text:
    Donald R. LOWMAN, Appellant/Petitioner(s), v. MTGLQ INVESTORS, L.P., Appellee/Respondent(s).
    CASE NO.: 2D18-1886
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Brandon Rachon BEACHEM, Appellant/Petitioner(s), v. Heather Marie THOMAS and Steve Chere-Enfant, Appellee/Respondent(s).
    CASE NO.: 2D18-3964
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Damian Johnathan SLIFER, Appellant/Petitioner(s), v. DEPT. OF HEALTH, BOARD OF NURSING, Appellee/Respondent(s).
    CASE NO.: 2D18-3705
    District Court of Appeal of Florida, Second District.
    November 06, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Philip Harold ASKINS, Appellant/Petitioner(s), v. Carol Cameron MCKINNEY, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-3827
    District Court of Appeal of Florida, Second District.
    October 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Nidriko Lenzy TILLMAN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3049
    District Court of Appeal of Florida, Second District.
    October 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Michael AUMULLER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2145
    District Court of Appeal of Florida, Second District.
    July 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Sheila Bone LEVERETT, et al, Appellant/Petitioner(s), v. Gregory MESSICK, et al, Appellee/Respondent(s).
    CASE NO.: 2D18-1779
    District Court of Appeal of Florida, Second District.
    October 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Christopher LONGS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D16-3654
    District Court of Appeal of Florida, Second District.
    October 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Everton HINDS, Appellant/Petitioner(s), v. Carrie Ann POLLOCK, A.S.A, Appellee/Respondent(s).
    CASE NO.: 2D18-3814
    District Court of Appeal of Florida, Second District.
    October 08, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Lawrence GUDMESTAD, Appellant/Petitioner(s), v. COASTAL BEHAVIORAL HEALTHCARE, INC. and Thomas M. Knight, Sheriff of Sarasota County, Appellee/Respondent(s).
    CASE NO.: 2D18-3791
    District Court of Appeal of Florida, Second District.
    October 08, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Joquinn A. T. BENJAMIN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1131
    District Court of Appeal of Florida, Second District.
    October 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Belated appeal is denied.


text:
    Timothy TACY, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2081
    District Court of Appeal of Florida, Second District.
    October 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Mandamus is denied.


text:
    Ramon SIRIAS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2099
    District Court of Appeal of Florida, Second District.
    October 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Kentreia Michelle RUSSELL, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-0514
    District Court of Appeal of Florida, Second District.
    October 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Lamark Dewayne ROWELL, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2933
    District Court of Appeal of Florida, Second District.
    October 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Najja RICE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3453
    District Court of Appeal of Florida, Second District.
    October 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Luis PEREZ, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3849
    District Court of Appeal of Florida, Second District.
    October 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Mandamus is denied.


text:
    Jackie Joseph NICHOLAS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1907
    District Court of Appeal of Florida, Second District.
    October 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Juan JUARES, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1735
    District Court of Appeal of Florida, Second District.
    October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Frank PEARSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1316
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Hilda INCLAN, Appellant(s)/Petitioner(s), v. WELLS FARGO BANK, N.A., etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1833
    District Court of Appeal of Florida, Third District.
    SEPTEMBER 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    J.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-736
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason PARNELL, Appellant(s)/Petitioner(s), v. CIRCUIT COURT ELEVENTH JUDICIAL CIRCUIT, etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1269
    District Court of Appeal of Florida, Third District.
    SEPTEMBER 05, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Darrell K. WILSON, Sr., Appellant(s)/Petitioner(s), v. The CHURCH OF GOD TABERNACLE, INC., and Young Land USA, Inc., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-0139
    District Court of Appeal of Florida, Third District.
    AUGUST 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    OCEAN HARBOR CASUALTY INSURANCE COMPANY, Appellant(s)/Petitioner(s), v. MSPA CLAIMS I, LLC, Appellee(s)/Respondent(s),
    CASE NO.: 3D16-1818
    District Court of Appeal of Florida, Third District.
    AUGUST 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Decline.


text:
    Eduardo CASTRO, Appellant(s)/Petitioner(s), v. Peter A. COHEN, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0938
    District Court of Appeal of Florida, Third District.
    AUGUST 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Gregory L. WILSON, Appellant(s)/Petitioner(s), v. Brittany M. WILLIAMS, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1827
    District Court of Appeal of Florida, Third District.
    SEPTEMBER 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Baron DEADWYLER, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1803
    District Court of Appeal of Florida, Third District.
    SEPTEMBER 05, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Lashay WILLIAMS, Appellant(s)/Petitioner(s), v. In re: Ayelet EDELSTEIN v. Eric Ohnona, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1690
    District Court of Appeal of Florida, Third District.
    AUGUST 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Corey Mykel HEBRON, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1657
    District Court of Appeal of Florida, Third District.
    AUGUST 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Leon WOODS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2624
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Elisme LIMA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1604
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Silvio NARVAEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1414
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    MERITAIN HEALTH, INC., etc., Appellant(s)/Petitioner(s), v. FLORIDA FAMILY LABORATORY, etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1926
    District Court of Appeal of Florida, Third District.
    SEPTEMBER 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Ricardo Ruiz BAZQUEZ, Appellant, v. BAYVIEW LOAN SERVICING, LLC, Appellee.
    No. 3D18-647
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mario COTO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1691
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mirtha MORALES, Appellant, v. MERFE CONSTRUCTION CORP., Appellee.
    No. 3D18-650
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wayne Parker TREACY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1030
    District Court of Appeal of Florida, Fourth District.
    [September 6, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    SCHOOL BOARD OF PALM BEACH COUNTY, Appellant, v. RENAISSANCE CHARTER SCHOOL, INC., Appellee.
    No. 4D17-2539
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    WORTH GROUP, INC., a Florida Corporation, Andrew Wilshire, individually, and Eugenia Mildner, individually, Appellants, v. GREENBERG TRAURIG, P.A., a Florida Professional Association, and Greenberg Traurig, LLP, a limited liability partnership, collectively d/b/a Greenberg Traurig, Appellees.
    No. 4D17-3395
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michele GERVOLINO, Appellant, v. Sindy L. SWANN, Appellee.
    No. 4D17-3687
    District Court of Appeal of Florida, Fourth District.
    [September 20, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Victual MCNEAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1500
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    MORGENTHAU VENTURE PARTNERS, L.L.C., a Delaware limited liability company and Morgenthau Accelerator Fund, L.P., a Delaware limited partnership, Appellants, v. Robert A. KIMMEL, AS TRUSTEE OF the ROBERT A. KIMMEL REVOCABLE TRUST, and as trustee of the Kimmel Partnership Trust, Appellee.
    No. 4D18-895
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lavoris C. REYNOLDS, Appellant, v. Elizabeth SIMPLICE, Appellee.
    No. 4D18-1274
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christopher KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4366
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Maitland STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1932
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Yvenel EUGENE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1661
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Leonard CUMINOTTO, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3372
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tyrell A. DERONVILLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4326
    District Court of Appeal of Florida, Fourth District.
    October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daniel CHAPA, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1919
    District Court of Appeal of Florida, Fourth District.
    October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ed Ricardo DESTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2339
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kimberly Jean KLEINHENZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1246
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    STATE of Florida, Appellant, v. Austin BENNETT, Appellee.
    No. 4D17-3030
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James L. GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3085
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Karl Lee BLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-118
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Steven BRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2566
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Larry Alan CLAYCOMB, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2803
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Blanca A. BAJANA ESPINOZA, Appellant, v. Luis F. JACOME CHERREZ a/k/a Felipe Jacome, Appellee.
    No. 4D18-1514
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wisly PRENELUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1937
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Matthew Jon BOBOT, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1957
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jasper Leon BLUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2134
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael CORSETTI, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2423
    District Court of Appeal of Florida, Fourth District.
    [October 4, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Clifford G. FLEETWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1497
    District Court of Appeal of Florida, Fourth District.
    October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kenneth Carl GUY, Appellant, v. PLAZA HOME MORTGAGE, INC., Appellee.
    No. 4D17-3335
    District Court of Appeal of Florida, Fourth District.
    [August 2, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brian Keith JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2174
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 11, 2018 Rehearing Denied October 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael BUTLER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2301
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 4, 2018 Rehearing Denied October 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Victor RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1848
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Louis DEROSA, Appellant, v. Michael MASELLA, Appellee.
    Case No. 5D17-3957
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 7, 2018 Rehearing Denied September 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Demarcus Andre KINSEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-838
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    J.B., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-805
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Clarence FRAZIER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-669
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Virginia L. WARREN and Ron Warren, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR ARMT 2005-5 and Marsh Creek Owners Association, Inc., Appellees.
    Case No. 5D17-2051
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 18, 2018 Rehearing Denied October 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Richard Warren LEWIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-470
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Stephen F. THORNTON, Appellant, v. Beverly A. ROHLFS, Appellee.
    Case No. 5D18-90
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Thomas MACDONALD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4050
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jonathon BIERMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3822
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    RGG DIAMOND STRAND HOLDINGS, LLC d/b/a Physicians Rehabilitation, as Successor-In-Interest to David R. Lichtinger, D.O., Appellant, v. HILLCREST DERMATOLOGY AND PLASTIC SURGERY, P.A., Appellees.
    Case No. 5D17-3333
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John EBERHARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3181
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Alexis CASTILLO-DIAZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3052
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Cartez COY, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 5D17-2618 5D17-2619
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael SCHOND, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1710
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Leonardo NIEVES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2096
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert L. EVINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1043
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Gary Emerson HEINZMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-981
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    J.N.S.F., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-723
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony Ray CAMACHO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-655
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joseph Lee DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-561
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Andre Napoleon KIRBY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-237
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Mourad BALZOURT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4023
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Valdez DUNCAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3953
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Latisha MOORE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3548
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Demetris WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3499
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Charles M. VANDERSNICK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2407
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Emmanuel WALLACE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2119
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Roman DUSK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1950
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Resnel RENE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1941
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    William Edward BUBB, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1879
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Guy SHEROUSE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1723
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kelvin COTTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1679
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michelle Nicole KERR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1655
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Herman BROWN, Appellant, v. STATE of Florida and Department of Corrections, Appellees.
    Case No. 5D18-1573
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kenneth Adam TONG, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1448
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Timothy PRESTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1317
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018 Rehearing Denied November 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tina LALONDE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1294
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    E. Allen DEAVER and Deborah Deaver, Appellants, v. BFC NEW ENGLAND, LLC, Appellee.
    Case No. 5D17-3646
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carla J. BURKE, Appellant, v. John BURKE, III, Appellee.
    Case No. 5D17-4076
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Melvin E. ANDUJAR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1284
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Per Curiam.

text:
    Sniceson FLEURY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1852
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Greg Rosenfeld of the Law Offices of Greg Rosenfeld, P.A., West Palm Beach for appellant.
    No appearance required for appellee.
   Per Curiam.

Sniceson Fleury, a criminal defendant charged with drug trafficking offenses, petitions for a writ of habeas corpus challenging a pretrial release condition requiring him to show that the source of funds used to post bond is not derived from illegal activity ("the bond source condition"). We deny the petition and certify conflict with Sparrow v. State , 240 So.3d 841 (Fla. 5th DCA 2018), and Casiano v. State , 241 So.3d 219 (Fla. 2d DCA 2018), notice invoking discretionary review filed , No. SC18-642 (Fla. April 26, 2018), to the extent they hold that a bond condition like the one imposed in this case is not authorized by Florida law.

According to the probable cause affidavit, police executed a search warrant at a residence that Defendant shared with his brother and discovered trafficking quantities of drugs, more than $14,000 in cash, and several handguns. Defendant is charged with: (1) trafficking in heroin; (2) trafficking in fentanyl; (3) trafficking in cocaine; (4) possession of marijuana with intent to sell; and (5) felon in possession of a firearm or ammunition.

At first appearance in late March 2018, the court set a total bond of $500,000. In May 2018, Defendant moved to modify conditions of pretrial release asking the court to reduce the amount of bond.

At a hearing on the motion, the court agreed to reduce the bond. As the court was preparing to announce the modified bond conditions, the State asked the court to require Defendant to show that the source of funds used to post bond was not derived from illegal activity. The court stated, "I thought you would, I was going to address that in a moment."

After hearing argument from defense counsel, who contended that the money would come from family members, the court agreed that the requirement was appropriate. The judge indicated that, if the money was coming from family, "that's fine" and suggested Defendant's family could submit an affidavit to satisfy the requirement. The court reduced the amount of bond to a total of $138,000 and entered an order requiring Defendant to demonstrate that the funds were from a "legitimate source." Defense counsel later lodged an objection referencing unspecified "conflict" in caselaw.

This petition follows. Defendant argues: (1) the court erred in granting the State's oral motion to impose the bond source condition where the State had not filed a written motion to modify bond conditions under Florida Rule of Criminal Procedure 3.131(d)(2) ; and (2) detention based on the bond source condition is not authorized by Florida law. Nothing in the record indicates that Defendant has tried to post the bond or satisfy the bond source condition.

Defendant fails to show any error in the trial court imposing the bond source condition. Defendant filed a motion to modify bond and had constructive notice that the court would consider all the statutory pretrial release factors if his motion was granted. See § 903.046(2), Fla. Stat. (2018) (setting out factors that the court shall consider when determining pretrial release conditions).

Section 903.046(2)(f) requires a court setting pretrial release conditions to consider:

The source of funds used to post bail or procure an appearance bond, particularly whether the proffered funds, real property, property, or any proposed collateral or bond premium may be linked to or derived from the crime alleged to have been committed or from any other criminal or illicit activities. The burden of establishing the noninvolvement in or nonderivation from criminal or other illicit activity of such proffered funds, real property, property, or any proposed collateral or bond premium falls upon the defendant or other person proffering them to obtain the defendant's release.

Id. (emphasis supplied). The underlined language above was added in 2008 and expressly authorizes the bond source condition at issue. See Ch. 2008-238, § 18, Laws of Fla.

Defendant relies on Sparrow v. State , 240 So.3d 841 (Fla. 5th DCA 2018), and Casiano v. State , 241 So.3d 219 (Fla. 2d DCA 2018), which hold that "Florida courts lack authority to detain accuseds for the purpose of inquiring into the source of funds used to post bail." Casiano , 241 So.3d at 220. We respectfully disagree.

Sparrow and Casiano relied on dicta from a special concurrence in Parrino v. Bradshaw , 972 So.2d 960 (Fla. 4th DCA 2007). Parrino predates the Legislature's 2008 amendment, which expressly places the burden on the defendant to show that the funds used to post bail are not derived from illegal activity.

We disagree that the bond source condition imposed by the court in this case results in unconstitutional pretrial detention. Article I, section 14 of the Florida Constitution provides:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Id. (emphasis supplied). The bond source condition at issue does not deny the Defendant "pretrial release on reasonable conditions." Defendant does not show that the requirement is unreasonable under the circumstances of this case. As argued by the State at the bond hearing, there is probable cause to believe that Defendant engaged in drug trafficking, and police allegedly found $14,308 in cash in Defendant's bedroom.

We deny the petition and certify conflict with Sparrow and Casiano to the extent they hold that a bond source condition like the one imposed in this case is unauthorized by Florida law. In Casiano , the court set bond at first appearance but granted the State's request that defendant be held pending a hearing pursuant to Nebbia - a so-called " Nebbia hold." Casiano , 241 So.3d at 219. In Sparrow , the court at first appearance set bond in a drug trafficking case and imposed a " Nebbia hold" on its own motion. Sparrow , 240 So. 3d at 841. We see no meaningful distinction between the " Nebbia hold" in those cases and the bond source condition imposed in this case. We recognize that the condition may result in temporary detention until the condition is satisfied but do not believe that this categorically amounts to a denial of "pretrial release on reasonable conditions" as required by the Florida Constitution.

"The purpose of a bail determination in criminal proceedings is to ensure the appearance of the criminal defendant at subsequent proceedings and to protect the community against unreasonable danger from the criminal defendant." § 903.046(1), Fla. Stat. (2018). If a defendant can use the proceeds of unlawful activity to post bail and immediately obtain release before an inquiry into the source of funds can be conducted, then the purpose of bond and the legislative intent in the bond statute would be frustrated. See § 903.046(2)(h), Fla. Stat. (2018) (requiring a court setting pretrial release conditions to consider the street value of the drugs involved and explaining: "It is the finding and intent of the Legislature that crimes involving drugs and other controlled substances are of serious social concern, that the flight of defendants to avoid prosecution is of similar serious social concern, and that frequently such defendants are able to post monetary bail using the proceeds of their unlawful enterprises to defeat the social utility of pretrial bail . Therefore, the courts should carefully consider the utility and necessity of substantial bail in relation to the street value of the drugs or controlled substances involved.") (emphasis supplied).

Petition denied. Conflict certified .

Warner, May and Klingensmith, JJ., concur.

      The parties at the hearing referred to this as a "Nebbia" requirement, referring to United States v. Nebbia , 357 F.2d 303 (2d Cir. 1966).


author: Klingensmith, J.

text:
    21ST CENTURY CENTENNIAL INSURANCE COMPANY, Appellant, v. Dwayne WALKER, Appellee.
    No. 4D17-2937
    District Court of Appeal of Florida, Fourth District.
    [August 29, 2018]
    Rosemary B. Wilder of Marlow, Adler, Abrams, Newman & Lewis, Coral Gables, for appellant.
    Jonathan Mann and Robin Bresky of Law Offices of Robin Bresky, Boca Raton, and David W. Bennett of Bodden & Bennett Law Group, Boynton Beach, for appellee.
   Klingensmith, J.

This case is before us for the second time to consider issues that arose following trial. In the first appeal, 21st Century Centennial Insurance Company ("Insurer") appealed the trial court's final judgment awarding Dwayne Walker damages resulting from two separate motor vehicle accidents. This court per curiam affirmed the lower court's judgment, and preliminarily granted Walker entitlement to seek appellate attorney's fees pursuant to a proposal for settlement. See 21st Century Centennial Ins. Co. v. Walker , 230 So.3d 859 (Fla. 4th DCA 2017) ("21st Century I "). Insurer now appeals the trial court's final judgment awarding Walker both his trial and appellate attorney's fees and costs, as well as expert witness fees. For the reasons set forth below, we reverse the award of both trial and appellate attorney's fees and costs, and remand for further proceedings.

In 21st Century I , Walker sued Insurer seeking damages under an uninsured motorist ("UM") insurance policy with a $20,000 limit per accident. His claim was for damages arising out of two separate car crashes in 2010 and 2011. Walker later moved to amend his complaint to add counts for bad faith against Insurer-one count for each car crash. The trial court denied his motion to amend without prejudice.

Prior to trial, Walker served two separate proposals for settlement on Insurer pursuant to section 768.79, Florida Statutes (2017)-one for each of the two car crashes-wherein he proposed to settle for $40,000 per crash, totaling $80,000. Insurer did not accept the proposals, and the case proceeded to a jury trial. The jury ruled in Walker's favor, awarding him $170,598.78 for the 2010 accident and $84,564.83 for the 2011 accident.

The court originally rejected Walker's request to have the judgment entered as determined in the jury verdict, and instead entered final judgment against Insurer in the amount of the $20,000 policy limits applicable to each crash. Insurer appealed that final judgment.

While the appeal in 21st Century I was pending, Walker filed a motion in the trial court for attorney's fees and costs and a renewed motion to amend his complaint. In that motion, he argued that the amendment to add bad faith counts to the complaint was now proper because the final judgment had been entered and the underlying claim was resolved. He also asked the trial court once again to amend the final judgment to reflect the total amount of the jury's verdict.

After this court relinquished jurisdiction following the 21st Century I appeal, the trial court granted Walker's renewed motion to amend his complaint to add the bad faith claims. The court relied on Fridman v. Safeco Ins. Co. of Ill. , 185 So.3d 1214 (Fla. 2016), and entered an Amended Final Judgment in favor of Walker for the full amount of the jury verdict, but limited execution to the $20,000 UM policy limits. Thereafter, Walker filed an amended motion seeking attorney's fees and costs pursuant to section 768.79 and Florida Rule of Civil Procedure 1.442. Although the trial court also granted Walker's motion for attorney's fees and costs, it did not enter a judgment for any amounts.

Insurer timely appealed the Amended Final Judgment that was per curiam affirmed in 21st Century I . Insurer asserted two issues on appeal in 21st Century I that arose from the trial but did not appeal the order granting attorney's fees and costs because, at that time, the trial court had not yet entered an appealable order pertaining to that issue. See Diaz v. Citizens Prop. Ins. Co. , 227 So.3d 735, 736 (Fla. 3d DCA 2017) (finding that the court did not have jurisdiction to review an award of attorney's fees where "no amount ha[d] been fixed by the trial court and the part of the final judgment that finds entitlement thereto [was] not ripe for ... review."). However, while 21st Century I was on appeal, Walker filed an unopposed motion with this court asking for an award of appellate attorney's fees and costs based on section 768.79. We granted Walker entitlement to seek those appellate attorney's fees in the trial court, but ordered, "On remand, the trial court shall set the amount of the attorney's fees to be awarded for this appellate case."

After our remand of the case back to the trial court, the parties agreed to the entry of a final judgment awarding attorney's fees of $200,000 and expert witness fees of $6,050 but included language in the judgment reserving the parties' right to appeal Walker's entitlement to those fees and costs. This appeal from that final judgment timely followed.

A party's legal entitlement to attorney's fees and costs based on the interpretation of a statute is reviewed de novo . See Land & Sea Petrol., Inc. v. Bus. Specialists, Inc. , 53 So.3d 348, 355 (Fla. 4th DCA 2011). "This case presents an issue of statutory interpretation. The construction of a statute is an issue of law subject to de novo review." Aramark Unif. & Career Apparel, Inc. v. Easton , 894 So.2d 20, 23 (Fla. 2004).

According to section 768.79 :

(1) .... If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand.
....
(6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following:
....
(b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.

(Emphasis added). Section 768.79(6)(b) defines "judgment obtained" as used under subsection (6)(b) as "the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced." § 768.79(6)(b).

This court has previously held that when assessing whether attorney's fees should be granted under section 768.79, the correct source to which a court should look is the judgment, not the jury's verdict. See White v. Steak & Ale of Fla. , 816 So.2d 546, 550 (Fla. 2002) ; State Farm Mut. Auto. Ins. Co. v. Kujawa , 782 So.2d 1003, 1005 (Fla. 4th DCA 2001).

More recently, the Florida Supreme Court decided Fridman , and established the appropriate protocol to follow if a plaintiff prevails in a UM action and then elects to pursue a bad faith claim. The Court held that any judgment entered should be for the full amount of the insured's damages, even though the insured must later proceed with a bad faith action to recover any amount in excess of the policy limits. Fridman , 185 So.3d at 1230. It stated, "[A]n insured is entitled to a jury determination of liability and the full extent of his or her damages, which may be in excess of the policy limits, in the underlying UM case, prior to litigating a first-party bad faith cause of action." Id. The Court also endorsed the "preferable approach" of entering final judgment in these cases for the full amount of the verdict, while limiting execution of the judgment to the policy amount. Id. at 1229 ; accord GEICO Gen. Ins. Co. v. Paton , 150 So.3d 804, 808 n.1 (Fla. 4th DCA 2014).

The import of the Fridman decision is clear. When a case involves a first-party bad faith claim alleging that an insurer is liable for an amount in excess of policy limits, the full application of such judgment against the insurer-including an award of attorney's fees and costs based on section 768.79 -should not be considered by the trial court until the bad faith litigation is resolved. This is because an insurer is liable for bad faith damages for more than its policy limits provided two thresholds are met: (1) the plaintiff is awarded damages above the policy amount in the underlying tort suit, and (2) a jury determines the plaintiff proved bad faith claims conduct by the insurer. See Fridman , 185 So.3d at 1216 (noting that cases from the Florida Supreme Court have long held that "a determination of liability and the full extent of damages is a prerequisite to a bad faith cause of action"); Farinas v. Fla. Farm Bureau Gen. Ins. Co. , 850 So.2d 555, 559 (Fla. 4th DCA 2003) (holding that the determination of whether an insurer acted in good faith is to be made by the jury).

Here, the trial court appropriately stayed execution against the insurer of any amount over the policy limits pending resolution of the bad faith case consistent with Fridman and Paton . In doing so, the only enforceable judgment against the insurer at this time, or what is effectively the "net judgment" as section 768.79(6)(b) describes, is for the amount representing the policy limits of $20,000 per accident.

Thus, Fridman compels us to adopt another "preferable approach" in the context of first-party bad faith litigation: waiting until a determination is made on whether the plaintiff proved bad faith claims against an insurer before determining entitlement to an award of attorney's fees and costs against an insurer under section 768.79.

Therefore, we reverse the trial court's awards of trial and appellate fees and costs, and remand for further proceedings to consider an award pursuant to section 768.79 at the end of the parties' bad faith litigation.

Reversed and remanded for further proceedings .

Gross and Conner, JJ., concur.

      Although the order from this court indicated that Walker was entitled to his appellate attorney's fees "unconditionally," we did not intend to foreclose Insurer from asserting any appropriate defenses, including lack of good faith, regarding the application of section 768.79.

      The award of attorney's fees did not differentiate between the amount for appellate fees and the amount for trial fees.


text:
    Joseph Eston HARGRETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2846
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Joseph Eston Hargrett, Moore Haven, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Joseph Eston Hargrett appeals an order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion alleged that he received ineffective assistance of counsel. We affirm in part, reverse in part, and remand for further review of appellant's claim that counsel was ineffective by failing to request a jury instruction and verdict form that permitted the jury to render a dual verdict of theft and resisting a merchant. See Stuckey v. State , 972 So.2d 918, 923 (Fla. 5th DCA 2007).

A plain-clothed loss prevention officer (LPO) in a home improvement store observed Hargrett remove theft sensors from store item packaging, place the items in his pockets, and then exit the store after passing all points of sale without purchasing them. The LPO testified that upon confronting Hargrett in an area where LPOs may apprehend potential shoplifters, Hargrett became violent, struck him, and caused injuries. When the police arrived, they found the stolen items in Hargrett's pockets.

Hargrett was charged with robbery under section 812.13(1), Florida Statutes (2010). At trial, the State presented evidence from surveillance tapes depicting the incident. Hargrett's counsel raised inconsistencies between victim testimony and surveillance tape evidence regarding the use of force and violence to accomplish the taking, and therefore called into question the time of the "taking" as required under the statute. See § 812.13(3)(b). From this, his counsel argued that "robbery" was an overcharge, though he acknowledged the occurrence of theft and "[r]esisting, maybe."

The court instructed the jury on robbery, resisting a merchant, and theft. The verdict form indicated that the jury should select one of the three offenses. Ultimately, it found Hargrett guilty of robbery. In this postconviction appeal, he alleges that he told trial counsel to request the jury instruction that permits it to find a defendant guilty of resisting a merchant and theft, and that counsel was ineffective when he failed to do so.

In Stuckey , the Fifth District explored the history of robbery's "taking" element. 972 So.2d at 922-23. It held that a defendant was entitled to have the trial court instruct the jury that it could convict him of both petit theft and resisting a merchant, as lesser offenses of robbery. Id. at 923. The comments to the standard jury instructions were amended to reflect Stuckey's holding: "For the crime of robbery, a jury can convict of two lesser-included offenses such as 1) theft and assault or 2) theft and resisting a merchant in appropriate cases." In re Std. Jury Instr. (Crim)-Report No. 2012-09, 122 So. 3d 263, 287 (Fla. 2013). But see Gordon v. State , 219 So.3d 189, 194 (Fla. 3d DCA 2017) (refusing to make a per se rule that a robbery defendant is automatically entitled to a compound offense instruction and distinguishing Stuckey ); Spencer v. State , 71 So.3d 901, 903 (Fla. 1st DCA 2011) (reversing robbery conviction where trial court rejected the jury's first verdict form that found the defendant guilty of petit theft and assault because such rejection was contrary to the jury pardon doctrine).

While Stuckey was a direct appeal, trial courts have considered the issue regarding "dual lesser-included offenses" on collateral review when a defendant alleges that counsel failed to request the instruction. See Thomas v. State , 241 So.3d 278, 278 (Fla. 5th DCA 2018) (reversing summary denial of a rule 3.850 motion where the verdict form offered the individual crimes and the compound crime of burglary with a battery, but did not provide the option to find defendant guilty of both trespass and battery); Gian-Grasso v. State , 899 So.2d 392, 393 (Fla. 4th DCA 2005) (reversing and remanding for further review in a collateral case concerning burglary with an assault or battery and its lesser included offenses of trespass and battery).

Here, the trial court rejected Hargrett's claim, and concluded that any deficiency by counsel resulted only in his loss of the opportunity for a jury pardon, which does not satisfy Strickland's prejudice component. See Sanders v. State, 946 So.2d 953, 959 (Fla. 2006). While the First District Court of Appeal also views such a claim as tied to a jury's pardon power, see Spencer , 71 So.3d at 903, we disagree and certify conflict with that case. The granting of this instruction is grounded in the defendant's right to have the jury consider lesser-included offenses supported by the evidence, not a jury pardon. See Thomas, 241 So.3d at 278 ; Gordon , 219 So.3d at 197 n.8 ; Stuckey, 972 So.2d at 923.

The jurors in both the Stuckey and Gian-Grasso cases asked the trial judge about selecting two of the lesser-included offenses but were instructed to select one. In the instant case, the jury asked about the "initial contact" and whether it mattered "who made the first hit/contact?" This reflects the jury's concern with the timing of the force relative to the "taking." See Stuckey, 972 So.2d at 922-23.

Since the evidence presented at Hargrett's trial was sufficient to support his conviction for each of the lesser-included offenses, we reverse the trial court's summary denial of the claim, and remand for it to either attach records conclusively refuting Hargrett's claim, or in the alternative, to hold an evidentiary hearing during which the trial court may consider any issues regarding waiver or strategy. See Gian-Grasso, 899 So.2d at 393. We affirm the summary denial of Hargrett's remaining rule 3.850 grounds without further discussion.

Affirmed in part, reversed in part, and remanded.

Taylor and Conner, JJ., concur.

      This Court affirmed his judgment and sentence. See Hargrett v. State , 138 So.3d 1040 (Fla. 4th DCA 2014) (table decision). The direct appeal did not challenge the jury instructions.

      Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      We note that our decision in Gian-Grasso predated Sanders and its analysis of Strickland's prejudice with respect to a "jury pardon."

      Though the Florida Supreme Court is considering the viability of the jury pardon doctrine, this Court has declined to hold that it was abrogated. See Caruthers v. State, 232 So.3d 441 (Fla. 4th DCA 2017), review denied SC 18-51, 2018 WL 987286 (Fla. Feb. 20, 2018) ; see, e.g. , Roberts v. State , 242 So.3d 296, 300 (Fla. 2018) (Polston, J., dissenting); Dean v. State , 230 So.3d 420, 425-26 (Fla. 2017) (Polston, J., concurring). In contrast, the First District has held that the Florida Supreme Court abrogated the doctrine in Dean . See Knight v. State , No. 14-2382, --- So.3d ----, ----, 2018 WL 944663, at *3-*4 (Fla. 1st DCA Feb. 19, 2018), review granted , SC 18-309, 2018 WL 3097727, at *1 (Fla. June 25, 2018).


author: CONNER, J.

text:
    Kenneth W. POLLARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1803
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Kenneth W. Pollard appeals his convictions and sentences after a jury found him guilty of six felony charges.

Prior to trial, defense counsel moved for a competency determination pursuant to Florida Rule of Criminal Procedure 3.210(b). The trial court appointed an expert to examine Pollard. However, the record does not indicate that any competency hearing was held prior to trial, nor does the record contain any competency evaluation conducted by the appointed expert prior to the trial or an order determining Pollard's competence prior to trial.

At the beginning of the sentencing hearing, defense counsel advised the trial court that Pollard was contending the sentencing could not proceed because he was not "Kenneth Pollard" and he was objecting to the presentence investigation report discussing "Kenneth Pollard." After being sworn in, Pollard contended he was a man with a different name. Notably, defense counsel advised the trial court that prior to trial, Pollard had been determined competent after a prior court-appointed counsel had him evaluated. However, Pollard's seemingly strange behavior at the sentencing hearing prompted the trial court to order another competency evaluation, and sentencing was postponed. After the post-trial evaluation determined Pollard was competent to proceed, the sentencing hearing resumed. At the beginning of the resumed sentencing hearing, the trial court determined that Pollard was competent before imposing his sentences. Thereafter, Pollard gave notice of appeal.

"The issue of '[w]hether the circuit court fundamentally erred in failing to hold a competency hearing presents a pure question of law subject to de novo review.' " Baker v. State , 221 So.3d 637, 639 (Fla. 4th DCA 2017) (alteration in original) (quoting A.L.Y. v. State , 212 So.3d 399, 402 (Fla. 4th DCA 2017) ).

The parties agree that the trial court erred in failing to conduct a competency hearing and to make a competency determination prior to trial, after previously ordering a competency evaluation. See id. at 641 ; Dougherty v. State , 149 So.3d 672, 676 (Fla. 2014) ;

Deferrell v. State , 199 So.3d 1056, 1060-61 (Fla. 4th DCA 2016). However, Pollard is not automatically entitled to a new trial. "A new trial is not always necessary where the issue of competency was inadequately determined prior to trial; a retroactive determination of competency is possible." Dougherty , 149 So.3d at 679. As we have previously instructed:

[I]f the [trial] court can make a nunc pro tunc finding as to appellant's competency based upon the existence of evaluations performed contemporaneous with trial and without relying solely on a cold record, and can do so in a manner which abides by due process guarantees, then it should do so and enter a corresponding written order. However, if the court finds, for any reason, that an evaluation of appellant's competency at the time of trial cannot proceed in a way that ensures appellant's due process rights, then the [trial] court should adjudicate [his] current competency and, if [he] is competent, conduct a new trial on all counts.

Baker , 221 So.3d at 641-42 (citations omitted).

In this case, defense counsel represented at the sentencing hearing that prior to her appointment, an evaluation had been conducted before trial, and Pollard was found to be competent. Though no competency evaluation report is included in the record on appeal, the record does contain a receipt indicating a competency evaluation was performed. Therefore, there are indications in the record that a competency evaluation was performed on Pollard prior to trial and that he was deemed competent to proceed.

Therefore, we remand the case for the trial court to decide whether it can determine Pollard's competency nunc pro tunc in accordance with our prior decisions.

Remanded with instructions.

Gross and Klingensmith, JJ., concur.


author: Kuntz, J.

text:
    STATE of Florida, Appellant, v. Quinton Redell SYLVESTRE, Appellee.
    No. 4D17-2116
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellant.
    Peter Grable, Palm Beach Gardens, for appellee.
   Kuntz, J.

The State applied for a search warrant based on information obtained from historical cell-site location information ("CSLI") and a cell-site simulator. After the Defendant moved to suppress evidence found during the search, the circuit court found probable cause existed to support the CSLI order. But the court suppressed evidence discovered through the State's warrantless use of the cell-site simulator.

The State appeals the court's order suppressing the search, and the Defendant cross-appeals the court's finding that the CSLI order was supported by probable cause. We affirm.

Background

The State charged the Defendant and two co-defendants with first-degree murder with a firearm while wearing a mask and six counts of robbery with a firearm while wearing a mask, arising from the robbery of a Boca Raton restaurant.

As part of its investigation, the State sought an order requiring the Defendant's cell phone service provider to disclose real-time CSLI for what it believed was the Defendant's cell phone number. A judge signed the "CSLI Order," which required the service provider to disclose "all cell-site activations and sectors for all incoming and outgoing calls/communications ... call detail location records, 'angle from the tower' data, including contemporaneous (real-time) with these communications, and historical calls/communications detail records."

The judge also signed an order requiring the service provider to install a pen register and trap and trace device on the Defendant's phone and transmit the information collected to the Broward Sheriff's Office (the "Trap and Trace Order").

Later, the State applied for a search warrant of a Fort Lauderdale residence. The affidavit filed in support of the warrant stated that "[m]obile tracking was activated on [the Defendant's] cell phone pursuant to a lawful court order" and that the Defendant's phone was "placed specifically" at the residence and had been "stationary overnight within this residence for several concurrent nights." The search warrant was granted.

Detectives searched the residence and found a black backpack containing three firearms, a mask, ammunition, and a stun gun. The State tracked the location of the Defendant's cell phone and arrested him while he was driving into Palm Beach County.

After the Defendant's arrest, he moved to suppress all evidence recovered from the search of the residence. He argued that the CSLI Order was unsupported by probable cause, as required by Tracey v. State , 152 So.3d 504 (Fla. 2014). He also argued that the State exceeded the scope of the CSLI Order by using a "cell-site simulator" to pinpoint his cell phone inside the residence.

At an evidentiary hearing, the court admitted transcripts of depositions, including that of a Broward Sheriff's Office sergeant. A defense witness described by the circuit court as a telecommunications expert also testified.

The sergeant testified that "at the time" the service provider "didn't provide GPS location information. It only provided tower information." With that information, the State located the cell phone to within only a general area, which the sergeant agreed could encompass several square blocks. So he pinpointed the Defendant's phone at the residence "with the use of a cell-site simulator."

Similarly, the Defendant's expert testified that "there is not a technical capability in a pen register to give you a specific location, only the connection, which cell tower to which you were connected." In the words of the circuit court, the expert explained "that, at best, the CSLI Order could provide general location information, which would only be accurate for several square blocks of a particular area." Only a cell-site simulator could provide the State the exact location of the Defendant's cell phone.

The court found that the CSLI Order was supported by probable cause. But it suppressed evidence obtained as a result of the warrantless use of the cell-site simulator. The State appealed the court's order suppressing the search of the residence. In a cross-appeal, the Defendant challenges the court's conclusion that the CSLI Order was supported by probable cause.

The Defendant's Cross-Appeal

We first address the Defendant's cross-appeal. Generally, in a criminal case, we lack jurisdiction to consider a defendant's appeal of a non-final order. But we do have jurisdiction to consider a defendant's cross-appeal when the issue relates to the issue raised in the state's appeal. See Fla. R. App. P. 9.140(b)(4) (2017). Thus, here, we have jurisdiction.

The Defendant argues that the CSLI Order was unsupported by probable cause because the affidavit did not establish that the cell phone's location would lead to evidence related to the restaurant robbery. He also argues that the statutes the State relied on when applying for the order do not require probable cause. See §§ 934.23, .42, Fla. Stat. (2012).

We affirm the circuit court's ruling that the CSLI Order was supported by probable cause. In the application for the order, the detective alleged that the Defendant was one of three men in surveillance video footage from the robbery. The application also alleged that a watch dealer identified the Defendant as the seller of a ladies' watch taken during the robbery. These facts, and others, were enough to establish probable cause.

We also address the Defendant's argument that the CSLI Order is insufficient because it was not a warrant. Relying on section 934.42, Florida Statutes (2012), the Defendant argues that "not only does subsection (4) not require a probable cause determination by the Magistrate, but specifically states that it may not require 'greater specificity or additional information beyond which is required by this section.' " So, according to the Defendant, the circuit court could not find probable cause in support of the CSLI Order because the statute authorizing the CSLI Order does not require probable cause. "By strict statutory construction," he argues, "everything contained in the fact section [of the affidavit] was superfluous."

We agree that the statute prevents a court from imposing a stricter standard when reviewing an application for a CSLI Order. But the statute does not prevent a court from making additional findings to support a showing of probable cause. Had the court not made those findings, the CSLI Order would have violated the Fourth Amendment. See Carpenter v. United States , --- U.S. ----, 138 S.Ct. 2206, 2221, 201 L.Ed.2d 507 (2018) ; Tracey , 152 So.3d at 525. Thus, the court's additional findings were not "superfluous," but necessary.

The content of a court's order-not the label affixed to it-determines whether a warrant satisfies the Fourth Amendment. Here, in issuing the CSLI Order, the court found probable cause existed. We affirm.

The State's Appeal

The State argues the court erred in suppressing the search of the residence because (1) the CSLI Order permitted the use of a cell-site simulator, and (2) the State did not have to disclose its intention to use a cell-site simulator.

i. Cell-Site Simulators

"A cell-site simulator-sometimes referred to as a 'StingRay,' 'Hailstorm,' or 'TriggerFish'-is a device that locates cell phones by mimicking the service provider's cell tower (or 'cell-site') and forcing cell phones to transmit 'pings' to the simulator." United States v. Lambis , 197 F.Supp.3d 606, 609 (S.D.N.Y. 2016).

At the evidentiary hearing, the Defendant's expert read from a House Committee Report and a Department of Justice Policy Guidance document to explain cell-site simulators. Those documents explain that "[l]aw enforcement agents can use cell-site simulators to help locate cellular devices whose unique identifiers are already known to law enforcement, or to determine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user's vicinity." U.S. DEP'T OF JUSTICE, DEPARTMENT OF JUSTICE POLICY GUIDANCE: USE OF CELL-SITE SIMULATOR TECHNOLOGY 1 (Sept. 3, 2015), https://www.justice.gov/opa/file/767321/download.

Generally, a cell-site simulator "transform[s] a cell phone into a real time tracking device." Staff of Comm. on the Oversight and Government Reform, 114th Cong., Law Enforcement Use of Cell-Site Simulation Technologies: Privacy Concerns and Recommendations (Dec. 19, 2016), https://oversight.house.gov/wp-content/uploads/2016/12/THE-FINAL-bipartisan-cell-site-simulator-report.pdf. It " 'tricks' nearby cell phones into thinking that it's a cell tower, thereby causing nearby cell phones to send signals to the device, which allows the operator of the device to locate the phone being sought." United States v. Artis , 315 F.Supp.3d 1142, 1144 (N.D. Cal. 2018) (citations omitted); see also Lambis , 197 F.Supp.3d at 609.

Thus, cell-site simulators present significant privacy concerns. At the same time, they "are invaluable law enforcement tools that locate or identify mobile devices during active criminal investigations." U.S. DEP'T OF HOMELAND SECURITY, DEPARTMENT POLICY REGARDING THE USE OF CELL-SITE SIMULATOR TECHNOLOGY 1 (Oct. 19, 2015), https://www.dhs.gov/sites/default/files/publications/Department% 20Policy% 20Regarding% 20the% 20Use% 20of% 20Cell-Site% 20Simulator% 20Technology.pdf.

These competing interests are not novel. Technological advancement often collides with the Fourth Amendment. When balancing these interests, we must "ensure that the 'progress of science' does not erode Fourth Amendment protections." Carpenter , 138 S.Ct. at 2223 (quoting Olmstead v. United States , 277 U.S. 438, 473-74, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting) ). To do so, the Supreme Court appears to "adjust[ ] legal rules to restore the preexisting balance of police power" as technology advances. Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment , 125 HARV. L. REV. 476, 482 (2011).

For example, in Katz the Supreme Court held that what a person "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States , 389 U.S. 347, 351-52, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The "Court suggested for the first time that a search triggering the Fourth Amendment occurs when the government violates an 'expectation of privacy' that 'society is prepared to recognize as reasonable.' " Carpenter , 138 S.Ct. at 2261 (Gorsuch, J., dissenting) (quoting Katz , 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring) ).

After Katz , the Supreme Court rejected the government's "contention that it should be able to monitor beepers in private residences without a warrant if there is the requisite justification in the facts for believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity." United States v. Karo , 468 U.S. 705, 717, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). The Supreme Court found "[i]ndiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight." Id. at 716, 104 S.Ct. 3296 (footnote omitted).

Later, the Supreme Court held that when "the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." Kyllo v. United States , 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).

More recently, the Supreme Court held that attaching a GPS tracking device to a vehicle constitutes a search under the Fourth Amendment. United States v. Jones , 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). Two years later, the Supreme Court held that "a warrant is generally required before such a search [of a cell phone], even when a cell phone is seized incident to arrest." Riley v. California , --- U.S. ----, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014). The Court recognized that cell phones hold "the privacies of life," id. at 2495 (quoting Boyd v. United States , 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886) ), and noted that "[t]he fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought." Id.

Following Riley , the Florida Supreme Court held that a defendant

had a subjective expectation of privacy in the location signals transmitted solely to enable the private and personal use of his cell phone, even on public roads, and that he did not voluntarily convey that information to the service provider for any purpose other than for its intended purpose.

Tracey , 152 So.3d at 525.

And recently, the United States Supreme Court recognized the "deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection[.]" Carpenter , 138 S.Ct. at 2223. The Supreme Court stated:

[T]he progress of science has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers, "after consulting the lessons of history," drafted the Fourth Amendment to prevent.

Id. (quoting United States v. Di Re , 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948) ). Thus, the Supreme Court applied Professor Kerr's equilibrium-adjustment theory and held that the government "must generally obtain a warrant supported by probable cause before acquiring such records." Id. at 2221.

Together these cases hold that, without a warrant, the government cannot: use technology to view information not visible to the naked eye, attach a device to property to monitor your location, search a cell phone in your possession without a warrant, or obtain real-time location information from the cell carrier.

With a cell-site simulator, the government does more than obtain data held by a third party. The government surreptitiously intercepts a signal that the user intended to send to a carrier's cell-site tower or independently pings a cell phone to determine its location. Not only that, a cell-site simulator also intercepts the data of other cell phones in the area, including the phones of people not being investigated.

If a warrant is required for the government to obtain historical cell-site information voluntarily maintained and in the possession of a third party, see Carpenter , 138 S.Ct. at 2221, we can discern no reason why a warrant would not be required for the more invasive use of a cell-site simulator. See, e.g. , United States v. Ellis , 270 F.Supp.3d 1134, 1145 (N.D. Cal. 2017). This is especially true when the cell phone is in a private residence, Karo , 468 U.S. at 718, 104 S.Ct. 3296, or other private locations "beyond public thoroughfares" including "doctor's offices, political headquarters, and other potentially revealing locales." Carpenter , 138 S.Ct. at 2218.

Thus, absent a valid exception to the warrant requirement, the government must establish probable cause and receive court authorization before using a cell-site simulator. In other words, "get a warrant." Riley , 134 S.Ct. at 2495.

ii. The Evidence Obtained As a Result of the Warrantless Use of a Cell-Site Simulator

The State "acknowledges that cell phones are 'effects' under the Fourth Amendment, and that a person has a subjective expectation of privacy in the location signals emitted from his or her cell phone." It argues the CSLI Order and the simultaneously issued Trap and Trace Order satisfied the warrant requirement. Those orders did not authorize the use of a cell-site simulator.

A pen register and trap and trace device, according to the Defendant's expert, has a specific, but limited, use. See Smith v. Maryland , 442 U.S. 735, 741, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). The Trap and Trace Order here did not include a finding of probable cause and did not authorize location tracking.

The CSLI Order authorized the acquisition of location information. But it was directed to records "monitored and maintained by the provider," and included location data "received by said electronic communication provider" or "available from the said electronic communication provider." It required the "electronic communication provider" to "disclose" the data or make it available "through reasonable means."

The CSLI Order required the service provider to disclose information in its possession to the Broward Sherriff's Office. It did not authorize action by the State. Thus, the CSLI Order did not permit the use of a cell-site simulator. Lambis , 197 F.Supp.3d at 611 ("The fact that the DEA had obtained a warrant for CSLI from the target cell phone does not change the equation."); see also People v. Smith , No. 1-14-1814, 2017 WL 6722818, at *18 (Ill. App. Ct. Dec. 27, 2017) ; People v. Gordon , 58 Misc.3d 544, 68 N.Y.S.3d 306, 311 (N.Y. Sup. Ct. 2017) ; State v. Andrews , 227 Md.App. 350, 134 A.3d 324, 327 (2016).

The CSLI Order did not authorize the State to act independently. But the sergeant and the Defendant's expert testified that the information maintained by the service provider could not identify the exact location of the Defendant's phone. So the State resorted to other means.

In other words, the CSLI Order authorized indirect government surveillance. But the State could not obtain the information it required through the authorized means. So the State conducted direct government surveillance by using a cell-site simulator. And it did so without a warrant. Based on controlling Supreme Court authority, the court correctly suppressed the evidence obtained as a result of the State's warrantless actions.

Conclusion

We affirm the order finding probable cause existed for issuing the CSLI Order, but suppressing evidence discovered as a result of the State's use of a cell-site simulator.

Affirmed.

Warner and Damoorgian, JJ., concur.

      While the carousel of technological progress continues to move forward, the testimony presented to the circuit court does not. We recognize the ability to track a specific cell phone to a precise location continues to improve. But the Sergeant and the Defendant's expert testified in 2016 and 2017 about a search that took place in 2013, and we state the facts as presented to the circuit court.


author: Conner, J.

text:
    Terri Jo Hoehn MCKENZIE, Appellant, v. Henry Grace MCKENZIE, IV, Appellee.
    No. 4D17-2413
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Peggy Rowe-Linn of Peggy Rowe-Linn, P.A., West Palm Beach, for appellant.
    John D. Boykin of Ciklin Lubitz & O'Connell, West Palm Beach, for appellee.
   Conner, J.

Terri Jo Hoehn McKenzie ("the Former Wife") appeals the final judgment of dissolution of marriage and the trial court's order denying her motion for rehearing and motion to reopen the evidence based on a contention that Henry Grace McKenzie ("the Former Husband") engaged in fraud or conversion of funds. We determine the trial court erred by: (1) awarding a dissipated asset to the Former Wife in the equitable distribution of the parties' marital assets; (2) awarding child support using an incorrect amount for the Former Wife's income; (3) failing to correctly describe the Former Husband's pension plan in equitably distributing the Former Wife's marital interest in the plan; and (4) failing to rule on the parties' agreement regarding life insurance. We affirm without discussion the Former Wife's remaining arguments.

Background

The parties were married in 1992, after which two children were born, one of whom was still a minor at the time of the final dissolution hearing. The Former Wife petitioned and the Former Husband counter-petitioned to dissolve the marriage in 2016. The final hearing was conducted in 2017.

Appellate Analysis

The Error in Equitable Distribution of Marital Assets

The Former Wife argues several reasons why the trial court erred in its equitable distribution of marital assets. We reject all of her arguments, except for the argument that the trial court awarded her "depleted" assets, referring to an amount of money that was in her bank accounts at the time the dissolution proceeding was filed, but had since been used by the time of the final hearing.

At the time the dissolution proceeding was filed, there was $13,275 in the Former Wife's savings account and $13,212 in her checking account. The Former Wife testified at trial that there was no cash left in either account as of the date of the trial, and at one point she specifically testified that a little over $6,000 of the money was used to pay her attorney's fees early on in the proceedings.

The Former Wife is correct that the trial court erred in including a dissipated sum of marital funds in the equitable distribution of marital assets without a specific finding of intentional misconduct.

As a general rule, "it is error to include in the equitable distribution scheme assets or sums that have been diminished or depleted during the dissolution proceedings." Tillman v. Altunay , 44 So.3d 1201, 1203 (Fla. 4th DCA 2010) (quoting Bush v. Bush , 824 So.2d 293, 294 (Fla. 4th DCA 2002) ). Only where there is "evidence of the spending spouse's intentional dissipation or destruction of the asset, and the trial court ... make[s] a specific finding that the dissipation resulted from intentional misconduct" can that dissipated asset be included within the equitable distribution. Roth v. Roth , 973 So.2d 580, 585 (Fla. 2d DCA 2008). Intentional misconduct is demonstrated by evidence that the marital funds were used for one party's "own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown." Id. (quoting Romano v. Romano , 632 So.2d 207, 210 (Fla. 4th DCA 1994) ).

Zvida v. Zvida , 103 So.3d 1052, 1055 (Fla. 4th DCA 2013) (alterations in original). The only testimony as to the use of those funds was by the Former Wife, who testified that she used a portion of the funds to pay part of her attorney's fees. There was no evidence presented that she improperly dissipated the funds. Even if the trial court did not believe her testimony about using part of the funds to pay her attorney's fees, the trial court did not make any specific findings regarding any misconduct, nor would such a finding be supported by the record. Therefore, the trial court's ruling on this matter was error. In readjusting the equitable distribution of marital assets on remand, the trial court has the discretion to readjust the distribution of other assets in the original final judgment, if needed. See Branch v. Branch , 775 So.2d 406, 408 (Fla. 1st DCA 2000) ("[S]ince our reversal of portions of the final judgment necessarily affects the overall plan for equitable distribution of the marital assets and liabilities, as well as other financial aspects, on remand, the trial court may reconsider the entire plan of equitable distribution, including the subjects of alimony and attorney's fees.").

The Error in the Determination of the Former Wife's Income for Purposes of Child Support

The Former Wife argues that the trial court erred in determining her net income by not considering her expenses. The trial court was particularly detailed in its determination of the Former Wife's income. The trial court used the Former Wife's 2015 tax returns, and her stipulation that her income for 2016 was about the same, to conclude her gross income was $63,692. The trial court noted that the Former Wife listed business expenses of $25,942, for a net income of $37,750. However, the trial court also found that the Former Wife "double-counted" two of her expenses, for the automobile and cell phone, by claiming personal expenses for those two categories of $857 and $220 per month, respectively, while at the same time, listing them as business expenses. Therefore, the trial court found that the Former Wife's "true net income" was $50,684. We find no error in the calculation of net income for the Former Wife.

However, the trial court erred in not using its calculation of the Former Wife's net income for its child support calculation. In calculating child support, the final judgment reflects that the trial court used a monthly income of $5,307.66 for the Former Wife. That would mean the annual income amount for Former Wife used to calculate child support would be $63,691.92 ($5,307.66 x 12 = $63,691.92), the amount of her gross income. As the Former Wife correctly argues, section 61.30(2)(a)3., Florida Statutes (2016), states:

(2) Income shall be determined on a monthly basis for each parent as follows:
(a) Gross income shall include, but is not limited to, the following:
....
3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. "Business income" means gross receipts minus ordinary and necessary expenses required to produce income.

(emphasis added).

Additionally, it seems that the trial court used the gross income for both parties in determining the child support award. However, according to section 61.30, the amount of child support is to be determined by the parents' net incomes. See § 61.30(6), Fla. Stat. (2016) ("The following guidelines schedule shall be applied to the combined net income to determine the minimum child support need." (emphasis added) ); see also § 61.30(10), Fla. Stat. (2016) ("Each parent's actual dollar share of the total minimum child support need shall be determined by multiplying the minimum child support need by each parent's percentage share of the combined monthly net income."). Therefore, the trial court erred in calculating the child support by using gross income amounts. Additionally, the Former Husband stipulated that the Former Wife had to pay self-employment taxes, and therefore concedes the taxes should have been considered. Thus, we reverse the trial court's determination as to the amount of child support to consider the parties' net income as well as the Former Wife's self-employment taxes.

The Error in the Award of the Former Wife's Interest in the Former Husband's Pension Plan

The Former Wife argues that the trial court made an improper award of her interest in the Former Husband's pension plan because the final judgment erroneously stated the pension plan is maintained by a municipality, when in fact, the plan was merged into the State of Florida retirement plan prior to the final hearing. The Former Wife also argues the trial court erred by not reserving jurisdiction to enter a qualified domestic relations order ("QDRO") to enforce the equitable distribution of her interest in the plan, including cost of living adjustments. However, the final judgment did make provisions for a QDRO if the municipal plan allowed for such. The Former Husband agrees that the final judgment erroneously described his pension plan as being maintained by a municipality and agrees the final judgment should be corrected in that regard. Thus, we reverse the final judgment as to this issue and remand for the trial court to correct its award of the Former Wife's interest in the Former Husband's State of Florida retirement plan.

The Error in Failing to Rule on Life Insurance

Finally, the Former Wife argues that the trial court erred in failing to rule on life insurance. The Former Husband agrees that the parties stipulated that the Former Wife would own the Former Husband's life insurance and she would pay the premiums, and vice versa. The Former Husband concedes that if the Final Judgment "needs to be supplemented" to incorporate their agreement, he does not object. Therefore, the final judgment is reversed as to this issue and remanded for the trial court to amend it to reflect the parties' stipulations.

Conclusion

We reverse the final judgment and remand the case for the trial court to make appropriate corrections to the final judgment consistent with our determinations above. We do not perceive the need for the trial court to entertain additional evidence to correct the errors requiring reversal, but should that be needed, it is incumbent on the parties to move this Court to amend our remand instructions. The parties are free to submit whatever stipulations they contend will assist the trial court in carrying out the remand instructions. A motion asking this Court to amend the remand instructions is not an appropriate vehicle to obtain a rehearing or reconsideration of our determinations.

Affirmed in part, reversed in part, and remanded with instructions.

Levine and Forst, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jeffrey REININGER, Appellee.
    No. 4D17-3604
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellant.
    Josh A. Howard of Law Office of Josh A. Howard, PLLC, Fort Lauderdale, for appellee.
   Conner, J.

This appeal involves the amendment of a sentencing statute between the date of a criminal offense and the sentencing date, and which version of the statute is the appropriate version to apply. The State appeals the trial court's interpretation of the sentencing statute here and its decision to apply the version of the statute in effect at the time of sentencing rather than the one in effect on the date of the offense. We agree with the State that the trial court applied the incorrect version of the statute.

Background Information and Trial Procedure

Reininger was charged with aggravated assault with a firearm, stemming from an incident in January 2013, when Reininger pulled a gun on a process servicer. A jury returned a verdict in June 2017 finding Reininger guilty as charged. Reininger was adjudicated guilty, a presentence investigation report was ordered, and sentencing was deferred.

Prior to sentencing, Reininger filed a motion for an alternative sentence. He argued that, although the 10-20-Life statute in effect at the time the crime was committed included aggravated assault as an enumerated offense requiring a three-year minimum mandatory sentence, the statute had subsequently been amended, and, as of the date set for sentencing, no longer included aggravated assault as such an enumerated offense. The State responded that the amendment to the statute was not retroactive, and therefore, the court was required to sentence Reininger to the three-year minimum mandatory.

A sentencing hearing was held in October 2017. In determining which version of section 775.087 to apply for sentencing, the trial court looked to the language of the statute, which stated that "a person who is convicted for aggravated assault ... shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a 'firearm' or 'destructive device' during the commission of the offense." § 775.087(2)(a) 1., Fla. Stat. (2013) (emphasis added). Focusing on the term "convicted" in the statute, the trial court ruled:

I understand the State's position. It is my duty to follow the law, interpret the statute, and clearly there is a distinction between the word "conviction" and "commission." If the Legislature intended for the minimum mandatory to apply based upon the commission date of the offense, they would have used the word "commission" and not the word "conviction." Mr. Reininger's conviction came after the law was changed, where the Legislature decided to remove the crime of aggravated assault as an enumerated offense for the purposes of the three-year minimum mandatory.... I am going to follow the letter of the law, which mandates a minimum mandatory based upon a conviction date, not a commission date.

The trial court then sentenced Reininger to a three-year term of probation, with certain conditions. The State gave notice of appeal.

Appellate Analysis

"The issue of whether [a statute] is applicable to cases pending at the time of its enactment is a pure question of law," and therefore, subject to de novo review. Smiley v. State , 966 So.2d 330, 333 (Fla. 2007). Likewise, the interpretation of a sentencing statute is also reviewed de novo . See Paul v. State , 129 So.3d 1058, 1061 (Fla. 2013).

There is no question that the version of section 775.087 in effect on the date that Reininger committed the offense, January 2013, included aggravated assault as an enumerated offense to which a three-year minimum mandatory sentence was required. See § 775.087(2)(a), Fla. Stat. (2013). There is also no question that by the time Reininger was convicted (June 2017) and sentenced (October 2017) for the crime, the offense of aggravated assault was removed from the list of enumerated offenses. § 775.087(2)(a), Fla. Stat. (2017). Therefore, the question posed in this case, is simply which version of the statute applies.

The trial court concluded that the statutory language "a person who is convicted for aggravated assault" indicated that the legislature intended that the statute in effect at the time of conviction was the proper statute to apply for sentencing. The trial court's interpretation was erroneous.

Article X, section 9, of the Florida Constitution, is commonly known as the "Savings Clause." Horsley v. State , 160 So.3d 393, 406 (Fla. 2015). Our supreme court has expressly stated that "the purpose of the 'Savings Clause' is to require the statute in effect at the time of the crime to govern the sentence an offender receives for the commission of that crime." Id. (emphasis added).

Article X, section 9 states that "[r]epeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed." Art. X, § 9, Fla. Const. A "criminal statute" has been defined as:

"[A]n act of the Legislature as an organized body relating to crime or its punishment ... defining crime, treating of its nature, or providing for its punishment ... [or] deal[ing] in any way with crime or its punishment."

Smiley , 966 So.2d at 337 (alterations in original) (emphasis added) (quoting Washington v. Dowling , 92 Fla. 601, 109 So. 588, 591 (1926) ). Therefore, a sentencing statute prescribing the punishment for a crime, such as section 775.087, qualifies as a "criminal statute" for purposes of applying Article X, section 9.

Additionally, "Florida courts have repeatedly held that this prohibition on retroactive application of statutes applies only to statutes that effect substantive change in the law; it has no application to changes in the law that are merely procedural or remedial ." Grice v. State , 967 So.2d 957, 960 (Fla. 1st DCA 2007) (emphasis in original). Changes to statutes affecting the sentencing for a criminal offense are substantive changes. Id. (describing a change as procedural "rather than of substance" because "[i]t does not relate to the elements of an offense or the punishment therefor " (emphasis added) ).

Based on Article X, section 9, "Florida law provides that the punishment in effect at the time of the crime controls the penalty at sentencing. In fact, retroactive application of an amended or repealed statute affecting prosecution or punishment is unconstitutional." State v. Pizarro , 383 So.2d 762, 763 (Fla. 4th DCA 1980) (internal citation omitted). This is true, under Article X, section 9 of the Florida Constitution, regardless of whether the amendment allows for a more favorable result to the defendant. See Hayes v. State , 452 So.2d 656, 657 (Fla. 2d DCA 1984) ("This provision [ Article X, section 9 ] has been interpreted to mean that a defendant is not entitled to the benefit of a lesser sentence if the legislation reducing the statutory sentence is enacted after defendant commits the crime."). Therefore, it is well-settled that retroactive application of a sentencing statute is unconstitutional.

"Wherever possible, statutes should be construed in such a manner so as to avoid an unconstitutional result." State v. Jefferson , 758 So.2d 661, 664 (Fla. 2000) ; see also Fla. Bar v. Sibley , 995 So.2d 346, 350 (Fla. 2008) ("To the extent possible, courts have a duty to construe a statute in such a way as to avoid conflict with the Constitution." (citing State v. Gale Distribs. , 349 So.2d 150, 153 (Fla. 1977) ) ). If we were to construe the version of section 775.087 in effect at the time of conviction to apply to sentencing, rather than the version in effect at the time the crime was committed, such construction would violate Article X, section 9, and therefore, be unconstitutional. Cf. Smiley , 966 So.2d at 337 ("Therefore, article X, section 9 of the Florida Constitution makes it constitutionally impermissible for section 776.013 to receive retroactive application.").

Judge Wolf's concurring opinion in Wright v. State , 225 So.3d 914 (Fla. 1st DCA 2017), is instructive, specifically as to the amendment and application of section 775.087. There, he discussed the intermediate amendment to section 775.087, where the minimum mandatory for aggravated assault was made discretionary. Id. at 915 (Wolf, J., concurring). He explained that the fact that the defendant did not have the benefit of the discretionary version of the statute was a matter of "bad timing" for the defendant, since "the offense was committed prior to [the amendment to section 775.087 ]." Id. (emphasis added). Although not directly analyzing an argument of which version of the statute to apply, the First District affirmed the sentence based on the version of the statute in effect at the date of the offense. Id.

Therefore, the version of section 775.087 under which Reininger should be sentenced is the one in effect on the date that he committed the crime. Since that version clearly included aggravated assault as an enumerated offense carrying a three-year minimum mandatory sentence, the trial court was required to impose the mandatory minimum sentence. See State v. Calzada-Padron , 708 So.2d 287, 287 (Fla. 2d DCA 1996) ("Since the appellee in the instant case was convicted of one of the enumerated felonies in the statute and had in his possession a firearm, the trial court was required to sentence him to three years in state prison as the minimum sentence" (emphasis added)). We reverse and remand with instructions that the trial court sentence Reininger in accordance with this opinion.

Reversed and remanded with instructions.

Levine and Forst, JJ., concur.

      Section 775.087, Florida Statutes (2013).

      There were two other versions of section 775.087 that went into effect between the date Reininger committed the offense and the date on which he was convicted. Both versions also listed aggravated assault as an enumerated felony for the three-year minimum mandatory, however, both gave the trial court the discretion to not sentence a defendant to the three-year minimum mandatory if it found certain factors. See §§ 775.087(6), Fla. Stat. (2014) (eff. June 20-30, 2014), 775.087(6), Fla. Stat. (2014) (eff. July 1, 2014-June 30, 2016).