text:
    Israel J. GOMEZ CRUZ, as Personal Representative of the Estate of Israel Z. Gomez-Rodriguez, and Margarita Cruz de Gomez, decedent's widow, Appellants, v. WAL-MART STORES EAST, LP, Appellee.
    No. 4D18-178
    District Court of Appeal of Florida, Fourth District.
    [March 20, 2019]
    Alexander D. Brown and Adam S. Goldman of The Concept Law Group, P.A., Fort Lauderdale, for appellant.
    Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, and David Tarlow of Quintairos, Prieto, Wood & Boyer, P.A., Fort Lauderdale, for appellee.
   Gross, J.

One night, a 72-year-old man tripped on a raised manhole cover and fell in a Wal-Mart parking lot, sustaining serious head trauma. He and his wife sued Wal-Mart Stores East, LP, alleging various theories of negligence. The circuit court granted Wal-Mart's motion for summary judgment, without elaboration. We reverse because there are disputed issues of material fact that preclude summary judgment.

Wal-Mart's motion for summary judgment raised several issues. First, it contended that the store did not breach its duty to maintain the premises in a reasonably safe condition because the manhole was inspected and approved by various government entities.

Second, the store argued that the customer's accident was not foreseeable because there were no prior accidents involving the manhole. The store made the related argument that it had no actual or constructive notice of the alleged defective condition. In support of this argument, the store attached the depositions of two managers who testified about the store's safety inspections.

Third, the store contended that the manhole was open and obvious and that it had no duty to warn the customer.

Fourth, the store asserted that the customer was the sole and proximate cause of his accident because the manhole was open and obvious, and the customer failed to look where he was going.

The plaintiffs responded in opposition to the motion, attaching excerpts from seven depositions along with three photographs of the fall captured by the store's security camera. The plaintiffs argued that the motion for summary judgment should be denied for several reasons including:

(1) The manhole was never determined to be safe. The inspections by the governmental entities were made to determine if the manhole was built according to approved plans and specifications. There was no evidence that the manhole was ever inspected for safety.

(2) There were genuine issues of material fact as to whether the store kept the premises in a safe condition. The store's "safety checks" did not resolve this factual issue because there were issues as to the thoroughness of the checks and the competency of the employees performing them.

(3) There were genuine issues of material fact as to whether the store should have known of the dangerous condition of the manhole in light of its elevated nature and nonconformance with applicable building codes.

(4) The manhole itself, combined with the area around the manhole, was a dangerous condition.

(5) The danger of the manhole (and not simply its presence) was not open and obvious to the customer.

The plaintiffs attached the deposition of their expert civil engineer. He testified that manholes are required to be flush with the pavement. Despite this requirement, the Broward County Code allows a "construction tolerance" of 1/4-inch between the pavement and the top edge of the manhole cover. An elevation of less than 1/4-inch is not considered a tripping hazard. The expert testified that the manhole was not flush with the pavement and that at the edge of the manhole cover, there were places where the drop to the pavement exceeded 1/4-inch.

The expert also testified that around the manhole, there were various changes in grade, in some places greater than one inch. The Broward County Code requires the pavement around the manhole to be smooth and well-graded and the pavement around this manhole was not.

The expert concluded that, because of its elevation and the uneven surface around it, the manhole did not comply with the Broward County Code or the City's building ordinances. He opined that the customer tripped on the manhole due to an improperly maintained paving surface. He added that insufficient lighting, combined with traffic conditions, could have caused a distraction that contributed to the customer's fall.

The plaintiffs also attached the deposition of a second expert. She said the store did not properly maintain the manhole as it should have, stating: "There is a gap between the top surface of the manhole cover and the adjacent pavement that is greater than a quarter inch on at least three of the four sides. So it obviously is a tripping hazard." She said that the gap was measured to be 10/32 of an inch on the north side of the manhole.

The plaintiff also attached the deposition of the inspector for the City of Pembroke Pines. He testified that the City inspected the manholes to ensure that they were completed pursuant to the City building codes. He stated that manhole covers should be flush with the pavement, but that there was an acceptable tolerance of 1/4-inch. He testified that if there is more than 1/4-inch between the manhole cover and the pavement, the City would make the contractor adjust it so it is flush. He was shown a photograph of a manhole cover and testified that the manhole in the photograph would not have passed his inspection.

The circuit court granted Wal-Mart's motion for summary judgment, without explanation.

Standard of Review

"The standard of review of a trial court's ruling on a motion for summary judgment is de novo." De Cruz-Haymer v. Festival Food Mkt., Inc. , 117 So.3d 885, 888 (Fla. 4th DCA 2013).

Where the defendant is the party moving for summary judgment, as here, neither the trial court nor this court determines whether the plaintiff can prove its case; our function solely is to determine whether the pleadings, depositions, and affidavits conclusively show that the plaintiff cannot prove its case .

Tank Tech, Inc. v. Valley Tank Testing, L.L.C. , 244 So.3d 383, 391 (Fla. 2d DCA 2018) (emphasis added) (internal quotation marks, citation, and alterations omitted).

The Movant's Burden At Summary Judgment

"Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law."

Hollywood Towers Condo. Ass'n v. Hampton , 993 So.2d 174, 176 (Fla. 4th DCA 2008). If the moving party meets its initial burden "of demonstrating the nonexistence of material issues of fact," the burden shifts to the party opposing summary judgment to come forward with evidence establishing a question of material fact exists. Carnes v. Fender , 936 So.2d 11, 14 (Fla. 4th DCA 2006). In determining whether there are any issues of material fact, all reasonable inferences must be drawn in favor of the non-moving party. E.g. , Hollywood Towers , 993 So.2d at 176. This court has recognized that, "motions for summary judgment should be cautiously granted in negligence actions." See Gonzalez v. B & B Cash Grocery Stores, Inc. , 692 So.2d 297, 299 (Fla. 4th DCA 1997).

Premises Liability - Duty Owed to Business Invitee

A landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining its premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils that are or should be known to the landowner and that are unknown to the invitee and cannot be discovered through the exercise of due care.

St. Joseph's Hosp. v. Cowart , 891 So.2d 1039, 1040 (Fla. 2d DCA 2004). While a landowner is not an insurer of the safety of its invitees, id. , the landowner does owe a duty "not only to react to hazards of which it has notice but also to inspect to ensure conditions are safe or, at the least, that hazards (unless open and obvious) are discovered and warned against." Food Lion, LLC v. Monument/Julington Assoc. Ltd. P'ship , 939 So.2d 1106, 1107-08 (Fla. 1st DCA 2006). "When an injured party alleges that the owner or possessor breached the duty to keep the premises in a reasonably safe condition, an issue of fact is generally raised as to whether the condition was dangerous and whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact it was open and obvious." Aaron v. Palatka Mall, L.L.C. , 908 So.2d 574, 578 (Fla. 5th DCA 2005).

Discussion

Here, Wal-Mart did not meet its burden of demonstrating the nonexistence of material issues of fact. The first material fact that the store failed to establish was that the manhole was not a dangerous condition. The plaintiffs' experts supported the claim that the manhole was a dangerous condition because (1) the manhole was raised and elevated higher than permitted by the Broward County Code; and (2) the manhole's excessive elevation rendered it a fall hazard. The store presented several letters from governmental authorities as evidence that the manhole was inspected and complied with building codes. However, the store's compliance with building codes is not conclusive on the issue of whether they maintained a dangerous condition on the premises. See Westland Skating Ctr., Inc. v. Gus Machado Buick, Inc. , 542 So.2d 959, 964 (Fla. 1989) ("While one's compliance with a statute or an ordinance may amount to evidence of reasonableness, such compliance is not tantamount to reasonableness as a matter of law."). The dangerousness of the manhole remained an issue of fact that was not conclusively determined by the record at summary judgment.

The second material fact the store failed to establish is whether the manhole presented an open and obvious danger. If a danger is open and obvious, then the owner or possessor of land may be legally permitted to assume that those entering the premises will perceive the condition "upon the ordinary use of their senses." Aaron , 908 So.2d at 577. In order to determine whether the open and obvious danger doctrine applies, the court is "required to consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition." Id.

Aaron is directly on point. There, on a misty, drizzly night, a customer tripped over a parking lot bumper that was almost the same color as the parking lot surface. The court held that "under these facts and circumstances, a jury should decide whether the parking lot bumper was a dangerous condition that was open and obvious." Id. at 579. The obvious danger doctrine cannot be stretched to include situations "where the dangerous condition is shrouded in darkness and mist." Id.

Here, the customer was 72 years old, it was 10:15 at night, the lighting was poor, the manhole was in a travel lane in front of the store, the store was busy, and cars were coming and going with their headlights on. Under these conditions, whether the raised manhole was an open and obvious danger was a disputed issue of material fact.

The third material fact the store failed to establish is that, even if the manhole constituted an open and obvious dangerous condition, the store should not have anticipated that the manhole would cause injury despite its obviousness.

For example, in Middleton v. Don Asher & Associates, Inc. , 262 So.3d 870 (Fla. 5th DCA 2019), a resident of a condominium fell on an uneven sidewalk. The court found that "a factual issue remained as to whether the association should anticipate that condominium residents would use the sidewalk and proceed to encounter the cracked and uneven concrete, notwithstanding that the condition was obvious, and would be harmed thereby." Id.

Similarly, in De Cruz-Haymer , a customer tripped over an unsecured, not perfectly flat floor mat that was placed at the store entrance. 117 So.3d at 887. We found that the trial court did not err in holding that the rumpled mat was an open and obvious danger. Id. at 888. However, we determined that the lower court erred in entering summary judgment for the store because, where there was only one entrance to the store, whether the store "should have expected that invitees were likely to trip over a rumpled mat despite the fact the mat's existence and condition was open and obvious" was a disputed issue of material fact. Id. at 889.

Here, the manhole was located between the store and the parking lot. Whether customers heading to their cars should have been expected to sidestep the raised manhole in every instance, or whether the store should have anticipated that its customers were likely to trip over the manhole despite its obviousness, is an issue of fact.

Because there were disputed issues of material fact, we reverse the summary final judgment and remand to the circuit court for further proceedings.

Conner and Forst, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    S.L.V., a minor, by Aniko Vigi, as natural guardian and next friend and third-party, and Aniko Vigi, individually, Appellants, v. Arpad TOTH, Appellee.
    No. 4D18-1578
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    Peter J. Snyder of Peter J. Snyder, P.A., Boca Raton, for appellants.
    Arpad Toth, Boca Raton, pro se.
    ON MOTION FOR REHEARING
   Per Curiam.

We grant appellee's motion for rehearing, withdraw our previous opinion dated February 13, 2019, and substitute the following in its place.

Appellant, a minor, filed a complaint for declaratory relief through his "natural guardian and next friend," his mother. The complaint sought a declaration of the minor's rights with regard to a piece of real property alleged to have been sold by the appellee, the minor's father. The father unsuccessfully moved for summary judgment and the case proceeded to a bench trial. The record on appeal contains no transcript of the trial, nor have the parties agreed to a statement of the proceedings below.

After the trial, the lower court entered a final judgment dismissing the complaint for declaratory relief with prejudice. The final judgment contained no findings of fact, conclusions of law, or rationales for the trial court's ruling. The trial court subsequently denied the minor's motion for rehearing. This appeal followed.

This court generally reviews a trial court's dismissal of a complaint for declaratory judgment for abuse of discretion. N & D Holding, Inc. v. Town of Davie , 17 So.3d 819, 820 (Fla. 4th DCA 2009). However, to the extent a court's dismissal is based on a legal determination, this court may conduct de novo review. Goldman v. Lustig , 237 So.3d 381, 384 (Fla. 4th DCA 2018).

The lack of findings in this final judgment precludes meaningful appellate review, as review of a declaratory judgment generally requires adequate findings of fact and conclusions of law. See Exotic Motorcars & Jewelry, Inc. v. Essex Ins. Co. , 111 So.3d 208, 209 (Fla. 4th DCA 2013) ; Trump Endeavor 12, LLC v. Fla. Pritikin Ctr. LLC , 208 So.3d 311, 312 (Fla. 3d DCA 2016). This problem is amplified by the absence of any record of the trial court proceedings. Because it is entirely unclear on what basis the trial court dismissed the declaratory relief complaint, the final judgment is inadequate. See Exotic Motorcars & Jewelry , 111 So.3d at 209.

We have previously determined that in a declaratory judgment action, where a trial court considers whether dismissal is required, "the trial court must fully determine the rights of the respective parties, as reflected by the pleadings." Sears, Roebuck & Co. v. Forbes/Cohen Fla. Props., L.P. , 223 So.3d 292, 298 (Fla. 4th DCA 2017) (citation and quotation marks omitted). In this case, the trial court dismissed the action without "fully determining the rights of the respective parties, as reflected by the pleadings." Id.

"[C]onclusory final judgments on declaratory judgment claims, which are devoid of factual findings or conclusions of law, are inadequate." Id. ; see also Local 532 of the Am. Fed'n of State, Cty., & Mun. Emps., AFL-CIO v. City of Fort Lauderdale , 273 So.2d 441, 445 (Fla. 4th DCA 1973). The final judgment here merely dismissed the claim for declaratory relief, failing to fully detail the parties' rights. This was insufficient. See Sears , 223 So.3d at 298.

This case was resolved after a trial and following the lower court's denial of a motion for summary judgment. At the trial, the court may have taken evidence and heard argument; without a record or adequate findings in the final judgment, however, it is impossible to determine which facts or what law formed the basis of its ruling. Having decided the merits of the case after a trial, the lower court was required to adjudicate the parties' rights. See id. We therefore reverse and remand for the trial court to make the required factual findings.

Reversed and remanded with instructions.

Warner, Damoorgian and Levine, JJ., concur.


author: Gross, J.

text:
    Val VILADOINE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-218
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Val Viladoine was charged with two counts of sexual battery upon a child less than twelve years of age whom his wife was babysitting after school. The basis of Count I was "causing his penis to penetrate or unite with" the victim's vagina, and the basis of Count II was "causing his finger to penetrate the vagina" of the five-year-old victim. Forensic medical testimony provided physical evidence that an assault had occurred.

Viladoine's primary defense at trial was alibi. He said he was in Miami the day of the incident and that he arrived home at around 5:00 p.m. He denied seeing the victim. Including Viladoine, five witnesses testified in support of the alibi.

The jury convicted Viladoine of Count I and acquitted him of Count II.

We reverse the conviction because the trial court erred in allowing the state to amend Count I of the information during trial to add the charge that the crime was committed with an object.

By the time of trial, the victim was ten years old. As to Count I, the victim testified that appellant "put his gun in my vagina." When asked how she knew it was a gun inside her vagina, she replied, "Because I could hear the noise." The prosecutor asked, "Why do you call it a gun?" and she testified, "Because it's a toy gun and it's shaped like one, that's why." She described the gun: "The color is pinkish something and it's a toy and the color is pink or something. It's a toy and the color is pink."

On cross-examination, the victim testified that she knew the difference between a gun and a penis.

After the state rested, Viladoine moved for judgment of acquittal, focusing on Count I, arguing that there was no testimony that the defendant's penis penetrated or united with the victim's vagina. The state argued that it was for the jury to determine whether what the child described as a gun was actually a penis because the child did not know the word for penis at age five.

The trial judge correctly observed that "there's no evidence that [the victim] ever referred to the male organ as a gun." After a break, the trial court granted the state's motion to amend Count I of the information to add penetration by an object. The court found no prejudice to the defendant because his defense was alibi.

This case is controlled by Diaz v. State , 38 So.3d 791 (Fla. 4th DCA 2010), and Simbert v. State , 226 So.3d 883 (Fla. 4th DCA 2017), sexual assault cases where convictions were reversed because the mode of unlawful contact with the victim, as alleged in the information, was changed mid-trial.

In Diaz , a defendant was charged with sexual battery "by inserting his fingers into the victim's vagina." 38 So.3d at 792. After the state rested at trial, the defendant moved for a judgment of acquittal because the state had not proven digital penetration. Id. The trial court permitted the state to amend the information to "include oral union with the victim's vagina." Id. We reversed the conviction, writing that " '[p]roof of another separate and distinctly different crime rather than the one charged constitutes a fatal variance in proof which in a criminal case cannot be 'cured' by amending the charging document to conform to the proof of the crime not charged.' " Id. at 793 (quoting Rose v. State , 507 So.2d 630, 632 (Fla. 5th DCA 1987) ).

Like Diaz , Simbert involved the charge of lewd or lascivious battery where a mid-trial amendment changed the mode of unlawful contact from "oral to digital penetration." 226 So.3d at 884. We held that the amendment changed an " 'essential element' of the charged crime." Id. We wrote that an " 'amendment that substantively alters the elements of the crime charged is per se prejudicial.' " Id. at 885 (quoting Wright v. State , 41 So.3d 924, 926 (Fla. 1st DCA 2010) ).

Per se prejudice aside, the amendment here altered the way the defense might have prepared the case. Although the child suffered severe injury from the penetration, she did not immediately report the incident when her mother picked her up. The mother took the victim home and began to prepare dinner. About an hour and a half after her mother picked her up from the sitter's, the victim reported bleeding to her mother. Even though the defense was alibi, if the charge was object penetration with a pink toy gun, careful preparation would have focused on whether a pink toy gun was ever present at the sitter's home.

As to the other issues on appeal, we also reverse based on the admission of the five-year-old victim's statement to a detective on the day of the incident. After an evidentiary hearing, the trial court found the statement to be admissible under sections 90.803(23)(a)1. and 2.a., Florida Statutes (2015). Appellate counsel discovered that the notes of that hearing had been lost by the court reporter. This court relinquished jurisdiction for the parties and the trial court to reconstruct the record. The trial court entered several orders attempting to reconstruct what had occurred at the hearing. We have listened to the audio recording of the child's statement and closely examined the transcript of the statement. This is one of those situations where we are in as good a position as was the trial court to evaluate the victim's recorded statement. See Dooley v. State , 743 So.2d 65, 68 (Fla. 4th DCA 1999) ("Insofar as a ruling is based on an audio or videotape, the trial court is in no better position to evaluate such evidence than the appellate court, which may review the tape for facts legally sufficient to support the trial court's ruling."). The statement raises serious concerns about the victim's competence at the time the statement was given. Nothing in the "reconstructed evidence" of the hearing overcomes these concerns.

Finally, we find no abuse of discretion in the court's limitation of the defense attorney's closing argument. While the attorney might well have argued that a reasonable doubt arose from the inability to pinpoint the victim's whereabouts after she returned home with her mother, the trial court properly sustained an objection to the argument that she wandered down the hall, unsupervised, in the apartment complex, in the absence of any evidence to support that speculation.

Consistent with Simbert, 226 So.3d at 888, we reverse the conviction on Count I and remand to the trial court for the entry of a judgment of acquittal on that count.

Warner, J., and Weiss, Daliah, Associate Judge, concur.

      Even though at oral argument appellant's counsel touched upon the issue of whether the state would be able on remand to file a new information charging sexual battery by an object, we do not decide the issue because it was not raised or briefed by the parties.


author: Levine, J.

text:
    Alton D. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1084
    District Court of Appeal of Florida, Fourth District.
    [April 17, 2019]
    Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

The issue in this case is whether the interrogating officer's statements and constant requests imploring appellant to invoke self-defense made appellant's eventual confession involuntary, and whether consequently the officer gave appellant an "unrealistic hope" as to the viability of invoking self-defense. We find that, when considering the "totality of circumstances," appellant did not understand his "true position" based on the officer's numerous statements, some of which seemingly condoned appellant's actions. Thus, we find the confession was involuntary and inadmissible. As to the other arguments raised, we find them to be without merit; however, based on the admission of the involuntary confession, we reverse appellant's convictions for two counts of second-degree murder, shooting into an occupied vehicle, and being a felon in possession of a firearm.

Belle Glade police responded to a "Shot Spotter" alert. Upon arrival at the scene, the police discovered the two victims shot dead in their vehicle. Both victims had multiple gunshot wounds and the car had bullet holes and shattered windows. The medical examiner determined that the cause of death for both victims was multiple rifle wounds and that the manner of death was homicide. The victims' injuries were consistent with someone shooting them from behind with an assault rifle. The shooter had not been in close proximity to the victims.

During an interview with police, appellant eventually admitted to committing the shooting in self-defense. Appellant provided the police with the assault rifle he used, an AR-15. A firearm examiner determined that seventeen casings recovered at the crime scene had been fired by appellant's rifle.

Appellant moved to suppress his confession. The trial court denied the motion. Appellant was convicted at trial and this appeal ensued.

We review a trial court's ruling on a motion to suppress by giving the decision of the trial court "a presumption of correctness to the historical facts" but review de novo the application of the law to the historical facts. Rigterink v. State , 66 So.3d 866, 884 (Fla. 2011).

Appellant argues that the trial court erred in denying the motion to suppress since the officer repeatedly asked him to invoke self-defense and stated that such an invocation would insulate him from prosecution. The state responds that the officer never made a specific promise to induce the confession.

"The due process clause of the Fourteenth Amendment to the U.S. Constitution 'prohibits the states from using the coerced confession of an accused against him.' " Martin v. State , 107 So.3d 281, 298 (Fla. 2012) (quoting Brewer v. State , 386 So.2d 232, 235 (Fla. 1980) ). The totality of the circumstances test applies to determine whether a confession was coerced. Arizona v. Fulminante , 499 U.S. 279, 285-86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). A confession is inadmissible where it is the product of improper "fruits of hope." Day v. State , 29 So.3d 1178, 1182 (Fla. 4th DCA 2010) (citation omitted).

Although the officer never directly or specifically made any promise to appellant, when reading the entire interrogation it is clear the officer made numerous statements giving appellant the clear impression that admitting to shooting the two victims in "self-defense" would be appellant's "only out." Further, a direct and explicit promise is not required for the actions of law enforcement to render a confession involuntary.

While the presence of an express "quid pro quo" bargain for a confession will render the confession involuntary as a matter of law, see Walker [v. State ], 771 So.2d [573,] 575 [ (Fla. 1st DCA 2000) ], it is not correct to say that the absence of an express "quid pro quo" bargain insulates police misconduct from claims of undue influence or coercion. The test for determining whether a particular confession or statement is involuntary is still whether, in considering the totality of the circumstances, the reviewing court can conclude that the defendant was unable to make a choice free from unrealistic hope and delusions as to his true position , due to the officer's conduct . Walker , 771 So.2d at 575.

Ramirez v. State , 15 So.3d 852, 856 (Fla. 1st DCA 2009) (emphasis added).

Appellant's "unrealistic hope and delusions as to his true position" were constantly fueled by the officer during the interrogation. In this case, appellant at first claimed to be at his father's house and not at the scene of the shooting. The officer told appellant, "Self-defense. That's basically your only out in this. It really is.... [A]ny other excuse, of course is no good. But if you said it's self-defense, it's hard for me to say otherwise. Do you understand what I'm saying?" The officer went on to point out that the two victims had guns on them: "So if you felt like they were going to come after you, you got to take care of yourself first, right?" The officer continued to press invoking self-defense when he said,

[R]ight now is your only opportunity, because after-if-if and when you are charged for this, you're not going to be able to come up with that defense again, because you were given the opportunity now and no one will believe you. If you say now it was f-----g self-defense, then you're-you know you got a chance.

The officer continued by once again stating,

It's your only out. Because when-when and if-when this goes to trial, you know, you-you can stand and argue right now, I told the detective it was self-defense; but you can't-from this point on, you're never going to be able to say that. You can say it, but no one is going to believe you.

When appellant expressed a concern about going to jail if he admitted to shooting in self-defense, the officer responded, "No, you're not going to jail for that. Are you kidding me?"

The officer also reminded appellant that the two victims had guns and they had threatened appellant before. The officer then stated, "So you-you went, you got your rifle and you took care of business because instead of you getting killed or anyone you love getting killed, you took the problem out." When appellant asked the officer what the officer would do if he was threatened, the officer responded, "S--t, if you threatened me, I would blow you away."

Finally, the officer explained,

I'm going to present the f-----g case to the State and say, listen the guy is saying-when someone claims self-defense-look at me-when someone claims self-defense, unless I have overwhelming evidence that it wasn't, I can't arrest you. The law protects people-you've heard of the stand your ground law, all these-a lot of people are-are-well, protecting themselves and they're not going to jail. Because in this country, you have the right to protect yourself.

(emphasis added). The officer concluded, "Were you protecting yourself? I don't blame you, man."

Only after the numerous statements by the officer outlined above did appellant finally acquiesce and agree to invoke self-defense and admit to being at the scene of the shooting. Appellant stated that the night before the fatal shooting, one of the victims shot at him, whereupon appellant fired back. Appellant admitted that the next day, the same victim approached appellant with a gun. After they exchanged words, appellant left to retrieve a rifle and returned to the scene where he shot the victims. The medical examiner confirmed that the victims were shot from behind with an assault rifle and that the shooter has not been in close proximity to the victims.

Appellant confessed under clear "unrealistic hope and delusions as to his true position." Ramirez , 15 So.3d at 856. The fact that appellant left the scene, returned armed, and shot the victims in the back multiple times from a distance while the victims were sitting in a parked car would mitigate against invoking self-defense on the day of the fatal shooting. See Spires v. State , 180 So.3d 1175, 1179 (Fla. 3d DCA 2015) (finding no Stand Your Ground immunity where defendant shot victim as victim turned to get into car and victim died from four gunshot wounds to his back); Phippen v. State , 389 So.2d 991, 993-94 (Fla. 1980) (finding sufficient evidence to sustain murder conviction where defendant shot victims multiple times in the back); McJimsey v. State , 31 So.3d 797, 798 (Fla. 4th DCA 2009) (characterizing self-defense claim as "weak" where defendant sustained no visible injuries, defendant returned to another room to retrieve a knife, and defendant stabbed the victim multiple times in the back and abdomen). But, based on the continued statements by the officer, appellant had an unrealistic view of the viability of such a defense.

Significantly, several times during the exchange, the officer gave incorrect appraisals of the law that misled appellant to believe that the law supported his actions on that day. Unlike misrepresentations of fact, which generally "are not enough to render a suspect's ensuing confession involuntary," "[p]olice misrepresentations of law ... are much more likely to render a suspect's confession involuntary." Baptiste v. State , 179 So.3d 502, 506 (Fla. 1st DCA 2015) (citation omitted). In Baptiste , police officers arrested the defendant upon belief that he had committed armed robbery. The officers repeatedly encouraged the defendant to confess, but he refused. The defendant confessed only after the officers misrepresented the law and told the defendant he could not be charged with armed robbery with a deadly weapon if he confessed to committing the robbery using a BB gun. Similarly, in Light v. State , 20 So.3d 939 (Fla. 1st DCA 2009), the police interrogated the defendant for unlawful sexual activity with minors. The defendant confessed only after the police misrepresented the law concerning the age of consent as sixteen rather than eighteen. Id. at 941. In both those cases, as in the instant case, the misrepresentation of law rendered the defendants' confessions involuntary.

In this case, the officer misrepresented the law to appellant on several occasions, for example by stating that appellant would not "be able to come up with that defense again," when in reality appellant was not foreclosed from invoking self-defense later in the process up until a potential trial. See Ivey v. State , 586 So.2d 1230, 1234 (Fla. 1st DCA 1991) (noting that defendant raised theory of self-defense for the first time at trial). The officer also incorrectly stated that he could not arrest appellant without "overwhelming evidence" that appellant did not act in self-defense when in fact the correct standard was probable cause. See § 776.032(2), Fla. Stat. (2016) ("[T]he agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.").

In summary, we find that the officer's misrepresentations of the law coupled with constant misrepresentations regarding appellant's position rendered appellant's confession involuntary and consequently inadmissible. An officer should not misrepresent the law and repeatedly make statements that foster "unrealistic hope and delusions to [a defendant's] true position." Accordingly, we reverse and remand.

Reversed and remanded.

Warner and Gross, JJ., concur.


author: Damoorgian, J.

text:
    Paula F. LEVY, Appellant, v. Robert I. LEVY, Appellee.
    No. 4D18-3535
    District Court of Appeal of Florida, Fourth District.
    [April 17, 2019]
    Ellen S. Morris of Elder Law Associates PA, Boca Raton, for appellant.
    Ilene Nodarse, agent for the appellee under Durable Power of Attorney.
   Damoorgian, J.

Paula Levy ("Wife") appeals the trial court's order denying her petition for non-dissolution alimony from Robert Levy ("Husband"). We reverse because the court incorrectly determined that it did not have legal authority to grant Wife's petition because of Husband's potential incapacity.

Wife petitioned the court for alimony unconnected with dissolution pursuant to section 61.09, Florida Statutes. The petition alleged that Husband was ill and would soon be placed in a skilled nursing facility and that Wife consequently needed monthly alimony to pay their expenses. Wife attached a marital property settlement agreement providing that Husband agreed to pay Wife the requested amount of monthly alimony. The settlement agreement was signed on behalf of Husband by his agent as designated in Husband's durable power of attorney. The durable power of attorney, which was also attached to the petition, specifically provided that Husband authorized the agent to, amongst other things, "support and/or continue to support any person whom I have taken to support or to whom I may owe an obligation of support, in the same manner and in accordance with the same standard of living as I may have provided in the past." It further provided that the durable power of attorney would not be terminated by Husband's subsequent incapacity.

The record reflects that the petition was addressed during a uniform motion calendar hearing. The court ultimately denied the petition, reasoning that it was unable to legally order alimony due to concerns regarding Husband's potential incapacity. Although the court acknowledged the durable power of attorney in its order, it did not make any findings regarding the validity of the instrument or the agent's authority to act thereunder. This appeal follows.

Ordinarily, we review a court's decision to award or deny alimony for abuse of discretion. Addie v. Coale , 120 So.3d 44, 46 (Fla. 4th DCA 2013). However, because the issue of whether a court has legal authority to act is a pure issue of law, we apply the de novo standard of review. See Metro-Dade Invs., Co. v. Granada Lakes Villas Condo., Inc. , 74 So.3d 593, 594 (Fla. 2d DCA 2011).

The sole issue in this case is whether Husband's potential incapacity legally precluded the court from awarding otherwise uncontested alimony. Wife argues that it did not because, regardless of Husband's incapacity, the durable power of attorney specifically authorized the agent to act on his behalf. We agree.

The entire purpose of a durable power of attorney, as opposed to a regular power of attorney, is to "show the principal's intent that the authority conferred is exercisable notwithstanding the principal's subsequent incapacity." § 709.2104, Fla. Stat. (2017) ; see also § 709.2102(4), Fla. Stat. (2017) (defining the word "durable," with respect to a power of attorney, as meaning "not terminated by the principal's incapacity"). By denying alimony based on Husband's potential incapacity, the court failed to give effect to Husband's intent under the durable power of attorney to designate an agent to act on his behalf notwithstanding his subsequent incapacity. As neither the validity of the durable power of attorney nor the agent's authority to act thereunder appear to be in dispute, the court was authorized to award alimony despite Husband's potential incapacity.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

Conner and Forst, JJ., concur.

      Section 61.09, Florida Statutes (2018), provides:
      If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.


author: Kuntz, J.

text:
    James E. LONG, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3261
    District Court of Appeal of Florida, Fourth District.
    [May 1, 2019]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

James E. Long raises eight issues in this appeal of his judgment and sentence. Pursuant to Machin v. State , No. 4D17-2787, 267 So.3d 1098, 2019 WL 1549376 (Fla. 4th DCA Apr. 10, 2019) (en banc), we decline to reach seven of the issues at this time.

Long argues the circuit court reversibly erred when it failed to conduct a competency hearing within twenty days of ordering a competency evaluation in accordance with Florida Rule of Criminal Procedure 3.210. The State concedes a competency hearing should have been held and argues remand is appropriate for a nunc pro tunc competency determination.

Consistent with Machin , we remand this case. Within sixty days, we direct the circuit court to hold a hearing and make a written determination as to whether a nunc pro tunc determination of Long's competency is possible. There are multiple potential paths on remand. Depending on the outcome of the circuit court's determination, the circuit court shall proceed with one of the paths outlined in this Court's en banc opinion in Machin , 267 So.3d at 1101-02, 2019 WL 1549376, at *3.

Remanded.

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


author: ORFINGER, J., concurs.

text:
    Kenneth PURDY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-370
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 27, 2017 Rehearing Denied April 28, 2017
    The primary issue that we address in this appeal is whether the trial court erred when, during a juvenile offender's sentence review hearing held pursuant to section 921.1402, Florida Statutes (2015), it failed to consider Appellant's aggregate prison sentence and instead just modified one individual sentence. To adequately answer this question, we first provide a brief history of the proceedings below.
    In 1997, following a jury trial, Appellant was convicted of felony first-degree murder, armed robbery, and armed carjacking. Appellant was a juvenile at the time that he committed these crimes. The trial court sentenced Appellant to serve life in prison without the possibility of parole for the murder conviction and two separate 112.7-month prison sentences for the armed robbery and armed carjacking convictions. The court ordered the 112.7-month prison sentences to run concurrently with each other but consecutively to the life sentence. We affirmed Appellant's convictions and sentences on direct appeal without opinion. Purdy v. State , 725 So.2d 1137 (Fla. 5th DCA 1998).
    Over the ensuing years, Appellant filed several motions seeking postconviction relief. These motions were denied by the lower court, and the denial orders were affirmed on appeal by this court. Nevertheless, on May 21, 2015, Appellant filed a successive motion for postconviction relief based upon the United States Supreme Court's opinion in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012), where the Court held that a sentencing scheme that mandates a life sentence without the possibility of parole for a juvenile offender who commits a homicide violates the Eighth Amendment of the United States Constitution. Appellant argued that although his life sentence was final long before Miller was released, he is now entitled to relief from this sentence because the Florida Supreme Court recently held that Miller was to be applied retroactively. See Falcon v. State , 162 So.3d 954, 962-63 (Fla. 2015). The postconviction court agreed, summarily granted the motion, and set the matter for resentencing.
    On November 18, 2015, the court held the resentencing hearing. At this hearing, Appellant's counsel requested that a "credit time served" sentence be imposed, suggesting to the court that it could craft a "sentencing scheme" that would allow Appellant to be immediately released. The State countered that Appellant should be resentenced to serve fifty years in prison for the murder conviction. Pertinent to this appeal, the State also advised the court that it would need to address at this hearing or at the subsequent review hearing whether Appellant was also entitled to be resentenced on his previously imposed consecutive sentences for the armed robbery and armed carjacking.
    The court, after considering the factors set forth in section 921.1401(2)(a)-(j), Florida Statutes (2015), resentenced Appellant to serve forty years in prison for the murder conviction, with appropriate jail credit and prison credit awarded, but did not separately provide for a sentence review hearing in this new sentence. The court declined to hold the review hearing that day, advising Appellant that he would first need to file the necessary paperwork requesting the review hearing and, that at this later hearing, the court would determine whether "[Appellant] can be released." Additionally, the court did not modify Appellant's sentences for the armed robbery or armed carjacking convictions, concluding that it did not have the discretion or authority to do so. As a result, Appellant's total or aggregate sentence was now 49 years, 4.7 months (the modified 40-year sentence for the murder conviction, followed by the 112.7-month sentences for the robbery and carjacking convictions, which remained concurrent to each other, but consecutive to the sentence for murder).
    Consistent with the court's direction, the following day, Appellant filed an application for sentence review pursuant to sections 921.1402(2) and (4), Florida Statutes (2015). In his application, Appellant asserted that the court had the authority at this review hearing to modify his sentences for the robbery and carjacking convictions in addition to modifying his forty-year sentence for the murder conviction, based on the court's authority to correct an unconstitutional sentencing scheme. Alternatively, Appellant suggested that the court could modify his sentence for the murder in such a fashion to effectuate his "immediate release to society."
    On December 18, 2015, the court conducted the sentence review hearing. After receiving brief testimony from Appellant, together with argument from counsel, the court specifically found Appellant to have been rehabilitated and that it reasonably believed Appellant to be fit to reenter society. Appellant's counsel reminded the court that in his application for the review hearing, counsel had indicated to the court that it had the authority at this review hearing to modify Appellant's entire sentencing scheme and not just the modified forty-year sentence for the murder. Alternatively, counsel suggested that the court could modify Appellant's forty-year sentence down to a ten-year prison sentence, arguing that because Appellant had been in custody for over twenty years, the additional time Appellant had already served could be applied towards his remaining 112.7-month prison sentences for the armed robbery and armed kidnapping convictions, thereby allowing Appellant to be immediately released from prison.
    The court first calculated that, at the time of the review hearing, Appellant had been in custody on this case for a total of twenty years, six months, and thirteen days. It then modified Appellant's sentence on the murder conviction to this amount of time served, to be followed by ten years of probation. However, the court again concluded that it lacked jurisdiction to consider modifying the 112.7-month prison sentences for the armed robbery and armed carjacking convictions.
    In Tyson v. State , 199 So.3d 1087 (Fla. 5th DCA 2016), we recently held that a juvenile offender who was sentenced to serve thirty years in prison on one count, to be followed by fifteen years in prison on a second count, received an unconstitutional sentence because the aggregate sentence did not provide for a review hearing after the juvenile offender served twenty years in prison. 199 So.3d at 1087-89. Additionally, in Thomas v. State , 135 So.3d 590 (Fla. 1st DCA 2014), a juvenile homicide offender initially received a life sentence for first-degree murder and was resentenced, following Miller , to a term of forty years in prison for the murder and a concurrent thirty years in prison for an armed robbery conviction with no provision for a sentence review hearing. 135 So.3d at 590-91. The First District affirmed the concurrent sentences, id. but the Florida Supreme Court, in a brief, unanimous opinion, quashed the decision of the First District and remanded the case for resentencing in conformance with the framework established in the 2014 juvenile sentencing laws now codified in sections 775.082, 921.1401, and 921.1402 of the Florida Statutes. Thomas v. State , 177 So.3d 1275 (Fla. 2015).
    More recently, in Kelsey v. State , 206 So.3d 5, 2016 WL 7159099 (Fla. Dec. 8, 2016), the Florida Supreme Court reiterated that the constitutionality of a juvenile offender's sentence is not based on the length of the sentence, but rather, it is dependent upon whether the sentence provided the offender with a meaningful opportunity for early release based on maturation and rehabilitation. 206 So.3d at 7. The defendant in Kelsey , a juvenile nonhomicide offender, had initially received two life sentences, but following the United States Supreme Court's opinion in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the defendant was resentenced to concurrent forty-five-year prison sentences, but without a sentence review hearing. Id. at 206 So.3d at 6-7. The First District affirmed the new sentences, concluding that the forty-five-year prison term did not constitute a de facto life sentence in violation of Graham. Kelsey v. State , 183 So.3d 439 (Fla. 1st DCA 2015). However, the supreme court remanded for resentencing, concluding that, consistent with its decision in Henry v. State , 175 So.3d 675 (Fla. 2015), all juvenile offenders whose sentences met the standard defined by the Legislature in chapter 2014-220, Laws of Florida, which includes any sentence longer than twenty years, are entitled to judicial review, not simply those term-of-years sentences that are "de facto life." Kelsey , 206 So.3d at 6-8.
    Based on these cases, we conclude that when a juvenile offender is entitled to a sentence review hearing, the trial court is required to review the aggregate sentence the juvenile offender is serving in determining whether to modify the offender's sentence based upon demonstrated maturity and rehabilitation. We therefore hold that the lower court erred in failing to consider Appellant's aggregate 49-year, 4.7-month prison sentence at the review hearing and remand for the trial court to conduct a second review hearing to address whether to modify this sentence. If the court determines at this hearing that Appellant has been rehabilitated and is reasonably believed to be fit to reenter society, the court shall modify the aggregate sentence. See § 921.1402(7), Fla. Stat. (2015).
    Appellant has raised two other issues in this appeal. In his second issue, Appellant argues that the court erred in finding that he was not eligible for gain time on the sentence imposed for the first-degree murder at the review hearing. We note that "[t]he authority to regulate gain time resides with the Department of Corrections." Miller v. State , 882 So.2d 480, 481 (Fla. 5th DCA 2004) (citing Moore v. Pearson , 789 So.2d 316 (Fla. 2001) ). "If, in sentencing, a court attempts to bar or grant gain time, such language has been treated as surplusage or stricken." Id. (citing Singletary v. Coronado , 673 So.2d 924 (Fla. 2d DCA 1996) ; Shupe v. State , 516 So.2d 73 (Fla. 5th DCA 1987) ). We therefore strike as surplusage any language from the recently entered sentencing documents regarding gain time.
    In his third issue, Appellant asserts that the three-year minimum mandatory provisions of his sentences for armed robbery and armed carjacking should not run consecutively. Based on the facts of this case and as correctly conceded by the State, the three-year minimum mandatory sentence provisions of Appellant's convictions for armed robbery and armed carjacking must run concurrently and not consecutively to each other. Because there was conflicting language in separate, contemporaneously rendered sentencing documents on this issue when Appellant was first sentenced, the trial court is directed to clarify and correct the judgment and sentences on remand.
    REMANDED, with directions.

      Each sentence also included a three-year minimum mandatory provision based upon the jury making a specific finding on each count that Appellant was in actual possession of a firearm when he committed these crimes.

      Purdy v. State , 158 So.3d 605 (Fla. 5th DCA 2015) ; Purdy v. State , 43 So.3d 708 (Fla. 5th DCA 2010) ; Purdy v. State , 907 So.2d 545 (Fla. 5th DCA 2005) ; Purdy v. State , 773 So.2d 560 (Fla. 5th DCA 2000).

      In Horsley v. State , 160 So.3d 393, 395-96 (Fla. 2015), the court held that a juvenile offender whose earlier sentence was found to be unconstitutional should be resentenced in light of the juvenile sentencing legislation enacted by the Legislature in 2014, now codified in sections 775.082, 921.1401-.1402, Florida Statutes (2015).

      Based on the court's factual findings at the resentencing hearing, Appellant, having already served more than twenty years of his prison sentence, was entitled to a review hearing. See §§ 775.082(1)(b) 2.; 921.1402 (2)(c), Fla. Stat. (2015).

      Prior to filing this appeal, Appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(1) to correct illegal sentence, arguing, among other things, that as a result of finding him to be rehabilitated and reasonably believing that he is fit to reenter society, the trial court was required under section 921.1402, Florida Statutes (2015), to immediately release him from prison on at least five years of probation. While the motion could have been more precisely stated, Appellant argued that the present aggregate sentence he is now serving, which requires him to remain in prison to serve his sentences for robbery and carjacking despite being found rehabilitated and fit to reenter society, is illegal. The trial court denied the motion.

      In Graham , the United States Supreme Court held that the Eighth Amendment forbids a sentence of life without parole for a juvenile offender who did not commit a homicide. 560 U.S. at 74, 130 S.Ct. 2011.

      In Appellant's aforementioned motion to correct illegal sentence, he also asserted that the trial court lacked authority to comment on gain time and asked that such language in the order be stricken. As to the merits of his claim, we note that subsequent to the lower court's resentencing, Appellant pursued his administrative remedies through the Department of Corrections ("DOC") regarding the denial of his claim for gain time on his sentence. After the DOC denied relief, Appellant then filed a petition seeking habeas corpus relief with the circuit court, challenging the DOC's adverse determination as to his request for gain time. The circuit court denied his petition. Appellant thereafter filed a petition for writ of certiorari with our court regarding the denial of his habeas corpus petition, which was denied by this court without elaboration in case number 5D16-897.

   ORFINGER, J., concurs.

BERGER, J., concurs in part, and dissents in part, with opinion.

BERGER, J., concurring, in part, and dissenting.

I agree with the majority that the authority to regulate gain time resides with the Department of Corrections. I also agree that the three-year minimum mandatory sentences imposed on counts two and three for armed robbery and armed carjacking, must run concurrently with each other. However, I disagree with the majority view that, pursuant to section 921.1402, Florida Statutes (2015), Appellant is entitled to a sentence review on counts two and three.

When Appellant was resentenced pursuant to section 921.1401, Florida Statutes (2015), to serve forty years in prison on his conviction for first-degree felony murder, his sentence was no longer unconstitutional under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Nevertheless, he was entitled to, and did, receive a sentence review hearing on this charge pursuant to section 921.1402(2)(c). See § 775.082(1)(b) 2., Fla. Stat. (2015).

Notably, Appellant did not seek resentencing on counts two and three in his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and Miller. At the hearing on the postconviction motion, Appellant raised the issue of determining the applicable sentencing guidelines as to counts two and three, which the trial court declined to address, but Appellant did not raise any issues concerning his aggregate sentence. At the conclusion of the hearing, Appellant requested clarification on the trial court's ruling, but he did not object or argue to the contrary when the trial court stated that it did not believe it had discretion to modify or change Appellant's sentence on counts two and three. Moreover, when the sentences imposed in counts two and three were left undisturbed on resentencing, Appellant did not appeal the trial court's decision to leave those sentences intact. Subsequently, during the judicial review hearing under section 921.1402(2)(c), Appellant did not object when the trial court indicated it did not have jurisdiction to resentence him on those counts. During the judicial review hearing, and in his motion to correct his sentence under Florida Rule of Criminal Procedure 3.800(b), Appellant did no more than argue that he was entitled to immediate release based on his rehabilitation and fitness to reenter society and seek to reduce the first-degree felony murder sentence to ten years so that the sentences for counts two and three, running consecutive to the first-degree felony murder sentence, had already been completed. Appellant made no arguments concerning the aggregate length of his sentences. In fact, it was the State, not Appellant, who raised the issue of the trial court's lack of jurisdiction to review the sentences in counts two and three under section 921.1402(1). As such, the sentences in counts two and three are not subject to review. See Fla. R. App. P. 9.140(e) ;

Jackson v. State, 983 So.2d 562, 574 (Fla. 2008) ; Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla. 1987) ("In order to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court." (citing Tillman v. State, 471 So.2d 32 (Fla. 1985) )). Even if they were, a 112.7 month sentence does not trigger a sentence review hearing under section 921.1402(2). See Barnes v. State, 175 So.3d 380, 382 n.1 (Fla. 5th DCA 2015) ("The statutory provisions governing juvenile sentencing do not apply to the defendant's five-year sentence for count twenty and his one-year sentence for count twenty-one; thus, resentencing on these counts is not necessary.").

I recognize that leaving the sentences in counts two and three intact creates an anomaly in light of the trial court's conclusion that Appellant is rehabilitated and fit to reenter society. Nevertheless, I believe the glitch is one that requires a legislative fix, not a judicial one. See Ortiz v. State, 188 So.3d 113, 116 n.4 (Fla. 1st DCA 2016) (recognizing the anomaly that the Appellant will receive a sentence review under section 921.1402(2)(a) for his first-degree murder conviction but not for home invasion robbery while armed with a firearm). Accordingly, I dissent.

ON MOTION FOR REHEARING, CLARIFICATION, AND REQUEST TO CERTIFY QUESTION

PER CURIAM.

The State of Florida's motion for rehearing or clarification is denied. The State has also requested that we certify to the Florida Supreme Court a proposed question as one of great public importance. We decline to certify the State's question; instead we certify the following question to the court as one of great public importance:

WHEN A JUVENILE OFFENDER IS ENTITLED TO A SENTENCE REVIEW HEARING, IS THE TRIAL COURT REQUIRED TO REVIEW THE AGGREGATE SENTENCE THAT THE JUVENILE OFFENDER IS SERVING FROM THE SAME SENTENCING PROCEEDING IN DETERMINING WHETHER TO MODIFY THE OFFENDER'S SENTENCE BASED UPON DEMONSTRATED MATURITY AND REHABILITATION?

ORFINGER and LAMBERT, JJ., concur.

BERGER, J., concurs in part and dissents in part, with opinion.

BERGER, J., concurring in part, dissenting in part.

I disagree with the decision to deny rehearing, but I agree we should certify a question of great public importance. With that said, I do not believe the question presented by the majority adequately frames the issue in this case. Instead, I would certify the following question proposed by the State of Florida:

IS A JUVENILE OFFENDER WHO OBTAINS JUDICIAL REVIEW FOR A HOMICIDE OFFENSE ALSO ENTITLED TO JUDICIAL REVIEW OF A FIFTEEN-YEAR-OR-LESS SENTENCE FOR A CONTEMPORANEOUSLY COMMITTED NON-HOMICIDE CONVICTION WHERE THE SENTENCE DOES NOT VIOLATE THE EIGHTH AMENDMENT AND THERE IS NO STATUTORY AUTHORITY TO REVIEW IT?


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Andrew L. WILSON, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1590
    District Court of Appeal of Florida, Second District.
    Opinion filed January 4, 2019 Rehearing Denied April 10, 2019
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Andrew L. Wilson, III, appeals from the March 2017 order revoking his probation based on his alleged failure to comply with the special condition that he enter and successfully complete the ACTS Dual-Diagnosis treatment program. Wilson argues that the trial court improperly revoked his probation based solely on hearsay. During the pendency of this appeal (indeed, long before even the initial brief was filed), Wilson completed the thirteen-month prison sentence imposed upon revocation, and we ordered him to show cause why the appeal should not be dismissed as moot. See Bush v. State, 135 So.3d 1108, 1110 (Fla. 2d DCA 2013) (on reh'g) (explaining that the appeal of a probation revocation may not be moot upon the defendant's completion of his sentence on revocation if the defendant faces collateral consequences stemming from the revocation itself). Having received Wilson's response, we dismiss the appeal as moot.

Wilson first argues that his appeal is not moot because "it is at least arguable that he can avoid liability for certain incarceration costs and other correctional costs." Here, however, he is simply quoting Bush, 135 So.3d at 1110 -which we cited in our order to show cause-back to us. This was Wilson's opportunity to identify any incarceration and correctional costs for which he is liable, even arguably, and he failed to avail himself of it.

Wilson also argues that if he is convicted of another offense in the future, particularly a sex offense, this revocation of probation may expose him to a harsher penalty or render it less likely for him to be sentenced to probation in that case. We hope that Wilson's pessimistic speculation remains just that. But even if it is instead prescient, we are hard-pressed to conclude that this revocation for failure to comply with a special condition involving treatment, rather than Wilson's recidivism and repeated violations of probation over his approximately thirty-year criminal history-which includes convictions for, among other things, grand theft, possessing cocaine, false imprisonment, aggravated fleeing and eluding, and robbery with a gun or deadly weapon-will be the straw that breaks the camel's back.

Finally, Wilson argues that if he is correct in his challenge to the revocation, he is "entitled to have justice done" and "an opinion on the merits of this case would provide guidance to the lower court should this issue arise again in the future." As to the former, we emphasize that Wilson is challenging not a conviction but a revocation of his probation, and that revocation was based not on a new law offense but on the alleged violation of a special condition involving treatment-any "justice" interest in the outcome is, at this point, negligible. As to the latter, the law is already well established that a trial court may not revoke probation based solely on hearsay. See, e.g., Russell v. State, 982 So.2d 642, 646 (Fla. 2008) ; Carrington v. State, 168 So.3d 285, 287 (Fla. 2d DCA 2015) ; Casas v. State, 27 So.3d 203, 206 (Fla. 2d DCA 2010) ; Boyd v. State, 1 So.3d 1186, 1187 (Fla. 2d DCA 2009). Another opinion to that effect will add little, if anything, to the mix.

Accordingly, this appeal is dismissed as moot.

KELLY, J., Concurs.

SILBERMAN, J., Concurs in result only.

      Wilson has never been convicted of a sex offense.


author: BLACK, Judge.

text:
    In the INTEREST OF E.T., Jr., Y.T., and D.T., Children.
    E.T., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-2537
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    Ita M. Neymotin, Regional Counsel, Second District, Office of Criminal Conflict and Civil Regional Counsel, Fort Myers; David C. Chafin, Assistant Regional Counsel, Clearwater; and Joseph Thye Sexton, Assistant Regional Counsel, Bartow, for Appellant.
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Appellee Department of Children and Families.
    Thomasina Moore, Statewide Director of Appeals, and Laura J. Lee, Appellate Counsel, Tallahassee, for Appellee Guardian ad Litem Program.
   BLACK, Judge.

E.T., the Father of the children, appeals from an order that supplements a prior order adjudicating the children dependent and finds that he engaged in conduct constituting abuse, abandonment, and neglect of the children within the meaning of section 39.01(15)(a), Florida Statutes (2017). We affirm the order without further comment insofar as it makes findings that the Father engaged in conduct that constitutes abuse, abandonment, and neglect. However, we reverse the order to the extent that it makes dispositional findings and directs the Father to complete certain case plan tasks without first holding a separate disposition hearing, and we remand for the court to hold a disposition hearing as instructed in this opinion. The court's no-contact order and the children's current placement shall remain in effect pending a disposition hearing.

I. Background

After the children were sheltered, the Department of Children and Families filed a petition for dependency alleging that the Father had abused, neglected, and abandoned the children; allegations of abuse and neglect were also made against the children's mother. The children's mother consented to the dependency, and the trial court entered an order adjudicating them dependent. The court continued the petition against the Father, who had requested mediation.

At a subsequent evidentiary hearing concerning the allegations against the Father, the trial court accepted the Department's position that because the children had already been adjudicated dependent based upon the mother's consent, it should supplement "the adjudicatory order, disposition order, and the case plan as necessary." Notwithstanding the Department's position, the court heard evidence concerning the allegations in the petition against the Father. However, the court rejected the Father's argument that a separate disposition hearing was required under section 39.507(8) if it found that the Father had abused, abandoned, or neglected the children. And it agreed with the Department's argument that it need not find that the Father actually harmed the children to conclude that he contributed to their dependency. After the evidentiary hearing, the court entered a supplemental order finding that the Father had engaged in conduct that constituted abuse, abandonment, and neglect of the children under section 39.01(15)(a). It also made dispositional findings, directed the Department to file a case plan that would be accepted if no party objected within ten days, and directed the Father to complete certain case plan tasks. The court ordered that the Father have no contact with the children until further order of the court and kept the children in their current placement.

II. Discussion

The Father argues on appeal that the court erred in conducting the disposition hearing contemporaneously with the adjudicatory hearing and in failing to provide him with proper notice of the disposition hearing. He asserts that upon finding that the Department established the allegations against him, the court should have provided him with written notice of a disposition hearing to take place within thirty days after the adjudicatory hearing under section 39.507(8). In addition, he argues that at an adjudicatory hearing the court was required to find that his conduct resulted in actual harm to the children as opposed to imminent harm. The Father's issues involve questions of law, and our review is de novo. See M.M. v. Fla. Dep't of Children & Families, 189 So.3d 134, 137 (Fla. 2016).

A. Separate disposition hearing was required for the Father

In arguing that a separate disposition hearing was not required, the Department and the Guardian ad Litem Program rely upon the language in section 39.507(7)(b) that "[i]f a second parent is served and brought into the proceeding after the adjudication and if an evidentiary hearing for the second parent is conducted, the court shall supplement the adjudicatory order, disposition order, and the case plan, as necessary." (Emphasis added.) They interpret this language to mean that the trial court can hold a single hearing to determine whether the Father contributed to the children's dependency and then supplement the adjudicatory order, disposition order, and the case plan "as necessary," without conducting a separate disposition hearing. We disagree. This language does not eliminate the need for a disposition hearing as contemplated under section 39.507(8) and Florida Rules of Juvenile Procedure 8.347(h)(2) and 8.347(i).

"[O]nly one order adjudicating each child in the case dependent shall be entered." § 39.507(7)(a). "However, the court must determine whether each parent or legal custodian identified in the case abused, abandoned, or neglected the child ...." § 39.507(7)(b). Further, section 39.507(8) provides as follows:

At the conclusion of the adjudicatory hearing, if the child named in the petition is found dependent, the court shall schedule the disposition hearing within 30 days after the last day of the adjudicatory hearing. All parties shall be notified in writing at the conclusion of the adjudicatory hearing by the clerk of the court of the date, time, and location of the disposition hearing.

Clearly section 39.507(8) contemplates that a separate disposition hearing should be held following an adjudicatory hearing. Rule 8.347(h)(2) similarly provides that following supplementation of the order of adjudication to include a second parent, "[i]f necessary, the court shall schedule a supplemental disposition hearing within 15 days." That is, if after a hearing on the allegations against a second parent the court concludes that the second parent should be included in the adjudicatory order, it becomes necessary to schedule a supplemental disposition hearing. The supplemental disposition hearing must be conducted "pursuant to the same procedures for a disposition hearing and case plan review hearing as provided by law." Fla. R. Juv. P. 8.347(i)(1). Rule 8.347 further requires that the "written case plan and reports required by law ... must be filed with the court[ ] [and] served upon the parents of the child ... no less than 72 hours before the supplemental disposition hearing." Fla. R. Juv. P. 8.347(i)(2)(A). In addition, rule 8.347(i)(3) specifically directs what the court should include in a supplemental order of disposition. These provisions reflect that a second parent who is included in a supplemental adjudicatory order is entitled to the same procedures for a disposition hearing and case plan review as the first parent.

Section 39.507(7)(b) contemplates that if the court holds an evidentiary hearing for a second parent it should thereafter supplement the adjudicatory order, disposition order, and case plan "as necessary." As with rule 8.347(h)(2), we interpret this language to mean that if after holding an adjudicatory hearing for a second parent the court determines that the second parent contributed to a child's dependency under the statutory definition of a dependent child, the court is authorized to supplement its prior adjudicatory and disposition orders and case plan "as necessary." However, the provision does not eliminate the procedures for holding a disposition hearing under section 39.507(8), rule 8.347(h)(2), or rule 8.347(i) before supplementing the disposition order and case plan. Therefore, the Father was entitled to a separate disposition hearing after notice.

As to the timing of the separate disposition hearing, we note that although section 39.507(8) and rule 8.347(h)(2) provide different timeframes, they are not in conflict. Compare § 39.507(8) (requiring "the court [to] schedule the disposition hearing within 30 days after the last day of the adjudicatory hearing"), with Fla. R. Juv. P. 8.347(h)(2) (requiring "the court [to] schedule a supplemental disposition hearing within 15 days" of the adjudicatory hearing). The requirement under rule 8.347(h)(2) that a supplemental disposition hearing be held within fifteen days falls within the broader requirement under section 39.507(8) that a disposition hearing be held within thirty days. Because the Father is the second parent following the mother's consent to the children's dependency, we conclude that the more specific provisions of rule 8.347(h)(2) that address supplemental disposition hearings for a second parent control the timing of a supplemental disposition hearing as to the Father. See M.W. v. Davis, 756 So.2d 90, 106 n.31 (Fla. 2000) ("In construing statutes, a specific statute governing a particular subject takes precedence over a conflicting more general statute."); Cricket Props., LLC v. Nassau Pointe at Heritage Isles Homeowners Ass'n, 124 So.3d 302, 307 (Fla. 2d DCA 2013) (noting same). Thus, the trial court was required to hold a disposition hearing within fifteen days of the entry of the supplemental order of adjudication.

B. Department was not required to prove actual harm

The Father also argues that the Department was required to establish that he actually harmed the children in order for the court to find that he contributed to their dependency. Focusing on the language in section 39.507(7)(b) that "a second parent is served and brought into the proceeding after the adjudication," the Father argues that the statute creates two classes of parents: one includes parents who are served with the petition for dependency before the children are adjudicated dependent and the other includes parents who are served after the children have been adjudicated dependent. The Father argues that the language in section 39.507(7)(b) that "[t]he petitioner is not required to prove actual harm or actual abuse by the second parent" does not apply to him because section 39.507(7)(b) references parents "served and brought into the proceeding after the adjudication" of dependency and he was served with the petition before the children were adjudicated dependent. According to the Father, the Department was required to prove that his conduct resulted in actual harm and not prospective harm to the children. We disagree and conclude that section 39.507(7)(b) applies uniformly to "the second parent"-the parent who objects to the allegations of dependency when the other parent consents.

Prior to the amendment to section 39.507(7)(b) in 2017, there was a conflict between the Fifth and Third Districts regarding whether the Department was required to prove that a second parent caused actual harm to a child in a supplemental adjudication after the child was adjudicated dependent based upon the actions of the other parent or whether it could prove prospective harm against the second parent. Compare P.S. v. Dep't of Children & Families, 4 So.3d 719, 720-21 (Fla. 5th DCA 2009) (requiring the Department to establish actual harm by the children's father after the mother consented to the children's dependency and the Department thereafter filed a petition alleging that the father contributed to the children's dependency), with D.A. v. Dep't of Children & Family Servs., 84 So.3d 1136, 1139-41 (Fla. 3d DCA 2012) (disagreeing with P.S. and holding that the Department could prove prospective harm at an adjudicatory hearing for the father when the children were alleged to be dependent based upon allegations against the mother and the father, the mother consented to dependency, and the petition proceeded to an adjudicatory hearing for the father). In concluding that either actual or prospective harm could be established against the second parent, the Third District observed that section 39.507(7)(b) plainly stated that "the court must determine whether each parent or legal custodian identified in the case abused, abandoned, or neglected the child in a subsequent evidentiary hearing." 84 So.3d at 1140. Section 39.507(7)(b) did not include the word "actual" as contemplated by the Fifth District's holding in P.S., and the Fifth District's interpretation disregarded chapter 39's statutory definitions, which incorporated prospective risk of harm as a basis for determining whether a child is dependent. The Third District further observed that it would be absurd to read section 39.507(7)(b) to require the Department, with no apparent rationale, to apply two different standards of proof to parents by imposing a higher burden of proof for a second parent in a supplemental proceeding than for the consenting parent: "The second parent, who in most cases will be the more fractious, arbitrarily will receive the benefit of holding [the Department] to a higher level of proof." 84 So.3d at 1140.

The legislature amended section 39.507(7)(b) in 2017 to state that a "court must determine whether each parent ... abused, abandoned, or neglected the child or engaged in conduct that placed the child at substantial risk of imminent abuse, abandonment, or neglect." Ch. 2017-151, § 10, at 17, Laws of Fla. (emphasis added to reflect the addition of new language). It also added the language that a "petitioner is not required to prove actual harm or actual abuse by the second parent in order for the court to make supplemental findings regarding the conduct of the second parent." Id. By adding the foregoing language, the legislature made clear that the same burden of proof applies to each parent. See also Fla. H.R. Comm. on Health & Human Servs., Subcomm. on Children, Families & Seniors, HB 1121 (2017) Staff Analysis (Mar. 12, 2017) (observing the conflict between the Third and Fifth Districts and noting that the proposed legislation "clarifies that the petitioner is not required to show actual harm by the second parent in order for the court to make supplemental findings regarding the conduct of the second parent"). Thus, the trial court applied the correct burden and its finding that the Father contributed to the children's dependency under the statutory definition was properly supported by proof of his conduct that placed them at imminent risk of harm.

III. Conclusion

Based upon the foregoing discussion, we affirm the trial court's findings that the Father engaged in conduct that constitutes abuse, abandonment, and neglect of the children under section 39.01(15)(a). We reverse the order on review to the extent that the trial court made findings concerning the most appropriate protections, services, and placement for the children without the required notice and separate hearing. On remand, the trial court shall enter an amended supplemental order of adjudication without the dispositional findings and provisions. Upon written notice to the Father and within fifteen days of the entry of the amended supplemental order, the court must hold a disposition hearing. The court's continuation of its no-contact order shall remain in effect pending a disposition hearing.

Affirmed in part, reversed in part, and remanded.

LaROSE, C.J., and SILBERMAN, J., Concur.

      The Father also argues that the court erred in accepting the Department's position that because the children had already been adjudicated dependent based upon the mother's consent, it was not necessary to conduct an adjudicatory hearing with regard to the allegations against him in the petition for dependency. But as the Department and Guardian ad Litem Program point out, the court did in effect conduct an adjudicatory hearing as required, see § 39.507(7)(b); Fla. R. Juv. P. 8.315(a)(3) ; Fla. R. Juv. P. 8.347(f)(2), (g)(1), and therefore no procedural error occurred with respect to the court's determination that the Father contributed to the children's dependency by engaging in conduct that constituted abuse, abandonment, and neglect of the children under section 39.01(15)(a).


text:
    Joseph L. TOMLIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4822
    District Court of Appeal of Florida, First District.
    February 15, 2019 Rehearing Denied April 23, 2019
    Joseph L. Tomlin, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED as untimely.

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


author: Per Curiam. Winokur, J., concurring.

text:
    Eduardo RODRIGUEZ-LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3988
    District Court of Appeal of Florida, First District.
    February 15, 2019 Rehearing Denied April 24, 2019
    Eduardo Rodriguez-Lopez, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Bilbrey and Jay, JJ., concur; Winokur, J., concurs with opinion.

Winokur, J., concurring.

I agree with the majority that we should affirm the order below, but I write separately because I disagree with some of the reasoning offered by the trial court below in support of the order.

Rodriguez-Lopez was charged with first-degree murder and pleaded guilty to second-degree murder in exchange for a sentence between twenty and one-half years and fifty years. He later filed a motion to withdraw that plea alleging that his counsel had been ineffective for failing to advise him of the "heat of passion" defense prior to entering the plea. Rodriguez-Lopez alleged that his wife was having an affair, and that once he discovered this, he "lost control," later awaking in the hospital with no memory of what happened. Rodriguez-Lopez claimed that he told counsel these facts, but that counsel told him he had no defense, in spite of Rodriguez-Lopez's assertion that the heat-of-passion defense was available to him.

The trial court found that the record conclusively refuted this claim because it showed that Rodriguez-Lopez had threatened to kill his wife nine months before the murder, and because he swore in his plea colloquy that he had been advised of all possible defenses, that he had fully discussed them with counsel, and that he concurred with counsel on the decision not to go to trial. The court noted that "[p]revious threats to kill a victim are 'totally inconsistent with [a] claim of a heat of passion killing,' " citing Stimus v. State , 886 So.2d 996, 999 (Fla. 5th DCA 2004), and that a defendant who "enters a plea and swears that he is satisfied with his counsel's advice, [ ] may not later attack counsel's effectiveness for failure to investigate or defend a charge," citing Clift v. State , 43 So.3d 778, 779 (Fla. 1st DCA 2010). I disagree that either reason constituted a basis to deny the claim without a hearing.

First, the fact that the State could have demonstrated that Rodriguez-Lopez had previously threatened to kill his wife, while relevant, does not necessarily demonstrate that summary denial was appropriate. "[A] sudden event that would have suspended the exercise of judgment in an ordinary reasonable person," who "would have lost normal self-control and would have been driven by a blind and unreasoning fury" without a "reasonable amount of time for a reasonable person to cool off" may provide a basis for a heat-of-passion defense. Fla. Std. Jury Instr. (Crim.) 7.2. Nothing about this defense excludes the possibility of prior violence between the perpetrator and the victim. Stimus , which concerned remedy for a discovery violation, does not suggest otherwise. 886 So.2d at 997.

The effect of Rodriguez-Lopez's acknowledgement at the plea hearing that he had been advised of all possible defenses and discussed them with counsel presents a more difficult question. It can be logically contended that this acknowledgement conclusively refutes the claim that counsel did not advise Rodriguez-Lopez of a particular defense. However, it seems harsh and irrational to impute knowledge of a particular defense, even with such an acknowledgement, when Rodriguez-Lopez alleges that he was unaware of its existence at the time of the plea. The Third District recently split over such a dispute. Sosataquechel v. State , 246 So.3d 497 (Fla. 3d DCA 2018). The majority there found that an acknowledgement at a plea hearing that the defendant discussed defenses with his attorney and was satisfied with his advice "does not adequately resolve" his claim that counsel failed to advise him of his right to claim self-defense. Id. at 499. In contrast, the minority opinion found that such an acknowledgement conclusively refuted the defendant's claim. Id. at 500 (Luck, J., concurring in part and dissenting in part).

In this case, I believe we do not have to resolve this question, because the record conclusively refutes the claim that Rodriguez-Lopez acted in the heat of passion. The order under review included records that showed that on the day of the murder, Rodriguez-Lopez waited across the parking lot in a place where he could see the victim's apartment, that he brought the murder weapon (a large knife) with him, and that he was seen "stalking the victim at her workplace and on her way to work." While past violence against the victim may not have conclusively refuted a heat-of-passion defense, certainly these facts do. See , e.g. , Spencer v. State , 645 So.2d 377, 381 (Fla. 1994) (holding that evidence that the defendant parked away from the victim's house on the day of the killing, wore plastic gloves during attack, and carried a steak knife in his pocket, was inconsistent with a heat-of-passion killing). For this reason, I concur in the conclusion that the record conclusively refutes Rodriguez-Lopez's claim that counsel was ineffective for failing to advise him of the heat-of-passion defense.

      If "the files and records in the case conclusively show that the defendant is not entitled to relief" on a postconviction claim, then the claim "shall be summarily denied on the merits without a hearing." Fla. R. Crim. P. 3.850(f)(4).


text:
    Alvin SHARPE, Petitioner, v. Mark S. INCH, in His Official Capacity as the Secretary of the Department of Corrections and State of Florida, Respondents.
    No. 1D18-3319
    District Court of Appeal of Florida, First District.
    February 12, 2019
    Alvin Sharpe, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondents.
   Per Curiam.

The petition for writ of habeas corpus is dismissed. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

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


author: PER CURIAM.

text:
    Wendall HALL, DOC #379682, Petitioner, v. Ms. REYNOLDS, Mental Health Counselor; and Captain Bush, Respondents.
    Case No. 2D18-2948
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019 Rehearing Denied April 10, 2019
    Wendall Hall, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Kenneth V. Wilson, Assistant Attorney General, Tampa, for Respondent Captain Bush.
    No appearance for remaining Respondent.
   PER CURIAM.

We dismiss the petition for writ of certiorari as it relates to the portion of the order setting aside the clerk's default and denying Mr. Hall's motion for default judgment. See Dawkins, Inc. v. Huff, 836 So.2d 1062, 1065 (Fla. 5th DCA 2003) ("[W]e must dismiss this appeal. An order on a motion to set aside a clerk's default is not an appealable, non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). Absent extraordinary circumstances, such an order is also not reviewable by certiorari, as certiorari should not be used to circumvent the appellate rule which limits interlocutory review of non-final orders." (citation and footnote omitted) ); Rodriguez v. Young Am. Corp., 717 So.2d 621, 621 (Fla. 3d DCA 1998) ("Because the appellants seek review of an order setting aside the entry of a default as opposed to a default judgment, we sua sponte dismiss this appeal for lack of jurisdiction."). Having carefully reviewed the record as to Mr. Hall's remaining arguments, we deny the petition for writ of certiorari as the trial court did not depart from the essential requirements of law.

Dismissed in part; denied in part.

VILLANTI, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Steven Christopher PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2544
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019 Rehearing Denied May 02, 2019
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Steven Phillips appeals from his convictions for aggravated assault and aggravated battery, arguing that an improper jury instruction on self-defense amounted to fundamental error. But because Phillips drafted the erroneous instruction, any fundamental error was invited and waived. Accordingly, we affirm.

Phillips was charged with aggravated assault and aggravated battery for brandishing a knife at and pistol-whipping his neighbor, Edgar Martinez, who was at the time engaged in a physical altercation with Phillips' father. At trial, Phillips argued that his actions were justified because he was acting in defense of himself and his father. The judge read instructions to the jury on justifiable use of force. Those instructions included the following: "[The] use or threatened use of deadly force is not justified if you find that [Phillips] was attempting to commit, committing, or escaping after the commission of an aggravated battery or an aggravated assault." Identical instructions were given for non-deadly force.

In Martinez v. State, 981 So.2d 449, 453-54 (Fla. 2008), the Florida Supreme Court explained that this instruction only applies when a forcible felony independent of the one for which a defendant claims self-defense is committed. Since there was no forcible felony outside those for which Phillips asserted self-defense, this instruction was inapplicable. However, it was Phillips' counsel who had drafted the instruction and who failed to object to this error. Phillips now appeals, arguing that the instruction was a fundamental error and deprived him of a fair trial.

Jury instructions "are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred." Id. at 455 (quoting State v. Delva, 575 So.2d 643, 644 (Fla. 1991) ). However, "[f]undamental error is waived where defense counsel requests an erroneous instruction." Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 65 (Fla. 2012) (citing Armstrong v. State, 579 So.2d 734, 735 (Fla. 1991) ). Parties "may not invite error and then be heard to complain of that error on appeal." Lowe v. State, 259 So.3d 23, 50 (Fla. 2018) (quoting Pope v. State, 441 So.2d 1073, 1076 (Fla. 1983) ).

While reading the forcible-felony exception in Phillips' trial might have constituted fundamental error by negating his primary viable defense strategy, cf. Martinez, 981 So.2d at 456-57, any such error was waived because Phillips' own counsel drafted, and thus requested, the improper instruction. Having invited the error, Phillips cannot now benefit from it on appeal.

Affirmed.

LaROSE, C.J., and BLACK, J., Concur.