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

text:
    Corie COPELAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3441
    District Court of Appeal of Florida, First District.
    May 16, 2018
    Andy Thomas, Public Defender, A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Julian E Markham, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges the trial court's denial of his motion to suppress. Because we hold that the bedroom in which officers observed narcotics was "immediately adjoining" the place of Appellant's arrest, we affirm the trial court's order.

Facts

Investigator Rodney Owens of the Walton County Sheriff's Office testified that a "breach team" of five Walton County Sheriff's deputies and one Santa Rosa County Sheriff's deputy approached Appellant's residence to execute an arrest warrant. A narcotics unit that was surveilling the residence had observed Appellant arrive and enter the residence.

Deputies knocked and announced at the residence for approximately forty-five seconds. A member of the narcotics unit observing the rear perimeter of Appellant's apartment saw Appellant look out a bathroom window that faced the rear of the building, and this information was relayed to the entry team. The deputies breached the door to Appellant's apartment, but remained outside the residence, calling Appellant's name and stating they had a warrant for his arrest. Appellant remained in the apartment, and the deputies then entered the residence.

Deputy Panchaud of the Santa Rosa County Sheriff's Office testified that he and the other deputies entered the residence in a "stack" formation. The deputy "cleared" the kitchen area and then checked a bedroom for other occupants, while other deputies made contact with and detained Appellant at the bathroom. Deputy Panchaud saw what appeared to be narcotics in plain view on a table in the bedroom.

Deputy Goddin of the Walton County Sheriff's Office testified that Appellant eventually came out of the bathroom, and officers restrained Appellant in the doorway area of the bathroom while officers continued clearing the residence. Deputy Goddin testified that the bedroom where the narcotics were observed was adjacent to and approximately "four to six feet" from the bathroom where Appellant was seized. Investigator Dennis Fields estimated that the bedroom was ten feet from the place of arrest.

Investigator Fields testified that Deputy Panchaud told him there was suspected methamphetamine and suspected marijuana in the back bedroom next to the bathroom. Investigator Owens testified that the surveillance team informed him that no one other than Appellant had entered Appellant's apartment in the hour and fifteen minutes that they observed the apartment. Deputy Goddin testified that he had "no way of knowing" whether there was anyone besides Appellant inside the residence.

The trial court denied Appellant's motion to suppress, finding that the proximity of the bathroom where Appellant was arrested was close enough to the bedroom where the narcotics were observed to justify seizure of the contraband. Following the jury trial, Appellant was found guilty of trafficking illegal drugs, possession of a controlled substance, possession of drug paraphernalia, and tampering with evidence, and he was sentenced to a term of thirty years' imprisonment.

Analysis

The standard of review on motions to suppress is a mixed question of law and fact. Appellate courts defer to a trial court's finding of fact, if it is supported by competent, substantial evidence. We review de novo the trial court's application of law to the facts. Delhall v. State , 95 So.3d 134, 150 (Fla. 2012). Florida courts are bound by the United States Supreme Court's decisions regarding search and seizure. Bernie v. State , 524 So.2d 988, 991 (Fla. 1988). While warrantless searches and seizures inside a home are "presumptively unreasonable" and prohibited by the Fourth Amendment, exceptions may apply to allow such searches. Payton v. New York , 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). This is one of those exceptions.

In Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the Supreme Court outlined two types of "sweeps" that officers may perform incident to a lawful arrest: (1) a precautionary sweep, which officers may perform incident to arrest, without probable cause or reasonable suspicion, in which officers may look in closets and other spaces "immediately adjoining the place of arrest from which an attack could be immediately launched"; and (2) a protective sweep beyond the precautionary sweep, for which "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. Reasonable articulable suspicion is required to justify the second, broader sweep. Id. at 327, 110 S.Ct. 1093. "A protective sweep may last 'no longer than is necessary to dispel the reasonable suspicion of danger' and 'no longer than it takes to complete the arrest and depart the premises.' " United States v. Thomas , 429 F.3d 282, 287 (D.C. Cir. 2005) (quoting Buie , 494 U.S. at 335-36, 110 S.Ct. 1093 ).

Based on officer testimony at the suppression hearing, Appellant argues that the officers did not possess the articulable suspicion necessary to justify the broader "protective sweep." However, no articulable suspicion was necessary to justify a precautionary sweep of the spaces immediately adjoining the place of arrest. Buie , 494 U.S. at 334, 110 S.Ct. 1093.

Florida courts have not clearly defined whether a bedroom directly adjacent to the place of arrest is "immediately adjoining," but the definition set out by federal courts is persuasive. In Thomas , the United States Court of Appeals for the District of Columbia held that an entire small apartment may immediately adjoin the place of arrest:

The safety of the officers, not the percentage of the home searched, is the relevant criterion. If an apartment is small enough that all of it "immediately adjoin[s] the place of arrest" and all of it constitutes a space or spaces "from which an attack could be immediately launched," then the entire apartment is subject to a limited sweep of spaces where a person may be found.

Thomas , 429 F.3d 282, 288 (D.C. Cir. 2005) (quoting Buie , 494 U.S. at 334, 110 S.Ct. 1093 ) (citations omitted).

The United States Court of Appeals for the Seventh Circuit also recognized what a valid precautionary sweep entails: " Buie held that police may walk through rooms adjacent to the one in which they make an arrest, to ensure that no danger lurks within. The officers need not demonstrate any danger; they may look simply as precaution." United States v. Brown , 64 F.3d 1083, 1086 (7th Cir. 1995) (citations omitted).

Officer testimony here indicated that the bedroom in which the narcotics were observed was directly adjacent to the bathroom where Appellant was apprehended, and was between four and ten feet from the area of arrest. We hold that Appellant's bedroom was therefore "immediately adjoining" the place of arrest, and officers did not need articulable suspicion to search therein. We therefore affirm the trial court's denial of Appellant's motion to suppress evidence observed during this precautionary sweep.

Appellant also argues that the trial court abused its discretion by denying his motion for mistrial based on Investigator Fields' testimony that Appellant used methamphetamine, an uncharged offense. A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial. Hamilton v. State , 703 So.2d 1038, 1041 (Fla. 1997). An alleged prejudicial remark is considered in light of the charged offenses in order to determine pervasiveness. See Gardner v. State , 54 So.3d 1024, 1025 (Fla. 1st DCA 2011) ; see also Hamilton , 703 So.2d at 1041 (finding no error in trial court's denial of motion for mistrial where witness testimony indicated that a defendant, charged with first-degree murder, sexual battery, robbery, and kidnapping, was involved in another murder). We find that Investigator Fields' remark did not vitiate the entire trial, where Appellant was charged with trafficking in illegal drugs (heroin, morphine, opium, 28 grams or more, but less than 30 kilograms, possession of a controlled substance (less than 20 grams of cannabis), possession of drug paraphernalia, and tampering with evidence, and the trial court did not abuse its discretion in denying Appellant's motion for mistrial.

AFFIRMED.

Wetherell and Winsor, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Ernest L. ARCHIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1269
    District Court of Appeal of Florida, First District.
    May 17, 2018 Rehearing Denied July 16, 2018
    Ernest L. Archie, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Henley v. State , 171 So.3d 133 (Fla. 1st DCA 2015) (noting that time to appeal runs from date order is rendered by filing with the clerk of the court); see also Ashley v. State , 845 So.2d 1008 (Fla. 5th DCA 2003) (time to appeal runs from date order is rendered, not date order is received by inmate appellant).

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


author: PER CURIAM.

text:
    Vinson T. BLOCKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-16
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 18, 2018
    Vinson T. Blocker, Sneads, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the summary denial of all issues raised by Vinson T. Blocker ("Appellant") in his Florida Rule of Criminal Procedure 3.850 amended motion for postconviction relief, save one. Under the specific facts of this case, Appellant's dual convictions for dealing in stolen property and petit theft are improper. See Hall v. State , 826 So.2d 268, 271 (Fla. 2002) (finding that section 812.025, Florida Statutes, prohibits a trial court from adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct); Shearer v. State , 582 So.2d 28, 29 (Fla. 5th DCA 1991) (concluding that the petit theft of a camera and the dealing in stolen property of the camera committed on the same day arose out of the same course of conduct or scheme).

We next address the remedy. Where, as here, the jury is properly instructed under section 812.025 but nevertheless returns dual guilty verdicts for both theft and dealing in stolen property that are contrary to section 812.025, we conclude that the appropriate remedy is to vacate the conviction for the lesser offense of petit theft. Cf. Blackmon v. State , 121 So.3d 535, 548-49, 549 n.18 (Fla. 2013) (holding that where the jury was not properly instructed under section 812.025 but the defendant failed to request a proper instruction or to otherwise preserve the error for appellate review and the jury returns dual guilty verdicts for both theft and dealing in stolen property that are contrary to section 812.025, the proper remedy is vacating the conviction for the lesser offense).

Lastly, based upon the trial court's findings in the denial order that it would have imposed the same sentences for Appellant's other convictions regardless of the "negligible" change in the scoresheet resulting if the petit theft conviction were vacated, we deny Appellant's request to be resentenced on his other convictions.

Accordingly, we reverse and remand to the trial court to vacate Appellant's conviction and sentence for petit theft. We affirm the postconviction court's order in all other respects.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

PALMER, BERGER and LAMBERT, JJ., concur.


text:
    Louis BURNEY, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1619
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 18, 2018
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Louis Burney, Jr. ("Burney") appeals his judgment and sentence for kidnapping with a weapon and aggravated battery with a deadly weapon or causing great bodily harm. Burney does not contest the merits of his case but contends that the trial court erred in finding him competent to proceed to trial based upon the parties' stipulation rather than making an independent determination. We agree.

The courts have consistently held that it is error for a trial court to base its decision regarding a defendant's competency upon a stipulation rather than making an independent determination. For example, in Dougherty v. State, 149 So.3d 672 (Fla. 2014), the Florida Supreme Court explained:

[N]othing in our precedent or the State's argument persuades us that a defendant can stipulate to the ultimate issue of competency, even where the written reports reach the same conclusion. Even in a situation where all the experts opine that a defendant is competent, the trial court could presumably disagree based on other evidence such as the defendant's courtroom behavior or attorney representations. Further, the language of rule 3.212(c)(7) and rule 3.212(b) discussed above does not allow parties to stipulate to the issue of competency. See Jones [v. State], 125 So.3d [982] at 984 [ (Fla. 4th DCA 2013) ] (citing Macaluso [v. State], 12 So. 3d [914] at 915 [ (Fla. 4th DCA 2009) ] ).... Thus, based on our precedent and the procedural rules for competency determinations, a defendant cannot stipulate that he is competent, particularly where he has been previously adjudicated incompetent during the same criminal proceedings. Further, if a trial court finds that a defendant is competent to proceed, it must enter a written order so finding.

Id. at 678 (footnote omitted). In Rumph v. State, this court cited Dougherty in holding that "[t]he parties may stipulate to deciding competency based on the written expert reports rather than live expert testimony, but the defendant and the other parties may not stipulate to competency itself ... as the trial court must make an independent determination on the issue." 217 So.3d 1092, 1095 (Fla. 5th DCA 2017) (citing Dougherty, 149 So.3d at 678 ).

In instances where a competency finding is erroneously based on the stipulation of the parties, the courts generally remand the case to the trial court to make a retroactive determination of competency. This procedure was explained by the Fourth District Court in Baker v. State, 221 So.3d 637 (Fla. 4th DCA 2017) :

Thus, on remand, if the court can make a nunc pro tunc finding as to appellant's competency based upon the existence of evaluations performed contemporaneous with trial and without relying solely on a cold record, and can do so in a manner which abides by due process guarantees, then it should do so and enter a corresponding written order.

Id. at 641 ; accord Holland v. State, 185 So.3d 636, 637 (Fla. 2d DCA 2016) ("Accordingly, we remand the case to the trial court for entry of a nunc pro tunc order finding Holland competent to stand trial."). In making this determination, "[t]he parties may agree to the use of the previous evaluators' written reports, which shall be filed with the court and placed in the record." Sheheane, 228 So.3d at 1181. If the trial court determines that a defendant was competent at the time of the trial, it must enter a nunc pro tunc written order without altering the judgment. See Zern, 191 So.3d at 965. "If the trial court finds that [a defendant] was incompetent or that a retrospective determination is not possible in this case, it must hold a new trial, as long as [the defendant] is and remains competent on remand." Id.

We therefore reverse the trial court's order finding Burney competent to proceed and remand this case to the trial court to make a retroactive determination of competency consistent with this opinion.

REVERSED and REMANDED.

SAWAYA, BERGER and WALLIS, JJ., concur.

      The courts in other decisions have reached the same conclusion and remanded cases in which the trial court agreed to a stipulation of competency rather than making an independent determination. See Carrion v. State, 235 So.3d 1051, 1053 (Fla. 2d DCA 2018) ("The trial court erred in failing to make an independent competency finding and in failing to enter a written order of competency."); Moulton v. State, 230 So.3d 934, 937 (Fla. 2d DCA 2017) ("[W]hile the trial court may rely on the written reports if the parties agree to that procedure, the court may not rely solely on the parties' stipulation to competency, and the record must be clear that the court has made an independent determination of the defendant's competency."); Hanna v. State, 232 So.3d 1026, 1027 (Fla. 4th DCA 2017) ("The trial court's reliance on this stipulation was erroneous."); Sheheane v. State, 228 So.3d 1178, 1181 (Fla. 1st DCA 2017) ("To find, as the trial court did here, there were reasonable grounds to believe Appellant may be incompetent, and then allow that same potentially incompetent individual to waive his right to determine competency, does not comport with due process."); Zern v. State, 191 So.3d 962, 965 (Fla. 1st DCA 2016) ("The record in this case establishes that the trial court relied on the stipulation of defense counsel and the preponderance of the experts' ultimate opinions to make its competency determination, without having read all the evaluations. It does not show an independent finding."); Williams v. State, 169 So.3d 221, 223 (Fla. 2d DCA 2015) ("Because the trial court erroneously allowed Williams to stipulate to his competency, we must reverse.").


author: LaROSE, Chief Judge.

text:
    THIRD FEDERAL SAVINGS & LOAN ASSOCIATION OF CLEVELAND, Appellant, v. Leah G. KOULOUVARIS a/k/a Leah Koulouvaris and Nicholas Koulouvaris, Appellees.
    Case No. 2D17-773
    District Court of Appeal of Florida, Second District.
    Opinion filed May 18, 2018
    Morgan L. Weinstein of the Van Ness Law Firm, PLC, Deerfield Beach, for Appellant.
    Mark Stopa of the Stopa Law Firm, Tampa, for Appellees.
   LaROSE, Chief Judge.

Third Federal Savings & Loan Association of Cleveland appeals the trial court's order involuntarily dismissing its foreclosure case. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Third Federal advances a variety of alleged trial court errors. We are not persuaded and, accordingly, affirm. We write for the limited purpose of explaining why the trial court properly dismissed count two of the complaint. In that count, Third Federal sought to recover monies due on a home equity line of credit (HELOC), secured by a second mortgage.

Background

Leah and Nicholas Koulouvaris borrowed money to buy a home in Pasco County. The loan was evidenced by a note and secured by a mortgage. About a week later, they obtained a HELOC, secured by another note and a second mortgage. The HELOC note did not contain a promise by the Koulouvarises to repay a specified sum of money. Nor does our record reflect that Third Federal disbursed any money to them at the closing on the HELOC. Instead, the HELOC provided a credit limit of $40,000. Nothing on the face of the HELOC note indicates how much the Koulouvarises actually borrowed.

Third Federal sued the Koulouvarises after they defaulted on their loans. The foreclosure action proceeded to a nonjury trial. During its case-in-chief, Third Federal moved to admit the HELOC note into evidence. The Koulouvarises raised an authentication objection. They argued that the HELOC note was nonnegotiable and, thus, not a self-authenticating instrument.

The trial court sustained the objection. Third Federal made no further effort to authenticate the HELOC note. The trial court also rejected Third Federal's effort to admit the HELOC mortgage into evidence, explaining that the second mortgage "has no legal significance without a note."

The Koulouvarises moved to involuntarily dismiss the case. As to count two, they argued that Third Federal failed to introduce a note, a mortgage, proof of a default, or any other competent evidence to support foreclosure. Essentially, they maintained that Third Federal failed to establish a prima facie case on its HELOC cause of action. The trial court agreed and dismissed the case.

Analysis

Florida law requires the authentication of a document prior to its admission into evidence. See § 90.901, Fla. Stat. (2012) ("Authentication or identification of evidence is required as a condition precedent to its admissibility."); Mills v. Barker, 664 So.2d 1054, 1057 (Fla. 2d DCA 1995) ; see, e.g., DiSalvo v. SunTrust Mortg., Inc., 115 So.3d 438, 439-40 (Fla. 2d DCA 2013) (holding that unauthenticated default letters from lender could not be considered in mortgage foreclosure summary judgment). Proffered evidence is authenticated when its proponent introduces sufficient evidence "to support a finding that the matter in question is what its proponent claims." § 90.901 ; Coday v. State, 946 So.2d 988, 1000 (Fla. 2006) ("While section 90.901 requires the authentication or identification of a document prior to its admission into evidence, the requirements of this section are satisfied by evidence sufficient to support a finding that the document in question is what its proponent claims.").

There are a number of recognized exceptions to the authentication requirement. One, as relevant here, relates to commercial paper under the Uniform Commercial Code, codified in chapters 678 to 680 of the Florida Statutes. "Commercial papers and signatures thereon and documents relating to them [are self-authenticating], to the extent provided in the Uniform Commercial Code." § 90.902(8) ; see, e.g., U.S. Bank Nat'l Ass'n for BAFC 2007-4 v. Roseman, 214 So.3d 728, 733 (Fla 4th DCA 2017) (reversing the trial court's denial of the admission of the original note in part because the note was self-authenticating); Hidden Ridge Condo. Homeowners Ass'n v. Onewest Bank, N.A., 183 So.3d 1266, 1269 n.3 (Fla. 5th DCA 2016) (stating that because the endorsed note was self-authenticating as a commercial paper, extrinsic evidence of authenticity was not required as a condition precedent to the note's admissibility); Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010) (holding that there was no issue of authentication because the note was self-authenticating under section 90.902(8) ).

Third Federal contends that the trial court should have admitted the HELOC note into evidence. According to Third Federal, the note was a self-authenticating negotiable instrument. We cannot bicker with the proposition that "for over a century ... the Florida Supreme Court has held [promissory notes secured by a mortgage] are negotiable instruments. And every District Court of Appeal in Florida has affirmed this principle." HSBC Bank USA, Nat'l Ass'n v. Buset, 241 So.3d 882, 887, 2018 WL 735265 (Fla. 3d DCA Feb. 7, 2018) (citation omitted). That is as far as we can travel with Third Federal.

The HELOC note is not a self-authenticating negotiable instrument. By its own terms, the note established a "credit limit" of up to $40,000 from which the Koulouvarises could "request an advance ... at any time." Further, the note provided that "[a]ll advances and other obligations ... will reduce your available credit." The HELOC note was not an unconditional promise to pay a fixed amount of money. Rather, it established "[t]he maximum amount of borrowing power extended to a borrower by a given lender, to be drawn upon by the borrower as needed." See Line of Credit, Black's Law Dictionary, 949 (8th ed. 1999).

This distinction is not esoteric legalese. Florida law is clear that a "negotiable instrument" is "an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order." § 673.1041(1), Fla. Stat. (2012) (emphasis added). The HELOC note reflects no such undertaking. It only obligates the Koulouvarises to repay whatever they borrow, up to $40,000.

Recently, the Fifth District reached the same result. In Chuchian v. Situs Invs., LLC, 219 So.3d 992, 993 (Fla. 5th DCA 2017), the borrowers executed a series of credit agreements, the first for a credit line of up to $30,000, the second modified the credit line to up to $90,500. The Fifth District held that the "credit agreement ... was a nonnegotiable instrument because it was not for a fixed sum." Id.

The HELOC note failed to require the payment of a fixed amount of money, making it a nonnegotiable instrument. As such, it was not self-authenticating. Thus, absent other proof of authentication, it was inadmissible into evidence. See, e.g., BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 939 (Fla. 2d DCA 2010) (noting that an unauthenticated document attached as an exhibit to a motion was inadmissible); Wright v. JPMorgan Chase Bank, N.A., 169 So.3d 251, 252 (Fla. 4th DCA 2015) ("This [notice of servicing rights] is not competent evidence, however, because it was never authenticated and admitted into evidence at trial."); Ciolli v. City of Palm Bay, 59 So.3d 295, 297 (Fla. 5th DCA 2011) (noting that an unauthenticated document attached to a memorandum of law does not constitute competent evidence); Tunnell v. Hicks, 574 So.2d 264, 266 (Fla. 1st DCA 1991) (noting that an unauthenticated letter attached as an exhibit to a motion was not admissible and not properly before the court).

Conclusion

We cannot conclude that the trial court erred in sustaining the objection to the admission of the HELOC note. See State v. Wells, 538 So.2d 1292, 1295 (Fla. 2d DCA 1989) ("We recognize that the trial court's ruling in this area of authenticating evidence should be sustained, unless the ruling is clearly erroneous." (citing Justus v. State, 438 So.2d 358, 365 (Fla. 1983) ) ). Ultimately, the trial court's decision to involuntarily dismiss the case was proper.

Affirmed.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: Winsor, J.

text:
    Nathan DYGART, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4977
    District Court of Appeal of Florida, First District.
    May 18, 2018
    Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Winsor, J.

In the fall of 2011, Nathan Dygart exchanged messages with someone he thought was a fourteen-year-old girl named Amber. The two discussed sports, television, and parents. They also discussed sex, Dygart becoming increasingly explicit. The discussions escalated, and Dygart eventually drove to Tallahassee's Killearn subdivision, where he planned to have sex with fourteen-year-old "Amber."

When he arrived in Killearn, Dygart learned there was no "Amber"; he had been corresponding with a police detective involved in a sting operation. Officers arrested Dygart, and the State charged him with two crimes: one violation of section 847.0135(4)(a), which prohibits traveling for sex with a child (or someone thought to be a child) after using a computer to solicit a child for sex; and one violation of section 847.0135(3)(a), which prohibits using a computer to solicit a child (or someone thought to be a child) for sex, whether the perpetrator travels or not.

A jury convicted Dygart on both counts, and the trial judge sentenced him to twenty-four months in prison, plus sex-offender probation. Dygart appealed, arguing insufficient evidence, entrapment, and double jeopardy, among others. This court affirmed with a short opinion that addressed only the double-jeopardy issue. Dygart v. State , 163 So.3d 1292 (Fla. 1st DCA 2015), quashed by Dygart v. State , 2016 WL 1700524 (Fla. Apr. 28, 2016). On that issue, the court concluded it was bound by this court's earlier precedent holding that "dual convictions for violation of sections 847.0135(3) and 847.0135(4), Florida Statutes (2011), do not violate double jeopardy." Id. The court noted, though, that the supreme court had granted review in another case involving this same issue. Id. (citing Shelley v. State , 134 So.3d 1138, 1140-42 (Fla. 2d DCA), review granted , 147 So.3d 527 (Fla. 2014) ).

In State v. Shelley , the supreme court held that separate convictions for solicitation and traveling after solicitation cannot stand if they are "based upon the same conduct." 176 So.3d 914, 919 (Fla. 2015). The court expressly disapproved our earlier decision in State v. Murphy , 124 So.3d 323 (Fla. 1st DCA 2013), which held the opposite, and on which we had relied in Dygart's initial appeal. See Dygart , 163 So.3d at 1292. The supreme court then quashed our initial Dygart decision, remanding for our reconsideration in light of Shelley . Dygart , 2016 WL 1700524. We again affirm.

After Shelley , the law is clear that a single solicitation cannot support a conviction for solicitation and a separate conviction for traveling after solicitation. 176 So.3d at 919. Our task, then, is to determine whether Dygart's two convictions flowed from a single solicitation-whether they were "based upon the same conduct." Id. ; see also Lee v. State , 223 So.3d 342, 351 (Fla. 1st DCA 2017) (en banc) (" Shelley does not disturb well-established precedent allowing for multiple punishments where a defendant commits multiple criminal acts. Accordingly, dual convictions for solicitation and traveling are not barred by Shelley and do not violate double jeopardy, if the record demonstrates that the defendant made two or more solicitations. Rather, the holding in Shelley is limited to cases where the defendant is convicted of both solicitation and traveling after solicitation based on a single act of solicitation."), review granted , SC17-1555, 2018 WL 2065542 (Feb. 8, 2018).

Dygart bears the burden to show that the record demonstrates a double-jeopardy violation. Lee , 223 So.3d at 353 ; Sprouse v. State , 208 So.3d 785, 787 (Fla. 1st DCA 2016) ; Edwards v. State , 139 So.3d 981, 983 (Fla. 1st DCA 2014). Having reviewed the record, we conclude that Dygart has not met his burden. The record includes dozens of text messages over roughly twenty-four hours and included transmissions from which a jury could find multiple, discrete solicitations. Cf. § 847.0135(3), Fla. Stat. (2011) ("Each separate use of a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission wherein an offense described in this section is committed may be charged as a separate offense."). This means Dygart cannot demonstrate that both of his convictions relied on the same specific solicitation, which means that Shelley does not require us to vacate either conviction.

We do not disagree with the concurring opinion's observation that we should look to what the State charged. And nothing in Lee requires otherwise. Here, the State charged Dygart with one count of traveling (which includes as an element an act of solicitation), along with one count of solicitation (which likewise includes as an element an act of solicitation). We have no reason to assume that both counts are based on a single act of solicitation, particularly when the record shows Dygart committed multiple acts of solicitation. Nor can we accept the argument that an individual act of solicitation is not "charged" unless it is charged as a standalone solicitation, unconnected to any traveling violation. When the State charges traveling after solicitation, it is necessarily accusing the defendant of solicitation because solicitation is an element of the offense. See § 847.0135(4)(a), Fla. Stat. (2011) (prohibiting traveling for the purpose of engaging in unlawful sexual conduct "after using a computer online service [or other electronic means] to: (a) Seduce, solicit, lure, or entice" a person believed to be a child to engage in unlawful sexual conduct).

Consider an example. Suppose a defendant solicits a minor over the Internet two separate times. No one would dispute that the defendant could be charged with two counts of solicitation; after all, he committed two separate offenses. Now suppose that after one of the two solicitations the same defendant travels to meet the minor for sex. Has he not still committed two separate offenses? Of course he has: one for the crime of solicitation (for the first solicitation, after which he did not travel) and one for traveling to meet the minor after the second solicitation. In this situation, the first offense turned on one solicitation, and the second offense turned on a second, independent solicitation. Shelley would not require us to presume there was only one solicitation when the record showed more. Instead, Shelley applies only when multiple convictions turn on the same solicitation. Shelley , 176 So.3d at 919 (finding double jeopardy violation when dual convictions for solicitation and traveling after solicitation were "based upon the same conduct"); Lee , 223 So.3d at 351-52 (noting that Shelley holding applies only when multiple convictions are "based on a single act of solicitation").

Last, the concurring opinion notes that Dygart's jury was not instructed that it could convict on both counts only if it found two separate solicitations. But Dygart does not make that argument himself, and he did not preserve any challenge to the jury instructions. Nor has Dygart challenged the adequacy of the verdict form or the specificity of the charging document. He could have proposed different jury instructions below, objected to the verdict form, or filed a motion for a bill of particulars. But we cannot reverse based on issues he did not preserve and does not argue here. Our only issue is whether, on this record, Dygart has met his burden of showing a double-jeopardy violation. Because he has not, we affirm.

AFFIRMED .

Winokur, J., concurs; Makar, J., concurs in result dubitante with opinion.

Makar, J., concurring in result dubitante.

Our en banc decision in Lee v. State , 223 So.3d 342 (Fla. 1st DCA 2017), reh'g denied (Aug. 8, 2017), rev. granted , SC17-1555, 2018 WL 2065542 (Feb. 8, 2018), rejected cogent double jeopardy claims and curbed the applicability of State v. Shelley , 176 So.3d 914 (Fla. 2015), upon which the remand in this case is based. But for Lee , Shelley would control in this case. As in Shelley , Dygart was charged by information with a single violation of section 847.0135(3) (one act of solicitation on or about October 15th-16th) and a single violation of section 847.0135(4)(b) ("traveling after solicitation" on or about October 16th). Like Shelley , where the "State relied upon the same conduct to charge both offenses," id. at 916-17, the charges here relied upon the same conduct over the same closely-specified time period. And, similarly to what happened in Shelley , the State charged no separate and distinct counts of solicitation; only one count was charged against Shelley and Dygart.

Under these circumstances, Shelley holds that dual convictions for these two offenses violates double jeopardy because the charged solicitation count is subsumed in the charged traveling after solicitation count. If Dygart had pled guilty to the two counts, as Shelley did, he would be entitled to relief; that he went to trial and was convicted on the two charged counts shouldn't change that result. Either way, the State is constrained by what it charged, not what it could have charged. As the Second District in Shelley said:

The State asserts that because Shelley's three separate uses of computer devices on the date charged in the information would have supported three separate soliciting charges, the soliciting charge is not subsumed by the traveling charge. We are not persuaded by this argument. The State only charged one use of computer devices to solicit, and that charge was based on a solicitation occurring on the same date as the traveling offense. We find no legal basis to deny a double jeopardy challenge based on uncharged conduct simply because it could have been charged. But we acknowledge that convictions for both soliciting and traveling may be legally imposed in cases in which the State has charged and proven separate uses of computer devices to solicit.

Shelley v. State , 134 So.3d 1138, 1141-42 (Fla. 2d DCA 2014) (emphasis added), approved , 176 So.3d 914 (Fla. 2015) ; see also Stapler v. State , 190 So.3d 162, 164-65 (Fla. 5th DCA 2016) ("While we acknowledge that the State can convict a defendant on multiple counts of solicitation where multiple counts are alleged and established, we join the Second District Court of Appeal in declining to deny a double-jeopardy claim 'based on uncharged conduct simply because it could have been charged.' ") (footnote omitted); Pamblanco v. State , 199 So.3d 507 (Fla. 5th DCA 2016) (finding a double jeopardy violation where "unlawful solicitation and travel took place over several days in February 2010" such that "the State could have charged Appellant with multiple counts of solicitation and traveling with regard to the multiple offenses occurring on multiple occasions. However, the information charged Appellant with one count of solicitation and one count of traveling based on the same conduct.").

But Lee holds differently. Rather than looking at what the State actually charged to determine whether separate and distinct solicitations were alleged and proven, Lee undertakes de novo appellate review of the trial record in search of evidence of two separate and distinct solicitations, despite only one act of solicitation having been charged. If the appellate court on its own can glean two acts of solicitation from the record on appeal-one charged and one uncharged- Shelley doesn't apply and the double jeopardy violation vanishes. That's why Lee 's holding is in apparent conflict with what the Second District held in Shelley (and what other districts hold as well, see Stapler , Pamblanco ), which is to draw the line at only charged conduct.

Moreover, the jury in this case-as in Lee -was not instructed that it must find two separate and distinct acts of solicitation to convict the defendant on both the solicitation and "traveling after solicitation" counts (one solicitation would be subsumed in the "traveling after solicitation" count and the other would have to be separate and distinct from the first to avoid a double jeopardy violation). Like those in Lee , the jury instructions in this case did not make this distinction, made no reference to the dates in the information, and did not limit the jury's consideration of uncharged solicitations. The verdict form was equally barren, asking only two questions, i.e., whether they found defendant "guilty as charged of Unlawful Use of Computer Service" and "guilty as charged of Traveling To Meet a Minor."

Under these circumstances, because it can't be demonstrated that the jury's verdict was based on separate and distinct acts, it is impossible to conclude that a double jeopardy violation didn't occur. Lee , 223 So.3d at 372 ("[T]he double jeopardy problem in this case stems from a poorly-drawn information and the lack of jury instructions and a verdict form that assures us that the jury actually found that each violation of the traveling and solicitation counts charged against Lee was based on separate and distinct acts.") (Makar, J., concurring in part, dissenting in part); id. at 371 ("The information in this case did not allege distinct acts; the verdict form did not separate the acts; and the evidence presented to the jury could support, but did not require, the jury to find that the acts underlying Lee's conviction were separate.") (Bilbrey, J., concurring in part, dissenting in part); see also Assanti v. State , 227 So.3d 679 (Fla. 1st DCA 2017) ("Because of how the case was charged, and without a special verdict form, we do not know that the jury did not use the same act of solicitation to convict the Appellant for violating section 847.0135(3)(a) and to satisfy the solicitation element under section 847.0135(4)(a).") (Bilbrey, J., concurring in result). An easy fix for this constitutional problem exists, that being to charge separate and distinct counts of solicitation, as the Legislature has authorized, but that wasn't done here. See Lee , 223 So.3d at 372 (Makar, J., concurring in part, dissenting in part); see also Straitiff v. State , 228 So.3d 1173, 1177 (Fla. 5th DCA 2017) (Lambert, J., concurring and concurring specially).

But Lee has left the runway, its dissenters' views mere contrails. While I concur in the result in this case, because adherence to Lee is required, it is not without continuing doubt as to Lee 's correctness and its shelf life due to its conflict with the Shelley decision and those from other districts.

      Had Dygart successfully challenged his convictions based on the jury instructions or verdict forms, his remedy would have been a new trial-not our permanently vacating one of his two convictions. See, e.g. , Ramroop v. State , 214 So.3d 657, 668 (Fla. 2017).


author: Bilbrey, J.

text:
    Adam B. BOULINEAU, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D17-3684
    District Court of Appeal of Florida, First District.
    May 18, 2018 Rehearing Denied June 29, 2018
    Susan Z. Cohen and David M. Robbins of Espstein & Robbins, Jacksonville, for Petitioner.
    Christie S. Utt, General Counsel, and Mark L. Mason, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent.
   Bilbrey, J.

Petitioner seeks second-tier certiorari review of the circuit court's order denying first-tier certiorari relief from the final order of the Department of Highway Safety and Motor Vehicles (DHSMV). DHSMV had affirmed the revocation of Petitioner's driver's license for a period of five years, under the terms of section 322.28(2)(a)2., Florida Statutes (2013). Our standard for second-tier certiorari review of the circuit court's order is limited to "(1) whether the lower tribunal afforded procedural due process and (2) whether the lower tribunal applied the correct law." Wiggins v. Fla. Dep't of Highway Safety & Motor Vehicles , 209 So.3d 1165, 1171 (Fla. 2017). Petitioner does not assert any challenge to the process he was afforded. Because the circuit court applied the correct law, we deny the writ.

The pertinent facts are not in dispute. Petitioner was arrested on two separate occasions for driving under the influence, in violation of section 316.193, Florida Statutes. The first arrest occurred on October 5, 2013, and the second on October 16, 2013. After accepting pleas in both cases, the court convicted Petitioner of both offenses on November 21, 2013. Upon the conviction for the offense committed October 16, 2013, DHSMV revoked Petitioner's driver's license for five years, pursuant to section 322.28(2)(a) 2, Florida Statutes.

At each opportunity for review, Petitioner challenged the duration of the revocation contending that section 322.28(2)(a) 2.

did not apply to the sequence of events in his case. It provides:

322.28 Period of suspension or revocation.-
* * *
(2) In a prosecution for a violation of s. 316.193... the following provisions apply:
(a) Upon conviction of the driver, the court, along with imposing sentence, shall revoke the driver license or driving privilege of the person so convicted, effective on the date of conviction, and shall prescribe the period of such revocation in accordance with the following provisions:
* * *
2. Upon a second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for a violation of the provisions of s. 316.193... the driver license or driving privilege shall be revoked for at least 5 years.
* * *
(e) Convictions that occur on the same date resulting from separate offense dates shall be treated as separate convictions, and the offense that occurred earlier will be deemed a prior conviction for the purposes of this section.

Because Petitioner's second offense occurred on October 16, 2013, but the convictions were both entered November 21, 2013, Petitioner asserts that his second offense did not occur "after the date of a prior conviction" and thus could not subject him to the five year revocation provided in section 322.28(2)(a) 2.

Contrary to Petitioner's position, the circuit court did not fail to apply the correct law in denying the writ of certiorari for review of DHSMV's action. Section 322.28(2)(e) clearly provides that "the offense that occurred earlier will be deemed a prior conviction for purposes of this section." Applying this language to the sequence of events in this case, the offense that occurred on October 5, 2013, is "deemed a prior conviction," even though the actual conviction for that offense was not entered until November 21, 2013.

We need not resort to statutory construction principles because the plain meaning of the statute's text is clear. "To discern legislative intent, this Court looks first to the plain and obvious meaning of the statute's text, which a court may discern from a dictionary." West Fla. Reg'l Med. Ctr., Inc. v. See , 79 So.3d 1, 8 (Fla. 2012). To "deem" is "to treat (something) as if ... it were really something else...." Black's Law Dictionary 446 (8th ed. 2004). "It is a formal word often used in legislation to create legal fictions; that is, a statute may provide that something is or is not to be deemed something else." Bryan A. Garner, A Dictionary of Modern Legal Usage 254 (2nd ed. 1995). Section 322.28(2)(e) creates the legal fiction that the October 5, 2013, offense is a "prior conviction" for purposes of the applicable period of revocation of Petitioner's driver's license under section 322.28(2)(a) 2. The October 16, 2013, arrest occurred after October 5, 2013, and thus, by operation of statute, the conviction for the October 16 offense on November 21, 2013, constituted a "second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction" under section 322.28(2)(a) 2.

In light of the clear language of section 322.28, including the legal fiction created by section 322.28(2)(e), Petitioner fails to show that the circuit court departed from the essential requirements of law by denying the writ of certiorari for review of the final agency action. The petition for second-tier certiorari review by this Court is therefore DENIED .

Ray and Winokur, JJ., concur.


text:
    Tyler SHERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4464
    District Court of Appeal of Florida, First District.
    May 18, 2018
    Ethan Andrew Way, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This court previously affirmed Sherman's convictions, Sherman v. State , 160 So.3d 494 (Fla. 1st DCA 2015), but the supreme court quashed that decision and remanded for reconsideration in light of State v. Shelley , 176 So.3d 914 (Fla. 2015). On remand, we again affirm. As in today's decision in Dygart v. State , 1D13-4977 247 So.3d 655 (Fla. 1st DCA May 18, 2018), and as required by our en banc decision in Lee v. State , 223 So.3d 342, 351-52 (Fla. 1st DCA 2017) (en banc), review granted , SC17-1555 (Feb. 8, 2018), we conclude that because the record shows multiple, discrete solicitations, Sherman cannot meet his burden of showing that his separate convictions for solicitation (in violation of section 847.0135(3)(a), Florida Statutes ) and traveling after solicitation (in violation of section 847.0135(4)(a) ) were "based on the same conduct." See Lee , 223 So.3d at 351 (quoting Shelley , 176 So.3d at 919 ).

In Shelley , the supreme court held that separate convictions for both solicitation and traveling after solicitation cannot stand if they are based on the same conduct. Id. The traveling and solicitation counts both require proof that the defendant solicited a child (or someone he thought was a child), and under Shelley , a single solicitation cannot form the basis of both convictions. See Lee , 223 So.3d at 351-52. But where a defendant's conduct includes more than one solicitation, Shelley does not require the State to ignore all the solicitations but one. " Shelley does not disturb well-established precedent allowing for multiple punishments where a defendant commits multiple criminal acts." Id. at 351. Instead, "the holding in Shelley is limited to cases where the defendant is convicted of both solicitation and traveling after solicitation based on a single act of solicitation." Id.

In this case, the record demonstrates that Sherman's two convictions did not turn on a single solicitation. Using two separate email accounts, Sherman solicited a child (or someone he thought was a child) several times before driving to her house for sex. Sherman's multiple solicitations justified his multiple charges and his multiple convictions. This is therefore not about "uncharged conduct": Sherman was charged with two crimes and convicted of two crimes, and the State did not rely on the "same conduct" for both. There is no double-jeopardy violation.

AFFIRMED .

Wolf and Winsor, JJ., concur; Makar, J., concurs in result dubitante with opinion.

Makar, J., concurring in result dubitante.

Held to a mirror, this case looks just like State v. Shelley , 176 So.3d 914 (Fla. 2015), which granted relief to Shelley based on double jeopardy principles. Both Sherman and Shelley were charged with a single count of unlawful use of solicitation via computer service in violation of section 847.0135(3), Florida Statutes, and a single count of traveling after solicitation to meet a minor in violation of section 847.0135(4). As in Shelley , the State did not charge Sherman with separate and distinct counts of solicitation; only one count was charged. Under these circumstances, Shelley holds that dual convictions for these two offenses violates the Double Jeopardy clauses because the charged solicitation count is subsumed in the charged traveling after solicitation count. Shelley's solicitation spanned "several days" but Sherman's occurred on the same day that he traveled to meet the fictitious minor, making Sherman's claim that much stronger.

Shelley got relief, but Sherman doesn't due to our decision in Lee v. State , 223 So.3d 342, 351-52 (Fla. 1st DCA 2017), reh'g denied (Aug. 8, 2017), rev. granted , SC17-1555 (Feb. 8, 2018), which does not limit our review to charged conduct (here, the single count of solicitation). Instead, our Court goes beyond charged conduct and probes the record in search of additional uncharged solicitations; if we can find two or more, the double jeopardy evaporates, which is why conflict exists between Lee and cases from other districts. As the Second District in Shelley said:

The State asserts that because Shelley's three separate uses of computer devices on the date charged in the information would have supported three separate soliciting charges, the soliciting charge is not subsumed by the traveling charge. We are not persuaded by this argument. The State only charged one use of computer devices to solicit, and that charge was based on a solicitation occurring on the same date as the traveling offense. We find no legal basis to deny a double jeopardy challenge based on uncharged conduct simply because it could have been charged. But we acknowledge that convictions for both soliciting and traveling may be legally imposed in cases in which the State has charged and proven separate uses of computer devices to solicit.

Shelley v. State , 134 So.3d 1138, 1141-42 (Fla. 2d DCA 2014) (emphasis added), approved , 176 So.3d 914 (Fla. 2015) ; see also Stapler v. State , 190 So.3d 162, 164-65 (Fla. 5th DCA 2016) ("While we acknowledge that the State can convict a defendant on multiple counts of solicitation where multiple counts are alleged and established, we join the Second District Court of Appeal in declining to deny a double-jeopardy claim 'based on uncharged conduct simply because it could have been charged.' ") (footnote omitted); Pamblanco v. State , 199 So.3d 507 (Fla. 5th DCA 2016) (finding a double jeopardy violation where "unlawful solicitation and travel took place over several days in February 2010" such that "the State could have charged Appellant with multiple counts of solicitation and traveling with regard to the multiple offenses occurring on multiple occasions. However, the information charged Appellant with one count of solicitation and one count of traveling based on the same conduct.").

In addition, the jury instructions and verdict form in this case failed to tell the jury that "it must find two separate and distinct acts of solicitation to convict the defendant on both the solicitation and 'traveling after solicitation' counts (one solicitation would be subsumed in the 'traveling after solicitation' count and the other would have to be separate and distinct from the first to avoid a double jeopardy violation)." See Dygart v. State , No. 1D13-4977, 247 So.3d 655, 660 (Fla. 1st DCA May 18, 2018) (Makar, J., concurring in result dubitante). For this reason, it is impossible to exclude the unconstitutional result that Sherman's convictions for one count of solicitation and one count of traveling after solicitation are based on the same conduct. An easy fix exists to avoid this type of double jeopardy problem, one that arises from a poorly-drawn information and inadequate jury instructions and verdict form. See Lee , 223 So.3d at 371 & 372 (Bilbrey, J., concurring in part, dissenting in part, & Makar, J., concurring in part, dissenting in part); see also Assanti v. State , 42 Fla. L. Weekly D1747, 227 So.3d 679 (Fla. 1st DCA 2017) (Bilbrey, J., concurring in result); Straitiff v. State , 228 So.3d 1173 (Fla. 5th DCA 2017) (Lambert, J., concurring and concurring specially).

Nonetheless, I concur in the result in this case, because Lee is binding, but it is with doubt due to Lee 's analytical approach, and its conflict with Shelley and decisions of other districts.

      Sherman was charged with violations of (3)(a) and (4)(a) and Shelley was charged with violations of subsections (3)(b) and 4(b). The only significant difference between subsections (a) and (b) is that the former applies to "a child or another person believed by the person to be a child" while the latter applies to "a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child[.]" § 847.0135(3) & (4), Fla. Stat.

      See Amend. V, U.S. Const. ("No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb."); Art. I, § 9, Fla. Const. ("No person shall be ... twice put in jeopardy for the same offense.").

      As to Sherman, each count alleged that the act of solicitation and travel occurred on October 15, 2011. As to Shelley, the two charged offenses "relied upon the same conduct" with the alleged solicitation occurring "[o]ver the course of several days" via e-mail, instant messenger, and text messaging. Shelley , 176 So.3d at 916-17.


text:
    STATE of Florida, Appellant, v. William CRUMBLEY, Appellee.
    State of Florida, Appellant, v. Tosha Jo Robbins, Appellee.
    Case No. 2D16-3872 Case No. 2D16-3875
    District Court of Appeal of Florida, Second District.
    Opinion filed May 23, 2018.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellant.
    A.R. Mander, III and Keeley R. Karatinos of Mander Law Group, Dade City, for Appellee William Crumbley.
    Christopher E. Cosden, Fort Myers, for Appellee Tosha Jo Robbins.
   LaROSE, Chief Judge.

In this consolidated appeal, the State seeks review of the trial court's order dismissing the informations. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(A). Section 458.3265, Florida Statutes (2010 and 2011), criminalizes the operation of a pain management clinic without a license. The trial court found the statute unconstitutionally vague. We reverse and remand for further proceedings.

Background

Harbour Medical Group was founded in 2009. Following an investigation, the Pasco County Sheriff's Office executed a search warrant for Harbour Medical in late 2011.

A few months later, law enforcement officers arrested Dr. William Crumbley, a physician at Harbour Medical since its founding. They also arrested Tosha Jo Robbins, who had served as Harbour Medical's office manager for approximately two years.

Each made incriminating statements. Dr. Crumbley's arrest affidavit reflects that he told a detective that "he knew he was participating in the operation [of] a pain management clinic without a license." Ms. Robbins' arrest affidavit indicates that she "admitted the Harbour Medical Group was acting as a pain management clinic, but denied knowing they had no license to act as such."

The State charged Dr. Crumbley and Ms. Robbins, in separate cases, with one count each of violating section 458.3265, a third-degree felony. The charged conduct occurred "on or between" October 14, 2010, and December 13, 2011. Thus, the offenses implicate the 2010 version of the statute and the amended 2011 version. See ch. 2010-211, §§ 4, 14, at 2632-38, 2649, Laws of Fla. (making October 1, 2010, the effective date of section 458.3265 ); ch. 2011-141, §§ 4, 31, at 2198-2207, 2247, Laws of Fla. (amending section 458.3265 effective July 1, 2011).

Dr. Crumbley and Ms. Robbins moved to dismiss the informations. They claimed that the 2010 and 2011 versions of section 458.3265 were unconstitutionally vague, both facially and as-applied. After hearing argument of counsel, the trial court granted the motions in a written order. The trial court took no testimony, received no evidence, and made no factual findings.

The 2010 version of section 458.3265 required registration of "[a]ll privately owned pain-management clinics, facilities, or offices, hereinafter referred to as 'clinics,' which advertise in any medium for any type of pain-management services, or employ a physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications." § 458.3265(1)(a), Fla. Stat. (2010).

The trial court found this provision unconstitutionally vague because it failed to define the terms "primarily" and "pain." The trial court noted the "fact that physicians engage in the treatment of injuries and diseases ... which involve some degree of pain." The trial court stressed that the provision lacked normative standards and "cast[ ] its net so broadly as to require doing an act in terms so vague that men and women of common intelligence must necessarily guess at its meaning and differ as to its application."

The legislature amended the statute in 2011, defining a "pain-management clinic" as a facility "[w]here in any month a majority of patients are prescribed opioids, benzodiazepines, barbiturates, or carisoprodol for the treatment of chronic nonmalignant pain." § 458.3265(1)(a)(1)(b)(II), Fla. Stat. (2011). The trial court concluded that, as amended, the statute "still fails to give a person of ordinary intelligence fair notice of what constitutes forbidden conduct." The trial court observed that "[t]he wording of the statute requires that a clinic must register as a pain management clinic when in any 30 day period a majority of its patients are prescribed controlled substance medications for the treatment of chronic non-malignant pain."

The trial court found both versions of section 458.3265 unconstitutionally vague because they "fail to provide an objective guideline and standard for determining when a medical facility develops into a 'pain-management clinic' requiring registration," do not identify who is responsible for registering the medical facility, and do not address "the amount of time a facility has to register ... after the registration requirement is triggered."

The State argues on appeal that neither version of the statute is "so vague as to fail to give a reasonable person notice of the prohibited conduct." The State relies on the admissions reflected in the arrest affidavits. Dr. Crumbley and Ms. Robbins dispute the contents of the affidavits given the absence of testimony at the motion to dismiss hearing. They also challenge the affidavits as hearsay.

They further assert that both versions of section 458.3265 are unconstitutionally vague because they fail to: (1) "provide practicable means to determine when a facility becomes a 'pain-management clinic' thereby triggering the need for registration," (2) "address who is required to submit registration paperwork," and (3) "address the time period in which a pain-management clinic must register" after triggering the need for registration.

Analysis

We review a trial court's order concerning a statute's constitutionality de novo. See State v. Catalano, 104 So.3d 1069, 1075 (Fla. 2012) ("A court's decision regarding the constitutionality of a statute is reviewed de novo as it presents a pure question of law."). "Statutes enjoy a strong presumption in favor of constitutionality and courts are obligated to construe statutes to avoid declaring them unconstitutional." Wegner v. State, 928 So.2d 436, 438 (Fla. 2d DCA 2006) (citations omitted). Yet, "in a vagueness challenge, any doubt as to a statute's validity should be resolved in favor of the citizen and against the State." DuFresne v. State, 826 So.2d 272, 274 (Fla. 2002).

"The vagueness doctrine ... was developed to ensure compliance with the Due Process Clause in the Fifth Amendment of the United States Constitution." Simmons v. State, 944 So.2d 317, 324 (Fla. 2006). The Florida Constitution, too, guarantees that "[n]o person shall be deprived of life, liberty[,] or property without due process of law." Art. I, § 9, Fla. Const. The "void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). "Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed." United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).

Notice is the touchstone by which we evaluate a vagueness challenge. See Wyche v. State, 619 So.2d 231, 236 (Fla. 1993) ("A statute or ordinance is void for vagueness when, because of its imprecision, it fails to give adequate notice of what conduct is prohibited. Thus, it invites arbitrary and discriminatory enforcement."). "The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct." Brown v. State, 629 So.2d 841, 842 (Fla. 1994) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) ); see also Se. Fisheries Ass'n v. Dep't of Nat. Res., 453 So.2d 1351, 1353 (Fla. 1984) ("A vague statute is one that fails to give adequate notice of what conduct is prohibited ...."). "The language of a statute must 'provide a definite warning of what conduct' is required or prohibited, 'measured by common understanding and practice.' " Warren v. State, 572 So.2d 1376, 1377 (Fla. 1991) (quoting State v. Bussey, 463 So.2d 1141, 1144 (Fla. 1985) ).

Innumerable cases address vagueness. Reluctantly, we conclude that the trial court's abstract constitutional analysis incorrectly informed its vagueness decision. Without evidence before it, the trial court concluded that both versions of section 458.3265 were unconstitutionally vague. Quite simply, the trial court conflated the as-applied and facial vagueness challenges, addressing them as one and the same. This was error.

Beyond cavil, vagueness challenges to statutes that do not implicate First Amendment freedoms "must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) ; see also State v. Barnes, 686 So.2d 633, 636 (Fla. 2d DCA 1996) ("We begin our analysis by emphasizing that we are confronted with a constitutional vagueness challenge to a criminal statute in which First Amendment interests are not implicated. We must, therefore, examine this challenge in light of the facts before us and judge the constitutionality of the statute on an as-applied basis ...." (footnote omitted) ); Jones v. Williams Pawn & Gun, Inc., 800 So.2d 267, 270-71 (Fla. 4th DCA 2001) ("The traditional rule is that 'a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. If the record demonstrates that the [defendant] engaged in some conduct clearly proscribed by the plain and ordinary meaning of the statute, then he cannot successfully challenge it for vagueness nor complain of its vagueness as applied to the hypothetical conduct of others.' Thus, the instant vagueness claim must be examined in light of the facts pertinent to this case before analyzing other hypothetical applications of the law." (alteration in original) (quoting Sieniarecki v. State, 756 So.2d 68, 74-75 (Fla. 2000) ) ); Rice v. State, 754 So.2d 881, 884 (Fla. 5th DCA 2000) ("A challenge to a statute on grounds of vagueness turns initially to the nature of the behavior the statute seeks to regulate. ... [I]f the statute purports to regulate constitutionally protected conduct, such as speech or assembly, the statute must be examined in the abstract in order to analyze a vagueness claim."); Travis v. State, 700 So.2d 104, 105 (Fla. 1st DCA 1997) ("Contrary to the defendant's argument, the court may properly consider the facts of the case in determining the facial validity of the statute. It is true that a claim of vagueness must be evaluated by an examination of the statute in the abstract if the statute is one that purports to regulate constitutionally protected activity such as speech or assembly.").

No party maintains that section 458.3265 regulates constitutionally protected activity. Consequently, the trial court should have evaluated the vagueness challenge based upon the facts of the case. See Vill. of Hoffman Estates v. Flipside,Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (stating that when analyzing a vagueness challenge, a court should "examine the complainant's conduct before analyzing other hypothetical applications of the law"). After all, "[a] facial challenge to a statute is more difficult than an 'as applied' challenge, because the challenger must establish that no set of circumstances exists under which the statute would be valid." Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004). The trial court failed to engage in this case-specific factual analysis. See Morton v. State, 988 So.2d 698, 702 (Fla. 1st DCA 2008) ("Our constitutional analysis begins with the facts of this case, because a statute cannot logically be vague in all applications if it is not vague as applied to the actual facts." (citing Travis, 700 So.2d at 106 ) ).

"[O]ur principal focus is whether the appellee established below that the statute 'is so vague and lacking in ascertainable standards of guilt that, as applied [to him], it failed to give 'a person of ordinary intelligence fair notice that his contemplated conduct is forbidden ....' " Barnes, 686 So.2d at 636 (alteration in original) (emphasis added) (quoting Palmer v. City of Euclid, 402 U.S. 544, 545, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971) ). A vagueness analysis based upon the facts of the case at hand presupposes that there are facts upon which the trial court relied in rendering its decision. Based upon our record, we conclude that the order on appeal is not fact-driven. Cf. Jones, 800 So.2d at 270 ("Prior to ruling on the issue, the parties advised the court that all issues in the case had been resolved, except as to whether section 790.17 was unconstitutionally vague as applied to the facts of the case."). Although the trial court represented in the dismissal order that it "has an extensive history with this case and is familiar with its procedural and factual posture," the trial court made no findings of fact, received no evidence, and, as a result, could not apply the body of vagueness case law to the facts of the case. See, e.g., State v. Carrier, D562, 240 So.3d 852, 860, 2018 WL 1220516 (Fla. 2d DCA Mar. 9, 2018) ("[W]e note that an as-applied analysis would be difficult on the record currently before us when the facts have not been sufficiently developed.").

Even a cursory review of the record reflects that from the start of the motion hearing, the parties argued abstractly for or against the statutes' constitutionality. But argument, alone, cannot sustain an as-applied challenge. "A trial court may not rely on argument by counsel to make factual determinations." State v. Jones, 30 So.3d 619, 622 (Fla. 2d DCA 2010) (first citing Ordonez v. State, 862 So.2d 927, 930 (Fla. 2d DCA 2004) ; then citing State v. Thompson, 852 So.2d 877, 878 (Fla. 2d DCA 2003) (holding that argument of counsel is not evidence); and then citing DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998) ("Argument by counsel who is not under oath is not evidence.") ). This is particularly true where neither the parties nor the trial court delved into the facts underlying the charged conduct.

The trial court's failure to take evidence or make factual findings is critical in light of the record before us. For instance, the parties dispute the accuracy of the arrest affidavits. As it stands, the content of the affidavits is hearsay. See Burgess v. State, 831 So.2d 137, 140 (Fla. 2002) (stating that information contained in a police report is hearsay and inadmissible in an adversary criminal proceeding). "A police report or criminal arrest affidavit is not admissible into evidence as a public record exception to the hearsay rule because that exception expressly excludes 'in criminal cases matters observed by a police officer or other law enforcement personnel.' " Id. (quoting § 90.803(8), Fla. Stat. (1999) ).

However, the incriminating statements themselves may be admissible as a statement against interest, one of several hearsay exceptions. See, e.g., § 90.804(2)(c), Fla. Stat. (2010) ("A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant's position would not have made the statement unless he or she believed it to be true."). These statements may well have been admissible if supported by the testimony of the arresting detective. They could have played a critical role in the trial court's analysis.

Unfortunately, we are asked to make a constitutional determination based upon a record with a paucity of facts. We cannot fill that gap. See Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006) ("A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.").

Conclusion

Because the trial court's order dismissing the informations lacks findings of fact and failed to apply the law to those facts at hand, we must reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

VILLANTI and LUCAS, JJ., Concur.

      The State also charged Ronald York, the owner of Harbour Medical Group, with violating section 458.3265. Mr. York is deceased.

      Section 458.3265 requires the registration of pain management clinics. Section 458.327(1)(e) criminalizes the knowing operation, ownership, or management of a nonregistered clinic.


author: PALMER, J.

text:
    Dameon Tremayne MOORE, Petitioner, v. STATE of Florida and Cornita A. Riley, as Chief of Orange County Corrections, Respondents.
    Case No. 5D18-1474
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 23, 2018
    Robert Wesley, Public Defender, and Robert Adams, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Respondents.
   PALMER, J.

Dameon Moore petitions this court seeking a writ of habeas corpus. We grant the petition.

Moore was arrested for aggravated stalking after an injunction and for violating a condition of pretrial release in a domestic violence case. At his initial appearance, the trial court set bail at $25,000 for the stalking charge and $1,500 for the violation charge. Moore subsequently filed a motion to reduce his bail which the trial court denied as being "legally insufficient." Moore challenges this ruling.

Generally, every person charged with a crime "shall be entitled to pretrial release on reasonable conditions." Art. 1, § 14, Fla. Const. After bail has been set, "[a]n application for modification of bail on any felony charge must be heard by a court in person, at a hearing with the defendant present, and with at least 3 hours' notice to the state attorney." § 903.035(2), Fla. Stat. (2017) ; accord Fla. R. Crim. P. 3.131(d)(2). Thus, since section 903.035(2) and rule 3.131(d)(2) both required that Moore's motion for bail modification be heard in person by the court, his motion was improperly denied without a hearing.

Accordingly, we grant the petition and remand this matter to the trial court for a proper rule 3.131(d) hearing.

PETITION GRANTED; CAUSE REMANDED.

ORFINGER and EDWARDS, JJ., concur.

      In an order dated May 14, 2018, we granted the petition with an opinion to follow. The order directed the trial court to promptly hold a hearing on Moore's motion to reduce bail.

      The instant petition alleges that, since March 13, 2018, when attorneys with the Office of the Public Defender have filed bail motions requesting a hearing before this trial judge, they have received emails from the judge denying the motions without prejudice. The judge has also attached to each email a 35-paragraph template, suggesting that completion of the template would render the defendant's motion sufficient. However, the template seeks some information which is unnecessary or improper for consideration in connection with a motion to reduce bail. While no specific information is required to be included in a motion to reduce bail, the factors set forth in rule 3.131(b)(3)-(6) of the Florida Rules of Criminal Procedure and section 903.046(2) of the Florida Statutes (2017) are helpful in placing the State and the trial court on notice of the factors on which the defendant intends to rely. Importantly, the failure to include those factors in the motion does not automatically render the motion legally insufficient.


text:
    Gregory TOLLIVER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4107
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 25, 2018
    Gregory Tolliver, Panama City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Gregory Tolliver, Appellant, appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion, arguing, among other things, that the lower court has not conclusively refuted his claim that his trial counsel was ineffective for failing to investigate and call exculpatory witnesses at trial. We agree and reverse as to that claim. We affirm the trial court's summary denial as to Appellant's other claims.

Appellant was convicted at trial of stealing a diamond ring while he and another man, Christopher Johnson, were painting the victim's house. At trial, the State presented the testimony of only three witnesses-the victim, a detective, and Johnson. Appellant's theory of defense was that Johnson stole the ring, and that Appellant forcefully retrieved the ring from Johnson so that he could return it to the victim.

In his post-conviction motion, Appellant alleged that his trial counsel was ineffective for failing to investigate and call two witnesses. The first proposed witness was the victim's neighbor, Mr. Taylor, who Appellant alleges would have testified that he saw Johnson enter the victim's residence while both the victim and Appellant were away purchasing supplies.

The second proposed witness was a woman named Gina, who Appellant told police is a hairdresser living in The Villages. Appellant alleged that Gina would have testified that she saw Appellant forcefully retrieve the diamond ring from Johnson.

The trial court summarily denied Appellant's motion reasoning that the testimony of these proposed witnesses conflicted with the testimony of other witnesses at trial. As to Mr. Taylor, the trial court summarily denied the claim because, although the victim allegedly told Appellant that Mr. Taylor saw someone enter the residence while Appellant was away, the victim later testified that he made that story up as a bluff to get his ring back. As to the second witness, the trial court reasoned that Gina's proposed testimony would have conflicted with Johnson's testimony-the very person Appellant identified as the actual perpetrator.

Given the nature of the evidence presented at trial, and assuming that the proposed witnesses will testify as Appellant alleges, we conclude that this case appears to turn on a credibility determination between the testimony of the victim and Johnson for the State and that of Appellant's proposed witnesses. See Payne v. State , 21 So.3d 900, 902 (Fla. 5th DCA 2009). In such a case, Appellant is entitled to an evidentiary hearing, or the attachment of records that conclusively refute Appellant's claim. Id.

REVERSED in part; AFFIRMED in part; and REMANDED.

COHEN, C.J., and EISNAUGLE, J., concur.

BERGER, J., concurs in result only.


author: ORFINGER, J.

text:
    Lolita B. CARSON-GRAYSON, Appellant, v. Alan GRAYSON, Appellee.
    Case No. 5D17-2381
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 25, 2018
    Lisa J. Ramsey, of Ramsey Law, PLLC, Oviedo, for Appellant.
    Kenneth D. Morse, of Kenneth D. Morse, P.A., Heathrow, for Appellee.
   ORFINGER, J.

Lolita B. Carson-Grayson appeals a non-final order conveying her interest in certain property to Alan Grayson. She argues that she was denied due process when the trial court ruled on motions at a hearing that had been noticed only as a scheduling conference. We agree and reverse.

This litigation began when Ms. Carson-Grayson filed a petition for dissolution of marriage. Mr. Grayson filed a counterclaim seeking annulment, a determination of paternity, and asserting various claims relating to the parties' jointly held property. Following a judgment of annulment of the parties' marriage, Mr. Grayson filed two motions, seeking the transfer of Ms. Carson-Grayson's interest in property to him. He noticed both motions for a full hearing on July 7. Soon thereafter, he filed a second notice setting a short hearing for June 22 for the purpose of "asking for set hearing time for" the motions.

Ms. Carson-Grayson, who was pro se at the time, did not attend the June 22 hearing. Despite being noticed only as a scheduling conference, the court considered and granted both of Mr. Grayson's motions and subsequently entered the order on appeal. The order stated that it was made "on the basis of the evidence and legal argument therein, and considering any opposition filed thereto." Nonetheless, the court kept the July 7 hearing on the docket, which Mr. Grayson then re-noticed for a different matter. Ms. Carson-Grayson appeared at the July 7 hearing, but the court refused to address the property distribution motions because they had already been resolved.

"Due process requires that a party 'be given ... a real opportunity to be heard and defend in an orderly procedure, before judgment is rendered against him.' " VMD Fin. Servs., Inc. v. CB Loan Purchase Assocs., LLC, 68 So.3d 997, 999 (Fla. 4th DCA 2011) (quoting Burch v. City Of Lakeland, 891 So.2d 654, 656 (Fla. 2d DCA 2005) ). Violations of due process rights are fundamental error. Kilnapp v. Kilnapp, 140 So.3d 1051, 1053 (Fla. 4th DCA 2014). A court violates a party's due process rights by expanding the scope of a hearing without proper notice. Haeberli v. Haeberli, 157 So.3d 489, 490 (Fla. 5th DCA 2015) (holding that court violated due process by considering one motion at hearing that was scheduled and noticed for different motion); see Shah v. Shah, 178 So.3d 70, 71 (Fla. 3d DCA 2015) (holding that court violated due process by noticing hearing as status conference but then treating it as final hearing and entering final judgment); Rodriguez v. Santana, 76 So.3d 1035, 1037 (Fla. 4th DCA 2011) (holding that court violated due process rights by conducting final evidentiary hearing when only case management conference had been scheduled and noticed).

The court's failure to provide Ms. Carson-Grayson with any notice that the merits of the motions would be determined at the June 22 hearing requires reversal and a new hearing.

REVERSED and REMANDED.

SAWAYA and EDWARDS, JJ., concur.

      We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(C)(ii), (iii) a.; see Austin v. Austin, 120 So.3d 669, 670 (Fla. 1st DCA 2013) (holding that order directing liquidation of assets and disbursement of funds was appealable interlocutory order under rule 9.130(a)(3)(C)(ii) and (iii) ); see also Weiser v. Weiser, 132 So.3d 309, 310-11 (Fla. 4th DCA 2014) (permitting review of allegation of due process violation even where appellant failed to preserve ruling for appeal because such violations are fundamental error).

      The trial court had jurisdiction to enter the order on appeal. See Haritos v. Haritos, 193 So.3d 1050, 1052 (Fla. 2d DCA 2016) (holding that final judgment of dissolution of marriage was "a partial final judgment insofar as the marital status of the parties was concerned"); Bland v. Bland, 971 So.2d 210, 212 (Fla. 5th DCA 2007) (holding that order dissolving marriage and reserving jurisdiction to determine all other issues is partial final judgment); State v. N.F., 924 So.2d 912, 913 (Fla. 5th DCA 2006) ("The test to determine whether an order is final ... is whether the case is disposed of by the order and whether a question remains open for judicial determination. In other words, a final decree marks the end of judicial labor." (quoting Prime Orlando Props., Inc. v. Dep't of Bus. Regulation, Div. of Land Sales, Condos. & Mobile Homes, 502 So.2d 456, 459 (Fla. 1st DCA 1986) ) ).


text:
    STATE of Florida, Appellant, v. Mark Bradley SNOOK, Appellee.
    Case No. 5D17-2362
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 25, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Rocco J. Carbone, III, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State of Florida appeals the dismissal of the information charging Snook with driving while his driver's license was canceled, suspended or revoked as a habitual offender, a third-degree felony. The State argues that the trial court did not have a valid legal basis for dismissing the charge. We agree.

After defense counsel stated at a sidebar that he was ready for trial, the trial court indicated that upon an oral motion it would dismiss the case because Snook had his license back and there were more serious cases on the docket. Back on the record, the trial court advised defense counsel to make his oral motion. Defense counsel simply stated, "Your Honor, the defense moves to dismiss." After Snook made several unsworn statements, the trial court, over the State's objection, granted the ore tenus motion to dismiss, finding that Snook no longer deserved to be prosecuted and doing so would put "him back on the treadmill of failure."

While the trial court may have had good intentions, it abused its discretion when it dismissed the case without a valid legal ground. See Fla. R. Crim. P. 3.190(c)(4) (2016); State v. Franklin, 901 So.2d 394, 395 (Fla. 5th DCA 2005) (finding trial court abused its discretion when it sua sponte dismissed charges over State's objection based on defendant's efforts to obtain a license, the cost to taxpayers to prosecute, and "the best interest of judicial economy"); see also State v. A.J., --- So.3d ----, 43 Fla. L. Weekly D352 (Fla. 2d DCA Feb. 14, 2018) (finding trial court abused its discretion when it granted juvenile's oral motion to dismiss over State's objection based upon trial court's perspective of most suitable way to address juvenile's circumstances); State v. Brosky, 79 So.3d 134, 135 (Fla. 3d DCA 2012) (emphasizing that prosecutor's discretion to charge and prosecute criminal acts cannot be thwarted by trial court's belief that the public or the parties would be better served by dismissal (citing State v. Cleveland, 390 So.2d 364, 367 (Fla. 4th DCA 1980), approved by, 417 So.2d 653 (Fla. 1982) ) ); State v. Wheeler , 745 So.2d 1094, 1096 (Fla. 4th DCA 1999) (explaining that despite trial court's belief that dismissal is in best interest of public and parties, the state attorney makes final determination to prosecute); State v. Burnett , 468 So.2d 1119, 1120 (Fla. 4th DCA 1985) (highlighting that rules of criminal procedure enumerate grounds for dismissal and trial court's dismissal of charges without valid legal ground was tantamount to a nolle prosequi, an action vested solely in discretion of State). Accordingly, we reverse and remand for further proceedings.

REVERSE and REMAND.

EVANDER, BERGER and WALLIS, JJ., concur.


text:
    James LECLAIRE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-934
    District Court of Appeal of Florida, Second District.
    Opinion filed May 25, 2018.
    James LeClaire, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

James LeClaire appeals from the order denying his motions filed pursuant to Florida Rule of Criminal Procedure 3.850 in two separate circuit court cases. We affirm in part and reverse in part.

LeClaire's motions raise multiple claims of ineffective assistance as to a 2004 case and a 2010 case. LeClaire entered an open plea to the charges in the 2004 case after being convicted following a trial in the 2010 case. The cases involved the same victim, and LeClaire was charged with several counts of aggravated battery and sexual battery.

The postconviction court summarily denied a number of LeClaire's claims and denied the remaining claims following an evidentiary hearing. We reverse the denial of two summarily denied claims bearing on the 2010 case and the denial of one claim following an evidentiary hearing and bearing on the 2004 case.

In his motion claiming ineffective assistance of trial counsel in the 2010 case, LeClaire contended that counsel was ineffective for failing to investigate and call two witnesses at trial, Alvin Freeman and Tracy Thomas. LeClaire argued that these witnesses would have supported his defense that no sexual battery occurred because they would have testified that the victim and LeClaire arrived at Mr. Freeman and Ms. Thomas's apartment together and were affectionate to one another, that the victim was not in distress, and that the victim spoke of having had "birthday sex" with LeClaire after the victim and LeClaire emerged from the bathroom together. LeClaire contended that these witnesses' testimony would have contradicted the victim's trial testimony.

LeClaire's claim is facially sufficient, and he alleged how the failure to call Mr. Freeman and Ms. Thomas prejudiced him. "[T]he failure to investigate or call an exculpatory witness 'presents a prima facie showing of entitlement to relief, subject to rebuttal by evidence from the record or testimony at an evidentiary hearing.' " Honors v. State, 752 So.2d 1234, 1236 (Fla. 2d DCA 2000) (quoting Prieto v. State, 573 So.2d 398, 399 (Fla. 2d DCA 1991) ). The records attached to the postconviction court's order do not refute LeClaire's claim. Further, the alleged testimony would be admissible for impeachment purposes, and it would support LeClaire's defense on that basis. See Floyd v. State, 202 So.3d 137, 140 (Fla. 2d DCA 2016) (reversing the summary denial of a claim of newly discovered evidence where the witnesses' statements would have been admissible only for impeachment purposes, would have supported the defendant's theory of defense, and the claim was not refuted by the record). Thus, summary denial of this claim was improper. See Downs v. State, 227 So.3d 694, 697 (Fla. 5th DCA 2017).

With regard to the 2010 case, LeClaire also raised a claim of cumulative error which was summarily denied. In light of our reversal of the denial of his claim that counsel was ineffective for failing to call two witnesses, we cannot fully address the claim of cumulative error and thus remand for further consideration. See Osorio v. State, 233 So.3d 516, 517 (Fla. 2d DCA 2017).

In his motion claiming ineffective assistance of counsel in the 2004 case, LeClaire contended that counsel failed to advise him that the trial court could run his sentences in the 2004 case consecutively to his sentences in the 2010 case. The postconviction court did not address this claim as it was raised; rather, the postconviction court addressed it as a claim of affirmative misadvice and denied it following the evidentiary hearing. The court relied upon counsel's testimony that she did not advise LeClaire that his sentences in the 2004 case would run concurrently with his sentences in the 2010 case, finding that testimony more credible than LeClaire's. However, where the postconviction court fails to address the claim as raised, remand is appropriate. See Winfrey v. State, 226 So.3d 897, 897-98 (Fla. 4th DCA 2017) ("The trial court failed to rule on Winfrey's claim within ground one that counsel failed to advise him, before he entered an open plea, that the court could impose consecutive sentences. We therefore reverse and remand for the trial court to consider that claim.").

Further, neither the record attachments nor the testimony at the evidentiary hearing reflect that counsel or the trial court advised LeClaire what the maximum sentences could be, that those sentences could be imposed consecutively to his 2010 sentences, or what his maximum exposure would be. See Odegaard v. State, 137 So.3d 505, 508 (Fla. 2d DCA 2014). At the evidentiary hearing, trial counsel was not asked whether she advised LeClaire that the court could impose consecutive sentences. Accordingly, we reverse the denial and remand for consideration of whether trial counsel was ineffective for failing to advise LeClaire that the trial court could run his sentences in the 2004 case consecutively to his sentences in the 2010 case, the claim LeClaire raised.

We affirm without comment the remaining grounds raised by LeClaire on appeal. We reverse the grounds discussed herein and remand with instructions that the postconviction court either attach records which conclusively refute LeClaire's claims regarding the witnesses' testimony and counsel's failure to advise him that the court could impose consecutive sentences or hold an evidentiary hearing. Upon resolution of those claims, the court shall address the cumulative error claim.

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

CASANUEVA, VILLANTI, and BLACK, JJ., Concur.