author: ATKINSON, Judge. KHOUZAM, Judge, Dissenting.

text:
    Christopher Leon JACOBS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2437
    District Court of Appeal of Florida, Second District.
    Opinion filed May 17, 2019.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Katie Salemi-Ashby, Assistant Attorney General, Tampa, for Appellee.
   ATKINSON, Judge.

Christopher Leon Jacobs was found guilty by a jury of one count of aggravated stalking and two counts of violation of a stalking injunction. On appeal, Jacobs argues that the dual convictions for violation of a stalking injunction violate double jeopardy. We disagree and affirm.

On March 29, 2016, Jacobs entered the Palm River Laundromat, where the victim was employed, and asked if he could use the restroom. The victim said no because the restroom was meant for customers only. Jacobs responded, "I'll shoot you, bitch." Over the next several months, Jacobs entered the laundromat and threatened the victim. The victim then applied for an injunction against Jacobs.

On July 29, 2016, at 10:00 a.m., Deputy Craig Martin served the injunction on Jacobs, explaining that the injunction prohibited Jacobs from contacting the victim at her place of employment and from going within 500 feet of the perimeter. After reading the injunction, Jacobs indicated he understood. That same day, while the victim was outside the laundromat, Jacobs threatened her from across the street. Jacobs was standing about sixty feet away from the victim. At 10:30 a.m., the victim flagged down Deputy Jared Lee and told him that Jacobs yelled at her from across the street. After Deputy Lee located Jacobs, Jacobs admitted that he knew about the injunction and that he yelled out, "Bitch, I'm coming to get you" while pounding on his chest with both fists.

On August 18, 2016, Jacobs was charged with one count of aggravated stalking and two counts of violation of stalking injunction, one for being within 500 feet of the victim and the other for communicating with the victim. After a jury found him guilty as charged, Jacobs was sentenced to 28.8 months in prison on count one and to time served on the remaining counts. This appeal followed.

A double jeopardy violation may be raised for the first time on appeal because it amounts to fundamental error. Eichelberger v. State, 949 So.2d 358, 359 (Fla. 2d DCA 2007) (citing Marinelli v. State, 706 So.2d 1374, 1375 n.1 (Fla. 2d DCA 1998) ). The double jeopardy clauses in the Florida and United States Constitutions protect individuals from being put in jeopardy more than once "for the same offense." Art. I, § 9, Fla. Const.; Amend. V, U.S. Const. ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]"); Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009) ("[T]he Constitution prohibits subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense."). "[W]here a defendant is convicted multiple times under the same statute for acts that occurred during the course of a single criminal episode, a 'distinct acts' test is used" to determine whether the convictions violate double jeopardy, but "where a defendant is convicted under multiple statutes for one act, the 'different elements' test applies." Graham v. State, 207 So.3d 135, 141 (Fla. 2016) (discussing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ).

Here, the "distinct acts" test applies because Jacobs was convicted multiple times under section 784.0487(4)(a), Florida Statutes (2016), for acts that occurred during a single criminal episode. Section 784.0487(4)(a) provides the following:

A person who willfully violates an injunction for protection against stalking or cyberstalking issued pursuant to s. 784.0485, or a foreign protection order accorded full faith and credit pursuant to s. 741.315, by:
1. Going to, or being within 500 feet of, the petitioner's residence, school, place of employment, or a specified place frequented regularly by the petitioner and any named family members or individuals closely associated with the petitioner;
2. Committing an act of stalking against the petitioner;
3. Committing any other violation of the injunction through an intentional unlawful threat, word, or act to do violence to the petitioner;
4. Telephoning, contacting, or otherwise communicating with the petitioner, directly or indirectly, unless the injunction specifically allows indirect contact through a third party;
5. Knowingly and intentionally coming within 100 feet of the petitioner's motor vehicle, whether or not that vehicle is occupied;
6. Defacing or destroying the petitioner's personal property, including the petitioner's motor vehicle; or
7. Refusing to surrender firearms or ammunition if ordered to do so by the court,
commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, except as provided in paragraph (b).

(Emphasis added.) Pursuant to the "distinct acts" test, a single criminal impulse may be punished only once "no matter how long the action may continue," while separate, successive impulses may be punished separately "even though all unite in swelling a common stream of action." Graham, 207 So.3d at 139 (quoting Blockburger, 284 U.S. at 302, 52 S.Ct. 180 ). In determining whether acts are "distinct," courts consider "factors such as whether there was (1) a temporal break between the acts, (2) intervening acts, (3) a change in location between the acts; and/or (4) a new criminal intent formed." Partch v. State, 43 So.3d 758, 761 (Fla. 1st DCA 2010) (citing Hayes v. State, 803 So.2d 695, 700 (Fla. 2001) ).

Jacobs' two violations of the injunction were two distinct criminal acts. See State v. Meshell, 2 So.3d 132, 135 (Fla. 2009). By going to or being within 500 feet of the victim's workplace, Jacobs committed "a criminal act distinctively different from" his contacting or otherwise communicating with the victim. See id. at 136 ("Because the oral sex described in Count 3 is a criminal act distinctively different from the vaginal penetration or union in Count 1, there is not a double jeopardy violation."); § 784.0487(4)(a) 1., 4. (prohibiting the "[g]oing to, or being within 500 feet of" the victim's "place of employment" and the "[t]elephoning, contacting, or otherwise communicating with the" victim, respectively). As such, his convictions for each do not constitute double jeopardy for the same offense.

The dissent contends that there was only one violation of the statute as the facts support a "single criminal impulse to violate the injunction." (Emphasis added.) However, there are several ways to violate the statute prohibiting violations of injunctions. See § 784.0487(4)(a) 1.-7. And convictions for multiple violations of separately enumerated acts proscribed by the same statute do not violate double jeopardy-even if they are committed during the same criminal episode-as long as each is based on a "distinct criminal act[ ]." See Meshell, 2 So.3d at 135 (finding commission of two of the various sex acts proscribed in section 800.04(4), Florida Statutes, during the same criminal episode constituted distinct acts such that double jeopardy did not bar punishment for each). "The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. If the latter, there can be but one penalty." Id. Here, it is the former. The language of section 784.0487(4) indicates that willful violation of an injunction can be "violated in multiple, alternative ways," each of which can be punished as separate offenses if they constitute distinct criminal acts. Meshell, 2 So.3d at 135 (quoting Saavedra v. State, 576 So.2d 953, 956-57 (Fla. 1st DCA 1991) ) (finding double jeopardy did not prohibit separate punishment for the two different ways the defendant committed lewd and lascivious battery in violation of section 800.04(4) during the same episode).

The dissent identifies the lack of temporal break between the two violations (which arguably occurred simultaneously when Jacobs yelled at the victim from a distance of less than 500 feet of her workplace) as support for its conclusion that there was only one violation of the statute. However, even violations that occur simultaneously can be punished separately without violating the double jeopardy prohibition if each commission is of a separate character and type. See State v. Drawdy, 136 So.3d 1209, 1214 (Fla. 2014) (finding double jeopardy did not prohibit convictions for both lewd or lascivious molestation and sexual battery after the defendant "touched the victim's breasts during vaginal penetration," each of which were offenses "of a separate character and type" constituting "distinct criminal acts" (quoting Meshell, 2 So.3d at 136 ) (emphasis added)).

It is not necessary for the two acts to be separated by a temporal break or a change in location in order for them to be considered distinct criminal acts. Nonetheless, such temporal and spatial separation arguably does exist in this case. The violation of subsection 1. occurred when Jacobs crossed the line demarcating where he was and was not allowed to be-within 500 feet of the victim's place of employment. The violation of subsection 4. occurred sometime thereafter when he began communicating with the victim when he was within sixty feet of the laundromat where she worked. The temporal break was whatever time it took for Jacobs to traverse the 440 feet to the point at which he began yelling at her.

However, even if he had been communicating with the victim at the exact moment he first came within 500 feet of the victim's workplace (say, by use of a cell phone), that lack of temporal or spatial separation would not give rise to a double jeopardy violation. Each act is of a separate character and type, and each is born of a separate impulse. See Drawdy, 136 So.3d at 1212 ("The differences in the character and type of crime proven are as important as the spatial and temporal aspects when considering whether multiple punishments are appropriate." (quoting Murphy v. State, 49 So.3d 295, 298 (Fla. 5th DCA 2010) )). In other words, the impulse to put one foot in front of the other enough times (or keep one's foot on the accelerator long enough) to transport ones' self to within 500 feet of the victim's place of employment is separate and distinct from the impulse to open one's mouth and yell at her. See Graham, 207 So.3d at 139 ("If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie." (quoting Blockburger, 284 U.S. at 302, 52 S.Ct. 180 )).

Jacobs chose to place himself within 500 feet of the victim's workplace. Then, he chose to communicate with her. Even if he was committing both violations at the exact same time, they are distinct acts separately proscribed by the statute under which he was convicted. Cf. Meshell, 2 So.3d at 134 ("Distinct acts of sexual battery do not require a 'temporal break' between them to constitute separate crimes."). Accordingly, we affirm Jacobs' convictions and sentences for one count of aggravated stalking and two counts of violation of a stalking injunction.

Affirmed.

LUCAS, J., Concurs.

KHOUZAM, J., Dissents with opinion.

KHOUZAM, Judge, Dissenting.

Although I agree that the "distinct acts" test applies here, I believe that the majority has misapplied this test. In my view, correctly applying the "distinct acts" test in this case leads to the conclusion that Jacobs' dual convictions for violation of a stalking injunction run afoul of the prohibition against double jeopardy. Accordingly, I would reverse.

The majority has accurately explained the basic principles of the "distinct acts" test, which applies here because Jacobs was convicted multiple times under the same statute for acts that occurred within the same criminal episode. The "distinct acts" test provides that where a course of action is prohibited, only one punishment is appropriate, because a single criminal impulse may be punished only once "no matter how long the action may continue." Graham v. State, 207 So.3d 135, 139 (Fla. 2016) (quoting Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ). And conversely, where an individual criminal act is prohibited, each act may be punished separately, even where successive criminal impulses "unite in swelling a common stream of action." Id. But "not all charges arising out of different acts occurring within the same criminal episode will rise to the level of 'distinct' acts and allow for a finding of multiple offenses." Partch v. State, 43 So.3d 758, 761 (Fla. 1st DCA 2010). Rather, the determination of whether acts are "distinct" should be based on "factors such as whether there was (1) a temporal break between the acts, (2) intervening acts, (3) a change in location between the acts; and/or (4) a new criminal intent formed." Id. (citing Hayes v. State, 803 So.2d 695, 700 (Fla. 2001) ). There is no bright-line rule because the inquiry into whether acts are "distinct" is fact-specific. Hayes, 803 So.2d at 705.

Turning to the facts of this case, Jacobs' dual convictions for violation of a stalking injunction were based on (1) being within five hundred feet of the victim and (2) contacting the same victim. Both charges stemmed from an approximately thirty-minute time period in which Jacobs was served with the injunction and then proceeded to violate that injunction by approaching the victim and yelling at her. Jacobs was apprehended shortly thereafter and admitted not only that he had received the injunction but also that he had yelled "bitch, I'm coming to get you" while pounding his chest with both fists. The distance between Jacobs and the victim was about sixty feet.

Jacobs' acts of approaching the victim and yelling at her took place essentially simultaneously or, at most, within the same short time period. There is nothing in the record to suggest that there was a temporal break between them. Nothing in the record suggests that there was a change in location between the acts. Nothing in the record suggests that there were any intervening acts between Jacobs approaching and yelling at the victim. The acts of approaching and yelling were both directed at the same victim. Taken together, these facts indicate a single criminal impulse to violate the injunction, with no new criminal intent formed between the acts. Accordingly, the evidence supported only one count of violation of a stalking injunction.

The majority suggests that the structure and plain language of section 784.0487(4) dictate that each of the multiple ways the statute can be violated constitutes a distinct criminal act. But where a defendant is convicted multiple times under the same statute, courts should look to the unique facts of the case at hand--not the structure or language of the single statute--to determine whether the offenses constitute "distinct acts" that would justify multiple punishments. Analyzing the statutory language is part of the "different elements" test, which does not apply here because Jacobs was convicted multiple times under the same statute. See Graham, 207 So.3d at 139-140. Where the legislature has set forth an offense in a single statutory section, it is self-evident that the legislature only intended to create a single offense. The question then becomes whether the facts of the case indicate that the defendant's acts were distinct enough to justify multiple punishments.

The majority further relies on State v. Meshell, 2 So.3d 132 (Fla. 2009), for the proposition that where a statute can be violated in multiple, alternative ways, each of those violations constitute a distinct act of a separate type and character that can be punished separately without running afoul of double jeopardy principles--even where the acts occur simultaneously. Id. at 134-35 ; see also State v. Drawdy, 136 So.3d 1209, 1214 (Fla. 2014). However, while I agree that the Meshell court ultimately reached the correct result, the supreme court clarified in Graham that it had created confusion in Meshell by conflating the two different tests set forth in Blockburger. See Graham, 207 So.3d at 140. Accordingly, to the extent that Meshell applied the "different elements" test in a case involving multiple offenses charged under the same statute, it is no longer good law. By focusing on the language of section 784.0487(4) in determining whether Jacobs' offenses were "distinct acts," the majority has applied the part of Meshell that has since been disapproved.

And finally, to the extent that the majority did consider the unique facts of this case, I disagree with the majority's reasoning. As already discussed above, Jacobs' actions indicate a single criminal impulse to violate the injunction. This conclusion is limited to the facts at hand and does not dictate that separate punishments would never be appropriate for any two acts committed during the same criminal episode and charged under section 784.0487(4). There may be circumstances where two simultaneous acts charged under section 784.0487(4) could be considered distinct and separately punishable. To use one of the majority's examples, a defendant's acts of lurking behind a dumpster in the parking lot of the victim's workplace while sending her text messages from his phone could be considered distinct, depending on the full record before the court. Conversely, it appears that under the majority's analysis, acts falling under different subsections of section 784.0487(4) would always be considered distinct acts, regardless of the facts of the case.

Moreover, this is not a case where simultaneous acts should be considered distinct. Unlike this case, the cases on which the majority relies each involved distinct sexual acts that occurred essentially simultaneously during a sexual battery. In Meshell, the defendant was convicted of two counts of lewd and lascivious battery for penetrating or having union with the victim's vagina and with his penis having union with the victim's mouth, acts which occurred at approximately the same time. Id. at 134. In Drawdy, the defendant "was convicted of sexual battery for penetrating the victim's vagina with his penis. He was convicted of lewd or lascivious molestation for intentionally touching the victim's breasts in a lewd or lascivious manner during the vaginal penetration." Id. at 1214. Considering these facts at least in part, the supreme court held that the defendants' acts were distinct although there was no temporal break between them. See Meshell, 2 So.3d at 135 ("We agree that sexual acts of a separate character and type ... are distinct criminal acts."); see also Drawdy, 136 So.3d at 1214 ("The lewd touching here was not an integral or necessary part of the sex act, but a separate and distinct act by itself."). The facts of the instant case are readily distinguishable. Here, Jacobs' dual convictions for violation of a stalking injunction were based on (1) being within five hundred feet of the victim and (2) contacting the same victim. Indeed, it appears that Jacobs approached the victim for the purpose of yelling at her. I cannot agree that these acts are of a separate character and type in the same way that multiple sexual acts in sexual battery case are of a separate character and type, considering the obvious distinctions in character between sexual acts and the additional harm inflicted upon a victim of sexual battery with each different type of violation.

Accordingly, I would affirm Jacobs' conviction for aggravated stalking and a single count of violation of a stalking injunction but reverse the second conviction for violation of a stalking injunction and remand for the entry of a corrected judgment reflecting a single conviction for violation of a stalking injunction.

      The dissent dismisses the State's reliance on Meshell by explaining that the supreme court in Graham cleared up confusion created by the Meshell opinion, which had conflated the "distinct acts" and the "different elements" tests. But that does not mean that Meshell is inapposite. Graham did not impugn the outcome of Meshell, which supported its conclusion with the "distinct acts" test but also seemed to rely on the "different-elements" test. Graham merely pointed out that the latter test was inapplicable and unnecessary because both of the convictions in Meshell were for violations of the same statute. The holding of Meshell is not reliant on the "different elements" test and is very much applicable to this case: "Because the oral sex described in Count 3 is a criminal act distinctively different from the vaginal penetration or union in Count 1, there is not a double jeopardy violation." Meshell, 2 So.3d at 136 ; cf. Graham, 207 So.3d at 141 (affirming a district court that reached "the correct result" when it concluded that a "defendant's dual convictions under the lewd or lascivious molestation statute did not violate double jeopardy" even though the district court appeared to have "improperly utilize[d] aspects of the 'different elements' test" and noting that the district court "only needed to focus on whether each act that violated the statute was distinct"); Partch, 43 So.3d at 762 ("Had distinct acts been found, the analysis would end here" without proceeding to the "same elements test.").

      By the dissent's rationale, Jacobs could not be convicted separately for two offenses even if he had been lurking behind a dumpster in the parking lot of the victim's workplace while sending her text messages from his phone. An unavoidable consequence of the dissent's conclusion is that a defendant who commits any of the offenses enumerated in subsections 2. through 7. cannot also be convicted of violating subsection 1. if they were committed within 500 feet of the victim's workplace. The language of the constitution, which only protects against double jeopardy for the same offense, and of the statute, by which the legislature created separate offenses for various ways in which an injunction is violated, dictates otherwise-that the distinct acts comprising these criminal episodes can be punished separately, despite their lack of spatial or temporal separation. See Meshell, 2 So.3d at 135-36 (finding no violation of double jeopardy where the defendant committed "distinct criminal acts that the Florida Legislature has decided warrant multiple punishments").


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Julio E. GIL DE LAMADRID, Petitioner, v. Matilde DE JESUS RIVERA a/k/a Matilde Gil de Lamadrid, and Bowles Custom Pools and Spas, Inc., Respondents.
    Case No. 5D19-342
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 17, 2019
    Julio E. Gil De Lamadrid, Bayamon Puerto Rico, pro se.
    Barry Kalmanson, of Barry Kalmanson Professional Association, Maitland, for Respondent, Bowles Custom Pools and Spas, Inc.
    No Appearance for Other Respondent.
   ORFINGER, J.

Julio E. Gil de Lamadrid ("Petitioner") seeks certiorari review of two orders. The first order granted, in part, Bowles Custom Pools and Spas, Inc.'s ("Bowles") second amended motion to intervene. This order is reviewable by certiorari. Fla. R. App. P. 9.030(b)(2)(A) ; Superior Fence & Rail of N. Fla. v. Lucas, 35 So.3d 104, 105 n.1 (Fla. 5th DCA 2010). The second order denied Petitioner's motion to disqualify Bowles's counsel, which we review as a nonfinal appeal. See Fla. R. App. P. 9.130(a)(3)(E). We grant the petition for writ of certiorari and quash the order granting intervention. However, we dismiss the nonfinal appeal of the second order, as that issue is now moot.

In September 2013, a court in Puerto Rico issued a judgment dissolving the marriage between Petitioner and Matilde De Jesus Rivera a/k/a Matilde Gil de Lamadrid ("Former Wife"). In December 2016, the Puerto Rico court issued a judgment regarding the division of property. As part of the division of property, Petitioner received real property located in Orlando, Florida ("Orange County Property"). In August 2017, Petitioner sought to domesticate the foreign judgment pursuant to sections 55.501 - 55.509, Florida Statutes (2017), the Florida Enforcement of Foreign Judgments Act ("FEFJA"), to "eliminate [Former Wife's] name as co-owner of the real estate located [in] ... Orlando, Fl ... and order the property registry to make the appropriate annotation." Former Wife did not contest the domestication of the foreign judgment. However, Bowles moved to intervene in the domestication action to "prevent perpetration of frauds on the court and dissipation of assets subject to intervenor's judgment liens." Bowles alleged that in 2008, it obtained a county court judgment against Petitioner and Former Wife.

Before ruling on Bowles's motion to intervene, the circuit court granted Petitioner's petition to domesticate the foreign judgment and ordered that the judgment dividing the property be enforceable as a Florida judgment. Bowles then moved to vacate the domesticated judgment, arguing that its final judgment had attached to Former Wife's share of the Orange County Property and that the notice of petition to domesticate was never served on Former Wife. The circuit court granted Bowles's motion, vacated the judgment domesticating the foreign judgment, and granted, in part, Bowles's second amended motion to intervene "to the extent necessary to protect its interest in the county court judgment obtained in case number 48-2003-CC-1680-O."

Certiorari lies to review an interlocutory order granting a motion to intervene. Lucas, 35 So.3d at 105 n.1 ; In re J.P., 12 So.3d 253, 254 (Fla. 2d DCA 2009). To obtain certiorari relief from an erroneous interlocutory order, a petitioner must demonstrate that (1) the order departs from the essential requirements of law and (2) causes irreparable harm that cannot be corrected on final appeal. See J.B.J. Inv. of S. Fla., Inc. v. Maslanka, 163 So.3d 726, 727-28 (Fla. 5th DCA 2015).

Intervention is permitted for a party claiming an interest in "pending litigation." The right to intervene is limited after a final judgment has been entered. Generally, it is too late to seek intervention after a final judgment has been entered. Tech. Chems. & Prods., Inc. v. Porchester Holdings, Inc., 748 So.2d 1090, 1091 (Fla. 4th DCA 2000). Here, Bowles did not seek to intervene in the Puerto Rico dissolution proceedings prior to the entry of the judgment. Therefore, Bowles cannot intervene for the first time in a petition to domesticate the foreign judgment. The order granting the motion to intervene causes Petitioner irreparable harm and is a departure from the essential requirements of law. Thus, we quash it.

CERTIORARI GRANTED; ORDER QUASHED; NONFINAL APPEAL DISMISSED.

WALLIS and EDWARDS, JJ., concur.

      Oddly, Petitioner filed a separate action to domesticate the Puerto Rico judgment. This was unnecessary. All that was required was compliance with the FEFJA.

      Of course, Bowles had no standing to assert that the notice of recording the foreign judgment was not mailed to Former Wife. See § 55.505(2), Fla. Stat. (2017).


author: WALLIS, J.

text:
    Scott LEVINE, Appellant, v. Bonnie STIMMEL, Appellee.
    Case No. 5D17-2572
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 17, 2019 Rehearing Denied June 5, 2019
    John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellant.
    Alexander S. Douglas, II, Robert Clayton Roesch, and Loren M. Vasquez, of Shuffield, Lowman & Wilson, P.A., Orlando, for Appellee.
   WALLIS, J.

Appellant, Scott Levine, appeals the supplemental final judgment, awarding Appellee, Bonnie Stimmel, attorney's fees and costs pursuant to section 736.1004, Florida Statutes (2017). Appellant raises several arguments on appeal, one of which has merit. Because Appellee may not recover attorney's fees for the hours spent litigating the entitlement to fees for an unsuccessful section 57.105, Florida Statutes (2017), motion, we reverse in part and remand with instructions. In all other respects we affirm.

After Appellant became aware of his father's extensive gifting to his sister, Appellee, Appellant filed a complaint against Appellee, claiming: (1) undue influence; (2) tortious interference with an expectancy; (3) breach of fiduciary duty; (4) removal of trustee; (5) accounting; and (6) appointment of special fiduciary. The trial court entered final judgment in favor of Appellee.

Thereafter, Appellee moved for attorney's fees and costs pursuant to section 736.1004(1)(a), Florida Statutes, arguing that she was entitled to fees because Appellant's claims revolved around her alleged breaches of fiduciary duty. In addition, Appellee moved separately for attorney's fees and costs pursuant to section 57.105, Florida Statutes, claiming that she was entitled to fees because Appellant chose to prosecute baseless claims. The trial court denied the section 57.105 motion for attorney's fees but granted the section 736.1004(1)(a) motion. However, when determining the amount of the attorney's fees award, Appellee included in her request the time spent litigating the entitlement to fees for the unsuccessful section 57.105 motion. Accordingly, Appellant sought a reduction of approximately $ 16,000 for the work connected to the section 57.105 motion. Ultimately, the trial court reduced Appellee's requested attorney's fee amount by approximately $ 20,000. However, the trial court's rationale in reducing the award is unclear.

As the party seeking attorney's fees pursuant to section 736.1004, Appellee had the burden to demonstrate what portion of the attorneys' efforts were expended on claims for which section 736.1004 authorized attorney's fees. See Van Diepen v. Brown, 55 So.3d 612, 614 (Fla. 5th DCA 2011) ("It is the party seeking attorney's fees on multiple claims who has an affirmative burden to demonstrate what portion of the effort was expended on the claim that authorized attorney's fees."). Section 736.1004 authorizes the award of attorney's fees for actions arising under Florida's Trust Code and "[i]n all actions for breach of fiduciary duty or challenging the exercise of, or failure to exercise, a trustee's powers. ..." Because section 736.1004 does not expressly authorize recovery of attorney's fees for time spent litigating an alternative and unsuccessful ground for fees, Appellee may not recover the hours for the time spent litigating the entitlement to fees for the unsuccessful section 57.105 motion. See Sand Lake Hills Homeowners Ass'n v. Busch, 210 So.3d 706, 709 (Fla. 5th DCA 2017) ("A statute that awards attorney's fees is in derogation of the common law rule that each party pay its own attorney's fees and must be strictly construed." (citing Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla. 2003) )).

Accordingly, we reverse in part and remand to the trial court. If the trial court has already reduced the award for the time spent litigating the unsuccessful section 57.105 motion, then it shall make that clear in its subsequent order. Otherwise, the trial court shall remove the time spent litigating the unsuccessful section 57.105 motion in its award. In all other respects we affirm.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED with Instructions.

ORFINGER and LAMBERT, JJ., concur.


author: KELLY, Judge.

text:
    VALENCIA GOLF AND COUNTRY CLUB HOMEOWNERS' ASSOCIATION, INC., Appellant, v. COMMUNITY RESOURCE SERVICES, INC. and Orangetree Homeowners Association, Inc., Appellees.
    Case No. 2D17-4986
    District Court of Appeal of Florida, Second District.
    Opinion filed May 22, 2019.
    Mark E. Adamczyk and Kelsey L. Hazzard of Adamczyk Law Firm, PLLC, Naples, for Appellant.
    Suzanne M. Boy, Shannon M. Puopolo, and Douglas B. Szabo of Henderson, Franklin, Starnes, & Holt, Fort Myers, for Appellees.
   KELLY, Judge.

Valencia Golf and Country Club Homeowners' Association, Inc. (Valencia), appeals from a final judgment that awards attorneys' fees of $ 29,699 and costs of $ 5188.58 to the appellees, Community Resource Services, Inc. (CRS), and Orangetree Homeowners' Association, Inc. (Orangetree HOA), as prevailing parties in the litigation. Valencia contends that even though it voluntarily dismissed its complaint against the appellees, the appellees were not prevailing parties entitled to an award of fees and costs. We agree and reverse.

The Valencia Golf and Country Club residential community in Naples, Collier County, is one of several that make up a larger master planned development known as Orangetree. The appellant is a homeowners' association that operates the Valencia Golf and Country Club residential community. Appellee Orangetree HOA is the master association for the Orangetree development. Residences in Valencia are governed both by the Declaration of Covenants, Conditions, and Restrictions of Valencia Golf and Country Club and by the Declaration of General Protective Covenants and Restrictions of Orangetree.

Article X, section 22 of the Valencia Declaration states that Valencia "has entered or will enter into an agreement" with the appellee, Community Resource Services, Inc. ("CRS"), for the provision of effluent (treated wastewater) for irrigation to Valencia Golf and Country Club. In addition, article VII, section 7.16 of the Master Declaration asserts that Orangetree HOA "has entered into an Agreement to supply the residential dwelling owners with cable television services." In 2014, a dispute arose between the parties over the provision of irrigation and cable services to Valencia. Valencia filed a complaint for declaratory relief, seeking the court's interpretation of certain terms in the covenants and cable and irrigation service agreements. In its pretrial statement, Valencia identified the key issues to be decided by the court as whether the appellees had "the right to provide services, under what agreement, and under what provisions of such agreement do they have the right to increase the cable rates and irrigation water rates, and the means by which those increases are calculated and levied."

During discovery, Valencia obtained a copy of the relevant cable agreement which cleared up the matters concerning cable service. Valencia also obtained a copy of the Irrigation Water Service Agreement reached in 2005 between CRS and the predecessor to Valencia. Later in January 2017, the Board of County Commissioners and CRS entered into an agreement regarding the use of effluent in the Valencia Golf and Country Club Community (the Delivery Agreement). The Delivery Agreement, which Valencia also executed, read together with the 2005 Agreement, clarified the rate to be charged for effluent and under what circumstances that rate could change-precisely the outcome Valencia sought in its claim for declaratory relief.

On January 31, 2017, the court held a status conference, after which it was noted in the record that all matters in controversy had been resolved. On February 1, 2017, Valencia filed a notice of voluntary dismissal, explaining that the cable service and irrigation water rate issues had been settled. It stated that during the pendency of the action, an agreement had been reached which "resolved the bona fide, actual, present and practical need for a declaration of the court to determine what agreements governed the provision of services, who the parties to those agreements are, the services to be provided, the rates to be charged, and other provisions that govern the contractual relationship."

Thereafter, CRS and Orangetree HOA filed a motion to tax attorneys' fees and costs. They argued that the appellees were the prevailing parties in the matter, citing Yampol v. Schindler Elevator Corp., 186 So.3d 616, 617 (Fla. 3d DCA 2016), for the general rule that the defendant is the prevailing party when a plaintiff voluntarily dismisses an action. Valencia countered that there was no contractual or statutory basis for an award of fees but that assuming fees were available, Valencia should be considered the prevailing party because "[a]s a result of the litigation, the Defendants were forced to provide documents (agreements) requested and the Defendants were forced to execute a separate and distinct agreement clarifying its obligations to the Plaintiff, just as was demanded in the Complaint."

The trial court entered an order granting the appellees' motion to tax attorneys' fees and costs, as to entitlement only, pursuant to sections 720.305 and 57.105, Florida Statutes (2015). Thereafter, the court rendered the final judgment for fees and costs in the amount of $ 34,887.58.

"In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party." Thornber v. City of Fort Walton Beach, 568 So.2d 914, 919 (Fla. 1990). However, this case falls under the exception, rather than the general rule. As the Fourth District stated in Kelly v. Bankunited, FSB, 159 So.3d 403, 407 (Fla. 4th DCA 2015) :

[I]n a situation where both Appellant and Appellee compromised in effectively agreeing to a settlement to end their litigation, we will not hold Appellee responsible for payment of Appellant's attorneys' fees, as Appellee's dismissal of the pending complaint following the settlement was the obvious and appropriate course of action. Where a plaintiff's voluntary dismissal results in neither party substantially prevailing in the litigation outcome, neither party is the prevailing party for purposes of attorneys' fees.

See also Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So.3d 1034, 1041 (Fla. 2d DCA 2013) ("A court may look behind a voluntary dismissal at the facts of the litigation 'to determine whether a party is a "substantially" prevailing party.' " (quoting Walter D. Padow, M.D., P.A. v. Knollwood Club Ass'n, 839 So.2d 744, 745 (Fla. 4th DCA 2003) )). The purpose of section 57.105 is to deter misuse of the judicial system and discourage needless litigation. Kelly, 159 So.3d at 406. "[T]o declare [appellees] the prevailing part[ies] and entitled to attorneys' fees under these facts would be contrary to that goal." Id.; see also Tubbs, 125 So.3d at 1041. We reach this result to avoid penalizing Valencia with a substantial assessment of attorneys' fees for dismissing their claims where a continuation of the lawsuit "would have been a waste of resources." See Padow, 839 So.2d at 746.

Accordingly, we reverse the final judgment awarding attorneys' fees and costs to Orangetree HOA and CRS.

Reversed.

SILBERMAN and LENDERMAN, JOHN C., ASSOCIATE SENIOR JUDGE Concur.


author: Per Curiam.

text:
    Nkosi Albertie CHAMBERLAIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3324
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Nkosi Albertie Chamberlain, pro se, Petitioner.
    Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed as moot.

Wolf, Bilbrey, and Winsor, JJ., concur.


author: COHEN, J.

text:
    Victor Manuel AMARO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2744
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 24, 2019
    W. Charles Fletcher, Jacksonville, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Victor Manuel Amaro appeals the denial of his amended Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, which alleged six grounds of ineffective assistance of trial counsel. The postconviction court summarily denied grounds II, V, and VI and denied grounds I, III, and IV following an evidentiary hearing. We affirm.

The underlying facts of this case involved a shootout that occurred at a VFW lodge between two rival motorcycle gangs, the Florida Warlocks and the Philadelphia ("Philly") Warlocks. A jury found Amaro guilty of two counts of second-degree murder and acquitted him of a third count of second-degree murder and two counts of attempted first-degree murder. This Court affirmed Amaro's conviction. See Amaro v. State, 179 So.3d 335 (Fla. 5th DCA 2015) (per curiam).

On appeal of the denial of his amended motion for postconviction relief, Amaro argues that the postconviction court erred in summarily denying grounds II, V, and VI when the State conceded that he was entitled to an evidentiary hearing on all claims. This argument is meritless because a court is not bound by such concessions. See Fla. R. Crim. P. 3.850(f)(4) ; see also Lebron v. State, 100 So.3d 132, 133 (Fla. 5th DCA 2012) ("If a ground's allegations are facially sufficient (pled in sufficient detail), the trial court must grant an evidentiary hearing unless the allegations are legally invalid (legally insufficient on their face) or records in the court's file conclusively show that the defendant is entitled to no relief." (emphasis added) (citations omitted)). We find that the postconviction court's analysis in its order and attachments thereto support the summary denial of grounds II, V, and VI. We also affirm the denial of ground IV without further discussion.

We write to address grounds I and III of Amaro's motion, which the court denied after an evidentiary hearing.

In ground I, Amaro alleged that his trial counsel was ineffective for failing to file a pretrial motion in limine requesting a Daubert hearing to either exclude or limit the State's introduction of expert testimony on tool-mark identification. Amaro presented no expert testimony during his postconviction hearing. On appeal, he fails to cite to any authority in support of his position-that such expert testimony should be excluded or limited based on its unreliability or relevance pursuant to Daubert. Rather, he relies on a series of articles based on a Google search that challenge the reliability and conclusiveness of ballistics evidence. However, Amaro did not present these articles below, and the articles are not part of the record on appeal. Thus, Amaro's inclusion of this search in his brief was improper. E.g., State v. Town of Sweetwater, 112 So.2d 852, 854 (Fla. 1959) (finding argument presented without citation or legal authority failed to meet burden of demonstrating error).

Forensic firearm and tool-mark identification evidence is not a new or novel methodology, and its admissibility in criminal cases is well-documented in Florida's jurisprudence. See King v. State, 89 So.3d 209, 228 (Fla. 2012) ("Decisional law demonstrates that tool-mark identification in the context of ballistics has been used in the criminal context since at least 1929, and in Florida since at least 1937." (citations omitted)). Because of the widespread acceptance of ballistics evidence, courts have admitted expert testimony regarding such evidence under both the Daubert and Frye standards. See United States v. Hicks, 389 F.3d 514, 526 (5th Cir. 2004) (finding expert firearm comparison testing methodology reliable under Daubert standard and thus, admissible); Foster v. State, 132 So.3d 40, 69 (Fla. 2013) (holding that because tool-mark examination in ballistics was not new or novel methodology, trial counsel was not deficient in failing to demand Frye hearing before admission of expert's testimony); King, 89 So.3d at 229 (finding that trial court did not err in declining to conduct Frye hearing based on "well-documented history of tool-mark identification over the last century"). Thus, we agree with the postconviction court that Amaro failed to establish deficient performance and prejudice as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), based on his trial counsel's failure to move to exclude the tool-mark evidence under Daubert. See also Foster, 132 So.3d at 69.

In ground III, Amaro alleged ineffective assistance based on his trial counsel's failure to request a cautionary instruction regarding unasked juror questions and to object to the trial court's noncompliance with Florida Rule of Criminal Procedure 3.371. Although we conclude that Amaro waived this claim for appellate review by failing to cite to the record or transcript to identify the questions at issue, we address the merits of the claim for the benefit of future litigants.

During Amaro's trial, the court permitted the jury to submit written questions to be asked of witnesses. Rule 3.371 governs the procedure for juror questioning of witnesses during a criminal trial and provides:

(a) Judicial Discretion. At the discretion of the presiding trial judge, jurors may be allowed to submit questions of witnesses during the trial.
(b) Procedure. The trial judge shall utilize the following procedure if a juror indicates that the juror wishes to ask a question:
(1) the questions must be submitted in writing;
(2) the trial judge shall review the question outside the presence of the jury;
(3) counsel shall have an opportunity to object to the question outside the presence of the jury;
(4) counsel shall be allowed to ask follow up questions; and
(5) the jury must be advised that if a question submitted by a juror is not allowed for any reason, the juror must not discuss it with the other jurors and must not hold it against either party.

Fla. R. Crim. P. 3.371. The record reflects that the trial court failed to comply with subsection (b)(5).

In denying this claim, the postconviction court partially reasoned that trial counsel's failure to request such an instruction or to object to the court's failure to comply with the rule constituted reasonable trial strategy. We reject this reasoning. Amaro's trial counsel admitted at the postconviction hearing that he was unfamiliar with the rule. Decisions based upon either a lack of knowledge or misunderstanding of the law cannot constitute reasonable trial strategy. Butler v. State, 84 So.3d 419, 421 (Fla. 5th DCA 2012) ("It is well established, in a number of contexts, that 'a tactical or strategic decision is unreasonable if it is based on a failure to understand the law.' " (quoting Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003) )).

However, the postconviction court correctly determined that Amaro failed to establish prejudice from the trial court's failure to give a cautionary instruction as to unasked juror questions. In his postconviction motion, Amaro asked the court to "presume prejudice," stating:

[Amaro] has no way of proving now that that [sic] any one juror discussed an unasked question of theirs with another juror, or that any juror whose question went unasked may have felt embarrassed or antagonized by the rejection or otherwise ascribed any improper implication as the reason for the trial court's not presenting the question to a particular witness, which resulted in that jurors [sic] harboring a bias against the defense.
....
Thus, in light of the trial court's failure to employ the protective procedure and the failure of Mr. Amaro's trial counsel to object to that deprivation, Mr. Amaro moves this Court to presume prejudice such as that described by the United States Supreme Court in Estes v. Texas, 381 U.S. 532, 542-543, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).

The law will presume prejudice and deem counsel per se ineffective in rare circumstances. E.g., Chavez v. State, 12 So.3d 199, 211 (Fla. 2009) (presuming prejudice where defendant demonstrates that counsel "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing," i.e., "when counsel was totally absent, was prevented from assisting the accused during a critical stage of the proceeding, or had a conflict of interest that affected the adequacy of representation" (quotations and citations omitted)). Counsels' deficiencies in such cases generally go to the very essence of a defendant's constitutional right to competent counsel or the right to receive a fair trial. Id.

While counsel should have requested the trial court to instruct the jury as to unasked juror questions, we are unwilling to presume prejudice and deem counsel ineffective per se. To decide otherwise would effectively find that the failure to instruct the jury pursuant to Rule 3.371(b)(5) constitutes per se reversible error. Thus, as to ground III, we find that the court did not err in concluding that Amaro failed to meet his burden of establishing prejudice under Strickland.

AFFIRMED.

BERGER and WALLIS, JJ., concur.

      The Honorable Jessica J. Recksiedler presided over the trial, and the Honorable Debra S. Nelson presided over the postconviction proceedings.

      The Veterans of Foreign Wars of the US.

      Further, in his initial brief, Amaro addressed his substantive basis for relief as to grounds II and V but not ground VI. Thus, we deem ground VI waived. E.g., Coolen v. State, 696 So.2d 738, 742 n.2 (Fla. 1997) (noting that failure to fully brief and present argument in support of points on appeal "constitutes a waiver of these claims").

      Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). At the time of trial, Daubert had been the new evidentiary standard for approximately ten months. See § 90.702, Fla. Stat. (2014) (incorporating Daubert standard into Florida Rules of Evidence), amended by ch. 2013-107, § 1, Laws of Fla., eff. July 1, 2013, invalidated by DeLisle v. Crane Co., 258 So.3d 1219, 1229 (Fla. 2018).

      The State's firearm expert rendered testimony that conclusively linked the bullet recovered from one victim to Amaro's gun. The expert further testified that a comparison of the bullet recovered from a second victim demonstrated a "positive inconclusive" link to another of Amaro's guns, meaning that the bullet was likely fired from his weapon.

      We acknowledge that the certainty of such tool-mark examinations is an issue in criminal cases.

      Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

      With a trial transcript of over 1300 pages, failure to identify the questions at issue renders the claim waived for appellate review. E.g., Barwick v. State, 88 So.3d 85, 101 (Fla. 2011) (holding that defendant waived appellate review of his postconviction claim that trial counsel was ineffective for failure to object to certain comments by the State where defendant failed to direct court's attention to comments at issue).

      We note that Amaro misrepresents the rule throughout his brief. He references the number of questions asked by the jurors, placing that number at over 100. It is undisputed that the trial court properly administered the first four requirements of Rule 3.371. Amaro's claim relates only to counsel's failure to request an instruction as to unasked questions pursuant to subsection (b)(5).

      If trial judges allow jurors to ask questions, we encourage compliance with all the procedures of Rule 3.371, as Judge Alterbernd did in dicta in Richards v. State, 39 So.3d 431, 434 (Fla. 2d DCA 2010).


author: CASANUEVA, Judge.

text:
    Indasia UNDERWOOD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4525
    District Court of Appeal of Florida, Second District.
    Opinion filed May 24, 2019.
    Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   CASANUEVA, Judge.

In this Anders appeal, Indasia Underwood appeals an order of revocation of community control and a judgment and sentence for one count of unlawful possession of the personal identification information of another (five or more). We affirm the judgment, sentence, and order of revocation without comment.

After sentencing, Ms. Underwood filed a pro se motion for mitigation and reduction of sentence and subsequently filed a pro se notice of appeal. After the notice of appeal was filed, the trial court entered an order denying the motion for mitigation and reduction of sentence. The trial court was without jurisdiction to consider the motion after the notice of appeal was filed. See Othouse v. State, 912 So. 2d 682, 682 (Fla. 2d DCA 2005). The trial court should have dismissed the motion rather than deny it. See Hawthorne v. State, 226 So. 3d 292, 293 (Fla. 2d DCA 2017) ("Because the filing of a notice of appeal divests the trial court of jurisdiction, the trial court should have dismissed the motion on that basis instead of denying it."). Accordingly, we remand for the trial court to vacate the order denying the motion for mitigation and reduction of sentence and enter an order dismissing the motion for lack of jurisdiction. Our affirmance is without prejudice to any right Ms. Underwood may have to raise this issue in a timely motion for postconviction relief. See Fla. R. Crim. P. 3.800(c).

Affirmed; remanded with instructions.

VILLANTI and ATKINSON, JJ., Concur.

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


author: PER CURIAM.

text:
    WELLS FARGO BANK, N.A., Appellant, v. George A. ORDONEZ and Amaryllis Ordonez, Appellees.
    Case No. 2D17-3156
    District Court of Appeal of Florida, Second District.
    Opinion filed May 24, 2019.
    Michael K. Winston and Dean A. Morande of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa, (withdrew after briefing); Angela Leiner of The Law Office of Angela L. Leiner, P.A., for Appellees.
   PER CURIAM.

We reverse the trial court's judgment against Wells Fargo Bank, N.A. We hold that the executive branch has already determined that there is no additional tax due under the unique facts of this case. See § 201.08(5), (6), Fla. Stat. (2010) ; Fla. Admin. Code R. 12B-4.052(12)(a) (2010) ("A renewal that does not add obligor(s) and merely changes the interest rate, the maturity date, or the payment terms is not subject to tax, provided tax was paid on the original document and the original document is attached to the renewal."). Accordingly, it was reversible error for the trial court to enter judgment against Well Fargo on this basis.

Reversed and remanded.

KELLY, BADALAMENTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Robert F. RAFF and Bernice R. Raff, Appellants, v. CITIMORTGAGE, INC., Appellee.
    Case No. 2D16-4721
    District Court of Appeal of Florida, Second District.
    Opinion filed May 24, 2019.
    Mark P. Stopa of Stopa Law Firm, LLC, Tampa (withdrew after briefing), and Latasha Scott of Lord Scott, PLLC, Tampa (withdrew after briefing), for Appellants.
    Nancy M. Wallace and Ryan D. O'Connor of Akerman LLP, Tallahassee; and William P. Heller of Akerman LLP, Fort Lauderdale, for Appellee.
   CASANUEVA, Judge.

Robert F. Raff and Bernice R. Raff appeal a final judgment of foreclosure entered in favor of Citimortgage, Inc. We find merit only in their argument that the trial court improperly awarded attorney's fees to Citimortgage, and we reverse that portion of the final judgment.

The Raffs argue, and Citimortgage concedes, that there was insufficient evidence to support the award of attorney's fees. In Sourcetrack, LLC v. Ariba, Inc., 34 So. 3d 766, 768 (Fla. 2d DCA 2010), this court noted that an award of attorney's fees must be supported by expert testimony from attorneys who are not involved in the case. In the present case, the only testimony offered at trial to support an award of attorney's fees came from an employee of Citimortgage. She testified that Phelan Hallinan represents Citimortgage in this action and that Citimortgage is required to pay Phelan Hallinan a reasonable fee for its services. She was asked, "Can you tell me how much you are asking for?" The witness responded, "$ 3,717.50." As Citimortgage now concedes, this testimony was insufficient to support the award of fees. See Sciandra v. PennyMac Corp., 227 So. 3d 164, 164 (Fla. 2d DCA 2017) ("[T]he trial court improperly awarded attorney's fees of $ 11,309 to PennyMac because PennyMac failed to present expert testimony as to the reasonableness of their attorney's hourly rate and hours expended.").

Therefore, we reverse the award of attorney's fees and remand with instructions to reduce the amount of the final judgment by $ 3,717.50. We affirm the final judgment of foreclosure in all other respects.

Affirmed in part; reversed in part; remanded with instructions.

BLACK and LUCAS, JJ., Concur.


author: LaROSE, Chief Judge.

text:
    Terrell D. FRANKLIN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D17-2958
    District Court of Appeal of Florida, Second District.
    Opinion filed May 29, 2019
    ORDER ON RESPONDENT'S MOTION FOR REHEARING AND MOTION TO CERTIFY CONFLICT
   LaROSE, Chief Judge.

The Respondent's motion for rehearing and motion to certify conflict are denied.

BADALAMENTI, J., Concurs.

ATKINSON, J., Concurs in result only with opinion.

ATKINSON, Judge, Concurring in result only.

I concur in the denial of the State's motion for rehearing. The State argued that this court overlooked or misapprehended the Florida Supreme Court's decision in Dean v. State, 230 So.3d 420 (Fla. 2017), which held that failure to give a requested jury instruction on a necessarily lesser included offense one step removed from the charged offense is subject to a harmless error analysis and is no longer per se reversible error. I agree with the foregoing characterization of the holding of Dean, and if Dean were the supreme court's latest pronouncement on the subject, I would vote to grant rehearing and deny Franklin's petition alleging ineffective assistance of appellate counsel.

In Dean, a plurality opinion joined by four justices of the supreme court answered a question certified by the Fourth District to be of great public importance by holding that manslaughter is a category one lesser included offense of second-degree felony murder. Id. at 421. The Fourth District had reached the opposite conclusion, rejecting Dean's argument that the trial court had "erred in denying his request for the manslaughter instruction because it is a necessarily lesser included offense of second-degree felony murder and, therefore, the trial court was required to give the instruction." Id. at 422 (citing Dean v. State, 199 So.3d 932, 935 (Fla. 4th DCA 2016) ).

Yet, despite its holding that manslaughter was a necessarily included lesser offense, on which failure to give a requested instruction would be reversible error, the plurality opinion "approve[d] the result of the Fourth District's decision to affirm Dean's convictions." Id. at 425 (emphasis added). Reconciliation of these ostensibly incongruous determinations-that the trial court erred but the convictions should be upheld-can only be found in Justice Polston's concurring opinion: "In cases such as this one, where the evidence supports the charged offense as well as the requested instruction on a necessarily lesser included offense, any error in failing to give the requested instruction is harmless because the defendant is not entitled to an opportunity for a jury pardon." Id. at 426 (Polston, J., concurring). This is confirmed by the rationale expressed in the plurality opinion itself, which affirms the convictions in part "[f]or the reasons expressed in Justice Polston's concurring opinion." Id. at 425.

Justice Polston's concurring opinion itself only received three votes, leading the Fourth District to the conclusion that it was not a "binding precedential opinion." See Caruthers v. State, 232 So.3d 441, 441 (Fla. 4th DCA 2017) (quoting Santos v. State, 629 So.2d 838, 840 (Fla. 1994) ). However, the abrogation of the pardon power-and the conclusion that failure to give a requested instruction on a necessarily included offense one step removed from the charged offense is not per se reversible-was binding precedent because it was incorporated by the four-vote plurality opinion, the result of which was dependent on the harmless error rationale in Justice Polston's concurring opinion. See Knight v. State, 267 So.3d 38, 44 (Fla. 1st DCA 2018) (certifying conflict with Caruthers ).

Under the well-reasoned holding of the supreme court's Dean decision, Franklin's petition alleging ineffective assistance of appellate counsel should be denied because the trial court's erroneous instruction on the necessarily included lesser offense of attempted voluntary manslaughter was harmless. The jury found beyond a reasonable doubt that the Franklin was guilty of the greater offense of attempted second-degree murder. See Dean, 230 So. 3d at 426 (Polston, J., concurring) (finding that, in light of the jury's guilty verdict establishing that the elements of second-degree felony murder had been proven beyond a reasonable doubt, "the jury would still have been required to find Dean guilty of second-degree felony murder" "even if the trial court had given an instruction on manslaughter"); Knight, 267 So.3d at 44 (finding incorrect instruction on lesser included attempted voluntary manslaughter harmless (citing Dean, 230 So. 3d at 426 )).

However, subsequent to its opinion in Dean, the Florida Supreme Court issued an opinion reversing a conviction of attempted second-degree murder because "the trial court committed fundamental error by failing to instruct the jury on attempted manslaughter by act, a necessarily lesser included offense." Roberts v. State, 242 So.3d 296, 299 (Fla. 2018) ("If giving an incorrect instruction on a necessarily lesser included offense constitutes fundamental error, then a fortiori giving no instruction at all likewise constitutes fundamental error." (quoting Walton v. State, 208 So.3d 60, 65 (Fla. 2016) )). Justice Polston, now in the minority, disagreed that such error was fundamental, concluding that, "because the evidence supports the jury's verdict of attempted second-degree murder" on which it was properly instructed, "the defendant is not entitled to a new trial based upon the failure to instruct the jury on the lesser included offense." Id. at 300 (Polston, J., dissenting) ("No defendant has the right to a trial in which the judge facilitates the jury's acting in disregard of the law[.]" (quoting Haygood v. State, 109 So.3d 735, 749 (Fla. 2013) (Canady, J., dissenting))).

The issue at the time of our decision was governed by Roberts, which compelled a conclusion that Franklin was entitled to relief because failure to correctly instruct on the necessarily lesser included offense was per se reversible error not subject to harmless error analysis. Roberts, 242 So. 3d at 299-300. As such, I cannot say that this court overlooked or misapprehended binding precedent favorable to the State's position, and we must therefore deny its motion for rehearing.

      Judge Badalamenti has been substituted for Judge Crenshaw, who was on the original panel.

      Although arguably unnecessary where the jury has found the greater crime beyond a reasonable doubt and "any error in failing to give the requested instruction is harmless because the defendant is not entitled to an opportunity for a jury pardon," Dean, 230 So. 3d at 426 (emphasis added), the First District noted that the evidence in its case "very strongly support[ed] the offense of conviction," Knight, 267 So.3d at 44. It is worth pointing out that evidence in this case included testimony that Franklin pointed a loaded gun at the victim's head before the ensuing struggle that resulted in the victim being nonfatally shot.