author: Winsor, J.

text:
    Christopher WADE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1233
    District Court of Appeal of Florida, First District.
    February 11, 2019 Rehearing Denied March 20, 2019
    Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

A jury convicted Christopher Wade of sexual battery with a deadly weapon, and the court sentenced him to life in prison. This is Wade's appeal.

I.

Wade's twenty-eight-year-old victim was walking on a sidewalk early one morning. Wade approached her on a bicycle, spoke to her briefly, and then put a knife to her neck and raped her. Afterward, Wade rode off, and the victim ran home. The victim immediately woke up her husband and then went to the hospital, where medical professionals examined her and gathered DNA that turned out to match Wade's.

After the victim testified at trial, the State presented testimony from two other women Wade had sexually assaulted. Both testified to similar encounters: They reported that Wade had approached them on a bicycle, threatened them with a knife, and forced them to have sex with him. (DNA recovered from those women also matched Wade.) Wade testified that he never forced anyone to have sex with him. He said that he frequented prostitutes and acknowledged that he may have had sex with all three women, but he insisted that if he did, it was consensual. The jury rejected his defense, returning a guilty verdict.

II.

Wade first argues that he was denied his Sixth Amendment right to conflict-free counsel. Wade's appointed trial attorney, who was with an Office of Criminal Conflict and Civil Regional Counsel (OCCCRC), discovered during trial that another OCCCRC attorney was representing the victim in an unrelated dependency proceeding. Wade's attorney insisted she was unaware of the other representation, that she knew nothing of the dependency case, and that nothing about that other representation had (or would) affect her representation of Wade.

After learning that the same office represented Wade and his victim, the judge put Wade under oath and asked whether he wished "to waive any possible conflict." Wade said he did. The judge then remarked that "an actual conflict has not really surfaced," but nonetheless found that Wade had "freely, voluntarily, and knowingly waived any theoretical conflict."

Wade now argues that there was an actual conflict of interest, that he never knowingly waived it, and that his Sixth Amendment rights were violated as a result. We reject that argument. "Multiple representation alone does not violate the Sixth Amendment, and in the absence of an objection, a court can presume there is no conflict of interest." State v. Alexis , 180 So.3d 929, 936 (Fla. 2015). When there is no objection (and there was none here) courts will not find a Sixth Amendment violation unless the defendant shows an actual conflict. Id. And an actual conflict, for these purposes, means a conflict "that adversely affect[s] counsel's performance." Id. at 937 ; accord Mickens v. Taylor , 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (noting that "actual conflict of interest" means "a conflict that affected counsel's performance -as opposed to a mere theoretical division of loyalties"); Cuyler v. Sullivan , 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ("In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.").

Wade has made no showing-indeed no argument-that the OCCCRC's representation of the victim (through a separate attorney) adversely affected his counsel's performance. His attorney indicated she had no knowledge of the victim's dependency case; she had not been aware there even was a dependency case, much less that another attorney in her office was handling it. Wade's attorney vigorously cross-examined the victim in Wade's defense, and she unambiguously told the court that her office's involvement in the dependency case would not affect her representation of Wade. There is nothing in this record to suggest otherwise. Cf. Cuyler , 446 U.S. at 348-50, 100 S.Ct. 1708 (noting that an actual conflict existed where "record showed that defense counsel failed to cross-examine a prosecution witness whose testimony linked [defendant] with the crime and failed to resist the presentation of arguably inadmissible evidence [because of] counsel's desire to diminish the jury's perception of a codefendant's guilt" (citing Glasser v. United States , 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ).

As in State v. Alexis , "there was no need for an inquiry into the knowing, intelligent, and voluntary nature of the waiver because, since there had been no finding of an actual conflict of interest, there was no need for a waiver." 180 So.3d at 938. Wade's Sixth Amendment rights were not violated.

III.

Wade's other argument is that the court abused its discretion by admitting testimony of two other sexual-assault victims. Under Florida's Evidence Code, in prosecutions for certain sex crimes, "evidence of the defendant's commission of other crimes, wrongs, or acts involving a sexual offense is admissible and may be considered for its bearing on any matter to which it is relevant." § 90.404(2)(c)1., Fla. Stat. (2015). Here, it was certainly relevant that Wade had approached other women on a bicycle and forced sex at knifepoint-if for no other reason than to refute Wade's argument that the events leading to his charges were consensual. See Williams v. State , 621 So.2d 413, 417 (Fla. 1993) (noting that "testimony concerning the other encounters was relevant to rebut [the] defense that the complainant had consensual sex with him" and that "[t]he similar fact evidence tended to rebut the defense by showing a common plan or scheme"). That leaves Wade to argue that the court erred in weighing the probative value against the prejudice. See McLean v. State , 934 So.2d 1248, 1259 (Fla. 2006) (noting that rule 404 similar-fact evidence remains subject to rule 403 balancing). We afford the court's rule 403 balancing substantial deference and review only for an abuse of discretion. State v. McClain , 525 So.2d 420, 423 (Fla. 1988). Under the circumstances presented, and considering the similarity of the collateral crimes and the charged offense, we find no abuse of discretion.

AFFIRMED .

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Levon POWELL, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-43
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 15, 2019
    Levon Powell, South Bay, pro se.
    Ashley Moody, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 24, 2018 order denying Petitioner's pro se motion for postconviction relief filed in Case No. 2012-CF-054221, in the Eighteenth Judicial Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAMBERT, EDWARDS and GROSSHANS, JJ., concur.


author: WALLIS, J.

text:
    DEPARTMENT OF REVENUE O/B/O Michael SHORTER, Appellant, v. Kellie AMICO, Appellee.
    Case No. 5D17-3794
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    Ashley Moody, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    No Appearance for Appellee.
   WALLIS, J.

The Department of Revenue (DOR), on behalf of Michael Shorter (Father), appeals the order vacating the final order of modification and reinstating Father's original support obligation. DOR argues that the lower court erred in finding that items listed as "non-taxable company items" totaling $ 20,161 should be included as income in calculating Father's child support obligation and in finding that a corresponding deduction for purposes of determining Father's income should not be made. We agree and reverse.

Father and Kellie Amico (Mother) share one minor child. They agreed that Father would pay $ 620 per month in child support. DOR subsequently filed a petition for modification of Father's child support obligation on Father's behalf due to changed circumstances.

At the hearing on the petition for modification, Father testified about the health insurance his employer provides for him and his family as well as his employer's contribution to the pension fund. After hearing this and other evidence, the hearing officer issued a recommendation, finding that there was a substantial change in circumstance and ordering Father to begin paying $ 296 per month in child support to Mother. Mother filed verified objections to the hearing officer's findings and moved to vacate the order.

The trial court held a hearing on Mother's motion to vacate and concluded that the hearing officer erred when calculating Father's child support obligation because the hearing officer erroneously excluded certain, taxable income when calculating the child support amount Father owes Mother. In re-calculating Father's gross income for purposes of child support, the trial court included the following "non-taxable company items" which are listed on Father's pay stub: (1) the Apprenticeship Fund; (2) NEBF; (3) the Administration Fund; (4) NLMCC; (5) Florida Building Trades; and (6) DLMCC. The trial court concluded that these items should have been added to Father's taxable income when calculating child support under section 61.30(2)(a) 13, Florida Statutes. After performing the child support calculation using Father's re-calculated income, the trial court found that Father should continue paying $ 620 per month in child support to Mother. Therefore, the trial court granted Mother's motion to vacate and ordered that Father continue paying the original amount of child support to Mother.

DOR argues the trial court erred as a matter of law when it calculated Father's gross income because it included employment benefits as taxable income without finding that they reduced Father's living expenses. Section 61.30(2), Florida Statutes, sets forth the way in which the trial court shall determine a parent's monthly income. Pursuant to section 61.30(2)(a) 13., Florida Statutes, gross income shall include "[r]eimbursed expenses or in kind payments to the extent that they reduce living expenses." Thus, under section 61.30(2)(a) 13., a court should include as income "those regular and expected employment benefits ... received such as medical insurance ... and contributions to an IRA account" to the extent the court can determine how they correlate with living expenses. Cozier v. Cozier, 819 So.2d 834, 836 (Fla. 2d DCA 2002) ; see Long v. Long, 967 So.2d 1069, 1070 (Fla. 4th DCA 2007). However, in kind payments should not be included in a party's monthly income for purposes of calculating income "unless the receipt of that money is shown to reduce personal living expenses." Valentine v. Van Sickle, 42 So.3d 267, 273 (Fla. 2d DCA 2010). If the trial court includes income for in kind payments, it should also include a corresponding deduction. McDaniel v. McDaniel, 653 So.2d 1076, 1077 (Fla. 5th DCA 1995). Finally, in determining the amount of child support a party owes, the trial court should include findings of fact regarding the parties' income breakdowns and in kind payments. Id.; see also Wilcox v. Munoz, 35 So.3d 136, 139 (Fla. 2d DCA 2010) (failing to make findings of fact regarding parties' incomes in determining child support obligation reversible error).

As explained, in calculating Father's gross income, the trial court included the six items from Father's pay stub. At the hearing, Father testified about his health insurance and his employer's contributions to the pension fund on his behalf, but he never discussed the other six items identified as "non-taxable company items." It is unclear from the hearing testimony what these items are and whether they reduce Father's living expenses in any way. In addition, the trial court failed to make the required findings of fact before including these items in its income and child support calculations. Without evidence showing that these six items reduce Father's living expenses, it was error for the court to include those payments as gross income pursuant to section 61.30(2)(a) 13. See Valentine, 42 So.3d at 273 (finding trial court erred by including per diem reimbursements to Husband as part of his monthly income for purposes of calculating his income where there was no evidence they reduced his living expenses); Long, 967 So.2d at 1070 (refusing to include husband's reimbursed business expenses as part of his income not error where there was insufficient evidence at trial for court to determine amount of expenses and how they correlated with his living expenses).

DOR additionally argues the trial court erred when it failed to include certain deductions when calculating Father's child support obligation. DOR concedes that the trial court properly included the payments Father's employer makes for his health insurance and pension plan when calculating Father's income. It argues, however, that the trial court should have included corresponding deductions from Father's income for those items.

When determining a party's child support obligation, "net income is obtained by subtracting allowable deductions from gross income." § 61.30(3), Fla. Stat. Under the statute, allowable deductions "shall include ... mandatory retirement payments" and "health insurance payments, excluding payments for coverage of the minor child." § 61.30(3)(d), (e), Fla. Stat.; see Fuesy v. Fuesy, 64 So.3d 151, 152 (Fla. 2d DCA 2011) (recognizing that mandatory retirement payments are allowable deductions for purposes of determining child support, whereas voluntary retirement payments are not allowable deductions under the statute).

The trial court properly included payments that Father's employer made toward his health insurance as gross income because those payments reduce Father's living expenses. It erred, however, in failing to provide a corresponding deduction when calculating Father's net income. See § 61.30(3)(e), Fla. Stat.; Russell v. McQueen, 115 So.3d 1084, 1086-87 (Fla. 5th DCA 2013) (refusing to allow deduction for health insurance father pays for himself when calculating his gross income error); Cozier, 819 So.2d at 836 (court properly included as income benefits husband receives from employment, including medical insurance, but it erred in failing to allow corresponding deduction for amount of insurance); McDaniel, 653 So.2d at 1077 (increasing husband's income by cost of health insurance for himself and children without providing corresponding deduction error). Finally, because the only evidence provided in the trial court shows Father's pension plan payments are mandatory, it was error for the trial court to not allow a corresponding deduction for the same. See § 61.30(3)(d), Fla. Stat.; J.N.S. v. A.M.A., 194 So.3d 559, 562 (Fla. 5th DCA 2016) (refusing to deduct mother's retirement benefits from her gross income error where evidence showed she is state employee required by law to make retirement payments).

For these reasons, we reverse the trial court's order granting Mother's motion to vacate and remand so that the trial court can recalculate Father's child support obligation. On remand, the trial court shall remove the six previously identified items included in Father's pay stub when calculating Father's gross income. The trial court shall also include deductions for payments for Father's health insurance and pension plan when calculating Father's net income.

REVERSED AND REMANDED with Instructions.

EDWARDS and GROSSHANS, JJ., concur.


author: CASANUEVA, Judge.

text:
    K.H., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4376
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

K.H., a juvenile, appeals the trial court's disposition order, which found that K.H. had committed the delinquent act of resisting an officer without violence. The trial court withheld adjudication and placed K.H. on probation. K.H. asserts that the trial court erred by failing to grant her motion for judgment of dismissal because the State failed to prove the officer was engaged in the lawful execution of a legal duty. We find her argument meritorious and reverse.

I. FACTS

On September 12, 2016, an officer with the Tampa Police Department responded to a call for service regarding a trespass at a gas station. The report received by the officer alleged that two Hispanic females were panhandling but failed to provide any other information, such as the age, height, weight, or clothing of the females. There was no testimony as to the identity of the caller.

Upon arriving at the gas station, the officer saw two females; one was later determined to be K.H. As he approached, the females walked away. The officer ordered them to stop; they did not. Rather, they continued walking around the side of the building. Again, the officer ordered the two to stop. Instead, K.H. departed by running away. Another officer testified to his involvement in helping to locate K.H. after she ran.

Upon this evidence, the trial court concluded the officer was engaged in the performance of a legal duty and denied the motion for judgment of dismissal. The adjudicatory hearing proceeded, and the trial court found that K.H. committed the delinquent act of resisting an officer without violence.

II. DISCUSSION

We review the denial of a motion for judgment of dismissal de novo. E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003). A conclusion that an act of delinquency was committed is to be sustained where, viewing the evidence in the light most favorable to the State, a rational trier of fact could find that the elements of the delinquent act have been established beyond a reasonable doubt. Id. Where the State's proof fails to establish a prima facie case of the delinquent act, a judgment of dismissal is proper. Id.

To establish the offense of resisting an officer without violence, "the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty." C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla. 2009) ; see also § 843.02, Fla. Stat. (2016). The mere act of flight alone does not constitute a criminal offense and generally is insufficient to form the basis of a resisting without violence charge. C.E.L., 24 So.3d at 1186. "[W]hen flight is the act of resistance, an individual who flees must know of the officer's intent to detain him, and the officer must be justified in making the stop at the point when the act of resistance occurs." Id. at 1188 (emphasis added).

To be justified in making the stop, the officer must possess a reasonable suspicion of criminal activity when the suspect is ordered to stop. M.R. v. State, 198 So.3d 1023, 1025 (Fla. 2d DCA 2016). That is, there must be a "reasonable and well-founded suspicion that criminal activity has occurred or is about to occur." Id.

In M.R., an officer on patrol observed M.R. and three other juveniles riding bicycles in an apartment complex. 198 So.3d at 1024. After seeing the officer's vehicle, the juveniles rode behind a building. This conduct caused the officer to become suspicious. Although he went behind the building on foot, he did not see the juveniles. However, as he was returning to his vehicle, the officer observed M.R. riding away and directed him to stop. M.R. did not stop, and he was later adjudicated delinquent for resisting an officer without violence. Id.

In reversing the adjudication of delinquency, this court observed in M.R. that "the officer must be justified in making the stop at the point when the command to stop is issued." Id. at 1025 (citing C.E.L., 24 So.3d at 1186 ). Under the facts presented, this court concluded that the evidence failed to establish that the officer had a reasonable suspicion of criminal activity at the time he ordered M.R. to stop. Id. Therefore, the evidence failed to establish the necessary element that the officer was engaged in the performance of a legal duty when M.R. was ordered to stop. Id.

In T.P. v. State, 224 So.3d 792, 793 (Fla. 2d DCA 2017), an officer responding to a call of loitering or prowling spotted T.P. about a quarter of a mile away from the reported location of the incident. The officer testified that T.P. matched the BOLO description of a light-skinned black male wearing shorts and a shirt. When told to stop, T.P. took flight and was charged with resisting an officer without violence. Id.

The State argued at trial that the officer had reasonable suspicion to detain T.P. based on the call about someone looking in windows. Id. at 794. We disagreed, finding "the officer observed no suspicious activity prior to ordering T.P. to stop. The only suspicious activity was reported by an unidentified 911 caller who provided a vague description of a light-skinned black male wearing shorts and a shirt looking through windows." Id. at 795. Because the officer lacked reasonable suspicion to stop T.P., the State failed to establish the elements of resisting an officer without violence. Id.

Here, the officer was responding to a call for service from an unidentified caller regarding panhandling and possible trespass. The officer never observed K.H. panhandling. Thus, panhandling cannot form a basis for the stop in this case. See id.

Regarding the possible trespass, we conclude that the evidence is still insufficient to support a stop. "Mere presence on the property is insufficient to give rise to a reasonable suspicion of trespass and a reasonable suspicion of trespass must be based upon something more than 'a mere hunch or guess.' " D.T. v. State, 87 So.3d 1235, 1241 (Fla. 4th DCA 2012) (quoting Rochell v. State, 934 So.2d 586, 586 (Fla. 1st DCA 2006) ). A posted sign or prior warning may provide that "something more" needed for reasonable suspicion, see id. at 1241-42, but there is no evidence of either in this case. "In the absence of this prior warning by communication or 'posting,' a police officer may initiate a consensual encounter to issue a trespass warning if he has been authorized to do so by the property owner, but he may not detain or arrest for trespass ." Id. at 1239 (emphasis added).

Here, the State presented no evidence that a prior warning had been issued to K.H., either by posting or communication, nor does the evidence show that the officer was authorized to issue a warning by the property owner. There was no testimony regarding who placed the call for service, and anonymous 911 calls are inherently unreliable. See Baptiste v. State, 995 So.2d 285, 292 (Fla. 2008) (stating that an anonymous tip can provide a reasonable basis for a stop where the tip contains specific details that are corroborated by independent police investigation). Under the facts of this case, we cannot say that the call, combined with K.H.'s mere presence at the gas station, constituted reasonable suspicion to justify a stop for trespass. Thus, the State failed to establish that the officer was engaged in the lawful performance of a legal duty when he ordered K.H. to stop.

III. CONCLUSION

Because the State failed to establish all of the elements of resisting an officer without violence, the trial court erred by denying the motion for judgment of dismissal.

Reversed and remanded.

BADALAMENTI and ROTHSTEIN-YOUAKIM, JJ., Concur.

      The record is silent as to whether panhandling violates a state statute, a county ordinance, or a municipal ordinance. Cf. Lawshea v. State, 99 So.3d 603, 605 (Fla. 2d DCA 2012) (noting that the City of Sarasota has an ordinance regulating panhandling at certain places, times, and manners).


author: WALLIS, J.,

text:
    Crystal MCCAFFREY, Appellant, v. Aaron ASHLEY, Appellee.
    Case No. 5D18-2304
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    Tania R. Schmidt-Alpers, of Tania R. Schmidt-Alpers, P.A., St. Augustine, for Appellant.
    No Appearance for Appellee.
   WALLIS, J.,

Appellant, Crystal McCaffrey, appeals the trial court's summary denial of her petition for injunction against stalking from Appellee, Aaron Ashley. In her injunction petition, Appellant alleged that over the span of several days Appellee, a former co-worker, sent her over 160 unwanted photographs, videos, and messages, which she described as "graphic, obscene sexual statements." Appellant also alleged that she requested that Appellee stop communicating with her and that these communications "made [her] feel very uncomfortable and unsafe." The trial court summarily denied the petition without prejudice, finding that the Appellant failed to allege sufficient facts even after being afforded an opportunity to amend her petition. In its denial, the trial court failed to provide any explanation as to how Appellant's allegations were insufficient.

"In order to be entitled to an injunction for stalking, the petitioner must allege and prove two separate instances of stalking." David v. Schack, 192 So.3d 625, 627-28 (Fla. 4th DCA 2016) (citing Roach v. Brower, 180 So.3d 1142, 1144 (Fla. 2d DCA 2015) ). "Each incident of stalking must be proven by competent, substantial evidence to support an injunction against stalking." Packal v. Johnson, 226 So.3d 337, 338 (Fla. 5th DCA 2017) (quoting David, 192 So.3d at 628 ). We note that the Fourth District Court has held that it is improper to summarily deny a petition for an injunction without providing an explanation "as to how the allegations are insufficient," or without a hearing. Chizh v. Chizh, 199 So.3d 1050, 1051 (Fla. 4th DCA 2016) (citing Sanchez v. State, 785 So.2d 672, 677 (Fla. 4th DCA 2001) ); see Vitale v. Holmes, 229 So.3d 832, 833 (Fla. 4th DCA 2017) ("[O]ur case law requires the court to hold a hearing, or otherwise provide an explanation of those deficiencies, prior to summarily denying the petition.").

In this case, Appellant was entitled to either an order that specified the deficiencies in her allegations or an evidentiary hearing. Accordingly, we reverse and remand this case for the trial court either to hold an evidentiary hearing or to provide a specific explanation for its denial.

REVERSED AND REMANDED with Instructions.

EDWARDS and EISNAUGLE, JJ., concur.


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

text:
    Ruben MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1040
    District Court of Appeal of Florida, First District.
    February 27, 2019
    Ruben Martinez, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges the trial court's order summarily denying postconviction relief. For the reasons discussed below, we affirm.

In October 2013, Appellant was charged by amended information with sexual battery on a person less than twelve years of age (Count I) and lewd and lascivious molestation (Count II). At trial, the minor victim testified that when she was nine, Appellant, her grandfather, asked to sleep in her bedroom and then touched her inappropriately, including digital penetration. She asked him to stop, and he made her promise to keep it a secret. She testified that Appellant also molested her when she was seven or eight years old while she was visiting him in Colorado. The victim's older sister testified that Appellant had touched her inappropriately on multiple occasions as well. Appellant's stepdaughter also testified that Appellant had molested her when she was a child, including digital penetration.

The jury found Appellant guilty as charged, and Appellant was sentenced to life in prison on Count I, and Count II was vacated. Bolding v. State , 28 So.3d 956, 957 (Fla. 1st DCA 2010) ("When a jury finds a defendant guilty of two offenses, and the defendant cannot be adjudicated guilty of both due to the constitutional prohibition against double jeopardy, the proper remedy is to vacate the verdict of guilt as to one of the offenses."). This Court per curiam affirmed Appellant's judgment and sentence, and the supreme court denied habeas relief. Martinez v. State , 156 So.3d 1081 (Fla. 1st DCA 2015) (Table); Martinez v. State , 171 So.3d 118 (Fla. 2015) (Table).

In 2016, within the two-year deadline, Appellant filed a Motion for Postconviction Relief pursuant to Florida Rule of Criminal Procedure 3.850, raising the same claims raised in a previously filed motion under Florida Rule of Criminal Procedure 3.800. The trial court issued an order striking the 3.850 motion as facially insufficient and gave Appellant sixty days to file an amended motion. In his amended motion, Appellant alleged that defense counsel was ineffective for: 1) failing to object to the State withholding evidence; 2) failing to move for a continuance; 3) allowing the State to introduce collateral crime evidence that became a feature of the trial; and 4) failing to object to prosecutorial statements that appealed to juror sympathy. The trial court summarily denied the motion with prejudice, ruling that Appellant failed to allege sufficient facts showing how counsel was deficient or the case was prejudiced. This Court per curiam affirmed the trial court's order denying collateral relief. Martinez v. State , 235 So.3d 809 (Fla. 1st DCA 2017) (Table).

In 2017, Appellant filed a "Second and Successive Motion for Postconviction Relief," raising ten grounds. The trial court summarily denied the motion, and Appellant now timely appeals.

Analysis

A rule 3.850 motion must be filed within two years of the judgment and sentence becoming final. Fla. R. Crim. P. 3.850(b). Thus, newly raised ineffective assistance of counsel claims filed after the two-year deadline will be procedurally barred as untimely. Johnson v. State , 247 So.3d 698, 700 (Fla. 1st DCA 2018). Because Appellant's judgment and sentence became final more than two years before the October 2017 filing of Appellant's second motion, his claims are procedurally barred as untimely unless any fall within an exception to the two-year deadline. Appellant asks this Court to treat his motion as timely on the grounds that his mental illnesses, including dementia, render him 100% disabled.

In Beech v. State , 127 So.3d 559, 560 (Fla. 4th DCA 2012), the appellant attempted to excuse his untimely filing of a postconviction motion based on his mental illness and placement in a suicide unit. The Fourth District found no merit in this argument, for although the appellant claimed that his circumstances rendered him unable to timely file the appropriate motion, he had in fact filed an earlier postconviction motion within the time limit, belying his argument. Id. As in Beech , Appellant's argument that he was unable to timely file the instant motion is belied by the fact that he filed previous postconviction motions within two years of the judgment and sentence. Accordingly, any claims which do not constitute newly discovered evidence are procedurally barred as untimely, and we therefore affirm those claims.

Newly discovered evidence claims are subject to a two-part test:

First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.

Marek v. State , 14 So.3d 985, 990 (Fla. 2009). Such claims must be filed within two years of the time when the evidence could have been discovered by the use of due diligence. Blake v. State , 152 So.3d 66, 68 (Fla. 2d DCA 2014).

Although Appellant argues that three of his claims involve newly discovered evidence, his arguments fail to satisfy the test set out in Marek . First, Appellant argues that his wife can offer newly discovered exculpatory testimony. However, this "new" evidence is a statement given by his wife in deposition, and Appellant asserts that he asked defense counsel to have her testify regarding this evidence. As Appellant acknowledges that both he and his attorney knew of this evidence before trial, it does not constitute newly discovered evidence. See Marek , 14 So.3d at 990. Thus, Appellant's claim is untimely.

Next, Appellant argues that defense counsel was ineffective for failing to move for dismissal when the two charged offenses were based on the same conduct. This is not newly discovered evidence, as Appellant raised this same argument in his 2016 motion to correct illegal sentence. Furthermore, as noted, Appellant was not sentenced twice for the same conduct.

Finally, Appellant argues that he recently discovered that defense counsel failed to communicate pretrial plea offers ranging from five to ten years in prison in exchange for a guilty plea, and that he would have accepted such offers had he been so informed. But Appellant gives no indication of how or when he came to know of the purported plea offers. Further, Appellant's claim is conclusively refuted by the record, which shows that at the onset of jury selection, the attorneys for both parties denied the existence of any plea offers. Thus, the trial court did not err in summarily denying Appellant's motion for postconviction relief.

Because all of Appellant's claims are either procedurally barred as untimely or conclusively refuted by the record, we affirm the trial court's order denying Appellant's Motion for Postconviction Relief.

AFFIRMED .

Roberts and Osterhaus, JJ., concur.


author: Per Curiam.

text:
    Carver ASKEW, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-750
    District Court of Appeal of Florida, First District.
    February 27, 2019
    Carver Askew, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We affirm the summary denial of Appellant's motion for postconviction relief with the exception of his first claim, which asserted that defense counsel was ineffective for misadvising him that if he testified at trial, the jury would automatically learn the nature of his past crimes and the State could go into the specifics of his prior record on cross-examination. Accepting Appellant's allegations as true, this was a facially sufficient claim of ineffective assistance of counsel. See Parks v. State , 54 So.3d 1079, 1080 (Fla. 4th DCA 2011) ; see also Joseph v. State , 214 So.3d 741, 742 (Fla. 5th DCA 2017) ; Tyler v. State , 793 So.2d 137, 141-42 (Fla. 2d DCA 2001). Because the trial court's colloquy with Appellant regarding the waiver of his right to testify at trial does not conclusively refute this claim, we reverse and remand for an evidentiary hearing. See Everhart v. State , 773 So.2d 78, 80 (Fla. 2d DCA 2000).

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

Wolf, Osterhaus, and Jay, JJ., concur.


text:
    STEAK 'N SHAKE OPERATIONS, INC., Appellant/Cross-Appellee, v. Michael DAVIS, Appellee/Cross-Appellant.
    Nos. 1D17-1096 1D17-1121 (Consolidated for disposition)
    District Court of Appeal of Florida, First District.
    February 27, 2019
    Jason C. Taylor of McConnaughhay, Coonrod, Pope, Weaver, & Stern, Tallahassee, for Appellant/Cross-Appellee.
    John S. Mills of The Mills Firm, P.A., Tallahassee, for Appellee/Cross-Appellant.
   Per Curiam.

Mike Davis slipped and fell inside a Tallahassee Steak 'n Shake restaurant. About a year later, Davis sued Steak 'n Shake Operations, Inc. (SNS), alleging negligence. The case went to trial, and the jury awarded more than $ 100,000 in damages. SNS now appeals, arguing the trial court erred in denying its motions for summary judgment, directed verdict, and new trial. Davis cross-appeals the court's denial of his motion for attorney's fees under section 768.79, Florida Statutes. We affirm the final judgment against SNS and reverse the denial of attorney's fees.

The evidence showed that Davis walked into the Steak 'n Shake shortly after a hostess mopped part of the floor. Davis walked over a recently mopped area and fell. There was conflicting evidence on several points, including whether the hostess was using a wet mop (as opposed to a dry mop), whether she adequately warned Davis, and whether she placed a warning sign in the right spot. We find no error in the court's decision to deny SNS's motion for summary judgment, its motion for direct verdict, and its motion for new trial.

As to Davis's cross-appeal, we reverse the order denying his motion for attorney's fees. Early on, Davis served an offer of judgment, proposing to settle "all claims" against SNS for $ 9500. SNS never accepted, and the judgment was well over twenty-five percent of the offer. See § 768.79(6)(b), Fla. Stat. This denial and subsequent recovery would ordinarily require an award of attorney's fees. See Jordan v. Food Lion, Inc. , 670 So.2d 138, 140 (Fla. 1st DCA 1996) ; see also § 768.79(6)(b), Fla. Stat. But the supreme court has held "that settlement proposals must clarify which of an offeree's outstanding claims against the offeror will be extinguished by any proposed release." State Farm Mut. Auto. Ins. Co. v. Nichols , 932 So.2d 1067, 1080 (Fla. 2006). And it has said that "[i]f ambiguity within the proposal could reasonably affect the offeree's decision, the proposal will not satisfy the particularity requirement." Id. at 1079. Here, SNS contends that the offer was ambiguous (and therefore invalid) because Davis amended his complaint after serving his offer, rendering the earlier offer ambiguous. We reject this argument and conclude that the nonmaterial amendment to the complaint did not render the earlier offer ambiguous. We therefore reverse and remand for entry of an order awarding fees.

AFFIRMED in part; REVERSED in part; REMANDED .

Makar, Winokur, and Winsor, JJ., concur.


author: May, J.

text:
    James WARTHEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-961
    District Court of Appeal of Florida, Fourth District.
    February 27, 2019
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant challenges an order denying his rule 3.800 motion for resentencing on two consecutive sentences in separate and unrelated cases, a non-homicide and a homicide. The defendant argues that his combined term of sixty-five years violates section 921.1402 of the Florida Statutes (2018). We disagree and affirm.

In 1990, the trial court sentenced the defendant to a fifteen and twenty-five year term for non-homicides (shooting into a building and attempted first degree murder with a deadly weapon). The defendant committed the second offense, second degree murder, while he was on furlough for the first offense. For the second degree murder, the trial court sentenced him in 1991 to a forty-year prison term.

The United States Supreme Court has held that any sentence imposed on a juvenile offender for a nonhomicide offense must provide a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Graham v. Florida , 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Court has also held that before imposing a life sentence on a juvenile for a homicide offense, the court must "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Miller v. Alabama , 567 U.S. 460, 480, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

In response to Graham and Miller , the Florida Legislature enacted chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes. Chapter 2014-220 requires that juvenile offenders who commit offenses after July 1, 2014 receive a review hearing and an opportunity for early release after serving fifteen, twenty, or twenty-five years depending on the crime committed and the length of the prison sentence. Both of the defendant's crimes were committed prior to July 1, 2014.

The Florida Supreme Court has held that the statutes apply retroactively to sentences imposed before July 1, 2014 if the defendant's sentence violates Miller or Graham . See State v. Purdy, 252 So.3d 723, 725 (Fla. 2018) (citations omitted); see also Franklin v. State, 258 So.3d 1239, 1240 (Fla. 2018) (holding that a juvenile offender's three 1,000 year life sentences with the possibility for parole for nonhomicide crimes did not violate the Eighth Amendment). Defendant has not demonstrated that his combined term violates either.

We reject his position that the consecutive prison terms for the unrelated homicide and non-homicide offenses is an "aggregate" sentence implicating the Eighth Amendment. Indeed, our supreme court decided in a plurality decision that a defendant's aggregate sentence arising from the same case did not implicate Graham and Miller. Purdy , 252 So.3d at 729.

In Purdy , only one of the defendant's two terms were subject to statutory review. Id. at 728. Per that review he was resentenced to time served for a murder to be followed by a probationary term, yet he remained in prison because his 112.7-month terms for non-homicide offenses were not reviewable. Id. at 727-28 ; see also Lucero v. People , 394 P.3d 1128, 1132-33 (Colo. 2017), cert. den ., --- U.S. ----, 138 S.Ct. 641, 199 L.Ed.2d 544 (2018) (holding that Miller and Graham do not apply to aggregate sentences; an eighty-four year sentence for sixteen non-homicide crimes within one case).

Even assuming the statute applied to the defendant, his review hearing would have taken place in 2010 for the non-homicide offense. However, he completed that term in 2003, and began to serve the homicide sentence.

For the homicide offense, the statutory review would have taken place in 2016, twenty five years after the 1991 sentence. § 921.1402, Fla. Stat. (2018). However, we have held that a forty year term for a homicide does not violate Miller . See Pedroza v. State , 244 So.3d 1128 (Fla. 4th DCA) ; rev. granted, SC 18-964, 2018 WL 6433136 (Fla. Dec. 6, 2018).

In sum, we affirm because the defendant has failed to show that his sixty five year consecutive terms for separate homicide and non-homicide offenses violates either Graham or Miller.

As we have done before, we certify conflict with those cases disagreeing with Pedroza . See Donahue v. State, 257 So.3d 1083 (Fla. 4th DCA 2018) (certifying 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 (Fla. 2d DCA 2017), and Burrows v. State , 219 So.3d 910 (Fla. 5th DCA 2017) ).

We also certify conflict with Katwaroo v. State , 237 So.3d 446 (Fla. 5th DCA 2018), and Tarrand v. State, 199 So.3d 507 (Fla. 5th DCA 2016).

Affirmed.

Ciklin and Forst, JJ., concur.

      Initially, a trial judge granted his motion for resentencing. The State moved to deny resentencing, and a successor judge granted that motion.

      Lucero explained: "Multiple sentences imposed for multiple offenses do not become a sentence of life without parole, even though they may result in a lengthy term of incarceration. Life without parole is a specific sentence, imposed as punishment for a single crime, which remains distinct from aggregate term-of-years sentences resulting from multiple convictions." 394 P.3d at 1133. We recognize that the Court's denial of certiorari review is not a comment on the case's merits. Bottoson v. Moore, 824 So.2d 115, 118-19 (Fla. 2002) (citations omitted). We also recognize our Florida Supreme Court's citation opinion in Walle v. State, No. SC 12-2333, 2016 WL 5165165 (Fla. Sept. 21, 2016). The supreme court's citations render it unclear whether the disposition was based on the aggregate sixty-five year sentences from one county or upon the combined ninety-two year terms from the two separate cases from different counties. Both cited cases concerned multiple non-homicide offenses committed within a single episode wherein the defendants were sentenced to ninety and seventy year terms. Id. (citing Henry v. State , 175 So.3d 675 (Fla. 2015), and Gridine v. State, 175 So.3d 672 (Fla. 2015) ).


author: Levine, J.

text:
    Laura Lynn CONE and William E. Cone, Appellants, v. U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF8 MASTER PARTICIPANT TRUST, Chase Manhattan Bank, USA, N.A., and Priority One Credit Union of Florida, Appellees.
    No. 4D17-2285
    District Court of Appeal of Florida, Fourth District.
    February 27, 2019
    Allan L. Hoffman of Hoffman & Hoffman, P.A., West Palm Beach (withdrawn as counsel after filing brief), for appellants.
    Shawn R. Horwick of Ritter Chusid, LLP, Coral Springs, for appellee U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust.
   Levine, J.

Appellants appeal a final summary judgment on appellee U.S. Bank Trust's claims for reformation of mortgage and equitable subrogation. Appellants challenge both the merits of the equitable subrogation claim and the amount of the final summary judgment. As to the merits of the equitable subrogation claim, we affirm. However, we reverse in part because issues of fact remain as to the amount owed on the mortgage.

A husband and wife co-signed a mortgage in 2001. However, when they refinanced in 2003 and used $316,653.96 of the funds received to pay off the 2001 note, the wife did not sign the new refinance note and mortgage. The bank later sued seeking an equitable subrogation lien for the amount loaned to appellants in the refinance and asked the court to amend the new note and mortgage to include the signature of the wife. The trial court granted the bank an equitable subrogation lien for the full payoff amount, $316,653.96. It then foreclosed the lien, leading to a post-interest judgment of $614,560.28 against appellants.

Appellants challenge the trial court's decision to grant an equitable subrogation lien, arguing that such a lien would be appropriate only if the bank could show fraud when the wife's name was left off the refinance documents. This argument is without merit. Contrary to appellants' assertions, fraud or egregious misconduct is not a prerequisite or requirement to the entry of an equitable subrogation lien. See Flinn v. Doty , 214 So.3d 683, 685 (Fla. 4th DCA 2017) (observing that the purpose of the equitable lien doctrine is to prevent unjust enrichment). Because the bank could demonstrate that appellants benefited from the funds of the refinance, no showing of fraud or misconduct would be required and thus the trial court properly imposed an equitable subrogation lien.

Appellants also challenge the amount of the lien. Contrary to the bank's assertion, appellants preserved their damages argument for appeal by timely filing a motion for rehearing below. See Matyjaszek v. Matyjaszek , 255 So.3d 372, 374 n.1 (Fla. 4th DCA 2018) (holding that an error appearing for the first time on the face of a final judgment is properly preserved by the filing of a motion for rehearing "or some other appropriate motion") (quoting Williams v. Williams , 152 So.3d 702, 704 (Fla. 1st DCA 2014) ). Our review is de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000).

The evidence introduced by the parties below left open a question as to how much appellants owed on the mortgage. Specifically, evidence introduced by the bank offered a different outstanding balance than what was reflected in the final judgment. Viewed "in the light most favorable to the non-moving party," this evidence created an issue of material fact. See Fla. Dep't of Health v. Allan J. Dinnerstein, M.D., P.A. , 78 So.3d 26, 29 (Fla. 4th DCA 2011).

Under such circumstances, summary judgment was not proper as to the damages issue. See Moore v. Morris , 475 So.2d 666, 668 (Fla. 1985) ("A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law."). We affirm the trial court's entry of judgment but reverse for the trial court to determine how much appellants owe on the mortgage.

Affirmed in part, reversed in part, and remanded.

Warner and Damoorgian, JJ., concur.


text:
    Antonio L. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3871
    District Court of Appeal of Florida, Fourth District.
    February 27, 2019
    Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals an order denying his Rule 3.800(b)(2) motion to correct a sentencing error. He argues his scoresheet improperly included twelve, rather than six, points for a community sanction violation as a violent felony offender of special concern ("VFOSC"), and four points for a legal status violation. We agree in part. We reverse and remand the case to the trial court to consider the statutory factors and make the statutorily mandated written finding that the defendant was a danger to the community.

The defendant initially pleaded nolo contendere to the lesser charge of aggravated child abuse under section 827.03(2), Florida Statutes (2007), in exchange for a negotiated sentence of five years in prison with credit for 483 days' time served and ten years' probation. The State nolle prossed a second count. The court imposed standard probation conditions, including that the defendant "live without violating the law."

The probation violation alleged the defendant violated the law by having images of child pornography in his possession. At the hearing, a probation officer testified that the defendant was instructed on the probation conditions three times. The defendant signed the probation order.

A detective testified that he received two cyber tips from the National Center for Missing and Exploited Children. The cyber tips originated from Google and referenced a Gmail account. When he received a second cyber tip, he reviewed the videos and images and found they contained child pornography.

The detective obtained a search warrant to obtain account details. Once he received that data, he observed additional child pornography within the account. The detective determined the defendant owned the account.

The police executed a search warrant and performed an administrative search of the defendant's residence. The detective seized the defendant's cell phone. A digital forensics examiner retrieved and analyzed the cell phone's contents and recovered several images and videos containing child pornography.

The defendant was arrested and interviewed. He consented to the search of his phone. He initially denied downloading the images. But, when the detective suggested he might have to show the images to family members to see if they depicted someone the defendant knew, he admitted sending himself the child pornography images.

Defense counsel argued the defendant intended to download adult porn and accidentally downloaded the child pornography. Defense counsel argued the defendant only admitted possessing the images after the detective threatened to show them to his family.

The trial court found the defendant violated his probation, revoked his probation, and found the greater weight of the evidence supported a finding of a willful and substantial violation.

At the sentencing hearing, the scoresheet showed a lowest permissible prison sentence of sixty months. The defendant expressed remorse, and claimed that he was very sorry for his mistake. The State asked for thirty years, and argued the defendant was nothing but a danger to children. Defense counsel requested a five-year sentence and objected to the four-point assessment for a legal status violation. The trial court sentenced the defendant to thirty years in state prison with credit for time served.

The defendant filed a Rule 3.800(b)(2) motion, and argued that his scoresheet included twelve, rather than six, points for a community sanction violation because he was improperly designated as VFOSC. He argued the State did not request the VFOSC designation, and the court did not follow the statute in designating him as such. He also argued the scoresheet improperly added four points for a legal status violation. Because the trial court did not rule on the motion within sixty days, it was deemed denied.

The defendant now appeals.

We have de novo review of the claimed scoresheet error. Somps v. State , 183 So.3d 1090, 1092 (Fla. 4th DCA 2015).

The defendant continues to make the same arguments on appeal: (1) the scoresheet improperly contained twelve points for his designation as a VFOSC; and (2) the trial court failed to comply with the statutory requirements of section 948.06(8), Florida Statutes (2015). He further argues he is entitled to a new sentencing hearing in which the court considers the statutory factors in determining whether he poses a danger to the community and makes the required written finding.

Section 948.06(8) provides:

(b) For purposes of this section ... the term "violent felony offender of special concern" means a person who is on:
...
3. Felony probation ... and is found to have violated that probation ... by committing a qualifying offense;
...
(c) For purposes of this section, the term "qualifying offense" means any of the following:
...
9. Computer pornography under s. 847.0135(2) or (3), [or] transmission of child pornography under s. 847.0137 ....
...
(e) If the court, ... determines that a violent felony offender of special concern has committed a violation of probation ... the court shall:
1. Make written findings as to whether or not the violent felony offender of special concern poses a danger to the community . In determining the danger to the community posed by the offender's release, the court shall base its findings on one or more of the following:
a. The nature and circumstances of the violation and any new offenses charged.
b. The offender's present conduct, including criminal convictions.
c. The offender's amenability to nonincarcerative sanctions based on his or her history and conduct during the probation ... from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations.
d. The weight of the evidence against the offender.
e. Any other facts the court considers relevant.
2. Decide whether to revoke the probation or community control.
a. If the court has found that a violent felony offender of special concern poses a danger to the community, the court shall revoke probation and shall sentence the offender up to the statutory maximum, or longer if permitted by law.
b. If the court has found that a violent felony offender of special concern does not pose a danger to the community, the court may revoke, modify, or continue the probation or community control or may place the probationer into community control as provided in this section.

§ 948.06(8), Fla. Stat. (2015) (emphasis added).

This case is similar to Whittaker v. State, 223 So.3d 270 (Fla. 4th DCA 2017). There, the defendant pled nolo contendere to aggravated battery with a deadly weapon and was placed on probation. Id. at 272. The State sought revocation of probation based on six violations including resisting an officer without violence. Id. The court conducted a "danger hearing." Id.

The defendant's probation officer testified that he didn't think Whittaker was a danger to the community. Id. The court found him not to be a danger. Id. The defendant then entered an open plea to the alleged violations. Id.

The scoresheet included twelve points for violation of probation as a VFOSC, to which the defense objected. Id. The court sentenced the defendant to forty-nine months in prison. Id. The disposition order indicated the defendant was not a danger and that his probation was revoked. Id. However, it did not indicate that the court had considered any of the factors in section 948.06(8)(e). Id. And, the court did not enter a written order specifying the conditions violated. Id. The defendant filed two Rule 3.800(b)(2) motions to correct sentencing errors, which were denied. Id.

On appeal, Whittaker argued the trial court failed to comply with section 948.06(8). Id. He argued the court did not make the "danger" finding using the enumerated factors, and the order designating him as a VFOSC failed to comply with the statutory requirements. Id. at 272-73.

We agreed and held the disposition order revoking his probation was deficient. Id. at 275. Although the defendant qualified as a VFOSC, the trial court had not made mandatory written findings regarding whether the defendant posed a danger to the community and failed to specify which conditions had been violated. Id. at 275-76. The remedy: reverse and remand for another sentencing hearing to allow the court to make the necessary written findings under section 948.06(8)(e). Id. at 276.

Here, as in Whittaker , the defendant qualified as a violent felony offender of special concern under section 948.06(8)(b) 3 because he was on felony probation and violated probation by committing the qualifying offense of transmission of child pornography. His designation as a VFOSC was imposed as a matter of law; it did not depend on a finding that he posed a danger to the community. Thus, the twelve points were correctly added to his scoresheet.

However, under the second part of the statute, the court was required to consider the factors under section (e) and make written findings as to whether the defendant was a danger to the community. In this regard, the trial court failed. We must therefore reverse and remand the case for a new sentencing hearing.

As the State concedes, the scoresheet should not have included four additional points for a legal status violation. Nevertheless, the error was harmless as the trial court imposed the maximum sentence, rendering the four points irrelevant. State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986). Because we must remand the case for a new sentencing hearing for the court to consider the statutory factors and make the required findings, the trial court should eliminate the four points.

Reversed and Remanded.

Levine and Forst, JJ., concur.


author: Kuntz, J.

text:
    Frank Albert MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-638
    District Court of Appeal of Florida, Fourth District.
    February 27, 2019
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

Frank Albert Martinez argues the circuit court erred when it denied his motion to exclude any reference to his statements about the President of the United States at the time of arrest. The circuit court held that the statements were both relevant and probative to the D.U.I. charge and the resisting an officer with violence charge against Martinez and that the statements were not unduly prejudicial. We affirm.

Background

After a Florida Highway Patrol trooper found Martinez "passed out" inside a disabled vehicle on Interstate 95, he woke Martinez, conducted a field sobriety test, and advised him of his Miranda rights. Martinez responded by yelling close to the trooper's face, leading the trooper to request back-up.

That request for back-up led officers with the Delray Beach Police Department to respond. After Martinez tried to climb into his trunk, the officers forced Martinez to the ground. He became more physically aggressive and made remarks including:

"Come on b****, Let's go, Mexico. Let's go, Mexico-"; "yeah Mexico baby, Mexico, baby"; "I'm taking you down, baby. Thank you, Trump, thank you, Trump"; "Hey, I love you, Trump"; "I'm not resisting-thank you, Trump, thank you, Trump. I love you Trump"; "F*** you, man, you is a b****, dog. You all are some b******, dog. You all (indiscernible)-hey, I love you Trump. Hey I love you, Trump. Yeah, let's go deer hunting, b****"; "Hey, you know how much of my Mexican people are making money because of this s*** right here?"; "Talk to your daddy, talk to your daddy Trump."

Before trial, Martinez moved in limine to redact videotaped statements made during his arrest. He argued that his statements about the President of the United States "do not go to establish any element of the crime and are highly prejudicial." The court denied the motion, finding the evidence both relevant and probative but not so highly prejudicial as to justify exclusion.

Analysis

We review a circuit court's ruling on a motion in limine for abuse of discretion. Aarmada Prot. Sys. 2000, Inc. v. Yandell , 73 So.3d 893, 898 (Fla. 4th DCA 2011) (citations omitted).

The Florida Evidence Code provides that "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403, Fla. Stat. (2017). But relevant evidence is inherently prejudicial. State v. Gad , 27 So.3d 768, 770 (Fla. 2d DCA 2010). So "[i]n order for relevant, probative evidence to be deemed unfairly prejudicial, it must go beyond the inherent prejudice associated with any relevant evidence." Id.

Courts apply a balancing test to determine whether evidence is unfairly prejudicial. McDuffie v. State , 970 So.2d 312, 327 (Fla. 2007). We "consider the need for the evidence, the tendency of the evidence to suggest an emotional basis for the verdict, the chain of inference from the evidence necessary to establish the material fact, and the effectiveness of a limiting instruction." Id. (citing Taylor v. State , 855 So.2d 1, 22 (Fla. 2003) ). Excluding otherwise relevant evidence because of unfair prejudice avoids the possibility "that a jury will convict a defendant based upon reasons other than evidence establishing his guilt." Id.

This case turns on that balancing test. Martinez does not dispute the relevancy or probative value of his statements to the D.U.I. charge. Instead, he argues the statements were not relevant to the resisting an officer with violence charge. But his own words contradict this argument. When he was being arrested, he specifically stated, "I'm not resisting." The remainder of his statements, quoted above, were also relevant to showing his state of mind. Thus, we agree with the circuit court that the statements were both relevant and probative as to the D.U.I. charge and the resisting arrest charge.

Similarly, we agree with the circuit court that the statements were not unduly prejudicial. Martinez asserts that his reference to the President of the United States gives "rise to strong emotional reactions" and cites numerous lawsuits filed against the President. Even assuming Martinez is correct about the President eliciting an emotional reaction-a statement we neither agree nor disagree with-he fails to explain how the mere reference to an elected official renders that evidence unduly prejudicial. We therefore reject the assertion that the mere mention of a public official's name makes a statement unduly prejudicial. Instead, we agree with the circuit court that the probative value of the statements substantially outweighs any prejudicial effect, particularly as to the D.U.I. charge.

Conclusion

We affirm the circuit court's order denying the motion in limine.

Affirmed.

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

      Even if we found it were error to admit Martinez's statements, we would conclude any error was harmless.


text:
    LEON COUNTY, Florida, Petitioner, v. LAKESHORE GARDENS HOMEOWNERS' ASSOCIATION, INC., a Florida Not for Profit Corporation; Lakeshore Gardens Homeowners' Association, Inc., a Florida Not for Profit Corporation, as the Representative for the Class of All Lot Owners of Lakeshore Gardens, as Per Plat Thereof Recorded in Plat Book 12, Page 2, of the Official Records of Leon County, Florida; Leon County Tax Collector; and Leon County Property Appraiser, Respondents.
    No. 1D18-2703
    District Court of Appeal of Florida, First District.
    February 28, 2019
    Daniel J. Rigo and Katherine Vernet, Assistant County Attorneys, Tallahassee, for Petitioner.
    John A. Grant of The Law Office of John A. Grant, P.A, Tallahassee; Edwin R. Hudson of Henry Buchanan, P.A., Tallahassee, for Respondent Lakeshore Gardens Homeowners' Association, Inc.
   Per Curiam.

Leon County has filed a petition for writ of certiorari in this Court seeking review of the circuit court's nonfinal order granting the motion to dismiss its Petition in Eminent Domain filed by Lakeshore Gardens Homeowners' Association, Inc. Through its petition filed below, Leon County sought to exercise its eminent domain authority over certain common area property in the Lakeshore Gardens neighborhood for use as an easement. The neighborhood reportedly has more than 100 property owners, all of which have an interest in the common area.

The circuit court dismissed the petition on the basis it was reliant only upon Florida Rule of Civil Procedure 1.221 in naming the homeowners association rather than joining, as indispensable parties, each individual property owner as specified in section 73.021, Florida Statutes. In granting the association's motion to dismiss, the circuit court ruled that while the homeowners association contended "it does not have authority to act on behalf of the homeowners ... at this stage of the proceedings, it is more significant that the [petition] contain[ed] no allegations that the Association has the needed legal authority."

Accordingly, the circuit court granted Leon County twenty days to submit an amended petition, presumably to list "[t]he names, places of residence, legal disabilities, if any, and interests in the property of all owners ... " in the affected area, as prescribed by section 73.021(4), Florida Statutes.

We grant Leon County's petition for writ of certiorari. Despite the general directions in section 73.021(4) for naming indispensable parties, section 720.303(1), Florida Statutes, provides in relevant part that "the [homeowners] association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all members concerning matters of common interest to the members ... [and] may defend actions in eminent domain or bring inverse condemnation actions." (Emphasis added.) In like manner, rule 1.221 expressly permits a homeowners association to "institute, maintain, settle, or appeal actions or hearings in its name on behalf of all association members concerning matters of common interest to the members, including, but not limited to: ... (6) defense of actions in eminent domain or prosecution of inverse condemnation actions." Because, to date, Florida's appellate courts have not addressed the propriety of naming the homeowners association as the sole party representing the class of homeowners under the statute and rule just cited, we turn to the decisions of the Second District in Tedeschi v. Surf Side Tower Condominium Ass'n , 35 So.3d 915 (Fla. 2d DCA 2010), and the Third District in Trintec Construction Inc. v. Countryside Village Condominium Ass'n , 992 So.2d 277 (Fla. 3d DCA 2008). Both Tedeschi and Trintec Construction addressed the issue as it relates to condominium associations in the context of petitions for writs of certiorari and both held that rule 1.221 authorizes a plaintiff to name only the condominium association, rather than having to name all the condominium unit owners as indispensable parties. We apply the logic expressed in Tedeschi and Trintec Construction to reach the same conclusion in the instant case.

As a preliminary matter,

[b]efore a court may grant certiorari relief from the denial of a motion to dismiss, the petitioner must establish the following three elements: " '(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.' "

Williams v. Oken , 62 So.3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc. , 889 So.2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder , 826 So.2d 382, 387 (Fla. 2d DCA 2002) ) ). "The last two elements are jurisdictional and must be analyzed before the court may even consider the first element." Id.

In Tedeschi , the Second District held that by failing to acknowledge the provisions of rule 1.221, "[t]he circuit court departed from the essential requirements of the law by requiring the [petitioners/plaintiffs] to include the more than eighty other members of the condominium association in their lawsuit ...." 35 So.3d at 919. Significantly, it went on to find that the circuit court's order improperly requiring the petitioners/plaintiffs "to file their complaint against over eighty additional defendants, [ ] would cause a material injury for the remainder of the proceedings for which there is no adequate remedy on appeal." Id. at 920 (citing Trintec Constr., Inc. , 992 So.2d at 280 ). The Second District expressed its logic in the following discussion of case law, including Trintec Construction :

In Parkway Bank v. Fort Myers Armature Works, Inc. , 658 So.2d 646, 649-50 (Fla. 2d DCA 1995), this court noted that where the issues to be resolved address procedures designed to avoid litigation, those issues can be reviewed by certiorari. For example, "an order dispensing with a statutorily mandated presuit procedure, which is a condition precedent to a legal proceeding," is reviewable by certiorari "because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance." Id. at 649. In Parkway Bank , this court further noted that limited certiorari review was permitted to consider cases involving "the statutory procedures for amending a complaint to allege punitive damages because those safeguards cannot be remedied postjudgment." Id.
In Trintec Construction, Inc. , 992 So.2d at 280, the court concluded that "the cost and delay inherent in identifying, pleading against, and serving a multitude of owners (and then substituting a new owner for a predecessor during the pendency of the case as units are sold or otherwise transferred) would be substantial." See also Mantis v. Hinckley , 547 So.2d 292, 293 (Fla. 4th DCA 1989) (concluding that circuit court erred in denying motion to dismiss where mortgagee failed to join a dissolution receiver as an indispensable party, and therefore, the petitioners established the circuit court departed from the essential requirements of law and there was a lack of an adequate remedy on appeal).

Id. at 919-20 (emphasis added).

We perceive no legal impediment to applying the rationales expressed in Tedeschi and Trintec Construction to cases involving homeowners associations. Accordingly, in the present case, we conclude that by dismissing Leon County's petition for failure to join indispensable parties-namely, all one hundred or more of the property owners-the circuit court departed from the essential requirements of the law by failing to apply Section 720.303(1) and rule 1.221, which would permit Lakeshore Homeowners' Association, Inc., to be named as the proper party to defend against an eminent domain proceeding on behalf of the individual homeowners. Moreover, as in Tedeschi and Trintec Construction , we hold the circuit court's action in dismissing Leon County's petition for failure to join indispensable parties caused a material injury to Leon County for which there would be no adequate remedy on appeal.

Consequently, for the reasons expressed, we grant Leon County's petition for writ of certiorari and quash the order of the circuit court.

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


text:
    WINDSOR FALLS CONDOMINIUM ASSOCIATION, INC., a Florida Not-for-Profit Corporation, Appellant, v. Brendan DAVIS ; Janet Davis; Unknown Tenant 31 k/n/a Shawna Anderson, Appellees.
    No. 1D17-5355
    District Court of Appeal of Florida, First District.
    February 28, 2019
    James J. Roche of McCabe & Ronsman, Ponte Vedra Beach, for Appellant.
    Matthew C. Bothwell, Neptune Beach, for Appellees Brendan Davis and Janet Davis.
   B.L. Thomas, C.J.

In this appeal of an award of attorney's fees, Appellant argues that the trial court erred by: 1) failing to include Rowe findings in the final judgment; 2) not awarding all costs incurred by Appellant; 3) not awarding attorney's fees incurred in litigating the amount and reasonableness of fees; and 4) relying on the arbitrary opinion of Appellee's expert to determine the award. We reject Appellant's second and fourth issues raised without further discussion.

As to Appellant's argument that it is entitled to attorney's fees for litigating the amount of fees, the Fourth District has held that a trial court did not err in awarding fees-for-fees under a contract broadly written to allow the prevailing party to recover fees for "any litigation between the parties under this Agreement." Waverly at Las Olas Condominium Ass'n, Inc. v. Waverly Las Olas, LLC , 88 So.3d 386, 388 (Fla. 4th DCA 2012) (emphasis removed). In Pretka v. Kolter City Plaza II Inc. , the Southern District of Florida distinguished Waverly at Las Olas , observing that the contract in Waverly provided a fee award for "any litigation," whereas the contract in Pretka provided a fee award for "litigation to enforce" the agreement. 2013 WL 12080754 at *1 (S.D. Fla. Dec. 10, 2013). The Southern District held that this language did not encompass an award of fees-for-fees. Id.

The contract here provides that Appellee is responsible for condominium assessments and the "costs of collection thereof, including Legal Fees." Because the trial court had already determined that Appellant was the prevailing party, and the parties had stipulated to Appellant's entitlement to legal fees and costs, the ensuing litigation over the amount of reasonable attorney's fees did not constitute litigating the collection of condominium assessments. See State Farm Fire & Cas. Co. v. Palma , 629 So.2d 830, 833 (Fla. 1993) (holding that litigating the amount of legal fees "inures solely to the attorney's benefit and cannot be considered services rendered in procuring full payment of the judgment"). Although we do not reject the argument that a contract can provide for an award of attorney's fees, including fees incurred for litigating the fee amount itself, we hold that the trial court did not err in denying Appellant such an award.

As to Appellant's argument that the trial court failed to include Rowe findings in the final judgment, we reverse and remand for further proceedings, as the trial court failed to make certain necessary findings in the final judgment, as required under Florida law. "Appellate courts apply the abuse of discretion standard to review a lower court's award of attorney's fees." Mitchell v. Mitchell , 141 So.3d 1228, 1229 (Fla. 1st DCA 2014). In Rowe , the supreme court found the lodestar approach to be the appropriate method for determining an attorney fee award. 472 So.2d at 1151-52, holding modified by Standard Guar. Ins. Co. v. Quanstrom , 555 So.2d 828 (Fla. 1990). "The first step in the lodestar process requires the court to determine the number of hours reasonably expended on the litigation." Id. at 1150. "The number of hours reasonably expended, determined in the first step, multiplied by a reasonable hourly rate, determined in the second step, produces the lodestar, which is an objective basis for the award of attorney fees." Id. at 1151.

A final judgment must include specific findings as to the hourly rate, the number of hours expended, whether those hours were reasonable, and any reduction factors. Mitchell , 141 So.3d at 1230 (reversing a final judgment that did not include findings as to the number of hours expended or whether those hours were reasonable); Rowe , 472 So.2d at 1151. " 'The lack of findings constitutes reversible error, even if there is competent, substantial evidence to support the award.' " Norman v. Norman , 939 So.2d 240, 242 (Fla. 1st DCA 2006) (quoting Hamlin v. Hamlin , 722 So.2d 851, 852 (Fla. 1st DCA 1998) ); see also Hysmith v. Hysmith-Graham , 948 So.2d 974, 975 (Fla. 1st DCA 2007) ("Although a reduction in attorney's fees might ultimately be appropriate in this case, we must reverse the present order because the trial court failed to set forth specific findings regarding the attorney's hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors.").

In Wilkerson v. Johnson , 139 So.3d 965, 967 (Fla. 1st DCA 2014), this Court reversed and remanded a final order awarding fees and costs, because the trial court did not make findings as to why the award differed from the amount requested by the prevailing party. Here, the final judgment included no findings regarding the reasonable number of hours expended. Although the trial court found that "the hourly rates sought by Plaintiff's attorneys are reasonable and appropriate," there are no findings as to what those rates were, and such findings are required under Rowe, 472 So.2d at 1151-52. Instead, the final judgment simply contained a line stating "Reasonable Attorney's Fees $ 3,933.00," which is an amount significantly lower than the amount requested by Appellant's attorneys, even excluding any so-called "fees-for-fees" issues. We therefore reverse and remand to allow the trial court to make the requisite findings. See Wilkerson , 139 So.3d at 967 ; Mitchell , 141 So.3d at 1230 ; Norman , 939 So.2d at 242.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

Wetherell and Winsor, JJ., concur.

      Florida Patient's Comp. Fund v. Rowe , 472 So.2d 1145, 1151-52 (Fla. 1985).


text:
    James Christopher PEARCE, Former Husband, Appellant, v. Jennifer BOUDREAUX f/k/a Pearce, Former Wife, Appellee.
    No. 1D18-2363
    District Court of Appeal of Florida, First District.
    February 28, 2019
    Lorraine H. Sherman, La Crosse, for Appellant.
    Joshua M. Silverman of Silverman, Mack & Associates, Gainesville, and Adam S. Vorhis, Asheville, NC, for Appellee.
   Per Curiam.

This appeal involves a petition to permit the relocation of minor children filed by the former wife. The former husband, acting pro se, timely filed legal papers objecting to the relocation; an answer and counter-petition were also filed. In response, the former wife filed a motion for the trial court to enter an order of relocation based upon alleged deficiencies in the former husband's filings. Without holding a hearing, the trial court entered an order of relocation and the former wife moved with the minor children.

The former husband filed a motion for relief from the judgment and an amended objection to relocation. After a hearing on the motion, the trial court denied relief based upon the former husband's initial objection being legally insufficient for lack of verification and factual recitations. This appeal ensued.

We agree with the former husband that the trial court was required to hold a hearing upon the timely filing of the former husband's initial pro se objection. The applicable statute provides:

(d) If the other parent and any other person entitled to access to or time-sharing with the child fails to timely file a response objecting to the petition to relocate , it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed, and the court shall, absent good cause , enter an order specifying that the order is entered as a result of the failure to respond to the petition and adopting the access and time-sharing schedule and transportation arrangements contained in the petition. The order may be issued in an expedited manner without the necessity of an evidentiary hearing. If a response is timely filed, the parent or other person may not relocate, and must proceed to a temporary hearing or trial and obtain court permission to relocate.

§ 61.13001(3)(d), Fla. Stat. (emphasis added). The highlighted portions establish two points. First, an order of relocation may only be entered without a hearing where a parent or other person entitled to access or time-sharing "fails to timely file a response objecting to the petition to relocate[.]" Id . The statute does not say that the objection must be flawless in terms of legal sufficiency; it says only that a "timely ... response objecting" is required. The legal sufficiency of the objection, and whether it can be amended or modified for good cause, are matters to be considered at a hearing on the initial objection. It would make no sense, for instance, to permit a trial judge to sign off on an order of relocation without a hearing where an objecting parent filed a fully compliant objection but failed to get it verified; relocation would be premature in such a case. Second, the last sentence of the statute requires at least a "temporary hearing" before relocation occurs where "a response is timely filed," which buttresses the first point. If a parent fails to file an objection of any kind, a trial court may-absent good cause-"enter an order specifying that the order is entered as a result of the failure to respond to the petition" in any way. Where no response is filed, an order of relocation "may be issued in an expedited manner without the necessity of an evidentiary hearing." Id. Here, a response was filed, thereby necessitating that relocation may not occur, if at all, until after a temporary hearing (or trial). Id.

We do not overlook the requirement that "[a]n answer objecting to a proposed relocation must be verified and include the specific factual basis supporting the reasons for seeking a prohibition of the relocation, including a statement of the amount of participation or involvement the objecting party currently has or has had in the life of the child." § 61.13001(5), Fla. Stat. (2009). The objecting party is required to meet these requirements to ensure that the trial court is apprised of verified facts relevant to the relocation issue, but we see no fatal inconsistency in the legislature's requirement in (3)(d), that a hearing is required where an objection is timely filed, with the requirement in (5), that an objection should have verified facts. As to the former, the legislature clearly wanted to prevent trial courts from entering ex parte relocation orders where a timely objection is filed; it also clearly wanted to permit such orders, absent good cause , where no response is filed. See Vaelizadeh v. Hossaini , 174 So.3d 579 (Fla. 4th DCA 2015) (emphasis added). As to the latter, the legislature requires verified facts, but it did not make them a pre-condition to a temporary hearing before relocation. It may well be that the absence of verified facts or a lack of evidence favoring the objector will, after a hearing, make relocation permissible. We do not read a failure to comply with subsection (5), however, as a basis for ignoring a timely filed objection.

REVERSED and REMANDED .

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


author: BLACK, Judge.

text:
    NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-4, a Delaware Statutory Trust, Appellant, v. Kerry MEYER, Appellee.
    Case No. 2D17-4158
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019
    Kenneth L. Salomone of Aldridge, Pite & Haan, LLP, Atlanta, Georgia; Kenneth L. Salomone of Salomone Law Group, Deerfield Beach (substituted as counsel of record), for Appellant.
    Jared M. Krukar and Dineen Pashoukos Wasylik of DPW Legal, Tampa; and M. Vincent Pazienza of Law Firm of M. Vincent Pazienza, P.A., Lutz, for Appellee.
   BLACK, Judge.

National Collegiate Student Loan Trust 2006-4, a Delaware Statutory Trust (NCSLT), challenges the order dismissing with prejudice its second amended complaint for breach of a loan agreement between Bank of America, N.A., and Kerry Meyer, as a cosignor and guarantor on the loan. We reverse the order of dismissal and remand for further proceedings.

Following the dismissal of its first two complaints for breach of a loan agreement, NCSLT filed its second amended complaint on May 1, 2017. The second amended complaint alleged that Sean Meyer, the borrower, and Kerry Meyer, a cosignor, executed a "loan request/credit agreement" with Bank of America for the purpose of obtaining a private education loan for the borrower to attend college; that the loan request/credit agreement specified that Ms. Meyer would be jointly liable for repayment of the loan; and that the loan was approved and a check payable to the borrower and Ms. Meyer was mailed to, endorsed, and deposited by the borrower and Ms. Meyer. NCSLT alleged that the borrower and Ms. Meyer agreed to the terms of the loan by endorsing and depositing the loan check and that the borrower and Ms. Meyer defaulted on the loan by failing to make the initial payment due on November 17, 2011. NCSLT also asserted that it is the entity entitled to enforce the terms of the loan as an assignee of the debt and that it is the owner of the loan debt pursuant to the "Pool Supplement and Deposit and Sale Agreement."

Multiple documents, including some unnecessary to the resolution of this appeal, were attached to and referenced in the second amended complaint. The loan request/credit agreement "information page" was the first attachment. The information page provides that it is a "Non-Negotiable Credit Agreement" and a "Consumer Credit Transaction." The information page identifies the lender as Bank of America and the loan amount requested as $ 30,000 for an "education maximizer undergraduate loan." It bears an identification number, BK.06-07.CSX1.10DC.0206, and a secondary identification containing "Meyer" and ending in A104473793. The second page of the document bears the signatures of both the borrower and the cosignor, and it provides that "the holder of the loan can collect this debt from [the cosignor] without first trying to collect from the borrower" and that "by signing this credit agreement ... [the cosignor] intends to (I) apply for joint credit and (II) be jointly liable with the borrower for this loan."

A "Note Disclosure Statement" was also attached to the complaint, identifying the loan number as 04473793, the amount financed as $ 30,000, and the borrowers as Sean Meyer and Kerry Meyer. Additionally, a copy of the endorsed check for $ 30,000, was attached to the complaint; it was drawn on a Bank of America check for The Education Resources Institute (TERI).

To support NCSLT's standing to enforce the terms of the loan agreement, it attached a document titled "2006-4 Pool Supplement," dated December 7, 2006, which provides that The First Marblehead Corporation, the servicer, and Bank of America (collectively, the Program Lender) "transfers, sells, sets over and assigns to The National Collegiate Funding LLC" (the LLC) the student loans set forth in the schedule identified as the Transferred Bank of America Loans, along with all of the Program Lender's rights and "any agreement pursuant to which TERI granted collateral for its obligations." The LLC "in turn will sell the [loans] to [NCSLT]." A single page "roster" for NCSLT then identifies a loan with the borrower's social security number (redacted) and a "GUARREF" number matching the loan number previously identified (04473793). The roster also provides that the disbursement date was November 3, 2006, and that the amount disbursed was $ 30,000. The deposit and sale agreement between the LLC and NCSLT was also attached, and it identifies loans by the pool supplements originating with a bank as part of one of its loan programs. One of those supplements is Bank of America's 2006-4 Pool Supplement, matching the roster's "loan product" information.

In moving to dismiss NCSLT's complaint for the third time, Ms. Meyer cited Florida Rule of Civil Procedure 1.140(b), and she argued that NCSLT failed to state a cause of action and that it lacked standing to bring the action.

The standard of review on an order granting a motion to dismiss is de novo. Belcher Ctr., LLC v. Belcher Ctr., Inc., 883 So.2d 338, 339 (Fla. 2d DCA 2004). Because the order on appeal does not include findings of fact or conclusions of law and we do not have a transcript of the hearing to determine if one or both of the bases raised in Ms. Meyer's motion to dismiss resulted in the dismissal, we consider both arguments.

I. Standing

"In determining whether to dismiss a complaint for lack of standing, [the court] must confine [its] review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true." Llano Fin. Grp., LLC v. Yespy, 228 So.3d 108, 111 (Fla. 4th DCA 2017) (quoting Gordon v. Kleinman, 120 So.3d 120, 121 (Fla. 4th DCA 2013) ). Generally, dismissals with prejudice based upon the affirmative defense of a lack of standing are not proper. See, e.g., Lawson v. Frank, 197 So.3d 1269, 1271 (Fla. 2d DCA 2016) ("Indeed, the substantive issue underlying the court's ruling-whether Mr. Lawson held sufficient standing to maintain this cause of action-is an affirmative defense that, unless raised in a responsive pleading, would be deemed waived."); Hartford Ins. Co. of Midwest v. O'Connor, 855 So.2d 189, 190 n.1 (Fla. 5th DCA 2003) ("The issue of standing and the effect of the assignment were matters to be raised by Hartford as affirmative defenses, not in a motion to dismiss the complaint."). However, "[i]f the face of the complaint contains allegations which demonstrate the existence of an affirmative defense, then such a defense may be considered on a motion to dismiss." Papa John's Int'l, Inc. v. Cosentino, 916 So.2d 977, 983 (Fla. 4th DCA 2005) ; see also Fla. R. Civ. P. 1.110(d) ("Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b) ; provided this shall not limit amendments under rule 1.190 even if such ground is sustained.").

There is nothing on the face of the second amended complaint to suggest that NCSLT does not have standing such that the affirmative defense should have been decided by a motion to dismiss. See Wildflower, LLC v. St. Johns River Water Mgmt. Dist., 179 So.3d 369, 373 (Fla. 5th DCA 2015). The affirmative defense requires factual proof supporting it; this is a burden not on NCSLT, having sufficiently alleged that it is due the debt, but on Ms. Meyer. See Hess v. Philip Morris USA, Inc., 175 So.3d 687, 695 (Fla. 2015) ("The defendant has the burden to prove an affirmative defense." (citing Hough v. Menses, 95 So.2d 410, 412 (Fla. 1957) ) ); Nunez v. Alford, 117 So.2d 208, 210 (Fla. 2d DCA 1960).

Substantively, "[s]tanding is ... that sufficient interest in the outcome of litigation which will warrant the court's entertaining it." Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1285 (Fla. 2d DCA 2005) (quoting Gen. Dev. Corp. v. Kirk, 251 So.2d 284, 286 (Fla. 2d DCA 1971) ). Here, NCSLT attached documents supporting its allegation of ownership by establishing the transfer or purchase of student loans from Bank of America to the LLC and from the LLC to NCSLT. Cf. Llano Fin., 228 So.3d at 112 (affirming dismissal and concluding that alleging assignment of the note to the plaintiff was "not equivalent to alleging that the original lender assigned its right to pursue negligence claims"). This is sufficient to overcome a rule 1.140 motion to dismiss based on standing. See Landmark Funding, Inc. ex rel. Naples Syndications, LLC v. Chaluts, 213 So.3d 1078, 1079 (Fla. 2d DCA 2017) ("The operative complaint in this case alleged ultimate facts demonstrating Landmark's membership both at the time of the suit and at the time of the alleged misconduct. The complaint contained no attachments that contradicted those allegations. As such, it was legally sufficient insofar as Landmark's standing is concerned and not properly subject to a motion to dismiss on that basis."). We note, however, that it may not be sufficient on a motion for judgment on the pleadings or summary judgment or to succeed at trial. Cf. Lovette v. Nat'l Collegiate Student Loan Tr. 2004-1, 149 So.3d 735, 737 (Fla. 5th DCA 2014) (reversing final summary judgment where Trust failed to establish standing).

II. Failure to state a cause of action

The cause of action alleged in the second amended complaint is a breach of contract-Ms. Meyers' failure to comply with the terms of the loan. NCSLT is seeking damages only.

"For ... purposes of a motion to dismiss for failure to state a cause of action, allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff." Swope Rodante, P.A. v. Harmon, 85 So.3d 508, 509 (Fla. 2d DCA 2012) (quoting Wallace v. Dean, 3 So.3d 1035, 1042-43 (Fla. 2009) ). "A motion to dismiss tests the legal sufficiency of the complaint and does not determine factual issues." Haskel Realty Grp., Inc. v. KB Tyrone, LLC, 253 So.3d 84, 85 (Fla. 2d DCA 2018) (quoting Gann v. BAC Home Loans Servicing LP, 145 So.3d 906, 908 (Fla. 2d DCA 2014) ). "To state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief." Havens v. Coast Fla., P.A., 117 So.3d 1179, 1181 (Fla. 2d DCA 2013) (citing Fla. R. Civ. P. 1.110(b) ).

"The elements of a breach of contract cause of action are: (1) a valid contract, (2) a material breach, and (3) damages." Ferguson Enters. v. Astro Air Conditioning & Heating, Inc., 137 So.3d 613, 615 (Fla. 2d DCA 2014) (citing Havens, 117 So.3d at 1181 ). Rule 1.130(a) requires that "[a]ll bonds, notes, bills of exchange, contracts, accounts, or documents on which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, must be incorporated in or attached to the pleading." Attachments to the pleading are "considered a part thereof for all purposes." Fla. R. Civ. P. 1.130(b). The purpose of rule 1.130(a)"is to apprise the defendant of the nature and extent of the cause of action so that the defendant may plead with greater certainty." Amiker v. Mid-Century Ins. Co., 398 So.2d 974, 975 (Fla. 1st DCA 1981) (citing Sachse v. Tampa Music Co., 262 So.2d 17, 19 (Fla. 2d DCA 1972) ). "A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint." Glen Garron, LLC v. Buchwald, 210 So.3d 229, 233 (Fla. 5th DCA 2017) (quoting Contractors Unlimited, Inc. v. Nortrax Equip. Co. Se., 833 So.2d 286, 288 (Fla. 5th DCA 2002) ). " Rule 1.130 does not require attachment of the entire contract, but only the attachment or the incorporation into the pleading of the material portions of the contract on which the action is based." Id.

Here, NCSLT alleged that (1) Ms. Meyer, as a cosignor and guarantor, had entered into a valid student loan agreement, attaching relevant pages of the signed credit agreement; (2) no payments on the student loan had been made, breaching the agreement; and (3) Ms. Meyer owed NCSLT damages in the amount of the loan principal plus interest. This was sufficient to state a cause of action for breach of the agreement such that the second amended complaint should not have been dismissed. See Ferguson Enters., 137 So.3d at 615 ("In count V, Ferguson alleged that the Hegeduses personally guaranteed repayment of Astro's debt, that the Hegeduses breached the guaranty by refusing to pay that debt, and that Astro and the Hegeduses owed Ferguson more than $ 90,000. The allegations in count V were sufficient to state a cause of action for breach of the guaranty."); Student Loan Mktg. Ass'n v. Morris, 662 So.2d 990, 991-92 (Fla. 2d DCA 1995) (reversing order dismissing complaint for failure to state a cause of action where complaint sufficiently complied with the rules of civil procedure).

The trial court erred in granting Ms. Meyer's motion to dismiss on either basis raised in the motion. Accordingly, we reverse the order of dismissal and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and BADALAMENTI, JJ., Concur.

      The relationship between The First Marblehead Corporation and Bank of America was established by reference and incorporation of the April 1, 2006, Note Purchase Agreement in the 2006-4 Pool Supplement.