellees.
    Case No. 5D17-725
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 14, 2019 Rehearing Denied June 27, 2019
    Ronald M. Gache and Ileen J. Cantor, of Shapiro, Fishman & Gache, LLP, Boca Raton, and Melissa A. Giasi, of Kass Shuler, P.A., Tampa, for Appellant.
    Debi V. Rumph, of The Law Offices of Debi V. Rumph, Orlando, for Appellee, Jill-Capri Simms.
    No Appearance for Other Appellees.
   LAMBERT, J.

Green Tree Servicing, LLC ("Green Tree") appeals the trial court's involuntary dismissal of the mortgage foreclosure action it brought against the borrower, Jill-Capri Simms. At the close of Green Tree's case-in-chief, the court granted Simms's motion to dismiss, finding that Green Tree had misapplied a pre-suit $ 9203.47 payment allegedly made by Simms to cure the then-existing default on the subject promissory note and mortgage. Green Tree argues that the trial court abused its discretion in excluding certain business records that, if admitted into evidence, would have shown that Simms did not make the $ 9203.47 payment and thus failed to cure the default. It further asserts that the court erred by improperly weighing the evidence when granting Simms's motion for involuntary dismissal. Because Green Tree's first argument is both meritorious and dispositive, we reverse the final order of involuntary dismissal and remand for a new trial. As a result, we find it unnecessary to address Green Tree's second argument.

At trial, Green Tree called Simms as its first witness. The original note and a copy of the mortgage at issue were admitted into evidence through her without objection. Also admitted into evidence was a March 14, 2012 default letter sent by Green Tree to Simms pursuant to paragraph 22 of the mortgage. This letter provided Simms thirty days to pay the sum of $ 6450.48 to cure the existing default on the note and mortgage resulting from her alleged failure to pay certain monthly mortgage payments; otherwise, the entire balance owed on the note would be accelerated. When questioned at trial about payments that she may have made on the note and mortgage during 2012, Simms testified that she had made some payments but could not specifically recall how much she had paid.

Green Tree next called Lacelia Knight to testify. Knight had worked as a "senior collector" for Green Tree for five years and, at the time of trial, was employed by Green Tree as a "foreclosure mediation representative." Through Knight, Green Tree's loan payment history, reflecting the payments received by Green Tree on the loan and any disbursements made by it, was admitted into evidence under the business records exception to the hearsay rule, as codified in section 90.803(6)(a), Florida Statutes (2016). Pertinent here, the payment history reflected that on April 23, 2012, Green Tree received a payment on this loan account in the sum of $ 9203.47. Knight explained that the coding entry in the payment history showed that this payment was not personally made by Simms. Knight further testified that Green Tree applied the payment towards Simms's loan escrow balance, not to pay or otherwise satisfy the $ 6450.48 default amount described in its March 14, 2012 letter to Simms. The trial court would later grant the involuntary dismissal based upon this "misapplication."

To explain this $ 9203.47 payment received and why it was not applied to cure the default, Green Tree next sought to admit into evidence, also under section 90.803(6)(a), its collection notes from August 2011 through December 2015. Knight testified as to how Green Tree keeps collection notes as a part of its regularly conducted business activity and that it was Green Tree's regular practice to do so. She also testified to her first-hand, extensive knowledge and experience as to how Green Tree contemporaneously generates and enters its collection notes. Knight explained that whenever Green Tree makes an outward call to the borrower or receives inbound calls or information into its system, notes about each event are contemporaneously entered into Green Tree's records by its employees, and that once these collection notes are entered, they cannot be, nor are they, edited or redacted.

Pertinent to the specific issue before us surrounding the $ 9203.47 payment and construing the evidence most favorably to Green Tree, the collection notes, if they had been admitted into evidence, would have shown that approximately two weeks after Green Tree sent to Simms the aforementioned March 14 default letter, Simms telephoned Green Tree, advising that the master bedroom of the mortgaged property had been damaged by a flood and that she had filed a damage claim with her insurer, Universal Insurance Company. Thereafter, on April 11, 2012, the records indicated that Green Tree received estimates from an adjuster with the insurer, and from Simms's contractor, Paul Davis Restoration, that the necessary work to repair the bedroom would cost $ 9203.47.

Slightly less than two weeks later, the collection notes reflected that a check for $ 9203.47 was received by Green Tree from Universal Insurance Company to pay for Simms's water damage claim. Green Tree also received a copy of a work authorization document from Paul Davis Restoration. The collection notes reflected that on April 24, 2012, Simms notified Green Tree to contact her contractor directly "if anything else is needed."

Two days later, the collection notes showed that Green Tree disbursed a check payable to Simms or Paul Davis Restoration in the amount of $ 4601.73, which is approximately one-half of the $ 9203.47 Green Tree had previously received from Simms's insurer. Thereafter, in August 2012, after Green Tree had received from the contractor color photographs of the work performed, paid receipts, and a certificate of completion demonstrating that the repair work had been successfully accomplished, it issued a second check, this time in the amount of $ 4601.74, again payable to Simms or Paul Davis Restoration, thus totaling the $ 9203.47 that Green Tree had previously received.

Despite these collection notes appearing to be wholly relevant to address or refute Simms's claim that she personally had paid the sum of $ 9203.47 to cure the aforementioned default in the note and mortgage, Simms objected to their admissibility as being "irrelevant." She also objected that the collection notes should not be admitted because they were a summary of records prepared under section 90.956, Florida Statutes, without Green Tree having provided her with the statutorily-required notice of its intent to use summaries. Lastly, Simms argued that the collection notes were inadmissible because they were prepared "in anticipation of litigation." The trial court found the collection notes to be "unreliable" and excluded them from evidence.

"A trial court has wide discretion in determining the admissibility of evidence, and, absent an abuse of discretion, the trial court's ruling on evidentiary matters will not be overturned." Bank of N.Y. Mellon v. Johnson , 185 So.3d 594, 597 (Fla. 5th DCA 2016) (quoting LaMarr v. Lang , 796 So.2d 1208, 1209 (Fla. 5th DCA 2001) ). That discretion, however, is limited by the rules of evidence. Id. (quoting Michael v. State , 884 So.2d 83, 84 (Fla. 2d DCA 2004) ). We conclude that the trial court here abused its discretion. The witness, Knight, sufficiently laid the predicate for the admissibility of these records, testifying that these collection notes were contemporaneously made at the time of the event, they were kept in the course of Green Tree's regularly conducted business activity by a person with knowledge, and it was Green Tree's regular practice to create these records. Moreover, Knight was clearly "well enough acquainted with the activity to give the testimony," Berdecia , 169 So.3d at 213, having personally used the same process in preparing similar collection notes entries for Green Tree for five years.

"Once the party offering the evidence lays a predicate pursuant to section 90.803(6)(a), the burden is on the party opposing admission to prove the untrustworthiness of the report." Nimmons v. State , 814 So.2d 1153, 1154-55 (Fla. 5th DCA 2002) (citing Love v. Garcia , 634 So.2d 158 (Fla. 1994) ). Simms failed to meet her burden to show that the records were untrustworthy. First, contrary to her argument, these records were highly relevant to Green Tree's case as they would appear to completely negate Simms's claim or defense that she "cured," pre-suit, the default described in the March 14 letter by paying the sum of $ 9203.47. As argued by Green Tree, its collection notes instead accurately showed that it was Simms's insurer, and not Simms, that paid to Green Tree the $ 9203.47 for the purpose of settling Simms's water damage claim. And, contrary to the trial court's basis for involuntarily dismissing this action, this evidence would support Green Tree's position that it did not misapply this $ 9203.47 payment but, rather, appropriately paid this money to Simms and her contractor to repair the water damage to Simms's home, as it was required to do under paragraph 5 of the mortgage.

Second, these collection notes were not summaries prepared under section 90.956, Florida Statutes, but were the actual real-time entries. Stated differently, Green Tree did not prepare a separate summary of the collection notes and thereafter seek to enter the summary, rather than the notes themselves, into evidence. Finally, contextually, the pertinent entries in the collection notes as to Simms's water damage claim described above were clearly not prepared in "anticipation of litigation" regarding Simms's alleged separate failure to pay certain monthly payments due on her note and mortgage.

In conclusion, the collection notes should have been admitted into evidence. If they had been, Simms's motion for involuntary dismissal would have lacked merit because the trial court would have been required to view the evidence and all inferences of fact, namely that Simms did not cure the default because she did not make this $ 9203.47 payment, in the light most favorable to Green Tree, as the non-moving party. See Bank of N.Y. Mellon v. Burgiel , 248 So.3d 237, 238 (Fla. 5th DCA 2018). Accordingly, we reverse the final order of involuntary dismissal and, as requested by Green Tree, remand for a new trial.

REVERSED and REMANDED for further proceedings consistent with this opinion.

COHEN and HARRIS, JJ., concur.

      This exception allows a party to offer into evidence a memorandum, report, record, or data compilation of acts or events made at or near the time of the acts or events described therein, by a person with knowledge, if kept in the course of regularly conducted business activity and if it was the regular practice of that business to make such a memorandum, report, etc., notwithstanding the availability of the declarant as a witness. Nationstar Mortg., LLC v. Berdecia , 169 So.3d 209, 212-13 (Fla. 5th DCA 2015) (quoting Yisrael v. State , 993 So.2d 952, 956 (Fla. 2008) ).

      Section 90.956, Florida Statutes (2015), provides, in pertinent part, that:
      When it is not convenient to examine in court the contents of voluminous writings, recordings, or photographs, a party may present them in the form of a chart, summary, or calculation by calling a qualified witness. The party intending to use such a summary must give timely written notice of his or her intention to use the summary ... and shall make the summary and the originals or duplicates of the data from which the summary is compiled available for examination or copying, or both, by other parties ....

      Paragraph 5 of the mortgage reads, in pertinent part:
      Property Insurance ...
      ....
      In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property ....
      (Emphasis added).


author: PER CURIAM.

text:
    John Dennis ENLOW and Lisa Enlow, Appellants, v. E.C. SCOTT WRIGHT, P.A. and Moletteire Injury Law, P.A., Appellees.
    Case No. 5D18-105
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 14, 2019
    Elliot B. Kula, W. Aaron Daniel and William D. Mueller, of Kula & Associates, P.A., Miami, for Appellants.
    Bennett C. Lofaro and Yvette R. Lavalle, of Boyd, Richards, Parker & Colonnelli, P.L., Tampa, for Appellee, E.C. Scott Wright, P.A.
    Clinton S. Payne and Maureen G. Pearcy, of Hinshaw & Culbertson LLP, Coral Gables, for Appellee, Moletteire Injury Law, P.A.
   PER CURIAM.

In this legal malpractice case, John Dennis Enlow and Lisa Enlow appeal the trial court's order dismissing their amended complaint with prejudice on statute of limitations grounds. Specifically, they argue that the trial court erred by relying on facts establishing the accrual date of the legal malpractice claim that were outside the four corners of the complaint. We agree and reverse.

When reviewing a motion to dismiss, the court is strictly confined to the allegations contained within the four corners of the complaint and its attachments. Busch v. Lennar Homes, LLC, 219 So.3d 93, 94 (Fla. 5th DCA 2017) (citing Morin v. Fla. Power & Light Co., 963 So.2d 258, 260 (Fla. 3d DCA 2007) ). The court must assume that the well-pleaded allegations in the complaint are true, and it must afford the plaintiff the benefit of all reasonable inferences and conclusions that can be drawn from the facts in the complaint. Poole v. City of Port Orange, 33 So.3d 739, 740 (Fla. 5th DCA 2010) ; Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13 (Fla. 3d DCA 2002) ; Meyers v. City of Jacksonville, 754 So.2d 198, 202 (Fla. 1st DCA 2000) ; Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA 1996). A "motion to dismiss is not a motion for summary judgment," and a trial court may not rely upon depositions, affidavits, or other forms of evidence or speculation as to whether the allegations in the complaint "will ultimately be provable." Solorzano v. First Union Mortg. Corp., 896 So.2d 847, 850 (Fla. 4th DCA 2005) (citing Atkins v. Topp Telecom, Inc., 873 So.2d 397, 399 (Fla. 4th DCA 2004) ); accord Baycon Indus., Inc. v. Shea, 714 So.2d 1094, 1095 (Fla. 2d DCA 1998) (citing Thompson v. Martin, 530 So.2d 495 (Fla. 2d DCA 1988) ). Moreover, the attachment of documents to the motion to dismiss does not allow for their consideration in deciding the motion. Nationstar Mortg., LLC v. Sunderman, 201 So.3d 139, 141 (Fla. 3d DCA 2015).

While the statute of limitations may be raised as an affirmative defense in a motion to dismiss for failure to state a claim, it is successfully raised "only where its violation appears on the face of the complaint or its exhibits." Toledo Park Homes v. Grant, 447 So.2d 343, 344 (Fla. 4th DCA 1984) (citing Estate of James v. Martin Mem'l Hosp., 422 So.2d 1043, 1045 (Fla. 4th DCA 1982) ). The statute of limitations for legal malpractice is two years "provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence." § 95.11(4)(a), Fla. Stat. (2014). The statute of limitations begins to run when the cause of action accrues. § 95.031, Fla. Stat. (2014). This occurs "when the last element constituting the cause of action occurs." § 95.031(1), Fla. Stat. (2014). In this case, the cause of action accrued on the date the Enlow's appeal was dismissed. This date, however, was not included in the complaint or its attachments, nor was it incorporated by reference. See Landmark Funding, Inc. ex rel. Naples Syndications, LLC v. Chaluts, 213 So.3d 1078, 1079-80 (Fla. 2d DCA 2017) ; Neapolitan Enters., LLC v. City of Naples, 185 So.3d 585, 589-90 (Fla. 2d DCA 2016) ; State v. Beach Blvd. Auto. Inc., 139 So.3d 380, 387 (Fla. 1st DCA 2014) ; cf. One Call Prop. Servs. Inc. v. Sec. First Ins. Co., 165 So.3d 749, 752 (Fla. 4th DCA 2015) ("But where the terms of a legal document are impliedly incorporated by reference into the complaint, the trial court may consider the contents of the document in ruling on a motion to dismiss." (citing Veal v. Voyager Prop. & Cas. Ins. Co., 51 So.3d 1246, 1249 (Fla. 2d DCA 2011) )). Instead, it was included in a document attached to the motion to dismiss that was improperly relied upon by the court. See Busch, 219 So.3d at 94 (citing Morin, 963 So.2d at 260 ); Sunderman, 201 So.3d at 141.

Because nothing within the four corners of the complaint conclusively showed that the statute of limitations had run on the Enlows' malpractice claim, it was error to grant the motion to dismiss on those grounds.

REVERSED AND REMANDED.

BERGER, WALLIS and EISNAUGLE, JJ., concur.

      The Florida Supreme Court has adopted a bright-line rule that an action for legal malpractice based upon underlying litigation accrues when the final judgment becomes final. See Silvestrone v. Edell, 721 So.2d 1173, 1175-76 (Fla. 1998).


text:
    Peter Allen ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-200
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 14, 2019 Rehearing Denied May 31, 2019 Rehearing Denied July 1, 2019
    Peter Allen Anderson, Indiantown, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Due to Appellant's apparent abuse of the legal process by his abusive, repetitive, malicious, or frivolous pro se filings attacking his judgment(s) and sentence(s) in Seminole County Circuit Court Case Number 14-CF-0877-A, this Court issued an order directing Appellant to show cause why he should not be prohibited from future pro se filings. See State v. Spencer , 751 So.2d 47, 48 (Fla. 1999). Having carefully considered the response and finding it fails to show cause why sanctions should not be imposed, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, Appellant is prohibited from filing with this Court any further pro se filings concerning the above referenced case. The Clerk of this Court is directed not to accept any further pro se filings concerning the referenced case. Any future filings regarding the referenced case will be summarily rejected by the Clerk, unless filed by a member in good standing of The Florida Bar. See Isley v. State , 652 So.2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary proceedings. See § 944.279(1), Fla. Stat. (2018) ; Simpkins v. State , 909 So.2d 427, 428 (Fla. 5th DCA 2005).

FURTHER PRO SE FILINGS PROHIBITED.

COHEN, LAMBERT and EDWARDS, JJ., concur.


text:
    Peter Allen ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-201
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 14, 2019 Rehearing Denied May 31, 2019 Rehearing Denied July 1, 2019
    Peter Allen Anderson, Indiantown, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Due to Appellant's apparent abuse of the legal process by his abusive, repetitive, malicious, or frivolous pro se filings attacking his judgment(s) and sentence(s) in Seminole County Circuit Court Case Number 14-CF-0877-A, this Court issued an order directing Appellant to show cause why he should not be prohibited from future pro se filings. See State v. Spencer , 751 So.2d 47, 48 (Fla. 1999). Having carefully considered the response and finding it fails to show cause why sanctions should not be imposed, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, Appellant is prohibited from filing with this Court any further pro se filings concerning the above referenced case. The Clerk of this Court is directed not to accept any further pro se filings concerning the referenced case. Any future filings regarding the referenced case will be summarily rejected by the Clerk, unless filed by a member in good standing of The Florida Bar. See Isley v. State , 652 So.2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary proceedings. See § 944.279(1), Fla. Stat. (2018) ; Simpkins v. State , 909 So.2d 427, 428 (Fla. 5th DCA 2005).

FURTHER PRO SE FILINGS PROHIBITED.

COHEN, LAMBERT and EDWARDS, JJ., concur.


text:
    Peter Allen ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-202
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 14, 2019 Rehearing Denied May 31, 2019 Rehearing Denied July 1, 2019
    Peter Allen Anderson, Indiantown, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Due to Appellant's apparent abuse of the legal process by his abusive, repetitive, malicious, or frivolous pro se filings attacking his judgment(s) and sentence(s) in Seminole County Circuit Court Case Number 14-CF-0877-A, this Court issued an order directing Appellant to show cause why he should not be prohibited from future pro se filings. See State v. Spencer , 751 So.2d 47, 48 (Fla. 1999). Having carefully considered the response and finding it fails to show cause why sanctions should not be imposed, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, Appellant is prohibited from filing with this Court any further pro se filings concerning the above referenced case. The Clerk of this Court is directed not to accept any further pro se filings concerning the referenced case. Any future filings regarding the referenced case will be summarily rejected by the Clerk, unless filed by a member in good standing of The Florida Bar. See Isley v. State , 652 So.2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary proceedings. See § 944.279(1), Fla. Stat. (2018) ; Simpkins v. State , 909 So.2d 427, 428 (Fla. 5th DCA 2005).

FURTHER PRO SE FILINGS PROHIBITED.

COHEN, LAMBERT and EDWARDS, JJ., concur.


text:
    Kenneth R. MCCORMICK, Petitioner, v. Makrim SALFITY, Respondent.
    Case No. 5D19-211
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 14, 2019
    Kenneth R. McCormick, St. Augustine, pro se.
    Makram Salfity, New Palestine, IN., pro se.

      Respondent's first name in the circuit court's final order under review is spelled "Makrim"; however, he spells his first name "Makram."

   LAMBERT, J.

Petitioner, Kenneth R. McCormick, appearing pro se, seeks second-tier certiorari review of a final order entered by the circuit court in its appellate capacity summarily affirming a county court final judgment for damages entered against him and in favor of Respondent, Makram Salfity. Based upon our limited scope of second-tier certiorari review, we deny the petition.

The case began in county court, where Respondent sued Petitioner in negligence for water damage to his condominium unit caused by the failure of a hot water heater in Petitioner's unit, which is situated directly above Respondent's. A bench trial was held, and the county court judge found the evidence "virtually undisputed" that the damage to Respondent's unit was caused by flooding from Petitioner's water heater. The court then analyzed the trial evidence under "negligence principles" and entered final judgment in favor of Respondent in the sum of $ 2690.93.

Petitioner appealed the judgment to the circuit court. In its final order summarily affirming the final judgment without elaboration, the circuit court indicated that it had reviewed and considered the parties' briefs, as well as the record on appeal, which included the county court's approved statement of the evidence. Petitioner timely filed a notice appealing the circuit court's order, which this court treated as a petition for writ of certiorari.

"In conducting a 'second-tier' [certiorari] review a district court of appeal must determine whether the circuit court afforded procedural due process and whether it applied the correct law." State Farm Fla. Ins. Co. v. Unlimited Restoration Specialists, Inc. , 84 So.3d 390, 393 (Fla. 5th DCA 2012) (citing Broward Cty. v. G.B.V. Int'l, Ltd. , 787 So.2d 838, 843 (Fla. 2001) ). In this case, the circuit court clearly provided procedural due process. Our focus is thus confined to whether the circuit court applied the correct law, which is synonymous with "observing the essential requirements of law," Haines City Cmty. Dev. v. Heggs , 658 So.2d 523, 530 (Fla. 1995) (citing Manatee Cty. v. Kuehnel , 542 So.2d 1356, 1358 (Fla. 2d DCA 1989) ), with its summary affirmance. Accordingly, second-tier certiorari relief is appropriate here only if the circuit court's final order "departed from the essential requirements of law," which would necessitate our finding that its decision "violated a clearly established principle of law resulting in a miscarriage of justice." Stamitoles v. State , 44 Fla. L. Weekly D891, D892, --- So.3d ----, 2019 WL 1498271 (Fla. 1st DCA Apr. 5, 2019) (quoting Custer Med. Ctr. v. United Auto. Ins. Co. , 62 So.3d 1086, 1092 (Fla. 2010) ; Balzer v. Ryan , 263 So.3d 189, 190 (Fla. 1st DCA 2018) ).

The pro se Petitioner's filings in our court indicate that he is treating the present proceeding as an opportunity to reargue legal errors allegedly committed by the lower courts, as well as the insufficiency of the trial evidence. However, "[s]econd-tier certiorari is not a second appeal; it is extraordinarily limited, and narrow in scope." State Farm Mut. Auto. Ins. Co. v. Pembroke Pines MRI, Inc. , 171 So.3d 814, 816 (Fla. 4th DCA 2015) (quoting Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto Ins. Co. , 103 So.3d 866, 868 (Fla. 4th DCA 2012) ). For example, mere legal error in a county court's decision does not itself justify second-tier certiorari relief. Stamitoles , 44 Fla. L. Weekly at D892 (citing State Farm Auto Ins. Co. v. CC Chiropractic, LLC , 245 So.3d 755, 758-59 (Fla. 4th DCA 2018) (recognizing that even if the county court's decision contained legal errors, "the circuit court's per curiam affirmance was not a violation of a clearly established principle of law resulting in a miscarriage of justice so as to permit our review by second-tier certiorari")). Additionally, a district court in its second-tier certiorari review capacity cannot second-guess the circuit court as to whether the county court's decision was supported by competent substantial evidence. Cf. Bencivenga v. Osceola Cty. , 140 So.3d 1035, 1036 (Fla. 5th DCA 2014).

Applying these principles, we deny the amended petition for second-tier certiorari review. Petitioner has not shown that the circuit court's summary affirmance of the county court's final judgment violated a clearly established principle of law resulting in a miscarriage of justice. See Custer , 62 So.3d at 1092.

AMENDED PETITION FOR WRIT OF CERTIORARI DENIED.

WALLIS and GROSSHANS, JJ., concur.

      Respondent also appears in this proceeding without counsel.

      There was no transcript of the trial. The approved statement of the evidence was submitted and approved consistent with Florida Rule of Appellate Procedure 9.200(b)(5).

      Petitioner was later ordered by this court to file an amended petition for writ of certiorari together with an appendix, which he did.


author: KHOUZAM, Judge.

text:
    Dalvon Deon LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4071
    District Court of Appeal of Florida, Second District.
    Opinion filed June 19, 2019
    Howard L. Dimmig, II, Public Defender, and Christine Trakas Thornhill, Special Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Dalvon Lawrence was convicted of manslaughter and firing a gun into a motor vehicle. He appeals, primarily arguing that two State witnesses were improperly allowed to testify that he had confessed his guilt to a fellow inmate. We agree that this was inadmissible hearsay, reverse the judgment, and remand for a new trial.

The State alleged that Lawrence fired a revolver in a park, and one of the bullets struck a nearby driver in the head. The police had been unable to identify any suspects in the fatal shooting until Lawrence was apprehended in a police chase about a month after the fact for a seemingly unrelated incident. He was carrying a revolver at the time of his arrest, and ballistic tests were initiated. This testing revealed that Lawrence's gun was the one that shot the driver. After more investigation, Lawrence was charged with manslaughter and shooting a firearm into a car.

At trial, the State introduced the ballistic test results for Lawrence's pistol and testimony from Lawrence's two friends who allegedly witnessed him firing it on the night of the fatality. However, examination of these friends revealed that one had recanted his previous statements to police, the other had originally claimed ignorance of the shooting, and Lawrence may not have been the only person who fired the gun in the park.

Additionally, the State had intended to introduce the testimony of DaVonte Edwards, a prisoner who shared a jail pod with Lawrence. Edwards had claimed that Lawrence confessed to him that he was responsible for the fatal shooting. Edwards was interviewed about this claim by a state attorney's investigator and a sheriff's detective. However, Edwards recanted before trial, claiming that he had lied to the state attorney's investigator and that he did not remember giving a statement to the sheriff's detective. Despite Edwards' recantation, the State still called Edwards to the stand at trial. After Edwards testified before the jury and repeated his recantation, the State called the state attorney's investigator and the sheriff's detective to testify that Edwards had told them that Lawrence had confessed. Lawrence objected on hearsay grounds, but the State successfully argued that the testimony was not hearsay because it fell under the identification exception to the hearsay rule.

" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2017). "Except as provided by statute, hearsay evidence is inadmissible." § 90.802. As an exception, "[a] statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [o]ne of identification of a person made after perceiving the person." § 90.801(2)(c).

The State first argues that the trial testimony of the interviewing investigators was not hearsay but fell under the identification exception of section 90.801(2)(c). However, that section applies to situations in which "the declarant was an eyewitness or a victim who identified the alleged perpetrator soon after the crime or soon after coming into contact with him or her." Jenkins v. State, 107 So. 3d 555, 556 (Fla. 1st DCA 2013) (quoting Davis v. State, 52 So. 3d 52, 54 (Fla. 1st DCA 2010) ). The usual "situation contemplated by the code and the case law is one where the victim sees the assailant shortly after the criminal episode and says, 'that's the man.' " Ross v. State, 993 So. 2d 1026, 1028 (Fla. 2d DCA 2008) (quoting Stanford v. State, 576 So. 2d 737, 739 (Fla. 4th DCA 1991) ); see also Ibar v. State, 938 So. 2d 451, 460-62 (Fla. 2006) (holding that the identification hearsay exception applies only to victims and witnesses to a crime).

It is clear that Edwards' statements to the interviewing investigators do not fall under the identification exception to the hearsay rules. Edwards was not present at the scene of the shooting, nor did he speak to Lawrence until over a month afterwards. It was therefore error to admit the testimony of the interviewing investigators under that exception.

Alternatively, the State argues that the interviewing investigators' testimony was not hearsay because it was offered to impeach Edwards, not for the truth of Lawrence's confession contained therein. While this argument was not raised at trial, "the appellee can present any argument supported by the record even if not expressly asserted in the lower court." State v. Hankerson, 65 So. 3d 502, 505 (Fla. 2011) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999) ).

However, this argument also fails because it was clear that the State intended to admit the officers' statements for the truth of the matter asserted. "[I]f a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded." Bradley v. State, 214 So. 3d 648, 655 (Fla. 2017) (alteration in original) (quoting Morton v. State, 689 So. 2d 259, 264 (Fla. 1997), receded from on other grounds in Rodriguez v. State, 753 So. 2d 29 (Fla. 2000) ). In determining this purpose, we consider "whether the witness's testimony surprised the calling party." Bleich v. State, 108 So. 3d 1132, 1133 (Fla. 5th DCA 2013). We also consider "(1) whether the witness's testimony affirmatively harmed the calling party, and (2) whether the impeachment of the witness was of de minimis substantive value." Bradley, 214 So. 3d at 655-56 (citing Felton v. State, 120 So. 3d 126, 129 (Fla. 4th DCA 2013) ). Here, the State knew before trial that Edwards had recanted but called him as a witness anyway. Furthermore, Edwards only testified that he lied or had no recollection of talking to investigators. He did not say anything affirmatively harmful to the State's case. Finally, the hearsay statements introduced to impeach Edwards were substantive confessions of Lawrence's guilt, which were extremely damaging to Lawrence. In fact, these statements were cited, albeit indirectly, as substantive evidence in the State's opening statement to the jury. It is therefore obvious that the State's true aim was to circumvent the hearsay rules. "Hearsay statements that are otherwise inadmissible do not become admissible as impeachment by the device of placing a witness on the stand to testify that he has no knowledge of the facts." Davis v. State, 539 So. 2d 555, 556 (Fla. 4th DCA 1989).

Having established that the testimony from the investigators who interviewed Edwards qualifies as inadmissible hearsay, we must determine whether admitting that hearsay into evidence amounted to harmless error. To succeed, "the beneficiary of the error [has the burden] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). "Application of the test requires an examination of the entire record ... including a close examination of the permissible evidence ... and ... an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict." Id.

Here, we cannot say that Lawrence's alleged confession to Edwards did not contribute to his convictions. This is especially true considering that the confession was testified to by a sheriff's deputy and an investigator for the prosecutor, not by the prison inmate who called his own reliability into doubt on the stand. "[Law enforcement] officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy. A jury is inclined to give great weight to their opinions...." Salomon v. State, 267 So. 3d 25, 32 (Fla. 4th DCA 2019) (quoting Bowles v. State, 381 So. 2d 326, 328 (Fla. 5th DCA 1980) ). And considering that Lawrence's two friends also admitted to lying at one time or another, we cannot say that the other evidence against Lawrence is overwhelming to the point of negating the effects of the hearsay errors. We therefore reverse Lawrence's convictions and remand for a new trial.

Reversed and remanded for new trial.

LaROSE, C.J., and SLEET, J., Concur.

      Lawrence also argues that documentation confirming that he shared a jail pod with DaVonte Edwards was inadmissible. Because we are reversing on other grounds, we do not reach this issue.


text:
    J.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2339
    District Court of Appeal of Florida, Third District.
    Opinion filed June 19, 2019
    Carlos J. Martinez, Public Defender, and James A. Odell, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before SALTER, LOGUE and LINDSEY, JJ.
   PER CURIAM.

Affirmed. § 877.22(1)(a), Fla. Stat. (2018) ; Miami-Dade County, Fla., Code of Ordinances §§ 21-203(i), 21-204; A.J.M. v. State, 746 So. 2d 1222, 1224-25 (Fla. 3d DCA 1999).


author: SALTER, J.

text:
    YS CATERING HOLDINGS, INC., etc., et al., Appellants, v. ATTOLLO PARTNERS LLC, etc., et al., Appellees.
    No. 3D18-1790
    District Court of Appeal of Florida, Third District.
    Opinion filed June 19, 2019
    The Bernstein Law Firm and Michael I. Bernstein and Jordan C. Kaplan, for appellants.
    Solowsky & Allen and Richard L. Allen and Lauren Kain Whaley, for appellees.
    Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
   SALTER, J.

YS Catering Holdings, Inc. ("YSCH") and Scher Duchman ("Duchman") appeal from a final order granting a motion by the appellees, Attollo Partners, LLC ("Attollo"), Rajesh Rawal ("Rawal"), and Roy Heggland ("Heggland"), to dismiss the second amended complaint by YSCH and Duchman with prejudice.

The underlying dispute involves complex business transactions and the detailed documents memorializing the parties' agreements. The trial court correctly concluded that the written documents precluded the artfully pled tort claims and other theories of liability advanced by YSCH and Duchman. We affirm the dismissal of those claims with prejudice.

Background and Procedural History

The circuit court lawsuit filed by YSCH and Duchman alleged, in its third formulation (the second amended complaint, referred to here as the "Complaint"), a long litany of claims for breach of fiduciary duty; aiding and abetting breaches of fiduciary duty; fraud in the inducement; civil conspiracy to commit fraud; declaratory judgment; injunctive relief; breach of contract; and breach of the covenant of good faith and fair dealing.

The parties on both sides were experienced, sophisticated investors and entrepreneurs. Duchman founded a company, YS Catering, Inc., which provided ready-to-eat meals to customers under the trade name of "The Fresh Diet, Inc." That company, referred to here as "Fresh Diet," entered into a series of bank loans for $1.2 million, personally guaranteed by Duchman. Under New York law, Duchman was also personally responsible for assuring that Fresh Diet made the required state tax filings and payments.

In 2013, Duchman met appellees Rawal and Heggland, who were members of Attollo. Following negotiations between Duchman and Attollo, Attollo acquired an 18% ownership interest in Fresh Diet. Duchman was a shareholder of YSCH, and that company owned a 46% interest in Fresh Diet. Rawal became the chief executive officer, and Heggland became general counsel, of Fresh Diet.

In 2014, Duchman introduced a principal of Attollo to the chief executive officer of a publicly-traded company, Innovative Food Holdings, Inc. ("IVFH"). IVFH engaged in a line of business similar to that of Fresh Diet, and soon the two companies agreed to a merger. Duchman approved and signed an Agreement and Plan of Merger ("Merger Agreement") in August 2014. The 31-page, detailed Merger Agreement (subsequently an attachment to the Complaint), contained several terms pertinent here:

• A rather typical, boilerplate merger/integration provision, section 6.3, acknowledging that the Merger Agreement and related written agreements "constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof." The provision also disclaimed any intention to benefit non-parties, and precluding amendment or waiver "except by execution of an instrument in writing signed on behalf of each Party hereto."
• Extensive representations and warranties by Fresh Diet in section 2.8, confirming the timely filing and payment of all tax returns.
• A separate Article III and thirteen sections within that Article containing detailed representations and warranties of IVFH to Fresh Diet regarding the acquiring entities. These included statements regarding the absence of undisclosed liabilities and the absence of undisclosed developments and commitments other than as set forth in the Merger Agreement and IVFH financials. As but one example pertinent to the claims in the later Complaint, section 3.10 represented that IVFH had not entered into any agreement other than in the ordinary course of business consistent with past practice.
• A section 4.4 addressing employment agreements by IVFH and Fresh Diet employees, disclaiming any guarantee of permanent or long-term employment to designated "Transferred Employees" and stating a general intention (but not a commitment) to enter into employment agreements with key employees.
• The Merger Agreement is governed by Florida law.

In 2016, Duchman (through an entity he controlled) bought back Fresh Diet. To facilitate this transaction and obtain the release of restrictions on transfer of their restricted shares in IVFH, Duchman and other shareholders of YSCH signed a "Share Issuance Agreement" (the "2016 Agreement"), containing a broad and mutual release and covenant not to sue, for themselves and their successors, affiliates, heirs, beneficiaries, agents, assigns and representatives. Those persons and entities agreed not to "sue or bring any action or other proceeding of any nature against, and fully release [IVFH] and each of its subsidiaries, predecessors, affiliated entities, successor and assigns, together with its and each of those entities' respective owners, officers, directors, members, partners, shareholders, employees, agents, representatives, attorneys, fiduciaries and administrators (collectively, "Releasees"), from any and all known and unknown claims, complaints, causes of action, demands or rights of any nature whatsoever which any Releaser has against any Releasee... except, as it relates to claims arising from a breach of [the 2016 Agreement]."

Fresh Diet did not prosper and grow as the parties had hoped. As President of Fresh Diet, Duchman executed an assignment by Fresh Diet for the benefit of creditors, and the assignee filed a petition in the circuit court for Miami-Dade County to provide for the payment of Fresh Diet's debts "as far as it is possible." The assignment had the effect, whether intended or not, of assigning Fresh Diet's assets, including claims, demands, and choses in action, to the assignee (a non-party to the present proceedings).

In 2017, YSCH and Duchman commenced the present proceedings in the circuit court in Miami-Dade County, contending that the defendants breached their fiduciary duties, fraudulently induced YSCH and Duchman to enter into the agreements and transactions relating to Fresh Diet, engaged in a conspiracy to harm them, and aided and abetted others in those unlawful activities. Following motions to dismiss and orders of dismissal of the complaint and first amended complaint, YSCH and Duchman filed the third and final incarnation of the Complaint at issue here, the 66-page, 38 count litany of claims described previously.

Taking these allegations as true, but distilling them to their essence, YSCH and Duchman primarily claim that the defendants falsely promised: to remove Duchman as a guarantor of bank loans to Fresh Diet; to remove Duchman as a responsible party to file and pay New York state taxes; to be named a member of IVFH's board of directors; and to give Duchman a new employment agreement (or provide additional stock to Duchman). The defendants moved to dismiss the Complaint with prejudice, which was heard and granted, and this appeal followed.

Analysis

The parties properly agree that the dismissal of the Complaint with prejudice is reviewed de novo, citing Bensoussan v. Banon5 LLC, 252 So. 3d 298 (Fla. 3d DCA 2018). We assume the allegations of the Complaint and attachments to be true, and construe all reasonable inferences in favor of YSCH and Duchman. See United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So. 3d 1101, 1103-04 (Fla. 3d DCA 2010).

The claims of YSCH and Duchman are belied by multiple and independent legal principles. First, the claims are antithetical to the contractual representations and disclaimers of oral understandings or agreements as provided in the Merger Agreement. Although Duchman argues that he is not bound by those terms because he was not individually a party to the Merger Agreement, the recitals evidence his approval of the terms as a director, and his signature as a shareholder expressly evidences his consent to the terms in that additional capacity.

Having approved those terms and attached the documents to their Complaint, YSCH and Duchman cannot prevail on the alleged oral misrepresentations claimed to overcome their later written agreements. See B&G Aventura, LLC v. G-Site Ltd. P'ship, 97 So. 3d 308 (Fla. 3d DCA 2012).

But there is more. After the Merger Agreement and closing, YSCH did not obtain the relief from bank guaranties and tax payments they allege they were promised, nor did they obtain the employment agreement sought by Duchman. Nevertheless, in 2016, they executed the 2016 Agreement containing the sweeping release of all claims, known and unknown, and against numerous parties (but certainly including the defendants in the Complaint), as excerpted in a prior section of this opinion.

We have followed a common sense principle enunciated by the Florida Supreme Court many years ago; Columbus Hotel Corp. v. Hotel Management Co., 116 Fla. 464, 156 So. 893 (Fla. 1934). If the plaintiffs were defrauded by an allegedly fraudulent inducement (and conspiracy) to enter into the Merger Agreement in 2014, and the performance that was promised was not forthcoming, they certainly could not justifiably rely on further inducements to enter into the 2016 Share Issuance Agreement and its sweeping release. The principle is that "after the assertion of claims involving dishonesty, the claimant in negotiations culminating in a settlement and release cannot rely on oral representations made by the party already asserted to have been dishonest." Sugar v. Estate of Stern, 201 So. 3d 103, 108 (Fla. 3d DCA 2015).

Finally, the assignment for the benefit of creditors assigned away any claims, including choses in action, of Fresh Diet, to the assignee for the benefit of creditors, a non-party. See Akin Bay Co. v. Von Kahle, 180 So. 3d 1180 (Fla. 3d DCA 2015).

For all these reasons, the final order dismissing the Complaint with prejudice is affirmed.

      These claims were detailed in 66 pages, as 38 separate counts, in 375 numbered paragraphs, and with 15 attached exhibits comprising another 93 pages.

      See Chapter 727, Florida Statutes (2016).


text:
    M.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1680
    District Court of Appeal of Florida, Third District.
    Opinion filed June 19, 2019.
    Carlos J. Martinez, Public Defender, and James A. Odell, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for appellee.
    Before SCALES, LINDSEY and LOBREE, JJ.
   PER CURIAM.

Affirmed. Oregon v. Elstad, 470 U.S. 298, 310, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).


text:
    Devon A. BROWN, Appellant, v. Kali D. BROWN, Appellee.
    No. 3D18-1706
    District Court of Appeal of Florida, Third District.
    Opinion filed June 19, 2019
    Devon A. Brown, in proper person.
    Kali D. Brown, in proper person.
    Before SALTER, FERNANDEZ and LINDSEY, JJ.
   PER CURIAM.

The appellant, Devon A. Brown, sued the appellee, Kali D. Brown (the mother of their minor children) for the allegedly-unauthorized use of his Social Security number, violation of his constitutional privacy rights, and identity theft. The appellant's pro se complaint sought $ 150,000.00 in compensatory damages. The face of the complaint and undisputed pleadings, however, reveal that the complaint was based exclusively on the appellee's use of Devon Brown's name and Social Security number to enforce his child support obligations through a Department of Revenue Florida Child Support Enforcement proceeding. See §§ 409.2551 - 409.25656, Fla. Stat. (2018).

On such a record, the allegations are legally insufficient to state a claim, amendment would be futile, and no error has been shown.

Affirmed.


author: MILLER, J.

text:
    Yevgeniy KHATA, Appellant, v. Olga BELOVA, Appellee.
    No. 3D18-816
    District Court of Appeal of Florida, Third District.
    Opinion filed June 19, 2019
    Martinez-Scanziani & Associates Law, P.A., and Denise Martinez-Scanziani, for appellant.
    Manuel A. Avila, Esq. & Associates, P.A., and Manuel A. Avila, for appellee.
    Before SALTER, SCALES, and MILLER, JJ.
   MILLER, J.

"[A] [general] [m]aster's findings of fact and conclusions of law come to the trial court clothed with a presumption of correctness, and the trial court may only reject these findings and conclusions if they are clearly erroneous or if the [general] [m]aster has misconceived the legal effect of the evidence presented." De Clements v. De Clements, 662 So. 2d 1276, 1282 (Fla. 3d DCA 1995) (en banc) (citations omitted). Here, as the general master's factual findings were supported by competent, substantial evidence, and the recommendations were not clearly erroneous, they were properly adopted by the trial court. Accordingly, we affirm. See Robinson v. Robinson, 928 So. 2d 360, 362 (Fla. 3d DCA 2006) ("Where a general master has been appointed for fact-finding and to recommend disposition of pending issues, the trial court is bound by the general master's factual findings[,] unless they are not supported by competent[,] substantial evidence or are clearly erroneous.") (citations omitted); Sonson v. Sonson, 815 So. 2d 685, 686 (Fla. 3d DCA 2002) (holding the "trial court properly ratified the general master's finding [of fact], as there [was] competent[,] substantial evidence to support the finding") (citing Moncrief v. Hall, 63 So. 2d 640 (Fla. 1953) ); see also Ward v. Dones, 90 So. 3d 826, 828 (Fla. 3d DCA 2012) (holding the trial court "exceeded the scope of permissible review" in reweighing evidence "rather than determining whether the [general magistrate's] findings [of fact] were supported by competent[,] substantial evidence").

Affirmed.


author: LINDSEY, J.

text:
    Jose REYES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-0164
    District Court of Appeal of Florida, Third District.
    Opinion filed June 19, 2019
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and LINDSEY, JJ.
   LINDSEY, J.

Appellant Jose Reyes appeals a judgment and sentence for one count of burglary of an unoccupied structure and three counts of aggravated animal cruelty entered following his conviction by a jury of his peers. Reyes was arrested after police found him sitting behind the wheel of a truck near a farm in Hialeah Gardens as Robel Morales loaded three dead sheep into the back of the truck. Reyes contends his convictions for aggravated animal cruelty must be reduced to misdemeanor animal cruelty because the State presented no evidence at trial that the sheep were killed in a cruel or unnecessarily painful manner. Because this is not the case, we disagree, and affirm.

Section 828.12(2), Florida Statutes (2018), states that "[a] person who intentionally commits an act to any animal, ... which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty, a felony of the third degree ...." (Emphasis added). Although a plain reading of the statute requires only evidence of either a cruel death or unnecessary pain or suffering, there was competent, substantial evidence introduced at trial to establish that the three sheep abducted from their owner's barn experienced both. See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002) ("Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.").

The first officer to arrive at the crime scene testified that the sheep had one to two three-inch stab wounds around their belly areas. He further testified that the animals were still warm to the touch and that a knife with fresh blood on it was found in Reyes's vehicle. A photograph of the knife was admitted into evidence.

A second officer who arrived at the crime scene shortly after the first officer testified that all the sheep had puncture and slice wounds to the chest area. He further testified the sheep had blood on them, were still warm, and that the blood pattern on the sheep indicated that they had been dragged to the vehicle. The officer also testified that the knife recovered from the vehicle had fresh blood on it.

The sheep's owner, who arrived thereafter, testified that she had left the sheep in their stalls on the night in question. In addition, she testified the stalls were "a long way" from where the officers found the sheep carcasses as "you have to walk more than halfway down the property." The owner further testified that makeshift barricades had been constructed out of boards and blocks to lead the victim sheep out of their stalls without them running away. When the owner saw the dead sheep, she "straightened out their feet" because they were "crumbled up." She testified she was only able to closely examine the carcass of the largest sheep, which she described as "broken up," having been stabbed, slashed, and dragged.

The evidence is sufficient to establish that three sheep, stabbed or slashed multiple times with a knife and then dragged from a barn on private property to Reyes's truck, suffered cruel deaths and suffered excessive or repeated infliction of unnecessary pain or suffering. See § 828.12(2), Fla. Stat. (2018) ; Hynes v. State, 1 So. 3d 328, 330 (Fla. 5th DCA 2009) (Griffin, J. concurring specially) (explaining that no expert testimony is necessary to sustain a felony conviction under the animal cruelty statute when an animal's pain and suffering is a matter of common sense).

Affirmed.


text:
    Desiree Ann KRIETEMEYER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4523
    District Court of Appeal of Florida, Second District.
    Opinion filed June 19, 2019
   PER CURIAM.

Affirmed. See Toomer v. State, 895 So. 2d 1256 (Fla. 1st DCA 2005) ; Teart v. State, 866 So. 2d 145 (Fla. 1st DCA 2004) ; Sherwood v. State, 745 So. 2d 378 (Fla. 4th DCA 1999).

SILBERMAN, BLACK, and SMITH, JJ., Concur.


text:
    Roberto RAMOS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4687
    District Court of Appeal of Florida, Second District.
    Opinion filed June 19, 2019
   PER CURIAM.

Affirmed. See McDonald v. State, 957 So. 2d 605 (Fla. 2007) ; Knight v. State, 808 So. 2d 210 (Fla. 2002) ; Robinson v. State, 793 So. 2d 891 (Fla. 2001) ; State v. Connelly, 748 So. 2d 248 (Fla. 1999) ; Cave v. State, 613 So. 2d 454 (Fla. 1993) ; Lopez v. State, 135 So. 3d 539 (Fla. 2d DCA 2014) ; McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013) ; Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009) ; Calloway v. State, 914 So. 2d 12 (Fla. 2d DCA 2005) ; Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004) ; Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002) ; State v. Wilson, 203 So. 3d 192 (Fla. 4th DCA 2016) ; Williams v. State, 143 So. 3d 423 (Fla. 1st DCA 2014) ;

Dunbar v. State, 879 So. 2d 98 (Fla. 4th DCA 2004) ; State v. Reardon, 763 So. 2d 418 (Fla. 5th DCA 2000) (en banc).

SILBERMAN, BLACK, and SMITH, JJ., Concur.


text:
    James S. CAUSEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4694
    District Court of Appeal of Florida, Second District.
    Opinion filed June 19, 2019
   PER CURIAM.

Affirmed. See Causey v. State, 110 So. 3d 448 (Fla. 2d DCA 2012) (table decision); Harris v. State, 777 So. 2d 994 (Fla. 2d DCA 2000) ; Edwards v. State, 765 So. 2d 222 (Fla. 2d DCA 2000) ; Teart v. State, 866 So. 2d 145 (Fla. 1st DCA 2004) ; Sherwood v. State, 745 So. 2d 378 (Fla. 4th DCA 1999).

SILBERMAN, BLACK, and SMITH, JJ., Concur.


text:
    Eric Damon GORDON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4699
    District Court of Appeal of Florida, Second District.
    Opinion filed June 19, 2019
   PER CURIAM.

Affirmed. See § 775.082(1), Fla. Stat. (2002) ; England v. State, 940 So. 2d 389 (Fla. 2006) ; Williams v. State, 707 So. 2d 683 (Fla. 1998) ; Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004) ; Dorsett v. State, 166 So. 3d 898 (Fla. 4th DCA 2015) ; Shivers v. State, 96 So. 3d 1039 (Fla. 4th DCA 2012) ; Atwater v. State, 781 So. 2d 1149 (Fla. 5th DCA 2001).

SILBERMAN, BLACK, and SMITH, JJ., Concur.


text:
    Michael KING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4730
    District Court of Appeal of Florida, Second District.
    Opinion filed June 19, 2019
    Michael King, pro se.
   PER CURIAM.

Affirmed. See King v. State, 235 So. 3d 873 (Fla. 2d DCA 2017) (table decision); King v. State, 117 So. 3d 1094 (Fla. 2d DCA 2013) (table decision); Harris v. State, 777 So. 2d 994 (Fla. 2d DCA 2000) ; Wright v. State, 834 So. 2d 879 (Fla. 3d DCA 2002) ; Middleton v. State, 721 So. 2d 792 (Fla. 3d DCA 1998).

SILBERMAN, BLACK, and SMITH, JJ., Concur.