text:
    Gerson JUAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1715
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Harold B. MONROE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-946
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William Anthony DANTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2344
    District Court of Appeal of Florida, Third District.
    Opinion filed November 7, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jeremy CARTER, Appellant(s)/Petitioner(s), v. OUELETTE & MAULDIN COURT REPORTERS, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1192
    District Court of Appeal of Florida, Third District.
    AUGUST 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Charles A. TAVARES, Appellant, v. 139TH AVENUE S.W. 8TH STREET, LLC, etc., Appellee.
    No. 3D18-2144
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Schmertz Denis PIERRE-LOUIS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1967
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kenton G. FINDLAY, Appellant, v. HSBC BANK USA, N.A., et al., Appellees.
    No. 3D18-1714
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert Paul SHELEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2041
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Geovanny PADRON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2536
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Linaker CHARLEMAGNE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2638
    District Court of Appeal of Florida, Third District.
    Opinion filed February 6, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wendi WERTHER, Appellant, v. UNITED TEACHERS OF DADE, et al., Appellees.
    No. 3D18-869
    District Court of Appeal of Florida, Third District.
    Opinion filed February 6, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Antonio BASS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2594
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eddie W. BONET, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2526
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rickey TARVER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2511
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jeff EDMOND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2485
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    PHILIP MORRIS USA, INC., Appellant/Cross-Appellee, v. Linda MARTIN, Appellee/Cross-Appellant.
    No. 3D17-1983
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ricardo NORONA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1878
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ricardo BATISTA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2245
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jawuan LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-340
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wilson GUAMBANA, Appellant, v. Blannery ARANA, Appellee.
    No. 3D18-1577
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arnaldo LUGO-FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1263
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christopher MESA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2766
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Antoine ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-9
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    14574S TRUST LLC, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 3D17-2567
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    MAGNOLIA 101, LLC, et al., Appellants, v. MONROE COUNTY, etc., Appellee.
    No. 3D17-1312
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Orenthal James GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-2
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Paul James BEAUSOLEIL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2622
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    George DELANCY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-258
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Stephen D. LEONARD, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D16-2298 & 3D16-2203
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Lucrecia A. BALBOA BUIKA and Maria Concepcion Balboa Buika, Appellants, v. ALL PARTS MOVE MANAGEMENT LLC, Appellee.
    No. 3D18-1074
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Zarina Khasanovna ALBEGONOVA, Appellant, v. Abdulkadir Murat AYDEMIR, Appellee.
    No. 3D18-918
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Meghan SEMPLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-753
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019.
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    T.F., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-582
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    BATH CLUB ENTERTAINMENT, LLC, Appellant, v. The RESIDENCES AT THE BATH CLUB MAINTENANCE ASSOCIATION, INC., et al., Appellees.
    No. 3D17-2556
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Anthony CESPEDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2108
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Nanci RIVERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-79
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Zion SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-56
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Keith WROMAS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2617
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Vernon B. PORTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2392
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Johnny C. BRADY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2280
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019.
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Cliff Anthony SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2158
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    K.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2197
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019.
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Steven ATHEA, Appellant, v. Monica ATHEA, Appellee.
    No. 3D18-1314
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019.
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Percival MARSHALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-94
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Demetrius BENJAMIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2462
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    G.O., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2028
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    P.C., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2001
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Carlos VILA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1052
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019.
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    AZRAN MIAMI 2 LLC, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D18-660
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    The STATE of Florida, Appellant, v. Xzavier CAVE, Appellee.
    No. 3D17-553
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019.
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Jorge YERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-110
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Sophia DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1772
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Jeremy M. VALLIES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1357
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Loobens JOANEM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1229
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Ricky JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1891
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    L.F., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2445
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Harold Max POMPEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1899
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Jeffrey DOLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-0151
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Ricardo HILDAGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1403
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    D.O., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2110
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Joseph J. DEMTY, Appellant, v. U.S. BANK, N.A., etc., et al., Appellees.
    No. 3D18-1290
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Virginia MARTINEZ, Appellant, v. CHANEL, INC., Appellee.
    No. 3D18-357
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Braulio Valenzuela VILLANUEVA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2655
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    A.D., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D18-1823
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    M.H., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1697
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Calvin WASHINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2415
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019.
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    KAM HABIBI, D.C., P.A., Appellant, v. 7M PROPERTIES, LLC, Appellee.
    No. 4D17-3764
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2018]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION
    Affirmed.


text:
    Sean CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3389
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Tammy FAIRMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2940
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Larry JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3451
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Florida Decision Without Published Opinion.
    Affirmed.


text:
    Givens ST. FLEUR, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3587
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Robert KIRKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3378
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Cory MINGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2822
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Steeven R. WALTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2827
    District Court of Appeal of Florida, Fourth District.
    April 11, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Keith FRIBERG, Appellant, v. Ryan CRAMSEY, Appellee.
    No. 4D18-2834
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Sebastian FOMENKO, Appellant, v. DEPARTMENT OF HEALTH, The Florida Board of Massage, Appellee.
    No. 4D18-2830
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Alfonso CASICA, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3192
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Frederick G. WADE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3546
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Alice MUI, Appellant, v. ELYON GLOBAL INVESTMENT, LLC, a Florida limited liability company, Elaine Colpani and Giovanni Colpani, Appellees.
    No. 4D18-2761
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    COMMERCE LIMITED PARTNERSHIP #9229, Appellant, v. Tony POUTOUS, Appellee.
    No. 4D18-2801
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Dustin Glen YOUNGBLOOD, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2859
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Tauric GRIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3185
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2019]
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    Affirmed.


text:
    Ronald L. KEENER, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-89
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019 Rehearing Denied May 3, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Robert POTCHEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2813
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Jeremiah PATRICK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3915
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019 Rehearing Denied May 8, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Robert HERARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3886
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019 Rehearing Denied April 17, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Cecil Clifford GARRETT, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3648
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Akeem FLOWERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1856
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    R.G., Mother of R.Q., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3918
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 10, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Carlton Xavier MATHEWS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-860
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019 Rehearing Denied April 29, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Frank ROBERTS, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-839
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Daniel Rosa ANDINO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-706
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Kala MITCHELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-283
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Javonte HALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3536
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    S.W., Mother of A.R. and A.R., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D19-0008
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 3, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Darrell Leon WILLIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2332
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    James BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2145
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Dontay R. JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3851
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Joel Lincoln WEINHOLD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-725
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Edward James KORECKY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-0025
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Michael Anthony MCGOLRICK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1209
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Michael BYNOE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-265
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    BEN'S AUTO MARINE SUPPLY, INC. d/b/a Ben's Paint Supply, Appellant, v. ST. JOHN'S AUTO BODY INC., Kent Scroggins and Sherri Scroggins a/k/a Toni Scroggins, Appellees.
    Case No. 5D18-2352
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 7, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    James G. TANNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3904
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Daniel LEIJA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-373
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Gilberto D. RIVERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2732
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 30, 2019
    FLORIDA DECISION WITHOUT PUBLISHED OPINION.
    AFFIRMED.


text:
    Ida R. MILLER, Appellant, v. Evelyn MCKENZIE, Appellee.
    Case No. 5D18-2194
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 7, 2019
    AFFIRMED.


text:
    John CABRERA, Jr., Appellant/Cross Appellee, v. Heide JAKSETIC, Appellee/Cross Appellant.
    Case No. 5D17-2977, 5D18-1296
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 7, 2019
    AFFIRMED.


text:
    William R. CUMBIE, Sr. a/k/a William R. Cumbie, Appellant, v. DITECH FINANCIAL, LLC a/k/a Green Tree Servicing, LLC, Betsy A. Cumbie a/k/a Betsy Ann Ellerman, Arrow Financial Services, LLC Assignee of CreditMax, Brevard County Florida Clerk of Court, Appellees.
    Case No. 5D17-2325
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 7, 2019
    AFFIRMED.


text:
    H.E., Mother of L.A. and K.E., Children Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3966
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 6, 2019
    AFFIRMED.


author: LAMBERT, J.

text:
    Jarrell L. LATHAN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1979
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 3, 2019
    Jarrell L. Lathan, Orlando, pro se.
    Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Respondent.
   LAMBERT, J.

Jarrell L. Lathan petitions this court for relief under Florida Rule of Appellate Procedure 9.141(d). Lathan was convicted after trial of attempted second-degree murder with a firearm and contends that his appellate counsel ineffectively represented him during his direct appeal by failing to argue that the trial court committed fundamental error by not instructing the jury on the necessarily lesser included offense of attempted manslaughter by act. We deny Lathan's petition; but, as we explain below, we also certify questions of great public importance to the Florida Supreme Court.

Lathan was charged with attempted first-degree murder with a firearm but was convicted of the lesser included offense of attempted second-degree murder with a firearm. The jury also separately found that during the commission of this offense, Lathan actually possessed and discharged a firearm, inflicting great bodily harm on the victim. The trial court sentenced Lathan to serve a twenty-five-year mandatory minimum prison sentence.

In the light most favorable to the State, the evidence at trial established that Lathan began arguing with his wife because he believed that she was being unfaithful to their marital vows. The argument escalated when Lathan struck his wife, put his hands around her neck, pointed a gun at her, and then threatened to kill her. As his wife tried to escape through the front door of their apartment, Lathan shot her through the abdomen. Lathan immediately fled the scene and shortly thereafter led law enforcement on an approximately fifteen-mile high speed chase that included pursuit by Orange County Sheriff deputies both in squad cars and by helicopter. Lathan turned off his headlights in an effort to avoid detection and bypassed stop sticks that law enforcement had placed in the road to puncture his tires. Lathan ultimately crashed his car in the front yard of a home and then ran from his car and hid in the homeowner's backyard. He was finally stopped by a K-9 officer, who bit Lathan in the leg and detained him until the pursuing law enforcement officers could place Lathan under arrest.

Lathan's appellate counsel raised one issue in the direct appeal. Lathan had also been convicted at trial of aggravated battery causing great bodily harm or with a firearm; and counsel argued on appeal that the trial court erred when it reclassified Lathan's aggravated battery conviction from a second-degree felony to a first-degree felony because the court instructed the jury on both the use-of-deadly-weapon and great-bodily-harm forms of aggravated battery, but the jury returned a general verdict. See Brady v. State , 65 So.3d 599, 602 (Fla. 5th DCA 2011) (holding that reclassification of an aggravated battery conviction is not proper when the trial court instructed the jury on both forms of aggravated battery and the jury returned a verdict of "guilty as charged"). The State conceded error, and we reversed and remanded to the trial court to correct the judgment and sentencing documents to reflect the proper classification of Lathan's aggravated battery conviction. Lathan v. State , 218 So.3d 510, 510 (Fla. 5th DCA 2017).

Mandate issued in the direct appeal on June 13, 2017. Approximately six months earlier, the Florida Supreme Court had issued its opinion in Walton v. State , 208 So.3d 60 (Fla. 2016). There, the defendant had been convicted at trial of the charged offense of attempted second-degree murder. Id. at 64. The supreme court held that the trial court committed fundamental error by failing to instruct the jury on attempted manslaughter by act as a lesser included offense of attempted second-degree murder. Id. The court wrote that because attempted manslaughter by act is a necessarily lesser included offense of attempted second-degree murder, the trial court had no discretion but to instruct the jury on this offense because "[o]nce the judge determines that the offense is a necessarily lesser included offense, an instruction must be given." Id. (quoting State v. Montgomery , 39 So.3d 252, 259 (Fla. 2010) ).

In bringing the instant petition alleging ineffective assistance of his appellate counsel, Lathan has the burden of showing that his counsel's alleged actions or omissions on direct appeal were so deficient that they fell measurably outside the range of professionally acceptable performance. See Granberry v. State , 919 So.2d 699, 700 (Fla. 5th DCA 2006). He must also demonstrate that this "deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result." See id. (citing Mansfield v. State , 911 So.2d 1160, 1178 (Fla. 2005) ).

Lathan asserts that he has met both of these requirements, contending that had his counsel argued on direct appeal that under Walton the trial court fundamentally erred in failing to give the attempted manslaughter by act instruction, which is only one step removed from the convicted offense of attempted second-degree murder with a firearm, our court would have been required to reverse this conviction and remand for a new trial on this count.

During the trial, the very experienced trial judge asked both the prosecutor and defense counsel if either was requesting any specific lesser included offense jury instructions and, if so, to which count or counts. For the charged crime of attempted first-degree murder at issue in count one, there are four category one, necessarily lesser included offenses-attempted second-degree murder, attempted manslaughter by act, attempted aggravated battery (intentionally causing great bodily harm), and attempted battery (intentionally causing bodily harm). See Fla. Std. Jury Instr. (Crim.) 6.2. The prosecutor responded that the State was requesting the lesser included offense instruction of attempted second-degree murder with a firearm. Defense counsel thereafter affirmatively represented to the court that he had no requests for any other lesser included offense jury instructions.

Then, on the final morning of the trial and once again just prior to instructing the jury, the trial judge checked with both the prosecutor and defense counsel to determine if there were any objections to the proposed jury instructions and if the instructions were acceptable. Defense counsel again specifically responded to the judge that he had no objections and that the instructions were acceptable. Thus, the only lesser included offense jury instruction given on any of the six counts tried was the aforementioned attempted second-degree murder with a firearm on count one. As previously indicated, the jury returned a guilty verdict on this lesser included offense.

"Jury instructions are subject to the contemporaneous objection rule. In the absence of an objection at trial, a challenge can be raised on appeal only if fundamental error occurred." Daugherty v. State , 211 So.3d 29, 39 (Fla. 2017) (citing State v. Delva , 575 So.2d 643, 644 (Fla. 1991) ). As indicated, Lathan's trial counsel raised no objections to the jury instructions as given. Therefore, because any alleged error by the trial court in not giving the attempted manslaughter by act jury instruction was not preserved for appellate review, relief is available to Lathan here only if he shows that this failure to give the attempted manslaughter by act instruction was fundamental error. See Hendrix v. State , 908 So.2d 412, 426 (Fla. 2005) ("[A]ppellate counsel may not be deemed ineffective for failing to challenge an unpreserved issue on direct appeal unless it resulted in fundamental error." (citing Rutherford v. Moore , 774 So.2d 637, 646 (Fla. 2000) )).

In its response to Lathan's petition, the State first asserts that no fundamental error occurred and therefore appellate counsel was not ineffective because the omitted attempted manslaughter by act lesser included offense jury instruction is more than one step removed from Lathan's charged offense of attempted first-degree murder with a firearm, as opposed to his convicted offense of attempted second-degree murder with a firearm. However, based on the Florida Supreme Court's decision in Montgomery , we disagree. In that case, the defendant was charged with first-degree murder. 39 So.3d at 254. Manslaughter is a category one lesser included offense of first-degree murder, albeit two steps removed. See Fla. Std. Jury Instr. (Crim.) 7.2. Nevertheless, because it is a category one lesser included offense of first-degree murder, the court held that the trial court had no discretion and was required to instruct the jury on manslaughter. Montgomery , 39 So.3d at 259.

The trial court did give the then-flawed manslaughter by act jury instruction; and the defendant was convicted not of the charged offense but of the lesser included offense of second-degree murder, which is only one step removed from manslaughter. Id. On appeal, and in apparent recognition that no objection had been raised at trial, the defendant argued that the trial court committed fundamental error by utilizing the flawed manslaughter by act jury instruction. Id. at 254-55. The Florida Supreme Court, acknowledging its earlier decision in Pena v. State , 901 So.2d 781, 787 (Fla. 2005), that "when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis," held that because the defendant's conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, fundamental error occurred in giving the flawed manslaughter by act jury instruction. Id. at 259-60.

Three years later, in Williams v. State , 123 So.3d 23, 25 (Fla. 2013), the court applied this same analysis when the defendant was charged with attempted first-degree murder and was convicted of the lesser included offense of attempted second-degree murder. There, the court reversed for a new trial, holding that the trial court had committed fundamental error in giving the then-flawed attempted manslaughter by act standard jury instruction, when the defendant was convicted of attempted second-degree murder, a crime no more than one step removed from the improperly-instructed lesser included offense. Id. at 29-30. Later, in Walton , the court made clear that while Montgomery and Williams both involved the giving of a fundamentally flawed lesser included offense jury instruction, if the giving of a flawed instruction in such circumstances was fundamental error, "then a fortiori giving no instruction at all likewise constitutes fundamental error." 208 So.3d at 65. Under these precedents, we conclude that the State's argument here that the fundamental error analysis applies only when the omitted category one lesser included offense jury instruction is one step removed from the charged, as opposed to the convicted, offense is misplaced.

The State's second argument in this case is also unpersuasive. It contends that because the jury was instructed on both aggravated battery with a firearm and aggravated assault with a firearm, any error by the court in not giving the category one lesser included attempted manslaughter by act instruction on the charge of attempted first-degree murder with a firearm was "cured" because the jury had two comparable and viable alternatives to the absent manslaughter by act instruction. See McCloud v. State , 209 So.3d 534, 542 (Fla. 2017) (holding that fundamental error resulting from the use of the flawed manslaughter by act instruction is cured when the jury is properly instructed on two comparable and viable alternatives to manslaughter by act, both one step removed from the convicted offense of second-degree murder, and the conviction is supported by the evidence). McCloud provides no support for the State here because both aggravated battery with a firearm and aggravated assault with a firearm were separately charged offenses in counts two and three, respectively, and these jury instructions were specifically given for those two counts, and not as comparable and viable alternatives to the charge of attempted first-degree murder with a firearm in count one.

While recognizing the precedents from our high court in both Walton and Roberts , we nevertheless conclude that Lathan is not entitled to relief because, through his trial counsel, Lathan voluntarily waived his right to have the jury instructed on the lesser included offense of manslaughter by act. In Jones v. State , 484 So.2d 577 (Fla. 1986), the Florida Supreme Court held that in a noncapital case, a defendant, through counsel, may waive his or her right to have the jury instructed on necessarily lesser included offenses. Id. at 579. The defendant there was charged with aggravated battery. Id. at 578. A category one lesser included offense to this charge is simple battery, for which the defendant was entitled to an instruction. Id. At the jury instruction charge conference, the trial judge, much like the judge in the present case, asked counsel which lesser included offense instructions were desired. Id. Counsel responded that his client did not want any lesser included instructions and was waiving them. Id.

The defendant was convicted as charged and, on appeal, argued that fundamental error had occurred when the trial judge did not instruct the jury on the lesser included offense of battery because he did not personally waive his right to this instruction. Id. at 579. The Florida Supreme Court disagreed, finding that the defendant had been "accorded his full measure of due process" and that "no personal waiver [from the defendant] is required in order to guarantee fundamental fairness in the non-capital context." Id. The court further found that a client is bound by the acts of his or her attorney performed within the scope of the attorney's authority, concluding its opinion as follows:

Recognizing the role of defense counsel necessarily involves a number of tactical decisions and procedural determinations inevitably impacting on a defendant's constitutional rights, we find that no useful purpose would here be served by requiring the court to ensure that, in this instance, counsel's conduct truly represents the informed and voluntary decision of the client.

Id. at 579-80 (citing Estelle v. Williams , 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) ).

We see no meaningful distinction between the actions of counsel in Jones responding to the trial court that his client was waiving his right to have the jury instructed on a category one lesser included offense and Lathan's counsel, after having heard the State ask for a category one lesser included instruction of attempted second-degree murder with a firearm, thereafter affirmatively advising the court that he would not be seeking any other lesser included instructions on behalf of his client and then, on two subsequent occasions, confirming to the court that the jury instructions to be given were acceptable and there were no objections to them. We have no reason to believe that trial counsel was unaware of the remaining available category one lesser included instructions for attempted first-degree murder, nor has Lathan suggested that his trial counsel acted outside the scope of his authority when advising the court that Lathan did not seek any further lesser included offense instructions. Moreover, there appears to be nothing in either the Walton or Roberts decisions that suggests to us that a defendant cannot knowingly waive his or her right to have the jury instructed on any or all available category one lesser included offenses to a given charge.

Fundamental error in the context of jury instructions has been defined by our supreme court as an error that "must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error" and "occurs only when the omission is pertinent or material to what the jury must consider in order to convict." Roberts , 242 So.3d at 298. Here, the jury was properly instructed on the convicted charge of attempted second-degree murder with a firearm, and the evidence presented at trial readily supported the conviction. Furthermore, in our view, Lathan's trial counsel knowingly and voluntarily waived, on his behalf, the right to have the jury instructed on the necessarily lesser included offense of attempted manslaughter by act. We therefore conclude that no fundamental error has been demonstrated. Consequently, Lathan's appellate counsel had no reason to make this argument in the direct appeal.

For these reasons, we deny Lathan's petition alleging ineffective assistance of appellate counsel. Nevertheless, because we have significant concerns as to the interplay between the Jones , Walton , Roberts , and Dean decisions regarding the issue presented here, we certify the following questions of great public importance to the Florida Supreme Court:

1. IN LIGHT OF WALTON v. STATE , 208 SO.3D 60 (FLA. 2016), AND ROBERTS v. STATE , 242 SO.3D 296 (FLA. 2018), MAY A DEFENDANT IN A NONCAPITAL CASE STILL WAIVE CATEGORY ONE LESSER INCLUDED OFFENSE JURY INSTRUCTIONS UNDER JONES v. STATE , 484 SO.2D 577 (FLA. 1986) ?
2. IF SO, MUST DEFENSE COUNSEL ANNOUNCE AN EXPRESS WAIVER ON THE RECORD OF THE CATEGORY ONE INSTRUCTION, OR IS COUNSEL'S AFFIRMATIVE DECLINATION TO THE TRIAL COURT'S INQUIRY OF WHETHER ANY LESSER INCLUDED OFFENSE INSTRUCTIONS ARE BEING REQUESTED SUFFICIENT TO WAIVE THE GIVING OF CATEGORY ONE LESSER INCLUDED OFFENSE INSTRUCTIONS?
3. WHEN THE EVIDENCE AT TRIAL READILY SUPPORTS THE JURY'S VERDICT OF GUILT FOR ATTEMPTED SECOND-DEGREE MURDER WITH A FIREARM AND NO ERROR WAS MADE IN THE INSTRUCTIONS REGARDING THAT OFFENSE, IS THE TRIAL COURT'S DECISION NOT TO GIVE THE ATTEMPTED MANSLAUGHTER BY ACT LESSER INCLUDED OFFENSE INSTRUCTION FUNDAMENTAL ERROR WHEN DEFENSE COUNSEL AFFIRMATIVELY RESPONDS TO THE TRIAL COURT THAT COUNSEL IS REQUESTING NO LESSER INCLUDED OFFENSE INSTRUCTIONS?
4. DID THE COURT'S DECISION IN DEAN v. STATE , 230 SO.3D 420 (FLA. 2017), ABROGATE THE JURY PARDON DOCTRINE OR, AT THE VERY LEAST, DOES IT NOW REQUIRE THE APPLICATION OF THE HARMLESS ERROR ANALYSIS WHEN A CATEGORY
ONE LESSER INCLUDED OFFENSE JURY INSTRUCTION, ONE STEP REMOVED FROM THE CONVICTED OFFENSE, IS NOT GIVEN?

PETITION DENIED; QUESTIONS CERTIFIED.

EDWARDS, J., concurs.

EISNAUGLE, J., concurs specially, with opinion.

EISNAUGLE, J., concurring specially.

I concur in the certified questions and agree with the majority that the petition should be denied. Lathan was asked, through counsel, if he wanted instructions for any additional lesser included offenses read to the jury, and he declined. In my view, requiring magic words to effect a waiver of this right would unnecessarily put form over substance.

I also reluctantly concur that, were it not for Lathan's waiver, we would be required to grant the petition based upon our supreme court's opinions in Roberts v. State , 242 So.3d 296 (Fla. 2018) ; Walton v. State , 208 So.3d 60 (Fla. 2016) ; and State v. Montgomery , 39 So.3d 252 (Fla. 2010). This line of cases is built upon the premise that "[a] jury must be given a fair opportunity to exercise its inherent 'pardon' power by returning a verdict of guilty as to the next lower crime." Pena v. State , 901 So.2d 781, 787 (Fla. 2005).

However, were I writing on a clean slate, I would conclude that "[n]o defendant has the right to a trial in which the judge facilitates the jury's acting in disregard of the law, which is what the [ Roberts ] decision (and the jury pardon doctrine upon which it is based) promotes." Roberts , 242 So.3d at 300 (Polston, J., dissenting) (internal quotation marks and citation omitted).

      Lathan was additionally convicted of aggravated assault with a firearm, battery, fleeing or attempting to elude a law enforcement officer at high speed or with wanton disregard, and resisting an officer without violence. These convictions and resulting sentences were not challenged on direct appeal and are not at issue in this proceeding.

      There are two categories of lesser included offenses-necessary, or category one, and permissive, also called category two. Sanders v. State , 944 So.2d 203, 206 (Fla. 2006). An offense is a necessary or category one lesser included offense "[i]f the statutory elements of the lesser included offense are always subsumed by those of the charged offense."Stevens v. State , 195 So.3d 403, 405 (Fla. 2d DCA 2016) (citing Williams v. State , 957 So.2d 595, 598 (Fla. 2007) ).

      The Florida Supreme Court, in a later four-to-three decision, reiterated its decision in Walton that a trial court commits fundamental error, entitling the defendant to a new trial, when the defendant is charged with attempted second-degree murder, counsel does not request a jury instruction on the necessarily lesser included offense of attempted manslaughter by act, and the trial court does not give such an instruction. See Roberts v. State , 242 So.3d 296, 299 (Fla. 2018). The Roberts decision was released approximately eight and one-half months after the mandate was issued in Lathan's direct appeal. Lathan understandably has not asserted that his counsel was ineffective for failing to argue this later decision in Roberts .

      See State v. Abreau , 363 So.2d 1063, 1064 (Fla. 1978) (holding that the trial court's failure to give a requested jury instruction on a necessarily included offense one step removed from the charged offense is per se reversible error but that the omission of an instruction on an offense that is two or more steps removed is subject to a harmless error analysis). Abreau , however, is distinguishable from the present case because there the defendant was convicted as charged. Id. Thus, the trial court did give the category one lesser included instruction that was only one step removed from the convicted offense.

      See Dean v. State , 230 So.3d 420, 424-26 (Fla. 2017) (approving the result of the district court's decision to affirm the defendant's convictions for the reasons expressed in Justice Polston's concurring opinion that "where the evidence supports the charged offense of [second-degree felony murder] as well as the requested instruction on a necessarily lesser included offense [of manslaughter], any error in failing to give the requested instruction is harmless because the defendant is not entitled to an opportunity for a jury pardon").


author: Wetherell, J.

text:
    The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2007-HY7C Mortgage Pass-through Certificates, Series 2007-HY7C, Appellant, v. David B. JOHNSON, et al., Appellees.
    No. 1D18-3656
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller of Akerman LLP, Fort Lauderdale; and Eric M. Levine of Akerman LLP, West Palm Beach, for Appellant.
    Jeffrey P. Whitton of Whitton Law, Panama City, for Appellees.
   Wetherell, J.

Appellant (the bank) seeks review of the order dismissing its foreclosure action against Appellees (the borrowers) as a sanction for its noncompliance with court orders. We reverse the dismissal order because the record reflects that the bank complied with the court orders on which the borrowers' motion for sanctions-and, hence, the dismissal order-was based.

Facts

The bank filed this foreclosure action in December 2011. The parties attended court-ordered mediation in 2012 but no agreement was reached. The trial court again ordered mediation in 2013 and 2014, but the mediations did not take place for reasons attributable to the bank. Thereafter, in early 2015, the trial court directed the parties to attend a "face-to-face mediation" and ordered the bank to bear the cost of the mediation. The mediation was held over three days in April, June, and August 2015, but no agreement was reached.

In November 2015, the borrowers filed a motion to dismiss in which they argued that the bank violated the court orders requiring the parties to mediate because the bank's corporate representatives who attended the 2015 mediations did not have the requisite authority to settle the case. The bank disputed this allegation and the trial court entered an order stating that the matter "shall be scheduled for an evidentiary hearing."

The parties then commenced discovery on the issue of the corporate representative's settlement authority. During the course of this discovery, the trial court entered several orders directing the bank to respond to the borrowers' discovery requests. Specifically, on April 11, 2016, the court granted the bank's motion for an extension of time to respond to the borrowers' interrogatories and ordered the bank to respond "by April 17, 2016;" and on July 12, 2016, the court granted the borrowers' motion to compel additional interrogatory responses and ordered the bank to provide the borrowers with addresses for two specific witnesses "within 5 days."

Thereafter, there was very little record activity in the case until May 2017 when the borrowers filed a motion for sanctions in which they argued that this case should be dismissed based on the bank's failure to comply with the April 11 and July 12 orders. A senior judge (Judge Brace) held a hearing on the motion in June 2018, and several weeks after the hearing, a different judge (Judge Smiley ) entered an order of dismissal. The order stated that "[t]he basis of the dismissal is numerous violations of prior Court Orders in this case by [the bank]."

The bank filed a motion for rehearing in which it argued, among other things, that dismissal was unwarranted because it had complied with the April 11 and July 12 orders on which the motion for sanctions was based. Judge Smiley held a hearing on the motion and thereafter entered an order denying the motion without explanation.

This appeal followed.

Analysis

The bank argues on appeal-as it did below-that the dismissal order is deficient because it does not contain the findings required by Kozel v. Ostendorf , 629 So. 2d 817 (Fla. 1993), to justify the ultimate sanction of dismissal; that Judge Smiley did not have the authority to enter the dismissal order because he did not preside over the hearing on the borrowers' motion for sanctions on which the order was based; and that dismissal was unwarranted because the bank complied with the orders on which the motion for sanctions was based. We find it unnecessary to address the sufficiency of the dismissal order or Judge Smiley's authority to enter the order because the record clearly establishes that the bank complied with the specific orders on which the motion for sanctions was based-i.e., the April 11 and July 12 orders.

Specifically, with respect to the April 11 order, although the record reflects that the bank served its responses to the borrowers' interrogatories on Monday, April 18, 2016, one day after the April 17 deadline established in the order, the responses were timely because April 17 was a Sunday. See Fla. R. Jud. Admin. 2.514(a)(1)(C) (explaining that if a deadline falls on a Saturday, Sunday, or legal holiday, the deadline is extended to the next business day). With respect to the July 12 order, the discovery response providing the two witnesses' addresses that was served by the bank on Monday, July 18, 2016, was timely because the five-day period in the order excluded the intermediate Saturday and Sunday and did not expire until Tuesday, July 19. See Fla. R. Jud. Admin. 2.514(a)(3) ("When the period stated in days is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the calculation."). Accordingly, the trial court abused its discretion to the extent that the dismissal order was based on the bank's alleged failure to comply with the April 11 and July 12 orders.

The borrowers' answer brief does not dispute the bank's compliance with the April 11 and July 12 orders but rather argues that the dismissal of this case was justified by other instances of the bank's noncompliance with court orders, such as its repeated failure to comply with the mediation orders entered by the trial court. The problem with that argument (aside from it not being raised in the borrowers' motion for sanctions) is that the bank was already sanctioned for its failure to comply with the 2013 and 2014 mediation orders and the trial court did not-and without an evidentiary hearing, could not-find that the bank failed to comply with the 2015 mediation order by not having corporate representatives with full settlement authority at the mediation held pursuant to that order. Accordingly, even if the dismissal order was based on matters other than those alleged in the borrowers' motion for sanctions, reversal would be required.

Conclusion

For the reasons stated above, the dismissal order is reversed and this case is remanded for further proceedings.

REVERSED and REMANDED .

Wolf and Makar, JJ., concur.

      The bank failed to schedule the mediation required by the 2013 order and the mediation required by the 2014 order did not take place because the bank's corporate representative appeared by phone rather than in person as required. The trial court ordered the bank to pay $ 2,350 of the borrowers' attorney's fees and costs as a sanction for these actions.

      At the hearing on the bank's motion for rehearing, Judge Smiley explained that he signed the order on behalf of and at the direction of Judge Brace.

      We reject the borrowers' argument that a transcript of the hearing on the motion for sanctions was necessary for us to review this issue. The hearing was not an evidentiary hearing and the bank's compliance (or not) with the court orders can be gleaned from the record that was transmitted to this court.

      See Reverse Mortgage Solutions, Inc. v. Unknown Heirs , 207 So. 3d 917, 920 (Fla. 1st DCA 2016) ("A trial court's order dismissing a case with prejudice for non-compliance with a court rule or order is reviewed on appeal under the abuse of discretion standard of review.").

      We encourage the trial court (and the parties) to conduct such proceedings as expeditiously as possible because this case has been pending for more than seven years and the parties have spent an inordinate amount of that time focused on the adequacy of the mediation process rather than the merits of the case. Indeed, from our review of the record, there does not appear to be any reason that this case cannot be promptly tried upon remand.


author: Per Curiam.

text:
    Joseph KLENK, Appellant, v. Jessica RANSOM, Appellee.
    No. 1D18-2774
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Mark D. Tinker of Cole, Scott & Kissane, P.A., Tampa, for Appellant.
    Jessica Ransom, pro se, Appellee.
   Per Curiam.

We reverse the final judgment of injunction for protection against stalking. See § 784.0485(1), Fla. Stat. (creating stalking injunction). Stalking requires that a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." § 784.048(2), Fla. Stat. Harass means to "engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." § 784.048(1)(a), Fla. Stat. We review the sufficiency of the evidence de novo. Pickett v. Copeland , 236 So. 3d 1142, 1144 (Fla. 1st DCA 2018).

These parties had been co-workers for nearly three years when Appellee petitioned for a stalking injunction because of Appellant's ongoing comments and actions that Appellee felt were sexual harassment. She testified that he frequently made sexually-oriented comments about her body and clothing; and asked her to help him with errands outside of work, provide him with transportation, or meet for lunch. She once caught him looking at messages on her phone when she was out of her office. Appellant denied having sexually harassed Appellee, and explained that a couple of the interactions did occur but were not intended in that manner. Appellee testified that she had sought counseling and the help of a sexual harassment advocate as a result of Appellant's actions and comments, and that she had twice reported him to management at their workplace. Appellant was reprimanded after one incident, and ultimately his employment was terminated.

We have examined the evidence carefully, and even giving credence to Appellee's testimony, which we do, we cannot conclude that the alleged incidents rise to the level of justifying an injunction against stalking. To justify this kind of injunction, the conduct must be bad enough to produce substantial emotional distress in a reasonable person. § 784.048(1)(a), Fla. Stat.; Venn v. Fowlkes , 257 So. 3d 622, 624 (Fla. 1st DCA 2018) ("[A] reasonable person does not suffer substantial emotional distress easily."); Mitchell v. Brogden , 249 So. 3d 781, 782 (Fla. 1st DCA 2018) (approving objective, reasonable-person standard for existence of substantial emotional distress) (collecting cases). It is not enough to be "weirded out" or uncomfortable. Paulson v. Rankart , 251 So. 3d 986, 990 (Fla. 1st DCA 2018) (rejecting argument that respondent's acts of watching petitioner sunbathe on her deck next door and "creep" around utility meters on the public street were sufficient to support an injunction); see also McMath v. Biernacki , 776 So. 2d 1039, 1040-41 (Fla. 1st DCA 2001) (finding petitioner's "subjective distress" insufficient to justify injunction where petitioner was uncomfortable around respondent when he tried to talk to her, sent her a letter, and sent flowers and balloons). Allegations such as these "[fall] short of the exacting standards to justify a stalking injunction and the collateral consequences that flow from it." Paulson , 251 So. 3d at 990.

Although behavior such as that alleged here can be valid grounds for employment action, it does not rise to the level of conduct justifying a stalking injunction.

Accordingly, we must reverse and remand for the trial court to vacate the injunction.

REVERSED and REMANDED .

B.L. Thomas, C.J., and Kelsey and M.K. Thomas, JJ., concur.


text:
    Alexander C. BROOKS, Petitioner, v. Kristine N. WILLIS, Respondent.
    No. 1D19-1053
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Alexander C. Brooks, pro se, Petitioner.
    No appearance for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied on the merits. See Clark v. Nichols M.N.P. , 225 So. 3d 416 (Fla. 1st DCA 2017) (holding that to be entitled to mandamus relief compelling a ruling on a pending matter, a petitioner must demonstrate that he has noticed the matter for hearing in the lower tribunal).

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Arnold I. WATKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3649
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Arnold I. Watkins, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Arnold Watkins petitions this Court for a writ of habeas corpus, claiming that he is entitled to a new trial on drug-related charges based on ineffective assistance of appellate counsel. Specifically, Watkins argues that appellate counsel should have raised on direct appeal a claim of ineffective assistance of trial counsel for failing to advise Watkins of an entrapment defense. We dismiss the petition as untimely filed. See Fla. R. App. P. 9.141(d)(5). In so doing, we reject Watkins' claim that the two-year filing deadline should be excused in this case to correct a manifest injustice. "Appellate counsel is not ineffective for failing to raise a claim of ineffective assistance of trial counsel on direct appeal because such claims are more effectively raised in a motion for postconviction relief under rule 3.850." Stewart v. Crosby , 880 So. 2d 529, 531 (Fla. 2004).

DISMISSED.

B.L. Thomas, C.J., and Ray and Winokur, JJ., concur.


author: PER CURIAM.

text:
    Kelvin HERRERA, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-849
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 17, 2019
    Kelvin Herrera, Monticello, pro se.
    Ashley Moody, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 31, 2019 order denying Petitioner's pro se motion for postconviction relief, filed in Case No. 2012-CF-2241-B, Fifth Judicial Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, C.J., EDWARDS and GROSSHANS, JJ., concur.


text:
    Shannon Lorenza JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1439
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 17, 2019
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant's judgment and sentence without prejudice to Appellant's right to file a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, if he is able to do so in good faith.

AFFIRMED.

EISNAUGLE, GROSSHANS and SASSO, JJ., concur.


author: Winokur, J.

text:
    Joshua Brandyn GASKEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2793
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Following a jury trial, Joshua Brandyn Gaskey was convicted of two counts of first-degree murder, one count of armed robbery, and one count of armed burglary. Gaskey shot and killed Sheley and Jacquelyn Brooks in their home while stealing their prescription medication to satisfy a drug debt. We affirm Gaskey's judgment and sentence.

I.

The day after the murders, Gaskey and his girlfriend, Sarah Carroll, were arrested. Carroll was placed in an interview room and was questioned by Holmes County Sheriff's Office Investigator Michael Raley and Lieutenant Tyler Harrison. Carroll waived her Miranda rights and stated that she had driven to the Brookses' residence on the day of the incident with Gaskey and a man known to her as "Pooh." Gaskey entered the home while Carroll and Pooh stayed in the car. According to Carroll, Gaskey had been in the home for approximately fifteen to twenty minutes when she heard three loud bangs. Gaskey then left the home and got back in the car with two bottles of prescription pills. Gaskey, Carroll, and Pooh then drove to a motel where Pooh divided up the pills to settle Gaskey's drug debt. Carroll stated that she asked Gaskey about the bangs she heard in the residence and Gaskey responded that he didn't know what she was talking about.

Prior to the start of his interview, Gaskey asked an officer why he was hearing Carroll cry. The officer repeatedly told Gaskey to stay seated and that he did not know why or if Carroll was crying. Gaskey then became belligerent and went on an expletive-laced tirade against the officer and police in general.

After entering Gaskey's interview room, Raley and Harrison informed Gaskey of his Miranda rights. Gaskey told Raley he understood his rights, and read and initialed a Miranda rights form indicating that he understood his rights. As to the question whether he had "previously asked any law enforcement officer to speak to an attorney," Gaskey wrote "Not Yet!" Regarding the question "[w]ith these rights in mind do you wish to speak with me?" Gaskey wrote "Yes!"

From the outset of his interview, Gaskey asked Raley and Harrison if Carroll was the person he heard crying in the other room. Raley confirmed that Carroll was in the other room crying. As the interview progressed, Gaskey became confrontational and told the officers that he did not care about the Brookses and that all he was concerned about was Carroll's well-being:

I, I care about [Hardin, the son of the Brookses], and I care about [Carroll], but I really don't care about that s**t, I just want to know what's going on with [Carroll]. After that, I just want to go to a cell and lay down for a while. I'm probably going to sit here and dope sick off my ass right now, I just want to know what's wrong with [Carroll], that's all I care about, everything, I don't care about any of this.

When the officers told Gaskey that his cell phone and video surveillance placed him in the vicinity of the crime scene, Gaskey informed Raley and Harrison that he would tell them the truth if he saw Carroll. Gaskey then proceeded to state that he owed Pooh a drug debt and that Pooh threatened Carroll's life over it. As a result, they went to the Brookses' home to get their prescription pills. Gaskey planned to just ask the Brookses for the pills or to take them by force if they did not agree since they were elderly. Gaskey admitted that he went inside the residence with a gun intending to scare them into giving him the pills, but the gun had a "hair trigger" and went off. Gaskey also confirmed that he shot Sheley Brooks first and that he threw the gun into the ocean off the Three Mile Bridge.

Before trial, Gaskey filed a Motion to Suppress Evidence regarding his post-arrest interrogation alleging that he had invoked his right to silence and counsel. The trial court held a hearing and issued an order denying the motion, concluding that Gaskey did not make an unequivocal statement indicating that he wanted to cease questioning. Gaskey then filed a second suppression motion, arguing that law enforcement misstated the law during the interrogation. The trial court held another evidentiary hearing and denied this second motion, concluding that law enforcement did not make any misrepresentations of fact or law.

II.

A trial court's ruling on a motion to suppress evidence presents a mixed question of law and fact. Connor v. State , 803 So.2d 598, 608 (Fla. 2001). The trial court's factual findings will be upheld if there is competent, substantial evidence to support them. State v. Young , 974 So.2d 601, 608 (Fla. 1st DCA 2008). However, the trial court's application of the law to those facts is reviewed de novo. Id.

Both the United States Constitution and the Florida Constitution provide protections against self-incrimination. Amend. V, U.S. Const.; art. I, § 9, Fla. Const. Any statements obtained by police in violation of these constitutional provisions are to be suppressed pursuant to the exclusionary rule. Cuervo v. State , 967 So.2d 155, 160 (Fla. 2007). In Miranda v. Arizona , the United States Supreme Court created a prophylactic rule whereby police are required to inform defendants of their right to remain silent, as well as their right to counsel prior to any custodial interrogation. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Once a suspect has waived Miranda rights, police are not required to end an interrogation if the defendant makes an equivocal or ambiguous request for counsel. State v. Owen , 696 So.2d 715, 717 (Fla. 1997) (citing Davis v. United States , 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ). Only an unambiguous and unequivocal request for counsel requires that police terminate an interrogation. Owen , 696 So.2d at 719. Similarly, a defendant's invocation of the right to silence must also be unequivocal and unambiguous. Kalisz v. State , 124 So.3d 185, 202 (Fla. 2013) (citing Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) ).

III.

Gaskey argues that while he initially waived his Miranda rights, he subsequently invoked his right to counsel during the interrogation. As a result, Investigator Raley should have ceased questioning. Because we see neither an unequivocal nor an unambiguous assertion of his right to counsel, we disagree.

Gaskey read and signed a form informing him of his Miranda rights and stated that he wanted to speak with Raley and Harrison. Almost immediately after the interrogation began, Gaskey began to pepper Raley with questions about Carroll. As the interrogation continued, Gaskey became more frustrated about why Carroll was crying. Raley told Gaskey that Carroll was crying because she had "figured out what happened today." Gaskey replied that he did not really care what happened to the Brookses and that all he cared about was finding out what was happening to Carroll. Exasperated, Gaskey stated as follows:

Go ahead and, go ahead and tell me your conclusions, I don't care, or what [Carroll's] conclusions are, I don't care, like I said, I just want to know what's wrong with [Carroll]. So, tell me what she's figured out, and after that, go ahead and f*****g sign off that I need a lawyer or whatever if I'm being arrested. If I'm not being arrested, then take me to a cell for my other warrants, so I can go ahead and get this s**t over with. But other than that, like I said, I want to know what's wrong with her, so whatever she's figured out, tell me what she's figured out so I can go ahead and go to a cell now because other than that, I'm done.

Gaskey points to this exchange as an unequivocal and unambiguous invocation of his right to counsel. We disagree. It appears that Gaskey's primary motivation was to get information about Carroll. Indeed, Gaskey's entire conversation with Raley centered on Gaskey's repeated requests to find out why Carroll was crying and later what she "figured out."

More importantly, Gaskey's statement was entirely conditional. To the extent Gaskey was asserting his rights to counsel or to end questioning, it was dependent on receiving information about Carroll. In fact, he ended his statement by saying "tell me what she's figured out so I can go ahead and go to a cell now because other than that, I'm done." Thus, it is reasonable to assume that Gaskey had no intention of ending the interrogation in order to confer with counsel. Instead, Gaskey simply wanted more information about Carroll. This is bolstered by the fact that Gaskey kept talking with Raley and answering his questions. It appeared that Gaskey was only vaguely referencing his right to counsel as a way to extract information about Carroll from police. Such a statement is not an unambiguous and unequivocal assertion of ones Miranda rights. Accordingly, Raley was under no obligation to stop the interrogation based on these statements.

IV.

Gaskey also argues that his incriminating statements during the interview were involuntary because Lieutenant Harrison misstated the law. Since his confession came after the alleged misstatement of law, Gaskey asserts that the trial court erred in denying his motion to suppress.

An involuntary confession is inadmissible. Martin v. State , 107 So.3d 281, 298 (Fla. 2012). A confession is voluntary if it is "the product of free will and rational choice," which is determined by the totality of the circumstances surrounding the confession. Id. Direct or implied promises render a confession inadmissible only if the promise made the confession involuntary in the totality of the circumstances. Id. at 313-14. A causal connection, however, must be found between the improper promise or coercive conduct and the defendant's subsequent confession. Ramirez v. State , 15 So.3d 852, 855-56 (Fla. 1st DCA 2009).

After a long exchange with Investigator Raley and Lieutenant Harrison regarding what he did the day of the murders, Gaskey reiterated his near-constant request to know why Carroll was crying. Gaskey then immediately proceeded to state that whatever he knew was irrelevant based on the allegations Raley and Harrison were making about Gaskey's involvement in the crime. At that point Harrison explained the difference between first-degree murder, second-degree murder, and manslaughter using hypothetical scenarios to illustrate the difference between them:

[HARRISON]: Well, yeah, there is, see, there's different levels of murder, there's premeditated, that's where you said I'm going to drive over there and I'm going to kill them for the pills, that's premeditated, I don't want to believe that, okay. Then there's second degree, that's where you go over there, in the heat of the moment, something happens, somebody dies. Then there's manslaughter, that's where he got over there and something accidentally, it was fight over the gun and something like that happened, that's the lowest level, okay. So, you're talking about everything from life in prison all the way down to a few years in prison, so that's where I need to know that why and where, okay, that why, because without that why, all I can do is go back and say, he's saying he ain't left Pensacola, we can put him here, we can show it, I got witnesses, I got everything else, but he wants to say that, okay, but that is why I need to know that why. That's where that why comes in very important, so I need to know why that happened. What was your train of thought? What were you thinking? I mean, I know you saw (sic) you've been doping all day.

Afterwards, Gaskey responded, "[i]f you want to hear my answer, I want to tell it to [Carroll], I want her to hear it from me, I'll tell you whatever you want to know." Gaskey also promised to tell "the truth." Gaskey then proceeded to confess to entering the Brookses' residence with the intention of stealing their prescription pain medication and accidentally shooting both of them multiple times.

Gaskey relies on Baptiste v. State , 179 So.3d 502 (Fla. 1st DCA 2015), for his assertion that Harrison misstated the law as it related to homicide, which rendered his confession involuntary. In Baptiste , police told the defendant that if he committed the armed robbery they were investigating with a BB gun and not a firearm then " 'this is the time for you to tell us that' because 'it makes a world of difference.' " Id. at 504. When the defendant then asked why it made a difference, the officers told the defendant that if he used a BB gun to commit the robbery that it was attempted robbery and not armed robbery. Id. at 505. The defendant subsequently confessed and was charged with two counts of armed robbery with a deadly weapon. Id. On appeal, this Court found that the officers misstated the law since using a BB gun can support a conviction for armed robbery. Id. at 506. Thus, the officers' promise that the defendant could not be charged with armed robbery if he confessed to using a BB gun rendered his subsequent confession involuntary. Id. at 507.

In this case, Lieutenant Harrison made no comparable statement. Harrison simply responded to Gaskey's statement with the accurate observation that his mindset during the commission of the crime is important to determining the punishment he faced. While Harrison's explanation may seem somewhat inapt to experienced criminal practitioners, it was nothing like the clearly erroneous legal explanation given by the officers in Baptiste . More importantly, "advis[ing] a suspect of potential penalties and consequences does not amount to a threat." Martin , 107 So.3d at 305. Harrison simply informed Gaskey that his mindset during the incident would matter. As a result, Harrison did not make a misstatement of law.

In any event, Gaskey's confession was not causally connected to Harrison's statement. Immediately after Harrison's explanation about the different classifications of homicide, Gaskey stated that he would tell "the truth" if he could say it to Carroll. It was only after this response from Gaskey that Raley and Harrison told him that they would bring Carroll over, but that Gaskey would have to tell them the truth first. Based on Gaskey's obsession with Carroll throughout the interrogation, it is reasonable to assume that Gaskey was attempting to exploit Harrison's desire to know what occurred by demanding to see Carroll. Again, Gaskey made no statement indicating that he would say anything the officers wanted to hear. Gaskey stated that he would tell "the truth" in exchange for seeing Carroll. There is nothing to indicate that Gaskey confessed because of Harrison's explanation.

Gaskey's overture to police is similar to the facts in Black v. State , where both the defendant and his girlfriend were arrested after a police search of the defendant's home yielded marijuana in a dresser belonging to his girlfriend. 630 So. 2d 609, 614 (Fla. 1st DCA 1993). At the police station, the defendant became concerned over her well-being and "offered to provide details of the robberies if [his girlfriend] was not charged for those offenses." Id. On appeal, this Court found the defendant's subsequent confession voluntary concluding that "there was no police overreaching [and] [i]nstead, the extraction of any 'promises' from the police was induced solely by overtures from the appellant, motivated by his concern for the welfare of his girlfriend." Id. at 617.

As in Black , Gaskey proposed the "offer" of telling police "the truth" in exchange for seeing Carroll. As a result, it cannot be said that Harrison misstated the law, made any promises, or otherwise induced Gaskey to confess.

V.

In conclusion, Gaskey waived his Miranda rights and voluntarily spoke to police. Gaskey's overriding concern throughout the interrogation was Carroll's well-being. At no point did Gaskey unequivocally invoke his right to silence or counsel. Furthermore, the interrogating officers did not misstate the law. Gaskey simply attempted to leverage his knowledge of the murders in order to see Carroll, and in the process confessed to the crime. As a result, Gaskey's confession was neither coerced nor involuntary. Accordingly, the trial court did not err in denying Gaskey's suppression motions. We, therefore, affirm his judgment and sentence.

AFFIRMED.

B.L. Thomas, C.J., and Kelsey, J., concur.

      Florida courts have ruled that statements that appear to be more explicit requests for counsel than Gaskey's are equivocal. See Jones v. State , 748 So.2d 1012, 1020 (Fla. 1999) (finding the defendant's request "to talk to his mother [and] his attorney" insufficient to invoke his right to counsel); Long v. State , 517 So.2d 664, 667 (Fla. 1987) (concluding that the statement "I think I might need an attorney" was equivocal); Waterhouse v. State , 429 So.2d 301, 305 (Fla. 1983) (holding that the statements "I think I want to talk to an attorney before I say anything else" and "I think I'd like to talk to my attorney" were both equivocal).

      We reject all other arguments Gaskey makes in this appeal.


author: Rowe, J.

text:
    Stephen MALLET, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4627
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

Stephen Mallet entered an open plea to one hundred seventeen counts of possession of images depicting sexual conduct by a child and two counts of possession with intent to promote such images. Mallet timely moved for postconviction relief, arguing that he would not have entered a plea had he known that his counsel failed to reserve the right to appeal an order denying a motion to dismiss two of the counts. The State agreed that Mallet was entitled to an evidentiary hearing on his allegations. Following the hearing, the postconviction court concluded that there was no objectively reasonable probability that had Mallet known defense counsel would fail to reserve the right to appeal the order, Mallet would have elected to go to trial rather than enter a plea. We affirm.

An investigation by law enforcement revealed that an IP address linked to Mallet had been used to access an online peer-to-peer file-sharing program. Through the file-sharing program, at least two hundred seventeen images depicting sexual conduct by a child were downloaded to Mallet's computer. Investigators also discovered during two separate searches of Mallet's computer that similar images were uploaded from Mallet's computer to the file-sharing program where other users could download them.

Mallet was charged under section 827.071(5), Florida Statutes (2010), with one hundred seventeen counts of possession of images depicting sexual conduct by a child. He was also charged under 827.071(4), Florida Statutes (2010), with two counts of possession of images with the intent to distribute or promote. Mallet moved to the dismiss the charges brought under section 827.071(4), arguing that he could not be convicted for violating the statute because the images he allegedly possessed with the intent to distribute or promote were intangible, digital photographs. The trial court rejected Mallet's arguments and denied the motion to dismiss.

Mallet entered an open plea to all charges. He did not reserve the right to appeal any issue, including the denial of the motion to dismiss. At the later-scheduled sentencing hearing, defense counsel, recognizing that the issue had not been preserved, tried to reserve the right to appeal the ruling. The trial court advised counsel that it was too late. The court sentenced Mallet to forty years' imprisonment, followed by multiple terms of sex offender probation. Mallet's convictions and sentences were affirmed on direct appeal. Mallet v. State , 173 So.3d 890 (Fla. 1st DCA 2015).

Mallet then moved for postconviction relief, alleging that defense counsel was ineffective for failing to timely reserve the right to appeal the order denying his motion to dismiss. The postconviction court held an evidentiary hearing during which Mallet and his defense counsel testified. Mallet testified that he had consistently maintained his innocence with respect to the counts charging possession with intent to distribute or promote and agreed to sign the plea form only with the understanding that he could appeal the denial of his motion to dismiss. Had he known that defense counsel would fail to reserve the right to appeal the ruling, Mallet asserted that he would have elected to proceed to trial.

Defense counsel testified that he did not reserve the right to appeal the order denying the motion to dismiss. He admitted that this failure was based on his misunderstanding of the preservation process. As to Mallet's allegation of prejudice, counsel testified that he explained to Mallet that there were no valid defenses to the charges against him and advised that pleading was in Mallet's best interest. After they discussed the evidence against Mallet, their agreed strategy was to present mitigating evidence to secure a more lenient sentence. Counsel observed that Mallet expressed some interest in going to trial but testified that Mallet was not so interested that he would have rejected a plea offer.

The trial court found that Mallet proved deficient performance by counsel but failed to establish prejudice. The trial court denied the postconviction motion, and this appeal follows.

Analysis

Mallet claims that he entered his plea only with the understanding that he would be able to appeal the order denying his motion to dismiss and that his counsel's failure to reserve the right to appeal that order amounted to ineffective assistance. Where a claim of ineffective assistance of counsel involves a plea, the defendant must meet the two-prong test outlined in Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The first prong mirrors the deficient performance prong in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in that the defendant must show that counsel's performance fell below the prevailing standards of professionalism. See Hill , 474 U.S. at 58-59, 106 S.Ct. 366. As to the second prong, the Hill court modified the Strickland prejudice requirement and held that the defendant must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id . at 59, 106 S.Ct. 366 ; see also Grosvenor v. State , 874 So.2d 1176, 1180 (Fla. 2004). "Importantly, 'the prejudice component of a Hill claim involves a legal standard and is not a purely factual determination.' " Koroly v. State , 257 So.3d 1096, 1102 (Fla. 1st DCA 2018) (quoting Capalbo v. State , 73 So.3d 838, 841 (Fla. 4th DCA 2011) ). Courts should not disturb a plea based only on "post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies." Id. at 1102 (quoting Jae Lee v. United States , --- U.S. ----, 137 S.Ct. 1958, 1967, 198 L.Ed.2d 476 (2017) ). Instead, there must be a reasonable probability of prejudice; the standard is not less stringent merely because the conviction arose after a plea as opposed to after trial. See Capalbo , 73 So.3d at 842.

Because we find that Mallet failed to show prejudice, we need not address the deficient performance prong of the analysis. See Long v. State , 118 So.3d 798, 805 (Fla. 2013) (declining to assess the prejudice prong of Hill after finding that petitioner's allegations were insufficient to satisfy the deficiency prong of Hill ). In determining whether a defendant was prejudiced, a court must objectively consider the totality of the circumstances at the time of the plea:

[I]n determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.

Grosvenor , 874 So.2d at 1181-82 (quoting Hill , 474 U.S. at 59-60, 106 S.Ct. 366 ). We have explained that the inquiry "demands a case-by-case examination of the totality of the evidence and focuses on the defendant's decision-making." Koroly , 257 So.3d at 1102 (quotations omitted); see also Grosvenor , 874 So.2d at 1182. The evidence must support the defendant's claim that there is a "reasonable probability" that he would not have pleaded absent counsel's alleged deficiencies. Koroly , 257 So.3d at 1103. "A 'probability' is not a mere possibility, and requires something more than a bald allegation." Capalbo , 73 So.3d at 841.

Here, the totality of the circumstances and consideration of the Grosvenor factors do not support a finding of prejudice. First, Mallet had no viable defenses to the charges against him. Over two hundred images depicting sexual conduct by a child were found on Mallet's computer, and investigators downloaded via an online file-sharing program at least two images depicting sexual conduct by a child that originated from Mallet's computer. Mallet had recently purchased the computer brand new, and there was no evidence that anyone other than Mallet had access to the computer. Simply put, the evidence against Mallet was formidable, and he and his counsel recognized that his chances of acquittal were slim. See generally Griffin v. State , 114 So.3d 890, 899 (Fla. 2013) ("[T]he strength of the government's case against the defendant should be considered in evaluating whether the defendant really would have gone to trial if he had received adequate advice from his counsel.").

Second, the court's plea colloquy was sufficient to apprise Mallet of the rights he was giving up by entering a plea. The court specifically advised Mallet that by pleading, Mallet was waiving his right to appeal "everything other than the legality of the sentence imposed." Mallet agreed and had no further questions for the court or for defense counsel.

Third, at the time he entered the plea, Mallet knew he faced a maximum sentence of six hundred fifteen years in prison. Even if his counsel had reserved the right to appeal, and Mallet had successfully obtained dismissal of the two intent-to-promote counts, he still faced five hundred eighty-five years in prison.

Based on the totality of the circumstances surrounding Mallet's plea, there is no objectively reasonable probability that if he had known defense counsel failed to reserve the right to appeal the order denying his motion to dismiss, Mallet would have elected to go to trial rather than enter a plea. See Hill , 474 U.S. at 60, 106 S.Ct. 366 (emphasizing that this determination should be made objectively, without regard for the "idiosyncrasies of the particular decisionmaker") (internal quotation omitted). The order denying postconviction relief is therefore AFFIRMED .

Bilbrey and Winsor, JJ., concur.

      An appeal of the order denying the motion to dismiss would have been meritless. Mallet argued that there is no such crime as possession with intent to distribute or promote intangible (as opposed to tangible) images depicting sexual conduct by a child. His argument relied on a distinction he drew between section 827.071(4) (the intent-to-promote statute) and section 827.071(5) (the possession statute). Mallet argued that while subsection (5) prohibits possession of an "image," "data," or "computer depiction," those terms are absent from subsection (4), indicating legislative intent not to punish those who intend to promote digital images. This argument fails because subsection (5) did not include those terms until 2011. See Ch. 2011-220, § 15, Laws of Fla. (effective Oct. 1, 2011). At the time of Mallet's offenses in 2010, the language in subsections (4) and (5) mirrored each other. See § 827.071(4), (5), Fla. Stat. (2010). Under any plain reading of section 827.071(4), the term "any photograph" includes digital photographs.