text:
    Rafael BENAVENTE and Clara E. Benavente, Appellants, v. OCEAN VILLAGE PROPERTY OWNERS ASSOCIATION, INC., and Guivaz Enterprises, LLC, Appellees.
    No. 4D18-1819
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    David J. Miller of Law Offices of Damian G. Waldman, P.A., Largo, for appellants.
    J. Henry Cartwright of Fox McCluskey Bush Robinson, PLLC, Stuart, for appellee Ocean Village Property Owners Association, Inc.
    Patrick Dervishi of Shir Law Group, P.A., Boca Raton, for appellee Guivaz Enterprises, LLC.
   Per Curiam.

Rafael and Clara Benavente ("the Homeowners") appeal a nonfinal order denying their Motion to Vacate Certificate of Title, Certificate of Sale, Final Default Judgment of Foreclosure, and Clerical Defaults and Motion to Quash Constructive Service of Process ("Motion to Vacate and Quash"). Given that Ocean Village Homeowner's Association ("the Association") did not properly exercise due diligence in its efforts to personally serve the Homeowners at their primary address and presented a facially deficient Affidavit for Service by Publication, we reverse and remand the trial court's finding that constructive service of process by publication was proper.

The Association filed a complaint against the Homeowners, seeking to foreclose on a lien for unpaid assessments. Counsel for the Association sent pre-suit demand letters to three addresses: a Fort Pierce property being foreclosed on, and two Key Biscayne properties-one on Harbor Drive and one on Crandon Boulevard.

The Homeowners signed a certified mail receipt at the Harbor Drive property, acknowledging receipt of the pre-suit demand letter. However, the Association only attempted to serve the Homeowners at the Fort Pierce property.

After failing to locate and serve the Homeowners, the Association filed an Affidavit of Non-Service that reflected seven attempts of service at the Fort Pierce property-and each attempted service noted that there was no answer at the door, there was no vehicle in the driveway, and/or the property seemed vacant.

Thereafter, the Association filed an Affidavit for Service by Publication that alleged that the Homeowners could not be found within Florida. Relevantly, the affiant certified the following as true:

4. That Affiant has made a diligent search, an honest and conscientious effort and inquiry and good faith efforts on information available to located [the Homeowners] by use of:
a. Process servers/investigators,
b. Computerized legal research and people trackers,
c. Skip traces, and
d. DBPR license searches.
5. That the residences of [the Homeowners] is unknown and attempts to track down [the Homeowners] at other known addresses reasonably available to Plaintiff have been unsuccessful.

As a result of the Affidavit for Service by Publication, service was published twice in the St. Lucie News Tribune. Due to a lack of response within thirty days, the Association moved for, and the clerk entered, a default. Then, the Association moved for, and the trial court entered, a final default judgment. Consequently, the Fort Pierce property was sold at a foreclosure auction to a third party to whom title was transferred.

The Homeowners subsequently filed the aforementioned Motion to Vacate and Quash, along with affidavits in support of the motion. According to these filings, a diligent search was not conducted because the applicable public records would indicate that the Homeowners' primary residence was the Harbor Drive property where they had resided since 2010. Further, they claimed that the Association knew their primary address, there had been prior litigation between the parties, the Association knew the Fort Pierce property was a rental property, and the Association possessed the Homeowners' email address.

At the hearing on the Motion to Vacate and Quash, the parties essentially recounted the facts as described above with a few additions. The Homeowners contended that, since there was no car in the driveway of the Fort Pierce property and it "appeared vacant," it was reasonable to presume that no one lived there; yet, for some unexplained reason, the Association did not attempt to serve the Homeowners at either the Harbor Drive or Crandon Boulevard addresses.

The Association acknowledged that the demand letters were sent to "two different Miami addresses," and conceded that the Homeowners signed the certified mail receipt at the Harbor Drive property. However, counsel for the Association claimed that "mail had been shut off at the Harbor Drive [property]," which caused the Association to believe that the Homeowners did not live there either. Counsel further maintained that the Association attempted service three weeks after a hurricane, but "access to the Keys had been cut off and people had been evacuated."

The court ultimately determined there was "insufficient evidence to grant the motion," and denied the Homeowners' Motion to Vacate and Quash. An order was later entered to that effect. The trial court denied a subsequent motion for rehearing filed by the Homeowners, and this appeal followed.

"An order denying a motion to vacate a default judgment is reviewed under an abuse of discretion standard." Fla. Eurocars, Inc. v. Pecorak , 110 So.3d 513, 515 (Fla. 4th DCA 2013) ; see also Lloyd's Underwriter's At London v. Ruby, Inc. , 801 So.2d 138, 139 (Fla. 4th DCA 2001) ("It is an order granting a motion to vacate which is reviewed under a gross abuse of discretion standard." (Emphasis in original) ).

We recently stated:

"Substitute service statutes are an exception to the rule requiring personal service, and ... must be strictly construed ... to protect a defendant's due process rights." Clauro Enters., Inc. v. Aragon Galiano Holdings, LLC , 16 So.3d 1009, 1011 (Fla. 3d DCA 2009). The fundamental purpose of service is to give proper notice to a defendant in a case so that the party is answerable to the claim of the plaintiff and, therefore, to vest jurisdiction in the court entertaining the controversy. Shurman v. Atl. Mortg. & Inv. Corp. , 795 So.2d 952, 953 (Fla. 2001). Where constructive service is attempted, the trial court must determine both whether the affidavit of diligent search filed by the plaintiff is legally sufficient, and whether the plaintiff conducted an adequate search to locate the defendant. Giron v. Ugly Mortg., Inc. , 935 So.2d 580, 582 (Fla. 3d DCA 2006) (citing Se. & Assocs., Inc. v. Fox Run Homeowners Assoc., Inc. , 704 So.2d 694, 696 (Fla. 4th DCA 1998) ). Substitute service is unauthorized if personal service could be obtained through reasonable diligence; the test is "whether the complainant reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable him to effect personal service on the defendant." Coastal Capital Venture, LLC v. Integrity Staffing Sols., Inc. , 153 So.3d 283, 285 (Fla. 2d DCA 2014) (citations omitted). This is because "there is a strong public policy interest in seeing that a defendant receives notice of any action against him so that he may have his day in court in accordance with due process requirements." Id.

Green Emerald Homes, LLC v. Bank of New York Mellon , 204 So.3d 512, 515 (Fla. 4th DCA 2016) ; accord § 49.011, Fla. Stat. (2017) ; § 49.021, Fla. Stat. (2017) ; § 49.041, Fla. Stat. (2017) ; Martins v. Oaks Master Prop. Owners Ass'n, Inc. , 159 So.3d 142, 145-46 (Fla. 5th DCA 2014) ; First Home View Corp. v. Guggino , 10 So.3d 164, 165 (Fla. 3d DCA 2009).

"If the trial judge were to find the affidavit to be defective on its face, service would be void as to the bona fide purchaser." Lewis v. Fifth Third Mortg. Co. , 38 So.3d 157, 160 (Fla. 3d DCA 2010). "If the trial judge finds the affidavit sufficient on its face, but were to determine that a diligent search was not performed, the foreclosure would be voidable, not void, as to the bona fide purchaser." Id.

In Martins , the Fifth District considered facts strikingly similar to this case. There, a homeowner's association filed a foreclosure complaint against Martins. Martins , 159 So.3d at 144. The association addressed a letter containing a claim of lien to Martins at the subject property; thereafter, a service processor attempted to serve him at the same address, but found the house unfurnished and without power. "A neighbor reported that the owner [was] there now and then." Id. Subsequently, the association filed an affidavit for service by publication describing several methods used to attempt to contact Martins. Id. at 144-45. The association published a notice in a local newspaper, the clerk granted default, and the trial court entered summary final judgment in favor of the association. Id. at 145. Consequently, the property was sold at public auction to a third party.

Martins then filed a motion to vacate final judgment, void sale of real property, vacate default, and quash service of process. He insisted that the association's search was insufficient because it failed to consult: public records outside of Osceola County, the voter registration records, the Osceola County Tax Collector's records, the Florida Department of Motor Vehicle records, Martins' neighbors, or utility companies servicing the subject property. He claimed that had the association consulted these resources, it would have discovered that he lived in Cutler Bay, Florida, not Osceola County. In addition, Martins stressed that the association had previously mailed correspondence to his Cutler Bay address, but never attempted service at that location.

The Fifth District ruled, "[A]lthough the HOA made some effort to obtain Martins' address, its search was less than diligent because his address was easily accessible ...." Id. at 147. "[N]ot only was the HOA's search insufficient, but the HOA's affidavit [wa]s patently inaccurate in that it fail[ed] to disclose that the HOA was aware of Martins' Cutler Bay address." Id. The Fifth District reversed and remanded the trial court's order denying Martins' motion to vacate and quash because the summary final judgment was void-all while considering the appeal under the heightened and incorrect standard of review of gross abuse of discretion.

This case is an example whereby a foreclosure is void as a matter of law for two reasons: (1) the Affidavit for Service by Publication was facially defective, and (2) the Association did not conduct a diligent search. See Lewis , 38 So.3d at 160. First, the Affidavit was "patently inaccurate" because it failed to note that the Association was aware of the Homeowners' Harbor Drive address. See Martins , 159 So.3d at 147. Second, while the Association made some effort to search for and serve the Homeowners, it failed to uncover an easily accessible address. See id. The Association possessed a certified mail receipt indicating that the Homeowners received mail at the Harbor Drive address and an email address to contact the Homeowners and inquire as to their primary residential address. This information was sufficient to provide a basis for service at the Harbor Drive address, or at least the reasonable likelihood of the address's discovery.

We reverse and remand because the trial court erred by denying the Homeowners' Motion to Vacate and Quash since the affidavit was facially deficient and a diligent search was not conducted. See id.

Reversed and remanded.

Taylor, Levine and Klingensmith, JJ., concur.

      Two entries noted the placement and removal of a card or note.

      The court cited to several relevant cases in support of its decision:
      See Godsell [v. United Guar. Residential Ins. ], 923 So.2d [1209] at 1215 [ (Fla. 5th DCA 2006) ] (finding that final judgment of foreclosure was void where the constructive service on defendant was ineffective due to the plaintiff's failure to do a diligent search and failure to include, inter alia, any reference to the defendant's possible Canadian address); Miller [v. Partin ], 31 So.3d [224] at 228 [ (Fla. 5th DCA 2010) ] (finding that constructive service by publication was defective based on the fact that plaintiffs knew the defendant's physical address, the defendant had previously been served twice at his known address, and the plaintiffs' attorney had mailed correspondence to the defendant's known address; and reversing final default judgment of partition); Gans v. Heathgate-Sunflower Homeowners Ass'n, Inc. , 593 So.2d 549, 551 (Fla. 4th DCA 1992) (finding that two unsuccessful service attempts were not sufficient to allow for service by publication where the plaintiff failed to ascertain the defendant's whereabouts by talking to her neighbors, or trying to contact her by phone or by mail); Redfield [Investments, A.V.V. v. Village of Pinecrest ], 990 So.2d [1135] at 1138-39 [ (Fla. 3d DCA 2008) ] (finding that plaintiff's search fell below the statutory and constitutional requirements necessary to satisfy Florida's service of process by publication law where plaintiff made some efforts to locate the defendant, but the sworn statement did not indicate that the plaintiff contacted the source that most likely could have provided information regarding the defendant); Floyd [v. Federal Nat. Mortg. Ass'n ], 704 So.2d [1110] at 1112 [ (Fla. 5th DCA 1998) ] (finding that the affidavit omitted the most meaningful search, namely "getting out of the office, finding the property, inquiring of persons in possession of the property, or talking with neighbors, relatives or friends").
      Martins , 159 So.3d at 147.


source: Caselaw Access Project

author: Conner, J.

license: Public Domain

text:
    John POWERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1652
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

Appellant, John Powers, appeals his judgment and sentence entered below for DUI Manslaughter-Unlawful Blood-Alcohol Level ("UBAL"), raising several issues. The State concedes error as to all but two of the issues raised. Regarding the contested issues, we find merit as to Appellant's contention that the trial court erred by considering a scoresheet with improper points for prior record and reverse for a de novo resentencing. Our reversal renders the remaining issue not conceded by the State as moot.

Background

The information charged Appellant DUI Manslaughter in violation of sections 316.193(1)(a) and 316.193(3)(a)(b)(c)3.a, Florida Statutes, in Count 1 and DUI Manslaughter-UBAL in violation of sections 316.193(1)(b) and 316.193(3)(a)(b)(c)3.a, Florida Statutes, in Count 2. Both charges were in connection with a fatal crash.

Appellant entered an open guilty plea to both counts upon the State's agreement to drop one of the counts at sentencing because the counts were duplicate. At sentencing, the State dropped Count 1, and Appellant was adjudicated guilty of Count 2, DUI Manslaughter-UBAL. However, the judgment lists the offense as having been committed under both sections 316.193(1)(a) and 316.193(3)(a)(b)(c)3.a, Florida Statutes.

Appellant's sentencing scoresheet listed eleven prior offenses by year and county only, except for one case for which the case number was provided. All of the offenses were listed to have occurred in 1999 or earlier. Appellant's scoresheet stated a total of 9.4 points for prior record. Notably, the State did not enter any evidence of Appellant's prior record at the sentencing hearing.

The trial court sentenced Appellant to 132 months in prison, followed by two years of community control, followed by two years of probation. The trial court imposed a four-year minimum mandatory prison sentence. The order assessing charges, costs, and fees imposes a $400 cost for "public defender assistance (PD fee imposed)," although no such fee was orally pronounced as part of Appellant's sentence. The trial court orally pronounced that Appellant was ordered "to have a drug and alcohol evaluation and follow-up treatment as deemed appropriate," but did not orally state that Appellant was required to pay for the evaluation and treatment, nor did it specifically waive Appellant's obligation to pay for those services. Nevertheless, the trial court's written sentencing order requires Appellant to be "responsible for the payment of any costs incurred while receiving said evaluation and treatment, unless waived by court." The written sentencing order also requires Appellant to "maintain an hourly accounting of all [his] activities on a daily log" to submit to his probation officer upon request. Likewise, this condition was not mentioned during the trial court's oral pronouncement of Appellant's sentence.

Additionally, the written sentencing order reflects a clerical error on the third page, in which it indicates the sentence is for Count 1 (which was dropped), while the first two pages of the order correctly indicate the sentence is for Count 2.

After sentencing, Appellant gave notice of appeal. During the pendency of this appeal, Appellant filed two motions to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not rule on either motion within sixty days of their respective filings, which constitutes a denial of both under Florida Rule of Criminal Procedure 3.800(b)(2)(B).

Appellate Analysis

Appellant raises six issues on appeal, contending the trial court erred by: (1) considering a scoresheet that contained improper prior record points; (2) denying Appellant's motions to correct sentence asserting a lack of evidence to support the prior record for which scoresheet points were assessed; (3) imposing a $400 public defender fee; (4) imposing a payment requirement for special conditions of supervision without an oral pronouncement of the obligation at sentencing; (5) making a scrivener's error in the written judgment regarding the offense statute number; and (6) making a scrivener's error in the written judgment regarding the count of the sentence.

The State concedes error as to issues 3, 4, 5, and 6. As analyzed below, we find merit with Appellant's arguments regarding issue 1 (assessment of prior record points) and reverse as to that issue as well. Because we reverse on issue 1, issue 2 (proof of prior record) is moot.

Improper Assessment of Prior Record Points

The standard of review for a motion to correct sentencing error is de novo . Willard v. State , 22 So.3d 864, 864 (Fla. 4th DCA 2009).

Appellant's scoresheet listed eleven offenses as part of his prior record, all occurring in 1999 or earlier. Appellant argues that the eleven offenses listed as part of his prior record should not have been scored due to their age.

Florida Rule of Criminal Procedure 3.704 excludes various offenses from consideration as it relates to an offender's prior record. Relevant here, rule 3.704(d)(14)(A) provides:

Convictions for offenses committed more than 10 years before the date of the commission of the primary offense must not be scored as prior record if the offender has not been convicted of any other crime for a period of 10 consecutive years from the most recent date of release from confinement, supervision, or other sanction, whichever is later, to the date of the commission of the primary offense .

Fla. R. Crim. P. 3.704(d)(14)(A) (emphasis added). Notably, the rule provides that "[a]ny uncertainty in the scoring of the offender's prior record must be resolved in favor of the offender[.]" Fla. R. Crim. P. 3.704(d)(14)(D).

The parties agree that none of Appellant's listed prior offenses were committed within 10 years of the date of the commission of the primary offense in this case. The parties also agree that pursuant to rule 3.704(d)(14)(A), unless the above emphasized provision of the rule applied to one of his offenses, none of them should have been included. The point in contention in this appeal involves the parties' disagreement over the application of this provision to Appellant's 1999 grand theft conviction, for which he was sentenced to two years of probation beginning March 12, 1999. Appellant points out that this sanction was scheduled to end March 2001, which is more than 10 years before the June 12, 2011 date of the primary offense in this case-meaning that the saving provision would not have applied to this offense.

However, review of the case information record reflects that the probation for that charge did not end in March 2001, but rather was terminated on May 25, 2011-approximately three weeks before the primary offense in this case. The case information record also shows that an affidavit of violation of probation was filed on February 2, 2000, but that no action was taken until 2011, when the probation violation was withdrawn and probation was terminated on May 25, 2011. Based on the face of the record, therefore, it would appear that Appellant was under supervision within 10 years of the primary offense in this case, such that his prior offenses could be scored.

Appellant argues, however, that despite what the record says, it is legally incorrect. Appellant explains that although provisions exist today that can toll probation when a probationer violates the terms of his supervision, which could have allowed his probation to extend beyond its original two-year span and last until 2011, provisions are inapplicable to the 1999 grand theft case. Specifically, Appellant points out that section 948.06(1)(f), Florida Statutes, which provides for tolling of probation where a violation of probation is filed, was not made effective until July 1, 2001, which is four months after Appellant's probation had already expired in March 2001. 2001 Fla. Sess. Law Serv. Ch. 2001-109 (C.S.S.B. 888) (WEST). The State agrees that the tolling provisions of section 948.06(1) are inapplicable to the 1999 grand theft case. Zaborowski v. State , 126 So.3d 405, 408 (Fla. 2d DCA 2013) (holding that the tolling provisions of section 948.06(1), which did not exist at the time of the probationer's violations, could not be retroactively applied where the probationary period had expired before the statute was enacted). Therefore, there appears to be no dispute that Appellant's probation could not have been tolled by the State's filing of its affidavit of violation of probation in 2000.

The parties also appear to agree that tolling did not exist at the time for anything other than absconsion. See Young v. State, 739 So.2d 1179, 1180 (Fla. 4th DCA 1999) (allowing for tolling during absconsion). However, although the affidavit of violation of probation made no allegation of absconsion, the State suggests Appellant's probation could have still been tolled based on absconding-asserting that "it is unknown if there were ever any formal allegations of absconding in [Appellant's] 1999 grand theft case." In this regard, the State asserts that there is a factual dispute as to whether there are any facts in the 1999 grand theft case which would have tolled Appellant's probation. To this end, the State advises that it has no objection to this Court remanding the case to the trial court to "resolve the factual dispute of when probation terminated."

Although Appellant disagrees that there is a factual issue, he contends in the alternative that, should we determine this is a factual dispute, rule 3.704(d)(14)(D) requires resolution of such in his favor or by the trial court on remand. However, Appellant's primary argument is that the date on which his probation ended is a legal question, and that, with no tolling in effect, Appellant's probation ended in March 2001, and the trial court had no jurisdiction over Appellant after that date. See Mobley v. State , 197 So.3d 572 (Fla. 4th DCA 2016) ("It is axiomatic that '[o]nce a term of probation has expired, a court lacks jurisdiction to entertain an application for revocation of probation based on a violation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation.' " (alteration in original) (quoting Shenfeld v. State , 14 So.3d 1021, 1023 (Fla. 4th DCA 2009) ) ). As such, Appellant argues that when the State finally purported to drop the probation violation on May 25, 2011, it did so in a court that had lost jurisdiction over ten years earlier. Additionally, Appellant emphasizes that he was never found to have violated his probation; rather the pending violation charge was "voluntarily withdrawn," such that even if tolling had been possible in a case this old, it would be unjust to allow the State to extend a defendant's probationary period for ten years effectively prolonging the relevance of a prior record which the rules clearly intend to exclude, and then to not even pursue the underlying violation.

We agree that although the State is correct that the record indicates the trial court did purport to terminate Appellant's probation in 2011, it did not have jurisdiction to do so because Appellant's probation had already been automatically terminated by virtue of it expiring in 2001. Furthermore, the record does not reflect that anything occurred before March 2001 to toll the original expiration date for probation. As Appellant points out, while the trial court may not have realized his probation ended in 2001, such does not change the fact that it was. See id. Furthermore, the State concedes that the affidavit of probation in this record does not allege that Appellant absconded such as would allow his probation to be tolled, but merely suggests that there could possibly be other "unknown" documents that do allege absconsion. As such, the State does not even argue that evidence of absconsion does exist, it only argues that evidence may exist. However, the State has not referenced any authority that would allow it another opportunity to determine whether there is any other unknown evidence that could possibly exist, where the records it relied on below appear to be consistent with Appellant's claim that his probation expired in 2001 and that he was not on probation when his probation was eventually purportedly revoked.

Allowing the State another opportunity to determine whether any other unknown evidence of absconsion exists and to introduce it at another hearing would give it a second bite at the apple. Instead, where the parties acknowledge that the affidavit and record says what it does, a legal, not a factual, question remains: Whether the law, when applied to the affidavit of violation of probation, comports with what the records show. There is no dispute that application of the law to the facts as shown by the record does not reflect any allegation of absconsion by Appellant such that would have tolled his probation. Therefore, as a matter of law, the 9.4 points for the prior offenses should not have been included on Appellant's scoresheet.

Because the record does not conclusively demonstrate that the trial court would have imposed the same sentence had a correct scoresheet been presented, we reverse Appellant's sentence and remand for a de novo resentencing. See State v. Anderson , 905 So.2d 111, 118 (Fla. 2005) ; Naugle v. State , 244 So.3d 1127, 1128 (Fla. 4th DCA 2018) (explaining that when scoresheet errors are presented via (1) direct appeal, (2) Florida Rule of Criminal Procedure 3.800(b), or (3) Florida Rule of Criminal Procedure 3.850, then "any error is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a corrected scoresheet" (quoting Brooks v. State , 969 So.2d 238, 241 (Fla. 2007) ) ).

Conclusion

Having determined that the trial court considered a scoresheet with improper prior record points at sentencing, we reverse the sentence imposed and remand for a de novo resentencing. The State concedes the trial court made several other errors in the written sentence. We trust the trial court will not commit the same errors upon resentencing.

Reversed and remanded.

Taylor and Kuntz, JJ., concur.


author: Kuntz, J.

text:
    Carol PUHL n/k/a Carol Morley, Appellant, v. Thomas PUHL, Appellee.
    No. 4D18-365
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Chet E. Weinbaum, Fort Pierce, for appellant.
    No appearance for appellee.
   Kuntz, J.

The Former Wife timely appeals the circuit court's final order granting the Former Husband's second amended supplemental petition for modification of timesharing and parental responsibility. Because we find that there was no substantial, material, and unanticipated change in circumstances supporting modification, we reverse.

Background

The circuit court entered a final judgment of dissolution of marriage, which incorporated an agreed parenting plan. The agreed parenting plan provided that the parties had shared parental responsibility and, if they could not agree, the Former Wife had ultimate decision-making authority over the child's education, healthcare, and religious upbringing.

One year after the court adopted the agreed parenting plan, the Former Husband filed his second amended supplemental petition for modification of timesharing and parental responsibility. He argued that a "substantial, material, permanent and unanticipated change in circumstances," relating to the Former Wife's care of the minor child's health, justified amendment to the parenting plan. The Former Husband alleged the Former Wife was deciding healthcare issues for the child without consulting him and was requiring the child to receive unnecessary medical treatment. As a result of the alleged change in circumstances and the Former Wife's alleged "detrimental" actions, the Former Husband requested that he have ultimate decision-making authority.

The court held an evidentiary hearing and granted the Former Husband's motion.

Analysis

"[A] determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child." Reed v. Reed , 182 So.3d 837, 840 (Fla. 4th DCA 2018) (quoting § 61.13(3), Fla. Stat. (2014) ).

The burden to establish the substantial, material, and unanticipated change in circumstances is on the movant. Id. (quoting Chamberlain v. Eisinger , 159 So.3d 185, 189 (Fla. 4th DCA 2015) ). And it is an "extraordinary burden." Sanchez v. Hernandez , 45 So.3d 57, 61-62 (Fla. 4th DCA 2010) (quoting Shaw v. Nelson , 4 So.3d 740, 742 (Fla. 1st DCA 2009) ).

The Former Wife relies on Sanchez to support her position that the court erroneously granted modification. In Sanchez , the mother was the primary residential parent, with custody rotating between the mother in Pennsylvania and the father in Florida. 45 So.3d at 58. The father petitioned for modification based on a substantial change in circumstances-"an increased lack of communication" between him and the mother. Id. at 58-59. The father also conceded that he agreed in the original agreement that the mother would be the primary residential parent. Id. at 58.

In Sanchez , the father also testified that "he learned of instances where the mother had not kept him informed regarding various medical issues with the child," such as the child dislocating her shoulder and almost developing pneumonia. Id. at 59. Notably, the mother had taken the child to see a psychiatrist, but "[t]he father did not think there was a need for the child to see a psychiatrist[.]" Id. at 59-60. The circuit court concluded "that there had been a substantial and material change in circumstances" and granted the father's petition, designating him as the primary residential parent. Id. at 61.

We reversed, holding that "[e]ven when the custodial mother does not keep the father apprised of a child's activities, and the father has the ability to keep himself informed, such evidence only establishes a communication problem which does not constitute a change in circumstances for the purposes of custody modification." Id. at 62 (citation and footnote omitted). We concluded that "the evidence presented to the trial court was insufficient to meet the extraordinary burden necessary to justify judicial intervention in the custody arrangement initially agreed upon by the parties." Id. (citing Wyckoff v. Wyckoff , 820 So.2d 350, 356 (Fla. 2d DCA 2002) ).

As in Sanchez , the Former Husband alleges the Former Wife is taking the child to therapy that the child does not need. But a medical professional diagnosed the child with the condition for which the Former Wife seeks treatment. And the record supports a finding that the child's issue arose before entry of the final judgment of dissolution. The Former Husband also conceded in his second petition that the child was diagnosed with certain issues before the entry of the final judgment of dissolution.

These facts do not support a finding of a substantial, material, and unanticipated change in circumstances. Thus, modification was improper.

Conclusion

We reverse the circuit court's order granting the Former Husband's second petition for modification.

Reversed.

Taylor and Conner, JJ., concur.


author: Gerber, C.J.

text:
    Brandon HINCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2198
    District Court of Appeal of Florida, Fourth District.
    [December 5, 2018]
    Carey Haughwout, Public Defender, and Claire V. Madill, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals from his conviction for attempted second-degree murder, following an altercation in which the defendant stabbed the alleged victim multiple times. The defendant primarily argues that the trial court erred in sustaining the state's hearsay objection to the testimony of a witness who heard the defendant's alleged excited utterance less than a minute after the altercation, which testimony corroborated the defendant's recitation of the alleged excited utterance and supported his self-defense claim. We agree with the defendant's argument and reverse for a new trial.

The Trial Evidence

The alleged victim testified as follows. Using a social media website, he and the defendant agreed to meet for a sexual encounter. The alleged victim drove to pick up the defendant at a gas station. From there, they drove to a restaurant. During the drive and at the restaurant, the alleged victim and the defendant discussed their sexual interests. The defendant explained that, in the past, he had only female sexual partners, but he wanted to explore his attraction to men.

The alleged victim and the defendant ultimately went to the alleged victim's third floor hotel room for their sexual encounter. According to the alleged victim, shortly after they arrived in the hotel room, the defendant, without provocation, took out a knife, and slashed the victim's throat. As the alleged victim tried to escape through the hotel room door, the defendant continued to stab the alleged victim in the torso and in the back of the head. The alleged victim managed to knock the knife out of the defendant's hand and then open the hotel room door. As the alleged victim struggled to leave the room, the defendant ran past the alleged victim and fled down the hallway to the elevator.

The defendant chose to testify in his case-in-chief. According to the defendant, soon after going into the hotel room, he changed his mind about the sexual encounter and tried to leave. However, the alleged victim blocked the defendant, began groping the defendant, pushed the defendant down onto the bed, and got on top of the defendant's legs. The defendant began screaming. The alleged victim then said "he had turned many guys before but [the defendant] was feistiest." The defendant, believing that the alleged victim was going to rape him, removed a knife from his front pocket, flicked it open, and slashed the victim's throat. The defendant raced to the hotel room door, but the alleged victim got to the door first and held it shut, preventing the defendant from leaving. The defendant reacted by wildly slashing at the victim. The defendant then dropped the knife and ran out of the room. The defendant ran to the elevator and took "less than a minute" to get from the third floor to the lobby, where he found a hotel employee. The defendant testified that while still in shock and terrified, he told the hotel employee: "[T]here is a guy ... he tried to molest me, I stabbed him, please call [t]he police and ambulance." The defendant stayed until the police arrived. The defendant suffered no injuries.

Next, the defendant sought to call the hotel employee as a witness. Defense counsel alerted the court that an evidentiary issue existed which the court may wish to consider outside the jury's presence. According to defense counsel, the hotel employee would testify that she saw the defendant come down to the lobby in a very excited state and immediately said, "I've just been attacked, call the police." The state responded that it "would be objecting in the sense that it is a self-serving statement made by the defendant." The defendant replied, "it comes under the hearsay exception of excited utterance."

Defense counsel then conducted the following proffer with the hotel employee:

DEFENSE COUNSEL: [T]ell me how you came into contact with [the defendant].
HOTEL EMPLOYEE: I was at the front desk and he came from behind.
...
DEFENSE COUNSEL: And clothing-wise what did you notice that was odd?
HOTEL EMPLOYEE: He was bloody everywhere.
DEFENSE COUNSEL: Okay. And now the demeanor, how he was, how he was acting, can you describe that for the Court?
HOTEL EMPLOYEE: Yes. He was shaking, he was scared, he was like muttering like trying to get the words out.
...
DEFENSE COUNSEL: And what, what did he tell you?
HOTEL EMPLOYEE: [A]t first I was shocked, I looked and he was like: Help, I've been attacked, I stabbed someone ... And then I said what? And then he was like: Yes, I've been attacked, help, I stabbed someone. And I said where and he said on the third floor. And, yeah, that's what he said.
DEFENSE COUNSEL: And was his statement "I've been attacked; I stabbed someone" was that in response to any question that you posed to him?
HOTEL EMPLOYEE: No.
DEFENSE COUNSEL: It was just a spontaneous uttering?
HOTEL EMPLOYEE: The only question I asked him was where.
DEFENSE COUNSEL: And did this happen ... immediately when he saw you, came up to you?
HOTEL EMPLOYEE: Yes.

Following the proffer, the state argued that the hotel employee had no knowledge of the defendant's ordinary manner of speaking. The state acknowledged that the defendant made the statement to the hotel employee close in time to the altercation.

However, the state argued that the statement was a self-serving statement and not an excited utterance.

Defense counsel reiterated the argument that the statement was an excited utterance, because the defendant made the statement less than a minute after the altercation, and both the defendant and the hotel employee testified "he was frightened, he was terrified by what he saw."

The trial court sustained the state's objection. The trial court reasoned:

The rule is clear in terms of hearsay. 801 suggest[s] obviously that it's hearsay and I do find it's hearsay. I don't find any exceptions applicable to that particular statement. I do find that it is self-serving but more importantly it goes into exculpatory statements by a defendant. And there are a number of cases that would suggest that the statement is not admissible even if it were under an exception....
And the cases that I'm relying on include Rodriguez v. State , 591 So.2d 308 [ (Fla. 3d DCA 1991) ]. You got Logan v. State , 511 So.2d 442 [ (Fla. 5th DCA 1987) ]. Fagan v. State , 425 So.2d 214 [ (Fla. 4th DCA 1983) ]. And ... Cotton v. State , 763 So.2d 437 [ (Fla. 4th DCA 2000) ].
The defendant is trying to introduce his own statement through somebody that's exculpatory and for the truth of the matter asserted. Under the cases I just cited including the Cotton case[,] that will not allow this Court to admit that particular statement. [The hotel employee's] observations are one thing, what she saw is not hearsay so she can testify as to her own observation. But as far as what the defendant said it is hearsay, not within exception, exculpatory, and self-serving ....
Hence ... I'm not going to allow the exculpatory statement, [the hotel employee] is not allowed to testify regarding the statement that [the defendant] made.

Defense counsel stated that because of the trial court's ruling, the defendant would not be calling the hotel employee as a witness. Instead, the defendant rested his case.

The jury found the defendant guilty of attempted second-degree murder as charged in the information.

This Appeal

This appeal followed. The defendant argues the trial court erred in sustaining the state's objection to the hotel employee's proffered recitation of the defendant's alleged excited utterance, which recitation corroborated the defendant's testimony and supported his self-defense claim.

A. Standard of Review and the Applicable Rules and Case Law

Our standard of review is abuse of discretion, limited by the rules of evidence. Dunbar v. State , 230 So.3d 8, 11 (Fla. 4th DCA 2017).

Section 90.801(1)(c), Florida Statutes (2017), defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

Section 90.802, Florida Statutes (2017), provides that hearsay is inadmissible unless an exception exists under section 90.803 or section 90.804, Florida Statutes (2017).

Section 90.803(2), Florida Statutes (2017), defines the "excited utterance" exception to the hearsay rule as: "A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

To determine whether a statement qualifies as an "excited utterance" under section 90.803(2), the Florida Supreme Court has set forth a three-prong test:

[T]he statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event.

Hayward v. State , 24 So.3d 17, 29 (Fla. 2009) (citations and internal quotation marks omitted).

Elaborating upon the second prong, we have held:

There is no bright line standard by which to measure the length of a permissible time gap between a [startling event] and a [declarant's] statement for purposes of analyzing the admissibility of the statement as an excited utterance. Instead, where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.

Rivera v. State , 718 So.2d 856, 858 (Fla. 4th DCA 1998) (citations and internal quotation marks omitted).

B. The Trial Court's Reasoning was Incorrect

As stated above, the trial court sustained the state's objection to the hotel employee's proffered recitation of the defendant's statement, reasoning "that it is self-serving but more importantly it goes into exculpatory statements by a defendant. And there are a number of cases that would suggest that the statement is not admissible even if it were under an exception."

The trial court's reasoning was incorrect. We have held, where a defendant's statement qualifies as an excited utterance admissible under section 90.803(2), "[t]he mere fact that statements are self-serving is not, in and of itself , a sufficient evidentiary basis for their exclusion from evidence." Stiles v. State , 672 So.2d 850, 851-52 (Fla. 4th DCA 1996) (emphasis added; citation omitted).

Moreover, the four cases upon which the trial court relied - Rodriguez v. State , 591 So.2d 308 (Fla. 3d DCA 1991) ; Logan v. State , 511 So.2d 442 (Fla. 5th DCA 1987) ; Fagan v. State , 425 So.2d 214 (Fla. 4th DCA 1983) ; and Cotton v. State , 763 So.2d 437 (Fla. 4th DCA 2000) - are all distinguishable. The first three cases did not involve situations in which a defendant was seeking to admit his own statements through section 90.803(2)'s excited utterance exception. The fourth case, Cotton , was "devoid of any evidence that would qualify appellant's statement as an excited utterance under [ section] 90.803(2)." 763 So.2d at 440.

Thus, the question we now turn to in this case is whether sufficient evidence existed that would qualify the defendant's statement to the hotel employee as an "excited utterance" under section 90.803(2).

C. The Defendant's Statement Qualified as an Excited Utterance

We conclude sufficient evidence existed to qualify the defendant's statement to the hotel employee as an "excited utterance" under section 90.803(2), as interpreted by our supreme court's three-prong test. We examine each prong in turn.

First, the stabbing was an event startling enough to cause nervous excitement. See Harmon v. State , 854 So.2d 697, 699 (Fla. 5th DCA 2003) ("[A] bloody fight [is] an event startling enough to cause nervous excitement.").

Second, sufficient evidence existed to show that the defendant made his statement to the hotel employee before there was time to contrive or misrepresent. It is undisputed that the amount of time between the altercation and the defendant's statement to the hotel employee was less than one minute, during which the defendant ran down the hallway, took an elevator to the lobby, and immediately approached the hotel employee. The state presented no evidence to show that, during that time interval and under those circumstances, the defendant contrived or misrepresented his statement to the hotel employee. Further, the state presented no evidence, and the trial court articulated no evidence, that the defendant's age or physical or mental condition, or the event's characteristics, justified a finding that the defendant's statement to the hotel employee was contrived or misrepresented. Although the state argued, and the trial court found, that the defendant's statement to the hotel employee was exculpatory, i.e., self-serving, the state presented no evidence, and the trial court articulated no evidence, to justify the finding that the mere self-serving nature of the defendant's statement automatically required excluding the hotel employee's testimony reciting the defendant's statement.

Third, the hotel employee described the defendant as a person still under the stress or excitement caused by the event. See Lopez v. State , 888 So.2d 693, 697 (Fla. 1st DCA 2004) (evidence supported the trial court's finding that the victim was under the stress of startling event where the victim appeared "nervous or shaken up and ... was speaking rapidly").

D. The State's Cited Cases are Unpersuasive

The state nevertheless maintains in response to the defendant's appeal that his statement to the hotel employee did not qualify under the excited utterance exception's second prong - that is, before there was time to contrive or misrepresent - because his statement was self-serving. In support of this argument, the state relies on Sunn v. Colonial Penn Ins. Co. , 556 So.2d 1156 (Fla. 3d DCA 1990), and Overton v. State , 429 So.2d 722 (Fla. 1st DCA 1983).

Sunn is not persuasive. In Sunn , the Third District's analysis conflated the "spontaneous statement" exception under section 90.803(1) with the "excited utterance" exception under section 90.803(2) :

[T]he [appellees] argue, inter alia , that the statements were properly admitted under the spontaneous exclamation or excited utterances exceptions to the hearsay rule contained in Section 90.803(1) and (2) , Florida Statutes (1987).
The factors to be analyzed in determining whether a statement qualifies under the exceptions are: (a) the time gap between the incident and the statement, (b) the voluntariness of the statement, (c) whether the statement is self-serving, and (d) the declarant's mental and physical state at the time the statement was made.

556 So.2d at 1157-58 (emphasis added; footnote omitted).

The fact that the Sunn court conflated the "spontaneous statement" exception and the "excited utterance" exception is significant. The "spontaneous statement" exception, besides being different in substance from the "excited utterance" exception, also facially contains an element which the "excited utterance" exception does not.

Section 90.803(1), Florida Statutes (2017), defines the "spontaneous statement"

exception to the hearsay rule as follows: "A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter [is admissible], except when such statement is made under circumstances that indicate its lack of trustworthiness ." (emphasis added).

However, section 90.803(1)'s requirement to exclude a spontaneous statement "when such statement is made under circumstances that indicate its lack of trustworthiness" is conspicuously absent from the plain language of section 90.803(2)'s excited utterance exception. See § 90.803(2), Fla. Stat. (2017) ("A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.").

We recognize that the "spontaneous statement" exception's "lack of trustworthiness" element may be considered as subsumed under the "excited utterance" exception's second prong - that is, "before there was time to contrive or misrepresent." However, we nevertheless maintain our previous holding that where a defendant's statement otherwise qualifies by evidence as an excited utterance, "[t]he mere fact that statements are self-serving is not, in and of itself , a sufficient evidentiary basis for their exclusion from evidence." Stiles , 672 So.2d at 851-52 (emphasis added; citation omitted).

The state's reliance on Overton is similarly unpersuasive. In Overton , the First District's opinion on this issue states as follows:

[The defendant] complains that it was error to disallow testimony concerning his exculpatory statements made immediately upon apprehension as those statements fall within the res gestae exception to the hearsay rule and therefore are admissible, citing Section 90.803(2) relating to "excited utterance." ... The deputy's proffered testimony was to the effect that [the defendant] told him he had "the wrong guy" and that the police were letting the "right guy" get away. [The defendant's] professed purpose of offering the statement was to show his state of mind at the time of apprehension and to show that he did not have time to fabricate his version of the events. The trial court was correct in sustaining the state's objection on the ground that the statement was "self-serving." Although the statement was made at the time of ... apprehension and may be considered as part of the res gestae, if it is so self-serving and made under circumstances that indicate its lack of trustworthiness, then it should be excluded. See Section 90.803(1), Florida Statutes (1981).

429 So.2d at 723 (emphasis added). Thus, the First District's opinion ultimately was based not on section 90.803(2)'s "excited utterance" exception, but on section 90.803(1)'s "spontaneous statement" exception, including its express element that the statement not be made "under circumstances that indicate its lack of trustworthiness."

E. One More Recent Case for Comparison

Our research has discovered one recent case, Beckman v. State , 230 So.3d 77 (Fla. 3d DCA 2017), which neither party's brief has discussed, but which addresses the argument upon which the state seeks to prevail in this case - that the defendant's self-serving statement should not be admitted under the excited utterance exception. We shall examine Beckman in detail here, because the cases are distinguishable.

In Beckman , a teenager shot his father with a shotgun. 230 So.3d at 82. Within one minute of the shooting, the defendant called out, "Oh my God, call 911," loud enough for a neighbor to hear. Id. During the 911 call, the defendant stated, "Please, come quickly, I accidentally shot my father." Id. The defendant then explained that he was going hunting with his father and went to the bathroom to show his father the shotgun. Id. The defendant claimed the gun accidentally went off, even though the safety was on. Id.

The state did not dispute that the 911 call was made instantly after the shooting and that the defendant sounded hysterical on the call. Id. at 89. Nevertheless, the trial court excluded the content of the defendant's 911 call, finding that the content did not satisfy the "excited utterance" exception because the defendant had an opportunity to reflect before making the call. Id. In so ruling, the trial court relied upon the testimony of a witness that "two weeks prior to the shooting , the defendant had both shown [the witness] the shotgun and said that he wanted to shoot his father with it and make it look like self-defense ." Id. at 83 (emphasis added).

On appeal, the defendant claimed the trial court abused its discretion by excluding the content of the defendant's 911 call. The Third District rejected this argument:

Here ... the trial court was concerned that the defendant's statements to 911 dispatch were not at all "spontaneous" given the defendant's stated motivation to stage the shooting death of his father with a shotgun that he showed his friend ... which had occurred just two weeks before the defendant actually shot his father with the same shotgun. The court therefore excluded the defendant's comments to the 911 operator because there was evidence that the defendant had contrived both the shooting (the startling event) and the 911 call (the out-of-court statement).
In essence, the court below excluded the 911 call because the defendant could not satisfy his burden of demonstrating that he was under any stress or excitement at the time he called 911 and gave his self-serving statement. "The mere fact that statements are self-serving is not, in and of itself, a sufficient evidentiary basis for their exclusion from evidence." Stiles v. State , 672 So.2d 850, 851-52 (Fla. 4th DCA 1996). Nevertheless, the self-serving nature of the statement is still a factor that can be considered when determining whether the statement was fabricated. See Sunn v. Colonial Penn Ins. Co. , 556 So.2d 1156, 1157 (Fla. 3d DCA 1990) (noting that one of the factors to be analyzed in determining whether a statement qualifies as an excited utterance includes "whether the statement is self-serving"); 2 McCormick on Evidence, § 272 (7th ed.) ("Although not grounds for automatic exclusion, evidence that the statement ... was self-serving is an indication that the statement was the result of reflective thought.") (footnotes omitted).
To this end, we find persuasive two federal cases that have touched upon this issue, albeit in dicta. See United States v. Moore , 791 F.2d 566, 571 (7th Cir. 1986) ; United States v. Knife , 592 F.2d 472 (8th Cir. 1979). In Knife , the Eighth Circuit Court of Appeals opined that where there was evidence that the declarant had planned the shooting of the victim at a particular time, which then took place, that "it would be difficult to believe that the preplanned shooting ... was an event so startling or unexpected as to suspend the defendant declarant's powers of reflection." In Moore , the Seventh Circuit Court of Appeals noted that "[t]he statement in Knife assumes that the timing, location and circumstances of the [startling] event ... were within the declarant's control." But, the Seventh Circuit declined to apply it because the declarant in Moore did not have the requisite control over the event in question. Here, the defendant clearly had the requisite control over the time, location and circumstances of the shooting.
For these reasons, we find the trial court did not abuse its discretion in excluding the 911 call as hearsay. Moreover, because of this, we find no reversible error in the lower court's decision also to exclude testimony that the defendant's neighbor ... heard the defendant making the 911 call.

230 So.3d at 91-92 (footnote and other citations omitted).

The instant case is distinguishable from Beckman . In Beckman , the state presented credible evidence that the defendant had pre-planned the shooting (the startling event) and contrived the 911 call (the out-of-court statement). In the instant case, no evidence existed that the defendant had pre-planned the altercation and stabbing (the startling event) or contrived his statement to the hotel employee (the out-of-court statement). Thus, the trial court in the instant case erred in excluding from the jury's consideration the hotel employee's proffered recitation of the defendant's alleged excited utterance.

F. The Error Was Not Harmless

"The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio , 491 So.2d 1129, 1138 (Fla. 1986).

Here, the state has not met that burden. Witness credibility was critical in this case because no physical evidence or eyewitness testimony corroborated the alleged victim's version of the events. Although the defendant was permitted to testify about his alleged excited utterance to the hotel employee, the hotel employee's proffered recitation of the defendant's alleged excited utterance may have, in the jurors' minds, corroborated the defendant's testimony and supported his self-defense claim. Given that possibility, the state cannot meet its burden to establish that the error in excluding the hotel employee's testimony was harmless.

Conclusion

Based on the foregoing, we reverse the defendant's conviction and sentence and remand for a new trial. On all other evidentiary arguments which the defendant raised in this appeal, we affirm without further discussion. The sentencing argument which the defendant raised in this appeal is rendered moot by our reversal and remand for a new trial.

Reversed and remanded for new trial.

Warner and Forst, JJ., concur.


author: Per Curiam.

text:
    SEASPRAY RESORT, LTD, a Florida Limited Partnership, Prabhjot K. Benisasia, an Individual, and Rick Benisasia, an Individual, Appellants, v. UCF I TRUST 1, a Delaware Statutory Trust, Appellee.
    No. 4D18-991
    District Court of Appeal of Florida, Fourth District.
    [December 5, 2018]
    Louis R. Townsend, Jr. of Townsend, LLC, West Palm Beach, for appellants.
    Nancy B. Colman and Andrew Thomson of Baritz & Colman LLP, Boca Raton, for appellee.
   Per Curiam.

This non-final appeal arises from a commercial mortgage foreclosure case. The borrowers, who operate a hotel on the property, challenge an order requiring them to deposit all revenue generated from the hotel into the court registry pending final judgment. We affirm the order without prejudice to the borrowers seeking authorization to pay reasonable expenses related to the property before depositing revenue into the court registry.

The borrowers took out a $4.8 million loan in August 2013 to refinance an existing loan and renovate the hotel. As additional security for the loan, they executed and recorded an "assignment of leases and rents," separate from the mortgage. The assignment provides that, in the event of default, the lender will have the right to take possession of "any and all leases ... licenses, rental agreements and occupancy agreements ... affecting all or any part of the Property" and to collect "all rents, royalties, issues, profits, revenue, income and other benefits of the Property ...."

The lender filed a foreclosure complaint in January 2014 and later moved to enforce the assignment of leases and rents under section 697.07, Florida Statutes. The trial court granted the motion and ordered the borrowers to deposit into the court registry "any and all revenue derived from, by way of illustration and not limitation, rents, fees, charges, accounts or other payments for the use or occupancy of hotel rooms and other hotel facilities." The borrowers now appeal.

Section 697.07 provides that if a foreclosure action is filed, and there is an assignment of rents securing the loan, the court may require the borrower to deposit collected rents into the court registry pending final judgment, regardless of any asserted defenses or counterclaims. § 697.07(4), Fla. Stat. (2013) ; see Wane v. U.S. Bank, Nat'l Ass'n , 128 So.3d 932, 934-35 (Fla. 2d DCA 2013) ; Tidewater Estates Co-Op, Inc. v. U.S. Bank Nat'l Ass'n , 83 So.3d 912 (Fla. 4th DCA 2012). The court may authorize the borrower, however, to use a portion of the collected rents to pay reasonable expenses "to protect, preserve, and operate" the property and to satisfy any legal obligations related to the property. § 697.07(4)(a), Fla. Stat. (2013).

An order sequestering rents into the court registry under section 697.07(4) is reviewed for an abuse of discretion. See Tidewater Estates , 83 So.3d at 912 ; Whud Real Estate Ltd. P'ship v. Oak Grove, Ltd. , 699 So.2d 842, 842 (Fla. 3d DCA 1997).

The borrowers' primary argument in this case is that hotel revenue cannot be sequestered into the court registry as "rents" under section 697.07(4). They rely on Orlando Hyatt Associates, Ltd. v. FDIC , 629 So.2d 975 (Fla. 5th DCA 1993), where the Fifth District stated that section 697.07 applies only to "long-term rents" and not to "profits" such as hotel revenue. Id. at 976-77. We distinguish Orlando Hyatt because the parties in that case agreed that section 697.07 does not apply to hotel revenue. Id. at 976. Here, the parties do not agree.

The assignment in this case is broad and expressly includes all income generated by the hotel. The borrowers gave the lender the right to collect "all rents, royalties, issues, profits, revenue, income and other benefits of the Property" in the event of default. Considering this broad assignment, we cannot conclude that the trial court abused its discretion under section 697.07(4) by requiring the borrowers to deposit all revenue into the court registry pending final judgment. We therefore affirm the trial court's order.

Our affirmance is without prejudice to the borrowers seeking authorization to pay reasonable expenses related to the property before depositing revenue into the court registry. See § 697.07(4), Fla. Stat. (2013).

Affirmed without prejudice.

Warner, May and Levine, JJ., concur.

      The idea that section 697.07 does not apply to hotel revenue stems from a line of bankruptcy cases decided in the early 1990s. See Orlando Hyatt , 629 So.2d at 976 n.3 (citing In re Punta Gorda Assocs. , 137 B.R. 535 (Bankr. M.D. Fla. 1992) ; In re Shorehaven Motor Inn, Inc. , 124 B.R. 617 (Bankr. S.D. Fla. 1991) ; In re Ashoka Enters., Inc. , 125 B.R. 845 (Bankr. S.D. Fla. 1990) ). These cases hold that a security interest in hotel revenue is not perfected upon the recording of an assignment of rents; instead, the creditor must file a statement under the Uniform Commercial Code identifying the revenue as collateral. These cases do not preclude sequestration of hotel revenue into the court registry during a foreclosure proceeding where the borrower has agreed to assign the revenue to the lender upon default.


text:
    Ramon ROSARIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3360
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

Ramon Rosario appeals the circuit court's denial of his Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct an unauthorized sentence. The State properly concedes error, and we remand for a correction of Rosario's sentence.

This Court previously affirmed Rosario's sentence. Rosario v. State , 122 So.3d 412 (Fla. 4th DCA 2013). The Florida Supreme Court quashed our decision and "remanded for resentencing in conformance with the framework established in chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402 of the Florida Statutes." Rosario v. State , 41 Fla. L. Weekly S113, 2016 WL 235776, at *1 (Fla. Jan. 20, 2016).

On remand, the State and Rosario's counsel appeared at a hearing and agreed, in part, to a proposed sentence on fifteen charges. The court sentenced Rosario to twenty-five years' imprisonment, with ten-year mandatory minimum terms, on two conspiracy charges. The sentences and mandatory minimum terms were to run concurrently. Later, the court entered a supplementary sentencing order providing that the sentence for certain of Rosario's charges were subject to review after twenty years but excluded the home-invasion conspiracy charges from review.

After Rosario filed his notice of appeal, he moved the circuit court to "modify his concurrent twenty-five (25) year sentences for first-degree felonies to include judicial review pursuant to sections 775.082(3)(c) and 921.1402(2)(d)." The circuit court granted the motion and entered an order correcting the supplementary sentencing order:

The Defendant was sentenced to 25 years in the Florida State Prison on Counts 1,2,7,8, and 12. The 10 year Firearm mandatory minimum continues to apply to Counts 7, 8, and 12. Pursuant to Kelsey v. State , 206 So.3d 5[ ] (Fla. 2016) the Defendant shall be entitled to judicial review of these sentences after 20 years regarding counts 1,2,7,8, and 12.

Rosario's counsel then filed in this Court an Anders brief and a motion to withdraw as counsel, arguing that an "examination of the record on appeal reveals no error which could be conscientiously argued as a predicate for relief." We ordered Rosario's counsel to "file a supplemental brief addressing why [Rosario] does not have an arguable claim that the ten-year mandatory minimum terms imposed for conspiracy to commit home invasion robbery with a firearm (counts VII and XII) are improper."

In response to our order, Rosario's counsel filed a supplemental brief agreeing the sentence was improper but stating Rosario waived the argument. We struck the Anders brief and the supplemental brief because "[i]t is not clear from this record that the mandatory minimum terms were imposed as part of a negotiated plea agreement. Cf. Stewart v. State , 192 So.3d 572 (Fla. 2d DCA 2016) ; Tucker v. State , 174 So.3d 485, 487-88 (Fla. 4th DCA 2015) ; Haynes v. State , 106 So.3d 481, 482 (Fla. 5th DCA 2013)."

After we struck the brief, Rosario filed a second motion to correct his sentence in the circuit court. The circuit court ordered the State to respond to Rosario's motion, but the State failed to do so. Ultimately, the motion was deemed denied because the circuit court failed to rule within sixty days. See Fla. R. Crim. P. 3.800(b)(2)(B).

After the circuit court denied the second motion to correct, Rosario returned to this Court and now argues "[t]he ten-year mandatory minimum terms imposed for conspiracy to commit home invasion robbery with a firearm (counts VII and XII) must be stricken from [his] sentence because they are not statutorily authorized." The State concedes that the ten-year mandatory minimum terms of Rosario's sentence are illegal. See, e.g. , Tooley v. State , 675 So.2d 984, 985 (Fla. 5th DCA 1996) ; White v. State , 657 So.2d 1223, 1223 (Fla. 5th DCA 1995) ; Kennedy v. State , 564 So.2d 1127, 1129-30 (Fla. 1st DCA 1990).

As a result of the State's proper concession of error, we remand for a ministerial sentence correction-to strike the ten-year mandatory minimum terms imposed on Counts VII and XII of Rosario's sentence. Resentencing is not required, and Rosario need not be present for this sentence correction. See, e.g. , Flores v. State , 58 So.3d 437, 438 (Fla. 4th DCA 2011).

Reversed and remanded.

Warner and Damoorgian, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: LUCAS, Judge.

text:
    Todd KOZEL, Appellant, v. Ashley D. KOZEL, Appellee.
    Case No. 2D16-2511
    District Court of Appeal of Florida, Second District.
    Opinion filed April 27, 2018. Rehearing Denied May 24, 2018
    John G. Crabtree, Charles M. Auslander, and Brian C. Tackenberg of Crabtree & Auslander, Key Biscayne, for Appellant.
    Steven L. Brannock, Philip J. Padovano, and Joseph T. Eagleton of Brannock & Humphries, Tampa; Jeffrey D. Fisher and Zachary R. Potter of Fisher Potter Hodas, P.L., West Palm Beach, for Appellee.
   LUCAS, Judge.

Todd Kozel, the former husband, appeals two contempt rulings within an omnibus order entered by the family court after several hearings on an array of postjudgment issues. We affirm without comment the ruling that granted his former wife, Ashley Kozel's motion for contempt as to Mr. Kozel's nonpayment of child support. With respect to the ruling holding Mr. Kozel in contempt for violating the family court's injunction, we recognize that Mr. Kozel is presently challenging the merits of that injunction and an underlying judgment in a separate appeal pending before this court. But that really is of no moment for our disposition of this appeal. Regardless of the injunction's propriety, the order "must be obeyed until vacated or modified by [the trial] court or until it has been reversed on appeal, no matter how unreasonable or erroneous." Kaylor v. Kaylor, 466 So.2d 1253, 1254 (Fla. 2d DCA 1985) (citing Friedman v. Friedman, 224 So.2d 424, 427 (Fla. 3d DCA 1969) ); see also Seaboard Air Line Ry. Co. v. Tampa S. R.R. Co., 101 Fla. 468, 134 So. 529, 533 (1931) ("A party proceeded against for disobedience of an injunction is never allowed to allege as a defense for his misconduct that the court erred in its judgment in granting the injunction or in refusing to dissolve it ...."). Finding no merit in any of his arguments in this appeal, we affirm the order below.

Affirmed.

KELLY and BADALAMENTI, JJ., Concur.

      Specifically, the injunction enjoined Mr. Kozel from "selling, transferring, alienating, pledging, forfeiting, hypothecating, encumbering, mortgaging, dissipating, spending and/or purchasing, and/or concealing and/or otherwise alienating any real property, personal property, securities, cash, or other assets or income of any kind or nature in which he holds an interest." Mr. Kozel does not dispute that he violated the terms of the injunction; he simply argues that the judgment which precipitated the injunction (which is the subject of his separate appeal) was erroneously entered.


author: EMAS, J.

text:
    Carlos RODRIGUEZ, Petitioner, v. CITY OF SOUTH MIAMI, et al., Respondents.
    No. 3D17-2265
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    BERRIO & BERRIO, P.A., and Juan D. Berrio, Miami, for petitioner.
    Thomas F. Pepe, City Attorney, for respondents.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Petitioner Carlos Rodriguez seeks certiorari review of the trial court's order compelling Rodriguez to sign a document authorizing the release of certain mental health records and production of those records to respondent City of South Miami. Because these records are protected by the psychotherapist-patient privilege, and because the City of South Miami failed to meet its burden in overcoming this privilege, the trial court's order departs from the essential requirements of law, resulting in material injury that cannot be corrected on postjudgment appeal. We therefore grant the petition and quash the order under review.

On April 8, 2013, the City of South Miami filed a petition seeking a temporary and permanent injunction (restraining order) on behalf of itself and nine of its elected or appointed officers and employees (collectively, "the City").

The following day, and pursuant to Florida Rule of Civil Procedure 1.610, the trial court entered an ex parte temporary restraining order in favor of the City. That order was continued in force by a court order on May 3, 2013, and remained in force for nearly four years. In March 2017, Rodriguez filed a motion to dissolve the temporary restraining order. In his motion, Rodriguez alleged that the temporary restraining order should never have been issued in the first place because the allegations in the City's petition were legally insufficient. Specifically, Rodriguez contended that the City's petition did not satisfy the requirements for an injunction under section 784.046(1)(b), Florida Statutes (2013). Rodriguez's motion seeking dissolution of the temporary injunction was directed solely at the alleged legal insufficiency of the original petition filed by the City.

However, in the concluding paragraph of his motion to dissolve, Rodriguez added the following sentence: "[Rodriguez] is stable, taking medication, and regularly seeing his psychiatrist Enrique G. Casuso."

Seizing upon this single sentence, the City asserts that Rodriguez's motion was "premised on the allegation that [Rodriguez] was mentally stable and implied that his stability was because he was taking medication and seeking treatment." Accordingly, the City subpoenaed several of Rodriguez's healthcare providers for Rodriguez's medical records, and when Rodriguez objected, the City filed a motion to compel Rodriguez to sign a medical authorization for his healthcare providers to produce his medical records and to testify as to the records and Rodriguez's medical condition.

Rodriguez objected and asserted a psychotherapist-patient privilege, pursuant to section 90.503(2), Florida Statutes (2017). The City contended that Rodriguez placed his mental health status at issue in his motion to dissolve the temporary injunction, and thus, was no longer protected by the psychotherapist-patient privilege. The trial court overruled Rodriguez's objection and entered an order requiring Rodriguez to "sign a medical authorization including release of sensitive mental health records of the facilities of Dr. Enrique Casuso, Jackson Health Systems, South Florida Evaluation and Treatment Center and South Winds Hospital, to the attorney for the City of South Miami within 15 days of this order."

We have jurisdiction to review, by certiorari, the order compelling production of Rodriguez's mental health records. "A discovery order that requires the production of information and records that are protected by the statutory psychotherapist-patient privilege is reviewable by certiorari." Brown v. Montanez, 90 So.3d 982, 985 (Fla. 4th DCA 2012). See also Cruz-Govin v. Torres, 29 So.3d 393 (Fla. 3d DCA 2010).

To seek certiorari relief, Rodriguez must demonstrate that the order 1) constitutes a departure from the essential requirements of the law; 2) resulting in material injury for the remainder of the case; 3) that cannot be corrected on postjudgment appeal. Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ'l Enters., LLC, 99 So.3d 450, 454 (Fla. 2012) ; Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) ; Rousso v. Hannon, 146 So.3d 66 (Fla. 3d DCA 2014).

Section 90.503(2) provides:

A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcoholism and other drug addition, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

The statute provides for three exceptions, permitting disclosures of otherwise-confidential communications that are: (a) relevant to an issue in involuntary commitment proceedings; (b) made in the course of a court-ordered mental examination; or (c) relevant to an issue of the patient's mental or emotional condition which the patient relies upon as an element of his or her claim or defense . See § 90.503(4)(a)-(c), Fla. Stat. (2017) (emphasis added); Cruz-Govin, 29 So.3d at 395. The party seeking the privileged documents has the burden of proving that an exception to the privilege applies. Id. Here, the City urges application of the exception in subsection (4)(c), contending that Rodriguez relied upon his mental condition as a basis for seeking to dissolve the temporary restraining order entered against him. In support of its position, the City points to the one sentence in the final paragraph of Rodriguez's motion: "[Rodriguez] is stable, taking medication, and regularly seeing his psychiatrist Enrique G. Casuso."

We find the City's position unpersuasive. The single sentence contained in Rodriguez's motion to dissolve was not relevant to the solitary legal basis urged for dissolution of the temporary restraining; the entire thrust of Rodriguez's motion was that the allegations in the City's petition were legally insufficient. Thus the City's assertion that Rodriguez's motion "was premised" on allegations of his current mental stability, is simply incorrect. Rather, the single sentence in the concluding paragraph of Rodriguez's motion was merely surplusage, and Rodriguez did not, by this statement, rely upon his mental or emotional condition as an element of his claim or defense. See Commercial Carrier Corp. v. Kelley, 903 So.2d 240 (Fla. 5th DCA 2005).

Because the City failed to meet its burden in overcoming the psychotherapist-patient privilege, the trial court's order departed from the essential requirements of the law. The compelled production of these mental health records would cause material injury for the remainder of the case, and cannot be corrected on postjudgment appeal.

Accordingly, we grant the petition for certiorari and quash the order which compelled Rodriguez to sign a medical authorization for the release of his mental health records. We remand this cause for further proceedings consistent with this opinion.

      That subsection provides: " 'Repeat violence' means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member." We express no opinion on the merits of Rodriguez's motion to dismiss.

      It appears that this single sentence in Rodriguez's motion to dissolve was included merely in response to the City's allegation, in its petition for a restraining order, that Rodriguez was mentally unstable because he was exhibiting a "psychological disorder" and having a history of "psychotic breaks" with reality. It was the City, and not Rodriguez, that sought to place Rodriguez's mental health at issue. "The statutory exception applies when the patient , not the opposing party who seeks the privileged information, places his mental health at issue." Cruz-Govin, 29 So.3d at 396. Therefore, the City "cannot pierce the privilege by filing a claim that makes an issue of [Rodriguez's] mental health." Id. (quoting Viveiros v. Cooper, 832 So.2d 868, 869 (Fla. 4th DCA 2002) ).


author: PER CURIAM.

text:
    Rafael Antonio Olvera AMEZCUA, Appellant, v. Javier Navarro VELASCO, etc., Appellee.
    No. 3D18-541
    District Court of Appeal of Florida, Third District.
    Opinion filed September 11, 2018
    Rasco Klock Perez Nieto, and Juan Carlos Antorcha, and Joseph P. Klock, Jr., Coral Gables, and Susan E. Klock, for appellant.
    Krupnick Campbell Malone Buser Slama Hancock Liberman, P.A., and Carlos A. Acevedo, Walter G. Campbell, Kevin A. Malone, Kelley B. Stewart, and Michael J. Ryan (Ft. Lauderdale); Joel S. Perwin, Miami, for appellee.
    Before SUAREZ, SCALES, and LINDSEY, JJ
   PER CURIAM.

Rafael Antonio Amezcua appeals the Order on Motion to Strike and Motion to Dismiss Third Amended Complaint with Prejudice by Olvera Defendants entered February 16, 2018 reconsidering the prior Order Re: Olvera Defendants' Motion to Dismiss Second Amended Complaint entered October 17, 2017. We dismiss for lack of jurisdiction.

On appeal, Amezcua contends the trial court erred by not dismissing this action on the basis of forum non conveniens and requests that we remand with directions to the trial court to dismiss in favor of a Mexican forum. However, the order denying the defendants' motion to dismiss the Third Amended Complaint is not an appealable non-final order because it does not address the enforceability of any forum clause, the issue of forum non-conveniens or any other issue with respect to venue. The prior order on the Motion to Dismiss the Second Amended Complaint, likewise, did not address the issue of forum non conveniens.

Dismissed.

      Amezcua notes in his notice of appeal that he is filing the notice in an abundance of caution because "it is unclear whether or not the lower court denied the Motion to Dismiss on venue grounds."

      The order expressly states: "The Court will not address the Motion to Dismiss based on Forum Non Conveniens and Failure to Join Indispensable Parties at this time, as it did not previously, until there is a standing complaint to address."