author: SALARIO, Judge.

text:
    Robert NEWBY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-228
    District Court of Appeal of Florida, Second District.
    Opinion filed May 29, 2019.
    J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Michael Schaub, Assistant Attorney General, Tampa, for Appellee.
   SALARIO, Judge.

Robert Newby appeals from his judgment and sentence rendered after a jury found him guilty of burglary-in this case, a first-degree felony because the burglary involved the battery of a woman inside the home. Mr. Newby's sole defense at trial was that he was not the intruder, and the evidence on that issue was not at all conclusive. On appeal, Mr. Newby correctly asserts that the trial court erred by refusing to admit so-called reverse Williams rule evidence that another person had committed a burglary with a battery in the same area in a strikingly similar manner. The trial court should have let this evidence in, and on the facts of this case, we cannot excuse the error as harmless. We reverse and remand for a new trial or other proceedings consistent with this opinion.

Someone Attacks E.F. In Her Home

On January 3, 2014, E.F. was the victim of a terrifying attack at her home in Dunedin. E.F. was forty-three years old and lived alone in a small house. Around 11:30 p.m. on the night of January 2, she came home from working at a local restaurant and went straight to bed. Her front door was locked when she went to sleep. A few hours later, around 3:00 or 3:30 a.m., she was awakened by a loud bang. Almost immediately, she heard another loud bang and saw a man wearing a dark ski mask running through her half-open bedroom door.

The man ran for E.F.'s bed and jumped on her as she laid there. She fought back, kicking and pinching her attacker. The man repeatedly tried to push her head to the side, leading E.F. to think that he was trying to stop her from looking at him. She tried to bite his right hand. The man then put his hands around E.F.'s neck with force. She continued struggling. After about five minutes, their eyes met. The attacker jumped off E.F. and ran out the front door. E.F. followed him out and saw him turn south on the street that ran in front of her home. She then called 911.

Because her attacker was wearing a mask, E.F. was not able to identify him or even to describe him well. She told police that he was thin and had worn a dark grey sweat jacket. She would later add that he had hazel-colored eyes, that he appeared to be white, and that his hands felt leathery, such that he may have been wearing gloves. The man had no noticeable odor.

Law Enforcement Focuses On And Ultimately Arrests Mr. Newby

Members of the Pinellas County Sheriff's Office arrived at E.F.'s house shortly after her call to 911. They set up a perimeter around the major roads and intersections nearby to aid a K-9 search of the area. In the process, Lieutenant William Byrd drove by Mr. Newby, who was jogging across one such road. He was wearing boxer shorts, a T-shirt, and dress socks with no shoes. The temperature was in the forties-cold by Florida standards. That got the lieutenant's Spidey senses tingling.

Lieutenant Byrd made a U-turn and drove to meet up with Mr. Newby on the other side of the street. He got out of the car and introduced himself. He asked what Mr. Newby was doing out dressed that way in the cold weather. He noted that Mr. Newby smelled of alcohol, had watery eyes, and spoke with slurred speech-all of which led him to think that Mr. Newby was drunk. Mr. Newby said that after drinking he had been dropped off at a nearby home where he lived with his sister and her boyfriend. According to Lieutenant Byrd, Mr. Newby said that he started to undress outside, but that he then saw a car drive past that belonged to people he knew lived nearby, and that he jogged over to meet them. When he got to the house where they lived, he decided to keep jogging. He said that his clothes would be near a backpack in the front yard of his sister's home.

As Lieutenant Byrd was talking with Mr. Newby, Deputy Matthew Aitken was conducting a K-9 search of the area with a dog named Bosco. Bosco picked up a scent near the road in front of E.F.'s home, and Deputy Aitken and the dog followed it. Bosco stopped at a trash can and indicated that something was in it. Deputy Aitken opened the trash can and found a grey, hooded sweatshirt with horizontal stripes. The deputy radioed in a description of the find.

Apprised of the discovery, Lieutenant Byrd, who was still with Mr. Newby, asked Mr. Newby if he owned a grey, striped, hooded sweatshirt. Mr. Newby said he did. Lieutenant Byrd and Mr. Newby remained together at the site where Lieutenant Byrd first encountered Mr. Newby and later moved to the premises of a nearby business.

Meanwhile, Deputy Aitken and Bosco continued their search. Bosco lost the scent, and Deputy Aitken tried to get him to find it again. Unsuccessful, Deputy Aitken guided Bosco in the direction Bosco had led them before they stopped at the trash can. Bosco picked up a scent thirty to fifty yards away and began following it. At some point-we do not know whether before or after Bosco picked up the scent-Deputy Aitken learned that Lieutenant Byrd had a suspect (Mr. Newby) not far from where he and Bosco were. Bosco tracked in the direction Deputy Aitken had begun walking until the two reached a bush near the premises where Lieutenant Byrd and Mr. Newby were. The dog alerted at the bush, but a search turned up nothing. Bosco then lost the scent. The dog did not lead Deputy Aitken to Mr. Newby or locate any other clothing, gloves, ski mask, or other materials that might have been evidence of the crime.

Mr. Newby was arrested and taken to jail. Lieutenant Byrd went to the home of Mr. Newby's sister. There, in the front yard as Mr. Newby described, he found a backpack, a pair of black dress pants, and a white shirt. He went to the front door and woke up Mr. Newby's sister. Another deputy arrived with the sweatshirt that Deputy Aitken and Bosco found. He showed the sweatshirt to Mr. Newby's sister who, according to the lieutenant and deputy, identified the sweatshirt as Mr. Newby's.

Mr. Newby was charged in a one-count information with burglary with a battery under section 810.02(2)(a), Florida Statutes (2013). The case then proceeded through discovery and toward a jury trial.

Mr. Newby's Reverse Williams Rule Evidence

Mr. Newby's strategy at trial was to concede that E.F. had been attacked but to deny that he did it. There were some significant differences between E.F.'s description of the person who attacked her and his own appearance upon which to base that defense. E.F. described a white male; Mr. Newby is Hispanic and brown-skinned. E.F. described light, hazel-colored eyes; Mr. Newby's eyes are brown. E.F. described someone who was "skinny" or "thin"; Mr. Newby is five-foot-nine but weighs 225 pounds, and photographs show that he has a bulkier build. E.F. did not smell anything on her attacker; Lieutenant Byrd detected an odor of alcohol on Mr. Newby. Based on these differences, Mr. Newby proceeded to trial on the theory that someone else must have attacked E.F.

To support that theory, Mr. Newby sought to admit evidence that a man named Nicholas Nardelli committed a burglary with a battery that was very similar to the attack on E.F. Mr. Newby proffered evidence of the following. On September 29, 2014-nine months after the attack on E.F.-a woman, D.W., was attacked in her home in Palm Harbor, just north of Dunedin. She was fifty-two years old and lived alone in a small house. Mr. Nardelli confessed to being her attacker. At the time, Mr. Nardelli was living in Dunedin, seven miles away from D.W. and four miles away from E.F. Mr. Nardelli has hazel-colored eyes. D.W. described him as being five-foot-nine and 160 pounds.

The attack on D.W. took place around 3:00 a.m. Mr. Nardelli entered her home through an unlocked back door. He was wearing dark clothes, gloves, and a dark mask. D.W. described the mask as a "ski mask," although it was later established to have come from a ninja costume. Mr. Nardelli went straight to D.W.'s bedroom and assaulted her in her bed. He told her to stop resisting him, to lie face down, and to look at the television. He put his hands around her throat and tried to turn her over to prevent her from seeing him. At some point, Mr. Nardelli ran his hands over D.W.'s groin area over her clothing. Mr. Nardelli tried to bind her wrists with zip ties. The attack lasted twenty to thirty minutes and ended when Mr. Nardelli locked eyes with D.W. and then fled from the house.

Mr. Nardelli tossed his mask into a nearby dumpster and ran to his car. He later wrecked the car, which led to his arrest for the attack on D.W. Apart from the attack on E.F., this was the only other instance of a masked male attacking a woman in her home in Pinellas County between January 2014, when E.F. was attacked, and September 2014, when D.W. was attacked.

Mr. Newby filed a pretrial motion seeking a ruling that evidence of Mr. Nardelli's attack on D.W. was admissible at trial as "reverse Williams rule" evidence to support his defense that he did not attack E.F. See State v. Savino, 567 So.2d 892, 893 (Fla. 1990) (describing "reverse Williams rule evidence" as similar fact evidence offered by a defendant to show that someone else committed the crime for which the defendant is being tried (citing Rivera v. State, 561 So.2d 536, 539 (Fla. 1990) )). The trial court denied the motion because it believed that the circumstances of the Nardelli case were not sufficiently similar to those of the attack on E.F. to warrant admission as reverse Williams rule evidence. Mr. Newby renewed his pretrial motion at the close of the evidence. The trial court adhered to its pretrial ruling.

The Trial

The sole disputed issue at trial was the identity of E.F.'s assailant. There were four main sources of evidence: (1) the testimony of people involved in the events-E.F., Lieutenant Byrd, the deputies involved in the investigation, and Mr. Newby's sister-as to what they saw, heard, and did on the morning of the attack; (2) the results of DNA testing on the sweatshirt and E.F.'s neck, hands, and fingernails; (3) the results of fingerprint analysis of E.F.'s house; and (4) Mr. Newby's own testimony.

The testimony of the people involved in the events was consistent with the facts discussed above. The only significant addition is that Lieutenant Byrd and another deputy testified that when Mr. Newby's sister was presented with the sweatshirt, she said something like, "I'm not going to lie, that's his sweatshirt." Mr. Newby's sister testified that she could not tell whether the sweatshirt belonged to Mr. Newby and that she did not remember making the statement Lieutenant Byrd and the deputy attributed to her or identifying the sweatshirt as Mr. Newby's when they presented it to her.

The DNA evidence was inconclusive at best. DNA from a male was found on E.F.'s neck and right hand, but the DNA analyst's testing of that sample excluded Mr. Newby as a contributor. There was a possible trace contributor of DNA found on E.F.'s left hand, but there was not enough of that DNA collected to permit a comparison to Mr. Newby's (or anyone else's) DNA. No foreign DNA was detected on E.F.'s fingernails. As for the sweatshirt, the State's DNA analyst was unable to determine whether E.F.'s DNA was on the sweatshirt. He was able to determine, however, that a sample taken from the sweatshirt contained a mixture of DNA from two males, meaning that it was a certainty that a man other than Mr. Newby contributed DNA to the sweatshirt. But he could not exclude Mr. Newby as one of the contributors because the DNA profile from that sample could be expected to occur in one out of every nine Hispanic men.

The fingerprint evidence was also less than certain. There were prints on E.F.'s front and bedroom doors that did not match Mr. Newby. There was a partial palm print on E.F.'s bedroom door that did match Mr. Newby, along with other partial prints that did not match him. But that matched print was not conclusively tied to the night of the offense. It was undisputed that Mr. Newby had an on-again-off-again relationship with a woman who was acquainted with E.F. It was also undisputed that Mr. Newby went with this woman to a Halloween party at E.F.'s home three months before the attack. Guests were free to go anywhere in the house, and because E.F. had just bought it, she was giving tours. The State's fingerprint examiner testified both that fingerprints can remain on a surface for a "great length of time" and that there was no way to tell when Mr. Newby left the palm print on the bedroom door. Furthermore, the palm print was stationary-meaning Mr. Newby was not moving when it was made-which was inconsistent with someone running into the bedroom as E.F. described.

Mr. Newby denied breaking into E.F.'s house and attacking her. He testified that after getting off work at a nearby restaurant at around 10:00 p.m., he went out to a couple of bars with friends. They were out until roughly 2:00 a.m. Mr. Newby had two mixed drinks and between six and eight beers. When they were done, a coworker drove Mr. Newby to his sister's house, which was fifteen to twenty minutes away. When he got home, Mr. Newby wanted to have a cigarette before bed, but he did not want to go inside and change clothes first because he feared causing his sister's dog to bark and wake his sister and her boyfriend. So he took off his work clothes outside and placed them next to his backpack.

Mr. Newby then saw a truck drive by that belonged to his sometimes-girlfriend's roommate. Believing she might be home and awake, he walked over to her house. When he got there, he saw that her bedroom light was off and decided she must have been asleep. He saw other people in front of her house who he did not want to talk with, so he took off at a jog in the opposite direction. After a while, he decided to walk by a condo he had been thinking about renting. He got disoriented and decided to head for home. On the way, he had to urinate and saw a secluded place on the other side of the street. As he was crossing the street there, he was intercepted by Lieutenant Byrd.

Mr. Newby was shown the sweatshirt Deputy Aitken and Bosco recovered from the trash can and testified that he believed it was his but that he did not remember there being tears or holes in it. He said he would not have worn a sweatshirt in that condition. He further testified that the last he remembered seeing his sweatshirt was earlier in the evening at one of the bars. He had left the sweatshirt on a change machine, and one of his friends told him not to forget it.

The jury found Mr. Newby guilty of burglary with a battery. The trial court sentenced Mr. Newby to twenty years in prison followed by two years of community control and another eight years of probation. This timely appeal follows.

The Trial Court Should Have Admitted The Reverse Williams Rule Evidence

Mr. Newby argues that the trial court erred by ruling that Mr. Nardelli's attack on D.W. was not sufficiently similar to the attack on E.F. and excluding his reverse Williams rule evidence. We agree that the proffered evidence of Mr. Nardelli's crime was similar enough to the facts of this case to make it relevant to Mr. Newby's defense and, as a result, that the evidence should have been admitted.

In its classic form, the Williams rule, which was first codified at section 90.404(2), Florida Statutes (1976), allows the State to introduce similar fact evidence of other crimes or acts by the defendant to prove a relevant matter in the prosecution of the crimes for which he or she is on trial. McDuffie v. State, 970 So.2d 312, 323 n.2 (Fla. 2007). When the State seeks to admit evidence of other crimes to establish that the defendant committed the offense being tried, the Williams rule requires, among other things, that the State satisfy a strict standard of relevance by demonstrating that there is a substantial similarity between the facts of the other crimes and the facts of the offense being tried. See Robertson v. State, 829 So.2d 901, 909 (Fla. 2002). This prerequisite of similarity requires that the two offenses "share some unique characteristic or combination of characteristics which sets them apart from other offenses." Id. (quoting Heuring v. State, 513 So.2d 122, 124 (Fla. 1987) ). The reason this strict standard is applied to evidence of other crimes is to reduce the risk that a defendant will be convicted based on a jury's assessment of his or her character or criminal propensity instead of the actual evidence of the crime for which he or she is on trial. See McLean v. State, 934 So.2d 1248, 1255 (Fla. 2006) (quoting Heuring, 513 So.2d at 124 ).

The reverse Williams rule is simply the application of Williams rule principles to the circumstance in which a defendant (rather than the State) seeks to introduce evidence of similar crimes committed by another person (rather than the defendant) to show that the defendant did not commit the offense for which he or she is being tried. See McDuffie, 970 So.2d at 323 n.2. Although the risk of wrongful conviction is not present in this context, the supreme court has nonetheless held that reverse Williams rule evidence offered by a defendant must meet the same strict standard of relevance, and thus the same strict standard of similarity, as ordinary Williams rule evidence offered by the State. Savino, 567 So.2d at 893, 894 ; see also Huggins v. State, 889 So.2d 743, 762 (Fla. 2004) (explaining that Savino "rejected the argument that the standard of similarity should be less strict when similar-fact evidence is offered by the defendant"). For a defendant to introduce evidence of similar crimes by another person to shift suspicion from himself or herself to that other person, the "evidence of past criminal conduct of that other person should be of such nature that it would be admissible if that person were on trial for the present offense." Savino, 567 So.2d at 894 ; see also Allison v. State, 746 So.2d 518, 519 (Fla. 2d DCA 1999) (holding that the inquiry when the defendant sought to introduce reverse Williams rule evidence in a murder prosecution is "whether the State could have used this same testimony if [the other person] himself were on trial for the murder"). Accordingly, to determine whether the evidence of Mr. Nardelli's attack on D.W. was admissible in Mr. Newby's prosecution, we must ask whether the State could have introduced evidence of the attack on D.W. if it had been Mr. Nardelli instead of Mr. Newby who was on trial for entering the home of E.F. and attacking her.

Like other evidentiary questions, a trial court's decisions about Williams rule evidence are reviewed for abuse of discretion. See Huggins, 889 So.2d at 761. Our court and others have held, however, "that a trial court has somewhat less discretion in deciding whether to exclude a defendant's reverse Williams rule evidence than in deciding whether to introduce the State's Williams rule evidence." Palazzolo v. State, 754 So.2d 731, 740 (Fla. 2d DCA 2000) ; see also Edwards v. State, 857 So.2d 911, 913 (Fla. 3d DCA 2003) ("As the Florida Supreme Court has recognized, reverse Williams rule evidence has a lower potential for prejudice to the State than standard Williams rule evidence has to the defendant, thus, the trial court has somewhat less discretion to exclude reverse Williams rule evidence."). A standard that reviews the exercise of "somewhat less discretion" than a trial court normally has is, we acknowledge, not capable of precise description. But the general idea is that the appellate courts require more flexibility on reverse Williams rule issues than the abuse of discretion standard usually permits because the issues require the balancing of two competing legal rules-on one hand, an unusual and strict standard of relevance that requires proof of substantial similarity and, on the other, long-settled law "requiring the introduction into evidence of all probative evidence tending to prove a defendant's innocence." Palazzolo, 754 So.2d at 740 ; see also Rivera, 561 So.2d at 539 (recognizing the admissibility of reverse Williams rule evidence and stating that "where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant's guilt, it is error to deny its admission"). The reduced deference we afford a trial court on reverse Williams rule issues thus aligns with our function and vantage point as an appellate court to determine questions that are not purely discretionary but rather have a legal judgment embedded within them.

We turn, then, to whether the trial court's decision that the attack on D.W. was not sufficiently similar to the attack on E.F. to make it admissible was within its discretion. Arguing that the answer is yes, the State emphasizes that the requirement of similarity demands "a unique or 'fingerprint' type" of connection between the crime being tried and the other act sought to be proved. See Savino, 567 So.2d at 894. The fingerprint metaphor can be misleading, however, if it is read to imply that the crimes must be identical in every jot and tittle. The supreme court "has never required the collateral crime to be absolutely identical to the crime charged." Gore v. State, 599 So.2d 978, 984 (Fla. 1992) ; see also Grier v. State, 27 So.3d 97, 100 (Fla. 4th DCA 2009). Rather, it has held that similar act evidence is admissible "where the common points, when considered in conjunction with each other, establish a pattern of criminal activity which is sufficiently unique to be relevant to the issue of identity." Gore, 599 So.2d at 984 ; see also Crump v. State, 622 So.2d 963, 968 (Fla. 1993) ("This Court has upheld the use of collateral crime evidence when the common features considered in conjunction with each other establish a sufficiently unusual pattern of criminal activity."). In contrast, "[i]n cases where there are significant dissimilarities between the collateral crime and the crime charged, the evidence tends to prove only two things-propensity and bad character-and is therefore inadmissible." Gore, 599 So.2d at 984. The question, then, is on which side of the equation this case falls.

There are undoubtedly substantial points of similarity between the attacks on D.W. and E.F. that make the evidence of D.W.'s attack relevant to the identity of E.F.'s attacker. Each attack took place around 3:00 a.m. The victim in each attack was a middle-aged woman living alone in a small home in the Dunedin area. In each case, the perpetrator hid his face with what the victim described as a ski mask, and there was evidence that in each case the perpetrator wore gloves. The perpetrator in each case was described as having hazel-colored eyes. He was also described as being thin-E.F. used that term, and D.W. described her attacker in terms carrying that implication. The perpetrator in each attack wore dark clothes. After entering the home, the perpetrator rushed to the victim's bedroom and jumped on the victim while she was in her bed. The perpetrator in each case tried to move the victim's head so that the victim could not see him. Each case appears to have had a sexual motive. And in each case, the attack ended when the perpetrator's eyes met the victim's, prompting-for whatever reason-the perpetrator to flee the house.

If offered in a prosecution of Mr. Nardelli for the attack on E.F., this evidence would have been admissible to show that the defendant confessed to a similar attack against a similar victim at a similar place using similar means. Considered together, these commonalities make the two offenses unique enough to separate them from other crimes and to tend to prove that Mr. Nardelli committed both such that evidence of the collateral crime (Mr. Nardelli's attack on D.W.) is relevant to the identity of the perpetrator of the attack on E.F. See, e.g., Crump, 622 So.2d at 968 (finding "numerous similarities" establishing "an unusual modus operandi" where victims were the same race and had similar ages and physical builds and the manner of each crime was similar); Gore, 599 So.2d at 983-84 (finding in a kidnapping and murder case, "the required pervasive similarities" for introduction of evidence of other crimes where there were significant similarities between two victims and the attacks were committed using similar pretenses and ended in similar ways). Put differently, the similarities between the two offenses exclude the possibility that evidence of the collateral crime would merely suggest bad character or criminal propensity. Indeed, according to the evidence, these were the only crimes of their kind in Pinellas County in the months around the two attacks.

The State argues that four differences between the attacks on E.F. and D.W. made it proper for the trial court to exclude the evidence: (1) the fact that E.F.'s attacker entered through a locked front door while D.W.'s entered through an unlocked back door; (2) the fact that E.F.'s attack lasted only five minutes while D.W.'s lasted between twenty and thirty; (3) the fact that E.F.'s attacker never spoke to her while D.W.'s did; and (4) the fact that D.W.'s attacker tried to bind her hands with zip ties while E.F.'s did not. As we have discussed, however, the Williams rule does not require that there be no differences between the two offenses. That "would erect an almost impossible standard of admissibility" for similar fact evidence. Chandler v. State, 702 So.2d 186, 194 (Fla. 1997). Rather, in cases where, as here, there are pervasive similarities in the two crimes, the question is whether any differences are significant enough to prevent a conclusion that there is a unique or fingerprint-type modus operandi that unites a principal crime and collateral crime or, instead, whether the dissimilarities between the two crimes are merely insubstantial. See id. at 193 (quoting Gore, 599 So.2d at 980-84 ).

Our decision in State v. Smith, 586 So.2d 1237 (Fla. 2d DCA 1991), illustrates the point. There, the State sought certiorari review of a pretrial order excluding Williams rule evidence in a prosecution for armed burglary and sexual battery. Id. at 1237-38. The State sought to admit evidence of a separate crime committed in the same apartment complex within three weeks of the offense for which the defendant was being tried. Id. at 1238. Both offenses occurred in the early morning hours; both victims were assaulted in second-floor bedrooms; and in both, the perpetrator cut the crotch out of the victim's underwear. Id. In view of the substantial similarities between the two crimes, we held that the trial judge incorrectly excluded the evidence from admission and granted the State's petition. Id. We addressed the defendant's argument that there were differences in the crimes as follows:

Smith argues that the two crimes also exhibit several dissimilarities. While it is true that the Williams [r]ule standard is not satisfied merely by proof that the principal crimes are more alike than unalike, we believe the dissimilarities "in the present case" stem less from a deviation in modus operandi than from mere happenstance. We do not find the presence of "substantial dissimilarities" such as would overcome the strong argument for the use of Williams [r]ule evidence.

Id. (citation omitted) (quoting Thompson v. State, 494 So.2d 203, 204 (Fla. 1986) ).

Our decision in Corbett v. State, 113 So.3d 965 (Fla. 2d DCA 2013), involved a prosecution for kidnapping, robbery, and sexual battery and is to similar effect. The trial court there admitted Williams rule evidence of another offense that had significant similarities to the one being tried, which included the facts that (1) the defendant knew both victims, (2) both offenses took place on a holiday, (3) both offenses involved the use of a knife, (4) both victims were forced to undress and remain that way, (5) both victims were forced to ride in a car's reclined passenger seat, (6) the defendant drove both victims to ATMs and took money from their accounts, (7) both offenses lasted several hours, and (8) both victims were released. Id. at 970. Affirming the trial court's ruling, we held that these similarities satisfied the Williams rule. Id. at 970. And we rejected the notion that dissimilarities between the two crimes required a different result, explaining that "the uniqueness of the striking similarities outweighs the differences" and that "[t]he evidence in this case was similar and unique enough" to justify its admission. Id.

We reach the same conclusion here about the differences the State identifies. We do not regard the use of the unlocked door and the duration of the attack as differences in modus operandi at all; as in Smith, they are merely differences in the circumstances that presented themselves to the perpetrator of each crime. See also Chandler, 702 So.2d at 194 (explaining that differences between offenses do not go to uniqueness where they merely reflect differences in the opportunities with which the perpetrator was presented). Someone attempting to break into a home would logically prefer an unlocked door to a locked one (one was available at D.W.'s home, one evidently was not at E.F.'s home), and regardless of how long the two attacks lasted, the evidence showed that both attacks ended when the perpetrator locked eyes with the victim (on the facts presented, it took longer for this to occur in D.W.'s case than in E.F.'s case). Neither fact detracts from the pervasive similarity of modus operandi in the two cases. The perpetrator's talking to D.W. and using zip ties, however, do arguably present differences in the manner in which the attacks on D.W. and E.F. were committed. But, as in Smith and Corbett, those differences are not striking enough to warrant exclusion of the evidence in light of the substantial similarities between the attacks. These similarities-the hazel eyes, the mask, the gloves, the similarities between the victims, and the fact that both offenses ended when the perpetrator's eyes met the victim's, among others-tend to show that the two offenses were committed by the same person and thereby make the admission of evidence related to the attack on D.W. relevant.

Based on our record, evidence of the attack on D.W. would have been admissible under the Williams rule had Mr. Nardelli (instead of Mr. Newby) been on trial for the attack on E.F. For that reason, the trial court abused its discretion by prohibiting Mr. Newby from introducing that evidence under the reverse Williams rule here.

The Trial Court's Error Was Not Harmless Beyond A Reasonable Doubt

The State argues that any error in precluding evidence of D.W.'s attack was harmless because "Mr. Newby was still able to argue that another person committed burglary." To prevail on this argument, the State must "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986). It cannot do that on these facts.

Mr. Newby's explanation for why he was where he was on the morning of January 3, 2014, is, to say the least, unusual. A reasonable juror might say that the only thing that made it arguable was Mr. Newby's consumption of eight to ten drinks before meeting Lieutenant Byrd. But we cannot overlook that the State's evidence of Mr. Newby's guilt was not exceptionally compelling. E.F.'s description of who attacked her bore marked physical differences to Mr. Newby. The DNA evidence established nothing except that there was a possibility that Mr. Newby was one of two male contributors to the DNA sample taken from the sweatshirt that Deputy Aitken and Bosco found. Yet E.F.'s DNA was not on that sweatshirt, and the DNA of a man other than Mr. Newby was. There is a plausible innocent explanation for Mr. Newby's partial palm print on E.F.'s bedroom door. Bosco did not lead Deputy Aitken to Mr. Newby, and Mr. Newby through cross-examination sought to raise questions about the reliability of Bosco's efforts to follow the scent the dog picked up outside E.F.'s house.

Mr. Newby's defense was exclusively about identity. Of course, he was able to argue that the perpetrator had to be someone else. But had the trial court admitted the reverse Williams rule evidence, that defense would have been bolstered by allowing the jury to consider whether that someone was Mr. Nardelli, who confessed to a similar offense-which was the only other crime of its type at the time in that area-against a similar victim in the same general area. The evidence would have enabled Mr. Newby to put a face and a similar crime to the theory. Given that the State's case on identity was close, we cannot conclude that there is no reasonable possibility that the exclusion of Mr. Newby's reverse Williams rule evidence did not contribute to the verdict. See, e.g., Baskin v. State, 255 So.3d 895, 899 (Fla. 2d DCA 2018) (holding that the erroneous admission of evidence bearing on identity was not harmless where the State's other evidence of identity was slight); In re K.C., 582 So.2d 741, 742 (Fla. 4th DCA 1991) (reaching the same conclusion with respect to the erroneous exclusion of reverse Williams rule evidence bearing on identity).

Conclusion

For the foregoing reasons, we reverse Mr. Newby's judgment and sentence and remand this case for a new trial or for such other proceedings as are consistent with this opinion.

Reversed and remanded.

KHOUZAM and BLACK, JJ., Concur.

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

      There was also evidence of a burglary with a battery committed by Mr. Nardelli in 2006, but Mr. Newby's counsel stated that Mr. Newby was not seeking the admission of that evidence at the trial.

      In fairness to the trial court, the way Mr. Newby presented his reverse Williams rule evidence was less than ideal. The facts were presented to the trial court by way of stipulation, testimony, and documents (like deposition transcripts) at various points before and during trial. At one point during a midtrial proffer, the trial court remarked with some justification that it appeared that Mr. Newby was using the proffer as discovery rather than to get facts before the court. The State has not argued that anything about Mr. Newby's presentation of the facts and issues provides an alternative ground for affirmance here, however, and under the circumstances of this case we decline to do so on our own initiative. See, e.g., Gomillion v. State, 267 So.3d 502, 507 (Fla. 2d DCA 2019).

      Mr. Newby has raised additional appellate arguments, but because we find the reverse Williams rule issue dispositive, we do not address them.

      This is not the universal approach to an attempt by a criminal defendant to offer other crimes evidence to shift suspicion to another person. See Rivet v. State, --- So.3d ----, ----, 43 Fla. L. Weekly D1651, D1652 (Fla. 1st DCA July 25, 2018) (explaining that in contrast to the Florida courts, "many courts relax the standard for admitting this kind of evidence" and collecting federal cases to establish that proposition).

      In this sense, it is not altogether different from saying, as the courts routinely do, that a trial court's discretion in passing on evidentiary questions is limited by the rules of evidence and the decisions interpreting them. See Davis v. State, 121 So.3d 462, 481 (Fla. 2013) (quoting Hayward v. State, 24 So.3d 17, 29 (Fla. 2009) ).

      Although the State does not argue that this is a material difference between the two offenses, we note that on the facts of this case, the fact that D.W.'s attack occurred nine months after E.F.'s attack does not alter our conclusion. See Corbett, 113 So.3d at 970 ("The time in between the crimes did not render the Williams rule evidence irrelevant in light of the other strong factors that render the evidence relevant.").

      We disagree with the State that this case is similar to Cooper v. State, 45 So.3d 490, 494 (Fla. 4th DCA 2010), in which the Fourth District affirmed a trial court's exclusion of reverse Williams rule evidence. That case involved two drug-related murders with a firearm, and the similarities consisted of the facts that both victims were black and involved with drugs and that both bodies had been shot in similar places and left in similar positions. Id. at 493. That case involved no hallmarks of the kind present here, and the Fourth District correctly held that any similarities in Cooper were "overly general" and insufficiently unique. See id. at 494.


source: Caselaw Access Project

author: HARRIS, J.

license: Public Domain

text:
    David Alexander Clarke ROSEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2974
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, J.

David Alexander Clarke Rosen challenges his judgment and sentence for burglary of a dwelling with an assault or battery. We affirm in all respects except for the written judgment, which we remand for correction of a scrivener's error. The judgment and order of revocation cites to section 810.02(4), Florida Statutes (2018). That subsection covers burglary as a third-degree felony, wherein the perpetrator enters an unoccupied structure or conveyance, does not become armed, and does not commit any assault or battery. The crime underlying the community control and probation proceedings in the instant case is burglary as a first-degree felony punishable by life, because Rosen entered a dwelling and battered the occupant. Accordingly, we remand with directions that this scrivener's error be corrected so that the judgment accurately reflects section 810.02(2)(a) as the underlying offense. Thomas v. State, 174 So. 3d 599, 600 (Fla. 5th DCA 2015) (case remanded to correct judgment containing a scrivener's error).

AFFIRMED; remanded to correct scrivener's error

LAMBERT and EDWARDS, JJ., concur.


author: PER CURIAM.

text:
    Brandi JENKINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2706
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Following a nonjury trial, the defendant, Brandi Jenkins, was found by the court to have willfully and materially violated the terms of her community control. Jenkins had previously received a five-year prison sentence for burglary of a conveyance and a consecutive two-year prison sentence for felony petit theft, with both sentences suspended conditioned upon Jenkins successfully completing her community control. The trial court revoked Jenkins's community control and sentenced her to serve the full suspended sentence.

Jenkins's sole argument on appeal is that the trial court failed to understand that it had the discretion not to impose the entire suspended sentence once it revoked her community control. Jenkins is correct that a suspended sentence merely acts as a cap on the sentencing court, and it is not required to impose the suspended sentence in the event of a violation of community control or probation. See Harvey v. State , 156 So. 3d 583, 585 (Fla. 5th DCA 2015). The court retains the discretion and authority to impose any sentence that it could otherwise have imposed. Id.

Subsequently to filing her notice of appeal, Jenkins filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2), asserting that the trial court had committed an error in sentencing by failing to recognize its discretion to impose a sentence that was less than the aggregate seven-year suspended sentence. In timely denying the motion, the court acknowledged Jenkins's argument and its discretion in sentencing, but it nevertheless declined to reconsider and modify the sentence. Thus, because it appears that the trial court was aware of its authority and discretion to have imposed less than the full suspended sentence, but simply declined to do so, we affirm the order revoking community control and the resulting judgment and sentence.

AFFIRMED.

LAMBERT, EISNAUGLE and HARRIS, JJ., concur.


text:
    James Edward BOFFO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-15
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

James Edward Boffo (the defendant) appeals the trial court's order revoking his community control. Determining that the trial court abused its discretion in denying the defendant's motion to continue, we reverse and remand for a new evidentiary hearing.

The defendant pled no contest to three crimes, including domestic battery by strangulation. The trial court sentenced him to five years in prison, suspended upon the successful completion of two years of community control. Approximately three months after sentencing, a community control officer filed an affidavit alleging that the defendant tested positive for cocaine in violation of a condition of supervision. Following the defendant's arrest for the violation, an assistant public defender was appointed to represent him. The week before the scheduled hearing, the assigned attorney met with the incarcerated defendant and apprised him that he would be leaving the country due to military service and would be unable to represent him at the evidentiary hearing.

The defendant's case was transferred to a different assistant public defender. On the day of the hearing, the newly assigned attorney requested a continuance, emphasizing that she was unprepared for the hearing, she had not spoken with her client about his defenses, and the client was uncomfortable with her representation. The court denied the motion to continue, remarking that any public defender could "stand in" to represent the defendant on what it considered to be an uncomplicated case.

At the onset of the hearing, defense counsel renewed her request for a continuance, stressing that a subpoenaed witness, essential to the defense, was not present. She further noted that another defense witness had not been subpoenaed. The trial court announced that it must consider seven factors in ruling on the renewed motion. The court briefly went through a list of factors, focusing specifically on the simplicity of the case, the experience of the defense attorney, and the merits of the defense. The trial court then denied the renewed motion to continue, and the hearing proceeded. Ultimately, the trial court found that the defendant materially violated a condition of his community control and imposed a five-year prison sentence. This appeal timely followed.

As a general rule, the denial of a motion to continue is within the discretion of the trial court, and the ruling will not be disturbed on appeal unless there is a "palpable" abuse of discretion. See Brown v. State, 942 So. 2d 12, 14 (Fla. 1st DCA 2006) ; see also Smith v. State, 525 So. 2d 477, 479 (Fla. 1st DCA 1988).

"Criminal defendants are entitled to a preparation period sufficient to assure at least minimal quality of counsel." McKay v. State, 504 So. 2d 1280, 1282 (Fla. 1st DCA 1986). However, "th[is] right is not absolute but at some point must bend before countervailing interests involving effective administration of the courts." Id. Thus, when ruling on a motion to continue, the trial court must consider whether defense counsel has had reasonable time to investigate and prepare a defense while balancing the need for judicious court management. Id. To this end, the First District established seven factors in McKay to be considered by trial courts in ruling on a motion to continue based on inadequate preparation time. See Madison v. State, 132 So. 3d 237, 242 (Fla. 1st DCA 2013). Appellate courts rely on these same factors in determining whether the trial court abused its discretion in denying such a motion. See Trocola v. State, 867 So. 2d 1229, 1231-32 (Fla. 5th DCA 2004) ; D.N. v. State, 855 So. 2d 258, 260 (Fla. 4th DCA 2003).

In this case, there is no indication that the trial court considered the McKay factors when it first denied the motion to continue. Moreover, although the trial court referenced the factors in rendering its decision as to the renewed motion, we conclude that it failed to give certain factors due consideration.

First, defense counsel had only recently been assigned to the case and was not afforded sufficient time to prepare or investigate. She stressed that she had been unable to speak with the defendant about his defenses. The preparation time was clearly inadequate under this particular set of circumstances, and she was forced to proceed to the evidentiary hearing having only just met the defendant. See Trocola, 867 So. 2d at 1231 ("The 'common thread' connecting cases finding a 'palpable' abuse of discretion in the denial of a continuance seems to be that defense counsel must be afforded a reasonable opportunity to investigate and prepare any applicable defenses."); see also Jones v. State, 58 So. 3d 922, 923-24 (Fla. 5th DCA 2011).

Second, the defendant did not play any role in reducing the preparation time. The defendant did not fire his original attorney. Rather, the attorney could not attend the hearing due to military service, and the case was transferred to different counsel. See Trocola, 867 So. 2d at 1231.

Third, there was a great likelihood of prejudice by the denial of the continuance. Counsel stated, again due to her recent assignment to the case, that she had been unable to contact any defense witnesses, and at least one potential witness had not been subpoenaed. See D.N., 855 So. 2d at 260.

Therefore, given the facts of this case, we hold that the trial court abused its discretion in denying the defendant's motion to continue. Accordingly, we reverse the order finding a violation of community control as well as the judgment and sentence based on it, and we remand this case for a new evidentiary hearing before a different trial judge.

REVERSED AND REMANDED with instructions.

HARRIS and GROSSHANS, JJ., concur.

COHEN, J., concurs and concurs specially.

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

I fully agree with the majority opinion that the trial court abused its discretion by requiring defense counsel, who had never met Boffo and who had recently acquired the case, to proceed at the violation hearing. I write to note other aspects of this case that are troubling.

On appeal, Boffo argues that the court found a violation of his community control based solely on hearsay. Over objection, the community control officer testified that Boffo presumptively tested positive for the presence of cocaine during a random drug screen performed within the probation office. Boffo denied using cocaine, and under those circumstances, protocol required sending the sample to a state-approved drug testing laboratory for a more scientifically reliable analysis. The office sent the sample to Alere Toxicology Services, and the laboratory generated a report indicating that Boffo tested positive for cocaine.

At the hearing, the following exchange occurred:

STATE: Is that the report that was provided to the Citrus County Probation Office from Alere Toxicology in this case?
OFFICER: Yes, sir.
STATE: And does it fairly and accurately-is it in the same or substantially same condition as when you received it-
OFFICER: Yes.
STATE: -back from the lab?
STATE: Judge, at this time I would seek to introduce State's Exhibit A into evidence as State's Exhibit 1.
COURT: Any objections or voir dire?
DEFENSE: Just the objection I made earlier.

While defense counsel previously objected to the admission of the community control officer's testimony regarding the results of the presumptive test, it is unclear how that objection applied to the introduction of the laboratory report. Thus, defense counsel's second objection failed to preserve any objection to the laboratory report.

Boffo did not contest that the laboratory report indicated the presence of cocaine in his system; instead, his defense was that someone put cocaine in his drink. Thus, Boffo essentially claimed that the violation was not willful.

The record reflects that the court believed the case to be clear-cut. What followed though was a series of inappropriate comments by the court. When the case was called back for the hearing after a brief delay, the court commented, "We've got witnesses here. We're all here for the-for the show."

After the State rested, Boffo again complained about being represented by a lawyer he had met that day. The court then conducted what appears to have been a Nelson inquiry and stated, "[T]his wandering, rambling dissertation about how this cocaine could have somehow wound up in your-in your food is-is-it's laughable. It's sadly laughable."

The court dismissed Boffo's complaints about his lawyer and subsequently asked whether Boffo wished to testify, "[a]s opposed to just gripe about not having the attorney who's serving the military sitting there next to you?" Predictably, Boffo declined to testify.

Boffo then raised an issue regarding the failure to have a competency exam and requested a " Boykin inquiry." The court responded:

You might want to check on things like Miranda, Escobedo, maybe-you've already talked about maybe Spenkelink, maybe Hildwin and other cases if you're just throwing out names. I don't know where you're getting your legal advice, pal, but it's embarrassing. There's no good cause to show why I should not render judgment.

Without asking whether either side wished to make a closing argument, the court found Boffo in violation of his community control and sentenced him to five years in the Department of Corrections. The court also failed to give Boffo an opportunity to argue potential mitigation.

I recognize the stresses trial courts face. I also understand that there are defenses proffered which strain the limits of credulity, and defendants who test trial courts' patience. However, as our reversal reflects, Boffo had a legitimate issue with proceeding at the hearing with a lawyer he had never spoken to or met. The court should have treated Boffo with respect rather than ridicule. As our code of judicial conduct provides, "A judge shall be patient, dignified, and courteous to litigants ...." See Fla. Code Jud. Conduct, Canon 3B(4). While the court was entitled to reject Boffo's proffered defense, it arguably failed to conduct itself in accordance with the judicial code when it demeaned Boffo and rejected his defense before it had been formally presented.

      Because we reverse on this ground and remand for a new hearing, we need not reach the merits of the other issues raised in this appeal.

      The factors established in McKay include the following: 1) The time actually available for preparation; 2) The likelihood of prejudice from the denial; 3) The defendant's role in shortening preparation time; 4) The complexity of the case; 5) The availability of discovery; 6) The adequacy of counsel actually provided; and 7) The skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime. See McKay, 504 So. 2d at 1282.

      Laboratory reports are admissible hearsay at violation hearings, but hearsay alone cannot be the basis to revoke community control; rather, non-hearsay evidence must support the hearsay evidence. E.g., State v. Queior, 191 So. 3d 388, 390 (Fla. 2016).

      Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973) (providing inquiry courts should make when a defendant requests discharging court-appointed counsel). However, the court's inquiry reads more like a Faretta inquiry, which has a different objective. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (providing inquiry courts should make when a defendant requests proceeding pro se). While the court's purported Nelson inquiry was inadequate, defense counsel, once again, failed to preserve this issue with an objection.

      As the majority noted, Boffo's first court-appointed lawyer was called up for military service immediately before Boffo's case was set for a hearing.

      Presumably Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (providing inquiry courts should make into the circumstances surrounding a plea).

      See Fla. R. Crim. P. 3.720(b). While there was no opportunity to object before the court imposed the sentence, defense counsel should have done so at the earliest possible occasion. However, because defense counsel once again failed to object, this issue is not preserved for appeal.


text:
    Anthony Edward NERO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2500
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019
    Anthony Edward Nero, Sneads, pro se.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant's convictions and sentences without discussion, but we remand with instructions to reduce the misdemeanor sentences in counts one, three, and four to writing. See Giordano v. State, 32 So. 3d. 96, 98 (Fla. 2d DCA 2009) (remanding with instructions to issue written sentence to reflect time-served sentence on misdemeanor).

AFFIRMED; REMANDED with Instructions.

EVANDER, C.J., BERGER and SASSO, JJ., concur.


text:
    R.W., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3701
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2019.
    Patricia Alten, Tampa, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

R.W. appeals the disposition order committing him to the Department of Juvenile Justice following his adjudication of delinquency for trespass in a conveyance as a lesser included offense of burglary of an unoccupied conveyance, grand theft of a motor vehicle, grand theft, and resisting an officer without violence. We affirm the adjudication and the ensuing disposition, but we reverse the written disposition order and remand to the juvenile court to correct it to accurately reflect the oral pronouncement.

Following the adjudicatory hearing, the trial court orally found that R.W. committed the offense of trespass in a conveyance, a second-degree misdemeanor. See § 810.08, Fla. Stat. (2016). However, the disposition order indicates that he was adjudicated delinquent of the offense of trespass on property other than a structure or a conveyance, a first-degree misdemeanor. See § 810.09(2)(a). Accordingly, we reverse the disposition order and remand for entry of an order that comports with the oral pronouncement.

Affirmed in part, reversed in part, and remanded.

LaROSE, C.J., and NORTHCUTT and KHOUZAM, JJ., Concur.


text:
    Gustavo LA ROSA, Appellant, v. Karen LA ROSA, Appellee.
    Case No. 5D18-3935
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019
    Gustavo La Rosa, Ocala, pro se.
    Pamela J. Helton and Barry V. Newton, Jr., of Law Office of Pamela J. Helton, P.A., Clermont, for Appellee.
   PER CURIAM.

We affirm the trial court's finding that the former husband engaged in vexatious and unnecessary litigation in his pursuit, and then last-minute withdrawal, of his motion for contempt against the former wife. However, it was error for the trial court to set the amount of fees prior to affording either party the opportunity to present evidence on the matter. Caryi v. Caryi , 83 So. 3d 960, 961 (Fla. 5th DCA 2012) (holding that fee award in dissolution proceeding must be supported by competent, substantial evidence).

On remand, the trial court is directed to conduct an evidentiary hearing to determine the amount of attorney's fees, if any, to be paid by the former husband after giving due consideration to the factors set forth in Rosen v. Rosen , 696 So. 2d 697, 700 (Fla. 1997). The other issues raised on appeal are without merit.

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

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


text:
    Susan CIVIC, Appellant, v. CENLAR, FSB, Daniel D. Civic, Voice of Hope, Inc., TD Bank, N.A., Clerk of the Circuit Court, Fifth Judicial Circuit, Lake County, Florida and Suntrust Bank, Appellees.
    Case No. 5D18-3442
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019
    Susan Civic, Leesburg, pro se.
    Charles P. Gufford, of McCalla Raymer Liebert Pierce, LLC, Orlando, for Appellee. Cenlar, FSB.
    No Appearance for Other Appellees.
   PER CURIAM.

AFFIRMED without prejudice to challenge the trial court's personal jurisdiction over Susan Civic in a motion filed pursuant to Florida Rule of Civil Procedure 1.540. We express no opinion on the merit of any such motion filed.

EVANDER, C.J., ORFINGER and BERGER, JJ., concur.


author: Bilbrey, J.

text:
    Gary P. LEDSOME, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3859
    District Court of Appeal of Florida, First District.
    June 12, 2019
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Bilbrey, J.

Gary P. Ledsome appeals the revocation of his probation on multiple grounds. As one of the bases of revocation is not supported by competent and substantial evidence, we reverse and remand.

Ledsome was alleged to have violated several conditions of probation, including the failure to report to his probation officer on May 1, 2018, as required. At the revocation hearing, the probation officer testified Ledsome was given until the 31st of that month to report, but other evidence adduced at the hearing on the affidavit of probation established Ledsome was arrested on the 31st. Thus, the violation for failure to report on May 1st is not established in the record by competent, substantial evidence. While other violations were established, the trial court did not indicate whether it would revoke probation and impose the same sentence absent a violation for failure to report to the probation officer, and therefore, we must remand this cause to the trial court. See Washington v. State , 215 So. 3d 202 (Fla. 1st DCA 2017).

Further, the written order of revocation does not conform to the trial court's oral pronouncements, the latter of which controls. See Justice v. State , 674 So. 2d 123 (Fla. 1996). While the written order finds violations of conditions 2, 10, and 15, the trial court did not orally find such violations. The written order does not refer to a violation of condition 1 (failure to report) nor multiple violations of condition 5 (new law violations), despite the trial court's oral pronouncement at the hearing below that Ledsome had substantially and willfully violated these conditions. A corrected written order is therefore required.

Accordingly, the cause is REVERSED and REMANDED for further proceedings.

Ray and Jay, JJ., concur.


text:
    Peter Allen ANDERSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-1104
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019 Rehearing Denied June 12, 2019
    Peter Allen Anderson, Indiantown, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Due to Petitioner's apparent abuse of the legal process by his abusive, repetitive, malicious, or frivolous pro se filings attacking his judgment(s) and sentence(s) in Seminole County Circuit Court Case Number 14-CF-0877-A, this Court issued an order directing Petitioner to show cause why he should not be prohibited from future pro se filings. See State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999). Having carefully considered the response and finding it fails to show cause why sanctions should not be imposed, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, Petitioner is prohibited from filing with this Court any further pro se filings concerning the above referenced case. The Clerk of this Court is directed not to accept any further pro se filings concerning the referenced case. Any future filings regarding the referenced case will be summarily rejected by the Clerk, unless filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So. 2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary proceedings. See § 944.279(1), Fla. Stat. (2018) ; Simpkins v. State, 909 So. 2d 427, 428 (Fla. 5th DCA 2005).

FURTHER PRO SE FILINGS PROHIBITED.

WALLIS, LAMBERT and SASSO, JJ., concur.


author: Ray, J.

text:
    Marie LAFLEUR, Appellant, v. The ARBOR HOLDING COMPANY LLC d/b/a Barrington Terrace of Fort Myers and United Wisconsin Insurance Company, Appellees.
    No. 1D18-0381
    District Court of Appeal of Florida, First District.
    June 12, 2019
    Cory J. Pollack, Fort Myers, and Bill McCabe, Longwood, for Appellant.
    Robert C. Barrett and McKensey M. Sims of Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., Orlando, for Appellees.
   Ray, J.

In this workers' compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying Claimant the right to select the doctor who would serve as her one-time change of physician available under section 440.13(2)(f), Florida Statutes (2014). We reverse on the authority of Myers v. Pasco County School Board , 246 So. 3d 1278 (Fla. 1st DCA 2018), because the record does not contain sufficient evidence to support the JCC's finding that the Employer/Carrier's authorization of an anesthesiologist, although made within five calendar days of Claimant's request for a one-time change, satisfied their statutory obligation to provide a physician in the "same" specialty as the previously authorized physician who specializes in physical medicine and rehabilitation. Section 440.13(2)(f) contemplates that the originally authorized physician be "in the same specialty as the changed physician." Myers held that "[a] physician who provides similar services in a different specialty does not qualify as a doctor in the 'same specialty' because-quite simply-'same' is different than 'similar.' " Id. at 1279.

REVERSED and REMANDED for further proceedings in accordance with this opinion.

Roberts and Winsor, JJ., concur.

      The JCC did not have the benefit of the Myers opinion before rendering the order under review.


text:
    Eric Dewayne CURTIS v. MICHELS CORPORATION, et al.
    No. 2019-C-543
    Supreme Court of Louisiana.
    June 3, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF ALLEN
    Writ denied.
    HUGHES, J., additionally concurs and assigns reasons.
    Hughes, J., additionally concurs and assigns reasons.
   Any dismissal not specifically designated "with prejudice" is considered to be "without prejudice." See La.C.C.P. art. 1673 ; State ex rel. Dep't of Soc. Serv. v. A.P. , 02-2372 (La. App. 1 Cir. 6/20/03), 858 So.2d 498 ("[w]hen the judgment is silent as to whether it is being dismissed with or without prejudice, the dismissal must be without prejudice.")


author: PER CURIAM:

text:
    STATE of Louisiana v. Vincent SIMMONS
    No. 19-OK-0388
    Supreme Court of Louisiana.
    June 3, 2019
    ON SUPERVISORY WRITS TO THE TWELFTH JUDICIAL DISTRICT COURT, PARISH OF AVOYELLES
   PER CURIAM:

Denied. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-456901
    NO. 2018-BA-1790
    Supreme Court of Louisiana.
    June 3, 2019
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

Petitioner sat for and passed the July 2018 Louisiana Bar Examination. Thereafter, the Committee on Bar Admissions ("Committee") advised petitioner that it could not certify her for admission to the bar on character and fitness grounds. Petitioner then applied to this court, seeking admission to the bar or, alternatively, the appointment of a commissioner. After consideration, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following a hearing, the commissioner filed his report with this court, recommending that petitioner be admitted to the practice of law. Neither party objected to this recommendation.

Considering the commissioner's recommendation and the entire record of this proceeding, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.

Clark, J., would deny.


text:
    STATE of Louisiana v. Kendrick TAYLOR
    No. 18-KP-2009
    Supreme Court of Louisiana.
    June 3, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Gimoh SHEARD
    No. 2019-KK-930
    Supreme Court of Louisiana.
    June 7, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Writ denied . Without demonstrating justification as required by Rule 4-3 of the Uniform Rules, Courts of Appeal, the state's application for supervisory review in the appellate court was untimely.
   GUIDRY, J., would grant.


text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CC-0529
    Supreme Court of Louisiana.
    June 3, 2019
    Not considered. See La.S.Ct.R. IX, § 6.
   HUGHES, J., would grant reconsideration.

CRICHTON, J., would grant reconsideration.

GENOVESE, J., would grant reconsideration.


text:
    CROSSTEX ENERGY SERVICES, LP, Crosstex Lig, LLC and Crosstex Processing Services, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CC-053C
    Supreme Court of Louisiana.
    June 3, 2019
    Not considered. See La.S.Ct.R. IX, § 6.
   HUGHES, J., would grant reconsideration.

CRICHTON, J., would grant reconsideration.

GENOVESE, J., would grant reconsideration.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CC-0528
    Supreme Court of Louisiana.
    June 3, 2019
    Not considered. See La.S.Ct.R. IX, § 6.
   HUGHES, J., would grant reconsideration.

CRICHTON, J., would grant reconsideration.

GENOVESE, J., would grant reconsideration.


text:
    STATE of Louisiana v. Benjamin GUILLORY
    NO. 2019-KO-0606
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    The CITY OF ALEXANDRIA v. WOMACK & SONS CONSTRUCTION, INC., et al.
    NO. 2019-CC-0580
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    STATE of Louisiana v. Desmond C. PARKER
    State of Louisiana v. Desmond C. Parker
    State of Louisiana v. Desmond C. Parker
    NO. 2019-KO-0179
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    SUCCESSION OF Paul VAN THORNTON
    NO. 2019-C-0576
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


author: WEIMER, J., would grant.

text:
    CITY OF BATON ROUGE v. Thomas SWAYZE
    NO. 2019-KK-0574
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Andrew J. METOYER
    NO. 2019-KO-0605
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    STATE of Louisiana v. Larry R. BROWN, Jr.
    NO. 2019-KO-0297
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    STATE of Louisiana v. Malik GRAY
    NO. 2019-KD-0918
    Supreme Court of Louisiana.
    June 6, 2019
    Stay denied; writ denied.


text:
    STATE of Louisiana v. Devin SINGLETON
    NO. 2019-KH-0886
    Supreme Court of Louisiana.
    June 3, 2019
    Relator represents that the district court has failed to act timely on a motion to suppress filed on or about May 2, 2018. If relator's representation is correct, the district court is ordered to consider and act on the motion. If relator's representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


author: GENOVESE, J., would grant.

text:
    STATE of Louisiana v. Bill RUMFIELD
    NO. 2019-KK-0857
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.
   GENOVESE, J., would grant.


author: HUGHES, J., would grant.

text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CD-0922
    Supreme Court of Louisiana.
    June 7, 2019
    Stay denied; writ denied.
   HUGHES, J., would grant.

GENOVESE, J., would deny stay and grant the writ.


text:
    CROSSTEX ENERGY SERVICES, LP, Crosstex Lig, LLC and Crosstex Processing Services, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CD-0923
    Supreme Court of Louisiana.
    June 7, 2019
    Stay denied; writ denied.
   HUGHES, J., would grant.

GENOVESE, J., would deny stay and grant the writ.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CD-0921
    Supreme Court of Louisiana.
    June 7, 2019
    Stay denied; writ denied.
   HUGHES, J., would grant.

GENOVESE, J., would deny stay and grant the writ.


text:
    Jessica T. FRANCIS, et al. v. HUDSON INSURANCE GROUP, et al.
    NO. 2019-CC-0920
    Supreme Court of Louisiana.
    June 13, 2019
    Denied.


author: GENOVESE, J., recused.

text:
    IN RE: The PEROXISOME TRUST
    NO. 2019-CC-0896
    Supreme Court of Louisiana.
    June 12, 2019
    Denied.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Jonathan JASON
    NO. 2019-KK-0963
    Supreme Court of Louisiana.
    June 12, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Phillip MARTIN
    NO. 2019-KK-0871
    Supreme Court of Louisiana.
    June 12, 2019
    Stay denied. Writ denied.