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

text:
    Tyrone D. WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-836
    District Court of Appeal of Florida, First District.
    August 24, 2018 Rehearing Denied October 25, 2018
    Tyrone D. Wallace, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Holly N. Simcox and Sharon S. Traxler, Assistant Attorneys General, Tallahassee, for Appellee.
    OPINION ON MOTION FOR WRITTEN OPINION
   B.L. Thomas, C.J.

We have before us Appellant's motion for written opinion. We grant Appellant's motion and, accordingly, withdraw our former opinion of May 23, 2018, and substitute this opinion in its place.

Appellant challenges the lower court's "Order Denying Petition to Recall, Vacate, and Set Aside the Court's Order of March 10, 2011 Based on Fraud on the Court." Appellant alleges that the postconviction court's order denying relief was procured by fraudulent evidence.

Appellant was arrested on March 31, 2004, and charged by information with Home Invasion Robbery While Armed, and Kidnapping. After a jury trial, Appellant was found guilty of both charges.

At the May 4, 2006 sentencing hearing, Appellant's counsel, Mr. Hunt, argued that the State untimely filed its notice that it was seeking to sentence Appellant under section 775.082, Florida Statutes, as a Prison Releasee Reoffender ("PRR"), because it was filed after trial, after the jury had been discharged. The sentencing court stated that the PRR statute does not expressly require the State to give notice of its intent to seek PRR status prior to trial, with the court noting, "I wish you were correct. I think it's a miracle that we don't have to let you know that prior ...." Mr. Hunt argued that the law may have changed in that regard, based on decisions in felony DUI cases where courts had ruled that, once a defendant was convicted of DUI, he was entitled to a jury determination on whether he had prior convictions for purposes of sentencing. Mr. Hunt argued that, analogous to felony DUI cases, Appellant was entitled to a jury determination on the issue of prior convictions in order to seek PRR status. The trial court disagreed, stating that the PRR statute does not require notice before the jury is discharged, stating, "[t]hey can do it, they don't have to notify anybody until after it's over and then say, oh, yes, we noticed him as a prison releasee reoffender."

After counsel for the State read portions of the PRR statute, Mr. Hunt stated, "Judge, I'm not here to contest what the statute says. We're here for a sentencing hearing and the State must produce - produce evidence." As required by the PRR statute, Appellant was sentenced to 30 years in prison for the charge of home invasion robbery and life in prison on the charge of kidnapping.

After the judgment and sentence were affirmed per curiam, Appellant filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, claiming nine grounds for relief. Pertinent here, Ground Four of Appellant's motion alleged ineffective assistance of counsel. Appellant claimed he specifically asked Mr. Hunt whether he would be subject to sentencing under the PRR statute, and Mr. Hunt incorrectly informed him that if the State did not give notice prior to trial of its intent to seek PRR designation, he would not be subject to PRR. Appellant alleged that he turned down the State's offer of a ten-year prison sentence based on counsel's misinformation, and stated he would not have gone to trial had the possibility of a life sentence been correctly communicated to him.

The postconviction court held an evidentiary hearing on Ground Four of Appellant's motion on March 2, 2011. Mr. Hunt testified that the State had offered Appellant a ten-year plea deal, and Appellant rejected it, stating that he was innocent and wanted to go to trial. Mr. Hunt testified that he had two separate discussions with Appellant before the sentencing hearing regarding the possible consequences of a guilty verdict at trial, and he made written notes contemporaneously with these discussions. The notes were admitted into evidence without objection. Mr. Hunt read the notes into the record:

A: Okay. Top left of the page is a notation of the date, 3/3/06. And the time 9:15, and it doesn't say a.m., but it was a.m., and more or less top center of the page is the name, Tyrone Wallace. Under that in brackets is state's offer, colon, bracket, 10 years, closed bracket. Below that entry is a notation I explained above to defendant, he wants trial. And following that, just following that is a notation, I explained that if he is classified as PRR, he will receive a mandatory life sentence. Defendant understands.
....
Next paragraph 4-3-06, 9:08, defendant arrived eight minutes late. Spoke with defendant again and reminded him of State's plea offer, 10 years DOC. I explained that he appeared to qualify as a prison releasee reoffender and will face a mandatory minimum life imprisonment if convicted of either offense. Defendant says he is innocent and will not consider a plea bargain.

Mr. Hunt testified that he discussed with Appellant the notice that was required if the State intended to seek PRR: "It was my understanding that the notice did not have to be filed in advance of trial.

That it was filed in advance of sentencing, but not necessarily in advance of trial."

Mr. Hunt testified that he never advised Appellant that PRR would not apply to him due to a lack of written notice prior to trial. When asked if he argued at sentencing that PRR should not apply because the notice was not timely filed, Mr. Hunt testified, "I don't know. You'll have to refer to the sentencing transcript. Sounds like something I would have said, but I can't remember saying it. Mr. Hunt testified that he knew that the case law is to the contrary, but he may have made the argument anyway.

Appellant testified at the evidentiary hearing that Mr. Hunt informed him the State offered him a ten-year plea deal, but never told him he would be facing life in prison. Appellant testified that Mr. Hunt told him he was subject to sentencing as an habitual violent offender but it was not mandatory, that he could receive the fifteen-year mandatory minimum, and that the judge could choose to sentence him to ten years if he found Appellant was not a threat to society. Appellant testified that he specifically asked Mr. Hunt whether he was subject to PRR, and Mr. Hunt told him he would be if the State gave timely notice. Appellant testified that Mr. Hunt advised him he would be able to earn gain time, and that information factored into his decision to go to trial.

The postconviction court found that Mr. Hunt's contemporaneous notes were accurate and not falsified; therefore, Mr. Hunt had discussed with Appellant the possibility of life imprisonment. The court noted that the information by which Appellant was charged indicated that both charges were punishable by life in prison, and the court did not find it credible that Mr. Hunt would not have discussed the possibility of life imprisonment with Appellant when the potential sentence was listed on the information. The court found that Mr. Hunt's argument at sentencing that the PRR notice was untimely could be viewed as an attorney arguing one theory of law on behalf of his client, but it did not prove that he told Appellant he could not be sentenced to life if the PRR notice was not filed before trial. The postconviction court reiterated these findings in its March 10, 2011 order denying Appellant's motion for postconviction relief.

On October 25, 2016, Appellant filed a "Petition to Recall, Vacate, and Set Aside the Court's Order of March 10, 2011 Based on Fraud on the Court." Appellant alleged that, because the transcripts of the 2006 sentencing hearing were now available, he could prove Mr. Hunt's deficient performance and establish that Mr. Hunt's testimony at the 2011 evidentiary hearing constituted fraud on the court. Specifically, Appellant alleged that Mr. Hunt was testifying falsely when he said he understood that the PRR notice did not have to be given prior to trial and that he never advised Appellant that PRR would not apply to him due to the State's failure to notice PRR before trial. Appellant alleged that 2006 sentencing hearing transcripts, which were not available at the 2011 postconviction evidentiary hearing, established that Mr. Hunt believed in 2006 that PRR had to be noticed before trial, and his statements that he still advised Appellant that it did not need to be noticed before trial were false.

On February 3, 2017, the lower court held an evidentiary hearing on Appellant's Petition to Vacate. With the transcript of the sentencing hearing now available, Mr. Hunt testified that he had argued at the 2006 sentencing hearing that the State's PRR notice was untimely, but he did not advise Appellant that it would not apply. Mr. Hunt testified that this was not a false statement of the law, as he was arguing that the sentencing court should rely on felony DUI cases where a jury determination on prior convictions was required for sentencing; thus, applying the standard from felony DUI cases, the PRR should not be applied to Appellant because it was not noticed until after the jury was discharged. Mr. Hunt testified that this argument was a strategy to represent Appellant zealously, and he believed the argument was well taken and entirely appropriate. Mr. Hunt further testified that he informed Appellant that he faced a life sentence under PRR.

Mr. Hunt testified that the notes of his 2006 discussions with Appellant that were admitted at the 2011 evidentiary hearing were made contemporaneously with his original conversations with Appellant, were not created after the fact, and were not fraud on the court.

The lower court found there was no showing that Mr. Hunt's handwritten notes admitted into evidence at the 2011 evidentiary hearing were not made contemporaneously with his discussions with Appellant in 2006 prior to trial. The court found that Mr. Hunt testified honestly and accurately at the 2011 evidentiary hearing, and found that, when Mr. Hunt argued at the 2006 sentencing hearing that PRR should have been noticed before trial, he was making the best policy argument he could in favor of Appellant, and not demonstrating a misunderstanding of the law. The lower court denied Appellant's petition to vacate the 2011 order. Appellant now challenges the court's denial of his petition.

Analysis

A lower court's decision regarding a claim of fraud on the court is reviewed for an abuse of discretion. Suarez v. Benihana Nat'l of Fla. Corp. , 88 So.3d 349, 351 (Fla. 3d DCA 2012).

Any judgment or order procured from any court by the practice of fraud or deception may, in appropriate proceedings, be set aside at any time. State v. Burton , 314 So.2d 136, 138 (Fla. 1975). Fraud on the court is defined as "an egregious offense against the integrity of the judicial system and is more than a simple assertion of facts in a pleading which might later fail for lack of proof." Wells Fargo Bank, N.A. v. Reeves , 92 So.3d 249, 252 (Fla. 1st DCA 2012).

The authority to dismiss actions for fraud " 'should be used 'cautiously and sparingly,' and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing.' " Id. (quoting Granados v. Zehr , 979 So.2d 1155, 1157 (Fla. 5th DCA 2008) ).

As defined in Cox. v. Burke , 706 So.2d 43, 46 (Fla. 5th DCA 1998) :

The requisite fraud on the court occurs where "it can be demonstrated, clearly and convincingly , that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense."

(Quoting Aoude v. Mobil Oil Corp. , 892 F.2d 1115, 1118 (1st Cir. 1989) (emphasis added) ). Thus, to succeed in his petition to vacate the 2011 order based on fraud on the court, Appellant had to show by clear and convincing evidence that the testimony at the 2017 evidentiary hearing proved that facts found to be true at the 2011 evidentiary hearing were "basically false." See Booker v. State , 503 So.2d 888, 889 (Fla. 1987).

In State v. Mischler , 488 So.2d 523, 525 (Fla. 1986), the Florida Supreme Court described the requirements for clear and convincing evidence:

"Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief and conviction, without hesitancy, as to the truth of the allegation sought to be established."

(Quoting Slomowitz v. Walker , 429 So.2d 797, 800 (Fla. 4th DCA 1983) ).

Appellant argues that the 2011 order on his motion for postconviction relief was procured by fraud, because Mr. Hunt testified falsely when he stated that he understood the State did not have to give notice of its intent to seek PRR before trial, and that he never advised Appellant that PRR would not apply to him, because the State had not filed notice of PRR prior to trial. He further argues that Mr. Hunt's notes of his conversations with Appellant were falsified to the extent that they indicated that Mr. Hunt never advised him that PRR applied. In support, Appellant points to Mr. Hunt's argument at the 2006 sentencing hearing that, although he did not contest what the PRR statute said, he believed the court should apply the standard established for felony DUI cases, where, after conviction, a separate jury determination was required to establish whether the defendant had prior convictions.

Appellant has not established fraud by clear and convincing evidence. Mr. Hunt's argument at the 2006 sentencing hearing was a policy argument offered to get the best possible sentencing for Appellant. This does not establish that Mr. Hunt misunderstood the PRR notice requirement; rather, the argument indicates that Mr. Hunt was requesting the court to apply a standard for policy reasons, even when he understood that the statute did not expressly require that standard. See R. Regulating Fla. Bar pmbl. ("As an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system"). This argument does not "produce in the mind" a "firm belief and conviction, without hesitancy," that Mr. Hunt misunderstood the PRR notice requirements, misadvised Appellant based on that misunderstanding, and then gave false testimony and produced falsified notes contrary to that advice.

AFFIRMED .

Wolf and Ray, JJ., concur.

      Wallace v. State , 951 So.2d 837 (Fla. 1st DCA 2007) (Table).

      The transcript of the sentencing hearing was not available at the evidentiary hearing on Appellant's rule 3.850 motion. Appellant's postconviction counsel stated the transcript was not in the court file, and, as the moving party, Appellant bore the burden of producing the transcript. The evidentiary hearing proceeded without the transcript. However, the transcript was provided in the record for this appeal.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Derrick Tyrone GRANTLEY, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-1606
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018.
    Derrick Tyrone Grantley, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SUAREZ, SALTER, and SCALES, JJ.
   SUAREZ, J.

We grant Derrick Tyrone Grantley's petition for writ of mandamus to compel the trial court to issue a written order on defendant's motion to dismiss appointed counsel filed May 9, 2018 in case numbers F98-3144B and F98-5013.

As we are hopeful that the lower court will comply forthwith with the issuance of the requested order, we withhold issuance of the formal writ for thirty (30) days.


author: PER CURIAM.

text:
    Landon HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1636
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before SCALES, LUCK, and LINDSEY, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

Landon Hernandez appeals the trial court's order revoking his probation. Based upon a review of the record before us and the State's appropriate confession of error, we affirm the revocation but remand with instructions that the written order of revocation be corrected to conform to the trial court's oral pronouncements made at the probation revocation hearing.

Following a probation revocation hearing held on June 21, 2017, the trial court orally pronounced that it was revoking Hernandez's probation because the State established by a preponderance of the evidence that he willfully and substantially violated his probation by: being a convicted felon in possession of a firearm (condition 5); possessing, carrying, or owning a firearm or weapon (condition 4); changing his residence without first procuring consent from his probation officer (condition 3); and committing an aggravated assault (condition 5). However, the trial court also found that the State specifically failed to prove that Hernandez violated his probation for: committing a battery (condition 5), failing to pay restitution (condition 2), and failing to complete his community service hours (condition 8). A review of the record and revocation hearing transcript also reveals that the trial court made no finding as to whether Hernandez violated his probation by improperly exhibiting a dangerous weapon or firearm (condition 5), or by failing to report to his probation office (condition 1).

On July 11, 2017, the trial court entered its written order revoking Hernandez's probation. The written probation revocation order, however, does not conform to the oral pronouncements the trial court made at the revocation hearing. "A written order of probation revocation must conform to the court's oral pronouncement at a defendant's probation revocation hearing." Laffitte v. State, 16 So.3d 315, 316 (Fla. 3d DCA 2009) (quoting Salvatierra v. State, 691 So.2d 32 (Fla. 3d DCA 1997) ). In addition to the four violations the trial court orally pronounced had been proven by the State, the written revocation order also reflects that Hernandez committed the three probation violations that the trial court specifically declined to revoke probation for-committing a battery (condition 5), failing to pay restitution (condition 2), and failing to complete his community service hours (condition 8). Additionally, the written revocation order also reflects that Hernandez committed the two probation violations that the trial court made no finding on-improperly exhibiting a dangerous weapon or firearm (condition 5) and failing to report to his probation office (condition 1).

Indeed, the State's confession of error concedes as much and requests that the matter be remanded to the trial court for the sole purpose of correcting the written revocation order in order to conform to the trial court's oral pronouncement. We agree. See Gonzalez v. State, 217 So.3d 235, 235 (Fla. 3d DCA 2017) (remanding with instructions "for correction of the written order of revocation so that it conforms to the court's oral pronouncement."); see also Jones v. State, 686 So.2d 701 (Fla. 3d DCA 1996) (citing Cushion v. State, 637 So.2d 2 (Fla. 3d DCA 1994) ). As such, we remand for correction of the written order for revocation so that it conforms to the trial court's oral pronouncement.

Affirmed in part, reversed in part, and remanded with instructions.

      Hernandez need not be present for this purpose. See Sellers v. State, 793 So.2d 1148 (Fla. 3d DCA 2001) (citing Sampson v. State, 375 So.2d 325 (Fla. 2d DCA 1979) ).


author: FERNANDEZ, J.

text:
    Yordany Enrique Basulto VARGAS, Petitioner, v. Daniel JUNIOR, Director of Miami-Dade County Department of Corrections, et al., Respondents.
    No. 3D18-1612
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018
    Daniel J. Tibbitt, Miami, for petitioner.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for respondent State of Florida.
    Before ROTHENBERG, C.J., and SUAREZ, and FERNANDEZ, JJ.
   FERNANDEZ, J.

Petitioner/defendant, Yordany Enrique Basulto Vargas ("Vargas"), petitions this Court for a writ of habeas corpus alleging that, under the circumstances of his case, his detention in the Miami-Dade county jail is illegal. Concluding that Vargas's detention is legal, and that there is no basis for a writ of habeas corpus under the facts of the record before us, we deny the petition.

FACTS AND PROCEDURAL BACKGROUND

On June 14, 2018, Vargas was arraigned after arrest in Eleventh Judicial Circuit Case number F18-12015, and charged with cannabis trafficking and use, possession, or ownership of a grow house ("Florida grow house charges"). On June 15, 2018, a warrant was issued by authorities in El Paso County, Colorado for Vargas's arrest on similar charges to the Florida grow house charges: trafficking in controlled substances and possession/cultivation of marijuana in Colorado. The offense dates were listed as May 15, 2018 to June 5, 2018, and bond was set at $50,000.

On June 20, 2018, an out of state fugitive warrant was issued for Vargas by authorities in Colorado. The State of Florida received notification and issued a Complaint/Arrest affidavit in Eleventh Judicial Circuit Case number F18-12250 ("the fugitive warrant"). As this was a Class 1 felony in Colorado, no bond was set.

On June 21, 2018, Vargas's bond hearing on the Florida grow house charges was heard by the trial court. The trial court was going to set bond at $30,000, along with GPS monitoring; however, defense counsel requested bond be set at $15,000 and no GPS monitoring. During the hearing, the in-court corrections officer notified the trial court that the day before, on June 20, 2018, they received notice that there was a fugitive warrant from El Paso County, Colorado, for the defendant, and that Florida had issued a Complaint/Arrest affidavit in Eleventh Judicial Circuit Case number F18-12250, with no bond set, based on the Colorado warrant. After further argument from the State and defense counsel, the trial court set bond at $30,000 and did not require GPS monitoring or house arrest. Vargas posted the $30,000 bond that same day. Arraignment on the Florida charges was scheduled for July 5, 2018.

On June 22, 2018, Vargas's fugitive warrant bond hearing was held before the trial court in case number F18-12550. The trial court signed a probable cause affidavit finding that Vargas had been charged in Colorado and was a fugitive from Colorado. Based on a pending matter in the Florida grow house case set for July 5, 2018, the trial court reset the matter for July 6, 2018. Vargas agreed to waive extradition, and the trial court noted the defendant's wish to waive.

On July 5, 2018, the State filed the Information charging Vargas with trafficking in cannabis (Count I), and ownership, lease, rental, or possession of a structure for trafficking in or manufacturing a controlled substance (Count II). Thereafter, at a hearing before the trial court on July 6, 2018, defense counsel argued that because the $30,000 bond had been posted on the local charges, petitioner should have been released from custody two weeks before. The State attorney replied, "[b]ut if you're arrested out of State, then it's no bond." The trial court did not rule on the issue and reset the matter to July 9, 2018.

At the July 9, 2018 hearing, the state attorney that deals with extradition issues in the State Attorney's office appeared before the court. She explained to the court that Vargas had three issued warrants: 1) the warrant for the Colorado grow house charges where the bond was set at $50,000, when Vargas was thought to be present within Colorado's jurisdiction; 2) the warrant for the Florida grow house charges, where the bond was set at $30,000; and 3) the fugitive warrant charging Vargas with being a fugitive from the state of Colorado, with no bond. The state attorney further suggested that Vargas could withdraw his extradition waiver, and then he could go to Colorado when the Florida case is closed. She stated that the only way to send Vargas to Colorado before the Florida case was closed was for Vargas to apply to the governor of Colorado for a warrant, which defense counsel was free to do, but had not done yet. The State was firm in its position that Vargas have no bond on the fugitive warrant while the local Florida charges were pending.

At the end of the hearing, the trial court decided not to grant Vargas's bond on the fugitive warrant. The trial court reset the matter for thirty days 30 to consider custody at that time. Vargas withdrew his extradition waiver, and the trial court vacated the June 22, 2018 waiver of extradition Vargas had signed.

On July 16, 2018, Vargas entered his appearance in the Colorado grow house case. On July 19, 2018, an affidavit of probable cause regarding extradition was entered in the El Paso County, Colorado court.

On July 25, 2018, Vargas filed a motion to set conditions of pretrial release. The trial court heard the matter on July 30, 2018. The State argued that the 30-day and 60-day extension referred to in Florida's statutes only came into play after the governor's warrant was issued, which had not occurred in this case. The State argued that under section 941.19, Florida Statutes (2018), Vargas could apply to the governor of Colorado for a governor's warrant and request that they allow him to go to Colorado, but the defense had not applied for one yet.

The trial court denied Vargas's motion, and he was not granted bond on the fugitive warrant case. The trial court vacated Vargas's waiver of extradition, as Vargas had requested. On August 6, 2018, Vargas filed his petition for writ of habeas corpus with this Court.

ANALYSIS

"Habeas corpus proceedings are intended to test the legality of the petitioner's detention and to secure his or her release if it is determined that the detention is illegal." Alachua Reg'l Juvenile Det. Ctr. v. T.O., 684 So.2d 814, 816 (Fla. 1996). "In a habeas corpus proceeding contesting the validity and propriety of an extradition warrant issued by the governor, the accused has the burden to overcome by competent proof the prima facie case made by the extradition warrant." Kohler v. Sandstrom, 305 So.2d 76, 77 (Fla. 3d DCA 1974). We find that Vargas's detention is legal, and there is no basis for a writ of habeas corpus under the facts of the record before us.

The sole basis of Vargas's detention in the Miami-Dade county jail is the fugitive warrant stemming from Colorado's claim to custody. Vargas does not argue in his petition that the trial judge abused her discretion in making the decision to detain him, but he instead alleges that the trial judge did not possess the authority to exercise such discretion. Yet, throughout the Uniform Extradition Act, codified in chapter 941, Florida Statutes (2018), the judiciary is given wide discretion to decide whether to hold a fugitive in custody without bail. See §§ 941.15-.16, Fla. Stat. (2018). This discretion, however, is restricted by statutory time limits for which a fugitive can be held. Id. These time limits ensure that a defendant will not be held indefinitely.

At this time, Vargas's claim of unlawful detention is not ripe, as the statutory limits have not yet expired. According to section 941.15, while a fugitive awaits requisition, "the judge must, by a warrant reciting the accusation, commit the person to the county jail for such a time not exceeding 30 days ...." The relevant exception within section 941.15 is "unless the accused gives bail as provided in s. 941.16 ...." Vargas paid the bail amount under the Florida grow house charges and was released on those charges. However, under section 941.16, the trial judge properly exercised her discretion to not admit Vargas to bail by bond on the fugitive warrant as the language of the statute is permissive because it uses the term "may."

After the section 941.15 time limit of 30 days expires, section 941.17 allows for an extension of time of commitment, as follows: "If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, a judge may discharge the accused or may recommit him or her for a further period not to exceed 60 days ...." Therefore, after a total of 90 days, if Vargas is not arrested under the governor's warrant, then the trial court must discharge Vargas on the fugitive warrant. See Carter v. Coleman, 443 So.2d 491, 492-93 (Fla. 2d DCA 1984) ("The trial judge 'dismissed' the proceedings against appellant on the grounds that the Governor's warrant had not been forthcoming within the maximum statutory ninety-day time period.... [T]he trial court, in compliance with section 941.17, Florida Statutes (1981), intended only to dismiss its own court proceedings and to discharge the fugitive warrant .... Such a discharge from bond or custody does not mean dismissal of all extradition proceedings. Thus, appellant's rearrest on a valid Governor's warrant issued after such discharge is not barred.").

On June 20, 2018, the State of Florida received notification that Colorado had issued a fugitive warrant against Vargas and, as a result, Florida issued a Complaint/Arrest affidavit in the Eleventh Judicial Circuit Case number F18-12250 on the fugitive warrant. At the time of this opinion, 90 days have not yet passed from the date the case was filed on the fugitive warrant issue. Until the expiration of the 90 day statutory time limit, Vargas's detention in the Miami-Dade county jail is legal and is pending the resolution of Colorado's fugitive warrant process. We thus conclude that there is no basis for a writ of habeas corpus under the facts of the record before us.

CONCLUSION

Accordingly, consistent with the analysis in this opinion, we deny the petition for writ of habeas corpus.

Petition denied.

      We note that the record does not yet reflect the issuance of an extradition warrant.

      In addition, "the rule in most jurisdictions is that the issuance of an extradition warrant does not constitute a waiver of the asylum state's jurisdiction." Jenkins v. State, 479 So.2d 864, 865 (Fla. 1st DCA 1985). We note that this is the rule in Florida as well, consistent with section 941.19 :
      If a criminal prosecution has been instituted against such person under the laws of this state and is still pending, the Governor, in his or her discretion, either may surrender the person on demand of the executive authority of another state or hold the person until he or she has been tried and discharged or convicted and punished in this state.


author: SCALES, J.

text:
    Brendan SEXTON, Petitioner, v. The STATE of Florida, et al., Respondents.
    No. 3D18-1500
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General; Patricia Gladson, General Counsel, and Gabriela Jimenez Salomon, Assistant General Counsel, for respondents.
    Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
   SCALES, J.

Petitioner, Brendan Sexton, seeks a writ of prohibition directing the trial court to relieve him from criminal prosecution for attempted first degree murder for a shooting that occurred on June 23, 2015, on grounds that he is immune from prosecution under Florida's Stand Your Ground Law, section 776.032 of the Florida Statutes (2017). For the following reasons, we deny the petition.

Before Sexton filed his motion below arguing that he is immune from criminal prosecution, the Florida Legislature amended section 776.032, effective June 9, 2017, by adding subsection (4), which states:

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

§ 776.032(4), Fla. Stat. (2017) ; Ch. 2017-72, § 1, Laws of Fla. In the subject order denying Sexton's immunity motion, following this Court's recent decision in Love v. State, 247 So.3d 609 (Fla. 3d DCA 2018), the trial court rejected Sexton's assertion that subsection (4) applied retroactively to conduct occurring prior to the amendment's June 9, 2017 effective date. Applying the version of section 776.032 in effect when the shooting occurred (on June 23, 2015), the trial court found that Sexton had failed to meet his burden of demonstrating, by a preponderance of the evidence, that he was entitled to immunity from criminal prosecution.

In the instant petition, Sexton does not challenge the merits of the trial court's ruling; rather, Sexton argues only that the new standard, subsection (4), applies retroactively and that the trial court should be directed to apply the new standard in this case.

As Sexton rightly acknowledges, the circuit court was bound by this Court's decision in Love when considering Sexton's immunity motion, notwithstanding our sister court's determination, in Martin v. State, 43 Fla. L. Weekly D1016, --- So.3d ----, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018), that subsection (4) is retroactive. See State v. Washington, 114 So.3d 182, 185 (Fla. 3d DCA 2012). We therefore deny the instant petition, and also deny Sexton's request to hold this petition in abeyance pending the Florida Supreme Court's disposition of Love v. State, SC18-747.

Petition denied.

      In Love, this Court certified conflict with the Second District's Martin opinion. Love thereafter sought to invoke the discretionary jurisdiction of the Florida Supreme Court. The Florida Supreme Court docket indicates that the Court has accepted jurisdiction in Love, and that the case is currently undergoing briefing on the merits. See Love v. State, SC18-747. Sexton is, therefore, not without potential remedy as he is within the appellate pipeline on this issue.


text:
    Robert Roy MACOMBER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1828
    District Court of Appeal of Florida, First District.
    August 30, 2018
    Andy Thomas, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Robert Lee, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant was convicted of capital sexual battery and lewd molestation based on evidence that he sexually abused his girlfriend's seven-year-old daughter, K.M. The evidence admitted at trial included K.M.'s trial testimony and her partially redacted pre-trial interview. We reject Appellant's argument on appeal that the trial court abused its discretion in admitting K.M.'s redacted pre-trial statement under section 90.603(23), Florida Statutes (2015). We agree with Appellant, however, that the trial court abused its discretion by preventing the jury from hearing K.M.'s full account of the circumstances surrounding the abuse, including her accusation that Appellant sexually abused his own daughter A.M.

In her pre-trial statement, K.M. stated that Appellant abused both her and A.M., in each other's presence. At trial, the trial court allowed K.M. to tell the jury that A.M. was present when Appellant abused her - which A.M. denied observing any such abuse - but the court did not allow Appellant to cross-examine K.M. regarding her pre-trial statement that Appellant sexually abused both children or to present A.M.'s denial of such abuse. K.M.'s pre-trial interview containing her accusations was similarly redacted and not submitted to the jury. Thus, the jury was not permitted to hear K.M.'s testimony that Appellant sexually abused her and A.M. in the same criminal episode or A.M.'s testimony that would have directly contradicted this testimony.

We hold that K.M.'s description of Appellant's abuse of A.M. was relevant evidence, and it was reversible error to exclude such evidence. This relevant evidence was not otherwise inadmissible, as K.M.'s allegation that Appellant abused both her and A.M was inextricably intertwined with K.M.'s statements that Appellant abused her. In addition, to exclude this relevant evidence was error under the rule of completeness, and such testimony should have been presented to the jury. Although A.M. was permitted to testify that she did not observe any abuse of K.M., this partial testimony did not adequately allow the jury to hear K.M.'s complete allegation that Appellant abused both of them and A.M.'s denial of such abuse. We therefore reverse Appellant's conviction and remand the case for a new trial.

Analysis

A court's decision to exclude testimony is reviewed for abuse of discretion, but that discretion is limited by the rules of evidence and the case law interpreting those rules. Patrick v. State , 104 So.3d 1046, 1056 (Fla. 2012). The paramount rule of evidence is that "[a]ll relevant evidence is admissible, except as provided by law." § 90.402, Fla. Stat. (2015). The statutory definition of relevant evidence is "evidence tending to prove or disprove a material fact." § 90.401, Fla. Stat. (2015). The evidence that K.M. provided that Appellant sexually abused both her and A.M. during the same criminal act is relevant as to Appellant's criminal liability regarding K.M., in light of A.M.'s proffered testimony that no such abuse occurred regarding her. The jury's conclusion on which witness was telling the truth would necessarily determine which verdict the jury would return; thus, the evidence would tend to "prove or disprove a material fact" - Appellant's guilt or innocence. Id. ; State v. Taylor, 648 So.2d 701, 704 (Fla. 1995) ("[Defendant's] refusal [to submit to field sobriety test] is relevant to show consciousness of guilt. If he has an innocent explanation for not taking the tests, he is free to offer that explanation in court.").

The next step in our analysis is whether this relevant evidence was otherwise inadmissible "as provided by law." § 90.402, Fla. Stat. (2015). Here, the State moved in limine to prohibit testimony or evidence regarding the alleged molestation of A.M., asserting that such evidence "would be introduced for the sole purpose of contradiction," making it "improper impeachment on a collateral matter." Appellant opposed the State's motion on grounds that keeping this information from the jury would deny Appellant his constitutional rights to a fair trial and to confrontation of adverse witnesses. Appellant argued that excluding this evidence "would result in the jury being misled ... concerning the precise allegations about the nature and circumstances of the charged offenses in this case as stated by the alleged child victim, K.M." Appellant further asserted that K.M.'s accusation regarding A.M. was critical to presenting "the circumstances of the charged offenses in this case" and was not evidence related to a collateral matter. Appellant further argued that, under the rule of completeness, the evidence must be admitted, as it was inextricably intertwined with K.M.'s accusations regarding the charged crimes against Appellant.

The trial court granted the State's motion in limine, finding that "the evidence sought to be excluded by the State ... and sought to be introduced by [Appellant], is intended solely for contradiction, does not go to the issue of the victim's bias, corruption, or lack of competency, and is not relevant to any particular material issue in this case."

Section 90.608, Florida Statutes, provides that Appellant can "attack the credibility of a witness" by "[p]roof by other witnesses that material facts are not as testified to by the witness being impeached." Contrary to the rationale of the trial court, or the arguments by the State, such evidence would not have injected a collateral issue into the case or improper collateral crime evidence, as K.M.'s allegations regarding A.M. were inextricably intertwined with K.M's allegations that they were both molested by Appellant. Evidence of a collateral crime is admissible as relevant evidence if it is inextricably intertwined with the charged crime. Dorsett v. State , 944 So.2d 1207, 1213 (Fla. 3d DCA 2006). This is so, because it occasionally "becomes necessary to admit evidence of other bad conduct to adequately describe the offense or connect the elements of the offense because the charged offense and the other conduct are significantly linked in time and circumstance." Wright v. State , 19 So.3d 277, 292 (Fla. 2009). Specifically, collateral crime evidence is inextricably intertwined, if it is "necessary to (1) 'adequately describe the deed'; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s)." Dorsett , 944 So.2d at 1213 (emphasis and citations omitted). Here, K.M.'s testimony that Appellant abused her and A.M., in each other's presence, was inextricably intertwined, because it was necessary to adequately describe the criminal episode involving both victims.

The State did not charge Appellant regarding the allegations that he abused A.M., and inextricably intertwined evidence can involve other crimes that the State may decide in its discretion are not worthy of prosecuting. In Griffin v. State, numerous incidents of uncharged crimes were admitted against the defendant, but the Florida Supreme Court rejected the defendant's arguments that the evidence was improper similar fact evidence, but instead was relevant evidence to show "the entire context out of which the crime arose" - i.e., inextricably intertwined. 639 So.2d 966, 969 (Fla. 1994).

In Kane v. State , the lower court allowed the State to present photographs the defendant took of the victim before and after the sexual abuse he was charged of committing. 975 So.2d 1277, 1281 (Fla. 4th DCA 2008). The Fourth District held the evidence admissible as "inextricably intertwined with the crimes charged":

The photographs are thus inseparable crime evidence, linked together in time, place, and circumstance with the charged sex offenses. They show the entire context in which the molestation occurred. They depict appellant's unnatural and indecent disposition towards his daughter and document the scene of the abuse she suffered throughout her childhood.

Id. Here, K.M.'s testimony about how Appellant would sexually abuse one or both of the girls while they were both in the room was necessary to establish the context out of which the crimes arose.

The facts here make this case clearly distinguishable from the supreme court's decision in Pantoja v. State, 59 So.3d 1092 (Fla. 2011), and our decision in Roebuck v. State, 953 So.2d 40 (Fla. 1st DCA 2007). In both cases, the defendants attempted to discredit the victims' testimony by introducing evidence through cross-examination that the victims had previously made false criminal allegations about third parties . That is not the basis for the admission of the testimony at issue here. Rather, Appellant correctly argues that the evidence that K.M. stated that Appellant sexually abused both her and A.M. is inextricably intertwined with the accusation that Appellant sexually battered K.M. Furthermore, as we stated in Roebuck, to exclude evidence of false reporting involving the defendant himself would implicate due process protections and a defendant's constitutional right to confront his or her accusers. Roebuck , 953 So.2d at 44 (citing Coco v. State, 62 So.2d 892 (Fla. 1953) ). While we need not address that issue in light of our holding, we recognize the observation in Roebuck that, unlike here, the evidence there "lacked the necessary relevance needed to amount to a due process violation." Id. Thus, we reverse the trial court's ruling excluding the evidence that Appellant also sexually abused A.M. and A.M.'s denial that such abuse occurred.

REVERSED and REMANDED for a new trial.

Winsor, J., concurs with opinion; Winokur, J., concurs in part and dissents in part with opinion.

From the beginning, K.M. maintained that every time Macomber molested her, he also molested his own daughter. She said this in her initial interview: "[E]very time he did it to me he would do it to her, too." She said it again during her subsequent deposition: "[E]very time it happened to me it happened to [her]." The record includes no indication she ever retracted this version of events. Yet the jury never heard that version-or evidence directly refuting it. (Macomber's daughter has always maintained she was not molested, contrary to K.M.'s allegations.) I cannot conclude that K.M.'s insistence that Macomber's daughter was molested with her was merely an ancillary point. It is not like whether a victim was wearing exercise clothes or pajamas, cf. Anderson v. State , 133 So.3d 646, 647 (Fla. 1st DCA 2014), or whether a rape victim initially entered the perpetrator's home voluntarily, cf. Mills v. State , 681 So.2d 878, 880 (Fla. 3d DCA 1996). Instead, the details of K.M.'s allegations-including her claim that there was a second victim molested with her-were material and critical.

Whether there were one or two victims is no less material than whether there were one or two perpetrators. Had K.M. maintained that Macomber and another person molested her together, Macomber would be permitted to present testimony refuting that. In other words, Macomber could present testimony that the material facts could not be as K.M. said they were. It does not get less collateral than that. Cf. Jeancharles v. State , 25 So.3d 656, 658 (Fla. 4th DCA 2010) (rejecting argument that impeachment of alibi witness was on collateral matter; "the defendant's whereabouts at about 9:00 p.m. was clearly a critical issue"). The defense should have been allowed to present evidence about K.M.'s insistence that Macomber's own daughter was molested with her, a critical component of K.M.'s accusation.

I join the majority with regard to the admissibility of K.M.'s pretrial statement. I do not agree, however, that the trial court abused its discretion in excluding evidence of Macomber's alleged molestation of A.M.

As the majority opinion correctly notes, a court's decision to exclude testimony is generally reviewed for abuse of discretion. See Globe v. State , 877 So.2d 663, 672 (Fla. 2004). This discretion, as again the majority opinion notes, is limited by the rules of evidence. See Bearden v. State , 161 So.3d 1257, 1263 (Fla. 2015). In other words, if a trial court simply misapplies a specific evidence statute, its order is not really discretionary but is reviewed de novo . But perhaps no evidentiary decisions are left more to the trial judge's discretion than whether evidence is "relevant," and whether relevant evidence is admissible. This is primarily because the rules of evidence are vague in describing what evidence is "relevant," or what relevant evidence should be admitted. See § 90.401, Fla. Stat. ("Relevant evidence is evidence tending to prove or disprove a material fact."); § 90.403, Fla. Stat. ("Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.").

This vagueness lends itself to wide discretion by the trial judge in determining whether evidence is relevant and admissible, which often requires this Court to affirm the trial court's decision to admit or to exclude evidence on this ground, even if we might have ruled differently. By reversing this conviction, we have ruled that no reasonable judge could have determined that the disputed evidence did not tend to prove or disprove a material fact, or could have determined that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice or confusion of the issues. I disagree. It was surely a difficult decision to weigh the offered evidence and conclude that it was not relevant, or that the danger of unfair prejudice or confusion outweighed its probative value. I find that the trial court acted within its broad discretion in making this difficult determination.

I.

The State charged Macomber with committing sexual crimes upon K.M. The State did not charge Macomber with any crimes related to A.M. The State filed a motion in limine stating that it believed Macomber would attempt to introduce evidence or elicit testimony that "during the time [he] was alleged to have committed molestation on K.M., he was also molesting A.M." and that he would then call A.M. to rebut that testimony. The State argued that such testimony was inadmissible as an "attempt to elicit improper impeachment on a collateral matter." Macomber responded that exclusion of this evidence would constitute a denial of his constitutional rights and would mislead the jury about the allegation against him, because K.M. had stated that 1) A.M. witnessed the sexual abuse of K.M., and 2) Macomber also sexually abused A.M.

Regarding Macomber's first point, it should be noted that A.M. did testify for him. K.M. had earlier testified that A.M. witnessed Macomber sexually battering K.M. However, A.M. was permitted to deny K.M.'s contention that she, A.M., had ever seen Macomber battering K.M. In other words, A.M. was permitted to testify regarding the specific charge against Macomber, contradicting K.M.'s statement that A.M. saw it happen. However, regarding the uncharged crime that Macomber allegedly committed upon A.M., the trial court granted the State's motion to exclude such evidence:

The court concludes that the evidence sought to be excluded by the State ... and sought to be introduced by [Macomber], is intended solely for contradiction, does not go to the issue of the victim's bias, corruption, or lack of competency, and is not relevant to any particular material issue in this case.

In other words, the trial court weighed the State's claims against Macomber's, and concluded that the alleged molestation of A.M. did not prove or disprove that Macomber molested K.M., and therefore found it irrelevant and inadmissible.

II.

It appears that Macomber sought permission to introduce two pieces of testimony: 1) that he be permitted to ask K.M. on cross-examination whether he sexually battered A.M. when he battered K.M.; and 2) that he be permitted to ask A.M. on direct examination whether he ever sexually battered her. Presuming that K.M. would have answered that Macomber sexually battered A.M. when he battered her, Macomber then wished to contradict that answer with A.M.'s testimony that he never sexually battered her. I believe the court did not abuse its discretion in excluding both pieces of testimony.

A. K.M.'s testimony

Under the collateral-impeachment rule in the criminal context, if a party elicits cross-examination testimony that is collateral to the charged crime, the witness's answer is conclusive and the party may not introduce evidence to impeach such testimony. See Griffin v. State , 827 So.2d 1098, 1099 (Fla. 1st DCA 2002). As a corollary, a party may not elicit cross-examination testimony if introduced solely to contradict it with extrinsic evidence. Correia v. State , 654 So.2d 952, 954-55 (Fla. 4th DCA 1995). Thus, the first issue is whether the court abused its discretion in determining that K.M.'s proferred testimony that Macomber molested A.M. was "collateral" in that it was offered solely to contradict it with A.M.'s testimony, and therefore irrelevant.

Macomber did not wish to elicit testimony from K.M. that he molested A.M. in a direct attempt to disprove the charged crime. That would be irrational: testimony that Macomber molested A.M. would do nothing to disprove that he molested K.M., and in fact would probably harm him. Rather, Macomber argued that such evidence, when contradicted by A.M.'s denial, would negatively affect K.M.'s credibility and allow the jury to determine whether K.M. or A.M. was telling the truth.

"The test for determining whether a matter is collateral or irrelevant 'is whether the proposed testimony can be admitted ... for any purpose independent of the contradictions.' " Alexander v. State , 103 So.3d 953, 954 (Fla. 4th DCA 2012) (citations omitted). "Two types of evidence pass this test: 1) facts relevant to a particular issue; and 2) facts which discredit a witness by pointing out the witness's bias, corruption or lack of competency." Anderson v. State , 133 So.3d 646, 647 (Fla. 1st DCA 2014) (citation omitted). Macomber did not suggest that the proffered testimony of K.M. demonstrated her bias, corruption, or lack of competency; he sought it only to impeach her credibility. And, as stated, testimony that Macomber molested A.M. was not independently relevant to prove that he did not molest K.M. For these reasons, the court did not abuse its discretion in ruling that the disputed evidence was collateral and irrelevant. See also Griffin , 827 So.2d at 1099 (holding that the disputed impeaching cross-examination "had no relevance to the central issue concerning the guilt or innocence of the Appellant"); United States v. Payne , 102 F.3d 289, 294-295 (7th Cir. 1996) (holding that impeaching testimony was collateral where it was not related to the central issue concerning defendant's guilt or innocence). As such, the trial court did not abuse its discretion in ruling that K.M.'s testimony was collateral and irrelevant.

While he never argued it below, Macomber also suggested at oral argument that K.M.'s testimony that he molested A.M. was inherently incredible due to the taboo against incest. Thus, the very fact that K.M. made that claim would impeach her credibility. However, if this were true, it would not require A.M.'s testimony contradicting it; the mere fact that she made an outlandish accusation would have been enough to affect K.M.'s credibility negatively. For instance, if K.M. had testified that a fictional character was in the room when Macomber molested her and that Macomber molested the fictional character too, Macomber would not need to present a witness to testify that the character was not real. The mere fact that K.M. said it would impeach her credibility.

Such testimony suggests the witness's lack of competency. In such a case, the evidence would be admissible. See Anderson , 133 So.3d at 647 (a fact that discredits a witness by pointing out lack of competency is not collateral and may be used for impeachment); § 90.608(4) & (5), Fla. Stat. Under section 90.608, a party may attack the credibility of a witness by "[s]howing a defect of capacity ... in the witness to observe, remember, or recount the matters about which the witness testified." Testimony that Macomber molested a fictional character could touch on the witness's competency to testify and be admissible. Conversely, the court here could have found that K.M.'s claim that Macomber molested A.M. was not so inherently incredible that it implicated K.M.'s competency.

A simple rule would apply this standard: if the witness's credibility is not negatively impacted by the disputed testimony unless it is contradicted , then the disputed testimony is collateral. Here, in spite of Macomber's suggestion that the taboo against incest renders K.M.'s testimony inherently incredible, the trial court could reasonably have concluded that it was not, that it did not impeach K.M. without A.M.'s contrary testimony, and found the testimony collateral and irrelevant.

B. A.M.'s testimony

As stated, the court did not abuse its discretion in determining that K.M.'s proffered testimony regarding Macomber molesting A.M. was collateral. And if this evidence was collateral, it could not be contradicted by A.M.'s testimony. See Foster v. State , 869 So.2d 743, 745 (Fla. 2d DCA 2004) ("Generally, impeachment on a collateral issue is impermissible."). Therefore, the court did not abuse its discretion in excluding A.M.'s testimony contradicting K.M.'s account of abuse of A.M.

The majority opinion distinguishes cases on which the State relied, noting that those cases involved impeachment testimony that a witness "had previously made false criminal allegations about third parties ." Maj. op. at 1101. In other words, according to the majority, because the molestation of A.M. allegedly occurred in the same episode as the molestation of K.M., evidence relating to the molestation of A.M. was not collateral. But in fact, courts apply the collateral impeachment rule even when the evidence occurred in the same episode as the charged crime. See e.g., Anderson , 133 So.3d at 647 (holding that identity of victim's clothing at time of sexual battery is collateral); Foster , 869 So.2d at 745 (holding that the question of whether the defendant's car brakes were functional in a leaving the scene of the accident prosecution is collateral); Mills v. State , 681 So.2d 878, 880 (Fla. 3d DCA 1996) (holding that the question of whether a sexual battery victim voluntarily entered the defendant's residence is collateral).

Indeed, the fact that the disputed evidence here involved the same episode as the charged crime impacts the question whether it was collateral. But this fact alone is not enough. Even if the disputed evidence occurred in the same episode as the charged crime, the trial court could still properly find that the disputed evidence was collateral. For example, a witness may make all sorts of observations when talking to police about a charged crime. A court must be able to rule that some of those observations are collateral to the charged crime, and cannot be introduced in cross-examination or impeached with extrinsic evidence, in order to ensure the efficiency of trials. A trial court is charged with determining whether such observations are collateral, or are important to the offense. The court did so here, and we should not second-guess it. Taking all of the factors into consideration, the trial court did not abuse its discretion in finding that the disputed evidence was collateral and irrelevant.

III.

Although the disputed evidence here involved a collateral crime allegedly committed by Macomber, the majority finds that the evidence is nonetheless admissible because it is "inextricably intertwined" with the charged crime. Because a court does not abuse its discretion admitting such inextricably intertwined crimes, the majority finds, conversely, that the trial court here did abuse its discretion in excluding evidence of the collateral crime. This analysis suffers from two flaws. First, it confuses the "collateral impeachment" rule with the "collateral crime" rule. Second, it misapplies the collateral-crime cases on which it relies.

Evidence of collateral crimes is "inadmissible when the evidence is relevant solely to prove bad character or propensity." Wright v. State , 19 So.3d 277, 291-92 (Fla. 2009). However, evidence of collateral crimes is admissible "to adequately describe the offense or connect the elements of the offense because the charged offense and the other conduct are significantly linked in time and circumstance." Id. at 292. In this instance, it is said that the collateral crime is "inextricably intertwined" with the charged crime, and may be admitted. Id. The majority finds that the alleged crimes against A.M. are inextricably intertwined with the charged crime, and therefore must be admitted. I disagree that this rule requires admission here.

First, Macomber tried to introduce this evidence not because it would help "adequately describe the (charged) offense," but because it would impeach K.M.'s testimony. The State did not argue against admission because it was a collateral crime offered to prove propensity. The possibility that the disputed evidence here is a collateral crime inextricably intertwined with the charged crime has nothing to do with Macomber's reason for introducing it, or with the State's reason for objecting to it, or with the trial court's reason for excluding it. Macomber specifically wanted the collateral crime to demonstrate that the victim was lying. Whether she was lying is irrelevant to whether the collateral crime is inextricably intertwined with the charged crime. The fact that the evidence may have been admissible under the collateral-crime rule has nothing to do with the fact that the evidence was collateral and offered solely for the purpose of impeachment and cannot be contradicted by extrinsic evidence, which is why the court excluded it. A collateral crime can still be inadmissible if it is collateral impeachment. These concepts have little in common, except that they both use the word "collateral."

Second, even if the majority were correct that we should analyze this case under the collateral-crime rule, the cases the majority cites do not support the conclusion that the trial court here erred in excluding the evidence. The majority cites Dorsett v. State , 944 So.2d 1207, 1213 (Fla. 3d DCA 2006) ; Wright , 19 So.3d at 292 ; and Griffin v. State , 639 So.2d 966, 969 (Fla. 1994), for the general proposition that the trial court may admit, over defense objection, evidence offered by the State that the defendant committed an uncharged crime on the ground that it is inextricably intertwined with the charged offense. While true, this statement does not apply here. Those cases merely ruled that the trial court did not abuse its discretion in admitting the disputed evidence. But a ruling that a trial court may exercise its discretion by admitting evidence does not mean that a court must admit this evidence, or that excluding the evidence constitutes an abuse of discretion. In many cases, neither admission of evidence nor exclusion of the same evidence constitutes an abuse of discretion. Thus, even if the inextricably-intertwined crime rule were the issue (which it is not), the cases do not support the proposition that the court here abused its discretion in excluding the disputed evidence.

The court here made the difficult choice that the disputed evidence was collateral and irrelevant and could not be impeached. The decision was, at the least, reasonable. That is all required to affirm the ruling, even if another judge could properly reach the opposite conclusion. For this reason, I would find that the trial court did not abuse its broad discretion in excluding the evidence, and affirm Macomber's judgment and sentence.

      The dissent addresses a hypothetical and suggests that "if K.M. had testified that a fictional character was in the room when Macomber molested her and that Macomber molested the fictional character too," evidence of that testimony's impossibility would be unnecessary and that the issue would be one of witness competency. But consider a more likely hypothetical: a victim alleges two people simultaneously abused her and there is ample evidence that one of those people (the one uncharged) could not possibly have been present. Presumably, the dissent would leave it up to the trial judge to decide whether this was an important feature that the defense could address-or whether the defense would be precluded from any mention of the second person, leaving the jury to suppose there was only one perpetrator.

      I place little credence in Macomber's contention that the trial court was obligated to admit the disputed evidence because it impacted his constitutional right to introduce exculpatory evidence. All evidence offered by a criminal defendant is intended to be exculpatory. A court is not obligated to ignore the rules of evidence and admit inadmissible evidence merely because it is offered by a criminal defendant. See United States v. Scheffer , 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (holding that "rules excluding evidence from criminal trials" "do not abridge an accused's right to present a defense so long as they are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve' ") (citations omitted). Other than making a broad claim that exclusion of this evidence compromises his "right to confrontation and due process," Macomber did not identify any particular reason why a finding that the disputed evidence is irrelevant is arbitrary or disproportionate.


author: Per Curiam.

text:
    Alan Dale COBY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-306
    District Court of Appeal of Florida, First District.
    August 30, 2018
    Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss and Tabitha Herrera, Assistant Attorneys General, Tallahassee, for Appellee.
   Per Curiam.

Alan Dale Coby was charged with possession of a firearm by a convicted felon and possession of a controlled substance. Coby moved to suppress the evidence, alleging that the deputy who found the gun and drugs did not have reasonable suspicion for the traffic stop that led to the discovery. The trial court denied Coby's motion, and Coby later pleaded no contest, reserving the right to appeal the order denying his suppression motion. See Fla. R. App. P. 9.140(b)(2)(A)(i). We affirm.

The pertinent facts are essentially undisputed. Officials issued a be-on-the-lookout (BOLO) for a dark SUV heading north, away from the scene of a shooting. Just one mile from the shooting's location-and only two or three minutes after receiving the BOLO-a sheriff's deputy spotted Coby's vehicle (a dark SUV) heading north. It was 4:15 in the morning and there were no cars on the road but Coby's. The deputy followed Coby's SUV, while asking dispatch for more information. Dispatch noted that the suspect vehicle had aftermarket bumpers. The deputy, seeing aftermarket bumpers on Coby's SUV, executed a stop. After smelling marijuana, the deputy administered Miranda warnings, and Coby admitted he had a gun and drugs. The deputy searched the SUV and found both. After further investigation, it was determined that Coby had not been involved in the shooting that led to the BOLO.

On appeal, Coby contends only that the initial traffic stop was unlawful. He does not argue that any of the deputy's actions after initiating the stop violated the Fourth Amendment. Thus, if we conclude that the initial stop was lawful, we must affirm.

"A trial court's ruling on a motion to suppress comes to us clothed with a presumption of correctness and, as the reviewing court, we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Murray v. State , 692 So.2d 157, 159 (Fla. 1997). When an officer makes a stop in reliance on a BOLO report, courts may consider the "the length of time and distance from the offense, the specificity of the description of the vehicle and its occupants, and the source of the BOLO information" in determining whether the totality of the circumstances supported the stop. Partlow v. State , 134 So.3d 1027, 1030 (Fla. 1st DCA 2013). Time of day and the number of cars on the road may also be considered. See Cobb v. State , 642 So.2d 656, 659 (Fla. 1st DCA 1994).

Here, the trial court concluded that the time of the stop (around 4:15 a.m.), the fact that there were no other cars on the road, the fact that Coby's SUV matched the description (including having aftermarket bumpers), and the fact that Coby was traveling near the shooting (and just minutes afterward) together supported a conclusion that the traffic stop did not violate the Fourth Amendment. And we conclude-based on the totality of the circumstances-that the trial court's conclusion was correct.

AFFIRMED.

Roberts, Ray, and Winsor, JJ., concur.


text:
    HOLIDAY ISLE IMPROVEMENT ASSOCIATION, INC., Appellant, v. DESTIN PARCEL 160, LLC, Appellee.
    No. 1D17-2090
    District Court of Appeal of Florida, First District.
    August 30, 2018 Rehearing Denied October 16, 2018
    Terrell K. Arline, David A. Theriaque, and S. Brent Spain of Theriaque & Spain, Tallahassee, for Appellant.
    Dana C. Matthews and John M. Stratton of Matthews & Jones, LLP, Destin, for Appellee.
   Per Curiam.

Holiday Isle sued for declaratory and injunctive relief, seeking to enforce protective covenants entitling it to review and approve building plans for lots within its association when a building or structure is "commenced, erected or maintained." Destin Parcel acquired Lot 160 from an entity that had already produced some construction plans and obtained a development order for a specific project. Representatives of Destin Parcel as the new owner talked publicly about proceeding with development, prompting Holiday Isle to demand that Destin Parcel submit the prior owner's construction plans for Holiday Isle's review. Destin Parcel refused to comply, stating that it was considering alternative plans that were not yet finalized and as to which no city building permit had issued, and therefore the review provision was not yet triggered. The trial court granted summary judgment for Destin Parcel.

As a threshold procedural matter, Holiday Isle challenges the legal sufficiency of the trial court's judgment, arguing that because it did not set forth findings of fact or conclusions of law, it did not "declare" the parties' full rights and responsibilities. Holiday Isle relies on Sears, Roebuck & Co. v. Forbes/Cohen Florida Properties, L.P. , 223 So.3d 292 (Fla. 4th DCA 2017), which held that a judgment on declaratory judgment claims is inadequate if it is devoid of findings or conclusions. In Sears , however, the appellate court concluded that it could review the legal and factual issues without requiring remand for entry of a more detailed judgment. 223 So.3d at 298. Here, before reducing judgment to writing, the trial judge orally pronounced that he ruled for Destin Parcel because he accepted Destin Parcel's arguments and authorities. We can readily glean these from the record. The judgment adequately adjudicated the parties' rights as to the present controversy, and our review is unhampered. Our construction of the restrictive covenant is de novo. Leamer v. White , 156 So.3d 567, 571 (Fla. 1st DCA 2015). We therefore reject Holiday Isle's procedural argument.

We decline to provide a comprehensive definition of "commenced, erected or maintained," but we conclude that it would be an unreasonable interpretation of the protective covenant to require a lot owner to submit to Holiday Isle incomplete plans, non-final plans, or plans on which the owner is not prepared to proceed as drawn. See Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass'n , 169 So.3d 197, 203 (Fla. 1st DCA 2015) (holding that the goal of construing restrictive covenants is to arrive at a reasonable interpretation consistent with their stated meaning and purpose). On the undisputed facts, Holiday Isle's attempt to review plans is premature. We therefore affirm.

Lewis, Kelsey, and Winsor, JJ., concur.


text:
    Cristina TARANTOLA, M.D., Appellant, v. William B. HENGHOLD, M.D., P.A., Appellee.
    No. 1D18-1050
    District Court of Appeal of Florida, First District.
    August 30, 2018
    Todd M. Ladouceur and Chris K. Ritchie of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Appellant.
    Trevor A. Thompson of Clark Partington, Tallahassee; Jeremy C. Branning and Daniel E. Harrell of Clark Partington, Pensacola, for Appellee.
   Per Curiam.

Dr. Christina Tarantola appeals an order denying her motion to terminate a temporary injunction. This is her third appeal regarding a non-compete agreement she entered into as part of her employment with the Henghold Practice. We agree the trial court abused its discretion and reverse accordingly.

In Tarantola I , this Court concluded the temporary injunction was overly broad insofar as it could be construed as prohibiting Dr. Tarantola from practicing general dermatology, unrelated to restricted performance of Mohs surgery within a specified geographical area. The temporary injunction was reversed in part, and remanded with directions that the trial court narrow the injunction. Tarantola v. Henghold , 214 So.3d 726, 726-27 (Fla. 1st DCA 2017). Thereafter, in Tarantola II , Dr. Tarantola successfully sought certiorari review of an order holding her in civil contempt for violating the terms of the temporary injunction, specifically its ban on advertising. Tarantola v. Henghold , 233 So.3d 508, 509 (Fla. 1st DCA 2017). This Court granted the petition finding Dr. Tarantola had not purposefully violated the advertising provision in the temporary injunction. Id. at 511. With respect to this case, Dr. Tarantola filed a motion with the trial court requesting the temporary injunction be terminated, claiming the two-year non-compete period had passed. The trial court disagreed, finding the two year period had tolled because Dr. Tarantola violated the covenant not to compete by launching a website purportedly advertising restricted activities. Dr. Tarantola appeals the denial.

Dr. Tarantola resigned from the Henghold Practice in March 2015. We are now over three years from the date of Dr. Tarantola's resignation, with a temporary injunction still in place to enforce a two-year agreement not to compete. The parties agree the two-year non-compete period was tolled because Dr. Tarantola was in violation of the agreement beginning in October 2015 through issuance of the temporary injunction and conditions in September 2016, due to her performance of Mohs surgery in the restricted area. However, Dr. Tarantola argues that even with the "tolling period" extension, the two-year non-compete period has ended, and the temporary injunction should be terminated. Henghold counters by claiming Dr. Tarantola was in further violation of the covenant not to compete beginning in May 2015 as a result of improper advertising through a website, which would extend the injunction at least an additional five months. The trial court properly framed the issue as, "whether or not the website Dr. Tarantola established and used in May of 2015 constitutes 'advertising or marketing activity.' If it does, then the temporary injunction should not be terminated. If it does not, the temporary injunction should be terminated either February 10, 2018 or thirty days after that date." Ultimately, the trial court determined the website did constitute "advertising or marketing activity" prohibited by the non-compete agreement and extended the injunction "at least an addition 134 days" from the date of the order denying Dr. Tarantola's motion.

We find the trial court abused its discretion in considering and relying upon the screenshots of the website as proof the website was in existence in May 2015. Henghold argues the screenshot of the website proves Dr. Tarantola improperly advertised. It further claims that despite a date stamp on the website screenshot of October 14, 2015, the website was actually launched in May 2015 without evidence to support this. Henghold attempts to correct this deficiency by pointing to May 2015 Facebook posts, which direct viewers to Dr. Tarantola's website. However, the Facebook posts do not show the website submitted to the trial court was the website in place at the time of the posts. Regardless, the screenshots purportedly showing Dr. Tarantola in violation of the agreement by improperly advertising were not introduced into evidence, but were attached to pleadings. The record is void of any evidence establishing the website's existence in May 2015, and any such finding is based on mere speculation. Accordingly, the trial court abused its discretion in its determination that the website existed in May 2015.

Nonetheless, even if evidence of record supported that the website existed in May 2015, we agree with Dr. Tarantola that the website did not constitute improper advertising or marketing in violation of the non-compete agreement. Dr. Tarantola describes herself on the website as "Mohs surgery and fellowship trained," but does not advertise availability and performance of Mohs-related services in the restricted area. It was not improper for Dr. Tarantola to provide biographical information on the website of her new medical practice, when additional advertising was not included. See Tarantola II , 233 So.3d at 511 (finding Dr. Tarantola did not advertise Mohs-related services when biographical information was provided). The website provided information about Dr. Tarantola which would be expected of any resume or biographical summary.

The trial court added to its tolling calculation a thirty-day "wind down period." This period began upon the temporary injunction taking effect in September 2016 to allow Dr. Tarantola to complete any emergencies and allow patients in need of Mohs procedures to make other arrangements. We agree with the trial court that this thirty-day period should extend the time period under the non-compete agreement. See Capelouto v. Orkin Exterminating Co. of Fla. Inc. , 183 So.2d 532 (Fla. 1966). However, even considering this extension, the temporary injunction has now expired.

We reverse with instructions to vacate the order on appeal. In light of this disposition, we find the two-year non-compete period expired thirty days after February 10, 2018, and is, therefore, deemed concluded. This opinion should not be read as precluding Dr. Tarantola from argument that she was wrongfully enjoined from practicing general dermatology in the restricted geographical area.

REVERSED and REMANDED with directions.

Lewis, Makar, and M.K. Thomas, JJ., concur.


author: Lewis, J.

text:
    GATOR COIN II, INC., a Florida Corporation, Appellant, v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, an agency of the State of Florida, Appellee.
    Blue Sky Games, LLC, Appellant, v. Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, an agency of the State of Florida, and Gator Coin II, Inc., a Florida Corporation, Appellee.
    No. 1D17-2966 No. 1D17-3705
    District Court of Appeal of Florida, First District.
    August 30, 2018 Rehearing Denied October 1, 2018
    Wm. J. Sheppard, Elizabeth L. White, Bryan E. DeMaggio, Jesse B. Wilkison, and Camille E. Sheppard of Sheppard, White, Kachergus & DeMaggio, P.A., Jacksonville, for Appellant Gator Coin II, Inc.
    Robert E. Turffs of Robert E. Turffs, P.A., Sarasota, for Appellant Blue Sky Games, LLC.
    Christine Davis Graves, Martha Harrell Chumbler, and James Parker-Flynn of Carlton Fields, Tallahassee, for Amicus Curiae Cowboy Gaming, LLC d/b/a Pace-O-Matic, in support of Gator Coin, II, Inc., and Blue Sky Games, LLC.
    Jason L. Maine, General Counsel; Daniel J. McGinn and Beth A. Miller, Florida Department of Business and Professional Regulation, Tallahassee, for Appellee.
    Barry Richard, Greenberg Traurig, P.A., Tallahassee, for Amicus Curiae Seminole Tribe of Florida, in support of Appellee.
   Lewis, J.

In these consolidated appeals, Appellants, Gator Coin II, Inc. (Gator Coin) and Blue Sky Games, LLC (Blue Sky Games), appeal the trial court's Order on Motion for Rehearing and Final Declaratory Judgment, challenging its determination that Blue Sky Games Version 67 (Version 67) is a "slot machine or device" as that term is defined in section 849.16(1), Florida Statutes (2015). For the following reasons, we agree with the trial court's conclusion and, therefore, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Blue Sky Games developed Version 67 with the goal of making it a no-chance game in order to avoid the applicability of Florida's gambling statutes, and it licensed to Gator Coin the right to use it. In turn, Gator Coin leased Version 67 to "adulthood places," such as bars. After Appellee, the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, issued official notices to two of Gator Coin's machine lessees, notifying them that the machines may be considered illegal slot machines under section 849.16 and directing them to remove the machines from their premises, Gator Coin filed against Appellee a Complaint for Declaratory Judgment, seeking a declaration that Version 67 is not an illegal slot machine pursuant to sections 849.15 and 849.16, Florida Statutes (2015), and is instead a legal amusement machine. Blue Sky Games was permitted to intervene in the action.

At the non-jury trial, the undisputed evidence established that Version 67 is a profitable game that depicts traditional slot machine symbols, such as reels; it takes $1 to $20 bills; and the amount of return to the player varies by the amount of money played. Version 67 has a mandatory preview feature that displays the outcome of the game selected before the insertion of any money and before the play button appears. The preview displays the actual result of the game 100% of the time, and players are not financially obligated to play-if they dislike the previewed result, they may cash out any time before pressing the play button, they may select a different play level within the same game theme, or they may choose a different game theme. Version 67 has a preset win/loss ratio, and the outcome that is displayed in the preview is generated by the machine with the use of a random number generator (RNG). When the first game is played, the outcome of the next game is automatically generated by the RNG and is stored in memory, and that outcome is displayed when the player presses preview for the next game. There is nothing a player can do to change the outcome that is randomly generated by the machine from among millions of potential outcomes.

The only dispute at trial was whether Version 67 involves skill or any element of chance or any other outcome unpredictable by the user so as to fall under the purview of section 849.16(1). Appellants contended that Version 67 does not involve any skill and that the mandatory preview feature eliminates all chance and unpredictability. Following rehearing, the trial court vacated its original declaratory judgment in Appellants' favor and concluded that Version 67 is an illegal slot machine pursuant to section 849.16(1). The trial court found that Version 67 is presumed to be a prohibited slot machine because it falls within the parameters of section 849.16(3) and the evidence did not overcome that presumption. The trial court determined that Version 67 is not a game of skill, but it may award a player something of value by reason of an element of chance inherent in the machine because it has a preset win/loss ratio and determines the outcome randomly with the use of an RNG, and it may award a player something of value by reason of an outcome unpredictable by the player at the time the outcome is determined and before it is displayed. Additionally, the trial court recognized that each game unlocks the opportunity to play subsequent games, whose outcomes are unpredictable at the time the first game is played, and that the preview feature seeks to circumvent gambling prohibitions. These appeals followed.

ANALYSIS

On review of a declaratory judgment, we defer to the trial court's factual findings if supported by competent, substantial evidence, but review conclusions of law de novo. Crapo v. Provident Grp.-Continuum Props., L.L.C. , 238 So.3d 869, 874 (Fla. 1st DCA 2018). We review questions of statutory construction de novo. W. Fla. Reg'l Med. Ctr., Inc. v. See , 79 So.3d 1, 8 (Fla. 2012). The polestar of statutory construction is legislative intent. Id. To discern legislative intent, we must first look to the plain and obvious meaning of the statute's text, which may be discerned from a dictionary. Id. at 9. If the statutory language is clear and unambiguous, we must apply that unequivocal meaning and may not resort to the rules of statutory construction. Id. We must give full effect to all statutory provisions and avoid readings that would render a part of a statute meaningless; additionally, we may not construe an unambiguous statute in a way that would extend, modify, or limit its express terms or its reasonable and obvious implications. Bennett v. St. Vincent's Med. Ctr., Inc. , 71 So.3d 828, 838 (Fla. 2011).

Chapter 849, Florida Statutes, governs gambling and makes it unlawful to manufacture, own, store, keep, possess, sell, rent, or lease any "slot machine or device." § 849.15(1), Fla. Stat. (2015). In section 849.16, the term "slot machine or device" is defined and a rebuttable presumption is created as follows:

(1) As used in this chapter, the term "slot machine or device" means any machine or device or system or network of devices that is adapted for use in such a way that, upon activation, which may be achieved by, but is not limited to, the insertion of any piece of money, coin, account number, code, or other object or information, such device or system is directly or indirectly caused to operate or may be operated and if the user, whether by application of skill or by reason of any element of chance or any other outcome unpredictable by the user , may:
(a) Receive or become entitled to receive any piece of money, credit, allowance, or thing of value, or any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value or which may be given in trade; or
(b) Secure additional chances or rights to use such machine, apparatus, or device, even though the device or system may be available for free play or, in addition to any element of chance or unpredictable outcome of such operation, may also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value. The term "slot machine or device" includes, but is not limited to, devices regulated as slot machines pursuant to chapter 551 .
....
(3) There is a rebuttable presumption that a device, system, or network is a prohibited slot machine or device if it is used to display images of games of chance and is part of a scheme involving any payment or donation of money or its equivalent and awarding anything of value.

§ 849.16, Fla. Stat. (2015) (emphasis added).

Chapter 551 governs slot machines, and the term "slot machine" is defined for the purpose of that chapter as follows:

[A]ny mechanical or electrical contrivance, terminal that may or may not be capable of downloading slot games from a central server system, machine, or other device that, upon insertion of a coin, bill, ticket, token, or similar object or upon payment of any consideration whatsoever, including the use of any electronic payment system except a credit card or debit card, is available to play or operate, the play or operation of which, whether by reason of skill or application of the element of chance or both , may deliver or entitle the person or persons playing or operating the contrivance, terminal, machine, or other device to receive cash, billets, tickets, tokens, or electronic credits to be exchanged for cash or to receive merchandise or anything of value whatsoever, whether the payoff is made automatically from the machine or manually. ... A slot machine is not a "coin-operated amusement machine" as defined in s. 212.02(24) or an amusement game or machine as described in s. 546.10 ....

§ 551.102(8), Fla. Stat. (2015) (emphasis added).

Pursuant to case law, in order for a machine to be an illegal slot machine, the element of chance or unpredictability must be inherent in the operation of the machine itself. In Deeb v. Stoutamire , the Florida Supreme Court explained that the characteristics that differentiate an innocent machine from a guilty one are " any element of chance or [ ] other outcome ... unpredictable by [the player]," and concluded that "inasmuch as the machine itself is on trial," "it should not be condemned unless" the element of chance or unpredictability is inherent in its operation. 53 So.2d 873, 874-75 (Fla. 1951) (en banc) (applying section 849.16, Florida Statutes (1941), which did not prohibit games involving skill, and concluding that a miniature bowling alley that did nothing except register the score that depended entirely on the player's skill was not an illegal slot machine). It is the operation of the machine, not the player's knowledge, that is determinative: "the element of unpredictability is not supplied because a player may not be sure what score he can accomplish, but that it must be inherent in the machine." Id. at 875.

In accordance with the rationale of Deeb , the Fourth District in State, Department of Business & Professional Regulation, Division of Alcoholic Beverages & Tobacco v. Broward Vending, Inc. , held that the machine at issue there was a prohibited gambling device because the element of chance was inherent in the machine itself given that it was set to record a certain win/loss ratio. 696 So.2d 851, 851-52 (Fla. 4th DCA 1997) ; see also Hernandez v. Graves , 148 Fla. 247, 4 So.2d 113, 114 (1941) (en banc) (concluding that the machine at issue was a slot machine because its operation involved an element of chance; specifically, "its operation as the result of the insertion of a coin involves an element of chance for the operator to win a stated cash prize if he correctly answers an unknown or unpredictable question in twenty seconds after it is disclosed by the machine, or to lose the coin inserted in the machine if the player does not, within twenty seconds after it is shown, correctly answer an unpredictable question posed by the machine and not known to, or controlled by, the player"); In re Forty-Seven Video Redemption Games , 799 So.2d 221, 222 (Fla. 2d DCA 2001) (deciding whether certain "machines operated 'by reason of any element of chance' so as to fall within the definition of a slot machine in section 849.16" and finding that "the testimony provided a sufficient probability to warrant a reasonable belief that there was an element of chance inherent in the Florida Skill machines").

Turning to the present cases, the resolution of the issue of whether Version 67 is an illegal slot machine under section 849.16(1) turns on whether the user may receive something of value "by reason of any element of chance or any other outcome unpredictable by the user." See § 849.16(1), Fla. Stat. The element of chance or unpredictability must be inherent in the machine itself. See Deeb , 53 So.2d at 874-75 ; Broward Vending, Inc. , 696 So.2d at 851-52.

On appeal, the parties do not dispute that the remaining statutory elements of consideration and award of something of value are present in Version 67, that the game does not involve skill, or that the statutory presumption that the game is a slot machine applies. It is further undisputed that Version 67 has a mandatory preview feature that accurately displays the outcome of the game at hand before that game is played and before money for that game is inserted. However, it is also undisputed that Version 67 displays images of games of chance, that it has a preset win/loss ratio, that it utilizes an RNG to randomly select the outcome from a pool of millions of potential outcomes, and that the outcome of Game 2 is unknown at the time Game 1 is played.

Appellants' position is that the preview feature removes any element of chance or unpredictability because the player knows the outcome of the game. In so arguing, Appellants improperly focus on the player's knowledge instead of the machine's operation and seek to define the game as what happens after the player presses the play button, i.e. , the flashing lights and sounds, thereby ignoring the operation of the machine up to the point.

We hold that the trial court was correct in determining that Version 67 is a slot machine because the element of chance is inherent in it given that it has a preset win/loss ratio, see Broward Vending, Inc. , 696 So.2d at 851-52, and that the game outcomes are determined by the machine by chance, via an RNG, and there is nothing the user can do to affect the outcomes. Furthermore, Version 67 is a slot machine for the additional and independent reason that also inherent in it is an outcome unpredictable by the user. While it is true that the user is advised of the outcome of the game at hand ahead of time through the preview feature, the user cannot predict that outcome until it is randomly generated and then displayed by the machine. Nor can the user predict the outcome of Game 2 while playing Game 1. As the trial court recognized, section 849.16's definition of slot machine is satisfied regardless of when the outcome is generated or when it is made known to the user, and nothing in the statute requires that each game be analyzed in isolation without considering its relationship to subsequent games.

Therefore, pursuant to the plain language of section 849.16(1) and well-established case law, Version 67 is an illegal slot machine. Accordingly, we affirm the trial court's judgment.

AFFIRMED .

Wolf and Ray, JJ., concur.

      Prior to the latest amendment to section 849.16, in 2013, the statutory definition of slot machine or device did not include the application of skill and there was no statutory presumption. See § 849.16, Fla. Stat. (1997) ; see also Ch. 13-2, § 4, Laws of Fla. (2013).

      During oral argument, Appellants properly conceded that Version 67 cannot be deemed an "amusement game or machine" as defined in section 546.10. See § 546.10(3), Fla. Stat. (2015) (defining "amusement game or machine" as "a game or machine operated only for the bona fide entertainment of the general public which a person activates by inserting or using currency or a coin, card, coupon, slug, token, or similar device, and by the application of skill, with no material element of chance inherent in the game or machine, the person playing or operating the game or machine controls the outcome of the game"; excluding from the definition games that use or depict slot machine reels or symbols and games in which the player does not control the outcome through skill or where the outcome is determined by factors not visible, known, or predictable to the player; and defining "material element of chance inherent in the game or machine" in part as "[t]he possibility of the player succeeding at the game or accomplishing the player's task is determined by the number or ratio of prior wins or prior losses of players playing the game" or "[a] computer-based or mechanical random number generator or other factor that is not discernible, known, or predictable by the player determines the outcome or winner of the game").