author: Per Curiam.

text:
    Eugene HAM, III, Appellant, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellee.
    Laura Foxhall, Appellant, v. Portfolio Recovery Associates, LLC, Appellee.
    No. 1D17-3112 No. 1D17-3113
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, and Robert N. Heath, Jr., of Robert N. Heath, Jr., P.A., Pensacola, for Appellants.
    Robert E. Sickles and John P. Gaset of Broad and Cassel, LLP, Tampa, for Appellee.
    Janet Varnell of Varnell & Warwick, P.A., Lady Lake; Lynn Drysdale of Jacksonville Area Legal Aid, Inc., Jacksonville; Craig E. Rothburd of Craig E. Rothburd, P.A., Tampa; and Arthur Rubin of We Protect Consumers, P.A., Tampa, for National Association of Consumer Advocates.
   Per Curiam.

In these consolidated cases, Eugene Ham and Laura Foxhall challenge final orders denying their claims for prevailing party attorney's fees in actions brought by Portfolio Recovery Associates, LLC, to recover unpaid credit card debt under an "account stated" theory of liability. We accepted jurisdiction of the orders certified by the county court to be of great public importance. For the reasons that follow, we affirm.

Background

Portfolio, as assignee of GE Capital Retail Bank ("Bank") and purchaser of certain consumer debts, filed separate actions against Mr. Ham and Ms. Foxhall in the small claims division of the Escambia County Court. In each case, Portfolio filed a one-count complaint for common law account stated to collect the balance allegedly owed on a credit card account originating with the Bank. Portfolio alleged that each debtor had a revolving credit card account with the Bank, the debtor used the account to make purchases and/or cash advances resulting in an unpaid balance, the Bank provided monthly credit card account statements to the debtor for the amounts due, and the debtor did not object to the account statement. The total amount in controversy for both cases was $4,754.43. Portfolio did not attach to the complaint or mention any written credit card contracts between the Bank and the debtor ("credit contract"), nor did Portfolio plead an entitlement to attorney's fees if successful in the actions.

In their answers, the debtors denied the material allegations of the complaints and asserted several affirmative defenses. They also requested reciprocal attorney's fees pursuant to section 57.105(7), Florida Statutes.

Both sides moved for summary disposition with competing affidavits. Portfolio submitted affidavits from its records custodian with attached credit card statements and other documents. The debtors submitted affidavits in which they disputed the balances claimed by Portfolio and denied agreeing with Portfolio to any account balances.

The county court proceeded to trial in both cases. Finding that Portfolio failed to offer any admissible evidence to support the complaints, the court entered final judgments in favor of the debtors and reserved jurisdiction to address attorney's fees and costs.

After entry of the final judgments, the debtors filed motions for reciprocal attorney's fees pursuant to section 57.105(7). The motions referenced the provisions of the respective credit contracts providing for the payment of attorney's fees and costs for collection of the account in the event of default. Portfolio opposed the requests for attorney's fees on several grounds, including that the credit contracts did not apply since its complaints were based on the theory of "account stated," not breach of contract.

The trial court initially agreed with the debtors regarding their entitlement to attorney's fees, concluding that because there would be no consumer debt but for the credit contracts, the extension of credit and ultimate collection of the debts are inextricably intertwined and cannot be separated. After an evidentiary hearing, the court ordered Portfolio to pay attorney's fees and costs of $51,046.50 in Mr. Ham's case and $53,570.00 in Ms. Foxhall's case.

Portfolio moved for a new trial with respect to the debtors' entitlement to attorney's fees based on an intervening appellate decision from the Escambia County Circuit Court, Portfolio Recovery Associates, LLC v. Gruenwald , No. 2016 AP 000024 (Fla. 1st Cir. Ct. Apr. 21, 2017). In Gruenwald , the First Circuit held that section 57.105(7) does not apply in a case in which a creditor proceeds under an account stated cause of action independent of any written credit card agreement the creditor has with a debtor. Id. at *3-4. Citing Gruenwald as binding precedent, the county court granted the motions for new trial and reversed its judgments for attorney's fees and costs. Recognizing the conflicting judicial decisions on the issue and the significance of its ruling, the court certified the following question of great public importance to this Court:

IS AN "ACCOUNT STATED" CAUSE OF ACTION BROUGHT BY AN ASSIGNEE SEEKING TO COLLECT A CREDIT CARD DEBT ARISING FROM A WRITTEN CREDIT CARD AGREEMENT BETWEEN THE DEFENDANT DEBTOR AND THE ASSIGNOR, WHICH INCLUDES A UNILATERAL ATTORNEY'S FEE PROVISION, AN ACTION TO ENFORCE A CONTRACT, SUCH THAT THE PREVAILING PARTY IS ENTITLED TO AN AWARD OF ATTORNEY'S FEES UNDER § 57.105(7), FLORIDA STATUTES, WHERE A PORTION OF THE DEBT INCLUDES LATE FEES AND FINANCE CHARGES ARISING OUT OF THAT WRITTEN AGREEMENT?

We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(4)(A) and 9.160.

Analysis

It is well settled that the prevailing party in litigation is not entitled to recover attorney's fees unless there is a statutory or contractual basis for the award. Price v. Tyler , 890 So.2d 246, 250 (Fla. 2004) ; see also State Farm Fire & Cas. Co. v. Palma , 629 So.2d 830, 832 (Fla. 1993) ("This Court has followed the 'American Rule' that attorney's fees may be awarded by a court only when authorized by statute or by agreement of the parties."). In these cases, the debtors sought attorney's fees under the unilateral fee provisions in their credit contracts, which they contend were made reciprocal to them under section 57.105(7). Since resolution of this case rests on the interpretation of a statute, our review is de novo. Lopez v. Hall , 233 So.3d 451, 453 (Fla. 2018).

Section 57.105(7) provides as follows:

If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

"The purpose behind section 57.105(7) is to provide mutuality of attorney's fees as a remedy in contract cases. The statute is designed to even the playing field, not expand it beyond the terms of the agreement." Fla. Hurricane Prot. & Awning, Inc. v. Pastina , 43 So.3d 893, 895 (Fla. 4th DCA 2010) (citations and internal quotation marks omitted). Thus, we must examine the nature of Portfolio's action against the debtors to determine whether the attorney's fees provision in the credit contracts was triggered.

Portfolio elected to file a one-count complaint against each of the debtors, seeking a balance owed from account statements rendered to them as a result of unpaid credit card debt. Florida courts have long recognized a cause of action for account stated, which requires (1) an agreement between the parties as to the amount owed, (2) an agreement that the amount owed was due, and (3) an express or implicit promise to pay that amount. Everett v. Webb Furniture Co. , 98 Fla. 780, 124 So. 278, 279 (1929). An action for "account stated is based on 'the agreement of the parties to pay the amount due upon the accounting, and not any written instrument.' " Farley v. Chase Bank, U.S.A., 37 So.3d 936, 937 (Fla. 4th DCA 2010) (quoting Whittington v. Stanton , 63 Fla. 311, 58 So. 489, 491 (1912) ). Therefore, "it is not necessary, in order to support a count upon account stated, to show the nature of the original debt, or to prove the specific items constituting the account." Id. (quoting Daytona Bridge Co. v. Bond , 47 Fla. 136, 36 So. 445, 447 (1904) ). Simply put, an action for account stated is based on a new promise to pay that is separately enforceable without regard to any written contract from which the debt may have originated.

Here, the essential allegations of Portfolio's complaints against the debtors are that (1) the debtors had business relations with the Bank, (2) they obtained and used their respective credit cards to make purchases resulting in unpaid balances, and (3) the Bank rendered billing statements to them that were not objected to within a reasonable time. Portfolio did not reference or attach the credit contracts to the complaints, but instead attached monthly billing statements.

Because the action framed by Portfolio in these cases did not rely on the credit contracts containing the unilateral fee provision, we conclude that the debtors are not entitled to reciprocal fees under section 57.105(7) by virtue of those contracts. To rule otherwise would undermine Portfolio's ability to choose its cause of action. See Feinberg v. Naile , 561 So.2d 1307, 1308 (Fla. 3d DCA 1990) ("A plaintiff is not guaranteed success in the choice of remedies, only an opportunity to proceed under a theory which has been pled."). While Portfolio could have brought a claim for enforcement of the credit contracts, it elected not to do so and instead chose to pursue an account stated theory. As a result, had Portfolio prevailed at the trial level, it would not have been entitled to fees under the credit contracts either.

In so holding, we have not overlooked the debtors' argument that the credit contracts are inextricably intertwined with the account stated claims because the account stated claims would not exist but for the credit contracts. Portfolio's claim, they reason, is therefore an action "with respect to the contract" under section 57.105(7). They rely primarily on the Florida Supreme Court's decision in Caufield v. Cantele , 837 So.2d 371, 378 (Fla. 2002), for support. Caufield involved a suit for fraudulent misrepresentation related to a contract for the sale of a mobile home park. The supreme court held that because the tort would not have occurred but for the contract, "the existence of the contract and the subsequent misrepresentation ... [were] inextricably intertwined." Id. at 379. The court explained that the tort claim arose from a party's failure "to carry out its contractual duty to reveal defects in the property," and no claim would have existed but for the contract. Id. Section 57.105(7) was not at issue because the contract provided a mutual provision for attorney's fees.

We distinguish this case from Caufield because the actions for accounts stated were distinct from, and not inextricably intertwined with, the credit contracts. Portfolio pled a cause of action for account stated that was based not on the credit contracts, but rather on a separately enforceable legal agreement that arose from the debtors' implied promises to pay on an accounting rendered by the Bank. The tort claim in Caufield required proving the existence and the breach of the contract. Id. An account stated claim, on the other hand, exists independent of the underlying contract, requires no evidence of breach of the contract, and can exist in the absence of any contract at all.

The facts of this case are more analogous to the facts in Tylinski v. Klein Automotive, Inc. , 90 So.3d 870 (Fla. 3d DCA 2012). In that case, the Tylinskis entered into two contracts with a car dealership for the purchase of a vehicle. One contract was for the sale of the vehicle ("ROC") and the other was for its financing ("RISC"). Id. at 871. Only the RISC contained an attorney's fees provision. Id. at 872. The dealership sued for breach of the ROC, and the Tylinskis prevailed. Id. The Tylinskis then moved for attorney's fees based on section 57.105(7), arguing that both contracts were relevant because the sale would not have existed but for the financing. Id. The Third District affirmed the denial of fees, emphasizing the dealership's decision to proceed only under the ROC:

We understand the Tylinskis' argument that, but for the financial commitment reflected in the RISC, the dealership would not have allowed them to drive the car off the lot. Nevertheless, the dealership sought recovery under the ROC, not the RISC; there is no contractual avenue for recovering attorney's fees based on the ROC, and the Tylinskis did not plead any statutory basis for recovering attorney's fees other than § 57.105(7).

Id. at 872 (footnote omitted).

The same reasoning applies here. Although the debtors would not have credit card debt but for their contracts with the Bank, Portfolio did not sue under the credit contracts. It instead proceeded under an account stated cause of action that was not dependent on a contract. Accordingly, "there is no contractual avenue for recovering attorney's fees." See id.

Finally, the certified question suggests the argument that because Portfolio sued for amounts that included previously accrued late fees and interest, the credit contracts are inextricably intertwined with Portfolio's claims, even if framed as account stated. This argument misstates the nature of a cause of action for account stated. The elements of a claim for account stated required Portfolio to show it had a business relationship with the debtor, it sent a bill to the debtor, and the debtor expressed or implied agreement to the amount owed. Whether all or part of the debt arises from terms of a written agreement is irrelevant to the cause of action. The claim stems from an agreement to pay an amount due upon an accounting, not the individual items constituting the account balance. See Farley , 37 So.3d at 937 ("An itemized statement of underlying charges is not required to establish a claim for an account stated.").

For these reasons, we affirm the trial court's order denying attorney's fees, answer the certified question in the negative, and certify conflict with the Second District's decision in Bushnell v. Portfolio Recovery Associates, LLC , 255 So.3d 473, 2018 WL 4374251 (Fla. 2d DCA Sept. 14, 2018).

Wetherell, Ray, and Osterhaus, JJ., concur.

      Portfolio sought recovery of $819.74 from Mr. Ham and $3,934.69 from Ms. Foxhall.

      The circuit court's appellate decision in Gruenwald is currently pending in this Court on certiorari review in Case No. 1D17-1914. Based on our review of the docket in that case, it appears that the party's name is correctly spelled "Grunewald."

      Circuit court appellate decisions are binding on all county courts within that circuit. Fieselman v. State , 566 So.2d 768, 770 (Fla. 1990).

      Though this case is one of first impression in this Court, several courts have previously ruled on this issue. The Second District, in agreement with several circuit courts sitting in their appellate capacity, recently held that section 57.105(7) provides for attorney's fees in an account stated action when the contract includes a unilateral provision for attorney's fees. See Bushnell v. Portfolio Recovery Assocs., LLC , 255 So.3d 473, 2018 WL 4374251 (Fla. 2d DCA Sept. 14, 2018) ("The credit card contract and the account stated cause of action are ... inextricably intertwined such that the account stated cause of action is an action 'with respect to the contract' under section 57.105(7)."); Portfolio Recovery Assocs., LLC, v. York , 25 Fla. L. Weekly Supp. 4a (Fla. 10th Cir. Ct. Mar. 16, 2017) ("[B]ut for the credit agreement there would not be credit given in order to have a debt (Account Stated) in the first place."); Portfolio Recovery Assocs., LLC, v. Benjamin , 24 Fla. L. Weekly Supp. 96a (Fla. 9th Cir. Ct. Apr. 18, 2016) ("[T]he lawsuit encompassed the situation that the attorney's fee provision contemplated."). However, several circuit courts, when confronted by the same question, have held the opposite. See Portfolio Recovery Assocs., LLC v. Gruenwald , 2016 AP 000024 (Fla. 1st Cir. Ct. Apr. 21, 2017) (holding that an account stated cause of action is "independent of the original credit contract" and not an action "with respect to the contract" subject to section 57.105(7) ); Balog v. CACH, LLC , 24 Fla. L. Weekly Supp. 474a (Fla. 6th Cir. Ct. Sept. 20, 2016) ("[I]f CACH had prevailed at the trial level, it would not have been entitled to attorney's fees; therefore, awarding attorney's fees under the reciprocity provision of section 57.105(7)... would be contrary to legislative intent."); Pujol v. Capital One Bank (USA) , 23 Fla. L. Weekly Supp. 517a (Fla. 15th Cir. Ct. Sept. 21, 2015) (defining an account stated cause of action as "a separately enforceable legal agreement"); Portfolio Recovery Assocs., LLC v. Cordero , 23 Fla. L. Weekly Supp. 392b (Fla. 7th Cir. Ct. July 23, 2015) ("[A]ttorneys' fees were not recoverable under Section 57.105(7) because Portfolio's initial Complaint was not based on a contract, even though there was an underlying credit card agreement between the parties that did provide for the recovery of fees.").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jamall MITCHELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2370
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Carlos A. Ivanor, of The Ivanor Law Firm, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jamall Mitchell appeals the final order entered by the postconviction court denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Mitchell alleged a number of claims for relief, including one based on newly discovered evidence in the form of a recantation by a trial witness. The postconviction court summarily denied this claim, finding that the recantation was not credible and was contradicted by other evidence at trial. We reverse, concluding that an evidentiary hearing on this claim is necessary.

At trial, the State presented several witnesses, including two co-defendants, who testified that Mitchell committed the bank robbery. After deliberations, the jury found Mitchell guilty of robbery with a firearm. Over four years later, one of the co-defendants swore in an affidavit that Mitchell was not guilty and he only testified against him to receive a lighter sentence on his own charges. Mitchell relied on that affidavit to support the newly discovered evidence claim, which the postconviction court summarily denied.

A postconviction court's decision to summarily deny a claim based on newly discovered evidence is subject to de novo review. Nordelo v. State , 93 So.3d 178, 184 (Fla. 2012). To be upheld on review, the claim must be facially invalid or conclusively refuted by the record. McLin v. State , 827. So. 2d 948, 954 (Fla. 2002) (quoting Foster v. State , 810 So.2d 910, 914 (Fla. 2002) ).

Florida courts recognize that "recantations are 'exceedingly unreliable.' " Archer v. State , 934 So.2d 1187, 1196 (Fla. 2006). When a defendant alleges new evidence in the form of recanted testimony, a new trial will be granted only if the postconviction court finds the evidence credible and "the witness's testimony will change to such an extent as to render probable a different verdict." Robinson v. State , 736 So.2d 93, 93 (Fla. 4th DCA 1999) (quoting Armstrong v. State , 642 So.2d 730, 735 (Fla. 1994) ). An evidentiary hearing is generally required to evaluate the veracity of the recanting witness. Id. ; see also Utile v. State , 235 So.3d 1045 (Fla. 5th DCA 2018).

Here, the witness's affidavit offered potentially exculpatory evidence directly related to Mitchell's guilt. The postconviction court determined the witness's credibility and weighed the evidentiary conflicts based upon the affidavit alone. As the affidavit was not "inherently incredible" nor "obviously immaterial," we conclude that the postconviction court improperly made these determinations without the benefit of an evidentiary hearing. See Davis v. State , 26 So.3d 519, 526 (Fla. 2009).

Accordingly, we reverse the summary denial of the newly discovered evidence claim and remand for the postconviction court to hold an evidentiary hearing on this claim. We affirm the final order in all other respects.

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN, C.J., HARRIS and GROSSHANS, JJ., concur.


author: LAMBERT, J.

text:
    Joshuwa HODGES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1671
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Joshuwa Hodges, Mayo, pro se.
    No Appearance for Appellee.
   LAMBERT, J.

Joshuwa Hodges appeals an order summarily denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds one, two, and three of the motion without further discussion. For the following reasons, we reverse that part of the order that denied ground four and remand for further proceedings.

Following a jury trial, Hodges was convicted of robbery with a firearm and was sentenced by the trial court to serve fifteen years in prison. On direct appeal, we affirmed Hodges's conviction and sentence without opinion. Hodges v. State , 225 So.3d 833 (Fla. 5th DCA 2017).

In ground four of his sworn postconviction motion, Hodges alleged that his trial counsel provided ineffective assistance when he "misadvised" Hodges not to testify at trial. Hodges asserted that his testimony would have refuted the State's theory of his guilt "in this circumstantial case," and he set forth in his motion the specific facts he would have provided at trial that he claims would have "explained the lack of physical evidence" that "tie[d] him to the crime." In summarily denying this ground, the postconviction court attached to its order a copy of the transcript of the colloquy between the trial court and Hodges about his decision not to testify. The postconviction court concluded that Hodges's decision to not testify was made freely and voluntarily and that prior to making this decision, Hodges had been informed that the jury could be made aware of his prior felony conviction, but not the specifics of the conviction, if he testified.

Initially, the postconviction court correctly determined that the record conclusively established that Hodges freely and voluntarily waived his right to testify. However, the dispositive question left unanswered here is whether counsel's advice to Hodges not to testify, even though voluntarily followed, was nevertheless deficient because no reasonable attorney would have discouraged him from testifying. See Lott v. State , 931 So.2d 807, 819 (Fla. 2006) ; Sutton v. State , 200 So.3d 235, 236 (Fla. 5th DCA 2016) (citing Simon v. State , 47 So.3d 883, 885 (Fla. 3d DCA 2010) ).

As stated, Hodges alleged that his counsel's advice that he not take the stand was deficient because his testimony was necessary to refute the State's circumstantial evidence that Hodges committed the robbery. Hodges further alleged that he was prejudiced by counsel's advice because he likely would have been acquitted if he had testified, even though the jury may have learned of his prior felony conviction. The court records attached to the denial order do not conclusively refute whether, under the circumstances, a reasonable attorney would have discouraged or advised Hodges not to testify, nor does it appear that the postconviction court addressed this question.

"[T]o uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record." Lamb v. State , 202 So.3d 118, 120 (Fla. 5th DCA 2016) (quoting Foster v. State , 810 So.2d 910, 914 (Fla. 2002) ). On remand, the court shall either attach additional portions of the record that conclusively negate ground four or hold an evidentiary hearing. See Harris v. State , 239 So.3d 791, 791 (Fla. 5th DCA 2018) (citing Simon , 47 So.3d at 886 ) (noting that an evidentiary hearing is usually necessary to determine whether counsel's tactical decision in advising a defendant not to testify is deficient).

AFFIRMED in part; REVERSED in part; REMANDED.

EDWARDS and EISNAUGLE, JJ., concur.


author: ORFINGER, J.

text:
    STATE of Florida, Petitioner, v. Edward Scott FRANK, Respondent.
    Case No. 5D18-1374
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Petitioner.
    Zachary E. Stoumbos, of Zachary E. Stoumbos, P.A., Orlando, for Respondent.
   ORFINGER, J.

The State of Florida seeks certiorari review of the trial court's order authorizing Edward Scott Frank to enter into a pretrial intervention ("PTI") program. The State objects to Frank's court-ordered placement in the program without its consent and argues that section 948.08(6)(a), Florida Statutes (2018), does not apply to Frank because although he was charged with committing one of the enumerated offenses, he was neither identified as having a substance abuse problem nor admitted to a substance abuse education and treatment program. We agree and quash the order.

Frank was charged with possession of cocaine, possession of drug paraphernalia and petit theft. Frank motioned the trial court for entry into a PTI program pursuant to section 948.08(6)(a). His motion stated that Frank had been evaluated for alcohol and substance abuse, but the examiner determined that no treatment was necessary. Thereafter, without notice to, or consent from, the State, the trial court entered an order granting Frank's motion and placing him in a self-supervised PTI program.

Section 948.08(2), Florida Statutes (2018), provides that PTI is available to "[a]ny first offender ... who is charged with any misdemeanor or felony of the third degree ... on the approval of the administrator of the program and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing of the offender." Thus, entry into a PTI program under section 948.08(2) requires the State's consent.

However, section 948.08(6)(a) allows a defendant to be placed into a pretrial substance abuse education and treatment intervention program without the State's consent when the defendant

is charged with a nonviolent felony and is identified as having a substance abuse problem or is charged with a felony of the second or third degree for purchase or possession of a controlled substance under chapter 893, ... has not been charged with a crime involving violence ... and ... has not previously been convicted of a felony....

§ 948.08(6)(a), Fla. Stat. (2018) ; see King v. Nelson, 746 So.2d 1217, 1218 (Fla. 5th DCA 1999) (holding that if defendant meets requirements under section 948.08(6)(a), he or she may be admitted to pretrial substance abuse and treatment intervention program upon motion of party or court). Entry into a PTI program pursuant to section 948.08(6)(a) requires participation in a substance abuse education intervention program, which may include a treatment-based drug court program, for not less than one year. § 948.08(6)(a), Fla. Stat. (2018).

When the court places a defendant into a PTI program under section 948.08(2) over the State's objection, the court acts in excess of its authority and certiorari relief is proper. State v. Espinoza, 42 So.3d 895, 896 (Fla. 5th DCA 2010) ; State v. Pugh, 42 So.3d 343, 344 (Fla. 5th DCA 2010). Similarly, when the court places a defendant into a PTI program under section 948.08(6)(a), but, as here, the defendant is ineligible, certiorari relief is proper.

Frank could not be ordered into a PTI program under section 948.08(2) because the State refused to consent. Likewise, Frank could not be ordered into a pretrial substance abuse educational treatment program under section 948.08(6)(a) because he was not ordered into an approved program for at least one year. Certiorari relief is warranted. See Espinoza, 42 So.3d at 896 ; Pugh, 42 So.3d at 344.

PETITION GRANTED; ORDER QUASHED.

TORPY and EISNAUGLE, JJ., concur.


text:
    Deontrez Levon KITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-5700
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Valarie Linnen, Atlantic Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this direct appeal from his conviction and sentence for first-degree felony murder and armed burglary, Appellant claims that the trial court abused its discretion by denying his request for a jury instruction on the independent act doctrine. We disagree and affirm.

During its case-in-chief, the State presented testimony that Appellant and three cofelons went to the victim's apartment with firearms to rob the victim of drugs and money. The victim and his fiancée were taken to the living room where Appellant threatened to shoot the victim's fiancée if the victim did not disclose the location of a box containing drugs. Appellant also struck the victim in the head with a gun. After ransacking the apartment for about an hour in a search for drugs and money, the intruders discussed taking the victim with them and trying to get a ransom. Appellant told the victim's fiancée that they were going to kidnap the victim for ransom and warned her not to call the police. The victim was transported from the scene in the trunk of the victim's car. While Appellant was following behind the victim's car, the victim escaped from the trunk and was shot and killed by one of Appellant's cofelons.

At the charge conference, defense counsel requested a jury instruction on the independent act doctrine, which was denied by the trial court. The jury returned a verdict finding Appellant guilty as charged with a specific finding that Appellant actually possessed a firearm. The trial court adjudicated Appellant guilty and imposed concurrent life sentences. This appeal followed.

"The 'independent act' doctrine arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, 'which fall outside of, and are foreign to, the common design of the original collaboration.' " Ray v. State , 755 So.2d 604, 609 (Fla. 2000) (quoting Ward v. State , 568 So.2d 452, 453 (Fla. 3d DCA 1990) ). "An independent act instruction is appropriate only when the actions of the cofelon who allegedly acted outside the scope of the original plan were not foreseeable based on the actions a defendant set in motion ." Rodriguez v. State , 147 So.3d 1066, 1068 (Fla. 3d DCA 2014) (emphasis in original). Thus, "where ... the defendant was a willing participant in the underlying felony and the murder resulted from forces which they set in motion, no independent act instruction is appropriate." Ray , 755 So.2d at 609.

Appellant claims that the trial court abused its discretion by denying his request for a jury instruction on the independent act doctrine because the murder of the victim was outside the common plan to rob and then kidnap the victim for ransom. However, it was unquestionably foreseeable that someone could be shot or killed during the events set in motion by Appellant. In particular, it was foreseeable that the victim might flee in the course of the kidnapping and be shot and killed in order to prevent him from contacting the police. See Jones v. State , 804 So.2d 551, 552 (Fla. 3d DCA 2002) ("A killing in the face of either verbal or physical resistance by a victim is properly viewed as being within the original criminal design.").

Accordingly, the trial court did not abuse its discretion by concluding that Appellant was not entitled to an independent act jury instruction. See Parker v. State , 458 So.2d 750, 752-53 (Fla. 1984) (holding that the trial court did not err in failing to give a requested instruction on the independent act of a cofelon because the victim's murder was a natural and foreseeable culmination of the motivations for the original kidnapping where Parker, at the very least, was aware that the victim was being driven to woods against his will as part of the ongoing terrorization for failure to pay his drug debt);

Rodriguez , 147 So.3d at 1068-69 (holding that Rodriguez was not entitled to an independent act jury instruction where Rodriguez orchestrated the entire sequence of events by going to the victim's house armed with a firearm and bringing three cofelons, who he knew would be armed with firearms, to assist him in confronting and "scaring" the victim, and it was hardly unforeseeable that violence would occur or that someone could be shot or killed during this armed confrontation); Cannon v. State , 18 So.3d 562, 564 (Fla. 1st DCA 2009) (holding that Cannon was not entitled to a jury instruction on the independent act doctrine at his trial for first-degree murder and armed robbery where Cannon helped plan the armed robbery and the murder of the resisting victim was the foreseeable result of the forces set in motion by Cannon and his co-defendant); Roberts v. State , 4 So.3d 1261, 1264-65 (Fla. 5th DCA 2009) (holding that Roberts was not entitled to a jury instruction on the independent act doctrine at his trial for murder, robbery, and kidnapping where Roberts knew of and participated in the robbery, knew that a co-defendant was armed and shot a victim, and put the kidnapping victim in a stolen getaway van).

AFFIRMED.

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


text:
    Kelvin D. MADISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-741
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markam, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Kelvin Madison was convicted of capital sexual battery, lewd or lascivious molestation, attempted capital sexual battery, and false imprisonment. On appeal, he argues that inadmissible evidence-his refusal to submit a DNA sample at an interview before he was arrested-was erroneously admitted. We affirm Madison's convictions because the defense opened the door for the admission of this evidence while cross-examining the investigator.

I.

At trial, the victim's mother testified that the victim was having regular menstrual cycles when she was ten years old, but missed them for three straight months. The mother had the victim urinate in a cup and bought two pregnancy tests, both of which returned positive. The mother asked the victim's godmother, who was in a relationship with Madison, to speak to the victim. When the victim identified Madison, the three went to the police station to file reports. One day soon after reporting the incident, the victim woke up in intense pain and bleeding heavily, and the mother brought her to the emergency room believing she might have suffered a miscarriage. The doctors did not want to put the young child through further examinations to determine if she had ever had sex. The godmother also testified that the victim identified Madison, adding that the two had spent a fair amount of time alone together for various reasons.

The victim testified that she considered Madison to be a godfather and loved him, but something bad had happened. She testified that she was in a bedroom at her godmother's house one day when Madison came in, took her clothes off, took his own clothes off, touched his penis to her vagina, touched her breasts, attempted to touch his penis with her mouth, and prevented her from leaving the room, warning he would hurt her if she told anyone what occurred.

Dr. Sarmed Ashoo, the physician who saw the victim when she was brought to the emergency room, could not tell if the victim had been pregnant. The victim's blood tested negative for the HCG pregnancy hormone, which would likely be in the blood of someone two months pregnant. However, Dr. Ashoo also testified that the victim could have tested negative for HCG if she had just had a miscarriage, and admitted to never before having a potentially pregnant eleven-year old as a patient.

The State also presented the testimony of Paul Osborn, an investigator in the special victims unit of the Tallahassee Police Department, who observed the victim's interview with the Child Protection Team and contacted Madison for an interview. A portion of the recorded interview was played where Madison stated that he was shocked that the victim was pregnant and did not know who was responsible. On cross-examination, Investigator Osborn explained that, although he collected evidence from the victim's home, including the underwear she wore on the night of the presumed miscarriage, none of the evidence collected contained fetal tissue relevant for DNA testing. Madison extensively questioned Investigator Osborn about his failure to secure additional evidence, particularly DNA evidence, additionally positing the following:

• So really what we have here, you have an abso - you have no DNA evidence. You did the investigation, right?
• So there's no DNA evidence from anything. You don't know whether the child or the person or the woman has had sex or not. So really what you have - the only thing you have is what the girl said.
• Do you have any other evidence besides the child's word that this guy raped her?

At a subsequent sidebar conference, the State moved to admit evidence that Madison refused to submit a DNA sample during his interview with Investigator Osborn-evidence the trial court ruled inadmissible prior to trial-arguing that Madison opened the door to such evidence. The trial court agreed that Madison opened the door and, over his objection, allowed the State to introduce the rest of Investigator Osborn's interview where he told Madison that they would be able to determine the father through a DNA comparison and Madison refused to provide a DNA sample.

II.

We review a trial court's ruling on evidentiary issues for abuse of discretion. See Brunson v. State , 31 So.3d 926, 928 (Fla. 1st DCA 2010). "Opening the door" is an evidentiary concept that "allows the admission of otherwise inadmissible testimony to 'qualify, explain, or limit' testimony or evidence previously admitted," is premised on fairness, and may be used to "negate the misleading impression given by defense counsel's" questioning. Rodriguez v. State , 753 So.2d 29, 42 (Fla. 2000) (quoting Tompkins v. State , 502 So.2d 415, 419 (Fla. 1986) ). This concept applies "when one party's evidence presents 'an incomplete picture' and fairness demands the opposing party be allowed" to complete it. Brunson , 31 So.3d at 928 (quoting Hudson v. State , 992 So.2d 96, 110 (Fla. 2008) ).

We find that the questions related to Investigator Osborn's investigation opened the door to the evidence that Madison refused to provide a sample of DNA. In Dennis v. State , 817 So.2d 741, 751 (Fla. 2002), the police interviewed a witness who stated that he lent the defendant the shotgun used in the murders and threw out the gun when the defendant returned it afterwards. Cross-examining the detective who conducted the interview, the defense "focused on the failure of the police to pursue" this individual, who the defense argues was the prime suspect, attempting "to demonstrate that the police essentially 'chose' to believe" the witness. Id. at 751-52. The trial court permitted the investigator to rely on hearsay testimony to respond to this accusation. Id. at 752. The Florida Supreme Court held that the cross-examination opened the door for the State to rebut "the defense's implication that the officers' investigation was less than thorough, relying solely on [the witness's] word to arrest the defendant." Id. at 753.

Similarly, Madison suggested that Investigator Osborn was less than thorough ("You did the investigation, right?") and the arrest relied solely on the victim's words ("So really what you have - the only thing you have is what the girl said," and "Do you have any other evidence besides the child's word that this guy raped her?"). Madison's refusal to submit a DNA sample, which might easily rule him out as the individual who impregnated a ten-year old, could be considered suspicious and tending to corroborate the victim's allegations and identification of Madison as the perpetrator. In this context, Madison's cross-examination asking whether Investigator Osborn had any evidence besides the victim's allegations, while knowing he was not permitted to mention Madison's own refusal to provide DNA, opened the door for the State to admit the rest of the recorded interview. We find no abuse of discretion in the trial court's ruling.

AFFIRMED .

B.L. Thomas, C.J., and Winokur, J., and Ketchel, Terrance R., Associate Judge, concur.

      Madison also argues that the trial court erred in granting his motion for judgment of acquittal as to the attempt charge and that a new sentencing hearing was required. We affirm these arguments without comment.

      Our holding on this issue renders superfluous any discussion as to whether the trial court's initial exclusion-based on Menna v. State , 846 So.2d 502 (Fla. 2003), and Allen v. State , 192 So.3d 554, 558 (Fla. 4th DCA 2016) -was correct.


text:
    Catherine RIZK, Appellant, v. Joseph RIZK, Appellee.
    No. 3D17-1049
    District Court of Appeal of Florida, Third District.
    Opinion filed December 4, 2018.
    Kopelowitz Ostrow P.A., and Kristen Lake Cardoso and Jan Douglas Atlas (Fort Lauderdale), for appellant.
    Ader & Hitt, P.A., and Robert A. Ader and Elizabeth B. Hitt, for appellee.
    Before SUAREZ, SCALES, and LUCK, JJ.
   PER CURIAM.

Appellant Catherine Rizk appeals a summary judgment entered by the probate court in favor of Appellee Joseph Rizk. The challenged order determined that, by operation of law, decedent George Rizk's February 1, 2013 will revoked a prior will dated February 12, 1986.

The decedent, the parties' brother, was a native of Haiti. He died in April of 2013. Three and a half months before his death, the decedent prepared a will in accordance with Haitian law, which authorizes a testator to dictate the will to a Haitian notary who must reduce it to writing and read it back to the testator. The will is then executed by the testator, the notary and four witnesses. The notary then registers the will with the Haitian Tax Office and maintains the original in his or her office.

Appellant is the personal representative named in the decedent's 1986 will, and is a beneficiary of both the 1986 will and the 2013 will. In opposition to Appellee's cross motion for summary judgment, Appellant maintained that there exist issues of material fact as to the validity of the 2013 will. Specifically, Appellant argued that decedent did not execute the will on February 1, 2013, because he was not in Haiti on that day; and further, that three of the four witnesses did not sign the 2013 will on that date as well.

In support of his motion for summary judgment, Appellee, inter alia , provided affidavits by the notary and a Haitian attorney attesting to the 2013 will's validity under Haitian law. In the Haitian attorney's affidavit, she states that, to her knowledge, no court action has been filed in Haiti to contest the 2013 will's validity, and therefore, it remains valid under Haitian law. It appears from the record that not only did Appellant not challenge the 2013 will's validity in Haiti, but that she already is receiving the benefits of the 2013 will as one of its beneficiaries.

Section 732.502(2) provides, in pertinent part: "Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida ... is valid as a will in this state if valid under the laws of the state or country where the will was executed." § 732.502(2), Fla. Stat. (2013). Appellee provided sufficient and undisputed evidence at summary judgment that the 2013 will is valid in Haiti.

Affirmed.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

      Appellant initially filed a motion for summary judgment, which she withdrew at the summary judgment hearing on January 30, 2017. One argument abandoned by Appellant was that the 2013 will was a foreign nuncupative will - a will dictated by a testator, typically on the deathbed - which is not valid in Florida, per section 732.502(2) of the Florida Statutes. By definition, a nuncupative will is unsigned by the testator, which distinguishes a nuncupative will from the signed 2013 notarial will at issue in this case. See Malleiro v. Mori, 182 So.3d 5, 8-9 (Fla. 3d DCA 2015).


author: LOGUE, J.

text:
    Francisco RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2339
    District Court of Appeal of Florida, Third District.
    Opinion filed December 4, 2018
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and LOGUE and SCALES, JJ.
   LOGUE, J.

This case returns to us on remand for reconsideration in light of the Supreme Court of Florida's decision in Rodriguez v. State, 248 So.3d 1085 (Fla. 2018) which directed us to apply the harmless error standard of State v. DiGuilio, 491 So.2d 1129 (Fla. 1986) rather than the harmless error standard of section 59.041, Florida Statutes.

Facts.

Appellant Francisco Rodriguez appeals his conviction of burglary of an occupied dwelling and assault. At the request of a pregnant woman named Coral Negron, Rodriguez went to the apartment of Negron's neighbors to caution them about Negron's complaints of loud noise and harassment. In the ensuing confrontation, the neighbors' front door was knocked down, Rodriguez entered the apartment, a fight occurred, and a handgun was discharged. Although these facts are not in dispute, virtually all other facts regarding the incident were hotly contested at the trial where Rodriguez, the neighbors, a neighbors' friend who was present, and other witnesses gave evidence.

The neighbors testified Rodriguez kicked down the door, entered the apartment, pointed a gun at them, beat them, and discharged the gun during the resulting melee. In contrast, Rodriguez testified he politely asked the neighbors to leave Negron alone, heard the neighbors threaten Negron, accidently knocked down only part of the door, was yanked into the apartment as he was turning away to leave, was attacked, and that a friend of the neighbors in the apartment possessed the gun and discharged it as part of a confused scuffle.

Although Negron precipitated the incident, Negron did not testify at trial. Nevertheless, over objection, out-of-court statements by Negron were admitted into evidence. In pertinent part, the objected-to testimony consisted of (1) one neighbor's statement that, on the day before the incident, Negron threatened to send someone to "whoop his a**" or "f*** him up"; and (2) a witness's statement that he heard Negron tell one neighbor on the day before the incident, "I'm going to get somebody to put a cap in [your] a**." In its closing, the Assistant State Attorney expressly cited Negron's hearsay statements regarding getting someone to put a cap in the neighbor two times contending: "[t]his is the evidence that we have of the Defendant's intent to commit an assault inside [the neighbor's] apartment."

Rodriguez was charged with armed burglary of an occupied dwelling, aggravated assault or battery with a deadly weapon, discharge of a firearm, and unlawful possession of a firearm by a convicted felon. The jury found Rodriguez guilty of burglary of an occupied dwelling and assault, but it specifically found that Rodriguez did not: (1) possess, use, or discharge a firearm, or (2) commit a battery. Rodriguez was sentenced to 72 months in prison, followed by ten years' probation. This appeal followed.

Analysis.

a. "Then-Existing" State of Mind Exception

Rodriguez challenges the admission of Negron's hearsay statements identified above. The State argues that Negron's out-of-court statements are admissible under section 90.803(3), Florida Statutes, to prove the "then-existing" state of mind of the declarant. While we review the admission of evidence for "a clear abuse of discretion," Ray v. State, 755 So.2d 604, 610 (Fla. 2000), we are unpersuaded by the State's argument.

The first problem with this argument is that, as the quote from the State's closing argument indicated, the State used Negron's statement to prove Rodriguez's state of mind. It is well-settled, however, that this hearsay exception "applies only to the declarant's state of mind, not to someone else's state of mind." Suarez v. State, 879 So.2d 1251, 1253 (Fla. 3d DCA 2004) (citing Van Zant v. State, 372 So.2d 502, 504 (Fla. 1st DCA 1979) ); see also Brooks v. State, 787 So.2d 765, 772 (Fla. 2001) (noting that "statements of intent can ordinarily be used to prove the subsequent acts of the declarant, not a defendant"); Woods v. State, 733 So.2d 980, 987 (Fla. 1999) ; Sybers v. State, 841 So.2d 532, 545 (Fla. 1st DCA 2003) ; Bailey v. State, 419 So.2d 721 (Fla. 1st DCA 1982). The exception is "inapplicable to situations where the declarant's state of mind is not at issue." Suarez, 879 So.2d at 1253 (citing Usher v. State, 642 So.2d 29, 31 (Fla. 2d DCA 1994) ).

Nevertheless, the State counters that Negron's state of mind was itself relevant under the line of cases recognizing the state of mind of a victim may be relevant. See Huggins v. State, 889 So.2d 743, 748 (2004) (recognizing exceptions to the state-of-mind rule); Brooks, 787 So.2d at 771 (explaining that a victim's state of mind may be relevant to: (1) an element of the crime; (2) an issue in the case where defendant claims self-defense, that the victim committed suicide, or the victim's death was accidental; or (3) when used to rebut a defense raised by defendant ); Woods, 733 So.2d at 988 ; Peede v. State, 474 So.2d 808, 816 (Fla. 1985) ; State v. Bradford, 658 So.2d 572, 574-75 (Fla. 5th DCA 1995). Despite the State's attempt to fit the facts of this case within one of the exceptions to the principles espoused under "then-existing" state of mind exception, none of those limited exceptions apply here. Negron was not the victim of the crimes alleged in this case. While Rodriguez's state of mind was a central issue in the case, Negron's state of mind simply was not.

b. Harmless Error

We next turn to the issue of whether the error of admitting this hearsay was harmless. The Supreme Court of Florida set out the test to be applied in determining whether an error is harmless:

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

DiGuilio, 491 So.2d at 1139 (emphasis added).

The admission of Negron's statements about getting someone to "put a cap" in one of the neighbor's backsides, by itself, might be viewed as harmless under this exacting standard (even though it was featured in the State's closing argument) because the jury found that Rodriguez did not possess a firearm. See Conahan v. State, No. SC18-303, 258 So.3d 1237, 1238-39, 2018 WL 5095164, at *1 (Fla. Oct. 19, 2018) (holding that error to instruct jury in death penalty case that verdict must be unanimous was harmless under DiGuilio standard when jury returned unanimous verdict anyway). However, the scale tips into harmful error with the addition of Negron's statements to a neighbor that she was going to send someone to "whoop his a**" or "f*** him up."

One of the major disputed issues at trial was whether Rodriguez intended to assault the neighbors when he entered their apartment. Rodriguez testified he did not. While there was substantial, even overwhelming evidence to the contrary, a reasonable possibility exists that Negron's hearsay statements were projected by the jury onto Rodriguez and used to conclude Rodriguez had the "intent to commit an assault inside [the neighbor's] apartment" which is exactly what the State argued in its closing. We certainly cannot exclude this possibility beyond a reasonable doubt.

Accordingly, we conclude the State has not met its burden of establishing this error was harmless under the DiGuilio standard.

Reversed.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

      This statute, entitled "Harmless error; effect," provides in pertinent part "[n]o judgment shall be set aside or reversed ... in any cause, civil or criminal... on the ground of ... the improper admission ... of evidence ... unless ... the error complained of has resulted in a miscarriage of justice." § 59.041, Fla. Stat. (emphases added). The Supreme Court has adopted the alternative DiGuilio harmless error standard in both criminal and civil appeals. See Rodriguez, 248 So.3d at 1085-86 ; DiGuilio, 491 So.2d at 1139 ; Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1265 (Fla. 2015).


author: Winokur, J.

text:
    STATE of Florida, Appellant, v. Flem WILLIAMS, Appellee.
    No. 1D17-1581
    District Court of Appeal of Florida, First District.
    December 5, 2018
    Pamela Jo Bondi, Attorney General, Jason Rodriguez, Assistant Attorney General, and Anna Norris, Assistant State Attorney, Tallahassee, for Appellant.
    Andy Thomas, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellee.
    ON MOTION FOR REHEARING OR CLARIFICATION
   Winokur, J.

We deny the State's motion for rehearing and grant its motion for clarification, withdraw our previously-issued opinion and substitute the following revised opinion.

The State appeals the trial court's dismissal of Appellee's probation violation affidavit, arguing that it properly tolled Williams' probationary period pursuant to the version of section 948.06, Florida Statutes in effect at the time of Williams' original probation violation. While the State may be correct that the trial court erred in dismissing the probation violations, it failed to preserve the issue for appellate review. We also reject the State's argument that the jurisdictional issue addressed here can be raised for the first time on appeal. As a result, we affirm.

I.

In 1987, Williams was charged with possession of cocaine and resisting an officer. Williams entered a no-contest plea and the trial court imposed a three-year probationary sentence. The conditions of probation required Williams to pay certain costs.

In 1991, three days before Williams' probationary term was set to expire, the State filed a violation of probation affidavit alleging that Williams failed to pay the costs imposed and a warrant was issued. Williams does not appear to have ever been arrested on this warrant.

Twenty-four years later, Williams was arrested for a domestic-violence related battery in Georgia. In 2015, the State filed an amended probation violation affidavit alleging that, in addition to his failure to pay the costs of probation, Williams violated his probation due to his battery arrest.

A warrant was issued and in 2017, Williams was arrested.

Williams moved to dismiss the probation violation proceedings on the ground that the State failed to properly toll his probation because, pursuant to Mobley v. State , 197 So.3d 572 (Fla. 4th DCA 2016), a warrant cannot toll probation for technical violations. At a hearing on this motion, the State conceded that Mobley required that the affidavit be dismissed, but urged the trial court to "recede" from Mobley because it improperly interpreted section 901.02, Florida Statutes, as it is cited in section 948.06(1), Florida Statutes. The trial court then granted the motion and dismissed Williams' probation violations.

II.

On appeal, the State does not argue that Mobley applied but constituted an improper interpretation of the law. Instead, the State argues that Mobley did not apply because Mobley interpreted a version of section 948.06(1) that did not yet exist when Williams violated his probation, and that at the time Williams violated his probation, tolling occurred upon issuance of a warrant, regardless of whether the violation was technical or substantive. "[T]he specific legal ground upon which a claim is based must be raised at trial and a claim different than that raised below will not be heard on appeal." Rodriguez v. State , 609 So.2d 493, 499 (Fla. 1992). Because the argument raised on appeal is not the same as the one raised to support the objection below, the State did not preserve this issue for appellate review.

III.

The State also claims that this Court can consider the argument because it involves jurisdiction, and jurisdictional issues can be raised for the first time on appeal. We find this argument unavailing here.

It is true that the question of subject-matter jurisdiction may generally be raised for the first time on appeal. See Hoffman v. State , 729 So.2d 421, 422 (Fla. 1st DCA 1999). This is because a court acting beyond its jurisdiction may be committing fundamental error. See Smith v. State , 521 So.2d 106, 108 (Fla. 1988) (recognizing that "[t]he doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application"). The State, however, misapprehends why a jurisdictional argument may implicate fundamental error. It is the lack of subject matter jurisdiction that may be fundamental error and raised for the first time on appeal. See Dep't of Revenue v. Vanamburg , 174 So.3d 640, 642 (Fla. 1st DCA 2015).

In this case, the State is not arguing that the trial court lacked jurisdiction; it is arguing the opposite. The State argues that it properly tolled Williams' probationary period before it expired, and that the trial court erred by finding that the State did not properly toll probation and that the court consequently did not have jurisdiction. The State relies on Tatum v. State , 736 So.2d 1214 (Fla. 1st DCA 1999), to support its position that this jurisdictional issue can be raised for the first time on appeal. The issue in Tatum , however, was that the "trial court lacked jurisdiction to revoke [defendant's] probation ...." 736 So.2d at 1214 (emphasis added). That is precisely why the court found that the issue "may be raised for the first time on appeal" since it involved "a jurisdictional defect." Id. at 1215.

Lack of jurisdiction constitutes fundamental error because a trial court cannot act in excess of its authority, and failure to correct that error "would undermine the integrity of our system of justice." Bain v. State , 730 So.2d 296, 302 (Fla. 2d DCA 1999). Conversely, a trial court's failure to exercise its own authority does not trigger the concerns underpinning the doctrine of fundamental error. Such an error requires preservation before it may be raised on appeal. Therefore, the State may not raise this argument for the first time on appeal.

IV.

The trial court here chose not to exercise jurisdiction which it appears to have had. An argument that the court erred in doing so does not implicate fundamental error and cannot be raised for the first time on appeal. As a result, we are constrained to affirm.

AFFIRMED .

Roberts and Rowe, JJ., concur.

      See also Woods v. State , 879 So.2d 651, 654 (Fla. 5th DCA 2004) (concluding that "lack of jurisdiction may not be cured by consent, it is not subject to waiver and it can be raised at any time, including the first time on direct appeal"); State v. Vesquez , 755 So.2d 674, 677 (Fla. 4th DCA 1999) (finding that "[w]here a court lacks the jurisdiction to take the action under attack on appeal, the case is one involving fundamental error, so that no objection is required in the trial court"); State v. Everett , 496 So.2d 247, 249 (Fla. 3d DCA 1986) (affirming that "lack of subject matter jurisdiction is fundamental error that can be raised at any time"); Page v. State , 376 So.2d 901, 904 (Fla. 2d DCA 1979) (concluding that "[b]ecause lack of subject matter jurisdiction is fundamental error and can be raised at any time, appellant can raise it for the first time on this appeal").


author: LaROSE, Chief Judge.

text:
    Johnny GRAHAM, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1955
    District Court of Appeal of Florida, Second District.
    Opinion filed December 5, 2018.
    Howard L. Dimmig, II, Public Defender, and J. L. "Ray" LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

Johnny Graham, Jr., appeals his judgment and sentences for two counts of capital sexual battery under section 794.011(2)(a), Florida Statutes (2015). Finding no fundamental error, we affirm without comment. See Fleitas v. State, 3 So.3d 351, 355 n.3 (Fla. 3d DCA 2008) (stating that in the absence of a specific and contemporaneous legal objection to allegedly improper bolstering, such an unpreserved claim, on appeal, is subject to a fundamental error analysis). Our affirmance is without prejudice to Mr. Graham's right to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

Affirmed.

VILLANTI and LUCAS, JJ., Concur.


text:
    Thomas E. GRAHAM, Jr., Stanley G. Tate and Anamarie Kelly Stoppa, Appellants, v. FLAMINGO WAY ENTERPRISES, LLC, et al., Appellees.
    Nos. 3D17-1753 & 3D17-2505
    District Court of Appeal of Florida, Third District.
    Opinion filed December 5, 2018
    ADR Miami, LLC, and Juan Ramirez, Jr., Miami, for appellants.
    Bercow Radell Fernandez & Larkin, PLLC, and Thomas H. Robertson ; Gunster, and Angel A. Cortiñas and Jonathan H. Kaskel, Miami, for appellees.
    Before LAGOA, SCALES and LINDSEY, JJ.
   PER CURIAM.

In these consolidated appeals, appellants Stanley G. Tate and Anamarie Kelly Stoppa (case number 3D17-1753) and appellant Thomas Graham (case number 3D17-2505) each appeal separate orders of the trial court denying their respective motions seeking to vacate a September 15, 2016 final judgment entered by the trial court. This final judgment authorized a statutory trustee of a dissolved corporation to execute documents associated with the transfer of property from the dissolved corporation to appellee Flamingo Way Enterprises, LLC.

We affirm the order in case number 3D17-1753 because the trial court correctly concluded that appellants Tate and Stoppa lacked standing to challenge the final judgment. We reverse the order as to appellant Graham, however, and remand to the trial court to conduct an evidentiary hearing on Graham's September 14, 2017 rule 1.540(b)(3) motion and appellee's response in opposition to same. Rusniaczek v. Tableau Fine Art Grp., Inc., 139 So.3d 355, 337 (Fla. 3d DCA 2014).

Affirmed in part; reversed in part and remanded.

      We express no opinion as to the merits of Graham's claim that the September 15, 2016 final judgment was the result of fraud, nor do we express an opinion regarding any of appellee's defenses asserted to Graham's claim.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Scott Dominic PALMATEER, Appellant, v. Nicole Jean PALMATEER, Appellee.
    Case No. 2D18-54
    District Court of Appeal of Florida, Second District.
    Opinion filed December 5, 2018
    Toni A. Butler of Alderuccio & Butler, LLC, Naples; and Beverly L. Brennan, Naples, for Appellant.
    Alexander C. Peterson of Family First Legal Group, Naples, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

In this marital dissolution appeal, we reverse the final judgment to the extent that the trial court adjudicates and retains jurisdiction to enter and modify an income deduction order (IDO) in favor of the Former Wife against the Former Husband's municipal pension plan to effect the equitable distribution of a marital asset to which the Former Wife is indisputably entitled. See § 61.075(6)(a)(1)(d), Fla. Stat. (2015) (defining "marital assets" to include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in ... pension ... plans and programs"). Our precedent and the pertinent statutes constrain us to reverse notwithstanding that the parties not only failed to bring that precedent and those statutes to the trial court's attention but agreed to the entry of the IDO. See §§ 61.1301, 185.25, Fla. Stat. (2017) ; Motil v. Motil, 771 So.2d 1251, 1251-52 (Fla. 2d DCA 2000) (reversing the imposition of an IDO to effect the equitable distribution of the former husband's pension plan despite the former husband's agreement to the entry of an IDO because an IDO in this context "is in direct contravention of the law"); see also Edwards v. Edwards, 819 So.2d 837, 838 (Fla. 2d DCA 2002) ("[Qualified domestic relations orders] cannot be used to force direct payment to a nonparticipating spouse of a portion of a spouse's municipal pension benefits in order to achieve equitable distribution of marital assets.").

In so doing, we recognize the trial court's extensive efforts to find a workable solution in an acrimonious situation. We also recognize, as have other district courts of appeal, the difficulties created when a trial court is statutorily foreclosed from using one of its most effective and cost-efficient tools for enforcing the equitable distribution of a marital asset to which the former spouse is statutorily entitled. See, e.g., Bd. of Trs. of Orlando Police Pension Plan v. Langford, 833 So.2d 230, 235 (Fla. 5th DCA 2002) (suggesting alternatives to ordering direct payments from a municipal pension plan to the former spouse as part of an equitable distribution but observing that "these are cumbersome devices and costly" and that "[t]here ought to be a better remedy").

Consequently, we urge the legislature to revisit a scheme that relegates to the position of any other creditor a former spouse who is entitled-by statute-to the equitable distribution of a municipal pension plan. In the meantime, however, we reverse, and we remand for the trial court to consider other options.

Reversed; remanded for further proceedings.

LaROSE, C.J., and CASANUEVA, J., Concur.

      It is well settled that a trial court may not enforce an equitable distribution award through its contempt power. See Pipitone v. Pipitone, 23 So.3d 131, 135-36 (Fla. 2d DCA 2009) (collecting cases).