text:
    Kevin JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2120
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
    ON MOTION FOR CLARIFICATION
   Conner, J.

We grant the State's motion for clarification, withdraw our previously issued opinion, and substitute the following in its place.

Appellant Kevin Joseph timely appeals his conviction and sentence after a jury found him guilty of the lesser-included offense of aggravated battery. Appellant asserts the trial court erred in: (1) granting a pretrial motion to admit two recorded statements by the Victim, after determining the Victim was unavailable for trial due to actions by Appellant; (2) denying his motion to reconsider the admission of the Victim's recorded statements and his motion to continue the trial; and (3) admitting a recorded call by Appellant from the jail to an unidentified female. We affirm without discussion the trial court's denial of the motion for reconsideration, the denial of the motion to continue, and the admission of Appellant's jail call. We reverse the trial court's evidentiary determination that the Victim's recorded statements were admissible as a forfeiture-by-wrongdoing exception to the hearsay rule. We remand for a new trial because the error was not harmless.

Background

As the prequel to the incident that led to the prosecution which is the subject of this appeal, the Victim and his girlfriend ("the Girlfriend") were sent to a residence to clean it. Appellant confronted the Victim and the Girlfriend at the residence and explained that he was in control of the neighborhood and they needed to leave the house they were cleaning. The confrontation escalated to the point of Appellant pointing a gun at the Victim, which the Girlfriend recorded on her cell phone as a video. No physical injuries occurred during that incident.

A few days later, the Victim was attacked and beaten, which caused him to be hospitalized. The Victim gave a statement recorded by the main investigating officer ("the Detective") a few hours after he was hospitalized, describing the events that caused his hospitalization. The Victim explained that as he was walking to church, he passed a man ("the Co-Defendant") on the street who said, "Oh, is that [the Victim]?" and "Hey, n*****, when I-when my homeboy see [sic] you, he going to f*** you up." The Co-Defendant intentionally blocked the Victim's path, put his face in the Victim's face, and said "N*****, I'm going to make him f*** you up." The Victim then turned around and saw Appellant approaching him, and Appellant asked the Victim whether he remembered him from the prior altercation.

The Victim said at that point, the Co-Defendant snuck up behind him and tried to punch him, and then the Co-Defendant swung a pipe, which the Victim blocked with his hand. As the Victim and Co-Defendant were wrestling, Appellant approached with another pipe and hit the Victim in his jaw from behind. The Victim was then hit again, but was disoriented and could not determine who hit him. The Co-Defendant and Appellant then ran away. In the recorded statement, the Victim also explained the extent of his injuries. Additionally, he stated that, when he arrived at the hospital, he noticed that he was missing $80 in cash that he was sure he had before he was attacked. In conjunction with the recorded statement, another detective conducted a photo lineup in which the Victim identified Appellant as one of his assailants.

The Victim was shown a second photo lineup in which he identified the Co-Defendant as the other assailant. In conjunction with the second lineup, the Victim gave a second recorded statement to the Detective. In the second recording, the Victim confirmed that he had identified the Co-Defendant in a photo array. The Victim then explained the incident and his injuries. He also specifically mentioned being on "a liquid diet." The Victim reiterated that both Appellant and the Co-Defendant "jumped [him] with metal pipes" and hit him several times.

Appellant and the Co-Defendant were arrested and both were charged with attempted first-degree murder and strong arm robbery. Appellant and the Co-Defendant were tried separately. Appellant was incarcerated from the date of his arrest until trial. The Co-Defendant bonded out of jail after his arrest.

Shortly before trial, the State moved to declare the Victim unavailable for trial and to admit his recorded statements pursuant to the doctrine of forfeiture-by-wrongdoing. The State alleged that Appellant "engaged in efforts with [Co-Defendant] to prevent or persuade [the Victim] from testifying in th[e] trial."

The State's motion included four attachments. The first attachment was a DVD that contained seventy-eight recorded jail calls between Appellant and various individuals totaling approximately thirty hours in length. The motion alleged that the pertinent excerpts from the jail calls were as follows:

In a recorded jail call on February 5, 2016, [Appellant] states, "Don't pay none of that s*** until we go to court. This n**** out here demanding ransom." He also states, "YB over in the village cause they out there lookin for bro because he's lying on the papers. The whole neighborhood knows what happened."
In a recorded jail call on February 6, 2016, [Appellant] states, "We gotta catch this f*** n**** and bring his ass to justice."
In a recorded jail call on April 6, 2016[,] [Appellant] states, "I gave my lawyer all the names and he's gonna demand a speedy trial. Now all we gotta do is find buddy and see whatever else we gotta take care of." He also states, "We gotta stay strapped and swipe this s*** out."
In a recorded jail call on April 8, 2016[,] [Appellant] states, "I'm gonna send his ass to the hospital. N****s on liquid diets, needing surgery. I do this shit. I do this shit with dangerous weapons."

The motion alleged that Appellant was speaking to Co-Defendant in "many" of the calls, but does not specify which calls.

The second attachment was an affidavit by an investigator with the State Attorney's Office ("the Investigator"). The Investigator attested that when he arrived at the Victim's residence to serve him with pre-trial subpoenas, the Victim's mother stated that the Victim "does reside at the home, but was not present at that time." She also stated that the Victim had not been home "for several days, but that she would ensure that he received the paperwork as soon as she ha[d] contact with him." The mother provided to the Investigator a contact phone number.

The third attachment was the transcript of a sworn statement taken by the Detective from the Girlfriend while the Girlfriend was incarcerated. The Girlfriend stated that, in mid-January, the Co-Defendant's sister went to the Victim's house and offered him $20,000 not to cooperate or show up at trial. The Victim told the sister that that was not enough money. The Girlfriend also stated that after the Co-Defendant was released from jail, he went to the Victim's house to offer him money. A "physical confrontation" occurred between the Co-Defendant and the Victim because the Co-Defendant wanted the Girlfriend's cell phone, which contained video evidence of the prior altercation between Appellant, the Victim, and the Girlfriend. The Co-Defendant was unable to get the cell phone because the Girlfriend had turned it over to law enforcement.

The Girlfriend also stated in the transcript that the Victim told her that after the $20,000 money offer, someone gave the Victim a pit bull, dog food, and other pet items. The Girlfriend believed that someone was "trying to buy [the Victim] off." Additionally, "they" knew that the Girlfriend and the Victim "were looking to buy a vehicle," so "they offered to supply a vehicle, paid in full." The transcript does not indicate who "they" were.

In the transcript, the Girlfriend also stated that the Victim told her the Co-Defendant's sister and someone else said that, if the Girlfriend and the Victim did not accept the money, "[o]ther things were going to occur." "They" said something about "the house being shot up" and that the Girlfriend and the Victim would "be sorry." The Victim told the Girlfriend "not to come back in the neighborhood" because if she went back, she was going to be killed. When the Detective asked the Girlfriend if she knew who the Victim was referring to "carry out the threats," the Girlfriend replied, "He was referring to [Co-Defendant] and [Appellant]," and the Girlfriend felt that "they themselves directly would take care of it." However, at a later point in the interview, the Girlfriend also stated that she was not aware of anyone other than the Co-Defendant and his sister who promised money or made threats.

The final attachment was an affidavit by the Detective. He attested that, after the Victim failed to comply with the subpoena, he went to the Victim's prior known address and found the residence vacant. The Detective then went to the Victim's mother's residence, and the mother stated that "she had not heard [from] or seen [the Victim] in 3-4 weeks, and that she did not know his whereabouts." The Detective did not believe the mother.

The Detective then went to speak with the Girlfriend at the jail. He listened while the Girlfriend called the Victim's mother's residence, and the mother put the Victim on the line. The Detective jumped into the conversation to advise the Victim that the assistant state attorney needed to meet with him to prepare for the upcoming trial, and the Victim responded that "he would not cooperate with the [S]tate." The Detective further informed him that, because he failed to comply with the subpoena, the next step could be a writ of bodily attachment, to which the Victim responded that "he did not care, that he 'knew' his rights, and that a warrant would not be issued for his arrest."

Based on his conversation with the Victim, the Detective asserted in the affidavit that he believed "it [wa]s clear that the Victim won't voluntarily cooperate with the prosecution." Additionally, he believed that, "based on the level of violence exhibited during th[e] case," the Victim's "lack of cooperation [wa]s most likely based on a well-founded fear for the safety of his family and himself." The call between the Detective and the Victim occurred prior to the Detective obtaining the Girlfriend's sworn statement attached to the motion.

Appellant filed an objection to the State's motion. He asserted that the four attachments in the State's motion were either "completely out of context, or completely undermine[ ] [the State's] own argument and show the exact opposite," and that none of the actions against the Victim could be attributed to Appellant.

Regarding the February 5, 2016 jail call, Appellant asserted that: (1) he was in custody and had no contact with the Victim; (2) he believed that the Victim was "trying to blackmail individuals for money"; (3) he was "not [i]n agreement to pay[ ] any money to th[e] Victim"; and (4) he believed the Victim "[wa]s lying and the area and [t]he neighborhood kn[e]w[ ] that the [Victim wa]s lying." Appellant supported these statements by pointing out that, at another point during the same call, Appellant stated:

I heard trolls are looking for [the Victim's] ass though, they locking his ass up. Even Kerven told me. You know YB Sneeds brother, overthere [sic] in the villa, he even said they looking for bruh, the man is making false statement on the paper bruh, the lawyer told me they locking him up for lying on the paper and shit, that n**** trying to f*** us over, and he the one getting f***ed over.

Regarding the February 6, 2016 call, Appellant explained that another portion of his conversation was as follows: "n**** got to sit here until the next month, all real n****z, that's some crazy s***, we gotta catch this f*** n**** Cuz." Appellant asserted that this statement showed his "disbelief that he [wa]s still in jail over the [Victim's] lies to police" and "his frustration while speaking [to] his female cousin." Additionally, Appellant asserted that this statement did not establish that he "agreed to and/or commanded anyone to tamper with the [V]ictim."

Regarding the April 6, 2016 call, Appellant asserted that "[m]ost of the words in that statement [were] NOT [Appellant's] words but rather the individual he is talking to," and the statement related to "defense witnesses and getting ready for trial," not tampering with a witness.

Lastly, regarding the April 8, 2016 call, Appellant asserted that he was not talking about the Victim, "but rather having a bit of fun talking to a relative and using his own colloquial language."

At the hearing on the State's motion, the State did not present any witnesses, but relied solely on its written motion and the attachments. The trial court based its ruling on the affidavits, the jail call excerpts described in the motion, and the transcript of the Girlfriend's statement. It found that the State, "on numerous occasions," attempted to contact the Victim to no avail and, therefore, the Victim was unavailable for trial. Although at one point the trial court stated that it was "not in a position to determine what the intent of what those jail calls were," after considering the words of Appellant in the recorded calls, the court found that, "by a preponderance of the evidence, the State has shown that this [Appellant's wrongdoing] trumps the Sixth Amendment Crawford issue" and the Victim's two recorded statements were admissible.

After the trial court ruled on the forfeiture-by-wrongdoing motion, Appellant moved for reconsideration and for a continuance, which were both denied.

At trial, in addition to law enforcement witnesses, the State played both recordings of the Victim's statements. The Detective also testified that when he told Appellant that he was being arrested for robbery and attempted felony murder, Appellant responded that he "didn't try to kill anybody," and that he "just intended to beat up a guy." The State also played a recording of a jail phone call between Appellant and an unknown female. During the call, Appellant made reference to the fact that "I got there and he's on a liquid diet like I use (sic) to have this-Every time I seen him, somebody's hurt.... They got to get surgery.... I am talking about face plastic surgery. You heard me? I do this s***, man."

After the State rested, Appellant called four witnesses. Each testified that they were present during an incident between the Co-Defendant and the Victim, and that the Victim was the aggressor. Three of the witnesses testified the Appellant was present, but did not join the fray until after the Co-Defendant was attacked. The fourth witness did not remember seeing Appellant during the fray. None saw Appellant hit the Victim with a pipe. Instead, all four testified that it was the Victim who had the pipe and it was the Victim who attacked the Co-Defendant with the pipe.

After the defense rested, the State called a rebuttal witness. The rebuttal witness testified that while looking outside her window, she saw two men beat another man with fists and with a "big, long stick [or] pole." The two men repeatedly hit the Victim in the head, kicked him, and punched him. The rebuttal witness did not see the Victim carrying a weapon at any point, and she saw the Victim bleeding "quite a bit" from his head. On cross-examination, the witness was sure that one of the men was using the stick, but she was not sure whether the other man used the stick at all.

On the attempted first-degree murder count, the jury found Appellant guilty of the lesser included charge of aggravated battery and specifically found Appellant did not actually possess a weapon. On the robbery count, the jury found Appellant not guilty. Appellant was adjudicated guilty of aggravated battery and sentenced to fifteen years of prison. Appellant gave notice of appeal.

Appellate Analysis

"A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion, limited by the rules of evidence." Seymour v. State , 187 So.3d 356, 358 (Fla. 4th DCA 2016) (citing Alvarez v. State , 147 So.3d 537, 542 (Fla. 4th DCA 2014) ). "The harmless error test applies to improperly admitted hearsay evidence." Dunbar v. State , 230 So.3d 8, 12 (Fla. 4th DCA 2017).

Appellant asserts that the trial court erred in admitting the Victim's two recorded statements by applying the forfeiture-by-wrongdoing exception to hearsay. The Appellant seeks a new trial. The State responds that it met its burden of showing the exception applies, through the Girlfriend's sworn statement, the Detective's sworn statement, and Appellant's jail calls. That combination of evidence was relied upon by the trial court to establish that the victim was unavailable for trial and Appellant had "acquiesced in preventing the Victim from testifying by threats and chicanery." The State also responds that, even if there was any error, it was harmless, because eyewitness testimony and Appellant's admission to law enforcement were also admitted to prove Appellant was one of the assailants. The State therefore argues that we should affirm Appellant's conviction and sentence.

The Florida Evidence Code provides that "[e]xcept as provided by statute, hearsay evidence is inadmissible." § 90.802, Fla. Stat. (2016). "This means that the only exceptions to the hearsay rule in Florida are the ones recognized by statutes such as sections 90.803, 90.804, and 90.805, Florida Statutes[.]" Mortimer v. State , 100 So.3d 99, 102 (Fla. 4th DCA 2012).

The doctrine of forfeiture-by-wrongdoing was codified by statute in 2012 as a hearsay exception:

(2) Hearsay Exceptions.-The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:
....
(f) Statement offered against a party that wrongfully caused the declarant's unavailability. -A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant's unavailability as a witness, and did so intending that result.

§ 90.804(2)(f), Fla. Stat. (2016) ; see also Mortimer , 100 So.3d at 102-03. The statutory change adding the hearsay exception to the Florida Evidence Code was approved by the Supreme Court in 2014. In re Amendments to the Florida Evidence Code , 144 So.3d 536, 537 (Fla. 2014).

The forfeiture-by-wrongdoing exception to hearsay "is a codification of the common law rule that one who wrongfully procures the absence of a witness from court cannot complain of the admission of the hearsay statement of the witness." Id. Under the common law, the forfeiture-by-wrongdoing doctrine "permits the introduction of out of court statements of a witness, where the witness is kept away from trial by the 'means or procurement' of the defendant." Mortimer , 100 So.3d at 102 (quoting Giles v. California , 554 U.S. 353, 359, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) ). "For the exception to apply, the defendant must have 'engaged in conduct designed to prevent the witness from testifying.' " Id. (quoting Giles , 554 U.S. at 359, 128 S.Ct. 2678 ).

As can be seen from the statute, the admissibility under the forfeiture-by-wrongdoing exception depends on two evidentiary showings: (1) the statement was made by a witness who is unavailable to testify at trial, and (2) the party against whom the statement is being used intentionally caused or intentionally acquiesced in wrongfully causing the unavailability of the witness. Appellant attacks the trial court's ruling on both prongs.

We affirm, without further discussion, the trial court's ruling that the Victim was unavailable to testify at trial. We address the trial court's ruling that the evidence showed Appellant intentionally caused or intentionally acquiesced in wrongfully causing the unavailability of the Victim.

Appellant argues the evidence showed that he remained incarcerated from the date of his arrest until trial and none of the State's evidence shows that Appellant ever communicated with the Victim or the Girlfriend. Although the Girlfriend mentioned the efforts of the Co-Defendant and his sister to bribe the Victim and the Girlfriend, and the Co-Defendant's effort to threaten the Victim, the Girlfriend did not state that Appellant himself ever bribed or threatened the Victim or direct anyone to make such bribes or threats.

The Girlfriend's sworn statement alleged the Victim described an incident where the Co-Defendant threatened the Victim in person, and the Girlfriend thought that the Victim felt the Co-Defendant and Appellant were going to carry out the threats. However, when the Detective asked the Girlfriend whether anyone other than the Co-Defendant and his sister bribed or threatened the Victim, the Girlfriend stated: "Not that I'm aware." Thus, the Girlfriend's statement focused on the Co-Defendant's, not Appellant's, specific statements and intent. The Girlfriend's sworn statement does not support the conclusion that Appellant instructed the Co-Defendant to threaten the Victim, or acquiesced in the Co-Defendant's plan to threaten the Victim. Additionally, the Detective's affidavit references the Girlfriend's statements that the Victim was threatened by the Co-Defendant and his sister, but the Detective does not mention any threats made by Appellant. The most that can be concluded from the Girlfriend's statement is that her impression was that the Victim felt Appellant and the Co-Defendant would carry out threats of harm, but the Victim never clearly indicated that Appellant made any statements regarding harm.

In the excerpted jail calls cited in the State's motion, Appellant does not mention the Victim by name or mention any plan or scheme to keep him away from trial. Although the State asserted in its motion that in "many" of the calls Appellant was speaking to the Co-Defendant, it failed to specify which calls. Appellant asserts that, when the calls are taken in context, they do not support a finding that Appellant acted with the intent to influence the Victim. Even assuming Appellant was referring to the Victim in the call that discusses sending someone to the hospital, that call does not indicate that Appellant acted with the purpose of sending the Victim to the hospital to prevent him from testifying. Thus, the State did not meet its burden in proving that the statements are admissible pursuant to the forfeiture-by-wrongdoing exception. See § 90.804(2)(f), Fla. Stat. (2016) ; Giles , 554 U.S. at 359, 128 S.Ct. 2678 ; Mortimer , 100 So.3d at 102 ; Chavez , 25 So.3d at 52-53.

Absent any evidence which would prove Appellant directly or indirectly engaged in conduct or facilitated conduct that would cause the Victim to be unavailable for trial, the State would be required to prove that Appellant intentionally acquiesced in wrongful conduct which caused the Victim to be unavailable. Although our research has not revealed case law which provides guidance as to what behavior constitutes acquiescence, it would seem that the evidence must at least show that Appellant knew of a plan by one or more persons to engage in conduct or facilitate conduct that would cause the Victim to be unavailable for trial, and Appellant either encouraged the plan or did nothing to dissuade others from such conduct or distance himself from the plan. Our review of the record and the evidence considered by the trial court does not reveal any proof that Appellant acquiesced in making the Victim unavailable for trial. We are not persuaded by the State's argument that the fact Appellant was communicating with the Co-Defendant in the same time frame that both the Co-Defendant and his sister were attempting to bribe the Victim and the Girlfriend, and the threats made to the Victim, was sufficient proof of Appellant's wrongful conduct or acquiescence to wrongful conduct. The content of the words used by Appellant during the recorded calls do not support such a conclusion because the context of the words in the various conversations is substantially ambiguous. Most significantly, the Girlfriend never said that the Victim described any statements by Appellant regarding the bribes or the threats.

We also reject the State's argument that any error in admitting the Victim's statements was harmless. The testimony of the State witnesses differed significantly from the testimony of the defense witnesses, and there is a reasonable possibility that the jury considered the Victim's own explanation of the incident in reaching a verdict. See State v. DiGuilio , 491 So.2d 1129, 1138 (Fla. 1986) ; see also Powell v. State , 99 So.3d 570, 575 (Fla. 1st DCA 2012) (holding that an error is not necessarily harmless merely because the erroneous testimony was cumulative to other testimony). In closing arguments, the prosecutor referred to the Victim's testimony "through his sworn statement" that Appellant struck him with metal pipes.

Having determined that the Victim's recorded statements were improperly admitted into evidence, and the error was not harmless, we reverse Appellant's conviction and sentence for aggravated battery and remand the case for a new trial.

Affirmed in part, reversed in part, and remanded.

Gerber, C.J., and Taylor, J., concur.

      We incorrectly stated in the original opinion that Appellant and his co-defendant were tried together.

      Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).


source: Caselaw Access Project

author: Damoorgian, J.

license: Public Domain

text:
    Timothy T. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3331
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    Carey Haughwout, Public Defender, and Timothy Wang, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Appellant, Timothy Baker, appeals his judgment and sentence for one count of felon in possession of a firearm and one count of possession of cocaine. Appellant argues that he is entitled to a new trial and/or sentencing hearing because: 1) the State improperly introduced evidence that the vehicle he occupied at the time of his arrest was stolen; 2) the prosecutor improperly bolstered the credibility of the arresting officer during closing argument; and 3) the court relied on impermissible factors when imposing its sentence. We affirm on these issues. Appellant also appeals the portion of his sentence imposing a public defender fee of $200. On this issue, the State properly concedes error and we reverse and remand.

Appellant was charged with one count of felon in possession of a firearm, one count of grand theft auto, and one count of possession of cocaine after he was found sleeping in a stolen vehicle with crack cocaine and a gun near his person. Pursuant to Appellant's request, the felon in possession charge was severed and tried independently. The jury found Appellant guilty of being a felon in possession of a firearm. After a careful review of the record, we hold that no reversible error occurred during the trial.

In anticipation of sentencing, the State filed a written sentencing memorandum wherein it argued that, based on the fact Appellant acquired twelve felony and nine misdemeanor convictions by the age of twenty-three, the maximum sentence of ten years for the felon in possession of a firearm conviction was appropriate. In its memorandum and again at the sentencing hearing, the State represented that Appellant was released from prison for the offense of being a delinquent in possession of a firearm a mere forty-seven days before he was arrested in the instant case. A prior conviction for delinquent in possession of a firearm was reflected on Appellant's scoresheet and Appellant's counsel agreed that his scoresheet was accurate. After considering the parties' arguments, the court sentenced Appellant to ten years in prison with a three-year minimum mandatory on the felon in possession charge. In doing so, the court reasoned:

[T]he severity of the offense increases with the length and nature of the offender's prior record. Now you, know, twelve prior convictions included the most recent conviction ... where the defendant served eighteen months in the Department of Corrections for a delinquent in possession of a firearm.... And that was forty-seven days-he was released forty-seven days before the date of the offense in the case. So, you know, obviously I've taken his prior record into consideration, as well as the severity of the primary offense.

In conjunction with this sentence, the court also entered a $100 public defender fee lien. Thereafter, the State nolle prossed the grand theft auto charge and Appellant pled guilty to the remaining possession of cocaine charge. The court sentenced Appellant to time served on the possession of cocaine charge and entered another $100 public defender fee lien.

On appeal, Appellant argues that this Court should remand for resentencing because the State did not offer any proof substantiating its claim that Appellant was recently released from prison for the offense of being a delinquent in possession of a firearm. Appellant cites to no authority establishing that the State must offer proof of a defendant's prior release date when the underlying conviction is not in dispute and the release date is not being used to prove eligibility for an enhanced sentence. Indeed, it was entirely proper for the State to advise the court about Appellant's undisputed criminal history. See § 921.002(1)(d), Fla. Stat. (2017) (providing that under the Criminal Punishment Code, "[t]he severity of the sentence increases with the length and nature of the offender's prior record"). Therefore, Appellant is not entitled to resentencing.

With regard to the public defender fees, section 938.29 of the Florida Statutes (2017) governs attorney's fee liability for a criminal defendant who receives assistance from the public defender's office. For cases involving a felony, sub- section 938.29(1)(a) provides that "fees and costs shall be set ... at no less than $100 per case." A court may impose a higher fee, but "there must be evidence of the higher fees or costs and the trial court must make factual findings thereon. Also in the event of higher fees, the defendant must be notified of his right to a hearing to contest the fees." Alexis v. State , 211 So.3d 81, 83 (Fla. 4th DCA 2017).

Here, the court imposed a total of $200 in public defender fees in the same case without evidence supporting that amount, without making any factual findings as to the amount, and without informing Appellant of his right to challenge the fees. Therefore, we are compelled to reverse and remand for the trial court to either vacate the second $100 fee lien or "to hold a hearing with proper notice to obtain evidence in support of a public defender fee in an amount greater than the statutory minimum." Id.

Affirmed in part, reversed in part and remanded.

Kuntz, J., and Fahnestock, Fabienne, Associate Judge, concur.


author: Per Curiam.

text:
    Lynn Shailer SMITH and Robert John Smith, Appellants, v. BANK OF AMERICA, N.A., Appellee.
    No. 4D17-2633
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for appellants.
    Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauderdale, and Kimberly S. Mello and Danielle M. Diaz of Greenberg Traurig, P.A., Tampa, for appellee.
   Per Curiam.

Affirmed . Wells Fargo Bank, N.A. v. Balkissoon , 183 So.3d 1272, 1277 (Fla. 4th DCA 2016).

Warner, May and Forst, JJ., concur.


author: Per Curiam. Warner, J. concurring.

text:
    Ivan MALDANADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2661
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Ivan Maldanado, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . See Hart v. State , 246 So. 3d 417, 2018 WL 2049668 (Fla. 4th DCA May 2, 2018) (en banc). As we did in Hart , we certify conflict with Cuevas v. State , 241 So.3d 947 (Fla. 2d DCA 2018) ; Blount v. State , 238 So.3d 913 (Fla. 2d DCA 2018) ; Mosier v. State , 235 So.3d 957 (Fla. 2d DCA 2017) ; Alfaro v. State , 233 So.3d 515, 516 (Fla. 2d DCA 2017) ; and Burrows v. State , 219 So.3d 910, 911 (Fla. 5th DCA 2017).

Conner and Klingensmith, JJ., concur.

Warner, J. concurring with opinion.

Warner, J. concurring.

Although I adhere to my dissent in Hart v. State , 246 So. 3d 417, 2018 WL 2049668 (Fla. 4th DCA May 2, 2018) (en banc), I recognize that Hart is now the law of this district until the certified question is answered by our supreme court.


text:
    Norma PARKMOND, Appellant, v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Trustee FOR the CERTIFICATEHOLDERS OF THE CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2005-3, Appellee.
    No. 4D17-3477
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Nicole R. Moskowitz of Neustein Law Group, P.A., Aventura, for appellant.
    Sarah T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for appellee.
   Per Curiam.

Norma Parkmond appeals from the circuit court's non-final order denying her motion to quash service of process. We reverse because the court denied the motion without holding an evidentiary hearing.

Appellee Bank of New York Mellon filed a complaint to foreclose a mortgage against Parkmond. The Bank secured substituted service on a person identified in the return of service as a co-resident of the property that was the subject of the foreclosure action. Parkmond moved for two extensions to respond to the lawsuit. She filed a verified motion to quash service of process arguing that the court lacked personal jurisdiction over her because the person served was not a co-resident of the property. At a case management conference, the circuit court denied both the motion to quash and Parkmond's request for an evidentiary hearing.

As the Bank concedes, Parkmond was entitled to an evidentiary hearing on her motion to quash. See Benedetto v. U.S. Bank Nat'l Ass'n , 181 So.3d 564, 567 (Fla. 4th DCA 2015). Parkmond's motions for extension of time to respond to the complaint did not amount to a submission "to the jurisdiction of the court" or a waiver of the "defense of lack of jurisdiction for failure of service of process." Id.

We reverse and remand for an evidentiary hearing on appellant's motion to quash service of process.

Gross, Damoorgian and Klingensmith, JJ., concur.


text:
    William VAUGHN, Appellant, v. Meghan VAUGHN, Appellee.
    No. 4D17-2895
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Michael Rebuck of Michael Todd Rebuck, P.A., Palm City, for appellant.
    Karen O'Brien Steger and Lori I. Steger of Steger Law, Stuart, for appellee.
   Per Curiam.

The former husband appeals a final judgment of dissolution of marriage and equitable dissolution of marital assets. Because the trial court failed to make statutorily required factual findings in support of its distribution scheme, it erred as a matter of law. See Callwood v. Callwood , 221 So.3d 1198, 1201 (Fla. 4th DCA 2017). Therefore, we reverse.

Section 61.075(3), Florida Statutes (2017), which governs the instant dispute, requires that "any distribution of marital liabilities ... be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1)." That section also requires specific written findings with regard to "any other findings necessary to advise the parties or the reviewing court of the trial court's rationale" for its distribution. § 61.075(3)(d), Fla. Stat.

Here, the trial court failed to make the requisite section 61.075(3)(d) findings and did not refer to the section 61.075(1) factors in its final judgment as required by the statute. Instead, its final judgment included only a general conclusory statement that certain items were determined to be marital and others non-marital. Most of the contested assets were not specifically discussed, nor was the evidence supporting distribution identified so as to "advise the parties or the reviewing court" of the basis for the distribution. See § 61.075(3)(d), Fla. Stat.

Reversible error occurs where "the equitable distribution in the final judgment is not supported by factual findings with reference to the factors listed in section 61.075(1), as required by section 61.075(3) when 'a stipulation and agreement has not been entered and filed.' " Richardson v. Knight , 197 So.3d 143, 146 (Fla. 4th DCA 2016) (quoting § 61.075(3), Fla. Stat.). We therefore reverse and remand for the trial court to incorporate the requisite factual findings into its final judgment.

Reversed and remanded with instructions.

Damoorgian, Levine and Kuntz, JJ., concur.

      Further, the trial court failed to make these findings even though the former husband generally requested such findings in his motion for rehearing.


text:
    Dilson S. URRIBARI, an individual, and La Placita Grocery of Fort Pierce Corp., a Florida corporation, Appellants, v. 52 SW 5TH CT WHSE, LLC, a Florida Limited Liability Company, and Bashar M. Yatak, Appellees.
    No. 4D18-1417
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    W. Aaron Daniel, Elliot B. Kula and William D. Mueller of Kula & Associates, P.A., Miami, for appellants.
    Elaine Johnson James of Elaine Johnson James, P.A., Palm Beach Gardens, for appellees.
   Per Curiam.

Affirmed. See Art. V, § 5(b), Fla. Const.

Warner, Damoorgian and Kuntz, JJ., concur.


text:
    Marie Suzie FORTUNE, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, Doing Business As Christiana Trust, Not In Its Individual Capacity But Solely As Legal Title Trustee For Bronze Creek Title Trust 2013-NPL1, Kass Schuler P.A., Appellees.
    No. 4D18-607
    District Court of Appeal of Florida, Fourth District.
    [August 1, 2018]
    Marie Suzie Fortune, Miramar, pro se.
    No brief filed on behalf of appellees.
   Per Curiam.

Affirmed. Fla. R. App. P. 9.315(a).

Gerber, C.J., May and Ciklin, JJ., concur.


text:
    George M. DURRANCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-717
    District Court of Appeal of Florida, Fourth District.
    [August 1, 2018]
    George M. Durrance, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The pro se defendant appeals an order denying his Amended Rule 3.850 motion for postconviction relief. We affirm the order, but without prejudice to allow the defendant to file his original amended motion.

The defendant filed his first Rule 3.850 motion in 2012. In June 2014, the trial court denied relief except for ground one, point one, in which he claimed affirmative misadvice of counsel leading him to reject a five-year plea deal. The trial court found the claim insufficient, and gave the defendant sixty days to amend.

Concerned that he would miss the deadline because he was being moved to another institution, the defendant moved for an extension of time to amend. The trial court granted the motion. He submitted the amended motion to prison officials for mailing on August 20, 2014, the original due date. (A copy of the amended motion bearing a prison mailing stamp date of August 20, 2014 is included in his appendix.)

On March 18, 2015, the defendant filed a Notice of Inquiry regarding his amended motion. The trial court responded that it had not received the amended motion and instructed the defendant to refile it. Instead of filing his original amended motion, he filed a new amendment, raising the same claim as the original. The trial court denied the new amended motion as untimely. The defendant appealed, and we affirmed.

On April 27, 2017, the defendant filed the instant Rule 3.850 motion. He argues the amendment should be treated as timely, because the prison mailing stamp was within the time period to amend the motion. But, unfortunately, the trial court was not provided with the original amended motion dated August 20, 2014.

"It is fundamental that an appellate court cannot reverse a trial court on the basis of facts which were not presented to the trial court, and therefore are not part of the record on appeal." Patterson v. Weathers , 476 So.2d 1294, 1296 (Fla. 5th DCA 1985).

The defendant has never presented the original, date-stamped amended motion to the trial court. The trial court docket has no record of the original amended motion ever being submitted. We therefore affirm the order without prejudice to allow the defendant to file the original amended motion with the stamped date showing its timeliness.

Affirmed without prejudice.

May, Damoorgian and Forst, JJ., concur.


text:
    Alexis CANTORE, a minor, by and through her natural parents and legal guardians, Felix and Barbara Cantore; and Felix Cantore and Barbara Cantore, individually, Appellants, v. WEST BOCA MEDICAL CENTER, INC., d/b/a West Boca Medical Center; and Variety Children's Hospital, d/b/a Miami Children's Hospital, Appellees.
    No. 4D13-1985
    District Court of Appeal of Florida, Fourth District.
    [August 8, 2018]
    Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Linda A. Alley of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellants.
    Michael K. Mittelmark and Meghan K. Zavoina of Michaud, Mittelmark, Marowitz & Asrani, P.L.L.C., Boca Raton, for appellee West Boca Medical Center, Inc., d/b/a West Boca Medical Center.
    Elliot H. Scherker, Julissa Rodriguez and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, and Norman M. Waas and Scott E. Solomon of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Coral Gables, for appellee Variety Children's Hospital, d/b/a Miami Children's Hospital.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

Pursuant to the mandate issued by our supreme court, we reverse and remand for a new trial in accordance with Cantore v. West Boca Medical Center, Inc. , 242 So.3d 1032 (Fla. 2018).

Warner, May and Klingensmith, JJ., concur.


text:
    Jessee THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-574
    District Court of Appeal of Florida, Fourth District.
    [August 1, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    No brief filed for appellee.
   Per Curiam.

Affirmed. See Hart v. State , 43 Fla. L. Weekly D970 (Fla. 4th DCA May 2, 2018).

Gross, Taylor and Kuntz, JJ., concur.


text:
    KCG, INC., as successor to K.C. Wall Products and Ruco Drywall Products, Inc., Appellant, v. Steven BOLIN and Deborah Bolin, his wife, Appellees.
    No. 4D18-927
    District Court of Appeal of Florida, Fourth District.
    [August 8, 2018]
    Michael B. Buckley of Buckley Law Group, P.A., St. Petersburg, for appellant.
    Rebecca S. Vinocur of Rebecca S. Vinocur, P.A., Coral Gables, for appellees.
   Per Curiam.

We reverse the trial court's denial of appellant's motion to dismiss for lack of personal jurisdiction on the authority of Southern Wall Products v. Bolin , Case No. 4D18-875, --- So.3d ----, 2018 WL 3569396 (Fla. 4th DCA July 25, 2018). Both cases arise out of the same underlying case, and the jurisdictional allegations are similar. In this case, Bolin alleged he was exposed to asbestos in materials manufactured by KCG or its predecessor from 1975 to 1977 in Florida. The affidavit filed by a KCG representative stated that it did not have any contacts with Florida prior to 1994. Its predecessor operated a plant in Florida starting in the early 1980's, after Bolin's alleged exposure. Bolin offered no evidence of minimum contacts, other than his own use of a product which he identified as distributed or manufactured by KCG in the 1970's. Just as in Southern Wall Products , Bolin failed to satisfy the constitutional minimum contacts for KCG to be subject to jurisdiction in Florida.

We therefore reverse and remand for entry of an order dismissing KCG from the action.

Warner, Levine and Forst, JJ., concur.


text:
    Ricky PIERCE, Appellant, v. Wanda SIMPSON, as Personal Representative of the Estate of Vernelia Lamb Brown, Appellee.
    No. 4D18-153
    District Court of Appeal of Florida, Fourth District.
    [August 15, 2018]
    Ricky Pierce, Fort Lauderdale, pro se.
    Jerome R. Schechter of Jerome R. Schechter, P.A., Fort Lauderdale, for appellee.
   Per Curiam.

Affirmed . See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1979).

Warner, May and Forst, JJ., concur.


text:
    Niven ANDERSON, Appellant, v. HE HILL FOUNDATION, INC., a Florida non-profit corporation, Appellee.
    No. 4D18-755
    District Court of Appeal of Florida, Fourth District.
    [August 15, 2018]
    Niven Anderson, Belle Glade, pro se.
    Antonio R. Perez of McGahee & Perez, PL, Clewiston, for appellee.
   Per Curiam.

Affirmed. Fla. R. App. P. 9.315(a).

Gerber, C.J., Taylor and Ciklin, JJ., concur.


text:
    Dexter Livingston PARRIS, Appellant, v. PNC BANK, NATIONAL ASSOCIATION, Appellee.
    No. 4D18-1766
    District Court of Appeal of Florida, Fourth District.
    [August 15, 2018]
    Dexter Livingston Parris, Plantation, pro se.
    No brief filed for appellee.
   Per Curiam.

Affirmed . Fla. R. App. P. 9.315(a).

Damoorgian, Forst and Kuntz, JJ., concur.


author: Per Curiam. Makar, J., dissenting.

text:
    Erin Vontez THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2751
    District Court of Appeal of Florida, First District.
    May 17, 2018 Rehearing Denied August 21, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The trial court revoked Appellant's probation because she paid nothing toward probation costs, court costs, or drug testing for almost two years. Because the record reflects competent, substantial evidence to support the trial court's ruling, and we find no abuse of discretion, we affirm.

Facts

Appellant pleaded guilty to second-degree felony neglect of the younger of her two children, then ages 2 and 5, whom a neighbor found wandering alone outside their apartment while Appellant was gone for half a day in January of 2015. Through counsel, she stipulated to a factual basis for her guilty plea. This felony carried a maximum sentence of up to fifteen years in prison. § 827.03(1)(e), Fla. Stat. (2015) (defining child neglect); § 775.082(3)(d) (establishing permissible sentence).

Based on Appellant's plea of guilty to felony child neglect, the trial court withheld adjudication and sentenced Appellant to two years of probation. She was required to pay $917 in specified court costs/fines and $41.60 a month in costs of supervision, to "work diligently at a lawful occupation ... and support any dependents to the best of your ability," comply with her parenting case plan with the Department of Children and Families, obtain a mental health evaluation, and submit to and pay for random drug testing. In her application for indigent status, Appellant indicated that she had no debts or liabilities.

In April 2017, near the end of her two-year probation period, Appellant came before the same trial judge on an affidavit of violation of probation alleging Appellant's complete failure to pay anything toward her $917 in court costs, $960 in costs of supervision, and $30 for drug testing. The Department of Corrections apparently waived the $960 costs of supervision-which the trial court criticized (in no uncertain terms). That left $947 in court costs and drug testing costs toward which Appellant had paid nothing in two years-"not a nickel," as the trial court described it and defense counsel agreed.

The probation officer recommended incarceration, noting among other things Appellant's prior record of failing to pay costs of probation. Appellant had a felony record of grand theft committed in 2011, a third-degree felony. For that prior felony, Appellant was placed on probation, which she violated by failing to make required payments and failing to complete community service hours. For that violation of probation, she was sentenced to 100 days in jail, and did not appeal.

By the time of the hearing, Appellant had a third child, then four months old. She testified that she received some child support from the children's fathers, one of whom was incarcerated; and had "child support orders out on them" for unpaid support. She received food stamps, and paid no rent or utilities because her housing was government subsidized.

Under direct examination by the state, Appellant admitted that she had not paid anything toward her costs. Appellant's counsel brought up the question of employment on cross-examination. Appellant denied having had any jobs until very recently, a week or two before the hearing. On redirect the state followed up on the employment questions, and then Appellant admitted that she had an under-the-table job cleaning the professional football stadium in Jacksonville after home football games. She quit because it was "nasty" and "a lot" of work, and therefore "it wasn't working out." She did not use any of that money to pay anything toward her probation obligations. She testified that she had been looking for work, but did not work while dealing with her dependency case during the first year of probation (presumably as a result of the felony child neglect charge), and was sick for several months of her pregnancy during the second year of probation. She presented no medical argument or evidence that she could not work at all during her pregnancy or at any other time during her probation.

Appellant's probation officer testified that Appellant was required to submit monthly job-search logs. Over the two years of her probation, however, Appellant returned only two logs. Both were blank. It was not until shortly after a Notice to Appear was issued on Appellant's violation of probation that she got a job. She was making $8.50 per hour, and had just received her first paycheck the day before the violation of probation hearing. She did not pay or offer to pay anything toward her probation obligations out of that paycheck.

After Appellant and her probation officer testified, defense counsel rested and offered to present argument. The trial court stated that argument was not necessary. He found that Appellant had willfully and substantially violated her probation, orally announcing his ruling of a willful and substantial violation twice, as follows (emphasis added):

I'm going to find that Ms. Thompson is in substantial and willful violation of her probation for failing to even attempt to get a job. And based on her testimony that she actually did have an under-the-table job, could have paid something, just something, a dollar, $10, something. She paid absolutely nothing. And based on her testimony that she just decided to sit there and do nothing while she was working on her DCF plan, again, I'm going to find that she's in substantial and willful violation of probation.

The trial court revoked Appellant's probation and adjudicated her guilty of felony child neglect pursuant to her earlier guilty plea. Despite the statutory maximum sentence of up to fifteen years in prison for felony child neglect, the trial court sentenced Appellant to only six months in county jail with credit for the three days she was in jail after her arrest before bonding out.

Appellant does not dispute her complete failure to pay or that the trial court found she had the ability to pay and willfully refused to do so. She argues that the revocation for failure to pay monetary obligations was improper because there was evidence that her failure to pay was not willful or substantial; and there was other evidence besides what the trial court relied on, in that she complied with other terms of her probation. We find her argument meritless.

Standards for Willfulness and Revocation

On a violation of probation for nonpayment, the state has the initial burden of showing nonpayment and willfulness, by a preponderance of the evidence. § 948.06(5), Fla. Stat. (2015) ; Brown v. State , 221 So.3d 731, 733 (Fla. 1st DCA 2017). Willfulness arises from a refusal to pay despite an ability to do so. See Aviles v. State , 165 So.3d 841, 843 (Fla. 1st DCA 2015) (citing Del Valle v. State , 80 So.3d 999, 1012 (Fla. 2011) ). Willfulness also arises from a failure to make "all reasonable efforts" or "sufficient bona fide efforts legally to acquire the resources to pay." See Bearden v. Georgia , 461 U.S. 660, 672-73, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ; Del Valle , 80 So.3d at 1005-06 (citing standard set forth in § 948.06(5), Fla. Stat.); see also Haywood v. State , 987 So.2d 1285, 1287 (Fla. 1st DCA 2008).

Once the state has shown nonpayment and willfulness, the burden shifts to the defendant to prove by a preponderance of the evidence "that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so ." § 948.06(5), Fla. Stat. (emphasis added); Del Valle , 80 So.3d at 1002, 1015 (approving shifting of burden to defendant and preponderance standard). The trial court must inquire into the reasons for the defendant's inability to pay. Bearden , 461 U.S. at 672-73, 103 S.Ct. 2064 ; Del Valle , 80 So.3d at 1002. Willfulness does not exist if a probationer makes "all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own." Del Valle , 80 So.3d at 1005-06 (quoting Bearden , 461 U.S. at 668-69, 103 S.Ct. 2064 ).

If the defendant fails to satisfy the burden of proof, incarceration is "perfectly justified." Bearden , 461 U.S. at 668, 103 S.Ct. 2064. Upon finding a willful and substantial violation, the trial court then has broad discretion to make the ultimate decision of whether to revoke probation. Brown , 221 So.3d at 733 (citing Lawson v. State , 969 So.2d 222, 229 (Fla. 2007) ). If the trial court revokes probation, the court "shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control." § 948.06(2)(e), Fla. Stat.

This Court reviews the trial court's findings for competent, substantial evidence. Brown , 221 So.3d at 733-34. We review the trial court's disposition for an abuse of discretion. Del Valle , 80 So.3d at 1009 ; Savage v. State , 120 So.3d 619, 621-24 (Fla. 2d DCA 2013) (separating the CSE standard for willfulness from abuse of discretion as to ultimate revocation).

CSE of Willfulness

Among Appellant's probation obligations was the standard requirement that she "work diligently at a lawful occupation ... and support any dependents to the best of your ability." Even though she was not separately charged with a violation of this requirement, Appellant's lack of effort to obtain employment is directly relevant to whether she made reasonable efforts to comply with the financial terms of her probation. Willis v. State , 141 So.3d 611, 612 (Fla. 4th DCA 2014) ("Such evidence may include a showing that the probationer failed to make 'bona fide' efforts to gain employment and/or legally acquire the resources to pay."). While the dissent asserts fundamental error in the trial court's consideration of Appellant's failure to make reasonable efforts to get and keep a job even though Appellant was not separately charged with violating her probation for failure to submit completed job-search logs, the law is clear that Appellant had the burden to prove that she expended "sufficient bona fide efforts legally to acquire the resources " to satisfy her financial obligations. § 948.06(5), Fla. Stat. (emphasis added). This requirement reflects the economic reality of a direct connection between employment and ability to pay, and between good-faith effort and gainful employment.

The trial court had before it competent, substantial evidence that Appellant made no reasonable efforts for nearly two years to comply with the monetary obligations of her probation. Appellant injected the issue when she asserted lack of a job as the reason she could not pay her costs. She submitted only two job-search logs in two years, and both of those were blank. She admitted she did not want to work while her dependency case was going on. She was not pregnant during the majority of her probationary period, and gave no legitimate medical reason why she could not work while on probation. She had an under-the-table job, but chose to leave it. She did not get another job until after a Notice to Appear was issued on her violation of probation, and then was able to get a job very quickly. She did not use or offer to use any money gained from those jobs to pay anything at all toward her probation obligations. This evidence was sufficient to establish willfulness and to support the trial court's discretionary decision to revoke Appellant's probation.

Appellant's sole argument on appeal is that the trial court unfairly revoked probation because Appellant completed other terms of her probation-an argument the dissent adopts and then expands broadly. We reject this argument, because if there is competent substantial evidence to support the trial court's conclusions, it is irrelevant that there may be additional evidence to the contrary. The evidence before the trial court was legally sufficient to support the findings of willfulness.

Although the dissent goes far beyond any argument the Appellant preserved, and among other things attacks the lack of an express written finding of willfulness, Appellant concedes that the finding was necessarily made-as it was, because it was expressed orally twice and was clearly the foundation of the ruling: "I'm going to find that Ms. Thompson is in substantial and willful violation of her probation ...." (Emphasis added.) An oral finding suffices. See, e.g., Bittle v. State, 100 So.3d 1194, 1194 (Fla. 4th DCA 2012) (approving an oral finding of willful and substantial violation); Kadyebo v. State, 15 So.3d 928, 928 (Fla. 5th DCA 2009) (recognizing oral pronouncement of willful and substantial violation as supported by competent substantial evidence); Baldwin v. State, 855 So.2d 1180, 1180 (Fla. 1st DCA 2003) (affirming revocation where competent substantial evidence supported an oral pronouncement of willfulness).

Also contrary to the dissent's sua sponte suggestion of a constitutional deprivation, there is not and never has been any requirement that the trial court on a violation of probation obtain anything remotely approaching a financial affidavit or balance sheet before determining ability to pay. The trial court is required to inquire into ability to pay. The trial court did so. Appellant testified that her basic living expenses were government-subsidized (food stamps plus HUD-paid housing and utilities). She received at least some child support from the fathers of her three children and had taken steps to enforce the child support obligations. She had the ability to work but chose not to work, except for a short-term under-the-table job from which she paid nothing toward her probation obligations, and chose to quit. Once the Notice to Appear was issued, however, she very quickly found a job, strongly suggesting that she could have done so earlier if she had felt sufficiently motivated. She was able to come up with the money to post bond of over $500 when she was arrested for felony child neglect, and to pay the $50 application fee for criminal indigent status, on which application she indicated she had zero debts or liabilities.

These facts are materially distinguishable from the cases cited by the dissent, in which there was no evidence of ability to pay or no finding of willfulness. The trial court's inquiry was sufficient, and the record reflects competent, substantial evidence that Appellant had the ability to work and had the ability to pay something toward her obligations, even if not in full. This is not a situation of a probationer trying to pay her obligations, yet through no fault of her own, being unable to do so. See Del Valle , 80 So.3d at 1005-06.

No Abuse of Discretion in Revoking

The willful violation question now resolved, the only question remaining is whether the trial court abused its discretion in revoking probation. This is the core of the dissent's argument, which results from a disagreement as to the trial court's exercise of discretion, coupled with a selective view of the facts. Despite the dissent's protestations to the contrary, we are not unaware of the social dynamics at play here, of which the trial court likewise was well aware. Yet, the evidence showed that Appellant, though able to work, failed to exercise reasonable efforts to maintain employment, simply quit one job, and used none of the little money she did earn to pay toward her obligations, all the while receiving food stamps, rent, and utilities at public expense. She had done it before, on probation from her earlier grand theft felony, and was incarcerated as a result. In this new violation, there was competent, substantial evidence of a willful refusal to comply with monetary obligations. The underlying child neglect felony could have resulted in imprisonment of up to fifteen years, yet the trial court imposed sentence of only six months in county jail. The trial court acted within its broad discretion in the context of the facts before it.

We cannot say the decision to revoke probation was arbitrary or fanciful-one no reasonable jurist could make. See generally Canakaris v. Canakaris , 382 So.2d 1197, 1203 (Fla. 1980) (defining abuse of discretion). Evaluating the evidence and Appellant's credibility and demeanor were the exclusive province of the trial court, and we must give great deference to the trial court's superior vantage point. See Savage , 120 So.3d at 622 ; Riggins v. State , 830 So.2d 920, 921 (Fla. 4th DCA 2002). The dissent's emphasis on the trial court's oral comments at the hearing is misplaced. The trial court heard the evidence, observed and evaluated Appellant, and exercised discretion to determine that revocation was proper in this instance. Within our standards of review-which the dissent would have us ignore-no legitimate basis for reversal exists.

Accordingly, we affirm Appellant's judgment and sentence. We also note that the parties agree that an incorrect statutory reference to section 784.07(2)(b) was added to Appellant's judgment in error upon revocation. The trial court is directed to enter a corrected judgment.

AFFIRMED . REMANDED for correction of scrivener's error in judgment.

Wetherell and Kelsey, JJ., concur; Makar, J., dissents with opinion.

Makar, J., dissenting.

Twenty-two-year-old Erin Vontez Thompson left her two-and five-year-old children at home unattended, resulting in a charge of child neglect. Pursuant to her guilty plea and negotiated sentence dated June 19, 2015, Thompson was placed on probation for twenty-four months and-along with other conditions-was required to pay for total court costs of $917, a $40 monthly fee plus a 4% surcharge to cover the supervision costs of the Department of Corrections, and the cost of any random drug tests. Thompson was and continues to be financially indigent.

As her two-year probationary period was about to end, the Department reported on April 18, 2017 that Thompson was in violation of probation for failing to pay three items: (a) court costs; (b) supervision costs totaling $960; and (c) a recent drug test charge of $30. She was appointed a public defender, and a hearing date was set. The burden was on the State to establish that Thompson engaged in a substantial and willful violation of these conditions of probation. Del Valle v. State , 80 So.3d 999, 1011-12 (Fla. 2011).

At the revocation hearing, Thompson testified without contradiction that she had met all the conditions of probation (completion of a case plan, mental health evaluations, random drug tests, and so on), but she "didn't have the money to pay all the fees." When asked if she had the ability to pay the fees in the past two years, she answered "No, I didn't," but said she would have paid if she had the money to do so. She had no assets, lived entirely on food stamps and public housing/utility allowances, and received no child support (the two dads contribute only "whenever they feel like it"). Until recently, she had no job other than a transitory one cleaning the local stadium after Jaguars® football games that paid her $7.50/hour "under-the-table." She explained that she was too sick to work during most of her pregnancy (at the time of the hearing, her third child was four months old) and that she tried to get work while managing her dependency case, but only had the temporary stadium job. Her probation officer testified that the Department gives probationers job search logs to be turned in monthly; only two had been received, both blank.

At that point, the trial judge denied the public defender's request to make legal argument ("I don't need any argument") and ruled that Thompson engaged in a "substantial and willful violation of her probation for failing to even attempt to get a job." In addition, he concluded that she should have "paid something, just something, a dollar, $10, something" from her "under-the-table" job. He adjudicated her guilty, sentenced her to six months in the Duval County jail, and converted the court costs into a civil judgment (the Department waived the others, discussed below). The public defender pointed out that Thompson's only alleged violation was not paying the costs/fees, not that she was required to have or maintain a job-to which the trial judge said, "she could have just manufactured the money, for all I care. She was required to pay the money and she didn't do it. Didn't even pay a nickel. There you go." Other than the judge's statements at the hearing, no factual findings-written or otherwise-were made in support of revocation.

On appeal, Thompson argues that the trial court erred in finding a substantial and willful violation of the condition that she pay court costs because no evidence showed, and no finding was made, that Thompson had the ability to pay the costs and purposefully failed to do so. See Aviles v. State , 165 So.3d 841, 843 (Fla. 1st DCA 2015) ("In probation revocation proceedings for failure to pay a monetary obligation as a condition of probation, the trial court must find that the defendant's failure to pay was willful-i.e., the defendant has, or has had, the ability to pay the obligation and purposefully did not do so.") (quoting Del Valle , 80 So.3d at 1012 ).

"Ability-to-pay" and "willful refusal" are standards that must be met under "both state and federal constitutional requirements" of equal protection and due process. Del Valle , 80 So.3d at 1005, 1011-12 (both "ensure that an indigent probationer is not incarcerated based solely upon inability to pay a monetary obligation."); see Hamrick v. State , 519 So.2d 81, 82 (Fla. 3d DCA 1988) (showing that probationer could reasonably pay "is one of constitutional dimensions which, since the defendant would otherwise be subject to jail simply for not paying an amount due regardless of the circumstances, subverts the requirements of due process and equal protection and the prohibition of imprisonment for debt.") upheld by Stephens v. State , 630 So.2d 1090, 1091 (Fla. 1994). Indeed, revoking probation for a failure to pay court costs is fundamental error absent the necessary findings. See, e.g. , Odom v. State , 15 So.3d 672, 679 (Fla. 1st DCA 2009) ("Because ability to pay is an essential element for a finding that a probationer willfully violated probation for failure to pay supervisory costs, the revocation of Appellant's probation based on the alleged violation ... constitutes fundamental error."). As our supreme court recently emphasized, a "probationer cannot have his probation constitutionally revoked absent an inquiry into ability to pay and a specific finding of willfulness, and a trial court's failure to conduct such an inquiry or make such a finding cannot be deemed harmless." Del Valle , 80 So.3d at 1011.

For decades, and consistent with constitutional principles, this Court has held that there must be a specific and explicit finding of ability to pay and a willful refusal to make payment. Crowley v. State , 124 So.3d 434, 436 (Fla. 1st DCA 2013) ("A trial court cannot revoke probation for failure to pay court costs without first explicitly finding that a defendant had the ability to pay and willfully refused to do.") (emphasis added); Friddle v. State , 989 So.2d 1254, 1255 (Fla. 1st DCA 2008) ("[T]he trial court did not make a specific finding as to appellant's ability to pay restitution.") (emphasis added); McPherson v. State , 530 So.2d 1095, 1098 (Fla. 1st DCA 1988) ("Because the trial court failed to make a specific finding that appellant had the ability to pay these costs, it erroneously revoked appellant's probation on these grounds.") (emphasis added); Depson v. State , 363 So.2d 43, 44 (Fla. 1st DCA 1978) (trial court "must make an affirmative finding that the indigent defendant's financial condition is such that payment can be made before entering a revocation on this ground.") (emphasis added); Jones v. State , 360 So.2d 1158, 1160 (Fla. 1st DCA 1978) ("The court should make findings of facts concerning the aforementioned and should specifically determine whether appellant had the ability to pay costs during the probationary period.") (emphasis added).

Inference and conjecture-whether by trial or appellate courts-are no substitute for a proper inquiry and specific and explicit findings as to the constitutionally required elements of ability to pay and willfulness; absent these protections, society would be denying basic rights and creating a debtor's prison, which our state constitution explicitly forbids. Del Valle , 80 So.3d at 1005 (holding that imposing burden on probationer to prove inability to pay by clear and convincing evidence creates constitutionally unacceptable risk of violating article I, section 11 of the Florida Constitution, which states that "[n]o person shall be imprisoned for debt, except in cases of fraud."). As this Court recently said on two occasions, we are precluded from making inferences, and must look solely to whether a proper inquiry was conducted, and whether specific factual findings were entered and supported by sufficient record evidence. Crowley , 124 So.3d at 436 ; Giambrone v. State , 109 So.3d 1279, 1280 (Fla. 1st DCA 2013). Doing otherwise skates over thin constitutional ice.

As to Thompson, no written findings-let alone specific findings-were made, nor was there an attempt to establish that she had the ability to pay and willfully refused payment. The verbal finding-that Thompson "fail[ed] to even attempt to get a job"-is directly contradicted by the trial judge saying she should have paid "something" from her "under-the-table" job; it is also contradicted by her recently obtained job, which was ignored. No evidence, let alone competent substantial evidence, supports the claim that Thomson made no effort, had no work, and-most pertinent-that she had the financial ability to pay the $917 court costs but willfully refused. The only other verbal finding as to ability to pay was that Thompson should have "paid something" from her "under-the-table" job, but that is no substitute for a specific finding that Thompson had the ability to pay and willfully did not. The trial court's superior vantage point matters little when its findings are insupportable and its inquiry fails to follow constitutional standards.

At most, the record shows an impecunious young mother of three preschoolers living entirely on governmental assistance who, over two years of probation, was ill during six months of her pregnancy, earned a tiny sum of cash in a short-lived "under-the-table" job, and a smaller sum in her recently obtained job. But no inquiry or finding was made as to her ability to pay the court costs. See Crowley , 124 So.3d at 436 ("The record reflects that Crowley testified that he was unemployed, lived with his mother, received food stamps, and paid no rent or utilities.... There is no evidence affirmatively showing that Crowley had the means to pay the required court costs, or that he willfully refused to pay them."). Simple economic realities suggest that a household overseen by an impoverished twenty-something single mom with three young children subsisting on government programs in a challenging job market is not a great candidate for significant discretionary cash flow, making an adequate inquiry into and a specific finding of the financial ability to pay even more important. See, e.g. , Allen v. State , 662 So.2d 380, 381 (Fla. 4th DCA 1995) (revoking probation where probationer did not have a job " 'would be contrary to the fundamental fairness required by [the due process and equal protection clauses of] the Fourteenth Amendment' ") (quoting Bearden v. Georgia , 461 U.S. 660, 673, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ). Thompson's personal choices, both as to the oversight of her children and her limited past employment, place her judgment and initiative in doubt; she bears responsibility for her predicament. But the sole legal inquiry is whether she had the ability to pay the court costs and failed to do so willfully.

The trial court nonetheless leap-frogged to the legal conclusion that Thompson should have paid some amount, if only a trifle, to avoid jail; but he failed to heed the Supreme Court's directive that "in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay ." Bearden , 461 U.S. at 672, 103 S.Ct. 2064 (emphasis added); see also Stephens , 630 So.2d at 1091 (applying Bearden ).

No inquiry was made to assess Thompson's overall financial situation, what debts she owed, and so on. Balance sheets have assets and liabilities; income statements have revenues and expenses. But only one side of Thompson's financial ledger was considered (her limited income), which paints a wholly incomplete and flawed picture of her economic status. For all we know, she may be in arrears on sizable household-related bills or be debt-free. Nor was any inquiry made as to how she used the "under-the-table" money, and whether such use was unreasonable in her destitute circumstances. For all we know, she used the "under-the-table" money to buy necessities for her children-or frittered it away on lottery tickets. Just like in Giambrone , "[n]either the State, nor the trial court inquired of [the probationer] as to [her] income or expenses or the reason for [her] failure to make the required payments toward the cost of [her] supervision." 109 So.3d at 1280 (emphasis added). Speculation must abound to fill critically important evidentiary gaps.

Simply because a financially indigent mom receives a smidgen of cash from a part-time seasonal janitorial job doesn't mean she can spare a dime in the face of pressing family financial duties or debts. Even the Department of Corrections-in apparent recognition that Thompson was financially indigent and unable to pay supervision fees-waived them just before the hearing. The trial judge expressed anger at the Department for doing so, and made offhand comments to the public defender for his role in obtaining the waiver ("How lovely"). Court costs, however, were "another story," which were the only item that was reduced to a civil judgment (the drug test charge was excluded, presumably waived by the Department).

A deep irony is that Thompson had just gotten gainful employment (as an "inventory associate" at an inventory and data collection company for $8.50/hour), which the trial judge disregarded. Whatever her prior financial circumstances, she had a decent job at the time of the hearing (she'd just received her first paycheck of about $110 the prior day), and could potentially contribute toward the $917 civil judgment for court costs, but her incarceration swept that option away (a double irony because it imposed a far greater expense on society in the form of county tax dollars spent on Thompson's imprisonment and the collateral impact-economic and otherwise-on Thompson's children and those charged with their interim care). Trial judges have a responsibility to consider alternative measures other than incarceration, Bearden , 461 U.S. at 672, 103 S.Ct. 2064, but that did not happen here. And the Department should have taken action earlier, see generally Jones , 360 So.2d at 1160 (probationer should be advised about exemptions and Department should bring alleged violation to court's attention early on "rather than, as here, waiting until almost two years have elapsed before alleging a violation of probation has occurred for [failure to pay supervision costs]"), but that didn't happen either.

Finally, the trial judge's action punished Thompson for not turning in monthly job search logs, but that was neither a charged basis for revocation nor even a condition of probation. Only the failure to pay the three categories of costs was specified in the Violation Report, making the trial court's uncharged grounds for revocation invalid; indeed, it is fundamental error. Haywood v. State , 987 So.2d 1285, 1287 n.2 (Fla. 1st DCA 2008) ("The trial court lacked authority to revoke probation on grounds not alleged in the affidavit. A trial court's revocation of probation based on uncharged grounds constitutes fundamental error."). And the failure to turn in job search logs "is not a proper basis for revocation." Aviles , 165 So.3d at 843 (failure to submit job search logs, even if ordered to do so by probation officer, is an invalid basis for revocation where it is not imposed as a condition of probation when sentenced).

Under these circumstances, where no findings were made that a financially destitute probationer had the ability to pay costs, no inquiry was made as to the reasons for her failure to do so, no alternatives other than incarceration were considered, and revocation was based on an improper and uncharged ground, an abuse of discretion is manifest. State v. Carter , 835 So.2d 259, 262 (Fla. 2002) ("[T]he appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that Carter's violation was both willful and substantial."). On this record, incarcerating a financially indigent mother of three for failing to pay $917 of court costs goes beyond unreasonable; it harkens back to Anatole France's adage that the "law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." Griffin v. Illinois , 351 U.S. 12, 23, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (Frankfurter, J., concurring).

      The majority says that Thompson's "sole argument on appeal" is that probation was "unfairly revoked" because she "completed other terms of her probation," but that's inaccurate because the only term of probation at issue is court costs. Thompson summarized her argument, saying that the trial court "erred in finding a willful and substantial violation of probation and in revoking probation and imposing jail based solely on [Thompson's] failure to pay monetary obligations. The evidence did not show [Thompson] had the ability to pay costs and that she willfully refused to do so." That's it.

      The majority's recitation of Thompson's prior criminal record (which no party mentioned or relied upon) would seem to have no bearing as to whether she had the ability to pay court costs at the time of the revocation hearing in this case; whether she's had subsequent run-ins with the law are likewise impertinent. Our sole task is to decide whether the trial court's finding of a willful and substantial violation-without determining Thompson's ability to pay given her indigent status-was error. It is no solace, therefore, that the trial court twice pronounced a "willful and substantial violation" in his verbal ruling; the phrase is merely a legal conclusion, one that must be based on specific and explicit findings of ability to pay and a willful refusal to do so.

      The statutory basis upon which the Department could have waived Thompson's payment of supervision costs is that it would be an undue hardship given her responsibilities to her three dependents. § 948.09(3)(e), Fla. Stat. (2018) (Department may exempt a probationer from the payment of such costs if she "is responsible for the support of dependents, and the payment of such contribution constitutes an undue hardship on [her].").

      Upon learning the Department had waived its supervision costs, the trial judge went on a tirade, saying: "I'm going to waive the costs of supervision in every single case I get where I put somebody on probation.... What we'll do is we'll do it on the front end and I'll waive it for you and we won't ever have to worry about that part of things ever again.... I guess [Department officials] don't need money to run that department. They are just going to take our tax dollars to run that department and they're not going to charge people that they're supervising to do it. They're going to make somebody else pay for it.... Why don't they take it out of their paycheck? It's ridiculous."

      Putting Thompson in jail imposed costs on the county far in excess of the court costs she owed. For fiscal year 2014, the average annual cost per inmate in three Florida counties was: Miami-Dade ($63,831), Palm Beach County ($58.010), and Volusia County ($25,586). See Vera Institute of Justice, The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration 26-31 (May 2015); see also Fed. Reg., Annual Determination of Average Cost of Incarceration , 81 Fed. Reg. 46957 (July 19, 2016) ("The fee to cover the average cost of incarceration for Federal inmates in Fiscal Year 2015 was $31,977.65 ($87.61 per day)."); Fiscal Statistics , Fla. Dep't of Corr. , http://www.dc.state.fl.us/oth/Quickfacts.html (last updated December 2017) ("It costs $ 55.80 a day or $20,367 per year to house an inmate in a Florida prison during FY 2016-17. Cost per day to supervise an offender on community supervision (without electronic monitoring): $5.52."). Even at the lowest of these averages, the pro-rated cost of six months in county jail was over tenfold the $917 court costs.

      One of the fourteen special conditions of probation was that Thompson would "work diligently at a lawful occupation, advise [her] employer of [her] probation status, and support any dependents to the best of [her] ability, as directed by [her] officer," but it did not require job search logs and the Department did not claim the condition as a ground for revocation.


text:
    Michael D. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2020
    District Court of Appeal of Florida, First District.
    May 25, 2018 Rehearing Denied August 9, 2018
    Andy Thomas, Public Defender, Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Michael Miller, challenges his convictions for driving under the influence and causing the death of another human being in violation of section 316.193, Florida Statutes, for driving under the influence and causing serious bodily injury, contrary to section 316.193(3), Florida Statutes, and for driving under the influence and causing property damage in violation of section 316.193(3), Florida Statutes.

On December 7, 2013, Miller and his passenger had collided with a motorcycle on State Road 27 after a night of drinking. The driver of the motorcycle was killed and the brother on the motorcycle suffered multiple injuries. Florida Highway Patrol arrived at the scene and Miller agreed to a voluntary blood withdrawal. When Sergeant Simmons asked for Miller's signature for the consent form, he refused to sign and withdrew his consent to the blood withdrawal. Simmons then explained that if Miller refused consent, a warrant would be obtained to get the blood from him. Miller then agreed to the blood draw and signed the consent form.

On appeal, Miller makes two arguments. First, he argues that it was error for the trial court to deny his motion to suppress the blood alcohol test results because his blood was taken without his consent and without a warrant. Miller says his consent was not freely and voluntarily given, but rather it was an acquiescence to Simmons' misrepresented authority that he had probable cause to obtain a warrant. Whether consent was freely and voluntarily given is determined by the totality of the circumstances. Montes-Valeton v. State , 216 So.3d 475, 480 (Fla. 2017) (listing factors such as time and place of encounter, number of officers present, officer's words or actions, age and maturity of defendant, defendant's prior offenses, defendant's execution of a written consent form, whether defendant was informed of his or her right to refuse consent, and length of time of interrogation). The facts and circumstances in this case demonstrate that Miller freely and voluntarily consented to the blood withdrawal. Specifically, Simmons explained that refusal to consent would require him to get a warrant (for which probable cause existed) to obtain the blood sample, which he explained would require them to drive to a judge during the night to get the warrant signed. Simmons's explanation did not amount to coercion or misrepresentation of authority because he had probable cause and accurately described to Miller what would occur if a warrant were sought. Miller's subsequent consent, both oral and written, was therefore freely and voluntarily given. Consequently, the trial court did not err in denying Miller's motion to suppress.

Second, Miller argues that the trial court erred by precluding him from presenting evidence that the victim was driving a motorcycle without an endorsement when he and his brother were hit by Miller from behind, because this evidence was relevant to Miller's defense that the victim's conduct was the sole cause of the accident. For the decedent's conduct to be a defense to vehicular manslaughter, the conduct must be viewed as the sole proximate cause of the accident. Everett v. State , 435 So.2d 955, 957-58 (Fla. 1st DCA 1983) ; see also Union v. State , 642 So.2d 91, 94 (Fla. 1st DCA 1994) (applying to vehicular homicide). Here, evidence was presented that Miller had been drinking on the night of the incident, had a blood alcohol content higher than 0.08, and was excessively speeding prior to the crash. Because of the obvious risks associated with driving under these conditions, no reasonable jury would conclude that the decedent's lack of a motorcycle endorsement was the sole proximate cause of the accident. Therefore, the trial court did not err in precluding Miller from presenting this type of evidence.

Because the record demonstrates that Miller consented to the blood draws, and because there was no reasonable basis to conclude that the decedent's conduct was the sole proximate cause of the accident, we affirm.

AFFIRMED .

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