text:
    Kimberly Jane LUNDQUIST, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-413
    District Court of Appeal of Florida, Second District.
    Opinion filed September 7, 2018
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellant.
   PER CURIAM.

Kimberly Lundquist appeals her convictions for sale of methamphetamine within one thousand feet of a place of worship and possession of paraphernalia and her resulting sentences after a jury trial. We affirm Lundquist's convictions without comment. However, on appeal she argues that she is entitled to resentencing before a different judge because the trial court relied on impermissible sentencing factors in imposing her sentence. We agree and reverse.

At sentencing, the State argued that Lundquist was "a consistent drug dealer" and that it could have officers testify that Lundquist had "a predisposition for dealing drugs multiple times to multiple people, not just this one drug sale." Lundquist correctly responded that it was inappropriate for the State to argue uncharged conduct as a basis for sentencing her in this case and testified that she had never sold drugs to anyone outside of the present charges. The State argued that it was not aware of the subsequent sales until trial and that "law enforcement ... [had] information from multiple informants that they can purchase drugs from her as well." Without citing any authority, the State claimed that it was "absolutely allowed to comment on uncharged criminal acts and the case law is clear on that."

This court has repeatedly explained "that incidents of misconduct occurring after the charged offense, some of which did not result in charges or arrests, [are] impermissible sentencing factors." Love v. State, 235 So.3d 1037, 1039 (Fla. 2d DCA 2018) ; see also N.D.W. v. State, 235 So.3d 1001, 1002 (Fla. 2d DCA 2017) (reversing and remanding for a new disposition hearing when the State relied on uncharged misconduct to support its recommended sentence); Mosley v. State, 198 So.3d 58, 60 (Fla. 2d DCA 2015) (same); Hernandez v. State, 145 So.3d 902, 905 (Fla. 2d DCA 2014) ("[U]ncharged crimes cannot be considered when determining a sentence."); Nusspickel v. State, 966 So.2d 441, 445 (Fla. 2d DCA 2007) ("[U]nsubstantiated allegations of misconduct or speculation that the defendant probably committed other crimes may not be relied upon by a trial court in imposing sentence."). And "when a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant's due process rights," committing fundamental error. N.D.W., 235 So.3d at 1002 (quoting Charles v. State, 204 So.3d 63, 66 (Fla. 4th DCA 2016) ); see also Fernandez v. State, 212 So.3d 494, 496 (Fla. 2d DCA 2017) ("[C]onsideration of a constitutionally impermissible sentencing factor is a fundamental error in the sentencing process.").

There is no question that the State's argument that Lundquist was a persistent drug dealer was improper in this case. And "[t]he State bears the burden to show from the record as a whole that the trial court did not consider impermissible factors in rendering its sentence." Love, 235 So.3d at 1039-40 (alteration in original) (quoting Mosley, 198 So.3d at 60 ). When imposing sentence, the trial court stated that it was "taking into account everything, including the evidence here, both aggravating and mitigating" and expressed its surprise that Lundquist did not have additional convictions based on the length of time she had been struggling with addiction. As in Love, the trial court did not specifically mention the uncharged misconduct or identify any specific factors that it considered. Id. at 1040. And here, the State extensively relied on that alleged conduct at sentencing and implied, contrary to law, that the trial court was entitled to consider it in imposing sentence. Accordingly the State has failed to meet its burden to show that the trial court did not consider the impermissible factors when imposing Lundquist's sentence in this case.

Accordingly, we reverse Lundquist's sentences and remand for resentencing before a different judge. See id. (citing Fernandez, 212 So.3d at 497 ).

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

NORTHCUTT, SLEET, and SALARIO, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jorge BETHENCOURT, etc., Appellant, v. Guillermo BETHENCOURT, Appellee.
    No. 3D17-1555
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Wintter & Associates, Christopher Q. Wintter and Christin Coleman Gallardo (Fort Lauderdale), for appellant.
    Billbrough & Marks, P.A. and G. Bart Billbrough, for appellee.
    Before SCALES, LUCK and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Wallace v. Keldie, 43 Fla. L. Weekly D1358, D1359, 249 So.3d 747, ----, 2018 WL 2945556 (Fla. 1st DCA June 13, 2018) ; D.T. v. Fla. Dep't of Children & Families, 54 So.3d 632, 633 (Fla. 1st DCA 2011) ; Elwell v. State, 954 So.2d 104, 105, 109 (Fla. 2d DCA 2007).


author: LINDSEY, J.

text:
    Alisa VARTUMYAN, Appellant, v. Paul BEAN, Appellee.
    No. 3D17-2502
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    David S. Molansky, Miami, for appellant.
    Deborah Terzian, Coral Gables; Ross & Girten, and Lauri Waldman Ross, and Theresa L. Girten, Miami, for appellee.
    Before SCALES, LUCK, and LINDSEY, JJ.
   LINDSEY, J.

Respondent/Mother Alisa Vartumyan appeals the trial court's Supplemental Final Judgment Modifying Parenting Plan and Other Relief (the "supplemental final judgment") entered after an evidentiary hearing by the trial court. In our review of the record, we find no abuse of discretion by the trial court in entering the supplemental final judgment because it is supported by competent substantial evidence. See Sordo v. Camblin, 130 So.3d 743, 744 (Fla. 3d DCA 2014) (affirming a trial court's order modifying a timesharing plan where "the evidence was competent and substantial that there has been a substantial change in circumstances and that the modification is in the best interests of the parties' three children.").

However, this Court lacks jurisdiction to review that portion of Vartumyan's appeal contained in paragraph 7 of the supplemental final judgment in which the trial court orders that "[c]hild support shall be set in accordance with the Guidelines" and "reserves jurisdiction to determine the amount, the retroactive period, if any, and the life insurance to secure support." See Garcia v. Valladares, 99 So.3d 518 (Fla. 3d DCA 2011) (dismissing appeal for lack of jurisdiction where order appealed determined entitlement to costs and attorney's fees but reserved jurisdiction to determine the amount at a future hearing); see also Argento v. Argento, 842 So.2d 182, 184 (Fla. 2d DCA 2003) (declining to review portion of a former wife's appeal from a final judgment of dissolution of marriage where the trial court determined entitlement to attorney's fees and costs but reserved jurisdiction to set the amount).

Affirmed in part; dismissed in part.


text:
    JRS CHARITABLE HOLDINGS, LLC, Appellant/Cross-Appellee, v. The BANK OF NEW YORK MELLON, etc., Appellee/Cross-Appellant.
    No. 3D17-1630
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Roniel Rodriguez, IV, Aventura, for appellant/cross-appellee.
    Akerman LLP, and Nancy M. Wallace and Ryan D. O'Connor (Tallahassee) and William P. Heller (Fort Lauderdale), for appellee/cross-appellant.
    Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
   PER CURIAM.

This is an appeal from a final judgment of foreclosure. We affirm on all points except one. Appellant, JRS Charitable Holdings, LLC, was improperly included in the judgment. Accordingly, we remand with directions that the judgment be amended to remove JRS Charitable Holdings.


author: ROTHENBERG, C.J.

text:
    Fabian PICKETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2871
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   ROTHENBERG, C.J.

INTRODUCTION

Fabian Pickett ("the defendant") appeals from a final judgment of conviction and sentence for attempted second-degree murder with a deadly weapon, witness tampering, and criminal mischief. Specifically, the defendant contends that: (1) he is entitled to a new trial as to the attempted murder charge because the trial court erred by admitting evidence of a collateral armed robbery earlier that day as inextricably intertwined evidence, and the State relied on evidence at trial that was later determined to be false to bolster the credibility of a key witness; and (2) he was entitled to a judgment of acquittal as to criminal mischief because the State failed to prove the charge.

BACKGROUND

The defendant was charged with the attempted second-degree murder with a deadly weapon of his ex-girlfriend, Andrea Smith ("Andrea"), and Andrea's cousin, Robert Smith ("Robert"), witness tampering, and criminal mischief. A summary of the evidence is as follows.

On March 23, 2015, Andrea was living with her cousin Robert and her grandmother, Diane Smith ("Ms. Smith"). When Ms. Smith and Robert returned home that day, Ms. Smith saw the defendant in her yard. Ms. Smith exited the car, reminded the defendant that she had previously told him that he was not allowed on her property, and demanded that the defendant leave. The defendant told Ms. Smith that he just wanted to return Andrea's cell phone. As Ms. Smith was telling the defendant that he would have to return the cell phone to Andrea somewhere else, Andrea exited the house, warned her grandmother that the defendant had a gun, and told her grandmother that the defendant had taken her cell phone while threatening her earlier that day.

The situation rapidly deteriorated. The defendant became angry, loud, and agitated, and Robert exited the car and demanded that the defendant leave. The defendant responded by asking Robert, "who the f*ck are you?" and Robert responded in kind by cursing and calling the defendant names. As the defendant began backing up down the street, he threatened to kill Andrea and her family while Robert continued to curse at the defendant and demand that he leave. When the defendant was three or four houses away, the defendant pulled out a gun and started shooting towards Andrea and Robert. Andrea and Robert ducked and ran back towards their house. At trial, a neighbor testified that he saw the defendant firing a gun five to six times as he was moving backwards; however, he could not see who the defendant was shooting at. That same neighbor later found a bullet in his coconut tree and a couple of bullets in his fence.

The police processed the scene and recovered bullet casings and a cell phone. The police photographed and processed the phone, which was later determined to contain the defendant's DNA. The police, however, never asked Andrea if the cell phone they found at the scene was the phone that the defendant had allegedly taken from her and never examined the phone's content to determine if it was, in fact, Andrea's phone. At trial, when Andrea was shown a photograph of the cell phone that was recovered at the scene, she identified it as her cell phone.

Over defense objection, the State introduced collateral crimes evidence that when Andrea returned home, approximately five hours prior to the charged crimes, she found the defendant there waiting for her. When she arrived, the defendant opened the driver's side door of Andrea's car, pointed a gun to her head, demanded her cell phone, demanded to know where she had been, and threatened to kill her. Andrea dropped her phone. The defendant picked up the cell phone and began searching the phone to see who Andrea had been in contact with. While the defendant was scrolling through Andrea's phone, Andrea put her car in reverse and backed out of the driveway. The defendant stood in front of Andrea's car and pointed a gun at her as she backed away. Andrea drove to a friend's house and called the police. She returned home later that morning, and while in her bedroom, she heard a knock on her window and became scared. When she looked out of her window, she saw the defendant holding up what she believed was her phone and motioning for her to come outside to retrieve her phone. Andrea did not go outside because she was afraid the defendant was still armed with a firearm.

The jury found the defendant guilty of the attempted second-degree murder of Robert, witness tampering, and criminal mischief, and acquitted the defendant as to the attempted murder of Andrea. The trial court sentenced the defendant to a twenty-year minimum mandatory prison term for the attempted murder and witness tampering charges, with a fifteen-year minimum mandatory habitual offender enhancement and a twenty-year minimum mandatory firearm enhancement. The defendant was also sentenced to sixty days in jail on the criminal mischief count.

After the trial, when it was discovered that the cell phone found at the scene belonged to the defendant, not to Andrea, the defendant moved for a new trial claiming that his due process rights were violated. The motion was denied, and this appeal followed.

ANALYSIS

I. Admission of Collateral Crimes Evidence

The defendant contends that the trial court erred by allowing the State to introduce evidence of the defendant's armed robbery of Andrea that occurred five hours prior to the shooting. Specifically, the defendant argues that the collateral crimes evidence was neither necessary, nor relevant, for the jury to understand the sequence of events. The State, on the other hand, claims that the collateral crimes evidence was properly admitted as relevant and inextricably intertwined evidence of events that transpired just a few hours before the incident in question.

Collateral crimes evidence is admissible under section 90.402 of the Florida Statutes if it is a "relevant and inseparable part of the act which is in issue." D.M. v. State, 714 So.2d 1117, 1119 (Fla. 3d DCA 1998) (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.) ). Evidence is inextricably intertwined when the evidence 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 v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006). The trial court's ruling on the admissibility of collateral crimes evidence is reviewed for an abuse of discretion. See Beckman v. State, 230 So.3d 77, 84 (Fla. 3d DCA 2017) (citing Knight v. State, 15 So.3d 936, 938 (Fla. 3d DCA 2009) ).

We have reviewed the record on appeal and find no abuse of discretion. The evidence of the earlier confrontation between Andrea and the defendant, just a few hours prior to the charged offenses, was relevant and necessary because it helped explain the entire context out of which the charged offenses arose and provided an intelligent account of the events leading to the charged offenses. The evidence explained why the defendant was at the house, the broken relationship between the defendant and Andrea, the defendant's obsessive behavior towards Andrea, why he over-reacted when he saw Robert (another male who he did not know) at Andrea's house, and why Andrea felt intimidated when the defendant repeatedly called her from jail to ask her to drop the charges. The evidence of the defendant's armed robbery of Andrea was, therefore, properly admitted as inextricably intertwined evidence.

II. The False Identification of the Cell Phone Found at the Scene

The defendant contends that he is entitled to a new trial based on the State's reliance at trial that the cell phone found at the scene was Andrea's phone, where it was later determined that the cell phone found at the scene was the defendant's cell phone, not Andrea's cell phone. The defendant claims that this evidence was material because it was used to bolster the credibility of Andrea-a key witness. The State claims that the defendant failed to properly preserve this issue because the challenge raised below was as to the sufficiency of the evidence, and even if properly preserved, the defendant is not entitled to a new trial.

The introduction of false evidence at trial is examined under the test articulated by the United States Supreme Court in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Generally, a court's decision with respect to a Giglio claim is a mixed question of law and fact, and a reviewing court will defer to the lower court's factual findings if they are supported by substantial competent evidence. Tennyson v. State, 43 Fla. L. Weekly D775, D776, 254 So.3d 510, ----, 2018 WL 1734490 (Fla. 3d DCA Apr. 11, 2018) (citing Suggs v. State, 923 So.2d 419, 426 (Fla. 2005) ). The trial court's application of the law to the facts is reviewed de novo . Sochor v. State, 883 So.2d 766, 785 (Fla. 2004). Unpreserved claims of false testimony, however, are reviewed for fundamental error. Tennyson, 254 So.3d at 518. Fundamental error is that which "reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Caraballo v. State, 39 So.3d 1234, 1249 (Fla. 2010) (quoting Brooks v. State, 762 So.2d 879, 899 (Fla. 2000) ).

A Giglio violation is established by showing that: (1) the testimony provided was false, (2) the prosecutor knew the testimony was false; and (3) the false statement was material. Guzman v. State, 941 So.2d 1045, 1050 (Fla. 2006). In other words, a Giglio claim is based on the prosecutor's knowing presentation of false testimony against the defendant. Giglio, 405 U.S. at 154-55, 92 S.Ct. 763. If the first two prongs of Giglio are established, the State bears the burden of demonstrating that the false evidence was immaterial by demonstrating beyond a reasonable doubt that the false testimony did not affect the verdict. Guzman, 941 So.2d at 1050-51. In other words, in assessing the materiality prong, the court must determine whether there is any reasonable possibility that the error contributed to the conviction. Id.

The Giglio standard was not met in this case. First, nothing in the record suggests that either Andrea, or the State, knowingly presented false testimony. Andrea was only shown a picture of the cell phone found at the scene which, based upon the picture she was shown, she believed to be the cell phone the defendant had taken from her earlier that day. Andrea's belief that the phone depicted in the photograph was her cell phone was reasonable as the defendant had taken her cell phone from her earlier that day; he appeared at her bedroom window and held up a cell phone which she was led to believe was her cell phone, and the defendant motioned for her to come outside to retrieve it; and the defendant told Andrea's grandmother that he was at the house to return Andrea's cell phone to her.

Andrea's mistaken identification was not material. Whether the dropped cell phone found at the scene was the defendant's or Andrea's neither proves nor disproves the earlier robbery of Andrea's phone. The fact that Andrea believed that the phone the defendant showed her at her bedroom window was hers was relevant as to Andrea's belief that the defendant was using the phone, which looked like her phone, to lure her into going outside. At trial, Andrea testified as follows:

Q: Okay. So, Andrea what happens when you're in your bedroom?
A: I hear a knock on the window.
Q: Did that knock scare you?
A: Yes, it did.
Q: And who is at the window when you look[ed] at the window?
A: Mr. Pickett.
Q: And what was he holding up to you at that point?
A: My cell phone.
....
Q: What is Mr. Pickett doing with your cell phone?
A: He is basically holding it to the window like come outside and get your phone.
Q: Okay. And is he telling you come outside if you want your phone? How is he telling you -
A: Like I'm gonna give you your phone, babe, come outside so you can get your phone.

Thus, the ownership of the cell phone found at the scene was only minimally relevant. The defendant does not dispute that he was at the house, he dropped a cell phone at the scene, and he fired a firearm six times in Robert's direction. Thus, the ownership of the cell phone found at the scene had little, if any, relevance as to whether the defendant had a reasonable belief that his use of deadly force against Robert was necessary.

We also note that the defendant testified that the phone recovered at the scene was his cell phone, and the detective who impounded the phone at the scene testified that: he never turned the phone on; he did not show the phone to Andrea; he never ran a forensic analysis on the phone to determine the phone number attached to the phone; the defendant's DNA was found on the phone; and he believed the phone was the defendant's cell phone.

Although, the defendant was unable to prove that the cell phone was his at trial because there was no battery in the phone and the phone could not be turned on, the evidence at trial certainly casted doubt that the phone that was dropped at the scene was the cell phone the defendant had taken from Andrea earlier that day. But, as already noted, whether the phone dropped was the phone taken from Andrea was immaterial as to whether the defendant was justified in using deadly force.

Thus, although the earlier armed confrontation between the defendant and Andrea, where the defendant took Andrea's phone in order to see who she was communicating with, was highly relevant to explain why he had returned and acted so violently when he saw a man he did not know show up at Andrea's house, the ownership of the cell phone dropped by the defendant during his confrontation with Robert was only minimally relevant, as the defendant could easily have been in possession of both phones at the time, and merely dropped his own cell phone. Because the defendant failed to establish a knowing presentation of false evidence or materiality, we conclude that no Giglio violation was proven and no fundamental error occurred. The trial court, therefore, did not abuse its discretion by denying the defendant's motion for a new trial.

III. Witness Tampering

The defendant contends that the State failed to prove witness tampering, and thus he is entitled to a judgment of acquittal as to that offense. Although the evidence establishes that the defendant attempted to obtain Andrea's sympathy in order to convince her to sign a non-prosecution affidavit, he claims that these attempts do not constitute witness tampering because there is no evidence of threats or intimidation and Andrea's subjective perception that she felt intimidated is not enough to support a conviction of witness tampering.

Because the defendant raised this issue in a motion for judgment of acquittal, we review the trial court's order denying the motion de novo to determine whether the evidence, viewed in the light most favorable to the State, is legally sufficient to support the jury's verdict. Izquierdo v. State, 177 So.3d 1018, 1020 (Fla. 3d DCA 2015) (citing Irizarry v. State, 905 So.2d 160, 165 (Fla. 3d DCA 2005) ). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain the conviction. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002) (citing Banks v. State, 732 So.2d 1065 (Fla. 1999) ). Upon review, we conclude that the record evidence is legally sufficient to support the jury's verdict and the defendant's conviction.

The defendant was charged with witness tampering in violation of section 914.22(1) of the Florida Statutes. Section 914.22(1)(a), Florida Statutes (2015), prohibits the use of intimidation, physical force, or threats with "the" intent to cause or induce any person to ... [w]ithhold testimony ... from an official investigation or official proceeding." The State may establish that a person intends to cause, or induce another to withhold testimony, by circumstantial evidence. State v. Atkinson, 490 So.2d 1363, 1365 (Fla. 5th DCA 1986). Whether a statement or other communication constitutes a true threat that has the probable consequence of causing reasonable apprehension in the hearer is a question of fact for the jury . Gill v. State, 622 So.2d 92, 93-94 (Fla. 2d DCA 1993) (citing United States v. Wilson, 565 F.Supp. 1416 (S.D. N.Y. 1983) ) (emphasis added).

In support of his position, the defendant cites to Banegas-Membran v. State, 182 So.3d 865 (Fla. 4th DCA 2016), where the defendant was charged with four counts of sexual crimes against a minor. Id. at 867. While in custody awaiting trial, the defendant sent a letter to his ex-girlfriend, the mother of the alleged victim. Id. at 867. In the letter, the defendant stated: "[S]top, don't do nothing else, just [don't] talk to anybody.... [Y]our silence is all I ask you." Id. The defendant tried to manipulate the victim's mother by telling her that if the case went to trial, "everybody [would] find out," and she would be "in the eye of a hurricane" fighting for custody of her children. Id. He concluded the letter by stating that such a scenario would "break [his] heart" because, in his opinion, the children belonged with her. Id. In that case, the defendant's communication was limited to that one letter. On that record, the Fourth District Court of Appeal reversed the conviction for witness tampering finding that that "tugging at the heartstrings" of the witness did not constitute intimidation because intimidation necessarily includes an element of fear. Id. at 869.

Banegas-Membran is easily distinguishable from the instant case. First, the defendant's one letter to the alleged victim's mother in Banegas-Membran pales in comparison to the defendant's repeated phone calls to Andrea-both prior to his arrest and after his apprehension. The facts of this case are more parallel to those in Pollen v. State, 834 So.2d 380 (Fla. 3d DCA 2003). In Pollen, the defendant was arrested for shoplifting. As he was taken into custody, he told the store's security guard, "I am going to come back and see you." Id. at 382. A few days later, as promised, the defendant returned to the store. Id. The security guard felt threatened and considered not testifying. Id. Because the defendant had no legitimate reason to return to see the security guard, this Court concluded that his statement, coupled with his actual return to the store, could reasonably be interpreted as a threat and a concerted effort by the defendant to dissuade the witness from testifying. Id. at 383-84.

Here, it was not unreasonable for Andrea to feel intimidated and be apprehensive. The defendant called Andrea repeatedly, even using subterfuge to get her to answer her phone, in his attempt to convince her to come to court and drop the charges. Prior to the defendant's arrest, the defendant called Andrea and asked her to meet him. Although Andrea agreed to meet him, she was so concerned that she contacted the police and advised them about the phone call, after which the defendant was apprehended and arrested. After his arrest, the defendant continued calling Andrea from jail. Andrea testified that she accepted one jail-house phone call from the defendant, and then asked him to leave her alone. Instead of "leaving her alone," the defendant began calling Andrea via three-way calling, so as to conceal where the phone calls were originating from. Andrea testified that when she realized it was the defendant calling her, she would hang up. Undeterred, the defendant would then have other individuals call Andrea using different phone numbers.

During the trial, the State presented an audio recording of one of the jail-house phone calls between the defendant and Andrea. The following are excerpts of statements made by the defendant during the phone call.

Baby can you do that for [me] can you come to court for me Monday?
....
Listen baby, listen man, I can't do that much time man. You feel me like, I'm telling you I'll straighten you out or whatever, whatever... [you] want my ol' girl....
....
Bae listen, can you come to court for me Monday? Please man, and once they, once they drop the charge ....
Bae listen, it's [sic] them detectives is not gonna be in court Monday. [None] of them is gonna be in court Monday, all you gotta do is bring your I.D. [Just] listen man I gotta get outta town. I gotta get up there with my mom ... like come on man, we [got] a bond hearing, how the fuck they gone [sic] give me a counter offer at [a] bond hearing like ... Come on man, I can't do no sixty years man. My mom old, you feel me like, bae this shit just tearing me apart ....
....
Hey[,] but listen baby, can you please come through Monday for me man and bring your I.D. and let them know you is not trying to pursue my charges or whatever, they gone drop that shit and umma get my bond and I'll be able to bond out and go back to my mom[,] please ....
....
Huh, yeah man, listen call [her] or whatever. She['s] [going to] send you whatever, holler at her man....

At trial, Andrea testified that she felt that the defendant was trying to bribe her by telling her that his "ol' girl," i.e., his mother, would pay her or give her whatever she wanted. She testified that she felt intimidated and scared going forward with the case because the defendant called her so many times. When viewed in isolation, the defendant's unwanted phone calls using sweet words could be viewed as an attempt to obtain sympathy by tugging at Andrea's heartstrings. However, these calls when viewed in context and in connection with the collateral crimes evidence of the defendant holding a gun to Andrea's head and threatening to kill her and his subsequent shooting at Andrea's family member, supports Andrea's fear of the defendant and the jury's verdict that the defendant's phone calls to Andrea constitute witness tampering under section 914.22(1)(a).

IV. Criminal Mischief

Lastly, the defendant contends that his conviction for criminal mischief cannot stand as the State failed to establish that he intended to shoot at the neighbor's property. Although we agree with the State that the defendant failed to properly raise this issue below and therefore, this issue may only be reviewed for fundamental error, we conclude that fundamental error was established here. In defining the scope of the fundamental error doctrine, the Florida Supreme Court has explained that a fundamental error is one that "goes to the foundation of the case or goes to the merits of the cause of action." Jaimes v. State, 51 So.3d 445, 448 (Fla. 2010) (quoting Sanford v. Rubin, 237 So.2d 134, 137 (Fla. 1970) ). Although the general rule requiring a contemporaneous objection applies to error based on the insufficiency of the evidence, there are limited categories of errors that are fundamental: (1) errors committed in death penalty cases and; (2) instances where the evidence is totally insufficient as a matter of law to establish the commission of a crime. F.B. v. State, 852 So.2d 226, 229-30 (Fla. 2003). The latter category applies here.

Pursuant to section 806.13(1)(a) of the Florida Statutes, a person commits the offense of criminal mischief if "he or she willfully and maliciously injures or damages by any means real or personal property belonging to another ...." Upon consideration of section 806.13, this Court has repeatedly recognized that when a defendant acts with malice toward another person, rather than toward property, that malice does not transfer to the property. See M.H. v. State, 936 So.2d 1, 5 (Fla. 3d DCA 2006) ; see also Walker v. State, 154 So.3d 448, 450 (Fla. 3d DCA 2014). Our sister courts have reached the same conclusion. See Sanchez v. State, 909 So.2d 981, 985 (Fla. 5th DCA 2005) (finding that the failure to show proof that a defendant specifically intended to damage or destroy the property in question is fatal to a conviction for criminal mischief); see also Stinnett v. State, 935 So.2d 632, 634 (Fla 2d DCA 2006) (finding that the intent to damage the property of another does not arise by operation of law where the defendant's true intention was to cause harm to the person of another).

Viewing the evidence in the light most favorable to the State, nothing in the record suggests that the defendant acted with malice toward the neighbor's property. Rather, the State alleged, and the jury found, that the defendant shot at, and attempted to kill Robert-thus, negating any argument that the shots fired by the defendant were directed at the neighbor's property. Accordingly, we find that the trial court erred by denying the defendant's motion for judgment of acquittal on the criminal mischief charge and, therefore, we reverse as to this count.

CONCLUSION

Consistent with the above, we find that: (1) the trial court did not abuse its discretion by admitting the collateral crimes evidence; (2) Andrea's testimony identifying the cell phone recovered at the scene as hers did not violate the defendant's due process rights; (3) the State presented competent and substantial evidence that the defendant committed witness tampering; and (4) the State failed to prove that criminal mischief was committed.

Affirmed in part; reversed in part.


author: SUAREZ, J.

text:
    Elsa CHACON, etc., Appellant/Cross-Appellee, v. PHILIP MORRIS USA, INC., Appellee/Cross-Appellant.
    No. 3D16-2330
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    The Alvarez Firm, and Alex Alvarez and Phillip E. Holden, Coral Gables; Rossman, Baumberger, Reboso & Spier, P.A., and Charles H. Baumberger, Miami; Brannock & Humphries, and Celene H. Humphries, Shea T. Moxon, Maegen P. Luka, and Thomas J. Seider (Tampa), for appellant/cross-appellee.
    Shook, Hardy & Bacon L.L.P, and Frank Cruz-Alvarez and Alexandra Bach Lagos, Miami; Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael (Washington, D.C.), for appellee/cross-appellant.
    Before SUAREZ, SCALES, and LUCK, JJ.
   SUAREZ, J.

Elsa Chacon ("Chacon"), as the Personal Representative of the Estate of her husband Robiel Chacon, brought a wrongful death action against Philip Morris. Chacon brings this appeal from an adverse final judgment in favor of Philip Morris. This appeal presents a legal issue of first impression for the Engle line of tobacco cases, which issue is the proper interpretation of the phrase "[a]ll Florida citizens and residents" as used in R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 40 (Fla. 3d DCA 1996) (hereinafter " Engle I"), to initially define the members of the Engle class.

In her Complaint below, Chacon alleged Mr. Chacon qualified as an Engle class member as defined in Engle v. Liggett Group, Inc., 945 So.2d 1246, 1256 (Fla. 2006) (hereinafter " Engle III") (citing Engle I, 672 So.2d at 40, 42 ) and that as such, Philip Morris was responsible for his death under multiple theories of liability. Philip Morris argued Mr. Chacon did not qualify as an Engle class member and therefore the suit could not be maintained. The dispositive issue at trial, and here on appeal, is whether to initially qualify as an Engle class member Chacon was required to prove that Mr. Chacon was both a citizen and a resident of Florida at the time his smoking-related disease was manifested or diagnosed, or was only required to prove that Mr. Chacon was either a citizen of Florida or a resident of Florida at the relevant time.

We hold that, in order to initially qualify as an Engle class member, a plaintiff must prove that the deceased was either a citizen of Florida or a resident of Florida at the time of manifestation or diagnosis. We therefore reverse and remand for a new trial, finding the trial court erred by instructing the jury that, as an initial requirement to qualify as a member of the Engle class, Chacon was required to prove that Robiel Chacon was both a citizen and a resident of Florida. Additionally, we affirm on Philip Morris's cross-appeal as we find the trial court gave the correct jury instructions defining the terms "citizen" and "resident."

The main issue in this appeal, which was hotly contested below, is the question of the proper interpretation of the initial phrase in the definition of Engle class membership. The Engle class is defined as: "[a]ll Florida citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine." Engle I, 672 So.2d at 42. Philip Morris contended at trial and now on appeal that this language required Chacon to initially prove that Mr. Chacon was both a citizen and a resident of Florida. Chacon argues that the phrase "all Florida citizens and residents" required her to only prove that Mr. Chacon was either a citizen or resident of Florida. At the charge conference, the trial court denied Chacon's renewed request to provide the jury with the either/or wording (either a citizen or a resident), and over Chacon's objection the trial court accepted Philip Morris's proposed jury instruction requiring Chacon to prove that the deceased was both a Florida citizen and a Florida resident as an initial requirement for Engle class membership. The trial court also instructed the jury on the meaning of the term "citizen" and the term "resident," and gave the jury a list of factors it could consider in determining whether Mr. Chacon met the definition of a "citizen" and the definition of a "resident" of Florida. Consequently, in answer to the verdict form question, "[w]as Robiel Chacon a citizen and resident of Florida when his lung cancer was diagnosed on June 3, 1994, or when his lung cancer first manifested," the jury answered "no." By answering in the negative, the jury concluded that the deceased was not both a Florida citizen and a Florida resident, and thus the jury did not proceed further to consider any of the remaining Engle class membership requirements, i.e., when the disease manifested or was diagnosed, and whether that manifestation or diagnosis occurred prior to the Engle class membership cutoff date of November 21, 1996.

Generally, a trial court's rulings on jury instructions are reviewed for abuse of discretion. See St. Paul Mercury Ins. Co. v. Coconut Grove Bank, 106 So.3d 452 (Fla. 3d DCA 2009). Where, however, as here, the analysis turns on a pure question of law, our standard of review is de novo. See Bosem v. Musa Holdings, Inc., 46 So.3d 42, 44 (Fla. 2010) (stating that pure issues of law are reviewed de novo); Philip J. Padovano, Florida Appellate Practice § 19:2 at 358 n. 5 (2013 ed.).

The language in Engle"all Florida citizens and residents" is the preamble to the actual qualifications for class membership. See Engle III, 945 So.2d at 1274 ; Engle I, 672 So.2d at 42. No case in Florida has specifically addressed the singular issue presented here, whether the "all [Florida] citizens and residents, and their survivors" language of Engle must be interpreted to require a plaintiff to prove that the deceased was both a citizen and a resident of Florida at the pertinent time, or be interpreted to require a plaintiff to prove only that the deceased was either a citizen of Florida or a resident of Florida at the pertinent time. Based on our analysis, we find that the proper interpretation requires a plaintiff to prove only that the deceased was either a citizen of Florida or a resident of Florida at the time the smoking-related disease manifested or was diagnosed.

Our analysis of the phrase "all Florida citizens and residents" turns on the use of the single word "and" in that phrase. Authorities agree that the word "and" can be used in the several sense (A and B, jointly or severally) or in the joint sense (A and B, jointly but not severally). If it is used in the several sense, as argued by Chacon, then it must be proven that the deceased was either a citizen of Florida or a resident of Florida at the time his disease manifested or was diagnosed. If used in the joint sense, as argued by Philip Morris, then it must be proven that the deceased was both a citizen of Florida and a resident of Florida at the time his smoking-related disease manifested or was diagnosed.

Professor Reed Dickerson, in The Difficult Choice Between "And" and "Or" explains the several use of "and" as follows:

Observation of legal usage suggests that in most cases "or" is used in the inclusive rather than the exclusive sense, while "and" is used in the several rather than the joint sense .... This does not say that "and" means "or". It says that whether you use "and" or "or" in such a case depends upon whether you identify the affected persons by enumerating the several classes into which they may fall or by enumerating their qualifying characteristics.

46 A.B.A.J. 310, 311 (1960), reprinted in Articles by Maurer Faculty. Paper 1496. http://www.repository.law.indiana.edu/facpub/1496 (footnote omitted). Although the concept is subtle, the words "citizens" and "residents" as used in the phrase "all Florida citizens and residents" clearly identify those classes of persons in Florida who can initially be included in the Engle class. Therefore, from a legal writing standpoint the "and" as used in the phrase "all Florida citizens and residents" enumerates the two separate classes of persons-citizens and residents-each of which is included in the Engle class. See id.

In addition, the adjectives "all" and "Florida" modify the nouns "citizens" and "residents," so that the phrase is to be read as "all Florida citizens," and "all Florida residents"-one can be a citizen, a resident, or both. See Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 121 (West 2012) (explaining the series-qualifier canon). If the phrase was intended to be read in the joint sense, it would have been written that way, i.e., "All Florida citizens who are also residents ..." See id. at 121.

Keeping this in mind, we now turn to the use of the phrase as found in many of the Florida Engle progeny cases, particularly those cited by both parties in their briefs. The issue in most of those cases concerned the manifestation or diagnosis timing element of Engle class membership and not the discrete interpretation of the phrase "all Florida citizens and residents." We turn to these and other cases solely for guidance to see whether those courts treated the word "and" in the phrase "all Florida citizens and residents" as joint (and) or several (or). It is interesting to note that in the context of each of the cases cited, the various district courts of appeal use the word "and" interchangeably with the word "or," showing an understanding that the interpretation of the phrase is several (the deceased is either a citizen or a resident) and not joint (the deceased is both a citizen and a resident).

In Rearick v. R.J. Reynolds Tobacco Co., 68 So.3d 944, 945 (Fla. 3d DCA 2011), the qualification for membership in the Engle class "requires plaintiff to show that the decedent was a resident of the state of Florida at the time of a 'medical diagnosis' of a smoking-related disease or at the time evidence of the causal relationship of the cause of action had [otherwise] manifested itself." (citing Engle III, 945 So.2d at 1274 ). The Rearick Court determined that the decedent was "not a Florida citizen or resident when she was diagnosed," and that there was no record that her lung cancer manifested "while a resident of Florida." Id. at 945-46 (emphasis added). There is no discussion or suggestion in Rearick that the decedent also had to be a Florida citizen, or whether, in fact, she ever was one. Rearick is a case about the timing of the manifestation of the disease and where the deceased was residing at the time (Illinois or Florida). The discussion in Rearick concludes with "not a Florida citizen or resident." Id. at 945 (emphasis added).

In Bishop v. R.J. Reynolds Tobacco Co., 96 So.3d 464, 468 (Fla. 5th DCA 2012), the court held, "[w]e believe it necessarily follows that inclusion in the Engle class requires Florida residence or citizenship when the disease or condition first manifests itself, not at the time of death." (citing Rearick, 68 So.3d at 945 ) (emphasis added). Bishop, too, is a case about the timing of manifestation and diagnosis, but in discussing the Engle class requirement, the decision uses the word "or" and not the word "and." In Damianakis v. Philip Morris USA, Inc., 155 So.3d 453, 467-68 (Fla. 2d DCA 2015), the court concluded, "[a]s long as an individual was a citizen or resident of Florida as of the cutoff date of November 21, 1996" and manifested the smoking related illness on or before that date, then "he or she satisfies the residency and citizenship requirement of Engle class membership." (emphasis added). Further, that court noted,

However, we disagree with the suggestions contained in both of these opinions that in order to qualify as an Engle class plaintiff, a claimant must have been a citizen or resident of Florida at the time his or her smoking-related illness manifested itself. Without a doubt, an individual cannot be a member of the Engle class if his or her smoking-related illness first manifested after November 21, 1996 (the cut-off date), regardless of whether that person was a Florida resident at the time. However, it does not follow that because a person's smoking-related illness first manifested before that person became a Florida resident, he or she is excluded from the class. On the contrary, the only requirements for membership in the Engle class are that (1) the individual's smoking-related illness manifested before the cut-off date, (2) he or she was a resident or citizen of Florida on or before the cut-off date, and (3) the individual's smoking-related illness resulted from the individual's addiction to cigarettes containing nicotine.

Id. at 462 (emphasis added). Once again, this case is more about the timing of the disease manifestation. See also R.J. Reynolds Tobacco Co. v. Ciccone, 190 So.3d 1028, 1040 (Fla. 2016) ("There remain numerous limitations on the scope of the class, including the statute of limitations, the one-year time bar set forth by this Court for filing an individual action based on Engle, Florida residency, and the requirement we address here that the smoker 'ha[d] suffered' or be 'presently suffering' from a tobacco-related disease or medical condition at the time the class was recertified by the trial court.") (emphasis added); Lorillard Tobacco Co. v. Mrozek, 106 So.3d 479, 481 (Fla. 1st DCA 2012) ("Ms. Miller, a Florida resident, began smoking in the 1940s and continued smoking until her death in December 1994. She was addicted to the nicotine in the cigarettes she smoked. From these facts, the trial court determined that Ms. Miller-and thus, Mrozek-satisfied the Engle class definition, and that there remained no disputed factual issues to send to the jury.") (emphasis added).

The conclusion we reach after closely examining both the use of legal language and the Engle progeny cases is that the trial court in this litigation incorrectly interpreted the Engle class definition as requiring proof of both citizenship and residency. The case law in Florida demonstrates the prefatory phrase "all citizens and residents" is to be read to allow access to Engle class membership to those who can establish either status - those who were Florida residents on the one hand, or those who were Florida citizens, on the other. Satisfying either Florida citizenship or Florida residency is sufficient to allow a plaintiff to then proceed to prove the timing of the manifestation or diagnosis of the smoking-related illness in relation to the Engle class membership cutoff date of November 21, 1996.

For these reasons we reverse the Final Judgment below and remand for a new trial in which Elsa Chacon will be allowed to prove that Mr. Chacon was either a citizen or a resident of the State of Florida within the "manifestation or diagnosis" timeframe established by Engle, with the jury to be instructed accordingly.

Because we are reversing and remanding for a new trial, we address Philip Morris's cross-appeal of the trial court's instructions to the jury regarding the definitions of residency and citizenship. The trial court, over Philip Morris's objection, instructed the jury that the definition of "residence" is, "[a]ny place of abode or dwelling place constitutes a 'residence,' however temporary it may be." Philip Morris objected to the "however temporary" language, contending that the proper standard to determine residency is "legal residency." Philip Morris contends that a person is a "legal resident" if he or she lives in a place and has no present intention of leaving. See Maldonado v. Allstate Ins. Co., 789 So.2d 464, 467 (Fla. 2nd DCA 2001). The Maldonado case upon which Philip Morris takes its main argument, however, further explained,

"Any place of abode or dwelling place constitutes a 'residence,' however temporary it may be, while the term 'domicile' relates rather to the legal residence of a person, or his home in contemplation of law. As a result, one may be a resident of one jurisdiction although having a domicile in another." Further, "residency" can allow for temporary "residence" in an "abode," as compared to a home.
Although domicile and residency are often used interchangeably, they are different legal concepts. A "domicile" is a person's home. A person has a domicile at all times. In some contexts, the phrase "legal residency" may be used in lieu of "domicile."
"Citizenship," on the other hand, is a more clearly defined concept for purposes of one's status and membership in the United States of America. Citizenship implies membership in a community from which one receives a grant of certain political rights and privileges and is often based upon one's connection to the jurisdiction by birth or naturalization. In the context of citizenship in Florida or any other state, the term is often comparable to domicile or legal residence. Residency is not equivalent to citizenship, and the relationship between one's national citizenship and one's residency is tenuous at best.

Id. at 467-68 (citations omitted, emphasis added). Being a "resident" for Engle class membership purposes has a different meaning from "legal resident" or "domicile" - terms that typically arise out of a statutory context - and we decline to equate the two terms. We conclude that the trial court properly instructed the jury regarding the distinction between "resident" and "citizen," and affirm on Philip Morris's cross-appeal.

Appeal reversed and remanded; the issue on cross-appeal is affirmed.

      The Appellant's husband, Robiel Chacon, died from lung cancer after years of smoking Philip Morris cigarettes. Mr. Chacon was born in Cuba. He started smoking when he was eleven or twelve years old. In 1958, when Mr. Chacon was eighteen or nineteen, he left Cuba and moved to New York. Soon after Mr. Chacon arrived in New York, he began smoking Marlboro, a Philip Morris brand, eventually smoking up to three or four packs a day. In 1987, before the Chacons moved to Miami, Mr. Chacon leased a warehouse and storefront in Hialeah so he could start a new clothing business there. In 1988, the Chacons moved to Miami. They filed for a homestead exemption in Miami-Dade County, registered their car and paid for car insurance there, had their mail delivered to their Miami home, paid for utilities in Miami, and opened bank accounts in Miami. Their children attended Miami-Dade County schools. The Chacons did not keep any residence in New York. Although Mr. Chacon still owned his clothing store in New York, his sister-in-law ran it. Mr. Chacon would periodically return to New York to check on the store and purchase merchandise at auctions to restock it. He also kept his New York driver's license as that made it easier to rent vehicles to transport stock for the New York store. Mr. Chacon was registered to vote in New York, and did not register to vote in Miami-Dade County. In 1994, Mr. Chacon was diagnosed with lung cancer. At that time, he closed the New York store and obtained a Florida driver's license. He passed away in February, 1996.

      For a history of the class action, see R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707, 709 (Fla. 4th DCA 2011).

      Chacon had proposed this instruction on Engle class membership:
      The first issue for your determination is whether Robiel Chacon was a member of the Engle class. For Robiel Chacon to have been a member of the Engle class, Plaintiff Elsa Chacon must prove by the greater weight of the evidence that: ... (2) Robiel Chacon's lung cancer first manifested itself on or before November 21, 1996; and (3) Robiel Chacon was a citizen or resident of Florida on or before November 21, 1996.
      The trial court instead gave this instruction:
      The first issue for your determination is whether Robiel Chacon was a member of the Engle class. To prove that Mr. Chacon was a member of the Engle class, you must determine (1) whether Mr. Chacon was a citizen and resident of Florida when his lung cancer was diagnosed on June 3, 1994, or when his lung cancer first manifested ....

      Engle III, 945 So.2d 1246, 1275 (Fla. 2006) (holding the cut-off date for class membership is November, 21, 1996).

      See discussion, infra, regarding the timing issues not on appeal here.

      Bryan A. Garner, A Dictionary of Modern Legal Usage 624 (2d ed. 1995) (providing that the meaning of the word 'and' can have a several meaning (citing Scott J. Burnham, The Contract Drafting Guidebook 163 (1992) ) ).

      The parties agreed pre-trial that Rearick was binding law as to the timing issue, and preserved their arguments that Rearick was wrongly decided. The parties ask this Court on appeal to "reconsider" Rearick's holding on the timing issue. This issue is not before us, however, because the jury's determination that the deceased was not a citizen and resident of Florida precluded further consideration of the "manifestation" or "diagnosis" issue in relation to the Engle class cutoff date.


text:
    Curtis Lee ROGERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2975
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 14, 2018
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Curtis Lee Rogers appeals his judgment and life sentence imposed following a jury trial. He raises one issue on appeal: the trial court fundamentally erred when it failed to conduct a competency hearing before trial and enter a written order regarding his competency. Based on the record before us, we agree and therefore reverse.

During the pendency of the charges brought against Rogers, defense counsel filed a motion to determine Rogers's competency. The trial court granted the motion and appointed an expert to conduct an evaluation. Following the evaluation, the expert opined that Rogers was competent to proceed. Defense counsel disagreed and requested that a second evaluation be conducted. The State did not object. The record is silent as to what occurred next-it does not reflect that the trial court conducted a competency hearing, nor does it contain a written order finding Rogers competent. Rogers proceeded to trial and was found guilty of robbery with a deadly weapon, aggravated battery, and attempted manslaughter by act.

"A person accused of an offense ... who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent." Fla. R. Crim. P. 3.210(a). "If, at any time after such commitment, the court decides, after hearing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed." Fla. R. Crim. P. 3.212(c)(7). From the record, we are unable to ascertain that the trial court followed the provisions of these rules in this case. The State properly concedes error.

Accordingly, we reverse and remand for the trial court to determine whether it can conduct a nunc pro tunc hearing regarding Rogers's competency at the time of trial. See Rumph v. State, 217 So.3d 1092, 1094-96 (Fla. 5th DCA 2017) ; cf. Reynolds v. State, 177 So.3d 296, 297-99 (Fla. 1st DCA 2015). If it is possible to conduct the hearing, and the court determines that Rogers was competent, then it shall enter a nunc pro tunc written order adjudicating him competent. Rumph, 217 So.3d at 1096 ; Reynolds, 177 So.3d at 299. If, at the hearing, the court determines that Rogers was incompetent, or if the court is unable to conduct a hearing, it shall vacate Rogers's judgment and sentence. Rumph, 217 So.3d at 1096 ; Reynolds, 177 So.3d at 299.

REVERSED and REMANDED WITH INSTRUCTIONS.

COHEN, C.J., and WALLIS, J., concur.

EISNAUGLE, J., concurs and concurs specially, with opinion.

I agree with the majority's opinion; however, I find it unnecessary to reach the issues discussed in footnote 1, and therefore do not join that portion of the opinion.

      Although the trial judge in this case is experienced and well-respected, we remind the judge that counsels' stipulation as to Rogers's competency alone is insufficient to comply with this mandate. Bynum v. State, 247 So.3d 601 (Fla. 5th DCA 2018). However, if Rogers stipulates to the admission of reports reflecting his competency and the court reviews those reports in making an independent determination of his competency, it will have properly afforded Rogers his due process. Hernandez v. State, 250 So.3d 183 (Fla. 3d DCA 2018).


author: KELLY, Judge.

text:
    Lynda Ann ALBRITTON, as personal representative of the Estate of Bobby J. Albritton, deceased, Appellant, v. Joseph BARNESS, Appellee.
    Case No. 2D17-35
    District Court of Appeal of Florida, Second District.
    Opinion filed September 14, 2018
    Roland D. Waller and Jaleh Piran-Vesseh of Waller & Mitchell, New Port Richey, for Appellant.
    Amy E. Stoll and Steve C. Pratico of Barnett, Bolt, Kirkwood, Long & Koche, P.A., Tampa, for Appellee.
   KELLY, Judge.

Lynda Ann Albritton, as personal representative of the Estate of Bobby J. Albritton, appeals from an order dismissing the Estate's action against the appellee, Joseph Barness. We reverse because the trial court erred when it did not allow Bobby Albritton to amend his complaint.

Bobby Albritton, whose Estate was substituted after he died during the pendency of this appeal, brought an action against Barness to foreclose a mortgage. Barness moved to dismiss the complaint and dissolve the lis pendens. The trial court granted the motion without prejudice and dissolved the lis pendens. Albritton then filed an amended complaint, again including a count for foreclosure, and a new lis pendens. However, he also filed a motion for leave to amend, which of course was unnecessary because Barness had not filed a responsive pleading. See Fla. R. Civ. P. 1.190(a) ; Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla. 2005). Barness, who characterized the amended complaint as "unauthorized" because it was filed without leave of court, moved to dissolve the lis pendens and to sanction Albritton for filing it. The trial court granted the motion to dissolve the lis pendens and in the same order denied Albritton's motion for leave to amend the complaint. Albritton sought certiorari review of that order in this court; however, we dismissed the petition for lack of jurisdiction without prejudice for Albritton to appeal if and when the trial court entered a final order disposing of the case. Notably, Albritton's petition cited rule 1.190(a) and Boca Burger in support of his argument that the trial court's order should be quashed because he had the right to amend without leave of court at the time he filed the amended complaint.

After unsuccessfully trying to invoke this court's certiorari jurisdiction, Albritton found himself in a kind of no man's land in that neither the trial court's order granting the motion to dismiss the original complaint nor the order denying leave to amend his dismissed complaint were reviewable in this court, yet those orders precluded him from proceeding in the trial court. Faced with this situation, Albritton asked the trial court to either dismiss the original complaint with prejudice so he could appeal from the dismissal or, alternatively, to reconsider and allow him to amend his complaint "for the reason set forth in the attached Petition for Certiorari." As explained above, in his petition Albritton cited Boca Burger and rule 1.190(a) in support of his argument that he had an absolute right to amend his complaint. The trial court did not relent but instead dismissed Albritton's complaint with prejudice.

In this appeal, Albritton again argues that the trial court erred when it refused to allow him to amend his complaint. One could argue that Albritton invited this error by seeking leave to amend unnecessarily. On the other hand, Barness, in a situation reminiscent of Boca Burger seized on Albritton's mistake when, in seeking to dissolve the second lis pendens, characterized the amended complaint as "unauthorized" because it was filed without leave of court. This more than Albritton's unnecessary request for leave to amend set the stage for the trial court's error. Even on appeal Barness is still trying to thwart Albritton's right to amend by making the same arguments the supreme court unequivocally rejected in Boca Burger. While Albritton perhaps could have been more aggressive when he brought this to the trial court's attention, he did in fact bring it to the trial court's attention and given how things unfolded below, we conclude he did so in a timely manner.

Accordingly, we reverse the order dismissing Albritton's complaint and we remand for further proceedings. In addition, on this court's own motion, counsel for Barness is directed to show cause, within thirty days from the issuance of this opinion, why the Estate's appellate attorney's fees and costs should not be assessed against them as a sanction pursuant to Florida Rule of Appellate Procedure 9.410 and section 57.105, Florida Statutes (2017). See Boca Burger, 912 So.2d at 563 (holding that "an appellate court may, in appropriate circumstances, impose sanctions on an appellee or its lawyer for its frivolous defense of a patently erroneous trial court order" and explaining that counsel's ethical obligation to the court may sometimes "require appellate counsel to concede error where, although trial counsel obtained a favorable result, either the facts were not as represented to the trial court or the law is clearly contrary to the appellee's position and no good-faith basis exists to argue that it should be changed"). We retain jurisdiction for the limited purpose of considering sanctions following our review of Barness's response to this opinion's order to show cause.

BADALAMENTI, J., Concurs.

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

I agree with the majority's decision to reverse the order dismissing Albritton's complaint because he was legally entitled to amend the complaint. I do not join in the decision to order counsel for Barness to show cause as to why attorney's fees should not be assessed against Barness as a sanction. Instead, I would grant the Estate's motion for attorney's fees as prevailing party pursuant to the terms of the mortgage, conditioned on the Estate's ultimately prevailing in the underlying litigation.


author: LaROSE, Chief Judge.

text:
    Caleb FERNANDEZ, DOC #Y39282, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-5100
    District Court of Appeal of Florida, Second District.
    Opinion filed September 14, 2018
    Caleb Fernandez, pro se.
   LaROSE, Chief Judge.

Caleb Fernandez appeals the order denying his motion for jail credit filed under Florida Rule of Criminal Procedure 3.801. We reverse and remand for the postconviction court to strike the motion.

In October 2017, Mr. Fernandez filed a motion seeking "116 days or more" credit for jail time served in the Lee and Collier County jails. The postconviction court denied the motion as successive. The postconviction court attached to its order memoranda submitted by the parties' counsel. It also attached the trial court's late January 2017 order ruling that because Mr. Fernandez's Lee County sentences were ordered to run consecutively to his Collier County sentence, Mr. Fernandez was not entitled to credit for time served in his Lee County case while incarcerated in the Collier County jail awaiting disposition of that case.

Mr. Fernandez's motion was premature. Rule 3.801(a) states: "A court may correct a final sentence that fails to allow a defendant credit for all of the time he or she spent in the county jail before sentencing as provided in section 921.161, Florida Statutes." (Emphasis added.) Mr. Fernandez filed a notice of appeal of his sentence in early June 2017. Thus, at the time he filed his rule 3.801 motion, his direct appeal was pending here. Because Mr. Fernandez's sentence was not yet final, his motion was premature under rule 3.801.

The 2016 commentary to rule 3.801 explains that before a sentence is final, "defendants may avail themselves of all appropriate proceedings to litigate a jail credit issue, including direct appeal if properly preserved, a motion for rehearing, or a motion pursuant to rule 3.800(b)." See Brady v. State, 250 So.3d 803, 804, 2018 WL 3192602 (Fla. 2d DCA June 29, 2018) (holding that a motion seeking credit for jail time served prior to sentencing may be raised in a rule 3.800(b)(2) motion during the pendency of a direct appeal); Ross v. State, 221 So.3d 1290, 1291 (Fla. 1st DCA 2017) (same). Because Mr. Fernandez did not properly file his motion under rule 3.801, the postconviction court should have treated the pro se motion as filed under rule 3.800(b)(2), see Fenter v. State, 632 So.2d 685, 686 n.1 (Fla. 2d DCA 1994) ("[C]ourts have the authority to treat prisoner petitions as if the proper remedy were sought if it would be in the interest of justice to do so."), and stricken it because Mr. Fernandez was represented by counsel in his direct appeal, see Bizzell v. State, 912 So.2d 386, 388 (Fla. 2d DCA 2005) (holding that although the appellant's pro se rule 3.800(b)(2) motion was timely filed, the trial court should have stricken it because the appellant was represented by appellate counsel when he filed it).

Reversed and remanded.

MORRIS, J., Concurs.

LUCAS, J., Concurs with separate opinion.

Inasmuch as Mr. Fernandez's postconviction motion, filed while he was represented by counsel, should have been stricken as a nullity, I concur with the court's decision. Bizzell v. State, 912 So.2d 386, 388 (Fla. 2d DCA 2005) resolves this appeal in its entirety. Because we do not need to parse a procedural rule's commentary to reach the result Bizzell dictates, I respectfully decline to join the remainder of the court's opinion. Cf. Dobson v. Crews, 164 So.2d 252, 255 (Fla. 1st DCA 1964) ("It is the view of the writer of this opinion that an appellate court should confine its opinion to those statements of legal principles necessary for the solution of the particular question or questions involved in the appeal under consideration.").

      Mr. Fernandez's motion can be interpreted as seeking "116 days or more" credit for jail time served between July 2, 2014, and October 28, 2014, while he was incarcerated in the Naples and Lee County jails. We note that Mr. Fernandez did not specify as required by rule 3.801(c)(3)"the dates, location of incarceration, and total time for credit the defendant contends was not properly awarded."

      His direct appeal, case number 2D17-2371, remains pending.


author: Per Curiam.

text:
    Arthur Collin CHERRY, Appellant, v. Katherine Hiett VIKER, Appellee.
    No. 1D16-689
    District Court of Appeal of Florida, First District.
    September 25, 2018
    A. Collin Cherry of The Law Office of Collin Cherry, P.L., Tallahassee, Appellant.
    Emilian "Ian" Bucataru, Tallahassee, for Appellee.
    ON MOTION FOR REVIEW
   Per Curiam.

Appellant filed a motion for review in this Court pursuant to Florida Rule of Appellate Procedure 9.400(c), seeking review of an order awarding Appellee $7,300 in appellate attorney's fees. For the reasons discussed below, we reverse.

In October 2015, Appellant petitioned the trial court to modify a parenting plan and change his child support obligation. During the course of that litigation, Appellee filed a motion seeking temporary attorney's fees, and the trial court awarded her fees totaling $25,000. On appeal of that order, this Court reversed and remanded because the award was not supported by competent, substantial evidence. Cherry v. Viker , 197 So.3d 1292 (Fla. 1st DCA 2016). During the pendency of that appeal, Appellee filed a motion for appellate attorney's fees pursuant to Florida Rule of Appellate Procedure 9.400(b). The same day the opinion issued reversing the temporary fees award, this Court issued an order remanding Appellee's motion for attorney's fees to the trial court. That order authorized the trial court to award appellate attorney's fees to Appellee if she could prove her entitlement pursuant to section 61.16, Florida Statutes, and Rosen v. Rosen , 696 So.2d 697 (Fla. 1997).

On remand, the trial court found that the parties had a relatively equal ability to pay, but held that Appellee was entitled to fees in equity pursuant to Rosen because the appeal was unnecessary. Specifically, the court found that after the appeal was filed, Appellee indicated that if Appellant dismissed the appeal, she would be willing to set aside the order awarding her temporary fees and have another hearing on the matter. The trial court concluded that "[Appellant's] refusal to accept [Appellee's] offer to concede error and set aside the award of temporary fees forced her to incur appellate fees that were unnecessary and could have been avoided."

We review the trial court's order awarding appellate attorney's fees for an abuse of discretion. See Pellar v. Granger Asphalt Paving, Inc. , 687 So.2d 282, 284 (Fla. 1st DCA 1997). We conclude that the trial court abused its discretion when it found that Appellant's conduct was a basis to award appellate attorney's fees.

Section 61.16(1), Florida Statutes, which provides for the award of appellate attorney's fees in family law cases, states in part,

In determining whether to make attorney's fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party's cause is deemed to be frivolous.

Thus, pursuant to section 61.16, the relative financial resources of the parties are the "primary factor" to be considered when determining which party should receive appellate fees. See Rosen , 696 So.2d at 700. However, because proceedings in chapter 61 are "in equity and governed by basic rules of fairness," the court may consider "other relevant circumstances" when awarding fees, including "the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation." Id.

This Court has held that "[a]n award of fees for inequitable conduct should be rare, and must be supported by highly specific findings of fact." Broga v. Broga , 227 So.3d 239, 241 (Fla. 1st DCA 2017).

In finding that the trial court abused its discretion in awarding appellate fees, we note three important factors. First, if Appellant dismissed his appeal, the trial court would not be required to set aside its order just because the parties agreed to set it aside, although it would not be prevented from doing so. See Helmich v. Wells Fargo Bank, N.A. , 136 So. 3d 763, 765 (Fla. 1st DCA 2014) (noting that trial court may revisit non-final, interlocutory orders). If Appellant abandoned his appellate rights, the erroneous order would still be in place. Second, Appellee is not blameless. Cf. Bane v. Bane , 750 So. 2d 77, 79 (Fla. 2d DCA 1999) (reversing award of attorney's fees based on former husband's "misconduct" where "the record indicates ... that the Former Wife was not blameless and her negligence played a part in the way the case progressed"). Appellant's refusal to accept Appellee's offer to concede error did not prevent Appellee from conceding error on appeal in this Court. Had Appellee conceded error, she could have avoided most-if not all-of her appellate attorney's fees. Third, Appellant's appeal was successful, and as a result, he is no longer liable for $25,000 in improperly awarded fees. While the fact that Appellant was successful on appeal alone would not necessarily bar Appellee from receiving attorney's fees based on her relative ability to pay, see Lamolinara v. Lamolinara , 85 So. 3d 1147, 1149 (Fla. 1st DCA 2012), it should be considered in an equitable analysis. Cf. Broga , 227 So. 3d at 241 (reversing award of appellate and trial attorney's fees based on improperly imputed income and noting that "the former husband obtained relief on the merits in the first appeal and again in this appeal, which must be taken into account"). In this instance, the trial court abused its discretion because equity does not warrant requiring Appellant to pay Appellee's appellate attorney's fees. Accordingly, we reverse.

Lewis, Wetherell, and Ray, JJ., concur.

      Appellee argued on appeal that the order was supported by competent, substantial evidence and should be affirmed. She has never made any concession of error before this Court. She also sought enforcement of the order below.


text:
    Hugo Quental BARROS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1181
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 28, 2018
    Lisabeth J. Fryer, of Lisabeth J. Fryer, P.A., Lake Mary, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, Hugo Quental Barros, appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which alleged one claim of newly discovered evidence. In his motion, Appellant alleges that one of the two victims who testified against Appellant at trial has recanted. The trial court summarily denied the motion finding that the recantation is not credible, and that even if it were credible, it is contradicted by the other victim's trial testimony. We reverse, finding that an evidentiary hearing on this claim is necessary.

At Appellant's trial, two witnesses testified that they were shot and identified Appellant as the shooter. Appellant's motion now attaches an affidavit from one of the victims recanting his testimony. The recanting witness alleges that Appellant was not the shooter and that he was forced to identify Appellant as the shooter due to threats from law enforcement.

Florida courts recognize that "recantations are 'exceedingly unreliable.' " Archer v. State , 934 So.2d 1187, 1196 (Fla. 2006) (collecting cases). Thus, when a movant alleges newly discovered evidence in the form of recanted testimony, a movant is entitled to a new trial only if the trial court finds that the recantation is true and that "the witness's testimony will change to such an extent as to render probable a different verdict." Robinson v. State , 736 So.2d 93, 93 (Fla. 4th DCA 1999) (quoting Armstrong v. State , 642 So.2d 730, 735 (Fla. 1994) ). Generally, in such circumstances, an evidentiary hearing is required to evaluate the veracity of the recanting witness. Id.

In this case, the trial court determined the recanting witness's credibility and weighed conflicting testimony based upon the proffered affidavit. Given that the affidavit was not "inherently incredible" nor "obviously immaterial," see Davis v. State , 26 So.3d 519, 526 (Fla. 2009), we conclude that the trial court improperly made these determinations without the benefit of an evidentiary hearing.

As such, we reverse and remand for an evidentiary hearing.

REVERSED and REMANDED.

EVANDER, BERGER and EISNAUGLE, JJ., concur.


author: Osterhaus, J.

text:
    Alden Mitchell HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-575
    District Court of Appeal of Florida, First District.
    October 2, 2018
    Stephen N. Bernstein, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Osterhaus, J.

Alden Mitchell Howard appeals his convictions for attempted felony murder with a firearm, home invasion robbery with a firearm, and possession of a firearm by a felon. He argues that he was wrongly tried with an accomplice and that his motion for severance should have been granted. We affirm, finding no error in the trial court's decision to deny his motion for severance.

I.

In 2015, Mr. Howard and an accomplice robbed an acquaintance of the accomplice at the victim's home. They knocked on the door of the victim's home, and when he answered it, they struck him on the head with a gun and forced themselves inside. Mr. Howard and his accomplice proceeded to overpower and beat the victim into submission, bind him with duct tape, and shoot him in the leg. They also put a pillow over the victim's head, placed a gun to his head, and pulled the trigger. The victim heard a "click, click" noise, but the gun didn't go off. Mr. Howard and his accomplice then fled the residence with drugs and money, leaving the victim bound and bleeding.

Law enforcement later arrested them and they were set for trial together-Mr. Howard by jury trial and the accomplice/co-defendant by bench trial. After discovery, Mr. Howard filed a motion to sever the trials based on the depositions of State witnesses who were former friends and fellow prisoners with the co-defendant in jail. They claimed that the co-defendant made a confession to them at the jail, which implicated both the co-defendant and Mr. Howard in the crimes. But the trial court denied Mr. Howard's motion to sever the trials.

The two witnesses subsequently testified at the trial. The victim also testified, identifying the defendants as his attackers. The jury found Mr. Howard guilty.

II.

On appeal, Mr. Howard argues that the court erred in denying his motion for severance because the testimony of the State's witnesses regarding the co-defendant's apparent confession violated his rights to cross-examination and to confront the witnesses against him.

Florida Rule of Criminal Procedure 3.152(b)(1) directs trial courts to sever the trials of defendants whenever necessary "to promote a fair determination of the guilt or innocence of one or more defendants." "The object of the rule is not to provide defendants with an absolute right, upon request, to separate trials when they blame each other for the crime. Rather, the rule is designed to assure a fair determination of each defendant's guilt or innocence." McCray v. State , 416 So.2d 804, 806 (Fla. 1982). The question of severance is considered on a case by case basis. Id.

In this case, Mr. Howard's motion for severance is based on the Sixth Amendment's Confrontation Clause. Mr. Howard argued that third-party testimony describing the jailhouse confession made by his co-defendant, when his co-defendant was not testifying and couldn't be cross-examined, would deprive him of his right to confront the witnesses against him. The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." It is a procedural guarantee that applies to testimonial statements in both federal and state prosecutions. Pointer v. Texas , 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). And it extends particularly to the confessions of nontestifying criminal defendants admitted into evidence in a joint trial with a co-defendant. See United States v. Bruton , 391 U.S. 123, 135-36, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

But the Sixth Amendment does not prohibit the statements in this case because there are no "testimonial" statements involved here. "Only [testimonial statements] cause a declarant to be a 'witness' within the meaning of the Confrontation Clause." Davis v. Washington , 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ; see also State v. Contreras , 979 So.2d 896, 903 (Fla. 2008). "Testimonial" statements are those made with an expectation of being used in an investigation or prosecution of a crime, for example, those given to a police investigator, to a grand jury, at a preliminary hearing, or at a former trial. See Crawford v. Washington , 541 U.S. 36, 51-52, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The co-defendant's confessional statements in this case were made privately to friends from his neighborhood who were also in jail. In discussing "what he was in for," the co-defendant told the story of his crime to his friends, inculpating both himself and Mr. Howard. With these statements, the co-defendant was not acting as a witness, or giving testimony that would reasonably expected to be used prosecutorially. See Franklin v. State , 965 So.2d 79, 91 (Fla. 2007) (holding that a victim's statements to a friend and co-worker after being shot were nontestimonial).

The Fourth District reached the same result on a similar issue in Brown v. State , 69 So.3d 316 (Fla. 4th DCA 2011). There, the defendant was charged with robbery and murder committed with accomplices. A friend of one the co-defendants testified at trial of a conversation with the co-defendant, in which the co-defendant implicated himself and the defendant in the crimes. Id. at 317. Specifically, the co-defendant described robbing the victims and then shooting them after they refused to comply with directions. Id. The trial judge found the statements admissible because they were made to friends and non-testimonial in nature. We find no error in the trial court's decision reaching the same conclusion here.

Mr. Howard's other argument is that these statements are non-admissible hearsay, which don't qualify under § 90.804(2)(c)'s exception for trustworthy statements against penal interest. It is error to admit a co-defendant's confession that implicates a criminal defendant in the absence of specific guarantees of "trustworthiness." DeWolfe v. State , 62 So.3d 1142, 1144 (Fla. 1st DCA 2011) (quoting Franqui v. State , 699 So.2d 1312, 1318-19 (Fla. 1997) ). In deciding whether to admit hearsay evidence involving a declaration against penal interest, "the trial judge should consider 'the language used and the setting in which the statement was made,' " and "whether the statement is 'consistent with both the defendant's general version of events and the other evidence.' " Id. at 1145 (quoting Masaka v. State , 4 So.3d 1274, 1282 (Fla. 2d DCA 2009) ). Here, the court's order found the circumstances surrounding the co-defendant's statements to demonstrate sufficient trustworthiness. And we agree. In this instance, the co-defendant's statements implicated himself in the vicious attack, and were made voluntarily and privately, out of the presence of investigators, to former friends from his neighborhood. The statements also provided details of the crime which were consistent with the other evidence in the case. Whatever their self-serving qualities, the co-defendant's statements did not shift the blame for the crime to Mr. Howard.

Under these circumstances, the trial court could properly admit the witnesses' testimony about the co-defendant's statements under the hearsay exception for statements against penal interest. See also Machado v. State , 787 So.2d 112, 113 (Fla. 4th DCA 2001) (finding a non-testifying accomplice's statement to be admissible as against penal interest where the corroborating circumstances indicated the statement had particularized guarantees of trustworthiness). We find no error in the trial court's decision to deny Mr. Howard's motion for severance. The witnesses' testimony that Mr. Howard sought to avoid didn't violate the Confrontation Clause, was admissible, and didn't deprive him of a fair determination of his guilt.

III.

For these reasons, Mr. Howard's judgment and sentence are AFFIRMED .

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


text:
    Costa HUGHLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2694
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 9, 2018
    James S. Purdy, Public Defender, and Nicole Joanne Martingano, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Salazar v. State, 991 So.2d 364, 372 (Fla. 2008) ; Levi v. State, 867 So.2d 647 (Fla. 5th DCA 2004).

COHEN, C.J., HARRIS and GROSSHANS, JJ., concur.


text:
    Kenard SINGH, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3003
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 12, 2018
    Rachel E. Reese, O'Brien Hatfield, P.A., Tampa, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the August 13, 2018 order denying motion for postconviction relief rendered in Case No. 2012-CF-0886, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, BERGER and WALLIS, JJ., concur.


text:
    Kenneth Lamar WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3405
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 9, 2018
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Birch v. State , 248 So.3d 1213 (Fla. 1st DCA 2018).

ORFINGER, EVANDER and EISNAUGLE, JJ., concur.


text:
    Mark A. GRIMM, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2034
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 12, 2018
    Mark A. Grimm, Sneads, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 30, 2017 judgments and sentences rendered in Case Nos. 2014-CF-306377-CFDB, 2015-302729-CFDB, and 2015-303263-CFDB, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

BERGER, EISNAUGLE, and GROSSHANS, JJ., concur.


text:
    Joshua Daniel QUARTIER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-939
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 12, 2018
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the order revoking Appellant's community control and the resulting judgment and sentence following an open plea. However, we remand for the trial court to correct a clerical error in the order to reflect that Appellant admitted to violating Condition 16 of his community control. The order presently under review shows a Condition 24 violation, which was never alleged.

AFFIRMED; REMANDED with directions to enter a corrected order of revocation of community control consistent with this opinion.

COHEN, C.J., WALLIS and LAMBERT, JJ., concur.

      The affidavit of violation alleged a Condition 15 violation. However, this too appears to be a clerical error as the factual allegations contained in this paragraph of the affidavit alleging the violation are substantively consistent with a violation of Condition 16 of community control for Appellant failing to remain at his approved residence during specified times.


text:
    Sooksiri RITTIRUCKSA, Appellant, v. Patricia Ann BARRETTE, Individually and as Personal Representative of the Estate of William B. Lowe, Appellee.
    Case No. 5D18-849
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 12, 2018
    Christian W. Waugh, Orlando, of Waugh Law, P.A., The Villages, for Appellant.
    Todd J. Mazenko and Adam M. Trumbly, of Bowen, Schroth, Mazenko & Broome, P.A., Eustis, for Appellee.
   PER CURIAM.

Sooksiri Rittirucksa appeals a non-final order granting a temporary injunction in favor of Patricia Barrette in a probate proceeding. We reverse and remand for an evidentiary hearing.

To obtain injunctive relief, Barrette was required to establish the likelihood that she would suffer irreparable harm, the unavailability of an adequate remedy at law, a substantial likelihood of her success on the merits, and consideration of the public interest. Avalon Legal Info. Servs., Inc. v. Keating, 110 So.3d 75, 80 (Fla. 5th DCA 2013). Barrette's motion for injunctive relief was unsworn, and thus, the trial court was required to conduct an evidentiary hearing prior to granting injunctive relief. See Delbrouck v. Eberling, 177 So.3d 66, 68-69 (Fla. 4th DCA 2015) (reversing and remanding for an evidentiary hearing because trial court issued temporary injunction without taking evidence). Furthermore, in granting a temporary injunction, the trial court must make factual findings to allow for a meaningful review on appeal. Salazar v. Hometeam Pest Def., Inc., 230 So.3d 619, 621-22 (Fla. 2d DCA 2017). Neither occurred in this case.

Accordingly, we reverse the injunction and remand for the trial court to hold an evidentiary hearing and enter an order with sufficient factual findings.

REVERSED AND REMANDED.

COHEN, C.J., ORFINGER and WALLIS, JJ., concur.

      Because we reverse the injunction on these grounds, we do not find it necessary to address the remaining issues raised.


text:
    Jason Lee COLLINS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2312
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 12, 2018
    Jason Lee Collins, Milton, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 2, 2017 judgment and sentence rendered in Case No. 2017-CF-000820, in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Taylor Michael EDWARDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1320
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 12, 2018
    John J. Albert, of Albert & Donnelly, LLC, Melbourne, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We reverse Taylor Edwards' conviction for leaving the scene of a crash involving personal injury because the State's evidence was insufficient to establish that a crash caused the injury alleged in the information. See Gaulden v. State , 195 So.3d 1123, 1128 (Fla. 2016) (holding that section 316.027's operative phrase " 'any vehicle involved in a crash' means that vehicle must collide with another vehicle, person, or object"); see also Daugherty v. State , 207 So.3d 980, 981 (Fla. 5th DCA 2016) (holding that crash that occurred when the victim, who was trying to climb in window of car, fell and collided with pavement, did not constitute crash under leaving scene of crash involving death statute). We affirm, without discussion, Edwards' other conviction.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

EVANDER and EISNAUGLE, JJ., and ROGERS, S.G., Associate Judge, concur.

      In his motion for judgment of acquittal at trial, Edwards failed to apprise the trial court as to why the State's evidence was insufficient, as a matter of law, to support a conviction. Accordingly, our reversal is based on application of the fundamental error doctrine. See F.B. v. State , 852 So.2d 226, 230 (Fla. 2003) ("[A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error ....").


text:
    Travis Dean SESCO, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0725
    District Court of Appeal of Florida, First District.
    October 18, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this appeal pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the revocation of Appellant's probation and the resulting judgment and sentence. However, we remand for the trial court to enter a corrected order of revocation of probation reflecting, consistent with its oral pronouncement, that the revocation was based only on the new law offense violations of driving while license suspended, battery on a law enforcement officer, and resisting officer without violence. See Werley v. State , 208 So.3d 832 (Fla. 1st DCA 2017). Appellant need not be present.

Wolf, Lewis, and Rowe, JJ., concur.


text:
    Christopher Charles MCINTOSH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3776
    District Court of Appeal of Florida, First District.
    October 18, 2018
    Christopher Charles McIntosh, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Christopher Charles McIntosh, who was convicted of possession of a firearm by convicted felon, filed a motion for postconviction relief which raised four claims of ineffective assistance of counsel. We affirm the trial court's summary denial of Issues 1, 2, and 4 without further comment. However, we conclude that Issue 3 is a legally sufficient claim and is not refuted by the record attachments.

In Issue 3, Appellant asserted that counsel was ineffective for failing to move for a judgment of acquittal following the close of the State's case. We conclude that he pled a cognizable and legally sufficient claim. See Griffin v. State , 101 So.3d 399, 399 (Fla. 1st DCA 2012) ("The appellant's rule 3.850 motion is facially sufficient to assert a claim of ineffective assistance of counsel to the extent that it alleges a failure to move for a judgment of acquittal on the charged offense of burglary with damage in excess of $1,000.00."). Additionally the court's record attachments do not refute this claim. See Ortiz v. State , 968 So.2d 681, 684 (Fla. 1st DCA 2007) ("[T]he trial court must attach portions of the record that conclusively refute the claims in order to properly issue a summary denial."; see also Fla. R. Crim. P. 3.850(f)(5) ("[A] copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order."). Accordingly, we reverse the denial of Issue 3, for the trial court to hold a hearing or attach portions of the record which conclusively refute the claim.

AFFIRMED in part, REVERSED in part, and REMANDED.

Roberts, Wetherell, and Osterhaus, JJ., concur.


text:
    Mayada RAYESS, Appellant, v. Joseph BITAR, Appellee.
    Case No. 5D18-1894
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 19, 2018
    Mayada Rayess, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The former wife, Mayada Rayess, appeals the final judgment dissolving her marriage to the former husband, Joseph Bitar. Because we do not have a transcript of the proceedings below, we cannot address the former wife's contention that the trial court's decision on the issues of alimony and equitable distribution are without evidentiary support. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). Thus, we must affirm unless the former wife can demonstrate that "fundamental error appears on the face of the appealed order." Murphy v. Murphy, 948 So.2d 864, 865 (Fla. 5th DCA 2007). The former wife has made no such showing in this case.

AFFIRMED.

ORFINGER, TORPY and HARRIS, JJ., concur.


text:
    Michael PORTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4476
    District Court of Appeal of Florida, First District.
    October 24, 2018
    Michael Ruppert, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The Emergency Writ of Prohibition, filed October 22, 2018, is denied on the merits.

Ray, Kelsey, and Jay, JJ., concur.


text:
    REAL ESTATE DE LOUISIANE, INC. v. ALLEN/LABORDE
    No. 2018-C-1108
    Supreme Court of Louisiana.
    October 15, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF ST. LANDRY
    Writ denied.
    HUGHES, J., concurs and assigns reasons.
   I concur in the writ denial. The only entity that would benefit under the facts presented is the real estate agency, which has not been made a party defendant.