text:
    JIAXIAN ZHAO, Appellant, v. PREMIER AMERICAN BANK and General Lending Corporation, Appellees.
    No. 3D17-1783
    District Court of Appeal of Florida, Third District.
    Opinion filed March 27, 2019
    Lerman & Whitebook, P.A., and Carlos D. Lerman (Hollywood), for appellant.
    Shutts & Bowen LLP, and Suzanne Youmans Labrit (Tampa), and Aliette D. Rodz, for appellee General Lending Corp.
    Before SCALES, HENDON, and MILLER, JJ.

      Did not participate in oral argument.

      Did not participate in oral argument.

   PER CURIAM.

Jiaxian Zhao appeals the trial court's entry of three separate orders on two separate motions for summary judgment rendered in favor of General Lending Corporation ("GLC"). Specifically, Zhao challenges: (i) the trial court's final order granting final summary judgment of foreclosure on GLC's counterclaim for foreclosure of two judgment liens encumbering the subject property; (ii) the trial court's final order granting final summary judgment on Zhao's complaint based on its determination that Zhao lacks standing to foreclose an equitable lien; and (iii) the trial court's non-final order summarily denying Zhao's motion for partial summary judgment regarding his affirmative defense to both GLC and Premier American Bank n/k/a Florida Community Bank's counterclaims that both judgment liens attached only to the same one-half interest in the property.

Based on the record before us, we reverse as to the two final orders granting summary judgment in favor of GLC and remand for further proceedings because we find there are genuine issues of material fact. See Patel v. Aurora Loan Servs., LLC, 162 So.3d 23, 24 (Fla. 4th DCA 2014) (reversing final summary judgment of foreclosure based on the existence of a genuine issue of material fact).

Specifically, with regard to the trial court's conclusion that Zhao no longer owns the subject property, and, therefore, lacked standing to either assert his equitable subrogation claim against GLC, or defend against GLC's counterclaim seeking to foreclose on the subject judgments, the record reveals the existence of a genuine issue of material fact, thus precluding both summary judgment orders. Indeed, while the record indicates Zhao and purported buyer Ying Cui executed a purchase and sale contract for the property (and the purchase price was paid to Zhao), the record also reveals several other facts evidencing that Zhao still owned the property, and therefore, had the requisite standing: (i) it appears that no deed was executed or delivered to Ying Cui; (ii) Zhao continued to pay the property taxes on the property; and (iii) Zhao had agreed to refund the purchase price to Ying Cui in the event Zhao could not deliver clear title to the property.

Because the trial court summarily determined that Zhao lacked standing in the case below, the record reflects that the trial court did not reach (and we express no opinion regarding) the merits of either Zhao's equitable subrogation claim against GLC or the affirmative defenses Zhao asserted in response to GLC's foreclosure claims.

Reversed and remanded.

      The trial court's order denying Zhao's motion for partial summary judgment is a non-final order, and thus, is not appealable. See Taggart v. Morgan, 943 So.2d 250, 250 (Fla. 3d DCA 2006). The trial court's order expressly recognizes the non-final nature of this order.


source: Caselaw Access Project

author: SCALES, J.

license: Public Domain

text:
    Guillermo TABRAUE III, Esq., etc., Appellant, v. DOCTORS HOSPITAL, INC., et al., Appellees.
    No. 3D16-1661
    District Court of Appeal of Florida, Third District.
    Opinion filed March 27, 2019
    Silva & Silva, P.A., and Jorge E. Silva, Coral Gables; Creed & Gowdy, P.A., and Bryan S. Gowdy (Jacksonville), for appellant.
    Wicker Smith O'Hara McCoy & Ford, P.A., and Jackson F. McCoy, Coral Gables, Michael R. D'Lugo (Orlando) and Jessica L. Gross, Coral Gables, for appellee Doctors Hospital, Inc.
    Burlington & Rockenbach, P.A., and Philip M. Burlington and Adam J. Richardson (West Palm Beach), for Florida Justice Association as amicus curiae.
    Beytin, McLaughlin, O'Hara, Bocchino & Bolin, and Andrew S. Bolin (Tampa), for Florida Hospital Association as amicus curiae.
    Before SALTER, FERNANDEZ and SCALES, JJ.

      Did not participate in oral argument.

      Did not participate in oral argument.

   SCALES, J.

Appellant Guillermo Tabraue III is the personal representative of the Estate of Suyima Torres (the "Estate"). Ms. Torres died after being treated in both the emergency room and the intensive care unit of appellee, defendant below, Doctors Hospital (the "Hospital"). The Estate sued both the Hospital and the medical providers who treated Ms. Torres in the emergency room and the intensive care unit, the latter who were independent contractors of the Hospital. Concluding, as a matter of law, that the Hospital owed no non-delegable duty to Ms. Torres, the trial court dismissed with prejudice the Estate's second amended complaint against the Hospital. Because, under the facts and circumstances of this case, we agree that the Hospital did not owe a non-delegable duty to Ms. Torres for the treatment provided to Ms. Torres by the medical providers, we affirm.

I. Factual and Procedural Background

On April 11, 2013, Ms. Torres, a 28-year-old adult, underwent a cosmetic procedure at a clinic. After exiting the clinic, Ms. Torres lost consciousness, and an ambulance transported her to the Hospital's emergency room. Presumably, because Ms. Torres was incapacitated, Ms. Torres's father signed a series of consent forms that are usually signed by the patient. One of those forms was an acknowledgement that the physicians who would be treating Ms. Torres would be independent contractors, and not employees, of the Hospital. Neither Ms. Torres nor her father selected the medical providers who treated her at the Hospital.

Regrettably, Ms. Torres's condition declined during her treatment in the emergency room and later that day in the intensive care unit. She died that same night, about eight hours after her admission.

On January 23, 2014, the Estate filed suit against the various medical providers and the Hospital, and on February 12, 2014, filed an amended complaint. In this amended complaint, the Estate alleged two counts against the Hospital: negligence and vicarious liability. On June 23, 2015, the Estate filed a motion for summary judgment as to the Hospital, and on October 9, 2015, the Hospital filed its cross-motion for summary judgment as to the two counts asserted against it. On October 16, 2015, after a hearing on the motions, the trial court granted summary judgment for the Hospital, denying the Estate's antithetical motion.

After its motion for rehearing was denied, the Estate then sought leave to file a second amended complaint for the limited purposes of deleting the vicarious liability count and clarifying the Estate's non-delegable duty theories. At the hearing on this motion, counsel for the Estate conceded that its goal was to obtain a final, appealable order so that the Estate could bring before this Court the purely legal issue of whether the Hospital owed a non-delegable duty to Ms. Torres, i.e., whether the Hospital could be held liable for the alleged negligence of its independent contractors.

The trial court granted the motion, allowing the Estate to file a second amended complaint that, as to the Hospital, alleged only the four, alternate bases of liability described infra . The Hospital then moved to dismiss this second amended complaint with prejudice, which the trial court did on July 5, 2016. The Estate timely appealed.

II. Analysis

The Estate's Four Theories of Hospital Liability

Generally, a hospital is not liable for the negligence of a medical provider who works in the hospital as an independent contractor. See Pub. Health Tr. of Dade Cty. v. Valcin, 507 So.2d 596, 601 (Fla. 1987). As the Fifth District has stated:

When an independent contractor physician is hired ... liability to third parties usually does not arise. This is because the law recognizes that a person ought to be able to hire someone to perform a specific task without exposure to liability to third parties for negligent performance of the work as long as the person doing the hiring does not retain control or direction over how the work is to be done.

Pope v. Winter Park Healthcare Grp., Ltd., 939 So.2d 185, 187 (Fla. 5th DCA 2006). Courts do recognize exceptions to this rule: "Liability may attach ... if: (1) the physician is an actual or apparent agent of the hospital; (2) a statute, regulation, or contract creates a nondelegable duty ; or (3) the hospital failed to exercise due care in selecting the physician." Godwin v. Univ. of S. Fla. Bd. of Trs., 203 So.3d 924, 929 (Fla. 2d DCA 2016) (emphasis added).

In its second amended complaint, the Estate alleged four, alternate theories of Hospital liability based on the premise that the Hospital's duty - "to provide all emergency room, medical and surgical procedures and treatment" - to Ms. Torres could not be delegated to the Hospital's independent contractors and thereby relieve the Hospital of liability for any tortious conduct of the medical providers who treated Ms. Torres. Those theories, each expressed in a separate count of the second amended complaint, were: (1) statutory non-delegable duty, pursuant to chapter 395 of the Florida Statutes; (2) common law non-delegable duty; (3) express contractual non-delegable duty; and (4) implied contractual non-delegable duty.

Non-Delegable Duty Based on Express Contract and Common Law

We readily dispose of the assertions that the Hospital owed a non-delegable duty to Ms. Torres by virtue of an express contract (Count VII of plaintiff's second amended complaint), or that such a duty arose by virtue of common law (Count VIII of the second amended complaint). The Estate essentially concedes, and this Court does not quarrel with the conclusion, that no express contract was created between the Hospital and Ms. Torres. There is no allegation that Ms. Torres's father was authorized to execute the admission forms so as to bind Ms. Torres to any express contract that those forms might create. Indeed, the Estate alleged this count "solely in the alternative in the event that the court concludes that the Emergency Forms are binding" on Ms. Torres. Because the record is devoid of any such conclusion, we need not further address this basis for imposing liability on the Hospital for its independent contractors.

We also dispose of the allegation that Florida common law imposes a nondelegable duty on the Hospital. The Estate does not appear to have carried this argument forward on appeal. See Starkey v. Chew, 241 So.2d 870, 871 (Fla. 3d DCA 1970) ("The brief does not argue this assignment of error; it is therefore abandoned."). In any event, we reiterate without further elaboration that, contrary to the allegation in the second amended complaint, Florida common law does not impose a non-delegable duty upon hospitals to provide non-negligent care for its patients. See Pope, 939 So.2d at 188. We affirm the trial court's dismissal of Counts VII and VIII of the Estate's second amended complaint.

The remaining counts asserting the basis for imposing a non-delegable duty on the Hospital are not so readily dispatched.

Non-Delegable Duty Based on Statute

In Count V of the second amended complaint, the Estate alleges that the Hospital had a non-delegable duty to provide non-negligent emergency room care to Ms. Torres based on sections 395.001 and 395.1041 of the Florida Statutes, and on several administrative rules promulgated pursuant to section 395.1055(1)(a). The Estate's specific reliance is upon section 395.1041, which provides, among other things, certain guidelines for hospital emergency treatment. See § 395.1041(3), Fla. Stat. (2013).

The Estate argues that these statutory provisions (related to hospital emergency treatment) are analogous to those provisions in chapter 395 related to hospital anesthesia care. Consequently, the Estate suggests, this Court should conclude that chapter 395 imposes the same non-delegable duties that the Fourth District concluded apply to hospital anesthesia care in Wax v. Tenet Health System Hospitals, Inc., 955 So.2d 1, 9 (Fla. 4th DCA 2007).

In Wax, a patient's surviving spouse brought a wrongful death medical malpractice action against a hospital for, among other things, the alleged negligence of an anesthesiologist who was an independent contractor of the hospital. Id. at 3. Wax argued that section 395.002(13)(b) (subsequently re-numbered) defines a hospital as an establishment that makes available surgical treatment facilities; and further, that sections 395.1055(1)(a) and (d) require Florida's Agency for Health Care Administration (AHCA) to establish rules for safe patient care at State-licensed facilities. Id. at 8. Wax argued that this statutory scheme imposed on the hospital a legal duty to provide safe anesthesia services consistent with AHCA standards. The Fourth District agreed and concluded that, based on statute and regulation, the hospital had "a clearly established legal duty to furnish non-negligent anesthesia services." Id. at 9.

While the statutes relied upon by the Estate in this case indeed are similar to those forming the basis of the non-delegable created by the Wax court, we find ourselves more aligned with the Second District in concluding that "Chapter 395 regulates hospitals and addresses standards governing hospitals, not standards applicable to the practice of medicine ...." Tarpon Springs Hosp. Found., Inc. v. Reth, 40 So.3d 823, 828 (Fla. 2d DCA 2010). In certifying conflict with Wax, Tarpon Springs - another non-delegable duty case involving negligent anesthesia services - determined that the relevant statutes impose a duty on hospitals "to ensure that [anesthesia] services are available and provided by competent personnel," but do not impose upon hospitals "the duty to provide anesthesia services nonnegligently to a patient in a given instance." Id.

We agree with the Tarpon Springs court. Chapter 395 of the Florida Statutes is a public health and safety law designed to establish criteria for hospital licensure and operations. See § 395.001, Fla. Stat. (2013). We do not view the relied-upon statutes as imposing on hospitals a non-delegable duty to provide non-negligent emergency room care, and we are not inclined to infer one. See Murthy v. N. Sinha Corp., 644 So.2d 983, 986 (Fla. 1994).

We affirm the trial court's dismissal of Count V of the Estate's second amended complaint and align ourselves with the Second District in Tarpon Springs. Accordingly, recognizing the split in the District Courts, we certify conflict with Wax v. Tenet Health System Hospitals, Inc.

Non-Delegable Duty Based on Implied Contract

Finally, we address the Estate's claim in Count VI that Ms. Torres's admission to the Hospital's emergency room established an implied contractual relationship between the Hospital and her; and the resulting implied contract imposed upon the Hospital a contractually created non-delegable duty such that the Hospital became responsible for the alleged negligence of Ms. Torres's medical providers.

Under certain circumstances, parties' conduct can create an implied-in-fact contract, in which their assent to a contractual relationship is inferred. See Commerce P'ship 8098 Ltd. P'ship v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997). Florida, however, generally does not recognize an implied contractual relationship between patient and hospital that would trigger a nondelegable duty and impose liability on the hospital for the negligence of its independent contractors. See e.g., Godwin, 203 So.3d at 931 ; Tarpon Springs, 40 So.3d at 827 ; Pope, 939 So.2d at 187.

The Fourth District, though, has rejected - and the Estate now urges us to reject - this prevailing view in the emergency room context. Our sister court views the role of an emergency room as distinctive, imposing an implied contract on Florida hospitals and their emergency room patients and effectively creating a rule of hospital liability for independent contractor negligence that occurs in an emergency room. The case of Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982), involved potential hospital liability for the alleged negligence of an emergency room physician. A jury found no liability on the part of the hospital. On appeal, the Fourth District found error in the jury instructions, specifically the failure of the trial court to instruct the jury "that one may not escape his contractual liability by delegating performance under a contract to an independent contractor." Id. at 59. Perhaps diverted by the integral relationship of the emergency room and its hospital, or by the view that patients generally have no choice in selecting their emergency room doctors, the Fourth District in Irving appears to have carved an emergency room exception to the general rule that hospitals are not liable for negligent acts performed by independent contractors. Id. at 56.

The Irving decision laid a path to Newbold-Ferguson v. AMISUB (N. Ridge Hospital), Inc., 85 So.3d 502 (Fla 4th DCA 2012). In Newbold-Ferguson, the plaintiff personal representative of an estate sought to amend her complaint to allege the liability of the hospital for the negligent acts and omissions of an emergency room physician. Id. at 503. The trial court refused to allow the amendment, finding that no duty existed that was attributable to the hospital. Id. at 504. The case proceeded to trial and resulted in a jury verdict for the hospital. Id.

In reversing the verdict in favor of the hospital, the Fourth District stated:

Irving establishes that a hospital which provides emergency room services has a non-delegable duty to provide competent emergency treatment based upon an implied contract. It is therefore clear that the plaintiff could have pleaded a claim against the hospital for the emergency room doctor's negligence on a non-delegable duty theory. The imposition of a non-delegable duty to provide competent emergency room services makes sense, because a patient in an emergency room generally has little, if any, control over who will be the treating physician.

Id. at 505.

We read our sister court's precedent as creating, as a matter of law, an implied contract between hospitals and their emergency room patients. Accordingly, under Irving and its progeny, this judicially imposed implied contract requires a hospital to provide emergency room patients with non-negligent emergency room care so that, contrary to the general rule of non-liability, the hospital is responsible for the negligence of independent contractors hired by the hospital to provide emergency room medical services. The Estate urges us to take a similar approach.

We decline the Estate's invitation. While we recognize that chapter 395 of the Florida Statutes obligates Florida hospitals to provide emergency room services to the public, we note that the statutory scheme is silent on the matter of non-delegable duty. We believe that expanding Florida hospital liability to include liability for those emergency room medical providers who are hired by hospitals as independent contractors is a public policy decision that is within the purview of Florida's legislative branch. Or, to the extent the issue is one of common law, it calls for a Florida Supreme Court decision. We simply are averse to expanding, by judicial dictate, the liability of Florida hospitals, as the Estate urges.

Accordingly, we affirm the trial court's dismissal of Count V of the Estate's second amended complaint and we certify conflict with Irving v. Doctors Hospital of Lake Worth, Inc. and Newbold-Ferguson v. AMISUB (North Ridge Hospital), Inc.

III. Conclusion

We affirm the trial court's dismissal of the counts against the Hospital alleged in the Estate's second amended complaint. The Hospital owed no non-delegable duty to Ms. Torres such that the Hospital would have liability for the alleged negligent acts of emergency room medical providers who were independent contractors of the Hospital. Despite the urging of the Estate, we decline to expand hospital liability by concluding that a non-delegable duty - to provide non-negligent care to emergency room patients - arises either by virtue of (i) chapter 395 of the Florida Statutes, or (ii) an implied contract between hospitals and their emergency room patients.

Affirmed; conflicts certified.

      See footnote 10, infra .

      The admission form contained, among other provisions, a "CONSENT TO TREATMENT" paragraph and an "INDEPENDENT PRACTITIONERS" paragraph. The latter provides:
      I recognize that physicians, surgeons and allied health professionals providing medical services to me or my child as a patient of this facility are private practicing physicians/professionals and not employees or agents of this facility. These private physicians/professionals include, without limitation, radiologists, anesthesiologists, pathologists, emergency room physicians, ICU physicians, neonatologists and all other physician/professionals called in consultation.

      We note that the Estate, in its second amended complaint, identifies alleged negligent care of Ms. Torres in both the Hospital's emergency room and intensive care unit. In its briefing to this Court, however, the Estate makes no distinct argument related to the intensive care unit, and appears to merge the treatment that Ms. Torres received in the intensive care unit into its legal analysis of emergency room services.

      Our standard of review of a ruling on a motion to dismiss for failure to state a cause of action is de novo . Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003). When reviewing a final order dismissing a complaint, we, like the lower court, are required to accept as true all well pled factual allegations contained in the complaint; and thus, our determination of whether the complaint states a cause of action is based on a pure question of law. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla. 2002).

      See Mendez v. Hampton Court Nursing Ctr., LLC, 203 So.3d 146, 148-51 (Fla. 2016) (holding that a nursing home resident was not bound by a contract signed by his son on either a third-party beneficiary or agency theory).

      The Court cited Florida Administrative Code Rule 59A-3.2085(4) - now repealed and replaced by rule 59A-3.245(2) - that provided, in pertinent part, that a hospital "shall have an anesthesia department ... directed by a physician member of the organized professional staff."

      In Kristensen-Kepler v. Cooney, 39 So.3d 518 (Fla. 4th DCA 2010), the Fourth District determined that a surgical center did not owe a duty to a patient to provide non-negligent anesthesia services. The Fourth District distinguished Wax by noting that the patient in Kristensen-Kepler (unlike the patient in Wax ) selected the anesthesiologist. Id. at 520. Whether a patient has the ability to select his or her physician is a factor in the Fourth District's view of non-delegable duty with respect to a hospital's emergency room, discussed infra.

      Because the trial court dismissed the second amended complaint, the factual issue of whether Ms. Torres was incapacitated upon her admission to the Hospital was never determined. Given our holding that, as a matter of law, an implied contract did not form between the Hospital and Ms. Torres, this factual issue is irrelevant. We need not, and therefore do not, reach the issue of whether an incapacitated person upon admission to an emergency room can assent to a contractual relationship.

      In dicta , two decisions of this Court have cited uncritically to Irving: Cedars Medical Center, Inc. v. Ravelo, 738 So.2d 362, 366 n.1 (Fla. 3d DCA 1999), and Jaar v. University of Miami, 474 So.2d 239, 243 (Fla. 3d DCA 1985).


author: HENDON, J.

text:
    Ford Mahammad CHARLIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2327
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019 Rehearing Denied May 10, 2019
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   HENDON, J.

Ford Mahammad Charlier appeals from his conviction and sentence for second degree murder with a firearm. We affirm.

Charlier was charged with second degree murder of his girlfriend, Jasmine Richards. The evidence against Charlier was entirely circumstantial. Evidence at trial included testimony from Jasmine's mother and Jasmine's friend, both of whom testified that the night before her murder, Jasmine spoke with each of them on the phone, very distressed and relating how she and Charlier had argued and that Jasmine was going to leave the relationship. Phone records confirmed the time of these conversations. Charlier's new girlfriend testified that she and Charlier went clubbing the night before the murder, and they had stopped for wings at Checkers before she dropped him off at the apartment around 5:00 a.m. Surveillance video and testimony of the apartment's security guard, Mr. Allen, confirmed that he let Charlier into the secured building with the Checkers bag around 5:00 a.m. and saw him get into the elevator to the apartment. Mr. Allen confirmed that Charlier left the building by the stairs at 5:45 a.m., and additional video of the stairwell entrance documented the same person going up the stairs through a side door a few minutes later, then leaving again around 6:00 a.m., during the time Jasmine was supposed to leave for work. The security video showed that upon exiting the building Charlier wore different shoes than the ones he wore entering the building. Jasmine's mother became concerned when Jasmine failed to answer multiple phone calls between 6:17 and 7:40 a.m. At 9:45, Jasmine's office called to see why she was not at work. Around 10:30 a.m., Jasmine's mother went to the apartment, found the door unlocked, and discovered Jasmine dead in the bathroom from a gunshot to the head. At the trial, Jasmine's mother testified that on the morning she discovered her daughter's body, Charlier called her and told her he didn't do it. Police tried to reach Charlier by phone, with no response. They traced his calls to his mother's apartment. When they knocked on his mother's door, no one responded. The police remained throughout the evening and subsequently apprehended Charlier when he left his mother's apartment the next morning. The clothing Charlier was seen wearing when he entered Jasmine's apartment building were stained but had been recently washed. Police found no evidence of a forced entry into Jasmine's apartment. They found the Checkers bag near Jasmine's body. The medical examiner indicated that the path of the bullet was consistent with a left-handed shooter (Charlier is left-handed), and estimated the time of death between 5 a.m. and 10:30 a.m., when the body was discovered. The blood in the apartment was only from the victim; a blood trail led from the apartment, down the hallway past the elevator, to the stairwell.

The trial court denied Charlier's motion for judgment of acquittal. The jury found the defendant guilty of second degree murder with a firearm, and the court sentenced him to life imprisonment.

On appeal, Charlier argues that the trial court erred by denying his motion for judgment of acquittal because the State failed to disprove a reasonable hypothesis of innocence. Charlier contends that someone else could have committed the murder after he left the building, as the only evidence is entirely circumstantial. Circumstances that create nothing more than a strong suspicion that the defendant committed the crime, he argues, are not sufficient to support a conviction.

The standard of review on denial of a motion for judgment of acquittal is de novo . Reynolds v. State, 934 So.2d 1128, 1145 (Fla. 2006) (citing Pagan v. State, 830 So.2d 792, 803 (Fla. 2002) ). In a case in which the evidence is wholly circumstantial, as here, not only must the State provide sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant's reasonable hypothesis of innocence. Pagan, 830 So.2d at 803. However, the State is not required to conclusively rebut " 'every possible variation' of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events." State v. Law, 559 So.2d 187, 188-89 (Fla. 1989). Indeed,

[t]he question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine. Where the circumstantial evidence contradicts the defendant's theory of innocence, and the inferences pointing to guilt are sufficiently strong, the case should go to the jury. The standard for review of a denial of a motion for judgment of acquittal is not whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis other than guilt, but rather whether the jury must reasonably so conclude.

Perez v. State, 565 So.2d 743, 744 (Fla. 3d DCA 1990) (citations omitted).

Different interpretations of the same facts do not warrant taking the case from the jury. In this instance, the State sufficiently met its burden by showing a view of the evidence that is distinctly inconsistent with Charlier's view that someone else could have murdered Jasmine after he left the apartment around 6:00 a.m. The jury could instead reasonably conclude the victim was alive when the defendant arrived, and she perished while he was there. We find sufficient competent evidence on the record to contradict the appellant's theory of innocence and support the denial of his motion for judgment of acquittal.

Charlier additionally argues that the trial court erroneously allowed the testimony of Jasmine's mother and friend as non-hearsay. We disagree. We review a trial court's decision to admit evidence under an abuse of discretion standard, Williams v. State, 967 So.2d 735, 747-48 (Fla. 2007), and "[d]iscretion 'is abused only where no reasonable man would take the view adopted by the trial court.' " Nolte v. State, 726 So.2d 307, 309 (Fla. 2d DCA 1998) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) ). The statements from Jasmine's mother and friend as to what Jasmine was immediately experiencing the night before her murder were admissible as either excited utterances or as statements made relating to a startling event or condition, while the declarant was under the stress of excitement caused by the event, i.e., her argument with Charlier. See § 90.803(1), Fla. Stat. (2016) (covering statements "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness."); Pasha v. State, 225 So.3d 688, 708 (Fla. 2017). There was no suggestion that the statements from the witnesses were untrustworthy, and we conclude that their testimony was appropriately admitted.

After a thorough consideration of the record and issues presented on appeal, we affirm appellant's conviction.

Affirmed.


author: PER CURIAM.

text:
    Michael CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-296
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   PER CURIAM.

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


text:
    James WILCOX, Appellant, v. State of Florida, DEPARTMENT OF REVENUE, and Maritza Couch, Appellees.
    No. 3D18-795
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019
    James Wilcox, in proper person.
    Ashley Moody, Attorney General, and Toni C. Bernstein (Tallahassee), Senior Assistant Attorney General, for appellee Department of Revenue.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   PER CURIAM.

James Wilcox appeals from a final order entered after an evidentiary hearing held before a child support hearing officer. Wilcox raises three issues, two of which involve evidentiary rulings and factual determinations. As to these two issues, the record on appeal is insufficient to permit meaningful appellate review. Because Wilcox failed to provide a transcript of the evidentiary hearing, we must affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding: "In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.... When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory.")

However, the absence of a transcript is not fatal to our review of the third issue, which alleges an error on the face of the final order. See Hanna-Mack v. Bank of America, N.A., 218 So.3d 971 (Fla. 3d DCA 2017) ; Hill v. Calderin, 47 So.3d 852 (Fla. 3d DCA 2010) (holding that even in the absence of a transcript, an appellate court may consider an error that is apparent on the face of the judgment). Wilcox contends that the order is erroneous on its face because it awards retroactive child support for a time period that precedes the child's birth. Having reviewed the order, however, we find Wilcox's contention is without merit.

We first note that the child was born on September 22, 2016, and the petition was filed on February 7, 2018. Under section 61.30(17), Florida Statutes (2018), a court has the discretion to award retroactive child support up to 24 months prior to the date of the filing of the petition. In the instant case, if retroactive child support had been awarded for the full 24-month period preceding the filing of the petition, this would date back to February 7, 2016, more than seven months before the child was born. And although the order does state that retroactive child support "is calculated back two (2) years prior to the date of filing" (which would mean February 7, 2016), when read in context, we conclude there is no error. The entirety of that portion of the order provides:

The retroactive child support is calculated back two (2) years prior to the date of filing, which is September 22, 2016 [i.e., the date of the child's birth]. The retroactive child support is set at $8182.18 as of February 07, 2018 [i.e., the date of the filing of the petition].

(Emphasis added.)

Although the order is far from a model of clarity, we find that on the face of the order, retroactive child support was awarded only from the date of the child's birth (September 22, 2016) to the date of the filing of the petition (February 7, 2018), a period of time authorized by section 61.30(17).

Affirmed.

      That subsection provides:
      In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. In determining the retroactive award in such cases, the court shall consider the following:
      (a) The court shall apply the guidelines schedule in effect at the time of the hearing subject to the obligor's demonstration of his or her actual income, as defined by subsection (2), during the retroactive period. Failure of the obligor to so demonstrate shall result in the court using the obligor's income at the time of the hearing in computing child support for the retroactive period.
      (b) All actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.
      (c) The court should consider an installment payment plan for the payment of retroactive child support.


text:
    DYNASTY PROPERTIES, LLC, Appellant/Cross-Appellee, v. U.S. BANK, N.A., etc., Appellee/Cross-Appellant.
    No. 3D18-389
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019
    Bruce Botsford (Ft. Lauderdale), for appellant/cross-appellee.
    Akerman LLP, and Nancy M. Wallace (Tallahassee) and William P. Heller (Fort Lauderdale), for appellee/cross-appellant.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Fogarty v. Nationstar Mortg., LLC, 224 So.3d 313, 315 (Fla. 5th DCA 2017) (quoting Wolkoff v. Am. Home Mortg. Serv., Inc., 153 So.3d 280, 281 (Fla. 2d DCA 2014) ("In a typical foreclosure case, the plaintiff proves the amount of indebtedness through the testimony of a competent witness who can authenticate the mortgagee's business records and confirm that they accurately reflect the amount owed on the mortgage.") ); Wachovia Mortg., F.S.B. v. Goodwill, 199 So.3d 346, 348 (Fla. 4th DCA 2016) (holding plaintiff "presented legally sufficient evidence on the amount of damages" by introducing the payment history stating the principal balance and its witnesses' testimony confirming the payment history was accurate).


text:
    Richard WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-217
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See § 90.402, Fla. Stat. (2017) (providing: "All relevant evidence is admissible, except as provided by law"); § 90.403, Fla. Stat. (2017) (providing: "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence"); Heath v. State, 648 So.2d 660, 664 (Fla. 1994) (noting that a "trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion"); Knight v. State, 15 So.3d 936, 938 (Fla. 3d DCA 2009) (observing that where reasonable trial judges might well disagree on whether certain evidence should have been admitted or excluded at trial, no abuse of discretion has been shown).


author: LOGUE, J.

text:
    Alejandro DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-464
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019
    Daniel Tibbitt, for appellant.
    Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and SCALES, JJ.
   LOGUE, J.

Defendant Alejandro Diaz appeals the trial court's entry of an order revoking his probation and sentencing him to 25.25 years' imprisonment on his underlying crimes. His probation was revoked because, while serving his initial sentence, he was found in possession of a cigarette made from a synthetic cannabinoid, AB-Chimanaca. After careful review of Mr. Diaz's arguments, we affirm.

I. BACKGROUND

In 2013, Mr. Diaz pled guilty to attempted premeditated murder with a firearm, conspiracy to commit first degree murder, discharging a firearm from a vehicle, directing activity of a criminal gang, and racketeering. He was sentenced to 10 years' imprisonment followed by 10 years' probation. He was read and signed an order of supervision that cautioned a "violation of any of the conditions" or failure to "live without violating the law" could result in revocation of probation.

On January 27, 2015, a corrections officer at the Miami-Dade County jail found Mr. Diaz in possession of a cigarette made from the synthetic cannabinoid. Mr. Diaz was charged with violating section 951.22(1) of Florida Statutes, which prohibits the smuggling or possession in a county detention facility of various legal and illegal items including clothing, food, alcohol or "any drug or drug of any kind or nature ... and controlled substances as defined in s. 893.02(4)."

During his probation violation hearing, Mr. Diaz testified he obtained the synthetic cannabinoid from another inmate. He admitted that he knew possession was forbidden in jail and explained he smoked the substance to self-medicate. The trial court found Mr. Diaz willfully and knowingly violated his probation. It then re-sentenced Mr. Diaz to 25.25 years' imprisonment to be followed by 10 years' probation. Mr. Diaz timely appealed.

II. ANALYSIS

Mr. Diaz raises three issues on appeal. First, Mr. Diaz claims that the particular synthetic cannabinoid which he possessed was not a controlled substance under section 893.02(4) at the time he possessed it and therefore his possession did not violate section 951.22(1). We recognize that this particular synthetic cannabinoid was not added to the list of controlled substances in section 893.02(4) until several months after it was found in his possession. But, while section 951.22(1) prohibits possession of controlled substances as defined in s. 893.02(4), its prohibition is not limited to only controlled or illegal substances. The statute is designed to prevent the smuggling and surreptitious possession of various legal and illegal contraband by inmates including money, food, clothing, tobacco, alcohol, and, pertinent to this case, "any narcotic, hypnotic, or excitative drug or drug of any kind or nature, including nasal inhalators, sleeping pills, barbiturates, and controlled substances as defined in section 893.02(4)."

In full, section 951.22(1) provides:

It is unlawful, except through regular channels as duly authorized by the sheriff or officer in charge, to introduce into or possess upon the grounds of any county detention facility as defined in s. 951.23 or to give to or receive from any inmate of any such facility wherever said inmate is located at the time or to take or to attempt to take or send therefrom any of the following articles which are hereby declared to be contraband for the purposes of this act, to wit: Any written or recorded communication; any currency or coin; any article of food or clothing; any tobacco products as defined in s. 210.25(12); any cigarette as defined in s. 210.01(1); any cigar; any intoxicating beverage or beverage which causes or may cause an intoxicating effect; any narcotic, hypnotic, or excitative drug or drug of any kind or nature, including nasal inhalators, sleeping pills, barbiturates, and controlled substances as defined in s. 893.02(4); any firearm or any instrumentality customarily used or which is intended to be used as a dangerous weapon; and any instrumentality of any nature that may be or is intended to be used as an aid in effecting or attempting to effect an escape from a county facility.

§ 951.22(1), Fla. Stat. (emphases added). Mr. Diaz admitted he smoked the synthetic cannabinoid at issue to self-medicate. It was therefore a "drug of any kind or nature," whether or not it was illegal.

Next, Mr. Diaz claims that if section 951.22(1)'s prohibition on contraband in detention facilities is construed to include AB-Chimanaca, then the statute is unconstitutionally vague. "To withstand a vagueness challenge, a statute must be specific enough to give persons of common intelligence and understanding adequate warning of the proscribed conduct." State v. Mitro, 700 So.2d 643, 645 (Fla. 1997) (citing Trushin v. State, 425 So.2d 1126, 1130 (Fla.1982). Under this standard, section 951.22 is not vague.

As we mentioned before, its purpose is to control smuggling and surreptitious possession of various items, legal and illegal. Considered in this light, it is plain to a person of "common intelligence" that this statute prohibits the smuggling or possession of a "drug of any kind or nature," which includes the synthetic cannabinoid at issue here, whether it is a controlled substance or not, just like the statute prohibits the smuggling or possession of food, tobacco, and alcohol. Indeed, Mr. Diaz admitted he knew the synthetic cannabinoid in his possession was contraband. See Hughes v. State, 943 So.2d 176, 189 (Fla. 3d DCA 2006) (rejecting a vagueness claim and noting "[t]he plain and ordinary meaning of a word can be ascertained by reference to a dictionary."); accord State v. Hagan, 387 So.2d 943, 945 (Fla. 1980) (noting that the "legislature's failure to define a statutory term does not in and of itself render a penal provision unconstitutionally vague").

Finally, Mr. Diaz argues that he could not commit a willful and substantial violation before his probationary period began. This argument has previously been considered and rejected by the Florida Supreme Court and other courts. See Stafford v. State, 455 So.2d 385, 386-87 (Fla. 1984) (concluding that probation could be revoked for a violation occurring during a period of parole even though the term of probation had not yet begun.); Martin v. State, 243 So.2d 189, 191 (Fla. 4th DCA 1971) ("[T]he court can revoke an order of probation, the term of which has not yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to the entry of the order of probation."); see, e.g., Lawson v. State, 969 So.2d 222, 235 (Fla. 2007) ("Probation orders need not include every possible restriction so long as a reasonable person is put on notice of what conduct will subject him or her to revocation.").

Affirmed.


text:
    Rian A. MAERCKS, Appellant, v. Arin B. MAERCKS, Appellee.
    No. 3D18-458
    District Court of Appeal of Florida, Third District.
    Opinion filed April 3, 2019
    Kula & Associates, P.A., and Elliot B. Kula, W. Aaron Daniel, and William D. Mueller, for appellant.
    Law Offices of Mendez & Mendez, P.A., and Sergio L. Mendez and Daniel J. Mendez, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
    ON MOTION TO DISMISS
   LOGUE, J.

This appeal arises from a probate matter. Decedent Nita Maercks executed a will that was admitted to probate. She also executed another document regarding the distribution of her assets. Appellee Arin B. Maercks, one of the three children who are beneficiaries under the will and who is the personal representative, petitioned to have the second document admitted to probate as a codicil even though he had not included it initially. The trial court granted the motion and admitted the document as a codicil. In its order doing so, the trial court stated:

By entering this Order, the Court does not make any rulings of fact or law, as it applies to the content of the [Codicil] ..., the legal positions of the parties, or the effect of the Codicil on the Order entered in this case. Any such arguments will need to be further litigated by the parties. The Court simply rules on the admission of the Codicil which was executed on November 16, 2013, to probate.

(Emphases added). Rian A. Maercks, one of the three beneficiaries, timely appealed. Appellee moved to dismiss the appeal for lack of jurisdiction.

Appellant contends we have jurisdiction under Florida Rule of Appellate Procedure 9.170(b)(2), (12) & (13). This rule provides a non-exclusive list of probate orders that are appealable because they "finally determine a right or obligation of an interested person." Rule 9.170(b).

At the outset, we note that the order under review does not "finally determine a right or obligation of an interested person." To the contrary, it expressly states that it "simply rules on the admission of the Codicil." In so doing, the order itself explicitly states that it "does not make any ruling of fact or law, as it applies to the content of the Document ..., the legal positions of the parties, or the effect of the Codicil on the other Orders entered in this case." Indeed, the Order expressly contemplates additional judicial labor: it provides that such arguments or issues "will need to be further litigated." The Order, therefore, does not terminate judicial labor or provide finality as to any issue or party in this case. See Klingensmith v. Ferd & Gladys Alpert Jewish Family, 997 So.2d 436 (Fla. 4th DCA 2008) ; Dempsey v. Dempsey, 899 So.2d 1272 (Fla. 2d DCA 2005).

Nevertheless, Appellant contends that we have jurisdiction because the Order determines "a petition or motion to revoke probate of a will." Fla. R. App. P. 9.170(b)(2). Notably, no such petition or motion was ever filed in the probate court proceedings. And, the plain language contained in the Order clearly states that the Order does not rule on other orders entered in the case.

Next, Appellant argues that we have jurisdiction because the Order determines "an estate's interest in any property." Fla. R. App. P. 9.170(b)(12). However, the Order merely admits the codicil to probate; the legal effect of which will be determined after the parties further litigate the issues. It therefore cannot be said to rule on any estate's interest in any property.

Finally, Appellant submits that we have jurisdiction because the Order determines "exempt property, family allowance, or the homestead status of real property." Fla. R. App. P. 9.170(b)(13). Appellant claims that the Order has the legal effect of determining a homestead status. Essentially, Appellant insists that the Order undoes a previously entered order which determined the homestead status of the home left by Decedent and converts that homestead to conform to the time-sharing plan contained in the Codicil. But the Order plainly states that it does not decide on such issues or overrule any other order entered in the case.

Dismissed.


author: MILLER, J.

text:
    The STATE of Florida, Appellant, v. Armando SOCARRAS, Appellee.
    No. 3D18-783
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019
    Ashley Moody, Attorney General, and Rachel Kamoutsas, Assistant Attorney General, for appellant.
    The Martinez Law Center, and Edward A. Martinez, for appellee.
    Before SALTER, SCALES, and MILLER JJ.
   MILLER, J.

The State appeals the trial court's order granting a motion to suppress three separate post- Miranda statements made by appellee, Armando Socarras. The trial court found all three statements were improperly compelled in violation of Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Applying a well-reasoned body of binding jurisprudence and the text of the United States Constitution, we conclude the trial court erred in suppressing two of the three statements under review, thus we reverse in part and affirm in part.

FACTS

In 2016, the Miami-Dade Police Department ("MDPD") initiated an investigation into allegations of corruption within its Narcotics Bureau. In an effort to ascertain the identity of the purportedly corrupt law enforcement officers, the Criminal Conspiracy Section of MDPD's Professional Compliance Bureau orchestrated a clandestine "sting operation." MDPD rented a motel room and designated an undercover police officer from the Orlando Police Department to pose as a drug peddler. The undercover officer was furnished with $3,113.00 in pocket cash, an altered identification card, and two bags containing illegal narcotics and $14,314.00 in currency. Officers marked the money with fluorescent powder and recorded the serial numbers reflected on each banknote.

Socarras, a ten-year veteran of MDPD, was a member of the Narcotics Bureau. On the evening of the sting operation, Socarras's partner, Edwin Diaz, received a "tip" from a confidential informant regarding a male subject selling narcotics out of the motel room. Socarras and his squad responded to the location and arrested the undercover officer outside of the motel room. A search incident to arrest yielded a wallet containing cash and narcotics. Diaz obtained a search warrant and the two bags containing currency and narcotics were recovered from inside of the motel room. All evidence was designated for impoundment.

Socarras was tasked with inventorying and impounding the narcotics and currency. He and Diaz drove to the Property and Evidence Bureau (the "Bureau") to impound the property. Two sergeants were waiting at the Bureau to verify the inventory of the impounded property. After Socarras and Diaz left, the sergeants discovered $1,300.00 of the seized currency was missing.

Shortly after driving away from the Bureau, Detective David Colon detained Socarras. Colon was dressed in plainclothes and driving an undercover police vehicle, but had a police badge prominently displayed around his neck. He pulled behind Socarras's vehicle and activated his emergency lights. Colon drew his firearm, ordered Socarras out of his vehicle at gunpoint, and identified himself as an internal affairs officer.

After Socarras exited his vehicle, he was subjected to a protective pat-down, relieved of his service weapon, and placed in the back seat of Colon's undercover police vehicle. A backup officer arrived and handcuffed Socarras. While Socarras was on the scene, his automobile was wrapped in police evidence tape and impounded. Officers obtained a search warrant and located the missing $1,300.00 inside of a compartment located in Socarras's automobile.

Socarras was transferred to the back of a marked police cruiser and transported to the MDPD Professional Compliance Bureau. Upon arrival, he was scanned with ultraviolet light to determine the absence or presence of fluorescent powder. He was initially placed in the cafeteria, and then moved to Colon's office. While in Colon's office, Socarras became ill. Colon walked Socarras to the bathroom, where Socarras vomited. Socarras was then returned to Colon's office, where he again vomited. Colon provided Socarras with access to a telephone.

Socarras was administered his Miranda warnings, orally and through a standard written Miranda waiver form, which he signed and initialed accordingly. Socarras then made an initial verbal statement. Approximately four hours later, he submitted to a recorded formal interview. During the interview, Socarras, unprompted, stated he inadvertently neglected to impound some of the currency. The recording device was then deactivated. Forty minutes later, Socarras provided his third and final statement to law enforcement, wherein he disclosed he was experiencing financial difficulties and confessed to purloining the money.

Socarras was charged with grand theft. He sought suppression of all three of his statements, contending they were improperly compelled in violation of his Fifth Amendment privilege against self-incrimination. The trial court conducted an evidentiary hearing on the merits of the suppression motion and subsequently issued a written order. The court rendered the following factual findings:

Socarras was never told that Fryer and Appleby were conducting a criminal investigation. When Colon pulled Socarras over, he identified himself as IA. Socarras was not cuffed, but simply placed in the back seat of a police car. When it was time to be transported to the IA office, a second officer shows up to the scene, also states he is an IA officer and cuffs him, because that's the policy. Prior to going on the record during the first interview, Fryer tells Socarras that this is an internal affairs investigation. During the second interview, shortly after disclosing that he had forgotten to inventory the money he found in the bag of drugs, Socarras states, "[expletive], man. Is that why we're here?" Fryer responds, "I'm here asking you questions. That's it."

The trial court granted suppression, concluding Socarras reasonably believed he was compelled to give all three statements under threat of job loss, thus, the statements were improperly coerced in violation of Garrity. This appeal ensued.

LEGAL ANALYSIS

"We defer to a trial court's findings of fact as long as they are supported by competent, substantial evidence, but we review de novo a trial court's application of the law to the historical facts." Ross v. State, 45 So.3d 403, 414 (Fla. 2010) (citing Cuervo v. State, 967 So.2d 155, 160 (Fla. 2007) ). When a claim is made that the conduct of interrogating law enforcement officials overbore a fellow officer's will to resist, bringing about a confession not freely self-determined, the reviewing court must "examine the entire record and make an independent determination of the ultimate issue of voluntariness." Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966) (citing Haynes v. Washington, 373 U.S. 503, 515-16, 83 S.Ct. 1336, 1344-45, 10 L.Ed.2d 513 (1963) ; Blackburn v. Alabama, 361 U.S. 199, 205, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960) ; Ashcraft v. Tennessee, 322 U.S. 143, 147-48, 64 S.Ct. 921, 923, 88 L.Ed. 1192 (1944) ).

Historically, "[t]he right against self-incrimination originated in the maxim nemo tenetur seipsum prodere ('no man shall be compelled to incriminate himself')." Andrew J. M. Bentz, The Original Public Meaning of the Fifth Amendment and Pre-Miranda Silence, 98 Va. L. Rev. 897, 899-900 (2012) (emphasis added) (citation omitted). The formal adoption of the privilege against self-incrimination emanated from a litany of abuses perpetrated by instrumentalities of the British Crown:

The privilege articulated in the Fifth Amendment finds its origin and can be traced back to the thirteenth century. The enlightening history of the rule is concisely reviewed in McCormick on Evidence ss 115 - 118 (2d Ed. 1972). According to these authorities, the popularity of the privilege against self-incrimination in England sprang from the impact of the ecclesiastical courts and the courts of the Star Chamber and High Commission. Torture attended the victim-defendant's interrogation and his compulsory testimony became the vehicle for the rise of dictatorial Kings and the suppression of religious diversity. The common law courts responded with the theory that it was inherently improper to compel testimonial response by the accused to charges against him.

Clark v. State, 256 Ark. 658, 659-60, 509 S.W.2d 812 (1974) (internal citations omitted). "Virginia's Declaration of Rights , a preface to the 1776 Virginia Constitution authored by George Mason, included the right to silence." Asherman v. Meachum, 957 F.2d 978, 990-92 (2d Cir. 1992) (citation omitted). "Nonetheless, at the Constitutional Convention there were dark warnings that nothing in the initial draft [of the Constitution] prevented Congress from establishing 'that diabolical institution, the Inquisition.' " Id. at 991 (quoting Leonard Levy, Origins of the Fifth Amendment 417 (1968) ). Accordingly, in 1789, James Madison drafted the Fifth Amendment, drawing upon Virginia's Declaration of Rights . Id. "When the Bill of Rights was ratified in 1791 the enshrinement of the ancient maxim nemo tenetur into a constitutional right to remain silent was completed." Id. (citation omitted).

"The Fifth Amendment Self-Incrimination Clause, which applies to the States via the Fourteenth Amendment, provides that no person 'shall be compelled in any criminal case to be a witness against himself.' " McKune v. Lile, 536 U.S. 24, 35, 122 S.Ct. 2017, 2026, 153 L.Ed.2d 47 (2002) (citing Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) ). Likewise, Article 1, Section 9 of the Constitution of the State of Florida provides: "No person shall ... be compelled in any criminal matter to be a witness against oneself."

Critically, "[t]he 'Amendment speaks of compulsion,' and the [United States Supreme] Court has insisted that the 'constitutional guarantee is only that the witness not be compelled to give self-incriminating testimony.' " McKune, 536 U.S. at 35-36, 122 S.Ct. at 2026 (internal citations omitted); see also Hoffa v. United States, 385 U.S. 293, 303-04, 87 S.Ct. 408, 414, 17 L.Ed.2d 374 (1966) ("[S]ince at least as long ago as 1807, when Chief Justice Marshall first gave attention to the matter in the trial of Aaron Burr, all have agreed that a necessary element of compulsory self-incrimination is some kind of compulsion."). Thus, "[t]he Self-Incrimination Clause reflects 'a judgment ... that the prosecution should [not] be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused.' " Doe v. United States, 487 U.S. 201, 212, 108 S.Ct. 2341, 2348, 101 L.Ed.2d 184 (1988) (alterations in original) (citations omitted).

"In the Fifth Amendment context, [the United States Supreme Court has] created [certain] prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause." Chavez v. Martinez, 538 U.S. 760, 770, 123 S.Ct. 1994, 2003, 155 L.Ed.2d 984 (2003). The most well-known prophylactic rule was articulated by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602. In Miranda, the Court held "the police [are required to] inform a criminal suspect that he has the right to remain silent and that anything he says may be used against him." Colorado v. Spring, 479 U.S. 564, 577, 107 S.Ct. 851, 859, 93 L.Ed.2d 954 (1987). Despite the holding in Miranda, as more fully discussed by Justice Antonin Scalia in his dissent in Dickerson v. United States, 530 U.S. 428, 444, 120 S.Ct. 2326, 2337, 147 L.Ed.2d 405 (2000) (Scalia, J., dissenting), the Supreme Court has continued to distinguish between the right against compulsory self-incrimination as textually embodied in the Constitution and the judicially-created prophylactic rules designed to protect that right. For example, in Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974), the Court further reaffirmed that Miranda warnings "were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected," and to "provide practical reinforcement for the right." Thus, the Court concluded that "police conduct at issue [in that case] did not abridge respondent's constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by [the] Court in Miranda to safeguard that privilege." Id. at 446, 94 S.Ct. at 2364-65.

Generally, the privilege against self-incrimination is not self-executing. See Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). However, as discussed in Miranda, "a suspect who is subjected to the 'inherently compelling pressures' of an unwarned custodial interrogation need not invoke the privilege" against self-incrimination until after "being suitably warned." Salinas v. Texas, 570 U.S. 178, 184-85, 133 S.Ct. 2174, 2180, 186 L.Ed.2d 376 (2013) (plurality opinion) (quoting Miranda, 384 U.S. at 467-68, 86 S.Ct. at 1624 & n.37 ; Murphy, 465 U.S. at 429-30, 104 S.Ct. at 1136 ). "Although Miranda's requirement of specific warnings creates a limited exception to the rule that the privilege must be claimed, the exception does not apply outside the context of the inherently coercive custodial interrogations for which it was designed." Roberts v. United States, 445 U.S. 552, 560, 100 S.Ct. 1358, 1364, 63 L.Ed.2d 622 (1980). Since Miranda was decided, the Supreme Court has confronted the issue of whether an assertion of the privilege is required in cases in which the state compels a person to forego the "privilege by threatening to impose economic or other sanctions 'capable of forcing the self-incrimination which the Amendment forbids.' "

Murphy, 465 U.S. at 434, 104 S.Ct. at 1146 (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 2136, 53 L.Ed.2d 1 (1977) ).

In Garrity v. New Jersey, the Court discussed one such exception to the general rule that the privilege against self-incrimination is not self-executing, namely where statements are the product of an impermissible condition imposed on the privilege. 385 U.S. 493, 87 S.Ct. 616. The Court addressed whether the state could use the threat of discharge to secure self-incriminatory testimony from an employee. Id. Under the facts therein, several police officers were questioned during an investigation into police corruption involving the manipulation of traffic tickets. Before being questioned, each officer was warned that anything he said might be used against him in a state court criminal proceeding, and that he had the right to refuse to answer if the disclosure would be incriminating, but if he refused to answer he would be subject to termination. Given the choice "either to forfeit their jobs or incriminate themselves," the officers confessed. Id. at 497, 87 S.Ct. at 618. The statements were later used in prosecutions for conspiracy to obstruct the administration of traffic laws and the officers were convicted. The Supreme Court found:

The choice imposed on [the officers] was one between self-incrimination or job forfeiture. Coercion that vitiates a confession under Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940), and related cases can be "mental, as well as physical"; "the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960). Subtle pressures ( Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954) ; Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) ) may be as telling as coarse and vulgar ones. The question is whether the accused was deprived of his "free choice to admit, to deny, or to refuse to answer." Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 L.Ed. 166 (1941).

Id. at 496, 87 S.Ct. at 618. The Court concluded that "[w]here the choice is 'between the rock and the whirlpool,' duress is inherent in deciding to 'waive' " one's constitutional rights or to lose one's job. Id. at 498, 87 S.Ct. at 619. Thus, the free will of the officers to assert their Fifth Amendment privilege, as applied through the Fourteenth Amendment, was overborne; the statements were coerced and inadmissible. Id. The Court found the privilege against self-incrimination to be self-executing where "an individual threatened with discharge from employment for exercising the privilege had not waived it by responding to questions rather than standing on his right to remain silent." Murphy, 465 U.S. at 435, 104 S.Ct. at 1146 (citation omitted).

The Supreme Court expanded upon this analysis in Murphy, by considering whether certain probation conditions rendered the privilege against self-incrimination "self-executing." 465 U.S. 420, 104 S.Ct. 1136. There, Marshall Murphy, a probationer, met with his probation officer and was questioned regarding a crime distinct from the one for which he was on probation. Under the terms of his probation, Murphy was required to appear when summoned and to be truthful with his probation officer in all matters. Failure to comply with these obligations could give rise to a revocation of his probation. Murphy confessed to his probation officer to committing the crime, and was later prosecuted. He challenged the admissibility of his incriminating statements, contending they were coerced under threat of revocation of probation, in violation of the impermissible penalty principle as outlined in Garrity.

In determining whether "there [was a] reasonable basis for concluding that Minnesota attempted to attach an impermissible penalty to the exercise of the privilege against self-incrimination," the Court considered both Murphy's subjective state of mind, and the objective reasonableness of his belief. Id. at 437, 104 S.Ct. at 1148. In doing so, the Court looked to three factors. First, the Court highlighted the lack of "direct evidence that Murphy confessed because he feared that his probation would be revoked if he remained silent." Id. Second, the Court observed that Murphy had not been expressly informed in person that he would be so penalized. Id. at 438, 104 S.Ct. at 1148. Third, the Court noted that during the meeting, Murphy "apparently felt no compunction about adamantly denying" some of the charges, strongly suggesting "the 'threat' of revocation did not overwhelm his resistance." Id. The Court reasoned "[w]hether we employ a subjective or an objective test ... [the Court] cannot conclude that Murphy was deterred from claiming the privilege by a reasonably perceived threat of revocation." Id. at 438-39, 104 S.Ct. at 1148. Moreover, "it [was] clear that Murphy was not 'in custody' for purposes of receiving Miranda protection." Id. at 430, 104 S.Ct. at 1144. Thus, absent an impermissible penalty or unwarned custodial interrogation, the situation therein "[did] not give rise to a self-executing privilege" that would require the suppression of self-incriminatory testimony. Id. at 435, 104 S.Ct. at 1146.

Here, the trial court found that between the second and third statements, interrogating officers informed Socarras, "we have to make this look like an isolated incident if you want to try to maintain your position in narcotics." As such, the statement was "obtained under threat of removal from office," violating Socarras's "Fourteenth Amendment [protection] against coerced statements," and the trial court properly found the third statement could not be "use[d] in subsequent criminal proceedings." Garrity, 385 U.S. at 500, 87 S.Ct. at 620. Therefore, we affirm the suppression of the third statement, without further elaboration, and focus our analysis on the propriety of the suppression of Socarras's two initial statements.

Given that the sole concern of the Fifth Amendment's Self-Incrimination Clause is governmental coercion, "[a] subjective belief that Garrity applies will not be considered objectively reasonable if the state has played no role in creating the impression that the refusal to give a statement will be met with termination of employment." United States v. Camacho, 739 F.Supp. 1504, 1515 (S.D. Fla. 1990) (citing United States v. Solomon, 509 F.2d 863, 871-72 (2nd Cir. 1975) (Friendly, J.) (drawing distinction between Garrity and case where threat was made by a non-state actor and finding that "[i]t is settled law that the common law rule excluding confessions induced by a threat is limited to inducement by 'a person in authority[;]' what is generally required is a 'legal interest in the prosecution' and 'not the mere existence of actual control or influence growing out of the social or commercial relations of the persons.' ") (citation omitted); United States ex rel. Sanney v. Montanye, 500 F.2d 411, 415 (2nd Cir. 1974) ("The controlling factor is ... the fact that the state had involved itself in the use of substantial economic threat to coerce a person into furnishing an incriminating statement.") ); see also Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986) ("The sole concern of the Fifth Amendment ... is government coercion.") (citations omitted). Moreover, "the mere fact that an employee may have felt compelled to make a statement to his colleagues and superiors as a normal part of his duties is not sufficient to implicate Garrity." People v. Koverman, 38 P.3d 85, 89 (Colo. 2002).

Several well-reasoned cases have reiterated the principle that a mere subjective belief, in the absence of state action, is insufficient to implicate Garrity. In People v. Sapp, 934 P.2d 1367 (Colo. 1997), the Colorado Supreme Court considered whether testimony from two officers, who believed the failure to cooperate in an internal investigation would result in discharge, was sufficient to invoke Garrity immunity. The court stated: "[C]ourts applying Garrity in non-automatic penalty situations have emphasized that ordinary job pressures, such as the possibility of discipline or discharge for insubordination, are not sufficient to support an objectively reasonable expectation of discharge." Id. at 1372. After examining the facts, the court concluded:

A mere subjective belief that termination will result is not objectively reasonable, as a matter of law, even if it is shared by others. The state must have played a significant role in creating the impression that [the officers] might be discharged for asserting the privilege for their beliefs to be considered objectively reasonable. To be significant, the state's role in creating such beliefs must have been more coercive than the requirement that a witness testify truthfully.

Id. at 1374.

Similarly, in State v. Connor, 124 Idaho 547, 861 P.2d 1212 (1993), a police officer sought suppression of statements made during an internal investigation of misconduct, for which he was ultimately prosecuted. The officer testified he feared he would be fired if he refused to relinquish his right against self-incrimination. He further indicated he was ordered to make the statements by his superior officers. The Idaho Supreme Court determined the officer's subjective belief was objectively unreasonable, as there was no evidence other than the officer's own testimony that potential job loss was a threatened penalty.

The Eleventh Circuit Court of Appeals adopted a similar analysis in United States v. Vangates, 287 F.3d 1315 (11th Cir. 2002). There, a correctional officer was extended Garrity immunity in conjunction with an internal affairs investigation into inmate abuse. After the investigation concluded, the officer was subpoenaed to appear in a civil trial. She provided testimony at the trial, essentially corroborating the contents of her statements made during the internal affairs investigation. She was subsequently indicted for crimes relating to the abuse investigation, and sought the suppression of her civil testimony under Garrity. The officer testified she subjectively believed she would have been subject to discipline if she refused to provide statements in the civil case. The court reiterated the adage that a subjective belief of compulsion, under penalty of termination, must be supported by surrounding objective circumstances, and explicitly rejected the proposition that the requirement to appear, alone, is sufficient to support a finding of compulsion. The court stated:

Significantly, [the officer] was not told that she would be sanctioned if she failed to testify, and certainly she was not required to waive her Fifth Amendment rights. The general directive to cooperate was not sufficiently coercive to create an objectively reasonable belief that [the officer] would be sanctioned if she invoked her Fifth Amendment rights.

Id. at 1324.

In consideration of Garrity and its progeny, we examine the totality of the circumstances in determining the voluntariness of a confession. Blackburn, 361 U.S. at 206, 80 S.Ct. at 280 ; see also Braddy v. State, 111 So.3d 810, 832 (Fla. 2012) ("We have previously stated that '[w]here a defendant alleges that his statement was the product of coercion, the voluntariness of the confession must be determined by an examination of the totality of the circumstances.' ") (citation omitted). Thus, in order for the impermissible penalty principle of Garrity to apply, Socarras "must have in fact believed [the] statements to be compelled on threat of loss of job and this belief must have been objectively reasonable." United States v. Friedrick, 842 F.2d 382, 395 (D.C. Cir. 1988).

Here, it is undisputed that prior to Socarras's first and second statements, the State did not threaten Socarras with adverse employment consequences or any other impermissible penalty. Similar to the officers in Sapp, Connor, and Vangates, Socarras testified to a subjective belief that an invocation of his right against self-incrimination would result in termination. However, unlike the officers in the analogous authorities, Socarras was administered Miranda warnings and explicitly waived his rights. Furthermore, the dissimilarity between Socarras's prior internal affairs investigations and the detention on the evening of the theft quells the reasonableness of any subjective or objective finding that Socarras was immersed in a mere administrative proceeding, thus compelled to confess under a postulated penalty of termination. Socarras conceded that, as a ten-year police veteran, he had performed legions of arrests and administered Miranda warnings on approximately fifty occasions. Moreover, as the subject of four prior internal affairs investigations, he was well-versed in the administrative process. In each of the prior administrative investigations, Socarras was provided with advance notice of the interview and signed a Garrity immunity form. He appeared on his own volition at a familiar precinct, and was allowed uninhibited interaction with a police union representative. He was not restrained in any way or relieved of his service weapon, and he was given unfettered access to the case file. Finally, his body was not scanned or frisked for evidence.

In stark contrast, when detained in the instant case, Socarras was stopped by an officer in the middle of the night, held at gunpoint, handcuffed, frisked, and transported in the back of a police cruiser to an unknown precinct. He was subjected to ultraviolet scan, relieved of his service weapon, read Miranda warnings, and divested of his police vehicle, which was treated as evidence. These circumstances constituted a de facto arrest, and they mirrored those preceding the arrest of the undercover officer effected by Socarras earlier in the evening. See Cocke v. State, 889 So.2d 132, 135 (Fla. 4th DCA 2004) (use of handcuffs and detention in patrol car for 25 minutes constitutes a de facto arrest); Poey v. State, 562 So.2d 449, 450 (Fla. 3d DCA 1990) ("When defendant was informed of his Miranda rights, handcuffed, and placed inside the patrol car, he was arrested."). Under these circumstances, it is unfathomable that a reasonable person, particularly an experienced law enforcement officer, would not be aware that a criminal investigation had commenced.

Finally, Socarras did not reference the missing currency in his initial statement, and, unprompted, volunteered an exculpatory explanation in his second statement. As in Murphy, Socarras "apparently felt no compunction about adamantly denying" he engaged in criminal activity, strongly suggesting any subjective belief of employment sanctions "did not overwhelm his resistance." 465 U.S. at 438, 104 S.Ct. at 1148.

Under these circumstances, Socarras "was not put between the rock and the whirlpool," but rather, after Miranda was administered and before any impermissible penalty was threatened, he "was standing safely on the bank of the stream." Singer v. Maine, 49 F.3d 837, 847 (1st Cir. 1995) (citing United States v. Indorato, 628 F.2d 711, 717 (1st Cir. 1980) ). The warnings sufficiently dispelled "whatever coercion [was] inherent in the interrogation process." Moran v. Burbine, 475 U.S. 412, 427, 106 S.Ct. 1135, 1144, 89 L.Ed.2d 410 (1986). Thus, "[i]f any other citizen had made the statement[s] [Socarras] did in a similar ... criminal investigation, a court would have no difficulty in concluding such statement[s] [were] voluntary as a matter of law." State v. Brockdorf, 291 Wis.2d 635, 717 N.W.2d 657, 670 (2006). As such, "[e]ssentially, [Socarras] is looking for greater constitutional protection than the average citizen because [he] is a police officer; we do not interpret the Fifth Amendment or Garrity as providing the expansive protection [Socarras] asks for." Id.

With regard to the two initial statements, we cannot conclude there is a reasonable basis to find the State attempted to attach an impermissible penalty to the exercise of Socarras's privilege against self-incrimination. Thus, the prophylactic rule established in Garrity is inapplicable, as Socarras's Fifth Amendment privilege, as applied through the Fourteenth Amendment, was not self-executing. Accordingly, the trial court erred in suppressing the initial two statements and we reverse the suppression of the two initial statements.

Reversed in part, affirmed in part.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Colon was a detective in the Public Corruption Section of the Internal Affairs Bureau, which handles criminal investigations involving law enforcement officers.

      The serial numbers on the recovered currency matched those recorded prior to the sting operation.

      In this context, "not self-executing" means the privilege may not be relied upon to suppress self-incriminatory testimony, "unless it is invoked." Roberts, 445 U.S. at 559, 100 S.Ct. at 1364.

      As in Garrity, Socarras's privilege against self-incrimination was self-executing. Socarras did not need to invoke the privilege when faced with an impermissible penalty attached to its exercise. Murphy, 465 U.S. at 434-35, 104 S.Ct. at 1146.

      The fact that Socarras was administered his Miranda warnings is but one consideration in determining the objective reasonableness of his purported belief he was coerced to testify. See Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976) ("Proof that some kind of warnings were given or that none were given would be relevant evidence only on the issue of whether the questioning was in fact coercive.") (citations omitted). The sole ground asserted below in support of suppression was the impermissible penalty analysis advanced in Garrity. On appeal, however, relying upon identical facts, Socarras contends his waiver of Miranda rights was involuntary. As the record fails to demonstrate coercion, an analysis of voluntariness under either Garrity or Miranda necessitates the same result-the statements, rendered post-Miranda, were not compelled. See Schoenwetter v. State, 931 So.2d 857, 867 (Fla. 2006) ("We have said that to establish that a statement is involuntary, there must be a finding of coercive police conduct.") (citing Chavez v. State, 832 So.2d 730, 749 (Fla. 2002) ).


author: SALTER, J.

text:
    Donovan Paul HUSSEY, Appellant, v. Tatiana L. LARA, o/b/o J.H., Appellee.
    No. 3D18-259
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019
    Greg Rosenfeld (West Palm Beach), for appellant.
    No Appearance for appellee.
    Before SALTER, SCALES and MILLER, JJ.
   SALTER, J.

Donovan Paul Hussey appeals a final judgment of injunction for protection against sexual violence under section 784.046, Florida Statutes (2017). Mr. Hussey is the brother-in-law of the appellee, Tatiana L. Lara. Mr. Hussey is the paternal uncle, and Ms. Lara is the mother, of the alleged victim, J.H., age nine at the time of an alleged incident. Ms. Lara, who is not an attorney, represented herself in the proceedings below and has not filed a brief or other response to Mr. Hussey's brief in the appeal.

Ms. Lara did not witness the alleged acts, which were claimed to have occurred in Palm Beach County while the child was staying with her father's sister (Mr. Hussey's wife) and Mr. Hussey in the aftermath of Hurricane Irma. Ms. Lara and J.H. lived in Miami-Dade County.

At the hearing on Ms. Lara's petition, Ms. Lara was the only witness. The child did not testify and there was no attempt to introduce any out-of-court statement from her under section 90.803(23), Florida Statutes (2017), as an alleged child victim. The trial court sustained hearsay objections to any testimony by Ms. Lara about what J.H. allegedly told her. Mr. Hussey's attorney advised the Court that Ms. Lara had made a criminal report regarding the alleged incident to the police and State Attorney's Office in Palm Beach County, and he invoked his client's Fifth Amendment right not to testify.

At the conclusion of the hearing, the trial court entered a permanent restraining order, indefinite in duration, finding Ms. Lara credible in her effort to protect her child. This appeal followed.

Analysis

We are constrained to reverse the final order because there was insufficient admissible evidence to support it. To support granting an injunction under section 784.046, Florida Statutes, a petitioner must prove the statutory elements by competent, substantial evidence. Schutt v. Alfred, 130 So.3d 772, 774 (Fla. 3d DCA 2014). The "evidentiary requirements present in section 784.046(4)(a) 1. [state] that the petitioner must be an eyewitness, provide direct physical evidence, or provide an eyewitness affidavit to the sexual battery, to obtain an injunction for protection." Caldwell v. Caldwell, 257 So.3d 1184, 1186 (Fla. 5th DCA 2018). In this case, Ms. Lara did not present any such evidence.

In reaching this result, and taking care to express no opinion regarding the allegations or merits of Ms. Lara's claims on behalf of her daughter, we comment briefly on the issue of access to counsel in cases like this one, heard daily in domestic violence divisions of the circuit court, and in the appeals from the rulings in those cases. The issues could hardly be more significant-the allegations, proceedings, and results substantially affect the long-term physical and emotional health of the parties and their families.

There are willing legal service groups and pro bono attorney volunteers willing to assist parties on either side of the trial court petitions or in any resulting appeals. Yet we continue to see unrepresented parties in such cases, and our Court is not alone in that respect. See Mitchell v. Brogden, 249 So.3d 781, 783 n. 2 (Fla. 1st DCA 2018) (Makar, J., dissenting) (noting the pitfalls encountered by self-represented, non-attorney litigants in protective injunction cases). We urge non-profit legal services providers, the Florida Commission on Access to Civil Justice, The Florida Bar, and our colleagues in the judiciary to do what they can to assure that pro se parties in these cases have been made aware of the opportunities for legal assistance even if they are unable to afford private counsel.

Reversed; final judgment of injunction vacated.


text:
    KEYS COUNTRY RESORT, LLC, et al., Appellants, v. 1733 OVERSEAS HIGHWAY, LLC, Appellee.
    No. 3D18-1013
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019
    Law Offices of Scott Alan Orth, P.A., and Scott Alan Orth (Hollywood), for appellants.
    Lerman & Whitebook, P.A., and Carlos D. Lerman (Hollywood), for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   LOGUE, J.

Keys Country Resort, LLC, and 1733-1777 Overseas Highway, LLC (hereinafter "Keys Country") appeal from a final summary judgment for reformation entered in favor of 1733 Overseas Highway, LLC ("Overseas Highway"). While the affidavits filed by Keys Country met its burden as the movant for summary judgment, the affidavits filed by Overseas Highway also met their burden as the opponents by identifying a genuine issue of material fact in dispute. Because the disputed issue of fact can only be resolved by trial, we reverse.

Background

This appeal arises from a dispute over whether certain real property, referred to as the bay bottom parcel, was inadvertently omitted from a mortgage. Keys Country purchased four adjacent parcels of property in Vaca Key consisting of three upland properties and one bay bottom parcel. The four parcels became unified under a single title. Later, in 2005, Keys Country obtained a development loan from Premier American Bank (the "Lender"). The mortgage contained the legal descriptions of the upland parcels, but not the bay bottom parcel. The mortgage was modified four times, but the legal description of the bay bottom parcel was never added. Keys Country defaulted in 2009, and the Lender obtained a final judgment of foreclosure. The property foreclosed upon was subsequently conveyed several times in deeds that did not reference the bay bottom parcel.

In 2015, the Lender filed suit to reform the mortgage to include the bay bottom parcel and for reforeclosure. The Lender argued that omission of the bay bottom parcel was the result of a scrivener's error caused by mutual mistake, and moved for summary judgment. In support, the Lender submitted the affidavit of Jose L. Pruna, a Loan Officer for Premier American Bank. Mr. Pruna stated that the Loan Approval Form for the first mortgage included a legal description of the bay bottom parcel and that "at the time of closing, it was the intent of the [Lender] to encumber the Uplands and the Bay Bottom." He swore the Lender did not discover the omission until 2013, that the "omission was a mistake," and "[a]t all times from the origination of the transaction described in the Loan Approval Form to the present, it had been the intention of the [Lender] to receive a Mortgage for the Uplands and Bay Bottom."

The Lender also submitted evidence that Keys Country stopped treating the bay bottom parcel as an asset after the original foreclosure. Among other things, the Lender submitted evidence that Keys Country and its officers had not listed the bay bottom parcel as an asset in various matters filed after the foreclosure including tax returns, bankruptcy filings, divorce disclosures, and the documents dissolving Keys Country.

In opposition, Keys Country submitted the affidavit of Sandy Segall, a principal of Keys Country. According to Mr. Segall, the absence of the legal description of the bay bottom parcel from the mortgage and its modifications was not an error. To the contrary, he avers, Keys Country never intended to mortgage the bay bottom parcel as part of the loan. The intent was to develop the bay bottom separately and, regardless, the bay bottom had certain environmental issues that prevented the Lender from accepting it as collateral. He explained that the bay bottom parcel was absent from the various tax filings and disclosures because he and others simply forgot that Keys Country owned the bay bottom parcel, likely because its value at those times was minimal.

The trial court granted summary judgment on the reformation claim. The Lender then moved for summary judgment on the reforeclosure claim, which the trial court also granted. This appeal followed.

Analysis

This Court reviews a trial court's ruling on a motion for summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. Summary judgment "is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings." The Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla. 2006). Because summary judgment tests the sufficiency of the evidence to justify a trial, it "is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial as a matter of law." Moradiellos v. Gerelco Traffic Controls, Inc., 176 So.3d 329, 334-35 (Fla. 3d DCA 2015).

A court considering summary judgment must avoid two extremes. On one hand, a "party should not be put to the expense of going through a trial, where the only possible result will be a directed verdict." Perez-Rios v. Graham Cos., 183 So.3d 478, 479 (Fla. 3d DCA 2016) (quoting Martin Petroleum Corp. v. Amerada Hess Corp., 769 So.2d 1105, 1108 (Fla. 4th DCA 2000) ). On the other hand, "a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact." Perez-Gurri Corp. v. McLeod, 238 So.3d 347, 350 (Fla. 3d DCA 2017).

The overarching issue in this case is whether the absence of a legal description for the bay bottom parcel from the original mortgage and its subsequent modifications was intentional or due to a mutual mistake. We hold that the summary judgment evidence submitted by the Lender was sufficient to meet its burden as movant for summary judgment. It therefore became the burden of the Keys Country, as the party opposing the motion, either to (1) file an affidavit indicating they needed additional time to take identified discovery, pursuant to subsection (f) of the summary judgment rule, Fla. R. Civ. P. 1.510.; or (2) file "summary judgment evidence on which the adverse party relies," pursuant to subsection (c) of the rule.

Keys Country chose the second option and filed affidavits in opposition. In this situation, the law of Florida shifts the burden to present evidence from the movant to the party opposing summary judgment:

If the moving party presents evidence to support the claimed non-existence of a material issue, he will be entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result - that is, evidence sufficient to generate an issue on a material fact. When analyzed in this fashion the summary judgment motion may be categorized as a "pre-trial motion for a directed verdict." At least it has most of the attributes of a directed verdict motion.
The initial burden, therefore, is upon the movant. When he tenders evidence sufficient to support his motion, then the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. The movant, however, does not initially carry the burden of exhausting the evidence pro and con, or even examining all of his opponent's witnesses. To fulfill his burden he must offer sufficient admissible evidence to support his claim of the non-existence of a genuine issue. If he fails to do this his motion is lost. If he succeeds, then the opposing party must demonstrate the existence of such an issue either by countervailing facts or justifiable inferences from the facts presented. If he fails in this, he must suffer a summary judgment against him.

Harvey Bldg., Inc. v. Haley, 175 So.2d 780, 782-83 (Fla. 1965) (citations omitted).

In this regard, the Rule requires that "opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein." Fla. R. Civ. P. 1.510(e). In short, the affidavits opposing summary judgment must identify "admissible evidence that creates a genuine issue of material fact." Panzera v. O'Neal, 198 So.3d 663, 665 (Fla. 2d DCA 2015) (citing Byrd v. Leach, 226 So.2d 866, 868 (Fla. 4th DCA 1969) ). The purpose of this requirement is "to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief." Alvarez v. Fla. Ins. Guar. Ass'n, Inc., 661 So.2d 1230, 1232 (Fla. 3d DCA 1995) (quoting Pawlik v. Barnett Bank of Columbia Cty., 528 So.2d 965, 966 (Fla. 1st DCA 1988) ).

Here, the affidavit of Mr. Segall contained testimony clearly admissible at trial. According to Mr. Segall, the upland parcels were to be developed separately from the bay bottom parcel. The mortgage was obtained only to develop the upland parcels. The bay bottom parcel was not included in the mortgage because it was never intended to be included. Along with the simple fact that the legal description of the bay bottom parcel was never included in the mortgage or subsequent modifications, this testimony was sufficient to create a genuine issue of material fact as to whether the absence of the legal description of the bay bottom parcel was intentional or a mutual mistake. Questions regarding the relative credibility or weight of the evidence cannot be resolved on summary judgment, but must be left for the trier of fact. Hernandez v. United Auto. Ins. Co., 730 So.2d 344, 345 (Fla. 3d DCA 1999) ("In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the witnesses nor weigh the evidence.").

Because we conclude that the trial court erred in granting summary judgment of reformation, we need not reach the other issues raised on appeal.

Reversed and remanded.

      The names of the parties have changed in the course of the litigation. The Lender, Premier American Bank, the original plaintiff in the foreclosure action, changed its name to Florida Community Bank. Florida Community Bank later transferred the parcels to a related company, FCB Keys Country. FCB Keys Country sold the properties to Overseas Highway which was ultimately substituted into the case as plaintiff as successor-in-interest to FCB Keys Country.

      Harvey Building has been continuously cited for over sixty years and remains the black letter law today. See, e.g., The Fla. Bar v. Mogil, 763 So.2d 303, 307 (Fla. 2000) (citing Harvey Building with approval); Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979) (same); Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So.3d 383, 389 (Fla. 2d DCA 2018) (same); Cong. Park Office Condos II, LLC v. First-Citizens Bank & Tr. Co., 105 So.3d 602, 610 (Fla. 4th DCA 2013) (same); Juarez v. New Branch Corp., 67 So.3d 1159, 1160 (Fla. 3d DCA 2011) (same); Cassady v. Moore, 737 So.2d 1174, 1178 (Fla. 1st DCA 1999) (same); Magma Trading Corp. v. Lintz, 727 So.2d 377, 378 (Fla. 5th DCA 1999) (same).