text:
    Nelson ALVAREZ-REYES, Appellant, v. Idia FERNANDEZ-GIL, Appellee.
    No. 3D17-2676
    District Court of Appeal of Florida, Third District.
    Opinion filed February 6, 2019.
    Law Offices of Kenneth M. Kaplan and Kenneth M. Kaplan, Miami, for appellant.
    Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for appellee.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Nelson Alvarez-Reyes appeals a final judgment of dissolution of his marriage to Idia Fernandez-Gil. We affirm.

The record contains competent substantial evidence to support the trial court's determinations regarding Alvarez-Reyes' voluntary underemployment and imputation of income. See Cochran v. Cochran, 819 So.2d 863, 864 (Fla. 3d DCA 2002) (holding: "It is well settled that a trial court, who has made a finding that a party is voluntarily unemployed or underemployed, may properly impute income to that party based upon that party's demonstrated earning capacity") (quoting Arouza v. Arouza, 670 So.2d 69, 71 (Fla. 3d DCA 1995) ); Gillette v. Gillette, 226 So.3d 958, 961 (Fla. 4th DCA 2017) (describing the two-step process: "First, the court must conclude the termination of income was voluntary. Second, 'the court must determine whether the subsequent unemployment resulted from the spouse's pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received' ") (internal citations omitted); Manfre v. Manfre, 189 So.3d 197, 201 (Fla. 4th DCA 2016) ; Smith v. Smith, 737 So.2d 641, 644 (Fla. 1st DCA 1999) (noting: "A trial court can impute income where a spouse has failed to use his or her best efforts to earn income" and "we shall not disturb any [such] ruling that is supported by the evidence and satisfies the general test of reasonableness"). See also Mata v. Mata, 185 So.3d 1271, 1272-73 (Fla. 3d DCA 2016) (noting: "The Florida Supreme Court and other district courts have suggested that a presumption arises from a spouse's historical earnings that supports a finding the spouse can continue to earn the same amount, absent evidence to the contrary") (internal citations omitted); Maddux v. Maddux, 495 So.2d 863, 864 (Fla. 4th DCA 1986) (holding: "Where a former husband has an ability to earn if he so desires, the trial judge may impute an income to the husband according to what he could earn by the use of his best efforts to gain employment equal to his capabilities, and on that basis enter an award of alimony as if the husband were in fact earning the income so imputed).

We likewise affirm the trial court's award of permanent periodic alimony to Fernandez-Gil, which we review for an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla. 1980) (holding: "Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.") The final judgment evidences that the trial court thoughtfully considered and addressed each of the statutory factors enumerated in section 61.08(2)(a)-(j), Florida Statutes (2017), weighed Fernandez-Gil's need and Alvarez-Reyes' ability to pay, and articulated the bases for its determinations. We find no abuse of discretion.

Affirmed.

      We find no merit in the other issues raised on appeal and affirm without further discussion.


source: Caselaw Access Project

author: FERNANDEZ, J.

license: Public Domain

text:
    Juan Tiu MENDEZ, Appellant, v. Nila MENDEZ LOPEZ and Miguel Tiu Mendez, Appellees.
    No. 3D17-1742
    District Court of Appeal of Florida, Third District.
    Opinion filed February 6, 2019
    University of Miami School of Law Children & Youth Law Clinic and Robert Latham and Cari Lieberman, Certified Legal Intern, for appellant.
    No Appearances, for appellees.
    Before EMAS, C.J., and FERNANDEZ and SCALES, JJ.
   FERNANDEZ, J.

Juan Tiu Mendez appeals the dismissal of his petition for temporary custody of his minor sister, pursuant to chapter 751, Florida Statutes (2017). The trial court both denied and dismissed the petition with prejudice on grounds unrelated to the petition's legal sufficiency. Specifically, the trial court cited the following reasons for dismissal in the order on appeal:

1. That almost identical allegations of abuse by the minor child's parents in the home country (Guatemala) have been seen previously in other similar Petitions.
2. That in each, the terribly abusive offenders have somehow been convinced to sign consents basically admitting to these terrible acts, giving up their parental rights and surrendering custody to a family member residing in the United States.
3. That there are certain immigration benefits to these Petitions being granted in circumvention of existing immigration laws.

Because we hold that the chapter 751 petition was legally sufficient, we reverse and remand to the trial court.

The standard of review of a final order dismissing a petition with prejudice is de novo . Calderon v. Vazquez, 251 So.3d 303, 304 (Fla. 3d DCA 2018) ; J.W.T. v. S.T., 974 So.2d 436, 437 (Fla. 2d DCA 2007).

Section 751.01, Florida Statutes, provides that the purpose of chapter 751 is, among other things, to provide for the welfare of the minor child who is living with extended family members. Specifically, the chapter recognizes that the care being extended to the child is by an extended family member, and therefore, the child is not a dependent child. Section 751.02 provides that any extended family member who has the signed, notarized consent of the child's legal parents or who is caring full time for the child in the role of substitute parent, and with whom the child is living, may bring a proceeding in the circuit court to determine the temporary or concurrent custody of the minor child. Finally, section 751.03 establishes the required contents of a petition for temporary or concurrent custody.

Our review of the petition establishes that the petition is legally sufficient and complies with the requirements of section 751.03. Appellant has attached the consent of each parent to the petition. The parents did not waive their parental rights or consent to the determination of dependency for the minor child and reserve the right to re-establish their custody of the minor child on proper petition to the court.

In fact, although alleged in the petition, neither abuse, abandonment, nor neglect is at issue in this case because the parents have consented to custody. Section 751.05 requires the trial court to conduct a hearing on the petition and requires the court to "hear the evidence concerning a minor child's need for care by the petitioner, all other matters required to be set forth in the petition, and the objections or other testimony of the child's parents, if present." § 751.05(1), Fla. Stat. (2017). It further provides that "[u]nless the minor child's parents object, the court shall award temporary or concurrent custody of the child to the petitioner if it is in the best interest of the child." § 751.05(2), Fla. Stat. (2017). The section also provides that, if the minor child's parents object to the petition for concurrent custody, the court shall provide petitioner an opportunity to convert the petition to a petition for temporary custody. Petitioner would then be required to prove, by clear and convincing evidence, that the child's parents are unfit to provide for the care and control of the child, in which case the court must find that the parent or parents have abused, abandoned, or neglected the child, as defined in chapter 39, Florida Statutes (2017). § 751.05(3)(a)-(b). Because the petition in the underlying case has been consented to by the parents, this extra step is unnecessary, and the trial court is under no obligation to determine whether the child has been abused, abandoned, or neglected, or whether the child is dependent.

Finally, it is a basic precept of our system of justice that each and every case must be determined on the facts and the law that apply to that particular case. Generalized conclusions extraneous to the case, or to the law that applies to the case, are not a proper basis for a judicial determination of the merits. Although not a chapter 39 case, this case nevertheless deserves the individualized consideration discussed by the Florida Supreme Court in B.R.C.M. v. Florida Department of Children and Families, 215 So.3d 1219 (Fla. 2017). Specifically, because the chapter 751 petition was legally sufficient, the trial court must decide the petition on the merits, consistent with the provisions and requirements of chapter 751. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.


author: HENDON, J.

text:
    The STATE of Florida, Petitioner, v. Ivan WONG, Respondent.
    No. 3D19-169
    District Court of Appeal of Florida, Third District.
    Opinion filed February 7, 2019.
    Ashley Moody, Attorney General, and Michael W. Mervine, Assistant Attorney General, for petitioner.
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for respondent.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   HENDON, J.

The State of Florida petitions this Court for a writ of mandamus or prohibition to compel the trial court to empanel a twelve-person jury. We treat the State's petition as a petition for writ of certiorari seeking to quash the trial court's pretrial order requiring the defendant, Ivan Wong, to proceed to trial before a six-person jury, not a twelve-person jury, for several charges, including the capital offense of first degree murder. See State v. Pettis, 520 So.2d 250, 253 (Fla. 1988) (upholding the State's right to certiorari review of nonappealable pretrial orders). As the State has established that the trial court's order departs from the essential requirements of law, resulting in a material injury for which there is no adequate remedy on appeal, we grant the petition for writ of certiorari and quash the trial court's order.

The defendant was indicted by a grand jury on several charges, which included first degree murder, a capital offense. Although the State has waived the death penalty, the defendant has not waived his right to a twelve-person jury. In State v. Griffith, 561 So.2d 528, 530 (Fla. 1990), the Florida Supreme Court held that "[t]he prosecutor cannot, by electing not to seek the death penalty, change the classification of an offense from capital to noncapital and unilaterally determine whether a defendant is entitled to trial by a twelve-person jury." Further, as explained by this Court in Alfonso v. State, 528 So.2d 383 (Fla. 3d DCA 1988) :

We further note that the trial court's pretrial decision not to impose a death penalty did not transform first-degree murder into a noncapital crime. Murder in the first degree is a capital offense. Ortagus v. State, 500 So.2d 1367 (Fla. 1st DCA 1987). Section 913.10, Florida Statutes (1985), and Florida Rule of Criminal Procedure 3.270 provide for a twelve-person jury to try all capital cases. The law is clear, however, that a person can be convicted of a capital crime in Florida by a jury of fewer than twelve where there is a valid defense waiver of the right to a twelve-member jury. State v. Garcia, 229 So.2d 236 (Fla. 1969) ; Nova v. State, 439 So.2d 255 (Fla. 3d DCA 1983) ; Roth v. State, 385 So.2d 114 (Fla. 3d DCA 1980). In the instant case, there was no waiver. The trial court erred in forcing Alfonso and Codecido to proceed to trial with fewer jurors than they were entitled to by law.

Alfonso, 528 So.2d at 384-85 (footnotes omitted); see also Jimenez v. State, 167 So.3d 497 (Fla. 3d DCA 2015). Thus, the trial court's order requiring the defendant to proceed to trial before a six-person jury departs from the essential requirements of law, and the harm to the State cannot be remedied on appeal. Accordingly, we grant the petition for writ of certiorari and quash the trial court's order.

Petition granted; order quashed.


author: PER CURIAM.

text:
    Eniel PLANAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2635
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Eniel Planas, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and SCALES and HENDON, JJ.
   PER CURIAM.

We affirm the trial court's order, which denied Planas' Motion to Correct an Unlawful Sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The motion, while purportedly seeking to correct an illegal sentence, was instead an attack on both the conviction and the sentence. A motion under rule 3.800(a) is not available where, as here, the defendant seeks to challenge the validity of the conviction (and, by extension, the "legality" of the sentence). Lopez v. State, 2 So.3d 1057, 1059 (Fla. 3d DCA 2009) ; Coughlin v. State, 932 So.2d 1224, 1225 (Fla. 2d DCA 2006) (holding that "a traditional double jeopardy challenge attacks both the conviction and, by default, the sentence, while rule 3.800(a) is limited to claims that the sentence itself is illegal, without regard to the underlying conviction"). Planas could have and should have raised the instant claim on direct appeal from his conviction and sentence or, if appropriate, by a timely motion filed pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.


text:
    James ST. HILARE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2216
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See Franklin v. State, 258 So.3d 1239 (Fla. 2018) ; State v. Michel, 257 So.3d 3 (Fla. 2018).


text:
    The STATE of Florida, Appellant, v. Lorenzo LORENZO, Appellee.
    No. 3D18-911
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Ashley Moody, Attorney General, and Brian H. Zack, Assistant Attorney General, for appellant.
    Diaz, Reus & Targ, LLP, and Michael Diaz, Jr., Karel Suarez, and Fausto Sanchez, for appellee.
    Before SALTER, LINDSEY, and HENDON, JJ.
   HENDON, J.

The State of Florida appeals from a final order granting Defendant Lorenzo Lorenzo's ["Lorenzo"] Motion to Vacate Plea, Judgment and Sentence pursuant to Florida Rule of Criminal Procedure 3.850. We reverse because the motion to vacate filed in 2018 is well past the two-year time limitation established by State v. Green, 944 So.2d 208 (Fla. 2006).

Lorenzo, a Cuban immigrant, became a resident of the United States in 1992. On August 3, 2000, Lorenzo, through his court appointed counsel, pleaded guilty to one count of Organized Scheme to Defraud and one count of Medicaid Fraud. He accepted a court-offered plea that included withholding adjudication, one year of probation, and restitution. Prior to accepting the plea, Lorenzo's counsel requested that the trial court allow Lorenzo to travel to Cuba to see his mother. The trial court granted Lorenzo's request. The trial court judge failed, however, to inform Lorenzo of the immigration risks associated with acceptance of a plea by a non-U.S. citizen, as required by Florida Rule of Criminal Procedure 3.172(c)(8). Lorenzo notified his probation officer and traveled to Cuba. Since his plea, Lorenzo traveled to Cuba four more times, each time re-entering the United States without issue. In 2017, as Lorenzo returned from Cuba, U.S. Border Protection agents confiscated his U.S. resident card and Cuban passport at Miami International Airport. He was ordered to appear for Deferred Inspection, learning for the first time that taking the plea subjected him to deportation.

In February 2018, Lorenzo filed a motion to vacate his August 2000 plea as involuntary, arguing that the trial court failed to inform him of any immigration consequences to the plea as a non-citizen. He argued that his Rule 3.850 motion was timely filed under the Florida Rule of Criminal Procedure 3.850(b)(1) exception. The State filed a response and the trial court ordered an evidentiary hearing. The trial court granted Lorenzo's Motion to Vacate, finding that Lorenzo met the Rule 3.850(b)(1) exception. The State appeals.

Rule 3.850(b) creates an exception to the two year time limit for file for post-conviction relief where "the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence." Fla. R. Crim. P. 3.850(b)(1). This Court addressed a similar issue in Jules v. State, 233 So.3d 1196 (Fla. 3d DCA 2017). There, the trial court failed to advise Jules of the immigration consequences associated with his plea. Jules asserted that his motion was not time barred because he had taken post-plea international trips and had renewed his residency status, which had not alerted him of any issues regarding the immigration consequences of his plea. This Court disagreed, stating "[w]e need not decide whether Jules in fact knew of the immigration consequences of his plea prior to June 2015 because, even if true, it is not alone sufficient to warrant relief. Jules must also establish that this information 'could not have been ascertained by the exercise of due diligence.' " Similarly, although Lorenzo had asked the trial court if he could travel to Cuba, Lorenzo only filed his motion for post-conviction relief after learning on October 4, 2017 that he could be deported for the acceptance of his plea agreement in August 2000.

As the case law on plea and deportation consequences has evolved, the current state of this issue is controlled by State v. Green, 944 So.2d 208 (Fla. 2006). See also Jules v. State, 233 So.3d 1196 (Fla. 3d DCA 2017). Green holds that,

[T]he defendant must satisfy the requirement in rule 3.850(b)(1) by alleging and proving that the fact that the plea subjected the defendant to deportation could not have been ascertained during the two-year period with the exercise of due diligence. It will not be enough to allege that the defendant learned of the possibility of deportation only upon the commencement of deportation proceedings after the two-year limitations period has expired. The requirement of due diligence compels the defendant to allege and prove that affirmative steps were taken in an attempt to discover the effect of the plea on his or her residency status.

Id. at 218. Furthermore, the Court in Green held that defendants whose cases were already final in 2006 had two years from the date of that opinion to file a 3.850 motion asserting the involuntary plea issue. The holding in Green gave Lorenzo until 2008 to "take affirmative steps" to discover the effect of the plea on his residency status. Lorenzo did not do this until 2017, when he was detained by immigration officials and at that time learned he was subject to deportation.

Lorenzo argues on appeal that he exercised sufficient due diligence when, at the plea colloquy in 2000, he asked the court if he could travel to Cuba. He asserts that the court's permission to travel satisfied the "affirmative steps" requirement and thus his postconviction motion was timely filed. We cannot, however, establish a lower standard of due diligence based solely on the trial court's authorization to travel, or permit the implication that by so doing the trial court was giving Lorenzo legal advice regarding the consequences of his plea. The Green opinion imposed a new standard with new post-plea obligations, and Lorenzo was required since that opinion was issued in 2006 to not simply wait until he was facing the threat of deportation, but to take affirmative steps to discover the effect of his plea on his residency status. It is no longer acceptable to merely wait and see what happens post-plea. See Jules, 233 So.3d at 1200. In addition, Lorenzo only asked if he could travel; he did not inquire about how travel or probation would affect his residency status.

The trial court's incomplete plea colloquy notwithstanding, Lorenzo's 2018 motion to vacate his plea is time-barred pursuant to Green. We reverse the order on appeal and remand with instructions to reinstate the plea and sentence.

Reversed and remanded with instructions.


author: MILLER, J.

text:
    Ceasar GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-84
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LINDSEY, and MILLER, JJ.
   MILLER, J.

Ceasar Gonzalez appeals his convictions, following a jury trial, for attempted aggravated battery and battery, as lesser-included offenses of attempted second-degree murder and domestic battery by strangulation. We affirm.

First, Gonzalez asserts that the trial court erred by admitting into evidence a prior act of domestic violence involving the same victim. We find the prior act was properly admitted into evidence to prove motive, intent, or absence of mistake or accident, and the trial court provided a limiting instruction and restricted the scope of inquiry into the prior act to prevent unfair prejudice. Burgal v. State, 740 So.2d 82, 83 (Fla. 3d DCA 1999) ("[T]he prior incidents of domestic violence by [defendant] against the victim were properly admitted into evidence to prove motive, intent, and premeditation."); see §§ 90.404(2) and 90.403, Fla. Stat. (2018).

Second, Gonzalez contends that his dual convictions for attempted aggravated battery and battery violate double jeopardy principles. As both convictions require "proof of a different element," and the two convictions are based on separate acts, we find no double jeopardy violation. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; see also Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006) ("A defendant is placed in double jeopardy where based upon the same conduct the defendant is convicted of two offenses, each of which does not require proof of a different element."); § 775.021(4), Fla. Stat. (2018) (codifying the Blockburger elements test where the Legislature does not clearly provide for separate punishments); Khianthalat v. State, 974 So.2d 359, 361 (Fla. 2008) ("The elements of simple battery are: (1) actually and intentionally touching or striking another person; and (2) against the will of the other person."), citing § 784.03(1)(a)(1), Fla. Stat.; Washington v. State, 912 So.2d 344, 346 (Fla. 3d DCA 2005) ("[A]ttempted aggravated battery is committed when a person commits an attempted battery and either intends to cause great bodily harm or uses a deadly weapon."), citing § 784.045 Fla. Stat. and State v. Carswell, 914 So.2d 9 (Fla. 4th DCA 2005).

Accordingly, we affirm the convictions and sentence.

Affirmed.


text:
    Kobie BERMUDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-6
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    Kobie Bermudez, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and SCALES and HENDON, JJ.
   PER CURIAM.

Affirmed. See Matias v. State, 228 So.3d 677, 678 (Fla. 2d DCA 2017) (observing: "We agree ... that it usually may be unnecessary for a court to include language in a sentencing document providing for the right to judicial review of a sentence, as subsection (4) provides that the offender initiates the sentence review by submitting an application to the trial court requesting that a sentence review hearing be held. After receiving this application, it is mandatory for a trial court to conduct the review. § 921.1402(6).")


text:
    Nedean WILLIAMS, Appellant, v. JESSICA L. KERR, P.A., et al., Appellees.
    No. 3D18-1895
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019 Rehearing Denied March 4, 2019
    Nedean Williams, in proper person.
    Jessica L. Kerr, P.A. d/b/a The Advocacy Group, and Jessica L. Kerr (Ft. Lauderdale); The Law Offices of Jeffrey N. Golant, P.A., and Jeffrey Golant (Coral Springs), for appellees.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   MILLER, J.

Appellant, Nedean Williams, appeals a final order authorizing the disbursement of escrowed settlement funds pursuant to a charging lien and contingency fee agreement. On appeal, Williams contends that the trial court abused its discretion in rejecting allegations that her attorneys colluded with one another to defraud her out of settlement proceeds. For the reasons set forth below, we affirm.

The trial court was charged with apportioning settlement proceeds following the resolution of litigation. The court declined to summarily adjudicate the competing interests, and, instead, convened a duly scheduled, multi-hour evidentiary hearing prior to rendering its final ruling. The record on appeal contains no transcript of the hearing.

"It is well established that the party seeking appellate review has the burden of providing the court with an adequate record of the proceedings in the lower tribunal." Kass Shuler, P.A. v. Barchard, 120 So.3d 165, 168 (Fla. 2d DCA 2013) (quoting Philip J. Padovano, Florida Appellate Practice § 12.3 (West's Fla. Prac. Series 2011-12 ed.) (footnote omitted) ). "An appellate court cannot reverse a decision in the absence of a sufficient record." Id. (emphasis omitted). This is because "[w]ithout a record of the trial proceedings, the appellate court can [not] properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory." Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). Thus, "when no transcript is provided, a judgment that is not fundamentally erroneous will be affirmed." Arnold v. Whitley, Jr., 97 So.3d 339 (Fla. 5th DCA 2012).

Here, Williams has not brought forward any substitute for a trial transcript. The errors articulated on appeal necessarily implicate some factual determinations and are not apparent on the face of the record. Thus, we find no demonstration of error and affirm the final order under review. Applegate, 377 So.2d at 1152.

Affirmed.

      As was aptly penned by now Justice Canady in Esaw v. Esaw, 965 So.2d 1261, 1264 (Fla. 2d DCA 2007) : "The most salient impediment to meaningful review of [a] trial court's decision is ... the absence of a transcript."

      See Fla. R. App. P. 9.200(b)(5).


text:
    Pamela PICHILLI, et al., Appellants, v. Steven RODRIGUEZ, et al., Appellees.
    No. 3D18-0445
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    Friedman & Friedman, P.A., and Zachary A. Friedman, for appellants.
    Cooney Trybus Kwavnick Peets, and Warren Kwavnick (Fort Lauderdale), for appellees.
    Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
   PER CURIAM.

Affirmed. See Olave v. Howard, 547 So.2d 349 (Fla. 3d DCA 1989) ; Bessent v. Matthews, 543 So.2d 438 (Fla. 1st DCA 1989). See also Panzera v. O'Neal, 198 So.3d 663 (Fla. 2d DCA 2015) ; Byrd v. Leach, 226 So.2d 866 (Fla. 4th DCA 1969).


text:
    Jerartis D. ICON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2621
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    Jerartis D. Icon, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and SCALES, JJ.
   PER CURIAM.

Jerartis D. Icon appeals the trial court's order summarily denying his motion for additional credit time served, filed pursuant to Florida Rule of Criminal Procedure 3.801. Even if (as Icon asserts) the three-year prison sentence imposed in the instant case was ordered to run concurrently with a prison sentence previously and separately imposed in the circuit court for Palm Beach County, this would not entitle him to receive any additional credit for county jail time served in the instant case. Icon was awarded a total of 577 days of jail credit, and has failed to allege or establish an entitlement to any additional jail credit. See, e.g., Brito v. State, 194 So.3d 522 (Fla. 3d DCA 2016) ; James v. State, 721 So.2d 1265 (Fla. 3d DCA 1998) ; Keene v. State, 500 So.2d 592 (Fla. 2d DCA 1986).

Affirmed.

      The record on appeal, including the judgment, sentence and sentencing guideline scoresheet, fails to reflect that the sentence imposed in the instant case was to run concurrently with any other sentence. Further, Icon failed to provide a transcript of the plea and sentencing hearing in this case.


text:
    Ibis BRITO and Orlando Brito, Appellants, v. SOUTHERN FIDELITY PROPERTY & CASUALTY, INC., Appellee.
    No. 3D17-2471
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    Sivyer Barlow & Watson, P.A. and Melissa A. Giasi (Tampa), for appellants.
    Vernis & Bowling of Miami, P.A., and Eric J. Knuth, Miami, Saltanat Biter and Charles G. Short, for appellee.
    Before LOGUE, and MILLER, JJ., and SUAREZ, Senior Judge.
   MILLER, J.

Appellants, Ibis and Orlando Brito, appeal a final order dismissing their case and imposing monetary sanctions after the trial court struck their pleadings for discovery abuses and, as reflected in its order, promulgating a "sham claim." For the reasons that follow, we conclude that the Britos were not afforded sufficient due process and the record does not support the findings set forth in the order of dismissal. Accordingly, we reverse the order under review.

A trial court's imposition of sanctions, including dismissal of a case, as a consequence of discovery violations is reviewed under an abuse of discretion standard. See Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983) (" 'The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness' ... This test should apply to the discretionary power of the trial court to grant sanctions.") (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) ). "To dismiss a cause of action for the failure to comply with an order of the court is the most severe of all sanctions and should be employed only in extreme circumstances." Clay v. City of Margate, 546 So.2d 434, 435 (Fla. 4th DCA 1989).

Notwithstanding this discretionary standard, "due process requires that a party be given sufficient notice to prepare for a hearing." 1445 Washington Ltd. P'ship v. Lemontang, 19 So.3d 1079, 1081 (Fla. 3d DCA 2009) ; see also Herranz v. Siam, 2 So.3d 1105 (Fla. 3d DCA 2009) ("[I]f the court is to allow testimony in disputed motion calendar hearings, specific notice of such intention must be given, with a sufficient interval to prepare and adequate opportunity to present contrary testimony prior to ruling.") (quoting Juliano v. Juliano, 687 So.2d 910, 911 (Fla. 3d DCA 1997) ).

Here, Southern Fidelity Property & Casualty, Inc. penned a lengthy motion containing allegations of fraud, attorney misconduct, extra-judicial, uncharged criminal activity, and discovery misconduct on the eve of a pre-scheduled, non-evidentiary status conference. The motion referenced previous judicial findings of wrongdoing that are not reflected in the record. During the status conference, substitute counsel for the Britos appeared, citing a scheduling conflict for the counsel of record. Southern Fidelity's counsel argued its motion, but presented no evidence in furtherance of its allegations.

As the Britos were not formally advised that the sanctions motion would be heard at the status conference, they were effectively divested of their opportunity to refute the unverified contentions set forth in the motion. We further note the record before us is "devoid of any evidence reflecting willful disregard of an order of court," or "deliberate and contumacious disregard of the court's authority," further compelling reversal. Clay, 546 So.2d at 435 (citing Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971) ).

Accordingly, we reverse the order under review and remand for the trial court to conduct further proceedings.

Reversed and remanded.

      Although the sanctions motion did not specifically identify the Britos' complaint as "sham," the proposed order adopted by the trial court included said language. Prior to striking a pleading as sham, premised upon a finding that a pleading is a "mere pretense set up in bad faith and without color of fact," and thus "plain fiction," an evidentiary hearing must be convened. Rhea v. Hackney, 117 Fla. 62, 157 So. 190, 193-94 (1934) ; see also Fla. R. Civ. P. 1.150 ("If a party deems any pleading or part thereof filed by another party to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties...").


author: SCALES, J.

text:
    A.A., a Juvenile; S.F., a Juvenile & N.A., a Juvenile, Appellants/Petitioners, v. The STATE of Florida, Appellee/Respondent.
    Nos. 3D17-2075 3D18-963 & 3D18-995
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein and Jonathan Greenberg, Assistant Public Defenders, for appellants/petitioners.
    Ashley Moody, Attorney General, and David Llanes and Christina L. Dominguez, Assistant Attorneys General, for appellee/respondent.
    Before EMAS, C.J., and FERNANDEZ and SCALES, JJ.

      Did not participate in oral argument.

   SCALES, J.

In these consolidated cases, two juvenile defendants in delinquency cases, S.F. and N.A., challenge, via petition, "do not run" orders entered against them. The third juvenile defendant, A.A., concedes the do not run order entered against her was authorized, but challenges, via appeal, the contempt adjudication resulting from A.A.'s violation of her do not run order. The challenged orders prohibited each respective juvenile from running away from his or her home or alternate placement while a delinquency proceeding was pending. For the reasons set forth below, we deny S.F. and N.A.'s petitions for writ of prohibition (and their alternate petitions for habeas corpus) and uphold the trial courts' issuance of do not run orders in their cases. We reverse, however, the judgment holding A.A. in contempt of court because of procedural and evidentiary problems occurring at A.A.'s contempt trial.

I. Procedural and Factual Background

A. Introduction

In each of these three cases, the trial court issued a do not run order to a juvenile who was pending a court adjudication and whom the trial court was concerned would not appear for hearing. A do not run order is a species of injunction generally requiring the juvenile to remain in the juvenile's home or placement. In each instance, the juvenile violated the do not run order and, as a result, potentially became subject to a contempt of court judgment. Of the three juveniles, only A.A.'s case graduated to a contempt trial. The trial courts consider a do not run order to be a form of nonsecure detention. See § 985.03(18)(b), Fla. Stat. (2017). The defense in each of these cases argues that the trial court does not hold the authority to issue a do not run order to a juvenile pending a finding of delinquency because no provision of chapter 985 of the Florida Statutes specifically provides for such an order.

B. The case of S.F.

On February 14, 2018, the State filed a petition for delinquency charging sixteen-year-old S.F. with (i) misdemeanor battery of her mother, and (ii) misdemeanor criminal mischief by damaging the hood of her mother's car (lower tribunal case number J18-335). When the State filed its delinquency petition, S.F. was also the subject of a dependency case pursuant to chapter 39 of the Florida Statutes (lower tribunal case number D18-15129). On February 15, 2018, the trial court conducted a hearing in accordance with section 985.255(1) of the Florida Statutes. At this hearing, the trial court (presiding over both the delinquency and the dependency cases) issued a shelter placement order that released S.F. to the Miami Bridge Shelter ("Bridge").

While the record is not entirely clear, it appears that on May 8, 2018, the trial court entered a "pick up order in both the delinquency case and the dependency case for S.F.'s failure to appear at a scheduled hearing that day." With S.F. in custody, the trial court quashed the pick-up order at S.F.'s May 11, 2018 preliminary hearing. At this hearing, the trial court released S.F. to the custody of the Department of Children and Families ("DCF") to be placed in Miami's Rivers of Life shelter. Bridge, the previous shelter, declined to allow S.F. to remain there after an alleged violent incident. S.F.'s case manager advised the trial court that S.F.'s recent history of not following directions and not attending school had led to her removal from foster family care.

At the May 11, 2018 preliminary hearing, the Clerk advised the trial court that, in the delinquency case, S.F. had an upcoming docket sounding scheduled for May 16, 2018, with trial set for July 9, 2018. At the end of this May 11, 2018 hearing, when the trial court released S.F. to the Rivers of Life shelter, the trial court, over the objection of S.F.'s counsel, verbally entered a do not run order from the shelter.

S.F. then filed the instant petition with this Court challenging the do not run order, seeking prohibition, or, in the alternative, habeas relief. (3D18-963).

C. The case of N.A.

On November 14, 2017, the State filed a petition for delinquency charging N.A., a fourteen-year-old boy, with third degree felony grand theft (later changed to misdemeanor second degree petit theft) for allegedly stealing a wallet and its contents at school (lower tribunal case number J17-2334). N.A. was arrested for this crime on October 4, 2017, but the record is unclear as to whether the Department of Juvenile Justice ("DJJ") took custody of him and placed him in detention care, and whether N.A. received a hearing within twenty-four hours of being taken into custody. See §§ 985.25(1), 985.255(1), Fla. Stat. (2017).

N.A. failed to appear for a November 27, 2017 court hearing in case number J17-2334, and the trial court issued a pick-up order. N.A. was arrested on the pick-up order on January 27, 2018, and also was charged with a new misdemeanor for loitering and prowling (lower tribunal case number J18-209B). The State, however, took no action on this latter charge. After being held in secure detention due to the pick-up order, N.A. was released to his mother and the pick-up order was quashed; however, two days later, for a reason not stated in the record, N.A. was custody-released to Miami's River of Life shelter. On January 28, 2018, as a result of N.A. being arrested in the loitering and prowling case, the DJJ, pursuant to section 985.245 of the Florida Statutes, had prepared a Detention Risk Assessment, finding that N.A. was of minimal risk and eligible for release.

N.A. missed another court appearance in case number J17-2334 on March 13, 2018, and another pick-up order was issued. It was quashed on May 15, 2018, when N.A. was again detained. On May 17, 2018, N.A. appeared at a change of custody hearing. The record indicates that a home study had been in progress with the goal of providing N.A. with a new place to live. At this hearing, the trial court informed N.A. that he was being released to a Ms. Gonzalez, the mother of N.A.'s school friend. The Gonzalez family had volunteered to take N.A. into their home. At this hearing, the trial court, over the objection of N.A.'s counsel, issued a written do not run order. The order provided that, if N.A. were to run from his placement in Ms. Gonzalez's home, N.A. "shall serve five (5) days in secure detention for each day [he] is on runaway status." The record of this hearing reflects that N.A. was scheduled for a June 5, 2018 trial in his delinquency case. The trial court also advised N.A. he could be held in contempt of court if he were to violate the terms of the do not run order.

N.A. then filed the instant petition with this Court challenging the do not run order, seeking prohibition, or, in the alternative, habeas relief. (3D18-995).

D. The case of A.A.

1. A.A.'s chronic misbehavior

On August 27, 2015, the State filed a petition for delinquency charging A.A., then a fourteen-year-old girl, with first degree misdemeanor battery of her mother (lower tribunal case number J15-2421). She was released to her mother's custody.

At A.A's June 2016 trial, the trial court sentenced A.A. to a diversionary program for domestic violence with substance abuse treatment, a program from which she was expelled a month later. A.A. failed to satisfactorily compete the diversionary program and, on September 8, 2016, the trial court withheld adjudication in A.A.'s delinquency case and gave A.A. probation through her nineteenth birthday. Pursuant to the probation order, A.A. would remain under DJJ supervision, would live at home with a parent or guardian, would complete twenty hours of community service, would be subject to a curfew, would attend school every day, and would not possess alcoholic beverages, controlled substances or tobacco products.

The record reflects that, despite the conditions of A.A's probation, A.A. had a history of going missing and becoming the subject of pick-up orders. On December 21, 2016, A.A.'s probation officer filed an affidavit alleging that A.A. violated her probation repeatedly from September to December of 2016, by not being home, by not attending school, by being suspended from school, and by testing positive for marijuana use. Then, in January of 2017, A.A. was charged with another battery (lower tribunal case number J17-73). On January 30, 2017, the trial court, in case numbers J15-2421 and J17-73, issued a concise, written do not run order. This order required A.A. to "remain living at [A.A.'s] home and/or current placement" and, if A.A. should run, then she "shall serve five (5) days in secure detention for each day [A.A.] is on runaway status."

On March 14, 2017, A.A. was scheduled for a hearing for violating the terms of the probation order entered in case number J15-2421 and for a trial in the second battery case (J17-73). The trial court reset both of these proceedings for April 19, 2017. In the meantime, on March 14, 2017, the trial court issued a second do not run order, in case numbers J15-2421 and J17-73. This particular, written do not run order made explicit that a violation of the order could "result in a civil contempt hearing." At the April 19, 2017 hearings on both delinquency cases, the trial court dismissed the violation of probation allegation in J15-2421 and acquitted A.A. of the second battery charge (J17-73).

A.A. remained on probation in J15-2421. From May to November of 2017, the trial court issued and subsequently quashed six more pickup orders. The trial court ordered A.A. to write a letter of apology for lying about her case manager, then set a contempt hearing (which was subsequently rescheduled to July 18, 2017) when A.A. did not complete the letter. A.A. was not in court at the start of the July 18, 2017 contempt hearing because she was in custody for a new delinquency charge (resisting arrest without violence, lower tribunal case number J17-1657, which the record reflects was "no-actioned"). The order to show cause for this July 18, 2017 contempt hearing eventually was discharged.

To add to all of this turmoil, A.A. picked up three new cases from Palm Beach County in March of 2017, which were transferred to Miami-Dade County in May of 2017. The trial court accepted jurisdiction of these cases on May 13, 2017. Again, A.A.'s probation officer filed an affidavit of probation violation - alleging school attendance and curfew violations - throughout May and June of 2017. This affidavit was filed in A.A.'s original battery case - J15-2421 - as well as in all three of the cases transferred from Palm Beach County.

While A.A. was subject to the March 14, 2017 do not run order, she ran away and allegedly was missing on May 8, 9, 16, 17, 18 and June 12 and 13, 2017. These alleged violations were the subject of a July 18, 2017 State petition for a rule to show cause, seeking to hold A.A. in contempt for violation of the March 14, 2017 do not run order. A contempt of court trial was set for August 22, 2017. A.A. absconded from DJJ on July 25, 2017; as a result, the State placed A.A. into secure detention on July 30, 2017, where she remained until August 15, 2017, when she was released into DCF custody. She absconded again and was placed into secure detention again until the start of her August 22, 2017 contempt trial.

2. A.A's contempt trial

The State called two witnesses: A.A.'s case manager and A.A.'s former foster mother. The case manager testified that A.A. disappeared from her office during the morning of May 8, 2017, and that the police located A.A. on May 9th. The case manager further testified, after a hearsay objection was overruled, that she received notice - presumably from one of A.A.'s foster parents - that A.A. did not return home from an outing to the movies on May 15th. The case manager's notes reflected that A.A. did not return to her foster home until May 18th.

Over A.A.'s objection, A.A.'s former foster mother - A.A.'s foster parent during the May 15-18 absences - testified by telephone. The defense objected to the foster mother's testimony by telephone. The foster mother generally confirmed that A.A. had run away from home and that she had communicated this information to the case manager; however, the foster mother could not identify specific dates because her cellphone, where she had recorded the dates, was damaged and inaccessible.

The trial court found that A.A. had violated the terms of the March 14, 2017 do not run order and, on August 27, 2017, adjudicated A.A. guilty of contempt of court. It sentenced A.A. to sixty-five days of secure detention: five days for the first offense and fifteen days for each of the four additional offenses.

A.A. timely appealed this August 27, 2017 order (3D17-2075). Initially, A.A. argued both that the trial court lacked jurisdiction to enter the March 2017 do not run order, and that A.A. was denied due process as a result of how the trial court conducted the contempt hearing. In her reply brief, A.A. concedes that, because A.A. was on probation, the do not run order was authorized. A.A. continues to maintain that she was denied due process.

II. Analysis

We consolidated the petitions of S.F. and N.A. with the appeal filed by A.A. For the reasons we discuss below, we deny the petitions of S.F. and N.A., but we reverse and remand A.A.'s contempt adjudication.

A. The cases of S.F. and N.A.

1. Overview of chapter 985

S.F. and N.A. both argue that the do not run orders entered against them are void because the trial court lacked the statutory authority to enter them. While we agree with S.F. and N.A.'s general premise that pretrial detention of juveniles is governed by statute, we disagree that the relevant provisions of chapter 985 do not provide sufficient statutory authority for the do not run orders entered against S.F. and N.A.

For an effective understanding of our holding, we provide a brief overview of the relevant statutes relating to pretrial detention of juveniles. Generally, upon a child's arrest, DJJ receives the child either from a law enforcement agency or from the court, and DJJ conducts a risk assessment to determine whether, pending adjudication, the child should be subject to "detention care." See §§ 985.03(18), 985.25, 985.245, Fla. Stat. (2017). There are two species of detention care: "secure detention," where the child is under physical restriction in a secure detention facility; and "nonsecure detention," where the child is released to the custody of a parent, guardian, or custodian in a physically non-restrictive environment. See § 985.03(18)(a)-(b), Fla. Stat. (2017).

Forms of nonsecure detention include, but are not limited to, home detention, electronic monitoring, day reporting centers, evening reporting centers, and nonsecure shelters. § 985.03(18)(b), Fla. Stat. (2017). Importantly, in 2014, the Florida Legislature amended the definition of "nonsecure detention" to expressly provide that "(n)onsecure detention may include other requirements imposed by the court." Ch. 2014-163, § 3, Laws of Fla. Hence, if a child is otherwise validly ordered into "nonsecure detention," then do not run orders, such as the ones entered against S.F. and N.A., are expressly authorized by statute as "other requirements imposed by the court."

Assuming DJJ's initial risk assessment establishes grounds for "detention care" for the juvenile, a detention hearing must follow within twenty-four hours of the child being placed in custody in order to determine whether continued detention is warranted. § 985.255(1), Fla. Stat. (2017). At this hearing, the trial court must consider DJJ's risk assessment and, subject to the statute's requisites, determine whether continued detention is appropriate. § 985.255(3). We find that three specific provisions of section 985.255 were relevant in the course of S.F. and N.A.'s cases. First, section 985.255(1)(g) authorizes continued detention care if the juvenile is charged with a second or third degree felony and is awaiting final disposition of his or her case. Second, section 985.255(1)(i) authorizes continued detention care if the juvenile has been detained on a pick-up order after willfully failing to appear. Finally, although not applied below with respect to S.F., sections 985.255(1)(d) and (2) authorize continued detention care if the juvenile is charged with an act of domestic violence.

2. Authority for the Do Not Run Orders

Both S.F. and N.A. argue that, under this statutory scheme, detention care may be imposed only when the child initially is taken into custody, and therefore, the trial court lacked specific statutory authority to enter subsequent do not run orders as to them. We disagree. Section 985.255(1)(i) specifically authorizes the juvenile court to order "continued detention" if the child is detained on a judicial order for failure to appear and has previously failed to appear. In essence, the detention process re-commences as the product of an executed pick-up order.

Both S.F. and N.A. were taken into custody and detained on pick-up orders for failure to appear at a court proceeding. Consequently, the trial court was authorized to order "continued detention" of S.F. and N.A. under section 985.255(1)(i). As noted above, the definition of nonsecure detention in section 985.03(18)(b) expressly authorizes the trial court, at its option, to "include other requirements" as part of nonsecure detention. The trial court exercised its discretion in each of S.F. and N.A.'s cases to custody-release the juvenile (S.F. was released to a shelter, N.A. to a friend's home), and then exercised its further discretion to maintain an aspect of nonsecure detention by imposing the subject do not run orders. Once S.F. and N.A. were in detention, the trial court had the authority to impose continued detention under section 985.255(1) and the do not run orders under the "other requirements" language of section 985.03(18)(b).

We, therefore, conclude that the trial court had specific statutory authorization to enter the do not run orders in these cases. Because we find authority for do not run orders in S.F. and N.A.'s cases, we deny S.F. and N.A.'s petitions.

B. The case of A.A.

A.A. appeals the order of contempt, which the trial court entered against A.A. after finding that she violated its March 14, 2017 do not run order. Unlike the cases of N.A. and S.F., supra , A.A. does not challenge the authority of the trial court to enter the subject do not run order, but does challenge the resulting contempt order on due process grounds. On this record, we agree that the trial court found A.A. in contempt without affording A.A. sufficient due process.

Specifically, at A.A.'s contempt trial, the trial court allowed improper testimony in two instances. First, A.A.'s former foster mother was allowed to present testimony over a speakerphone, depriving A.A. the right to confront a witness in a criminal contempt proceeding. Pursuant to section 985.037(4)(b)(4), when a child is charged with contempt of court for violating a court order, the child has a right to confront witnesses at the hearing. See Fla. R. Juv. P. 8.150(5)(C). A.A.'s former foster mother, a witness adverse to A.A., gave testimony by telephone that proved to be uncertain. A.A. had a right to confront her. See Harrell v. State, 689 So.2d 400, 403 (Fla. 3d DCA 1997).

Second, A.A.'s case manager gave testimony that amounted to inadmissible hearsay when she provided information about A.A's status as a runaway on specific dates without having personal knowledge of A.A.'s whereabouts on those dates. Impermissible hearsay may not support a finding of contempt of court. Torres v. State, 870 So.2d 149, 149 (Fla. 2d DCA 2004).

On remand, we remind the trial court of the requirement that, while a juvenile may be placed in a secure detention facility as a sanction for contempt of court, the trial court is required to consider alternate sanctions. § 985.037(3), Fla. Stat. (2017). The record in this case indicates that the trial court ordered A.A. to secure detention without considering alternate sanctions. Hence, we reverse the contempt order in A.A. and remand for a hearing to be conducted consistent with the requisites of section 985.037.

III. Conclusion

When a juvenile is taken into custody for violation of a pick-up order, the delinquency court is authorized to hold the juvenile in continued detention. Even if the trial court exercises its discretion to custody-release the juvenile, the trial court may impose, pursuant to section 985.03(18)(b), "other requirements" such as a do not run order. Thus, the trial court had the specific statutory authority to enter the do not run orders as to N.A. and S.F.

When conducting a contempt hearing on a violation of a do not run order, the trial court must afford the juvenile due process and abide by the provisions of section 985.037. A.A.'s hearing did not conform to these requirements, and therefore, we reverse the subject contempt order entered against A.A. and remand to the trial court to conduct a hearing consistent with constitutional and statutory requisites.

Petitions of S.F. and N.A. denied; order adjudicating A.A. in contempt of court reversed and remanded.

      A pick-up order is an order entered by a trial court to take a juvenile into custody when that juvenile has failed to appear for a scheduled delinquency hearing. See A.K. v. Dobuler, 951 So.2d 989, 991 (Fla. 3d DCA 2007).

      Section 985.255 sets forth juvenile detention criteria. S.F. was charged with committing an offense involving domestic violence (section 985.255(1)(d) ) and had failed to appear for an adjudicatory hearing (section 985.255(1)(i) ). Thus, S.F. was eligible for a form of detention to be determined by the trial court. As explained, infra , a do not run order is a form of nonsecure detention.

      A.A. is also the subject of a dependency case that dates back to the year of her birth, lower tribunal case number D01-16062.

      This do not run order, like a subsequent rule to show cause, dated May 8, 2017, refers to "civil contempt." Contempt proceedings in juvenile court are governed by section 985.037 of the Florida Statutes. This statute contains clear indicia of criminal, rather than civil, contempt procedures and protections.

      The lower tribunal case numbers for these cases are: J17-1143 (trespass), J17-1154 (burglary of an unoccupied dwelling, petit theft), and J17-1155 (burglary of an unoccupied dwelling, petit theft, battery).

      The proceedings and the order of the trial court from this August 22, 2017 contempt trial concerned the dates of May, 8, 9, 16, 17, 18 only.

      See C.A.F. v. State, 976 So.2d 629, 631 (Fla. 5th DCA 2008).

      We note that S.F. and N.A. rely heavily on the pre-amendment case of C.A.F. v. State, 976 So.2d 629 (Fla. 5th DCA 2008). In C.A.F., the trial court released the arrested juvenile to his parents' custody, and later, after arraignment, entered a release order that significantly restricted C.A.F.'s freedom. Id. at 630-31. In adjudicating C.A.F.'s habeas corpus challenge of the release order, our sister court held that, under the then existing statutory scheme, no authority existed for the entry of such an order. Id. at 631.

      This provision reads in its entirety as follows:
      (1) Subject to s. 985.25(1), a child taken into custody and placed into detention care shall be given a hearing within 24 hours after being taken into custody. At the hearing, the court may order continued detention if:
      ....
      (g) The child is charged with any second degree or third degree felony involving a violation of chapter 893 or any third degree felony that is not also a crime of violence, and the child:
      1. Has a record of failure to appear at court hearings after being properly notified in accordance with the Rules of Juvenile Procedure;
      2. Has a record of law violations prior to court hearings;
      3. Has already been detained or has been released and is awaiting final disposition of the case;
      4. Has a record of violent conduct resulting in physical injury to others; or
      5. Is found to have been in possession of a firearm.
      § 985.255(1)(g), Fla. Stat. (2017).

      In relevant part, section 985.255(1)(i) provides as follows:
      (1) Subject to s. 985.25(1), a child taken into custody and placed into detention care shall be given a hearing within 24 hours after being taken into custody. At the hearing, the court may order continued detention if:
      ....
      (i) The child is detained on a judicial order for failure to appear and has previously willfully failed to appear, after proper notice:
      1. For an adjudicatory hearing on the same case regardless of the results of the risk assessment instrument; or
      2. At two or more court hearings of any nature on the same case regardless of the results of the risk assessment instrument.
      § 985.255(1)(i), Fla. Stat. (2017).

      As previously mentioned, in her reply brief A.A. conceded that the trial court had the authority to issue her a do not run order under section 985.02(4)(a) of the Florida Statutes, because the trial court already had the discretion to subject A.A. to detention care pursuant to A.A.'s September 2016 probation. But for her probation, A.A., like S.F. and N.A., maintains that the trial court would not have the authority to issue a do not run order under chapter 985.


text:
    Jaime GORDILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1099
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    Jaime Gordillo, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   PER CURIAM.

Affirmed. See Rodriguez v. State, 223 So.3d 1095 (Fla. 3d DCA 2017) ; Zaetler v. State, 627 So.2d 1328 (Fla. 3d DCA 1993) ; Iacono v. State, 930 So.2d 829 (Fla. 4th DCA 2006).


text:
    Phillip DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0032
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019.
    Daniel J. Tibbitt, P.A., and Daniel Tibbitt, Miami, for appellant.
    Ashley Moody, Attorney General, and Eric J. Eves, and Marlon J. Weiss, Assistant Attorneys General, for appellee.
    Before EMAS, C.J., and SALTER, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings , it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." (emphasis added)); Connolly v. State, 172 So.3d 893 (Fla. 3d DCA 2015) (finding no fundamental error where the imperfection of the information did not mislead the defendant as he still had notice of the appropriate statute alleged to be violated); Mesa v. State, 632 So.2d 1094 (Fla. 3d DCA 1994) (finding no error despite failure to allege an essential element of the crime charge where "the charging document references the specific section of the criminal code which the defendant is charged with violating"); cf. Knight v. State, 253 So.3d 22 (Fla. 3d DCA 2017) (finding error where the charging instrument failed to allege statute violated and essential elements of the crime).


author: EMAS, C.J.

text:
    Luis TEJERA, et al., Appellants, v. LINCOLN LENDING SERVICES, LLC, et al., Appellees.
    No. 3D16-2746
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    Corona Law Firm, P.A., and Ricardo Corona and Ricardo M. Corona, Coral Gables, for appellants.
    Dorta & Ortega, P.A., and Omar Ortega and Rosdaisy Rodriguez ; David M. Rogero, P.A., and David M. Rogero and Yvette H. Ayala, Coral Gables, for appellees.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.

      Judge Salter and Judge Fernandez did not participate in oral argument.

   EMAS, C.J.

I. INTRODUCTION

Luis Tejera appeals the trial court's order dismissing with prejudice counts 19 and 21 of the operative complaint against Omar Romay ("Romay") and America-CV Network, LLC ("ACV"), as barred by the statute of limitations. We affirm without further discussion the trial court's dismissal of count 19 (alleging a claim for civil conspiracy to commit civil theft), as the trial court properly determined that count was barred by the statute of limitations.

However, we reverse the trial court's order dismissing count 21 (alleging a claim for civil conspiracy to perpetrate fraud in the inducement). Upon our de novo review, see Nationstar Mortg., LLC v. Sunderman, 201 So.3d 139, 140 (Fla. 3d DCA 2015), we hold that count 21, as alleged against Romay and ACV, is an "action founded upon fraud," thereby permitting application of the delayed discovery doctrine in determining when the statute of limitations period began to run.

II. THE ALLEGATIONS OF THE COMPLAINT

"A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues, and the allegations of the complaint must be taken as true and all reasonable inferences therefrom construed in favor of the nonmoving party." The Florida Bar v. Greene, 926 So.2d 1195 (Fla. 2006) ; Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204 (Fla. 3d DCA 2003). Accepting as true all allegations of the operative complaint, Luis Tejera and others were victims of an illegal mortgage rescue scheme devised and perpetrated by Lincoln Lending Services, LLC, and several related individuals and entities (collectively "the Lincoln Defendants"). This scheme consisted of collecting illegal up-front fees from individuals, such as Tejera, who were in need of "mortgage rescue services," but after collecting payment, those services were never provided because the scheme was "designed to steal money from consumers."

In furtherance of this scheme, the Lincoln Defendants advertised their services on Channel 41 in Miami, Florida, which was operated by Okeechobee Television Corporation, a company owned by Romay, and alleged to be Romay's "alter ego." This television advertising provided the medium for the scheme, and enticed Tejera and the purported class members to use the services offered by the Lincoln Defendants. The success of the scheme depended on this "heavy rotation of advertising."

At some point, Romay was made aware that the Lincoln Defendants were not performing any of the advertised services, but Romay became "a willing coconspirator in the mortgage rescue fraud scheme" and "continued to air the heavy rotation of advertisements for the fraudulent mortgage rescue conspiracy." In March 2009, the Florida Attorney General commenced a civil action against Lincoln Lending and its managing member for this fraudulent scheme and obtained a temporary injunction prohibiting Lincoln Lending from operating a mortgage rescue business.

Tejera filed the instant lawsuit as a class action against the Lincoln Defendants, alleging claims of unfair and deceptive trade practices and civil theft. After several amendments, a fifth amended complaint was filed alleging claims against Romay and ACV for civil conspiracy to commit civil theft (count 19) and civil conspiracy to perpetrate fraud in the inducement (count 21). Tejera further alleged that he could not have discovered the facts giving rise to an action against Romay and ACV until April 2012.

ACV and Romay filed motions to dismiss these counts, contending that the claims were barred by the four-year statute of limitations for civil conspiracy. As to count 21, alleging civil conspiracy to perpetrate fraud in the inducement, Tejera acknowledged a four-year statute of limitations applied, but contended that the delayed discovery doctrine also applied, and that the four-year limitations period did not begin to run until the date when the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence (which, as Tejera alleged in the complaint, was not until April 2012). Following a hearing, the trial court dismissed, with prejudice, count 21 against Romay and ACV.

III. DISCUSSION

a. The Delayed Discovery Doctrine

While fraud claims are subject to a four-year statute of limitations (see section 95.11(3), Fla. Stat. (2009) ), when that four-year limitations period begins to run depends upon the application of the delayed discovery doctrine. The Florida Legislature enacted section 95.031(2)(a), which codified the delayed discovery doctrine, and provides:

An action founded upon fraud under s. 95.11(3), including constructive fraud, must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence , instead of running from any date prescribed elsewhere in s. 95.11(3), but in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.

(Emphasis added).

This court and others have expressly held that the delayed discovery doctrine applies to a claim for fraud in the inducement. See Brooks Tropicals, Inc. v. Acosta, 959 So.2d 288 (Fla. 3d DCA 2007) ; Tyson v. Viacom, Inc., 890 So.2d 1205 (Fla. 4th DCA 2005).

Romay and ACV contended below, and on appeal, that because count 21 is a civil conspiracy claim, it is subject to a four-year statute of limitations. More to the point, they contend that the delayed discovery doctrine is inapplicable because, if properly characterized as a civil conspiracy claim, count 21 is necessarily not an "action founded upon fraud."

b. Monahan, Young, Olson and Flatirons

For this proposition, Romay and ACV rely upon Davis v. Monahan, 832 So.2d 708 (Fla. 2002). However, Monahan does not support, and in fact undercuts, this legal proposition. Further, appellees' argument avoids the central issue here: regardless of what period of limitations applies to a civil conspiracy claim, the discrete question presented is whether count 21 is an "action founded upon fraud," which is key to determining the applicability of delayed discovery doctrine. Indeed, this much is clear from the Florida Supreme Court's discussion in Monahan.

In Monahan, the plaintiff filed suit against her sister and niece, alleging claims for "breach of fiduciary duty, civil theft, conspiracy, conversion and unjust enrichment, arising from the wrongful taking of cash, stocks, bonds, interest, dividends, and pension and social security payments." Id. at 708-09. The question presented was "whether the delayed discovery doctrine, which delays the commencement of the statute of limitations, is applicable to these causes of action." The Florida Supreme Court held:

The delayed discovery doctrine does not apply to the claims alleged in this case . The Florida Legislature has stated that a cause of action accrues or begins to run when the last element of the cause of action occurs. An exception is made for claims of fraud and products liability in which the accrual of the causes of action is delayed until the plaintiff either knows or should know that the last element of the cause of action occurred.

Id. at 709. (Emphasis added.)

Importantly, the Court did not hold that the delayed discovery doctrine is inapplicable to every claim of civil conspiracy, noting that the doctrine did not apply in the instant claim because "Monahan did not allege fraud, so there was no specific allegation that [the defendants'] actions caused Monahan's delayed discovery." Id. at 712 (emphasis added). This analysis was followed in Young v. Ball, 835 So.2d 385, 386 n.3 (Fla. 2d DCA 2003), in which our sister court held that the delayed discovery doctrine did not apply to the plaintiff's claim for civil conspiracy, noting: "On appeal, all parties address Young's causes of action as if they sounded in fraud. However, the complaint alleges civil conspiracy and does not mention fraud." Id. at 386 n.3 (emphasis added).

This much is implicit in the Monahan and Young decisions: the mere fact that the claim is framed as a civil conspiracy (and therefore subject to a four-year statute of limitations) does not end the analysis. The next and separate question is when did that four-year limitations period begin to run ? In answering that question, we must determine whether the claim as alleged is an "action founded upon fraud." We answer that question in the affirmative, and hold that the trial court erred in dismissing count 21 with prejudice based upon the expiration of the statute of limitations.

Appellees also rely upon Olson v. Johnson, 961 So.2d 356 (Fla. 2d DCA 2007) for their contention that the delayed discovery doctrine does not apply to this cause of action for conspiracy to commit fraud in the inducement. This reliance, however, is misplaced. In Olson, the plaintiff sued for, inter alia , malicious prosecution and civil conspiracy to commit malicious prosecution. In addressing whether these actions were barred by the statute of limitations, our sister court observed, unremarkably, that "[t]he statute of limitations for both malicious prosecution and civil conspiracy is four years." Id. at 359.

However, the question presented in this case is not whether a four-year statute of limitations applies to this claim; Tejera concedes this very point, because whether count 21 is characterized for limitations purposes as a claim for conspiracy or one for fraud, each is subject to a four-year statute of limitations. See § 95.11(3)(o ) (establishing four-year statute of limitations for intentional torts not otherwise covered by this section); § 95.11(3)(j) (establishing four-year statute of limitations for fraud). Rather, the relevant question is when that four-year period began to run , and whether Tejera is authorized by section 95.031(2)(a) to rely on the delayed discovery doctrine because this claim, regardless of its conspiratorial character, is an "action founded upon fraud." There can be no doubt that Tejera's claim for conspiracy to perpetrate fraud in the inducement alleges an action founded upon fraud, and this conclusion is buttressed by case law addressing the concept of civil conspiracy in Florida.

Nor does our recent decision in Flatirons Bank v. Alan W. Steinberg Ltd. P'ship., 233 So.3d 1207 (Fla. 3d DCA 2017) lend support to appellees' position. Here are the salient facts taken from the majority opinion in Flatirons:

Mark Yost was the former board chairman and president of Flatirons Bank. In 2009, Yost arranged for Flatirons to issue bogus lines of credit, enabling Yost to steal nearly $4 million from Flatirons. These funds were then transferred to entities owned or controlled by Yost, including an entity called the Yost Partnership, a limited partnership and investment vehicle which operated from 1991 until 2010. The Alan W. Steinberg Limited Partnership (Steinberg) was a limited partner of, and investor in, the Yost Partnership. From 2000 to 2004, Steinberg had invested $2.2 million in the Yost Partnership.

Flatirons discovered Yost's fraud in 2010, and their investigation revealed that a year earlier Yost had transferred $1 million to Steinberg. In an attempt to recoup the funds embezzled by Yost, Flatirons filed a claim against Steinberg for unjust enrichment, seeking the $1 million Yost had transferred to Steinberg.

Steinberg answered and, as an affirmative defense, asserted that Flatirons's unjust enrichment claim was barred by the four-year statute of limitations. The matter proceeded to trial and, following trial, the trial court determined that the action was barred by the statute of limitations. The trial court found that the delayed discovery doctrine did not apply to Flatirons's unjust enrichment claim against Steinberg.

This court affirmed the trial court's determination. In doing so, however, we noted the following findings by the trial court, which distinguish Flatirons from the instant case:

- Flatirons and Steinberg had no relationship with each other;
- Steinberg received the $1,000,000.00 in good faith and without knowledge of Yost's fraud ;
- Upon receiving the $1,000,000.00 transfer, Steinberg actually suffered a net loss of approximately $1,200,000.00 as a result of the Yost Partnership's fraud and misconduct;
- As a result of Steinberg's investment into the Yost Partnership, Steinberg had paid adequate consideration for the $1,000,000.00 that the Yost Partnership transferred to Steinberg; and
- Flatirons conferred no direct benefit on Steinberg.

Flatirons, 233 So.3d at 1210 (emphasis added).

While these findings are relevant to the determination that Flatirons failed to establish unjust enrichment, the first two (highlighted) findings also reveal why we concluded that the delayed discovery doctrine did not apply to the claim against Steinberg:

While a feature of Flatirons's unjust enrichment claim might have been Yost's fraud and deceit, Flatirons's unjust enrichment claim against Steinberg is not "founded upon fraud" so as to implicate Florida's delayed discovery doctrine.

Id. at 1213.

In other words, in Flatirons, the bank did not contend that Steinberg had engaged in any fraudulent activity, but instead contended merely that Steinberg was the recipient of funds which were embezzled by Yost (the fraudster) and later transferred to Steinberg, a non-fraudster who acted in good faith and who had no relationship with Yost.

In the absence of any allegation of fraud or fraudulent conduct by Steinberg, or a conspiratorial relationship between Yost and Steinberg, the claim against Steinberg could not qualify as an "action founded upon fraud," and, accordingly, the delayed discovery doctrine could not be invoked as against a statute of limitations defense.

By contrast, the very different facts alleged here necessarily lead to a very different result. Tejera has alleged that Romay and ACV engaged in a conspiracy to perpetrate fraud; that they knowingly committed fraudulent acts in furtherance of that conspiracy; and that Tejera could not have discovered the facts giving rise to this cause of action against Romay and ACV until April 2012.

A final legal principle applies to our analysis: There is no freestanding cause of action in Florida for "civil conspiracy." In order to state a claim for civil conspiracy, a plaintiff must allege an underlying independent tort. The conspiracy is merely the vehicle by which the underlying tort was committed, and the allegations of conspiracy permit the plaintiff to hold each conspirator jointly liable for the actions of the coconspirators. As we reaffirmed in Banco de los Trabajadores v. Cortez Moreno, 237 So.3d 1127, 1136 (Fla. 3d DCA 2018) :

Florida does not recognize civil conspiracy as a freestanding tort. SFM Holdings Ltd. v. Banc of Am. Secs., LLC, 764 F.3d 1327, 1338-39 (11th Cir. 2014) (applying Florida law). The gist of a civil conspiracy is not the conspiracy itself, but the underlying civil wrong occurring pursuant to the conspiracy and which results in the plaintiff's damages. Marriott Int'l, Inc., v. Am. Bridge Bahamas, Ltd., 193 So.3d 902, 909 (Fla. 3d DCA 2015). The conspiracy does not give rise to an independent cause of action, but is a device to allow a plaintiff to spread liability to those involved in causing the underlying tort. Lorillard Tobacco Co. v. Alexander, 123 So.3d 67, 80 (Fla. 3d DCA 2013) (observing: "Conspiracy is not a separate or independent tort but is a vehicle for imputing the tortious acts of one coconspirator to another to establish joint and several liability.") (quoting Ford v. Rowland, 562 So.2d 731, 735 n.2 (Fla. 5th DCA 1990) ). The conspiracy therefore, is inextricably linked with the underlying tort. Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So.2d 949, 950-51 (Fla. 3d DCA 1984).

Given that there is no freestanding cause of action for civil conspiracy, we must conclude that count 21, as pleaded by Tejera, is an action founded upon fraud.

IV. CONCLUSION

Because Tejera's claim of conspiracy to perpetrate fraud in the inducement alleged an action "founded upon fraud," section 95.031(2)(a)'s delayed discovery doctrine may properly be invoked in determining when the statute of limitations began to run on this claim. The trial court erred in dismissing this count with prejudice, as barred by the statute of limitations, where Tejera's complaint alleged that he could not have discovered the facts giving rise to this claim against Romay and ACV until April 2012.

Affirmed in part, reversed in part, and remanded for further proceedings.

      The affirmative defense of statute of limitations is generally a matter to be raised in an answer and not a motion to dismiss. However, where the facts constituting that defense affirmatively appear on the face of the complaint and establish conclusively that the action is barred as a matter of law, it may be raised and considered in a motion to dismiss. Grove Isle Ass'n, Inc. v. Grove Isle Associates, LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014). But because an affirmative defense may be avoided by facts alleged in a reply to the affirmative defense, dismissal is warranted only if the allegations of the complaint conclusively negate a plaintiff's ability to plead facts in avoidance of the statute of limitations defense. Id.; Rigby v. Liles, 505 So.2d 598, 601 (Fla. 1st DCA 1987).

      Tejera alleged that ACV's corporate predecessor was Okeechobee.

      Tejera first added Romay and ACV as defendants in an amended complaint filed in October 2013.

      For this assertion, Romay and ACV rely upon section 95.11(o ), Florida Statutes (2009) which provides a four-year limitations period for an "action for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort ...."

      Because this issue was decided at the motion-to-dismiss stage, we must accept this allegation as true and all reasonable inferences must be construed in favor of Tejera. The Florida Bar v. Greene, 926 So.2d 1195 (Fla. 2006). We express no opinion on the merits of this allegation or whether Tejera ultimately can establish he did not discover, and in the exercise of due diligence could not have discovered, the facts giving rise to his claim against Romay and ACV until April 2012.


text:
    Ariel Ortega DUARTE, Appellant, v. Manuel ORTIZ, et al., Appellees.
    No. 3D17-949
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019.
    Philip D. Parrish, P.A.; Donna B. Michelson, P.A., and Donna B. Michelson, Coconut Grove; Darren J. Rousso, P.A., and Darren J. Rousso, Philip D. Parrish, Miami, for appellant.
    Walton Lantaff Schroeder & Carson, LLP, and Michael H. Galex, Miami, and Laura R. Weinfeld, for appellees.
    Before EMAS, C.J., and SCALES and MILLER , JJ.

      Did not participate in oral argument.

   PER CURIAM.

Affirmed. See Fuentes v. Sandel, Inc., 189 So.3d 928, 932-33 (Fla. 3d DCA 2016) (holding that, absent direct and extensive control by property owner, the property owner is not liable to independent contractor who sustains injury while performing work at owner's property).


text:
    Brigitte LUSCAR, Appellant, v. U.S. BANK TRUST NATIONAL ASSOCIATION, etc., Appellee.
    No. 3D18-2389
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    Fleurantin, Francois & Antonin and Larry R. Fleurantin, North Miami Beach, for appellant.
    Phelan Hallinan Diamond & Jones and Jonathan Blackmore (Fort Lauderdale), for appellee.
    Before SALTER, SCALES, and MILLER, JJ.
   PER CURIAM.

Based on the confession of error of Appellee U.S. Bank Trust National Association, As Trustee, the final foreclosure judgment is vacated and the cause is remanded to the trial court for further proceedings.


author: LINDSEY, J.

text:
    Jesse LOOR, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-2636
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    Jesse Loor, in proper person.
    Ashley Moody, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for respondent.
    Before EMAS, C.J., and SCALES, and LINDSEY, JJ.
   LINDSEY, J.

Petitioner Jesse Loor, pro se, seeks emergency habeas corpus relief from the trial court's pretrial detention order. Because Loor is currently represented by counsel before the trial court, we dismiss the Petition as unauthorized pursuant to Logan v. State, 846 So.2d 472 (Fla. 2003).

Loor argues that Logan is inapplicable because he was not represented by counsel at the time he filed his Petition. We disagree. In Logan, the Florida Supreme Court explained that a defendant has no constitutional right to hybrid representation. Id. at 479 ; see also Johnson v. State, 974 So.2d 363, 364 (Fla. 2008) ; 14A Fla. Jur. 2d Criminal Law-Procedure § 559 (October 2018) ("Criminal defendants have no right under the Sixth Amendment or under the Florida Constitution to engage in hybrid representation-that is, to simultaneously represent themselves and be represented by counsel.").

In circumstances where, as here, it is not clear from the face of the petition whether petitioner is represented by counsel below, petitioner bears the "burden to demonstrate that he or she is either not represented by counsel in the proceeding below, or that he or she is seeking through the petition to discharge counsel in that proceeding." Logan, 846 So.2d at 479. Loor is unable to meet that burden; on the contrary, he readily admits that he is currently represented by counsel in the proceeding below, and he is not seeking to discharge counsel in that proceeding.

Loor's argument that he was pro se at the time he filed his petition is unavailing because now that he is represented by counsel, he would nevertheless be engaged in unauthorized "hybrid representation" if he were allowed to proceed pro se. See id. ("If it is clear from the petitioner's response ... that he or she is represented by counsel in the proceeding below and is not seeking to discharge counsel in that proceeding, then the petition in this Court will be dismissed as unauthorized ." (emphasis added) ); see also Johnson, 974 So.2d at 364-65 (clarifying that the rule announced in Logan applies to any pro se filings submitted by litigants seeking affirmative relief in the context of any criminal proceeding where death sentence has not been imposed, whether direct or collateral, either in the trial court or a district court of appeal, and who are represented by counsel in those proceedings).

Petition dismissed.


author: LEBAN, Senior Judge.

text:
    Michael KENNEDY and Debra Kennedy, Appellants, v. FIRST PROTECTIVE INSURANCE COMPANY d/b/a Frontline Insurance, Appellee.
    No. 3D18-1993
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    The Nation Law Firm and Mark A. Nation and Paul W. Pritchard (Longwood), for appellants.
    Sheehe & Associates, P.A., and Karen Fultz; Jay M. Levy, P.A., and Jay M. Levy, for appellee.
    Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
   LEBAN, Senior Judge.

Plaintiffs below, Michael and Debra Kennedy (collectively "the Kennedys"), appeal the trial court's order granting Defendant, First Protective Insurance Company d/b/a Frontline Insurance's ("Frontline") motion to compel appraisal as to the Kennedys' Hurricane Irma-related insurance claim.

In reviewing orders compelling appraisal, we review the trial court's factual findings under a competent substantial evidence standard. Fla. Ins. Guar. Ass'n, Inc. v. Hunnewell, 173 So.3d 988, 991 (Fla. 2d DCA 2015). We review the trial court's application of the law to the facts de novo . Fla. Ins. Guar. Ass'n, Inc. v. Lustre, 163 So.3d 624, 628 (Fla. 2d DCA 2015).

The Kennedys contend, and the record reflects, that the parties corresponded about a factual dispute just two months after the hurricane damaged the Kennedy property. Beginning in October 2017, the Kennedys placed Frontline on notice that their windows would need to be completely replaced. Frontline responded by suggesting, among other things, that the Kennedys source the replacement glass themselves and have the windows repaired. In response, the Kennedys explained that their window model was no longer manufactured, and thus, the windows would require a complete replacement. This dispute over replacing the glass versus replacing the windows continued for some time.

In November 2017, the Kennedys requested that Frontline provide them with copies of photos taken in connection with Frontline's adjuster's report. Frontline's Senior Concierge Adjuster, Jason James, provided the report, but refused to provide the photos, stating, "[a]s far as the adjuster photos, unfortunately, they are considered to be a work product [,] so we cannot release them." In December 2017, the Kennedys threatened to file a complaint with the Florida Department of Financial Services. Thereafter, in January 2018, Frontline provided the Kennedys with a sample estimate which left most of their questions and concerns unanswered. It was at this time, that the Kennedys advised Frontline of their intent to retain counsel.

Several months later, Frontline issued, and the Kennedys received, a written demand for appraisal pursuant to the insurance policy. Frontline's demand, however, was delivered to the Kennedys before Frontline provided its written statutory notice to the Kennedys of their right to mediate, as mandated by Section 627.7015, Florida Statutes (2018). That notice followed the months of disagreement between Frontline and the Kennedys regarding their claim.

The Kennedys filed suit on July 26, 2018, and Frontline immediately moved to compel appraisal. The trial court granted the motion, and the Kennedys filed this appeal following the denial of their motion for reconsideration

Section 627.7015 sets forth an alternative mediation procedure for the resolution of disputed property insurance claims. The statute requires that "[a]t the time a first-party claim within the scope of this section is filed by the policyholder, the insurer shall notify the policyholder of its right to participate in the mediation program under this section." (Emphasis added). Subpart (9) defines a claim as, "any dispute between an insurer and a policyholder relating to a material issue of fact." The statute's mandatory language places the burden of notification squarely on the insurer and provides that, absent proper notification of the right to mediate, an insured cannot be required to participate in the appraisal process. See, § 627.7015 (2) & (7) ; see also, Universal Prop. & Cas. Ins. Co. v. Colosimo, 61 So.3d 1241, 1242-44 (Fla. 3d DCA 2011).

Here, the record is replete with communications between the Kennedys and Frontline that make clear that a dispute arose well before Frontline notified the Kennedys of their right to mediate. Further, Frontline's invocation of the work product privilege is significant, because it implies that Frontline anticipated litigation as early as November 2017. Notwithstanding this, Frontline chose to wait until June 2018 - after making its demand for appraisal - to notify the Kennedys of their statutory right to participate in mediation. Frontline's actions are in derogation of the salutary purpose of section 627.7015, i.e., to expeditiously bring the parties together for a mediation without any of the trappings of an adversarial process. See Colosimo, 61 So.3d at 1245.

As we stated in Colosimo, section 627.7015 furthers the "particular need for an informal, nonthreatening forum for helping parties ... because most homeowner's ... residential insurance policies obligate [the] insureds to participate in a potentially expensive and time-consuming adversarial appraisal process prior to litigation." Id. at 1242.

We hold that once a dispute has arisen, an insurer may not demand appraisal under the policy and pursuant to section 627.7015, prior to providing the insured with notice of the right to mediate. An insurer who does so waives its right to appraisal. Id. at 1241. Accordingly, the trial court's order compelling appraisal is reversed and this matter is remanded for further proceedings consistent with this opinion.

Reversed.


text:
    Alirio GRISALES, Appellant, v. Beatriz EBER, Appellee.
    No. 3D17-2154
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    Leto | Bassuk, and Brian L. Elstein, Larry Bassuk and Justin C. Leto, Miami, for appellant.
    GrayRobinson, P.A., and Jack R. Reiter and Robert C. Weill, Fort Lauderdale, for appellee.
    Before EMAS, C.J., and SALTER and HENDON, JJ.
   PER CURIAM.

Alirio Grisales appeals final summary judgment entered in favor of Beatriz Eber on his claim for negligence. We affirm. See Fuentes v. Sandel, Inc., 189 So.3d 928 (Fla. 3d DCA 2016) ; Clerkin v. Kendall Town & Country Assocs., Ltd., 535 So.2d 288 (Fla. 3d DCA 1988) ; Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446 (Fla. 5th DCA 1999) (noting that owner's insistence that work be completed the next day did not amount to exercise of control over project such that owner owed a duty of care to an independent contractor).

Affirmed.


text:
    Willie JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1941
    District Court of Appeal of Florida, Third District.
    Opinion filed March 6, 2019
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and SCALES and HENDON, JJ.
   HENDON, J.

Willie Jones appeals from a final judgment of conviction and sentence on the charges of trafficking in cocaine, possession of marijuana with intent to sell, and possession of drug paraphernalia. Jones argues on appeal that certain of the trial court's comments shifted the burden of proof and prejudiced his defense at trial. None of these comments were objected to at trial. Thus, we will reverse only if the comment was fundamental error, i.e., "error that 'reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.' " Brooks v. State, 762 So.2d 879, 899 (Fla. 2000) ; see also Jones v. State, 612 So.2d 1370 (Fla. 1992) (holding that the contemporaneous objection rule applies to such comments and an appellate court will not reverse in the absence of an objection unless the comment is so prejudicial as to be fundamental error); Pope v. Wainwright, 496 So.2d 798 (Fla. 1986) (concluding that errors other than those constituting fundamental error are waived unless timely raised in the trial court).

After a thorough examination of the record on appeal, we find no fundamental error in the trial court's comments. Indeed, not every act or comment that might be interpreted as demonstrating less than neutrality on the part of the judge will be deemed fundamental error.

Mathew v. State, 837 So.2d 1167 (Fla. 4th DCA 2003). Accordingly, we affirm Jones' convictions.

Finally, Jones asserts that there is a discrepancy between the oral pronouncement of sentence and the written sentencing order. This error was not preserved by a contemporaneous objection during the sentencing hearing or by raising the issue under Florida Rule of Criminal Procedure 3.800(b), which precludes Jones from raising the error on direct appeal. See Brannon v. State, 850 So.2d 452, 456 (Fla. 2003) ; Green v. State, 224 So.3d 252 (Fla. 3d DCA 2017). As we find that Jones has neither properly preserved the trial court's alleged sentencing error, nor demonstrated fundamental error on appeal, we affirm his sentence without prejudice to Jones to raise this issue in an appropriately filed rule 3.800 motion with the trial court.

Affirmed.