source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Terry G. TRUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3763
    District Court of Appeal of Florida, First District.
    August 24, 2018 Rehearing Denied November 15, 2018
    Arthur J. Morburger, Miami, and Inger M. Garcia, Davie, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Terry Trussell raises nine issues on appeal of his convictions for falsely acting as a public officer in connection with a legal process. See § 843.0855, Fla. Stat. (2014). We affirm and, in particular, find no error with respect to how the State charged Mr. Trussell in the Information, or presented its closing argument to the jury.

I.

In 2014, Dixie County impaneled a grand jury and Mr. Trussell was selected to be its foreperson. During the grand jury proceedings, Mr. Trussell presented a theory of a large-scale criminal conspiracy involving various individuals and entities. The grand jury provided Mr. Trussell time to find evidence to support his conspiracy theory, but ultimately declined to pursue the theory. Around this same time, the grand jury was scheduled to reconvene on the afternoon of August 14, 2014. But that morning, Mr. Trussell sought early entry to the courtroom from the Clerk of Court and received it. Upon gaining access to the courtroom, Mr. Trussell assembled with twenty-five other persons who declared themselves to be the "People's Grand Jury Under Common Law in Dixie County, Florida." Mr. Trussell assumed the role as this group's "Foreman," and presented his criminal conspiracy theory to them. The group proceeded to approve two "True Bills" calling for the arrest and prosecution of many public officials on multiple criminal charges. And then they adjourned.

The next day, on August 15, 2014, Mr. Trussell returned to the court and presented the Clerk of Court with the two "True Bills" approved by the ad hoc "People's Grand Jury" the previous day, which called for the arrest of several public officials and others on numerous charges. The Clerk of Court received the documents, stamped them "Sworn To and Subscribed Before Me," and signed and dated them. The first line of the Bills stated:

We the People's Grand Jury Under Common Law in Dixie County, Florida ... met [on August 14, 2014, at 10:00 AM] at the Dixie County Court House for the purpose of considering charges against [various public officials].

From there, the Bills identified the many persons and entities who were recommended for arrest and prosecution and listed a smorgasbord of charges. Mr. Trussell signed the "True Bills" as "Foreman, People's Grand Jury Under Common Law In Dixie County, Florida."

Approximately one month later, the State charged Mr. Trussell by information with multiple counts of violating § 843.0855. Mr. Trussell ultimately received a jury trial and was convicted on five counts.

II.

Mr. Trussell now raises nine arguments on appeal seeking to reverse his conviction. We disagree and affirm on all of them, but write specifically to address his arguments related to Counts I and II, that the State's closing argument improperly relied upon a theory of the crime not charged in the Information.

Counts I and II of the Information charged Mr. Trussell with unlawful impersonation-related crimes for filing two purported true bills as the foreman of Dixie County's "People's Grand Jury." The Information alleged:

On or about August 15, 2014, [Mr. Trussell] did unlawfully and deliberately impersonate or falsely act as a foreperson of a grand jury, a public officer or employee, in connection with or relating to the filing of a True Bill ..., a legal process affecting persons and property, or otherwise took any action under color of law against persons or property, contrary to section 843.0855(2), Florida Statutes.

Mr. Trussell argues that the State improperly argued to the jury and secured his conviction on the basis of his actions to gain courtroom access for the "People's Grand Jury" on August 14. He argues that this was fundamental error because the Information only charged him with impersonation or false acts in connection with filing the "True Bills" on August 15, not with improperly entering or using the courtroom. Specifically, the State asserted that Mr. Trussell's actions satisfied the first element of the crime on account of the evidence that he accessed the courtroom by using his position as foreman of the real grand jury in Dixie County: "One of the things that Terry Trussell did with ... the clerk of court was he came in, she knew him to be the foreman of the grand jury, and told her he needed the courtroom to set up for the grand jury." The State rebuttal argument called Mr. Trussell's actions to obtain the courtroom a "[t]otal fraud." And it asked the jury to find the defendant guilty of Counts I and II in part because "he used a ruse to get the courtroom." The defense made a timely objection asserting that the State was introducing improper character evidence in violation of § 90.404(b), but the trial court overruled the objection. In Mr. Trussell's responsive argument, his counsel countered that he wasn't charged with impersonation with respect to requesting or accessing the courtroom, but rather in connection with the filing of true bills with the clerk's office.

We have little difficulty concluding that Mr. Trussell was properly charged and convicted of the crimes stated in the Information related to filing bogus true bills. See Price v. State , 995 So.2d 401, 404 (Fla. 2008) (describing charging requirements). The charges filed against Mr. Trussell were drafted in broader strokes than his argument suggests. Mr. Trussell was charged with impersonating or falsely acting as the foreperson of a grand jury "in connection with or relating to the filing of [True Bills]." (Emphasis added.) His convictions on these charges found support in the evidence that Mr. Trussell committed multiple discrete acts of "deliberately impersonat[ing] or falsely act[ing] as a foreperson of a grand jury ... in connection with or related to the filing of True Bill[s]." The evidence of Mr. Trussell's culpable acts leading to the filing of the "True Bills" included: impersonating his own alter ego, the foreman of the real grand jury in Dixie County, to gain early access to the courthouse; assembling a sham grand jury in the Dixie County courthouse before the proper meeting of the real grand jury; assuming the role of foreman of the sham grand jury; presenting criminal conspiracy charges to the sham grand jury against a number of public officials and entities; gleaning unanimous votes recommending the arrest and prosecution of public officials and entities as foreman of the sham grand jury; and then signing and presenting the clerk of court with two "True Bills" as "Foreman" of the sham grand jury, which directed the Clerk of Court "to forward a copy of [the True Bills] to the Dixie County Sheriff for the[ir] arrest ... and for the court clerk to send the Special Prosecutor." Mr. Trussell's act-by-act impersonation of a legitimate grand jury foreperson over the two-day period, culminated with his filing of the two sham "True Bills." But it all began with his acts to gain access to the courtroom for the multi-member "People's Grand Jury," which the State highlighted in its closing argument.

That the State's closing argument chose to focus on Mr. Trussell's early actions in this episode to make its impersonation-related case is not problematic. Mr. Trussell's initial deception in gaining access to the courtroom for himself and the members of a sham grand jury inaugurated his entire charade. It led directly to Mr. Trussell's filing the two "True Bills" the next day. In fact, the "True Bills" themselves purported to establish their legitimacy and authority from the fact that they arose from a meeting the day before at the courthouse: "We the People's Grand Jury Under Common Law in Dixie County, Florida on August 14th, 2014, at 10:00 AM met at the Dixie County Court House for the purpose of considering charges against [certain public officials]." And so, Mr. Trussell's access and use of the courtroom fit squarely within the Information's charge of impersonating a foreperson of a grand jury "in connection with or relating to the filing of [the] True Bill[s]." Under these circumstances, we cannot agree with Mr. Trussell's argument that the Information was faulty, or that the State improperly argued an uncharged theory.

III.

For these reasons, Mr. Trussell's judgment and sentence is AFFIRMED .

Osterhaus and M.K. Thomas, JJ., concur;

Jay, J., concurs in part and dissents in part with opinion.

Because the State argued that the jury should convict Trussell on Counts I and II-based on an incident not charged in the information or supported by the evidence-I would reverse those convictions and remand for a new trial.

I. PROCEEDINGS BELOW

Although the underlying facts are ably summarized by the majority opinion, it is necessary-for my analysis-to further elaborate on what transpired at trial. During the State's case-in-chief, Dana Johnson, the clerk of the court for Dixie County, testified that Trussell requested and received access to the courtroom on August 14, 2014, the day before he filed the two "true bills." On cross-examination, defense counsel further explored this incident with Johnson as follows:

Q. When Mr. Trussell asked you to use this courtroom on August 14th of 2014, where was the conversation you had with him? Where were you guys physically?
A. I believe he came to my office, the main office in the building here.
....
Q. And do you recall Mr. Trussell simply asking you if he could use the courtroom that morning?
A. Uh-huh. Yes, ma'am.
Q. He didn't actually tell you why, did he?
A. No, ma'am .
Q. You just made an assumption that he was using it for the grand jury, correct?
A. Because I knew him to be the grand jury foreman of the statutory grand jury for Dixie County.
Q. So based on the fact that he was, you just made an assumption that that was what it was for?
A. That is correct.
Q. So there was no direct representation to you, was there? You know, I'm the statutory grand jury foreman, I want to use this courtroom this morning?
A. No, ma'am .

(Emphasis added.)

During the State's closing argument, the prosecutor commented on Johnson's testimony as follows:

One of the things that Terry Trussell did with Dana Johnson, the clerk of the court, was he came in, she knew him to be the foreman of the grand jury, and told her he needed the courtroom to set up for the grand jury that she knew was going to come into session at one o'clock and that she testified that she made arrangements through the county judge's judicial assistant for the courtroom to be available for him to set up for the grand jury.
So as it pertains to that first element, was he falsely acting as the grand jury foreman to get that room, she knew he was, and as a public officer.
....
So as we consider the testimony of Dana Johnson, no question that Terry Trussell falsely acted as the statutory grand jury foreman, came in, used a session to get the courtroom to institute some legal process against Jeffrey Siegmeister and Mark Rains, which is Counts I and II of the information .

(Emphasis added.)

After defense counsel reminded the jury that Trussell was not charged with "improperly reserving the room" and that Trussell made no false representations in requesting the courtroom, the prosecutor revisited this issue during rebuttal by stating:

The courtroom, she [defense counsel] just talked about that, on the morning of October [sic] the 14th was obtained by Terry Trussell. It was obtained by fraud. Total fraud. I need to set up for the grand jury. I don't think that's in dispute in any part .
....
Reserving this courtroom for the one o'clock meeting to set up was a ruse, it was falsely acting as the foreman of the grand jury and you should find the defendant guilty of Counts I and II because he used a ruse to get the courtroom . It was not true. It was for the people's common law grand jury who circumvented the rules of this courthouse to get the courtroom.

(Emphasis added.) Defense counsel made a timely objection to this comment asserting that the State was introducing improper character evidence in violation of section 90.404(b), Florida Statutes. The trial court overruled the objection. Trussell was convicted on Counts I and II.

II. ANALYSIS

On appeal, Trussell argues that the State improperly asked the jury to convict him for his actions on August 14-when Trussell requested the courtroom-even though the information only charged Trussell for his August 15 actions in filing the true bills. The State concedes that the information did not charge Trussell for requesting the courtroom , but asserts that because the defense failed to properly object during closing argument, the standard is fundamental error, a standard that the defense has failed to meet.

When a defendant is convicted "on a charge not made in the information or indictment," both his right to be fully informed of the charges against him and his right to due process are denied. Weatherspoon v. State , 214 So.3d 578, 583 (Fla. 2017) ; see also Price v. State , 995 So.2d 401, 404 (Fla. 2008) ("For an information to sufficiently charge a crime it must follow the statute, clearly charge each of the essential elements, and sufficiently advise the accused of the specific crime with which he is charged."); Zwick v. State , 730 So.2d 759, 760 (Fla. 5th DCA 1999) ("A defendant is entitled to have the charge against him proved substantially as alleged in the indictment or information and [he] cannot be prosecuted for one offense and convicted and sentenced for another....").

In Brown v. State , 41 So.3d 259, 261 (Fla. 4th DCA 2010), the information alleged that the defendant committed aggravated child abuse by 1) willful torture, malicious punishment, or unlawful caging;

or 2) causing great bodily harm, permanent disability, or disfigurement. At trial, the jury instructions stated that the jury could alternatively convict the defendant for aggravated child abuse by use of a deadly weapon. Id. at 262. The prosecutor argued this theory, inviting the jury to convict the defendant based on his use of a bat. Id.

In language particularly applicable to this case, the Fourth District recognized that it was "possible ... that the jury convicted the defendant based upon his use of a deadly weapon, a theory not charged." Id. This "possibility" could not be excluded because "the State specifically invited the jury to convict the defendant of aggravated child abuse based upon his use of a deadly weapon ...." Id. As a result, the Fourth District reversed the defendant's conviction for aggravated child abuse and remanded the case for a new trial. Id. at 263 ; see also Richards v. State , 43 Fla. L. Weekly D239, D241, 237 So.3d 426 (Fla. 2d DCA Jan. 26, 2018) (reversing a conviction because the defendant was "convicted of a charge that was not made in the information").

Here, Trussell advanced a defense to the charge that he was impersonating a public official when he presented the true bills to the clerk of court. It was not until closing argument that the State argued that Trussell should be convicted for fraudulently requesting the courtroom-conduct that was not charged in the information or supported by the evidence. The defense attempted to rebut this improper argument in the defense closing, and when the State persisted in advancing this uncharged and unproven theory, the defense objected, referencing section 90.404(b). This objection was sufficient to preserve Trussell's challenge to the improper argument, and the trial court erred in overruling the objection. Because I cannot exclude the possibility that the jury convicted Trussell based on the uncharged and unproven theory argued by the prosecutor, I would reverse the convictions as to Counts I and II and remand for a new trial. See Brown, 41 So.3d at 262.

      Later that afternoon, the real grand jury for Dixie County, including Mr. Trussell as its foreperson, convened as previously scheduled. But they were promptly dismissed.


author: Warner, J.

text:
    Joseren Deshune DELANCY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-43
    District Court of Appeal of Florida, Fourth District.
    September 20, 2018
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Luke R. Napodano and Ilana Mitzner, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Defendant appeals a final judgment of conviction and sentence of ten years for high speed or wanton fleeing and resisting an officer without violence. He challenges his conviction by contending that his trial counsel was ineffective on the face of the record by failing to object to the impeachment of his star witness based upon pending charges against that witness. He further challenges his sentence as based on a misapprehension of fact and violation of the equal protection clauses of the United States and Florida Constitutions. We affirm the convictions, concluding that even if his counsel were ineffective, appellant has not shown that there was a reasonable probability that the result of the proceedings would have been different, given the other evidence presented. As to the sentence, while it is stiff, the sentence is within the maximum statutory limit, and it is neither based on a misapprehension of fact nor constitutionally infirm.

At trial, three officers involved in the apprehension of appellant testified. The first officer testified that he was patrolling in his sheriff's vehicle when he noticed that the driver of a vehicle passing in the opposite direction was not wearing a seatbelt and ducked down to conceal his face. A passenger was also in the vehicle. The officer made a U-turn to effect a traffic stop. A second officer in the area passed by the stopped vehicle, and as he did he had a direct view of the driver, whom he was able to identify in court as the appellant.

The first officer stopped the vehicle; however, when he approached it, the driver sped off through a residential area and past a daycare center at speeds of over ninety miles an hour. The driver ran a red light and nearly lost control of his vehicle as he was turning a corner. A twelve-year-old girl was in the vicinity and pointed the officers in the direction that the vehicle fled. A third deputy saw the driver stop and run away from his vehicle. The deputy followed the driver on foot through a residential neighborhood, losing sight of him for a few seconds, but then he saw him arguing with a woman and trying to get into her house. He was sure that this man was the driver.

The deputy ordered him to stop, but the driver entered the house. One of the two other officers then arrived, and they entered the house after the driver. The suspect eventually emerged from a room, drenched in sweat and out of breath. The officers detained him. The deputy testified the man who came out of the room was the same person and in the same clothes as the driver. He wore the same printed white shirt and long black shorts, but was wearing a different hat. The officer identified appellant as that individual. The second officer who helped chase the suspect into the house also identified the appellant and the clothes he wore. The third officer, who arrived after appellant was detained, testified that the person detained had the same clothes as the driver when he first saw him. A dashcam video from one officer's vehicle was also played for the jury, and it showed the officer running toward the house after spotting appellant.

Appellant's mother was the woman at the house where appellant was arrested. For the defense, she testified that appellant was at home with her all evening. They heard sirens late in the evening, and she went outside to investigate. She saw officers walking up the street and into her driveway. Her door was cracked open, and when the officer saw appellant, he said, "You're the one." The officers then entered her home with guns drawn. She stated that appellant was wearing a white shirt.

The defense also called McIntyre, the passenger in the fleeing car who had also been arrested that evening. He testified that the vehicle was being driven by his cousin, Parks, not the appellant. They were returning home from a construction job with his uncle. After they dropped off the uncle, police stopped them, and his cousin fled the scene. McIntyre stayed in the car and was detained by the deputies. He testified that his cousin Parks was wearing a black shirt and hat, and he had a similar complexion and beard as appellant.

McIntyre further testified that he did not know appellant and did not recognize him at trial. On cross-examination, the prosecutor noted that McIntyre was in jail clothes and questioned him about his many pending charges, including robbery with a deadly weapon, aggravated assault with a firearm, and grand theft. Defense counsel did not object to this line of questioning.

On rebuttal, the State recalled the three officers. The first officer testified that he knew Parks, and he had no doubt that Parks was not the driver. The other officers testified that the driver was wearing a white shirt, not a black shirt, and introduced a booking photo which showed appellant in a white shirt.

After closing arguments, the jury found appellant guilty of high speed or wanton fleeing and resisting an officer without violence. The court adjudicated appellant guilty and sentenced him to ten years in prison for the fleeing charge and to time served for resisting without violence. Appellant also filed two motions to correct his sentence, alleging racial disparity in sentencing. The court denied the first motion. It did not rule on the second motion; thus, it is deemed denied.

Appellant contends that his trial counsel was ineffective on the face of the record because he failed to object when the prosecutor impeached defense witness McIntyre by questioning him about his pending charges. Because claims of ineffective assistance of counsel are fact-specific, defendants generally should raise them in motions for postconviction relief. Latson v. State , 193 So.3d 1070, 1073 (Fla. 1st DCA 2016). However, a claim of ineffective assistance may be considered for the first time on direct appeal if: the ineffectiveness is apparent on the face of the record; there is undisputable prejudice; and there is no conceivable tactical explanation for the conduct. Hills v. State , 78 So.3d 648, 652 (Fla. 4th DCA 2012). "This exception is rarely applicable," but if so, this court reviews de novo whether the claim meets the deficiency and prejudice prongs of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id. To show prejudice,

[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ; see Thompson v. State , 990 So.2d 482, 488, 490 (Fla. 2008) (finding prejudice is not whether deficient conduct "more likely than not" affected the trial outcome, but whether it undermined confidence in the outcome and rendered it unreliable).

Appellant claimed, in his defense, that he was not in the vehicle. He argues McIntyre was his star witness, but the State destroyed his credibility by improperly questioning him about his pending felony charges. The prosecutor also highlighted the fact that McIntyre was in jail ("I couldn't help but notice your attire, are you currently incarcerated?"). Appellant contends the questioning resulted in fundamental error, or his attorney's failure to object was ineffective assistance apparent on the face of the record.

The State concedes, and we agree, it was improper for the State to cross-examine McIntyre on his pending charges. Fulton v. State , 335 So.2d 280, 282-83 (Fla. 1976) (holding the State may not question a defense witness on his or her pending criminal charges of which he or she has not been convicted). Furthermore, there does not seem to be a strategic explanation for counsel's failure to object, given the number of pending charges discussed.

Nevertheless, under Strickland , the defense must show that this deficiency has undermined confidence in the outcome of the proceeding or that the error was fundamental such "that a verdict of guilty could not have been obtained without the assistance of the alleged error." Walden v. State , 123 So.3d 1164, 1166 (Fla. 4th DCA 2013).

Given the testimony and evidence, neither fundamental error nor Strickland prejudice has been shown. McIntyre's testimony that appellant was not the driver of the vehicle was cumulative to the mother's testimony that appellant was home with her. Testimony that is cumulative to other witnesses' testimony can render the improper impeachment harmless. See Bedford v. State , 589 So.2d 245, 252 (Fla. 1991). Furthermore, McIntyre testified that he did not know appellant. While improper impeachment of a defense witness may have a "spill-over effect" on the credibility of the defense where the witness is a friend or relative, see Fulton , 335 So.2d at 285, where there is no connection between the witness and the defendant, the harmful "spill-over" effect is not present. See Bedford , 589 So.2d at 252.

Here, the verdict was amply supported by the testimony of the three officers, two of whom positively identified appellant as the driver of the vehicle. The dashcam video of the officer rushing into the house directly refuted the mother's testimony that the officers observed appellant through an open door before entering the house, and it is consistent with the officer's testimony. One of the officers knew Parks, whom McIntyre said was the driver, and testified that the driver was not Parks. Finally, the State never mentioned McIntyre's convictions in closing argument and did not seek to capitalize on the improper impeachment. Compare with Roper v. State , 763 So.2d 487, 489 (Fla. 4th DCA 2000) (finding harmful error where during closing argument, the State focused on improper impeachment evidence and appellant's testimony that he lived in jail, telling the jury this was relevant to his credibility).

Because the appellant has not shown fundamental error or Strickland prejudice, we affirm his conviction on this issue and the remaining issues raised.

Appellant also challenges his ten-year sentence. His lowest permissible sentence under the Criminal Punishment Code was 13.5 months, but his maximum possible sentence for high speed fleeing and eluding was fifteen years. He had a total of forty-six sentencing points. At sentencing, the trial court found the circumstances of the car chase, including travelling at very high rates of speed through a residential neighborhood and close to daycare facilities, warranted a higher sentence. The evidence showed that a twelve-year-old girl was endangered in the chase. The court acknowledged that it had sentenced others convicted of the same crime to lesser sentences, but that the circumstances of this crime, and the danger to which it exposed the community, required a more severe sentence. The court considered mitigating factors, including that appellant appeared before the court despite his serious charges and that his "significant felony record" did not include violent crimes. However, the judge found the mitigating factors didn't "add up to much" considering the nature of his crime. It then imposed the ten-year sentence.

After sentencing, appellant filed two motions pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which permits a court to correct a sentencing error pending appeal. In his first motion, he argued the court sentenced him based on a misapprehension of fact-that the court sentenced other people who had committed the same crime to much lesser sentences.

Thus, he contended the court violated his due process rights. He attached the judgment and arrest affidavit from another case in which he claimed that the court had sentenced a defendant to significantly less time where the crimes were very similar. The court denied his first motion, finding no sentencing error.

Later, appellant filed a second motion, again arguing that the court sentenced him based on a misunderstanding of its past sentencing practices. He summarized four cases where the same trial court sentenced defendants, whose lowest permissible sentences ranged from about fifteen to thirty months, to much lesser sentences for the same offense of high speed fleeing (the highest sentence was six years). He attached various court documents from those cases. The court did not rule on this second motion within sixty days, so it is deemed denied. Fla. R. Crim. P. 3.800(b)(2)(B).

Appellant's motions may not be properly entertained pursuant to rule 3.800(b)(2). That rule is not used to address errors in the sentencing process, but errors in an order entered as a result of the sentencing process. Jackson v. State , 983 So.2d 562, 572-74 (Fla. 2008) (holding a defendant improperly files a rule 3.800(b) motion if his or her claim deals with an error in the sentencing process, rather than the sentencing order; if he or she does so, this court applies "the general rule that an unpreserved error may be considered on appeal only if the error is fundamental"); see Josephs v. State , 86 So.3d 1270, 1272 (Fla. 4th DCA 2012) (finding defendant does not preserve a claim that the sentencing court relied on improper factors with a rule 3.800(b)(2) motion; however, this court may review procedural issues for fundamental error or a denial of due process). Because the appellant's claim is not a sentencing error, the contemporaneous objection rule applies, or the error must be fundamental. See Jackson , 983 So.2d at 576.

Even if the motions were proper to preserve the issue, we conclude that they do not require reversal of the sentence. Although appellant contends in his motions that the trial court's sentence relied on a misapprehension of the court's sentencing decisions in other cases, the court itself noted that it had sentenced other defendants committing the same crime to less time. It considered the facts of this case and the high-speed chase through the residential neighborhood to be more egregious than those cases. Sentencing is a highly fact-intensive decision based upon the particular circumstances of each defendant's case. While appellant suggested that other cases had similar facts, the trial court denied the motion, and we cannot conclude that the court either misapprehended the facts of other cases or that they were so similar as to call into question the fairness of this sentence. See Maddox v. State , 760 So.2d 89, 99 (Fla. 2000) (noting court must have sufficient factual record on appeal to determine if fundamental error occurred).

In his rule 3.800(b)(2) motions, appellant also alleged that a racial disparity existed in sentences in the Nineteenth Judicial District. He noted that in cases where the defendants' CPC's lowest possible sentence score were similar to his, the average sentence was 20.44 months for white defendants, but the average sentence for black defendants was 40.28 months. In contrast, he received a ten-year sentence. In his second motion, appellant provided the Department of Corrections sentencing information from 2016-17, showing there were seventy-six defendants sentenced in the Nineteenth Circuit who scored from 13.5 to 15.5 months. He again argued that there was pronounced racial disparity because the average white sentence was 31.42 months, but the average black sentence was 39.67 months. His sentence was 120 months.

This issue may not be raised as a rule 3.800(b)(2) motion, as it does not constitute a claim of error in the sentencing order. See Jackson , 983 So.2d at 572-74. Appellant did not raise this issue at sentencing. However, it may be raised as a question of fundamental error.

Appellant asks this court to reconsider the legal principle that a defendant cannot successfully challenge his sentence based on statistical evidence of racial disparity in sentencing. McCleskey v. Kemp , 481 U.S. 279, 292-94, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (finding a defendant who alleges an equal protection violation must prove both a discriminatory purpose and effect; he or she must present evidence specific to his own case, instead of relying on statistical evidence of disparities); Foster v. State , 614 So.2d 455, 463 (Fla. 1992) (citing McCleskey to find the defendant could not prove that prosecutors acted with discriminatory purpose by presenting statistics that white-victim defendants were more likely to be convicted of first-degree murder; he presented no evidence of purposeful discrimination in his own case); Hartley v. State , 650 So.2d 1044, 1048-49 (Fla. 4th DCA 1995) (holding the defendant was not entitled to a hearing on his equal protection claim, where he presented statistics that more minorities were assigned to the habitual felony offender division than whites, because his claims rested on actions of unrelated decision makers).

It is not within our province to reconsider and reject the United States Supreme Court's determination in McCleskey . Like the defendants in the McCleskey line of cases, appellant has not proven that the judge acted with discriminatory purpose in his case. As the State notes, each case is unique. For example, appellant referenced nine white defendants who had CPC scores similar to appellant's score, but who received lesser sentences. However, they committed different crimes and had different criminal histories. Here, the court weighed appellant's criminal background, as well as what it viewed as mitigating and aggravating circumstances of the crime.

Moreover, the statistical evidence that minority defendants received sentences on average approximately eight months longer than white defendants with similar CPC scores cannot explain the eighty-month difference between the sentence in this case and the average sentence for other similarly-scored minority defendants. From the judge's comments at sentencing, he was motivated to punish the defendant for the danger in which he placed the community by his conduct and not any racial animus.

The CPC allows the judge to sentence a defendant anywhere from the least possible sentence score to the statutory maximum. Here, the judge did not sentence the appellant to the maximum of fifteen years. "[C]urrent Florida law gives a sentencing judge unlimited discretion to sentence a defendant up to the maximum term set by the legislature for a particular crime." Alfonso-Roche v. State , 199 So.3d 941, 946 (Fla. 4th DCA 2016) (Gross, J., concurring); see also § 921.0024 (2), Fla. Stat. (2016) ("The permissible range for sentencing shall be the lowest permissible sentence up to ... the statutory maximum ...."). The court did not deviate from the statute.

While the DOC statistics showing a disparity between average sentences for white defendants and minority defendants are disturbing, they do not show that racial bias motivated the decision in this case. We note that based upon recent investigations by the Sarasota Herald Tribune into racial disparity in sentencing, the Legislature has authorized a study of fairness in sentencing. Florida Senate Bill 1392 (2018), https://www.flsenate.gov/Session/Bill/2018/01392. From that study, we certainly hope and desire that any necessary protections against actual racial bias in sentencing can be implemented to assure that it is not present in the criminal justice system.

For the foregoing reasons, we affirm the conviction and sentence of appellant.

May and Forst, JJ., concur.

      Josh Salman, Emily Le Coz, & Elizabeth Johnson, Bias on the Bench , Sarasota Herald-Tribune (Dec. 8, 2016), http://projects.heraldtribune.com/bias/; Josh Salman, Emily Le Coz, & Elizabeth Johnson, Tough on Crime: Black Defendants Get Longer Sentences in Treasure Coast System , Sarasota Herald-Tribune (Dec. 8, 2016), http://projects.heraldtribune.com/bias/bauer.


author: SCALES, J.

text:
    Rene C. TOIRAN, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-2389
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    Donet, McMillan & Trontz, P.A., and David A. Donet, Jr., Miami, for petitioner.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, and Amit Agarwal (Tallahassee), Solicitor General, for respondent.
    Before SUAREZ, LAGOA and SCALES, JJ.
   SCALES, J.

Petitioner, Rene Toiran, seeks a writ of prohibition directing the trial court to relieve him from criminal prosecution for second degree murder for a shooting death that occurred on January 12, 2015, on the ground that he is immune from prosecution under Florida's Stand Your Ground Law, section 776.032 of the Florida Statutes (2017). For the following reasons, we deny the petition.

After Toiran filed his motion below arguing that he is immune from criminal prosecution, but before the immunity motion was heard, the Florida Legislature amended section 776.032, effective June 9, 2017, by adding subsection (4), which creates a new standard for determining immunity:

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

§ 776.032(4), Fla. Stat. (2017) ; Ch. 2017-72, § 1, Laws of Fla. The trial court directed the parties to prepare and submit additional briefing on the issue of the constitutionality and retroactivity of subsection (4). On July 6, 2017, the trial court entered an order finding that subsection (4) was constitutional, but not retroactive, and directing that an immunity hearing be held applying the version of section 776.032 in effect when the instant shooting death occurred (on January 12, 2015).

A different judge held an immunity hearing between July 25 and July 28, 2017. At the beginning of the hearing, after acknowledging the July 6, 2017 order, the trial court announced that it would conduct the hearing, and thereafter make determinations, under both the old immunity standard and the new immunity standard:

As to the burden, if you remember, this is the case where Judge Hanzman made the ruling that ... [subsection (4) ] was constitutional. But, based on his ruling, that it is not retroactive, so we're working under the old. However, what I stated before in court when everybody was here and I want to state again we're going to handle the hearing under the old burden. However, at the end of the hearing I'm going to require the State ... to also present whatever evidence they would need to present as if it was the State having to carry the burden also under a clear and convincing standard as well because I am going to write the order, make the ruling one way or the other depending on where it goes.

After conducting the hearing, the trial court entered an order finding that, under the old immunity standard, Toiran had failed to meet his burden of demonstrating, by a preponderance of the evidence, that he was entitled to immunity from criminal prosecution. In the alternative, the trial court found that, under the new immunity standard, the State could not meet its burden of proving, by clear and convincing evidence, that the defendant was not entitled to immunity.

At the time the trial court conducted the immunity hearing and issued its ruling, it did not have the benefit of this Court's recent decision in Love v. State, 247 So. 3d 609, 612 (Fla. 3d DCA 2018), wherein we concluded that the old immunity standard continues to apply to crimes committed before the 2017 amendment to section 776.032. Finding no error in the denial of immunity under the old standard, we deny the instant petition. Arauz v. State, 171 So. 3d 160, 161-62 (Fla. 3d DCA 2015) ("Under the appellate court's standard of review in a Stand Your Ground case, the trial court's findings of fact are 'presumed correct and can be reversed only if they are not supported by competent substantial evidence, while the trial court's legal conclusions are reviewed de novo.' " (quoting Mobley v. State, 132 So. 3d 1160, 1162 (Fla. 3d DCA 2014) ) ).

Petition denied.

      The Honorable Michael A. Hanzman

      The Honorable Martin Zilber

      Given our resolution of this matter, we need not, and therefore do not, determine the propriety either of: (i) conducting an immunity hearing under both the old immunity standard and the new immunity standard; or (ii) the trial court's determination under the new immunity standard.


author: LAMBERT, J.

text:
    James Albert TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1912
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 28, 2018
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

James Albert Taylor appeals his conviction for lewd or lascivious molestation of T.F., a child less than twelve years of age, in violation of section 800.04(5)(a)-(b), Florida Statutes (2013). Taylor raises three issues on appeal. We find no merit to Taylor's arguments that section 800.04(5)(a) is either unconstitutionally vague or overbroad and that certain comments made by the State in its closing arguments require reversal, and we do not address them any further. We do, however, agree with Taylor's first argument that the trial court erred in admitting into evidence, over objection, collateral crime or similar fact testimony that Taylor had previously committed a sexual battery upon the victim's then twelve-year-old sister, L.G.

In the sole count of the information, the State alleged that between August 20, 2013, and November 6, 2013, Taylor unlawfully and intentionally touched T.F., a person less than twelve years of age, in a lewd and lascivious manner, on the breast, genitals, genital area, or buttocks, or the clothing covering them, contrary to section 800.04(5)(a)-(b), Florida Statutes. At the time, Taylor was T.F.'s stepfather. T.F. would later testify at trial that when she was approximately ten or eleven years old, Taylor came into the bedroom that T.F. shared with a different sister, J.F., and that while T.F. was lying in her bed, Taylor touched her breast for a couple of seconds over the t-shirt that she was wearing. When T.F. began to move, Taylor abruptly left the room.

During the pendency of the case, the State filed what is commonly referred to as a " Williams Rule" notice under section 90.404(2)(a), Florida Statutes (2017), providing notice of its intent to use similar fact evidence of other crimes, wrongs, or acts at trial for various reasons as provided in the statute. Because Taylor was charged with a crime involving child molestation, pursuant to section 90.404(2)(b) 1., evidence of his commission of other crimes, wrongs, or acts of child molestation was admissible and could be considered for its bearing on any matter to which it was relevant. The State listed five witnesses in its notice, including the victim, that it intended to call at trial to testify as to prior acts of child molestation committed upon them by Taylor.

Following a pretrial evidentiary hearing, the trial court entered an order permitting T.F. to testify about an earlier, uncharged act of sexual misconduct committed upon her by Taylor. The court also allowed T.F.'s sister, J.F., to testify about similar acts of molestation committed upon her by Taylor when he would come into J.F.'s bedroom and touch her while she appeared to be sleeping in her bed. Taylor has not challenged these rulings on appeal. The admissibility of the similar fact or collateral crime testimony of T.F.'s other sister, L.G., is at issue here.

In its notice, the State asserted that when L.G. was approximately twelve years old and living with her mother, Taylor, and her two sisters, Taylor "forced [L.G.] on the bed, took her clothes off, and forcefully inserted his penis in her vagina." At the pretrial hearing, L.G. provided further context to this act, testifying that she had just finished taking a shower and was putting her dirty clothes in a clothes bin located in the bedroom that Taylor shared with L.G.'s mother. At that point, Taylor "pinned" L.G. onto his bed so that she could not get up and "stuck his penis in [her]" for what seemed like a "long time." L.G. also testified at the pretrial Williams Rule hearing to some unspecified but inferentially improper "touching" by Taylor immediately prior to the sexual battery.

In its written order allowing L.G.'s testimony at trial, the court first found that this incident was established by clear and convincing evidence. The court recognized the great risk in admitting this evidence at trial due to its "highly prejudicial" nature based on the severity of the collateral crime in relation to the charged crime, but it found that Taylor's touching of L.G. prior to the sexual battery was similar to the alleged touching of the victim of the charged crime. The court also found that the probative value of the collateral crime evidence was great not only to show Taylor's intent and lack of mistake but also to corroborate T.F.'s testimony of the molestation.

The admissibility of collateral crime or similar fact evidence is within the discretion of the trial court as limited by the rules of evidence. LaMarca v. State , 785 So.2d 1209, 1212 (Fla. 2001). Nevertheless, as recognized by our sister court, "such discretion is not unfettered" in child molestation cases, Cotton v. State , 176 So.3d 310, 313 (Fla. 3d DCA 2015), even though section 90.404(2)(b) 1. broadened the admissibility of similar fact evidence. See McLean v. State , 934 So.2d 1248, 1258-59 (Fla. 2006) (acknowledging that the 2001 enactment by the Legislature of section 90.404(2) broadened the admissibility of a defendant's commission of other acts of child molestation).

As our court has previously explained, relevancy still remains the threshold consideration for the trial court in this type of case when deciding whether to admit prior acts of child molestation. Fiore v. State , 967 So.2d 995, 997-98 (Fla. 5th DCA 2007) (quoting Triplett v. State , 947 So.2d 702, 703-04 (Fla. 5th DCA 2007) ). In McLean , the Florida Supreme Court explained the trial court's gatekeeping function in conducting this threshold consideration to determine whether to admit similar fact or collateral crime evidence in child molestation cases:

[T]he similarity of the prior act and the charged offense remains part of a court's analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be "substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403.
The similarity of the collateral act of molestation and charged offense is a critical consideration for the trial court in conducting an appropriate weighing under section 90.403. The trial courts are gatekeepers in ensuring that evidence of prior acts of child molestation is not so prejudicial that the defendant is convicted based on the prior sexual misconduct.

934 So.2d at 1259.

Admittedly, and as recognized by the trial court, there are some similarities here between the charged offense against the victim and the collateral crime evidence regarding L.G. Both children are female and were of similar age at the time of the respective incidents, and the offenses occurred in the home involving their stepfather. However, the dissimilarities between the charged offense and the collateral crime evidence are significant. The victim was touched on the top part of her breast over her t-shirt for a matter of a couple of seconds. The collateral crime evidence showed Taylor forcefully "pinning" L.G. on his bed in a manner that prevented her from getting up, then inserting his penis in L.G. for what seemed like a "long time."

As previously indicated, the trial court recognized in its order that the charged offense was less severe than the collateral crime and thus there was a greater risk of prejudice in admitting testimony regarding the collateral crime, but it reasoned that the "touching [of L.G.] prior to the sexual [battery] was similar" but that Taylor just "went further and committed the final act." We believe that the collateral crime evidence presented during trial was unduly prejudicial and should have been excluded. First, there was no testimony at the pretrial hearing as to the specific nature of Taylor's "touching" of L.G. prior to committing the sexual battery. Second, unlike at the pretrial hearing, L.G. did not testify at trial as to any "touching" by Taylor, only the sexual battery, thus making the trial evidence of the sexual battery committed on her even less similar to the charged crime and therefore less relevant and even more prejudicial than probative under McLean . Finally, even if the "touching" of L.G. was in fact similar to the alleged molestation of the victim, the jury had already heard other collateral crime or similar fact evidence from both the victim and another sister.

"Collateral crime evidence violates a defendant's right to due process if it is so prejudicial that it denies the defendant a fair trial." McLean , 934 So.2d at 1261 (citing United States v. LeMay , 260 F.3d 1018, 1027 (9th Cir. 2001) ; United States v. Castillo , 140 F.3d 874, 883 (10th Cir. 1998) ). Such evidence "is inherently prejudicial because it creates the risk that a conviction will be based on the defendant's bad character or propensity to commit crimes, rather than on proof that he committed the charged offense." Gartner v. State , 68 So.3d 986, 988 (Fla. 5th DCA 2011) (citing McLean , 934 So.2d at 1255 ). Given the significant dissimilarities between the charged crime and the collateral crime of the prior sexual battery committed by Taylor upon L.G., combined with the admittedly highly prejudicial nature of this evidence, and in light of the other similar fact evidence properly admitted, we conclude that the trial court abused its discretion in admitting evidence of the sexual battery committed upon L.G.

Finally, we reject the State's argument that the admission of this testimony was harmless error. See State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986). Accordingly, we reverse Taylor's judgment and sentence and remand for a new trial.

REVERSED and REMANDED.

EVANDER and EDWARDS, JJ., concur.

      Williams v. State , 110 So.2d 654 (Fla. 1959).

      The State's intended purposes for this evidence at trial, according to its notice, were to prove "motive, intent, common scheme or plan, absence of accident or mistake/consent, and identity."

      The definition of "child molestation" is set forth in section 90.404(2)(b) 2.

      The court excluded the testimony of the other two Williams Rule witnesses, who were not related to the victim or to Taylor. This ruling has not been challenged.

      At trial, L.G. changed her testimony to reflect that the sexual battery took place "in the blink of an eye."

      We do not foreclose the potential admissibility on retrial of Taylor's alleged improper touching of L.G. prior to the sexual battery as similar fact or collateral crime evidence under section 90.404(2)(b). This determination is best left initially to the trial court after hearing further evidence of the nature of the touching. Cf. Cotton , 176 So.3d at 315 & n.5 (approving the admission of similar fact evidence of lewd or lascivious conduct committed by the defendant against the victim's two sisters but finding that the trial court abused its discretion in also permitting introduction of the defendant's prior sexual batteries of the sisters).


text:
    Columbus WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-1927
    District Court of Appeal of Florida, First District.
    October 2, 2018
    Andy Thomas, Public Defender, and Marcia Perlin, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Holly Simcox, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Following his arrest, Columbus Williams filed a motion for discharge and termination of jurisdiction for incompetency and non-restorability, asserting that the intellectual disability underlying his incompetency was static and that he could not be held on charges without any likelihood of becoming competent to stand trial. After a hearing, the trial court denied the motion, finding a substantial probability that Williams would regain competency in the reasonably foreseeable future. Williams sought this Court's review by filing a petition for writ of certiorari, which we now grant because the trial court's findings are not supported by competent, substantial evidence.

I.

Williams was first charged in 2002, was soon found incompetent due to an intellectual disability, and was admitted to a forensic facility that provides competency training. In 2007, the trial court dismissed the charge, finding that Williams was still incompetent after almost five years of training and that there was "no reason to believe" he would become competent to stand trial in the reasonably foreseeable future. Williams was involuntarily committed. Orders continuing Williams' civil commitment were entered in 2009, 2012, 2013, 2014, and 2015, all citing the seriousness of his intellectual disability.

Williams was charged with another crime in 2016. Dr. Salvatore Blandino was then ordered to examine Williams' competency, and did so after reviewing limited and miscellaneous records. Dr. Blandino noted Williams' mental health diagnoses, including illnesses and intellectual developmental disorder, observed that he was "obviously cognitively impaired" during the examination, and found him incompetent. However, Dr. Blandino also stressed that Williams was overmedicated by an excessive regimen of psychotropic medications, which likely contributed to his poor performance during the examination. Dr. Blandino's report concluded that contingent upon the stabilization of Williams' medications and competency training, his prognosis was "guarded to fair" and a determination as to his likelihood of attaining competency would be possible in six to twelve months.

By the time the competency hearing commenced, Dr. Blandino had reviewed additional records regarding Williams' developmental services and competency, including those deeming him non-restorable due to an intellectual disability years prior. Testifying for the State, Dr. Blandino explained that intellectual developmental disorder is a static condition that could not improve, and the fact that Williams was declared non-restorable based on this disorder, rather than any mental illnesses, meant that he would never attain competency. He further noted that his prior "guarded to fair" prognosis was based on the chance that Williams' incompetency was partially due to overmedication, but based on the information later learned, he understands no chance of attaining competency now exists regardless of which medications Williams takes. The only other evidence presented by the State was the testimony of Dr. Amanda Graham, who agreed that Williams had an intellectual disability, and who had seen no indication that he had attained competency since 2002.

The trial court held that Williams was incompetent, but denied his motion to discharge, declined to dismiss the charges, and ordered him to commence competency training. The trial court did not find "any evidence" that Williams' competency would not be restored because "people's conditions change," referenced Dr. Blandino's prior "guarded to fair" prognosis, and concluded that clear and convincing evidence showed that Williams had a substantial likelihood of regaining competency in the reasonably foreseeable future.

II.

An incompetent person charged with a crime may only be held for the "time necessary to determine whether there is a substantial probability" that he or she may attain competency to proceed to trial. Jackson v. Indiana , 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Appellate courts may review the trial court's application of these due process rights by common law certiorari and for competent, substantial evidence. See Vasquez v. State , 496 So.2d 818, 820 (Fla. 1986).

A defendant found incompetent due to an intellectual disability or autism may only be involuntarily committed for competency training if, inter alia , there exists "a substantial probability that the intellectual disability or autism causing the defendant's incompetence will respond to training and the defendant will regain competency to proceed in the reasonably foreseeable future." § 916.302(1)(d), Fla. Stat. The trial court made the findings necessary to satisfy the statutory requirements, but competent, substantial evidence does not support them.

The only evidence the trial court cited in announcing its ruling was Dr. Blandino's report. It was error to interpret this report as supporting the conclusion that there exists a substantial likelihood of Williams attaining competency. Dr. Blandino's report found that Williams was mentally disabled, his disability was enhanced by the medications he was taking, and that a determination as to his likelihood of attaining competency could only be made when his medications were stabilized; Dr. Blandino concluded that he could not make a determination for six to twelve months. Upon receiving additional information of Williams' medical and legal history, Dr. Blandino was able to then determine that Williams would never attain competency to stand trial. In light of this testimony, the non-determination made in Dr. Blandino's prior report does not constitute competent, substantial evidence to support the trial court's finding of a substantial probability that Williams' intellectual disability would soon improve and enable him to attain competency. Because Williams does not meet the criteria to be involuntarily committed pursuant to section 916.302, "the State must either institute civil commitment proceedings or release" him. Mosher v. State , 876 So.2d 1230, 1232 (Fla. 1st DCA 2004) (footnote omitted).

Lastly, we reject the State's argument that Williams is not entitled to dismissal of his charges because the two-year limit under section 916.303(1), Florida Statutes, has yet to expire. Section 916.303(1) mandates dismissal "within a reasonable time" after a determination of incompetency, "not to exceed 2 years," unless the trial court specifies reasons indicating that the defendant will soon become competent. The reasonableness of time is in consideration of the prospects of restoring the defendant's competency. "Thus, a reasonable time has passed, and the defendant's substantive right to dismissal of the criminal charge arises, when it becomes evident that the defendant cannot be restored to competency." Gonzalez v. State , 15 So.3d 37, 40 (Fla. 2d DCA 2009) ; see also Roddenberry v. State , 898 So.2d 1070, 1073 (Fla. 5th DCA 2005) ; cf. § 916.145, Fla. Stat. (requiring dismissal for those incompetent due to mental illnesses "if the defendant remains incompetent for 5 continuous, uninterrupted years").

III.

Williams was declared incompetent in 2002 based on his intellectual developmental disorder and, in 2007, his continued incompetency resulted in the dismissal of his charges and civil commitment. Following his 2016 arrest, Williams was again found incompetent, with no indication that he had attained competency since 2002. At a hearing, the State's evidence demonstrated that Williams' disorder would never improve and he would never attain competency. It was error to find a substantial probability that Williams would attain competency in the reasonably foreseeable future based on a report making no such determination, particularly in the face of direct evidence to the contrary. Williams must be civilly committed or released, and his charges dismissed.

Therefore, we GRANT Williams' petition for writ of certiorari and QUASH the trial court's order.

Ray, Bilbrey, and Winokur, JJ., concur.

      We note that Dr. Blandino's report was based on a limited review of Williams' medical history, while he testified at the hearing after he had a more complete understanding of Williams' history. It is unnecessary to determine whether such a report could constitute sufficient evidence to support a holding in some situations-see M.A.B. v. Dep't of Health & Rehab. Servs. , 630 So.2d 1252, 1255 (Fla. 1st DCA 1994) ("An expert's opinion which is based upon incomplete or inaccurate facts cannot be competent substantial evidence.")-because here, the report's conclusion does not support the trial court's finding.


author: Bilbrey, J.

text:
    STATE of Florida, Appellant, v. Nathaniel F. GREEN, Appellee.
    No. 1D17-877
    District Court of Appeal of Florida, First District.
    October 2, 2018
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellant.
    Robert A. Morris, Tallahassee, for Appellee.
   Bilbrey, J.

The State appeals the trial court's denial of the State's petition to prohibit harassment, filed under section 914.24, Florida Statutes, where the petition was filed in the criminal case after the death of the defendant. The trial court denied the petition due to the expiration of the court's jurisdiction upon the abatement of the criminal proceedings following the defendant's death. Under the circumstances of this case, the trial court's determination that it lacked jurisdiction was correct, and we affirm.

We review de novo the issue of whether a trial court's jurisdiction expired or was divested. Rogers v. State , 33 So.3d 805, 806 (Fla. 1st DCA 2010).

The felony proceedings in this case commenced on November 18, 2015, with the State's filing of an information charging Mr. Green with various offenses including sexual assault allegedly committed on October 31, 2015. Mr. Green died on February 4, 2017, prior to any trial or determination of guilt. The State filed its notice of abatement of prosecution the following day, asserting that the court had lost jurisdiction due to the defendant's death and that the case should be closed.

On February 7, 2017, on a motion filed by the State in the criminal case, the trial court entered an ex parte temporary restraining order pursuant to section 914.24(1) against Rebecca W. Green, the mother of Mr. Green. The order directed Ms. Green, who was not a party to the criminal action, to remove from social media a post identifying an alleged victim of sexual assault who reported the offenses to law enforcement in 2015. The trial court prohibited Ms. Green from any further posts pertaining to the case or the alleged victim, and the court then set the matter for final hearing within 10 days, pursuant to section 914.24(1)(b) 3.

Counsel for Ms. Green moved to dissolve the restraining order due to the abatement of the criminal case upon the death of the defendant and resulting expiration of the trial court's jurisdiction. In response, the State filed its petition for a protective order to restrain harassment of a victim or witness, under section 914.24(2). The State alleged that Ms. Green had violated section 794.03, Florida Statutes, by publishing the name of the victim of a sexual offense.

After argument of counsel on the motion to dissolve and the State's petition, the trial court dissolved the temporary restraining order against the mother and denied the State's petition. The court denied the State's petition for lack of jurisdiction in the criminal case due to the death of the defendant.

No Florida case has been located which directly addresses this issue. In Bagley v. State , 122 So.2d 789, 790 (Fla. 1st DCA 1960), we held that the death of defendant pending appeal of conviction abates the action ab initio . However, Bagley was modified by State v. Clements , 668 So.2d 980, 981 (Fla. 1996), where the Florida Supreme Court rejected the ab initio rule when monetary penalties were imposed, but nonetheless held that the pending appeal should be dismissed on the death of the defendant.

Unlike Clements , and other cases where a party dies during the pendency of a direct appeal, here the defendant died prior to any conviction or other determination of guilt. Accordingly, the abatement of the case rendered the case non-existent and "death withdrew the defendant from the jurisdiction of the court." Bagley , 122 So.2d at 791 (citation omitted). ,

Section 914.24 does not extend or preserve the trial court's jurisdiction in the criminal prosecution against Mr. Green under the circumstances of this case. Because the trial court correctly denied the State's petition in this criminal case due to the termination of its jurisdiction, any remedy which the State or the alleged victim wishes to pursue against Ms. Green must be in a separate proceeding. The abatement of the criminal case does not preclude the circuit court from considering a petition filed by the state attorney under section 914.24, Florida Statutes, in a separate action because the statute provides an independent basis of jurisdiction (and a supplemental grant of authority ) for the circuit court to enter an order protecting a crime victim from harassment, whether the harassment occurs during the pendency of the criminal case or thereafter.

AFFIRMED .

Wetherell and M.K. Thomas, JJ., concur.

      Even where monetary penalties were imposed, we have dismissed appeals as moot where the State has represented that it will not attempt to collect from the deceased defendant's estate. See Bostic v. State , 708 So.2d 695 (Fla. 1st DCA 1998).

      The absence of any determination of guilt prior to the abatement also leaves intact "the legal presumption of innocence of the crime with which [he] was charged ... in no less degree than before the criminal proceedings were instituted." Bagley v. State , 122 So.2d 789, 791 (Fla. 1st DCA 1960), modified by State v. Clements , 668 So.2d 980 (Fla. 1996).

      "The purpose of the abatement rule is to protect the deceased defendant from being branded a felon without his conviction having become final." United States v. One Parcel of Real Estate at 10380 SW 28th Street, Miami, FL , 214 F.3d 1291, 1294 (11th Cir. 2000) (discussing viability of civil forfeiture of real property where owner died during pendency of appeal). Because no conviction occurred prior to the death of the defendant in this case, the State was correct to notice the abatement of the prosecution and termination of the court's jurisdiction.

      See § 914.24(4), Fla. Stat. ("Nothing in this section precludes the court from entering any other order or remedy that may be appropriate under the circumstances.").


author: PER CURIAM.

text:
    OCEAN BANK, etc., Appellant, v. Magaly Pico GATO, Appellee.
    No. 3D18-1608
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018.
    Louis K. Nicholas II, Miami, for appellant.
    Loan Lawyers, LLC, and Samantha Neides (Ft. Lauderdale), for appellee.
    Before SALTER, LOGUE, and LINDSEY, JJ.
   PER CURIAM.

Following a February 29, 2016 loan payment default by Magaly Pico Gato, Ocean Bank initiated a foreclosure action on February 10, 2017 and obtained a final judgment of foreclosure on January 31, 2018. As of February 12, 2018, upon Gatos agreement to Ocean Bank's entitlement to costs in the amount of $885.00, Ocean Bank's foreclosure judgment secured repayment of $372,834.55, plus interest and attorney's fees. The foreclosure sale was scheduled for March 15, 2018.

Subsequently, Gato filed for Chapter 13 bankruptcy and the foreclosure sale was canceled on March 14, 2018. After Gato's bankruptcy case was dismissed, the trial court rescheduled the foreclosure sale for August 8, 2018. On July 26, 2018, Gato filed an emergency motion to cancel the foreclosure sale and attached to the motion a short sale contract dated July 14, 2018 in the amount of $350,000.00. A hearing was held on August 1, 2018 to consider Gato's motion to cancel the foreclosure sale. At the hearing, Ocean Bank explicitly objected to the short sale:

[Ocean Bank]: We object. We filed a written objection. The bank has declined the short sale which would leave us tens of thousands of dollars short. We have filed our objection in writing and the law says that under those circumstances the motion to cancel the sale should not be granted
The Court: So what I'm going to do is give it a 90-day resale date with no further continuances.
....
[Ocean Bank]: Judge, respectfully, over Ocean Bank's objection.

Thus, the foreclosure sale was rescheduled for October 30, 2018. Ocean Bank filed a timely notice of appeal on August 3, 2018.

Pursuant to section 45.031, Florida Statutes (2018), a foreclosure sale is to be conducted "not less than 20 days or more than 35 days after the date" of the order or judgment. § 45.031(1)(a). A defendant's claim that they might be able to arrange for payment of the outstanding debt during an extended period of time "does not constitute a lawful, cognizable basis for granting relief to one side to the detriment of the other." Republic Fed. Bank, N.A. v. Doyle, 19 So.3d 1053, 1054 (Fla. 3d DCA 2009) ; see also Firstbank Puerto Rico v. Othon, 190 So.3d 110, 111 (Fla. 4th DCA 2015) (explaining that neither the wife's medical problems nor the fact that the respondents listed their property in hopes of obtaining a short sale are grounds to cancel the foreclosure sale in contravention of section 45.031(1)(a) ).

Because the August 8, 2018 foreclosure sale date has already passed, the relief requested by Ocean Bank is no longer available. Similar to Doyle and Othon, reversing the trial court's order in the instant case may actually delay the foreclosure sale further. For this reason alone, relief will be denied. However, we direct that the sale shall proceed on the assigned October 30, 2018 date with no further continuances absent a legally cognizable basis.

Affirmed.


author: SALTER, J.

text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellant, v. JKM SERVICES, LLC, as Receiver FOR CEDAR WOODS HOMES CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D17-370
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018.
    Levine Kellogg Lehman Schneider + Grossman and Jeffrey C. Schneider and Marcelo Diaz-Cortes ; Greenspoon Marder and Aaron T. Williams (Fort Lauderdale), for appellant.
    Shir Law Group and Stuart J. Zoberg and Guy M. Shir (Boca Raton), for appellee.
    Before SALTER, EMAS and LINDSEY, JJ.
   SALTER, J.

Federal National Mortgage Association ("FNMA") appeals a final circuit court order denying its motions to intervene in, and to terminate, a receivership proceeding insofar as it affected three condominium units recently subject to FNMA foreclosure proceedings, and to determine the amount owed by FNMA to Cedar Woods Homes Condominium Association, Inc., the appellee ("Association"), under the so-called "Safe Harbor Statute," section 718.116(b), Florida Statutes (2014). FNMA's motions presented the circuit court, and now present us, with several novel issues that arose within condominium associations in the real estate downturn and foreclosure crisis of the past decade.

Based on the analysis which follows, we are constrained to reverse the orders denying relief to FNMA, and to remand the receivership case to the trial court for further proceedings.

I. Background and Proceedings in the Circuit Court

In this case, the Association reached a point in 2009 where over ninety percent of its 165 condominium units were delinquent in assessment payments, and the majority of those units were also in foreclosure. The Association needed the assessments to cover repairs, maintenance, and capital improvements.

For a variety of reasons, the lenders and loan servicers on the units in foreclosure were slow to prosecute their cases. Notwithstanding delays measured in years rather than months, by law the foreclosing lenders obtaining title were not obligated to pay any accrued arrearages for assessments beyond the lesser of "unpaid common expenses and regular periodic assessments which accrued or became due during the 12 months immediately preceding the acquisition of title [by the lender]" or one percent of the original mortgage debt (quoting from the Safe Harbor Statute cited above).

A. The 2009 Receivership

In law as in engineering, necessity is the mother of invention. In 2009, the Association filed an emergency petition in the circuit court seeking the appointment of a receiver to preserve and protect the condominium property in light of the overwhelming delinquency rate by unit owners. The Association claimed, and a magistrate judge found, that the great majority of units were subject to bank foreclosure actions, with several units "abandoned and vacant for as long as two years." The property manager's affidavit in support of the petition reported that the Association appeared to be insolvent and had received final notices that water, common area electricity, and garbage service would soon be terminated.

The Association's petition was based on a provision of the Condominium Act, section 718.116(6)(c), Florida Statutes (2009):

If the unit is rented or leased during the pendency of the foreclosure action, the association is entitled to the appointment of a receiver to collect the rent. The expenses of the receiver shall be paid by the party which does not prevail in the foreclosure action.

The petition sought the appointment of a receiver "over those units subject to foreclosure actions or soon-to-be-filed foreclosure actions by the Association to collect unpaid assessments" and to "(a) collect rents due to unit owners currently being sued by the Association to foreclose assessments liens; (b) hire a management company to manage, maintain and lease units subject to assessments lien foreclosures; (c) hire a locksmith to break door locks and change door locks to vacant units subject to assessments lien foreclosures; (d) lease or rent units and evict non-paying tenants; (e) contract with contractors to repair and maintain units subject to foreclosure lien assessments; and [pursue other relief as permitted by the court]."

After various hearings and orders, in 2010 the trial court appointed a receiver ("Receiver") to manage and preserve all "Foreclosure Rented Units" and "Foreclosure Abandoned Units," with assessments delinquent for sixty days or more and subject to foreclosure by the Association. The Receiver was to collect all rental income from such units, initiate eviction for non-payment of rent on such units, and use the collected income to pay back-owed assessments, the Receiver's costs and expenses, and "any and all expenses associated with the Condominium."

The emergency petition for the appointment of the Receiver was filed by the Association and as a separate action. It did not join or name the owner or mortgagee of any unit as a party when filed. A magistrate judge recommended relief regarding the Association's petition, and the circuit court entered orders appointing the Receiver and expanding the Receiver's authority. The orders relating to the Receiver did not attach property descriptions or otherwise place the mortgage lenders in this case on notice of the Receiver's powers.

B. FNMA's Title to Three Units

The three condominium units at issue in this appeal, each within Cedar Woods Homes, are identified as Unit 10-105, Unit 10-102, and Unit 17-103. Each was subject to a recorded mortgage ultimately owned by FNMA. Each of the mortgages was recorded in 2006, years before the commencement of the receivership by the Association. The foreclosing plaintiffs (in three separate circuit court foreclosures) were GMAC in April 2009 (Unit 10-105); Nationstar Mortgage in 2012 (Unit 10-102); and Bank of America in 2013 (Unit 17-103). These entities held and serviced the mortgage loans on behalf of the owner, FNMA.

Apparently unaware of the Receiver's appointment and powers, the foreclosing lenders did not move to intervene in the separate receivership proceeding during the pendency of their respective foreclosure cases. Similarly, the Receiver never asserted liens or other claims against the foreclosing mortgagees during the pendency of the three foreclosure cases. Final judgments of foreclosure were entered in all three cases, the three units went to foreclosure sale by the clerk, and FNMA received certificates of title in 2014.

After FNMA obtained title, it requested an estoppel certificate from the Association to pay the amount dictated by the Safe Harbor Statute for each unit. But the Receiver responded on behalf of the Association with a much more substantial, itemized demand for multiple years of past-due assessments, Receiver's fees, attorney's fees for the Receiver's attorneys, and other charges.

C. FNMA's Motions to Intervene in the Receivership Case

After attempts to negotiate a settlement with the Receiver and Association, in 2016 FNMA filed motions to intervene in the 2009 receivership case, to terminate the receivership as to each of the three units, to determine amounts due under the Safe Harbor Statute, and to compel an accounting and quarterly financial reports by the Receiver. The circuit court denied the motions as to all three units, finding FNMA waited too long to seek relief, "became subject to this receivership" on obtaining title in 2014, and accepted the benefit of work performed by the Receiver. The trial court also found that "receiver amounts" were payable by FNMA above and beyond the condominium unit assessments capped by the Safe Harbor Statute. This appeal followed.

II. Analysis

We address, in turn, a collection of four issues with varying standards of review and sources of controlling authority.

A. Intervention

Was FNMA entitled to intervention in the receivership case under Florida Rule of Civil Procedure 1.230 ?

The trial court denied FNMA's motions to intervene as moot, concluding that FNMA became subject to the receivership as a party when it received certificates of title to units subject to the receivership proceeding. Rulings on motions to intervene are reviewed for an abuse of discretion. Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505, 507 (Fla. 1992).

The receivership had not concluded, and the Receiver had not been discharged, when FNMA sought intervention. FNMA clearly had a direct (ownership) interest in the three units; the Receiver claimed a lien and assessment and other amounts substantially in excess of the amount computed by FNMA. These factors supported intervention. Id. at 507-08. Although we do not agree that FNMA's motion to intervene was unnecessary or moot because FNMA "became subject to this receivership" upon taking title to the units, the trial court correctly concluded that FNMA's motions should be heard and determined.

B. Validity of the Receivership Orders as Against FNMA

Were the receivership orders valid as against FNMA?

The trial court's authority to appoint a receiver for condominium units in arrears on condominium assessments, whether by statute or as a matter of equity and common law, is a legal issue reviewable under the de novo standard of review, but the decision to appoint a receiver is reviewed for an abuse of discretion. Puma Enters. Corp. v. Vitale, 566 So.2d 1343, 1344 (Fla. 3d DCA 1990).

As already noted, the Condominium Act expressly authorizes the appointment of a receiver to collect rent payable by the occupant of a unit during the pendency of "the foreclosure action." § 718.116(6)(c). When read in context, however, this refers to the foreclosure of a condominium association's lien on a unit "to secure the payment of assessments," section 718.116(5)(a) ; section 718.116(6)(a) authorizes an action in the association's name "to foreclose a lien for assessments in the manner a mortgage of real property is foreclosed."

So the statutory authority in the Condominium Act for a receiver relates to a unit which has accrued, unpaid assessments, but has been leased by the owner to a tenant. The receiver is then able to collect the rent and apply it (after allowed expenses) to the unpaid assessments. The statutory assessment does not extend to all units, or all units in pending mortgage foreclosure proceedings, or in foreclosure proceedings which might eventuate after the appointment of the receiver for a specific unit.

Nonetheless, Florida common law provides substantial authority for the appointment of a receiver to take custody of real property embroiled in litigation in order to preserve and protect the property as the rights of the parties are determined. See, e.g., Metro-Dade Invs. Co. v. Granada Lakes Villas Condo., Inc., 74 So.3d 593 (Fla. 2d DCA 2011) ; see also Fla. R. Civ. P. 1.620. We conclude that the trial court had the authority to appoint a receiver to preserve and protect enumerated units that were in arrears regarding their assessment payments and subject to an Association lien. We need not reach the validity of the receivership orders insofar as they purported to affect units other than the three units involved in this appeal.

This power, whether based on (1) the court's statutory authority conferred by section 718.116(6) of the Condominium Act, or (2) the court's inherent equitable authority, was limited in scope to the owners and occupants of the units subject to an Association lien for unpaid assessments. The Receiver's authority and trial court's jurisdiction in the 2009 receivership case did not automatically implead existing or subsequent lenders foreclosing mortgage loans on units in Cedar Woods Homes. More specifically, FNMA neither authorized the appointment of the Receiver nor agreed to compensate the Receiver and Receiver's attorneys for any work they may have done.

C. Validity and Priority of the Parties' Claims

As between the Receiver's claims regarding each of the three units and FNMA's final judgment lien and certificate of title, which of the Receiver's claims are valid and enforceable against the units, and if so, what is the extent and priority of each claim?

The priority of lien claims in real estate as between condominium associations for assessments and foreclosing mortgage lenders is governed by statute, and our review is de novo. U.S. Bank Nat'l Ass'n v. Farhood, 153 So.3d 955, 958-59 (Fla. 1st DCA 2014).

These issues are generally determined by the operation of sections 28.222, (regarding clerks of court, official records, and register of recorded instruments), 695.11 (sequence per official records book and page to determine priority), and 695.01 (conveyances, transfers, or mortgages of real property, or of any interest therein, required to be recorded to establish priority "against creditors or subsequent purchasers for a valuable consideration and without notice"). City of Palm Bay v. Wells Fargo Bank, N.A., 114 So.3d 924, 927 (Fla. 2013).

Applying these statutes and the particular provision governing liens for condominium assessments vis-a-vis first mortgages of record ( section 718.116(5)(a) ), the FNMA mortgage liens enjoyed priority over the condominium assessment liens, save for (1) those arrearage amounts for which the mortgage lenders became responsible under the Safe Harbor Statute, and (2) duly-imposed Association assessments for the period commencing with FNMA's certificate of title and continuing through FNMA's subsequent conveyance of title, if that has occurred.

The Receiver's compensation, attorney's fees, and costs, are payable by the non-prevailing party if the receivership was commenced under subsection 718.116(6). Paragraph (c) of that provision specifies that the expenses of a receiver appointed pursuant to that statute "shall be paid by the party which does not prevail in the foreclosure action."

In the case of a common law receivership established for the preservation and protection of property involved in a pending lawsuit, the "courts are generally vested with considerable discretion in determining who shall pay the cost and expenses of receiverships," though "[r]eceivership fees, being a part of costs, follow the result of the suit." Barredo v. Skyfreight, Inc., 430 So.2d 513, 514 (Fla. 3d DCA 1983). Where there are no remaining assets in a receivership from which to make payments, "such costs, if recoverable at all, must be recovered in a separate action for that purpose." Id.

Under either of these scenarios and sources of authority, FNMA did not move for the Receiver's appointment and was not a party to the 2009 receivership lawsuit until its interests in intervention were asserted by motion. FNMA thus has no apparent obligation on this record to pay the Receiver and related receivership expenses.

D. Extent of the Association's Claim: the Safe Harbor Statute

Is FNMA's liability for condominium assessments during the foreclosure proceedings, and through and including issuance of the certificates of title, limited to the amount computed according to the Safe Harbor Statute?

For the reasons already detailed in preceding sections of this opinion, the computation of FNMA's "safe harbor" amount is a factual issue that was not addressed by the trial court because of its determination that FNMA's claims were untimely. The amount payable by FNMA to the Association will be a matter for determination by the trial court on remand, although it should be a matter of arithmetic and agreed resolution.

FNMA's entitlement to the statutory cap on liability for accrued, unpaid condominium assessments prior to the date it obtained title is well-established. When FNMA initiates a foreclosure in its own name, we have affirmed the application of the Safe Harbor Statute. Catalina W. Homeowners Ass'n v. Federal Nat'l Mortg. Ass'n, 188 So.3d 76, 81 (Fla. 3d DCA 2016). FNMA's entitlement to the limitation as a loan purchaser and assignee of a final judgment of foreclosure obtained by a servicer on FNMA's behalf is equally well-settled. Beltway Capital, LLC v. Greens COA, Inc., 153 So.3d 330, 334 (Fla. 5th DCA 2014) ("In making this decision, this Court joins the long line of trial courts to find [FNMA] was entitled to safe harbor under similar circumstances"); see also Hemingway Villa Condo. Owners Ass'n v. Wells Fargo Bank, N.A., 240 So.3d 104 (Fla. 3d DCA 2018).

III. Conclusion

The Association's petition for a multi-unit, flexible receivership for abandoned, delinquent, and in-foreclosure condominium units was innovative and responsive to a crisis at Cedar Woods Homes. The resulting stand-alone receivership lawsuit, however, is a departure from the traditional adversarial array of parties with disputed claims, liens, and interests in property.

As a result, the Receiver essentially became little more than an officious intermeddler vis-à-vis the foreclosing mortgage lenders, with no authorization to act on behalf of those lenders. The Receiver served as a court-authorized property manager for certain units and also acted as an eviction and collection agency for the Association.

On this record, the receivership expenses were not ratified by the Association for apportionment and assessment to all unit owners as other capital and operating expenses would be, and the Receiver's itemized claims evidence no such apportionment or authorization with the requisite Association corporate formalities.

Due process required notice to the foreclosing first mortgagees before they could be taxed, after the fact, with receivership expenses for services they never sought or authorized. We reiterate, however, that the Receiver's expenditures at the behest of, and for the benefit of, the Association may provide a basis for claims against persons or entities other than FNMA: defaulting unit owners, tenants, or the Association itself, to the extent that the Receiver paid for common area improvements, for example. As no such claims are before us, we express no opinion regarding them.

We reverse the order denying FNMA's motions and remand the case for further proceedings to compute the amount specified by the Safe Harbor Statute. Upon payment of any such amount, FNMA's units are to be released from further claims or proceedings in the receivership case and by the Receiver. As a unit owner from and after the certificate of title, and through its term of ownership, FNMA is responsible for condominium assessments as they become due.

Reversed and remanded for further proceedings.

      The Association sent written notice of the emergency petition for appointment of a receiver to individual unit owners two months after commencing the case.

      In the order under review-which was prepared and submitted by counsel for the Receiver-FNMA is characterized as if a third-party purchaser at a foreclosure sale "who does not need to intervene under Rule 1.230 in order to have standing to appeal" (quoting Arsali v. Deutsche Bank Nat'l Tr. Co., 82 So.3d 833, 835 (Fla. 4th DCA 2011), and citing similar cases). Those cases relate to intervention in underlying foreclosure actions rather than the situation presented here. In this case, FNMA was seeking intervention in a separate action, the 2009 receivership case.

      One can posit circumstances in which, for example, a foreclosing lender lacking a security interest in rents paid by a non-borrower tenant during the foreclosure case nevertheless received those rents-in derogation of the right of a court-appointed receiver designated under section 718.116(6)(c) to collect those rents. But no such facts are apparent in this record, and we therefore decline to address the merits or outcome of such a hypothetical case.

      The Safe Harbor Statute is clear that the liability of FNMA is for the lesser of (a) "unpaid common expenses and regular periodic assessments" that became due during the 12 months immediately preceding FNMA's certificate of title, "and for which payment in full has not been received by the association ," and (b) one percent of the original mortgage debt. (Emphasis provided). The "one percent" alternative would be considered here because the foreclosing lender "joined the association as a defendant in the foreclosure action." § 718.116(1)(b) 1.a., 1.b. On remand, this computation could require an evidentiary hearing to establish the date and amount of unpaid common expenses and assessments during the 12-month period as affected by any rent collections by the Receiver and the manner in which those amounts may have been applied to the unit arrearages.

      The receivership proceeding in the circuit court is thus styled, In re Cedar Woods Homes Condominium Association, Inc., Petitioner. Until FNMA objected to the Receiver's claims against its three units, the Association and Receiver were the only parties in the case. A successor trial judge (who had not entered the receivership orders) was tasked with the unenviable duty of evaluating and ruling on FNMA's motions in a unique proceeding.


author: SUAREZ, J.

text:
    Michael PARKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2041
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS, and LUCK, JJ.
   SUAREZ, J.

Michael Parks appeals from the minimum mandatory sentence imposed pursuant to revocation of probation which was originally imposed as part of a youthful offender sentence. We affirm, following Eustache v. State, 248 So.3d 1097, 1098 (Fla. 2018), which holds that upon revocation of a youthful offender's probation for a substantive violation, the trial court is authorized to either impose another youthful offender sentence, with no minimum mandatory, or to impose an adult Criminal Punishment Code sentence, which would require imposition of any minimum mandatory term of incarceration associated with the offense of conviction.

In 2010, Parks pled guilty to armed burglary, grand theft, and criminal mischief. The court originally imposed a youthful offender sentence of two years of community control, which included 364 days in Miami Dade County Jail, followed by four years of probation. Parks subsequently violated his probation with substantive violations of armed robbery, battery on a law enforcement officer, resisting arrest with violence, and associating with a person engaged in criminal activity. At the conclusion of the probation violation hearing, the trial court revoked Parks' probation and sentenced him to thirty years in prison on the armed burglary, five years on the grand theft count, and 364 days on the criminal mischief count. Over objection of defense counsel, the trial court imposed a ten-year mandatory minimum on the armed burglary count pursuant to section 775.087(2), Florida Statutes (2016).

The issue presented on appeal here is identical to that presented to the Florida Supreme Court in Eustache:

WHERE A DEFENDANT IS INITIALLY SENTENCED TO PROBATION OR COMMUNITY CONTROL AS A YOUTHFUL OFFENDER, AND THE TRIAL COURT LATER REVOKES SUPERVISION FOR A SUBSTANTIVE VIOLATION AND IMPOSES A SENTENCE ABOVE THE YOUTHFUL OFFENDER CAP UNDER SECTIONS 958.14 AND 948.06(2), FLORIDA STATUTES, IS THE COURT REQUIRED TO IMPOSE A MINIMUM MANDATORY SENTENCE THAT WOULD HAVE ORIGINALLY APPLIED TO THE OFFENSE?

With facts substantially similar to those in Parks' case, the Court in Eustache held that after revoking a youthful offender's probation or community control for a substantive violation,

the sentencing court can sentence according to one of the two options it had at the original sentencing proceeding: it could either (1) impose a sentence under the Youthful Offender six-year sentencing cap (with no minimum mandatory); or, alternatively, (2) impose an adult sanction (in which case it also would be required to impose any minimum mandatory provision(s) associated with the offense(s) ). We agree that this holding properly reflects a plain reading of this unambiguous statute, and that no additional analysis is warranted.

Id. at 1101. (citations omitted). We therefore affirm Parks' sentence.

Affirmed.

      The Court in Eustache remanded for a new sentencing hearing, only because the sentencing court believed it did not have the discretion to sentence Eustache as a youthful offender on revocation of probation. This is not an issue before us today in Parks' appeal.