text:
    Curtis HALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1168
    District Court of Appeal of Florida, First District.
    June 4, 2018
    Candice Kaye Brower, Regional Conflict Counsel, Gainesville, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Curtis Hall appeals from his convictions and sentences for two counts of second-degree murder and two counts of armed robbery with a firearm, raising three issues for our consideration. Hall argues in his first issue that the trial court erred when it denied his motion to suppress statements made during a police interrogation. He argues in his third issue that the Criminal Punishment Code is unconstitutional as applied to juvenile defendants. We affirm for the reasons discussed below.

I.

Hall was charged with two counts of first-degree murder and two counts of armed robbery with a firearm. It was alleged that Hall, who was seventeen years old at the time, robbed and killed two brothers who lived together in Hall's apartment complex. Hall was interviewed by the police on November 2 and November 15, 2012, regarding the crimes after witnesses placed him near the scene. Prior to trial, Hall moved to suppress statements he made to the police during the November 15, 2012, interrogation, including a confession to committing the murders, arguing that he did not knowingly and intelligently waive his Fifth Amendment rights.

The trial court found that Hall understood his rights and validly waived them. Hall was found guilty of two counts of the lesser-included offense of second-degree murder and two counts of armed robbery. The jury made a specific finding that Hall did not have actual possession of a firearm during the crimes. Hall's scoresheet indicated a lowest permissible sentence of 369.15 months in prison and a statutory maximum sentence of life in prison. He was sentenced to fifty-five years in prison, to be followed by life on probation, with a chance for judicial review after fifteen years pursuant to section 921.1402, Florida Statutes (2014).

II.

In reviewing a trial court's ruling on a motion to suppress, "[t]he standard of review for the trial judge's factual findings is whether competent substantial evidence supports the judge's ruling" and the "standard of review for the trial judge's application of the law to the factual findings is de novo." Butler v. State , 706 So.2d 100, 101 (Fla. 1st DCA 1998). This Court gives deference to the trial court's factual findings and credibility determinations based on live testimony but gives less deference when, based on the nature of the evidence under review, "the trial court does not have a special vantage point." Beckham/Tillman v. Bennett , 118 So.3d 896, 898 (Fla. 1st DCA 2013) (quoting State v. Sepanik , 110 So.3d 977, 978 (Fla. 2d DCA 2013) ).

All persons have a constitutional right against self-incrimination in any criminal matter. U.S. Const. amend. V ; Art. I, § 9, Fla. Const. The Supreme Court determined in Miranda v. Arizona that the State "may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A defendant may waive so-called Miranda rights, but only if the defendant is informed of those rights and "the waiver is made voluntarily, knowingly and intelligently." Id.

To determine whether a defendant's waiver of Miranda rights is voluntary, knowing, and intelligent, courts employ a "totality of the circumstances" test, which involves evaluation of factors including "(1) the manner in which the Miranda rights were administered, including any cajoling or trickery; (2) the suspect's age, experience, background and intelligence;" (3) whether the suspect's parents were contacted and the juvenile given an opportunity to consult with parents or an attorney before questioning; (4) whether the questioning took place in the police station; and (5) whether the interrogators secured a written Miranda waiver. Ramirez v. State , 739 So.2d 568, 576 (Fla. 1999) (citations omitted). Where a confession is obtained after the administration of the Miranda warnings, the State bears a "heavy burden" to demonstrate by a preponderance of the evidence that the defendant knowingly and intelligently waived his or her privilege against self-incrimination and the right to counsel. Id. at 575.

By applying the Ramirez factors to Hall's November 15 interview, we conclude the trial court properly denied Hall's motion to suppress his post- Miranda statements. As to the manner in which his rights were read to him, Hall was interviewed at the police station while he was there based on an arrest for unrelated charges. Before any questioning occurred, an officer read Hall his Miranda rights and Hall executed a written waiver of those rights. While the record indicates the officer read the rights extremely quickly, this was the second time in two weeks that Hall had waived his Miranda rights and indicated a desire to talk to police regarding the murders. During the November 2 interview, an officer read Hall his Miranda rights and Hall signed a written waiver of those rights after informing the officers he had no questions about the waiver. During that interrogation, another officer reiterated that Hall had the right to refuse to answer questions. While we do not condone the officer's cursory review of Hall's Miranda rights during the November 15 interview, we agree with the trial court's assessment that when taken in context, the officer's actions were not coercive, misleading, or deceptive so as to undermine Hall's ability to understand the rights he was waiving.

Consideration of Hall's age, experience, and background weigh in favor of finding a voluntary waiver. When the murders occurred, Hall was within three months of his eighteenth birthday. He was also very experienced in the criminal justice system, having been arrested at least thirteen times, and as noted, he had been read his Miranda rights at least once two weeks prior to his November 15 interview. See Carter v. State, 697 So.2d 529, 534 (Fla. 1st DCA 1997) (noting that prior experience with the criminal justice system is one factor in determining whether a waiver is knowing and voluntary). During that November 2 interview, Hall demonstrated his understanding of his right to terminate the interview. Additionally, the State presented evidence that during a police interview in an unrelated case in 2009, when Hall was thirteen years old, he refused to speak with police until his mother was present. At that time he was arrested and read his Miranda rights as well. There was testimony that he waived his Miranda rights in at least two other prior cases and decided to talk to police.

Factors weighing against a finding of a voluntary waiver are Hall's intelligence and the fact that he was not able to consult with his mother prior to questioning. However, these factors alone are not dispositive of a whether a defendant can voluntarily waive his rights. See , e.g. , Bevel v. State , 983 So.2d 505, 516 (Fla. 2008). This Court has found a valid Miranda waiver where a sixteen-year-old defendant was "borderline mentally retarded" and functioned at the level of a child between eight and ten years of age. Brookins v. State , 704 So.2d 576, 578 (Fla. 1st DCA 1997). There, we noted that even though the defendant's mother was never contacted and the defendant had a low I.Q., the trial court found a knowing waiver after personally observing the defendant and evaluating testimony from the officers who questioned him and a psychologist who evaluated him. Here, the State introduced expert testimony that despite Hall's lower intelligence, he was capable of understanding his Miranda rights. Further, the video of Hall's interrogation does not indicate any confusion as to his rights. He was able to discuss the case with officers with a calm and conversational demeanor and provide relevant facts.

We reject Hall's contention that he was tricked by detectives and gave a confession only because they promised him he could go home if he did so. While the officers urged Hall to take control of his life and tell his side of the story, they did not promise Hall that he could go home if he confessed. To the extent Hall may have believed he could go home if he confessed, we agree with the trial court that this was due to wishful thinking on his part rather than deception or trickery by the officers. Likewise, nothing in the record suggests that the absence of Hall's mother impacted the voluntariness of Hall's waiver of his rights.

Given the totality of the circumstances, including the lack of threats or coercion, Hall's multiple prior waivers of Miranda in other cases, and other evidence that he understood his rights and the consequences of abandoning them, we hold that the trial court's finding of a voluntary, knowing, and intelligent waiver was proper. See Padmore v. State , 743 So.2d 1203 (Fla. 4th DCA 1999) (holding that a sixteen-year-old defendant knowingly, intelligently, and voluntarily waived his Miranda rights, although he was intellectually slow and police did not attempt to contact his mother until more than two hours into the interview; the defendant had been read his rights and waived them on previous occasions, he was not threatened during the police interview or promised anything in exchange for his confession, and his taped statement demonstrated that he was able to plan, think rationally, and relate relevant facts in good detail).

III.

In Hall's third issue on appeal, he asserts that the Criminal Punishment Code ("CPC") is unconstitutional as applied to juvenile offenders. Relying on Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and related cases, he alleges the CPC scoresheet, which determines the lowest permissible sentence that must be imposed absent a downward departure, fails to allow a trial court to consider that juveniles are constitutionally different from adults for sentencing purposes.

The calculation of a lowest permissible sentence on the CPC scoresheet does not prevent the trial court from taking a juvenile's youth and its attendant characteristics into account when imposing a sentence. Under the CPC, the trial court may take any constitutionally permissible factor into account when sentencing a defendant to any term between the lowest permissible sentence and the statutory maximum. Furthermore, in response to Graham and Miller , the Florida Legislature adopted chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402, of the Florida Statutes. That law provides for individualized sentencing consideration prior to the imposition of a life sentence on a juvenile offender and for judicial review of certain sentences imposed upon juveniles who commit capital, life, or first-degree felonies punishable by life. The record reflects that Hall was provided with an individualized sentencing hearing pursuant to section 921.1401, during which the trial court took into account Hall's age and the factors listed in section 921.1401(2) when imposing a sentence that was less than life in prison but well beyond the 369.15-month lowest permissible sentence. Finally, as noted, the trial court entered an order that Hall would be eligible for review of his sentence after fifteen years in prison pursuant to section 921.1402(c), Florida Statutes. At that time, the trial court will once again take into account Hall's "age, maturity, and psychological development at the time of the offense" when deciding whether to modify the sentence and allow Hall's early release. See § 921.1402(6)(f), Fla. Stat. (2014). As such, the lowest permissible sentence does not impermissibly prohibit the court from considering Hall's youth. Cf. Montgomery v. State , 230 So.3d 1256 (Fla. 5th DCA 2017) (twenty-five year mandatory minimum sentence imposed on juvenile defendant for discharging firearm not unconstitutional if the defendant is granted judicial review provided by section 921.1402 after twenty years).

IV.

Given the facts of this case, we conclude based on the totality of the circumstances that the record supports the trial court's determination that Hall knowingly and intelligently waived his constitutional rights. We also reject Hall's claim that the Criminal Punishment Code is unconstitutional as applied to juvenile defendants. For the foregoing reasons, we affirm.

AFFIRMED .

Ray, Bilbrey, and Kelsey, JJ., concur.

      We affirm as to the second issue without further comment.

      U.S. Const. amend. V.

      The interrogations at the police station were recorded and we have reviewed the video of the November 15 interrogation in addition to the transcript of the suppression hearing.

      The record indicates Hall had an IQ well below average and read at a level well below his age.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    D.F., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1720
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 5, 2018
    James S. Purdy, Public Defender, and Wilber Lee Cooke, II, Assistant Public Defender, Daytona Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Caroline Johnson Levine, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Petitioner filed a petition for writ of habeas corpus pursuant to section 79.01, Florida Statutes (2017), and section 394.459(8), Florida Statutes (2017), alleging that he was unlawfully detained as the State failed to present substantial, competent evidence to justify his detention at his Baker Act hearing. The State properly conceded error. Finding that Petitioner was entitled to immediate relief, we granted the petition by unpublished order and stated that an opinion would follow to explain our decision.

Petitioner was admitted for involuntary examination under section 394.463(2)(a)(2), Florida Statutes (2017) ("Baker Act"), where Dr. Chaiffetz diagnosed him with schizophrenia. At the Petitioner's Baker Act hearing, Dr. Chaiffetz testified that the most concerning issue was Petitioner's poor oral intake, as Petitioner would not eat food that was not pre-packaged or drink water that was not bottled. Dr. Chaiffetz characterized this as a "self-care deficit." Other than Petitioner's preference for pre-packaged food and bottled water, the only other evidence offered was Petitioner's diagnosis and the fact that he was no longer taking his medications due to insurance issues.

At the close of the State's case, Petitioner declined to testify on his own behalf. The trial court indicated at the close of evidence that Petitioner's silence had "hurt him" and ordered the Petitioner to remain at the medical facility.

"Individuals subject to Baker Act commitment hearings are entitled to the strict enforcement of their fundamental due process rights." Doe v. State , 217 So.3d 1020, 1026 (Fla. 2017). The State must prove by clear and convincing evidence that involuntary commitment is necessary. In re Lehrke , 12 So.3d 307, 308 (Fla. 2d DCA 2009). Importantly, the mere fact that an individual might suffer from a mental illness is not sufficient standing alone to justify involuntary commitment. Singletary v. State , 765 So.2d 180, 181 (Fla. 1st DCA 2000). Rather, the State must also show that the party is likely to suffer neglect without treatment or that a substantial likelihood exists that the party will inflict serious bodily harm on himself in the near future, based upon recent behavior such as causing, attempting, or threatening to do such harm. Lehrke , 12 So.3d at 308-09.

The State's evidence at the hearing fell woefully short. First, there was absolutely no evidence that Petitioner's insistence on pre-packaged food and bottled water while at the medical facility would lead to his neglect or harm others. This evidence, without some substantial explanation as to how and why it would lead to neglect or harm to others, is inadequate to justify Petitioner's continued involuntary commitment.

Second, the Petitioner had no obligation to testify or even speak at the hearing, and his decision to remain silent cannot be used to support his continued confinement. § 394.467(6)(a) 3., Fla. Stat. (2017) ("The patient may refuse to testify at the hearing."). The trial court's suggestion to the contrary was improper.

PETITION GRANTED.

COHEN, C.J., ORFINGER and EISNAUGLE, JJ., concur.

      § 394.467, Fla. Stat. (2017).


author: LOGUE, J.

text:
    C.H.-C., a juvenile, et al., Petitioners/Appellants, v. MIAMI HERALD PUBLISHING CO., et al., Respondents/Appellees.
    Nos. 3D18-504 3D18-511 & 3D18-645
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Philip L. Reizenstein, Assistant Regional Counsel; Law Office of Richard F. Joyce, P.A., and Richard F. Joyce; Laura J. Lee and Thomasina Moore (Sanford), for Guardian ad Litem Program, for petitioners/appellants.
    Holland & Knight LLP, and Sanford L. Bohrer and Scott D. Ponce, Miami, for respondents/appellees Miami Herald Media Company and Carol Marbin Miller; Leslie Hinds, for respondent Department of Children and Families.
    Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
   LOGUE, J.

In these three cases, which we consolidate, C.H.-C., a juvenile, has filed a petition for writ of certiorari, he and his siblings have filed an appeal, and his mother has filed a separate appeal, challenging an order entered by the trial court which they characterize as allowing a newspaper to have access to confidential court records. Because the court has not yet entered an order granting access to the records at issue-the order under review merely establishes a procedure for an in-camera review of proposed redactions-we dismiss the petition and the appeals for lack of jurisdiction.

C.H.-C, his siblings, and their parents are the subjects of dependency proceedings filed by the Florida Department of Children and Families. The Miami Herald and one of its reporters noted for her reporting of child welfare matters, Carol Marbin Miller, moved to intervene in the proceedings and obtain an audio recording or transcript of a January 17, 2018 judicial review hearing. Rule 2.420 of the Florida Rules of Judicial Administration requires public access to most court records but protects the confidentiality of certain court records including "Chapter 39 records relating to dependency matters." Chapter 39 courtroom proceedings are open to the public but court records in Chapter 39 proceedings are not accessible to the public except "upon order of the court by persons deemed by the court to have a proper interest therein." § 39.0132(3), Fla. Stat (2017).

In the order under review, the trial court held the Miami Herald and the reporter "have standing to intervene for the purpose of obtaining access to the transcript and/or recording of the January 17, 2018 hearing and they are persons whom the Court deems to have proper interest in the records at issue." The order provides for an in-camera inspection of the transcript. In pertinent part, the order reads:

2. In light of the circumstances in which this issue has arisen, and in an abundance of caution, this Court has directed that a transcript of the January 17 hearing be circulated to permit any of the parties, including the Attorney ad Litem, to ask the Court to redact portions of the transcript prior to providing it to Movants.
3. Without objection from the parties, the Court will permit Mr. Bohrer, counsel for Movants, to respond to any proposed redactions, which process will be conducted in camera . In consideration for being permitted to participate in this process, Mr. Bohrer shall not disclose anything learned during this in camera process to Movants.

As the language indicates, although the order states it is "granting" the motion, it does not actually grant the Herald or its reporter access to the transcript as requested in the motion. Instead, it establishes a procedure for a review of further objections in an in-camera proceeding. Any order granting access will be entered, if at all, only after the in-camera hearing. Although the order holds the Herald and the reporter have standing and are deemed to have a proper interest, this holding itself is non-final and can be changed by the trial court before it actually grants access.

We therefore lack jurisdiction to hear the appeals of this order because it is non-final and is not one of the enumerated non-final orders that are subject to interlocutory appeal. See Fla. R. App. P. 9.130(a)(3). We also lack jurisdiction to issue a writ of certiorari regarding this order because it does not actually grant access to records of the judicial branch and it presents no irreparable harm that cannot be corrected by appeal or petition for certiorari when and if the trial court grants the Herald and its reporter access. See, e.g., Damsky v. Univ. of Miami, 152 So.3d 789, 792 (Fla. 3d DCA 2014) ("Unless the petitioner establishes irreparable harm, the court must dismiss the petition for lack of jurisdiction."); see also Fla. R. App. P. 9.100(d)(1).

Dismissed.


text:
    Olga GONZALEZ, Appellant, v. HILTON PALM BEACH AIRPORT HOTEL, etc., et al., Appellees.
    No. 3D17-2611
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    Alfaro & Fernandez, P.A., and Elbert Alfaro, for appellant.
    Cole, Scott & Kissane, P.A., and Scott A. Cole and Lissette Gonzalez, for appellees.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Olga Gonzalez ("Gonzalez"), plaintiff below, appeals the trial court's order granting defendants' motion to transfer venue and transferring the action to Palm Beach County, pursuant to section 47.122, Florida Statutes (2017), which provides: "For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought."

The defendants' motion and the affidavit in support focused on the purported inconvenience to the parties or witnesses if the case remained in Miami-Dade County. Indeed, the only discussion at the hearing on the motion was limited to whether defendants had established substantial inconvenience to the parties or to the witnesses. The trial court's order contained no findings.

The burden was upon defendants to establish substantial inconvenience to the parties or to the witnesses. As we held in Taylor v. Dasilva, 401 So.2d 1161, 1162-63 (Fla. 3d DCA 1981) :

Under Section 47.122... a defendant seeking a change of venue bears the burden of proving that substantial inconvenience or undue expense to the parties would result from trial in the forum chosen by the plaintiff and that a change is therefore required for the convenience of the parties or witnesses. When venue is proper in more than one county, the choice rests with the plaintiff, and should not be disturbed without a showing of substantial inconvenience or the likelihood of injustice.
...
Although a grant or refusal of application for change of venue is generally within the sound discretion of the trial court, the discretion of the court is not unbridled and must be predicated upon a proper showing of convenience or interests of justice.

(Internal citations omitted).

And in P.V. Holding Corp. v. Tenore, 721 So.2d 430, 431 (Fla. 3d DCA 1998) we observed:

It is well established that where venue is proper in more than one county, the choice of forum rests with the plaintiff. However, while a plaintiff's choice of forum is entitled to respect, that choice is not paramount. The plaintiff's venue privilege will not be honored where the convenience of the parties or witnesses, or the interests of justice, require the action to be transferred.

(Internal citations omitted).

Upon our review of the record, the affidavit submitted by defendants in support of their motion is legally insufficient to meet their burden of establishing substantial inconvenience to the parties or witnesses. Given that the record is devoid of any indication that the trial court granted the motion "in the interest of justice," we reverse the order and remand for the trial court to consider whether to transfer venue on any other basis asserted in the motion, including whether the interests of justice require the action to be transferred. We express no opinion on this issue.

Reversed and remanded with instructions.


text:
    Elton GRAVES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2146
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    Elton Graves, in proper person.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   PER CURIAM.

Elton Graves appeals the denial of his motion under Florida Rule of Criminal Procedure 3.800 for the correction of a life sentence of imprisonment he contends is illegal. Finding his position well taken, we reverse and remand the case for resentencing.

I. Procedural History and Life Sentence on Count 1

In an amended information filed in February 2010, Graves was charged with four counts: (1) attempted second degree murder of a law enforcement officer engaged in the lawful performance of his duty; (2) resisting a law enforcement officer with violence; (3) attempting to deprive a law enforcement officer of the officer's weapon;

and (4) assault on a law enforcement officer. The alleged crime date was December 12, 2007. Before trial, the State dismissed count 4.

Following a jury trial, Graves was convicted of counts 1 and 2 and acquitted as to count 3. Graves was adjudicated a habitual felony offender ("HFO"). He was sentenced to life imprisonment on count 1 and ten years on count 2. At the sentencing hearing, the State and defense both represented to the trial court that the maximum sentence on count 1 as an HFO was thirty years, with a ten year concurrent sentence as an HFO on count 2. The trial court recessed the sentencing hearing to allow the State and defense to consider the trial court's reading of the applicable statutes and conclusion that the maximum sentence on count 1 was life. After that recess, the State and defense continued to agree that the maximum punishment for count 1 was 30 years. On the second page of the sentencing scoresheet, the "maximum sentence in years" was entered in handwriting to indicate "30 as HO." Construing section 775.0823, Florida Statutes (2007), the trial court again concluded that the maximum sentence on count 1 was life and imposed that sentence.

In Graves' appeal from the conviction and sentence, the Office of the Public Defender did not raise the count 1 sentencing issue. In 2012 and 2014, Graves filed pro se post-conviction motions in the trial court alleging that his count 1 sentence was illegal. In February 2013, the trial court denied the 2012 motion, concluding that:

The trial court utilized Florida Statutes 782.04 and 775.0823 in determining the range of punishment available to the defendant at sentencing. The trial court further determined that in the instant case the Attempted Second Degree Murder of a Law Enforcement conviction was a first degree felony punishable by life when interpreting Florida Statutes 775.0823 and 782.04 together. As such, the defendant's enhancement as a Habitual Offender lawfully made his possible sentencing range up to Life Imprisonment. As such, the trial court's imposition of a Life Sentence in State Prison as a Habitual Offender of count One of the Information was not in error and was permissible.

The defendant did not appeal the trial court's denial of his 2012 motion. In 2014, Graves filed a second motion under rule 3.800(a) that conceded the motion was successive, but contended that the manifest injustice of the illegal life sentence merited relief. The trial court adopted the State's response that the motion was successive and, because the first order had not been appealed, it was barred as a matter of collateral estoppel. Graves' appeal to this Court was unsuccessful.

The motion under rule 3.800 at issue in the present case was filed in 2017. It raised again the alleged illegality of the life sentence imposed as to count 1. The trial court denied the motion on three grounds: (1) collateral estoppel, based on the consideration and denial of his prior motions; (2) Graves' was properly adjudicated and sentenced as an HFO; and (3) Graves was given proper notice of the State's intention to seek HFO sentencing. This appeal followed.

II. Analysis

We affirm without additional comment the trial court's rulings on the propriety of notice and adjudication regarding Graves' status as an HFO. The first issue is more complex. We are not precluded from review of the legality of Graves' life sentence on count 1 despite his prior unsuccessful motions on that issue. State v. Akins, 69 So.3d 261, 268 (Fla. 2011) ("Under Florida law, appellate courts have 'the power to reconsider and correct erroneous rulings [made in earlier appeals] in exceptional circumstances and where reliance on the previous decision would result in manifest injustice' " (quoting Muehleman v. State, 3 So.3d 1149, 1165 (Fla. 2009) (alteration in original)). See also Parker v. State, 873 So.2d 270, 278 (Fla. 2004).

A. The Pertinent Statutes as of 2007

The statutory issue confronted by counsel for the State and for Graves at the 2010 sentencing hearing-the subject of a recess in that hearing to permit counsel to consider the trial court's analysis (which, as noted, counsel for both the State and Graves were unwilling to endorse)-arises because of four separate statutes and the history of section 775.0823.

First, section 782.04(2), Florida Statutes (2007), defines second degree murder and provides that the completed offense "constitutes a felony of the first degree, punishable for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or 775.084." Second, section 777.04(4)(c) applies to an attempted second degree murder, classifying the offense(one degree lower than the completed offense) as "a felony of the second degree, punishable as provided in s. 775.082, 775.083, or s. 775.084."

Third, section 775.084 addresses, among other things, the procedure for, and consequences of, adjudication of a defendant as an HFO. Subparagraph (4)(a)2 of that statute provides that a court may sentence an HFO, in the case of a felony of the second degree, "for a term of years not exceeding 30." Thus, under these three provisions, it is clear that Graves' maximum sentence for attempted second-degree murder would be 30 years as an HFO. However, Graves was convicted of attempted second-degree murder of a law enforcement officer, and the question presented in this case is whether, and the extent to which, his maximum sentence is impacted by section 775.0823, Florida Statutes (2007). The version of that statute applicable to Graves' 2007 crime provides in full as follows:

The Legislature does hereby provide for an increase and certainty of penalty for any person convicted of a violent offense against any law enforcement or correctional officer, as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); against any state attorney elected pursuant to s. 27.01 or assistant state attorney appointed under s. 27.181; or against any justice or judge of a court described in Art. V of the State Constitution, which offense arises out of or in the scope of the officer's duty as a law enforcement or correctional officer, the state attorney's or assistant state attorney's duty as a prosecutor or investigator, or the justice's or judge's duty as a judicial officer, as follows:
(1) For murder in the first degree as described in s. 782.04(1), if the death sentence is not imposed, a sentence of imprisonment for life without eligibility for release.
(2) For attempted murder in the first degree as described in s. 782.04(1), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(3) For attempted felony murder as described in s. 782.051, a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(4) For murder in the second degree as described in s. 782.04(2) and (3), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(5) For attempted murder in the second degree as described in s. 782.04(2) and (3), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(6) For murder in the third degree as described in s. 782.04(4), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(7) For attempted murder in the third degree as described in s. 782.04(4), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(8) For manslaughter as described in s. 782.07 during the commission of a crime, a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(9) For kidnapping as described in s. 787.01, a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(10) For aggravated battery as described in s. 784.045, a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(11) For aggravated assault as described in s. 784.021, a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
Notwithstanding the provisions of s. 948.01, with respect to any person who is found to have violated this section, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld.

Section 775.0823 purports to establish "an increase and certainty of penalty" for any person convicted of a violent offense against law enforcement officers and other defined categories of individuals in the judicial, law enforcement, and corrections system. Section 775.0823(5) states "For attempted murder in the second degree as described in s. 782.04(2) and (3), a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084."

Here is the problem. Although section 775.0823(5) addresses attempted second degree murder, the modifier "as described in s. 782.04(2)" relates to the completed crime of second degree murder, not an attempt. It appears from the sentencing transcript that the trial court believed that section 775.0823(5) was, in effect, a reclassification statute, requiring the trial court to treat defendant's conviction for attempted second-degree murder (a second-degree felony) as if it was the completed crime of second-degree murder (a first degree felony punishable by life). In doing so, the court concluded that the life sentence was mandated by section 775.0823 and its preamble, "to provide for an increase and certainty of penalty for any person convicted of a violent offense against any [law enforcement officer]." However, upon our de novo review of the statutory language, as well as the history of the legislative changes to that statute, we conclude that section 775.0823(5) does not authorize the trial court to "reclassify" the crime of attempted second-degree murder from a second-degree felony to a first-degree felony punishable by life by treating attempted second-degree murder as if it was a completed crime of second-degree murder.

In this particular case, we harmonize, to the extent we can, the apparent inconsistency between sections 775.0823(5) and 777.04(4)(c), by reviewing the original version of section 775.0823 and its subsequent amendments, and by applying well-established rules of statutory construction. As a result, we conclude that we cannot ignore the command of section 777.04(4)(c), which reduces Graves' base offense (second degree murder) from a felony of the first degree punishable by life to a felony of the second degree when the crime charged is merely attempted but not completed. We also cannot ignore the anomalous treatment of both an attempted second degree murder of a law enforcement officer and a completed second degree murder of a law enforcement officer as equivalent offenses for sentencing purposes under the interpretation applied by the trial court.

The trial court read section 775.0823 to mean that an "attempted second degree murder" committed upon a law enforcement officer must be treated for sentencing purposes as a "second degree murder" committed upon a law enforcement officer. The trial court concluded this was the only way to give proper meaning to that statute's introductory language of intent: "The Legislature does hereby provide for an increase and certainty of penalty for any person convicted of a violent offense against any law enforcement or correctional officer ...." § 775.0823 (emphasis provided).

However, we do not agree with the trial court's statutory construction, and we conclude that the confusion engendered by the above-quoted language of statutory intent stems from the statutory amendments following its original enactment.

B. Original Enactment of Section 775.0823

Section 775.0823 of the Florida Statutes was first enacted in 1989 as part of the "Law Enforcement Protection Act." See Ch. 89-100, § 1, Laws of Fla. Section 775.0823, as originally enacted, provided in pertinent part:

Any provision of law to the contrary notwithstanding, the Legislature does hereby provide for an increase and certainty of penalty for any person convicted of a violent offense against any law enforcement or correctional officer.... by imposing a mandatory minimum sentence without possibility of early release through any gain-time, provisional release credits, conditional release supervision, supervised community release, transition assistance program, or parole during the mandatory minimum portion of the sentence, as follows:
(1) For murder in the first degree as described in s. 782.04(1), if the death sentence is not imposed, a sentence of imprisonment for life without eligibility for release shall be imposed.
(2) For murder in the second degree as described in s. 782.04(2) and (3), a sentence of imprisonment for 25 years before eligibility for release shall be imposed.
(3) For murder in the third degree as described in s. 782.04(4), a sentence of imprisonment for 15 years before eligibility for release shall be imposed.
(4) For manslaughter as described in s. 782.07 during the commission of a crime, a sentence of imprisonment for 10 years before eligibility for release shall be imposed.
(5) For kidnapping as described in s. 787.01, a sentence of imprisonment for 15 years before eligibility for release shall be imposed.
(6) For aggravated battery as described in 784.045, a sentence of imprisonment for 3 years before eligibility for release shall be imposed.
(7) For aggravated assault as described in s. 784.021, a sentence of imprisonment for 1 year before eligibility for release shall be imposed.
Any person convicted of an offense under this section is ineligible to receive provisional release credits during any portion of his sentence. Notwithstanding the provisions of s. 948.01, with respect to any person who is found to have violated this section, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld.

(Emphasis provided.)

As even a cursory reading reveals, the statute as originally enacted did indeed "provide for an increase and certainty of penalty" for certain offenses committed against law enforcement officers, by (1) establishing mandatory minimum penalties and (2) eliminating eligibility for provisional release credits for any person convicted and sentenced under this section.

C. The 1993 Amendment

This statute was amended on several occasions in the intervening years. For our purposes, however, the first pertinent amendment occurred in 1993, following Florida's adoption of sentencing guidelines. See Ch. 93-406, § 16, Laws of Fla. Consistent with the adoption of sentencing guidelines, the Legislature amended section 775.0823 in two important ways, by: (1) removing all mandatory minimum sentences provided in the original 1989 version of the statute; and (2) requiring that all sentences for violation of this section be imposed "pursuant to the sentencing guidelines." Additionally and importantly, the Legislature in 1993 also amended the sentencing guidelines provisions (section 921.0014) and created a sentencing guidelines worksheet. In doing so, the Legislature added a so-called "Law Enforcement Multiplier." See Ch. 93-406, § 12, Laws of Fla. This multiplier significantly increased the number of sentencing points to be assessed against a defendant convicted of a violent offense against a law enforcement officer:

Law enforcement protection: If the primary offense is a violation of the Law Enforcement Protection Act under s. 775.0823(2), (3), (4), or (5), then the subtotal sentence points are multiplied by 2.0. If the primary offense is a violation of s. 775.087(2)(a)2. or s. 775.0875(1), or of the Law Enforcement Protection Act under s. 775.0823(6) or (7), then the subtotal sentence points are multiplied by 1.5.

§ 921.0014 (emphasis provided).

As a result of the implementation of sentencing guidelines and the creation of the "Law Enforcement Multiplier," mandatory minimum sentences were no longer part of the framework of section 775.0823, and the Legislature therefore removed that portion of the introductory language of the 1989 version of the statute addressing mandatory minimum sentencing, but chose to retain the general intent language. Below is the 1993 amended version of section 775.0823, with the deleted language bracketed and underscored for ease of reference:

Any provision of law to the contrary notwithstanding, the Legislature does hereby provide for an increase and certainty of penalty for any person convicted of a violent offense against any law enforcement or correctional officer ... [by imposing a mandatory minimum sentence without possibility of early release through any gain time, provisional release credits, conditional release supervision, supervised community release, transition assistance program, or parole during the mandatory minimum portion of the sentence,] as follows:
(1) For murder in the first degree as described in s. 782.04(1), if the death sentence is not imposed, a sentence of imprisonment for life without eligibility for release [shall be imposed ].
(2) For murder in the second degree as described in s. 782.04(2) and (3), a sentence pursuant to the sentencing guidelines [of imprisonment for 25 years before eligibility for release shall be imposed ].
(3) For murder in the third degree as described in s. 782.04(4), a sentence pursuant to the sentencing guidelines [of imprisonment for 15 years before eligibility for release shall be imposed ].
(4) For manslaughter as described in s. 782.07 during the commission of a crime, a sentence pursuant to the sentencing guidelines [of imprisonment for 10 years before eligibility for release shall be imposed ].
(5) For kidnapping as described in s. 787.01, a sentence pursuant to the sentencing guidelines [of imprisonment for 15 years before eligibility for release shall be imposed ].
(6) For aggravated battery as described in s. 784.045, a sentence pursuant to the sentencing guidelines [of imprisonment for 3 years before eligibility for release shall be imposed ].
(7) For aggravated assault as described in s. 784.021, a sentence pursuant to the sentencing guidelines [of imprisonment for 1 year before eligibility for release shall be imposed ].
[Any person convicted of an offense under this section is ineligible to receive provisional release credits during any portion of his sentence. ] Notwithstanding the provisions of s. 948.01, with respect to any person who is found to have violated this section, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld.

D. The 2001 Amendment

Section 775.0823 has been further amended over the years, to comport with corresponding changes to the sentencing guidelines, and to add certain offenses subject to sentencing under this statute. In 2001, however, the Legislature eliminated reference to the sentencing guidelines (and the later-enacted Criminal Punishment Code) and simply declared that (other than first-degree murder) all sentences for a violation of this section shall be imposed "pursuant to s. 775.082, s. 775.083, or s. 775.084" of the Florida Statutes. The 2001 version (the version applicable on December 12, 2007, the date of Graves' crime) reads in full as shown in section II.A. of this opinion, with this introductory phrase:

The Legislature does hereby provide for an increase and certainty of penalty for any person convicted of a violent offense against any law enforcement or correctional officer ....

We highlighted and underscored that introduction, as it was contained in the original 1989 version of the statute and has somehow survived all of the subsequent amendments. However, it can best be characterized as vestigial, given that the statute no longer contains the mandatory minimum provisions or prohibition against early release or provisional release credits, which served to implement the 1989 version's expressed legislative intent. In other words, and notwithstanding its introductory language, the only "increase and certainty of penalty" that exists for offenses under section 775.0823 is the "Law Enforcement Multiplier" provided in section 921.0014 (2001) and Florida Rule of Criminal Procedure 3.704(20).

E. This Case

The trial court in the present case, in an understandable effort to give meaning to the statutory language "increase and certainty of penalty," construed the statutory language as requiring the trial court to treat attempted second-degree murder of a law enforcement officer (a second degree felony punishable by up to 15 years in prison (up to 30 years in the case of an HFO) ) as if it was a completed second-degree murder (a first degree felony punishable by up to life). This was error. The statute did not, in any of its iterations, expressly or implicitly reclassify an attempted second-degree murder in this fashion.

The Legislature certainly knows what language to use in reclassifying an offense to a higher degree. See, e.g., § 874.04, Fla. Stat. (2018) ("Upon a finding by the factfinder that the defendant committed the charged offense for the purpose of benefiting, promoting, or furthering the interests of a criminal gang," the penalty may be enhanced; section 2(b) of that statute specifies that "A felony of the second degree may be punished as if it were a felony of the first degree."). Similarly, see § 775.087, Fla. Stat. (2018) ("Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.").

But section 775.0823 contains no equivalent language that could reasonably be construed as reclassifying an attempted crime to a higher degree offense by treating it as if it were a completed crime. The "increase and certainty of penalty" language is a holdover from the originally-enacted version of the statute, and the only rational conclusion, based on the statute's history as described herein, is that the continued presence appears to be an oversight in the legislative amendatory process.

It is of course "well settled that legislative intent is the polestar that guides a court's statutory construction analysis[,]" Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 5 (Fla. 2004), and our starting point is the actual language used by the legislature.

We also recognize it is "the general rule, construing statutes, 'that construction is favored which gives effect to every clause and every part of the statute, thus producing a consistent and harmonious whole. A construction which would leave without effect any part of the language used should be rejected, if an interpretation can be found which will give it effect.' " Quarantello v. Leroy, 977 So.2d 648, 652 (Fla. 5th DCA 2008) (citing Goode v. State, 50 Fla. 45, 39 So. 461, 463 (1905) ) (additional citations omitted).

We cannot ignore the expression of legislative intent that has been carried over from its original enactment in 1989 to the 2007 version applicable to the case before us. However, neither can we ignore the very obvious fact that the intervening amendments removed those provisions which fulfilled and implemented that intent to create an "increase and certainty of penalty." Stated simply, the 2007 version, while still containing that language of intent, no longer contains any provision to effectuate that intent. Even if we were to find that the language relied upon by the trial court was ambiguous and susceptible to differing reasonable interpretations, we would apply, as a canon of last resort, the rule of lenity provided in section 775.021(1): "The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused."

We conclude that the trial court's construction of the statute, equating attempted second-degree murder or a law enforcement officer to the completed crime of second-degree murder, is an unreasonable construction not supported by a plain reading of the statutory language. Instead, the only reasonable construction, consistent with the plain language and the statute's amendatory history, is that the reference to "attempted murder in the second degree as described in s.782.04(2)" is merely a reference to the only statutory provision where the offense of second degree murder and its constituent elements is set forth. Had the Legislature intended that the crime of attempted second degree murder of a law enforcement officer (or any other enumerated attempted offense under section 775.0823 ) be treated for sentencing purposes as a completed offense, it surely would have said so. The statute, which contains the same expression of legislative intent as that in the original version enacted in 1989, no longer contains the accompanying provisions that implemented such intent. In the absence of any statutory language which actually provides for an increase or certainty in penalty, we find that Graves was convicted of a second degree felony and, as an HFO, was subject to a maximum sentence of 30 years in prison. The sentence of life in prison as an HFO was therefore illegal.

Noting the difficulty encountered by the State and defense counsel, as well as the trial judge, with this conflict in the criminal code provisions described in this opinion, we direct the Clerk to forward a copy of this opinion to the Chief of Legislative Affairs, Office of the State Courts Administrator, to be considered in the annual statutory clarification process.

Based on the foregoing, we reverse the order denying Graves' motion and remand for a resentencing, at which Graves is entitled to be present, consistent with this opinion.

      The Judge who heard the 2017 motion under rule 3.800 was a successor to the Judge who tried the case and sentenced Graves.

      The State advised the trial court after the recess that there was a "loophole in the statute."

      Graves v. State, 77 So.3d 1269 (Fla. 3d DCA 2011) (per curiam affirmed).

      Graves v. State, 150 So.3d 1154 (Fla. 3d DCA 2014) (per curiam affirmed).

      Each of the statutory sections cited in this portion of the opinion is as in effect at the time of the offense, December 2007.

      Again, a multiplier of 2.0 was used on Graves' sentencing scoresheet in the present case.

      A review of the legislative history and staff analysis of the amendments to section 775.0823 provides no additional guidance or insight.

      Adopting the trial court's construction of section 775.0823 would lead to this unreasonable result: a conviction for attempted first-degree murder of a law enforcement officer under section 775.0823(2) would be treated as a conviction for first-degree murder and reclassified to a capital felony punishable by death (see sections 782.04(1) ; 775.082(1)(a)-(b) ). However, a statute that subjects a defendant convicted of a nonhomicide to the death penalty has been held unconstitutional. See Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (holding the Eighth Amendment prohibits imposition of the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the death of the victim).


author: SUAREZ, J.

text:
    Gilberto ALFONSO, et al., Appellants, v. STATE of Florida EX REL. FLORIDA PUBLIC EMPLOYEES COUNSEL 79, AFSCME, AFL-CIO, et al., Appellees.
    No. 3D16-2213
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018.
    Feiler & Leach, P.L. and Martin E. Leach, for appellants.
    Stacy Wein; Ogletree, Deakins, Nash, Smoak & Stewart, P.C., and William R. Radford, for appellees.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   SUAREZ, J.

The Appellants seek to reverse an order denying their motions to intervene in the lawsuit between the City of Hialeah [the "City"] and the AFL-CIO Union ["Union"]. We affirm, as the intervention requested would have impermissibly interjected new issues into this already protracted litigation.

In 2009, the City and the Union began negotiating a new Collective Bargaining Agreement ["CBA"] to succeed their existing CBA set to expire on September 30, 2009. The City was in the midst of an economic crisis and expected a serious budgetary shortfall during the fiscal year 2009-2010. As a result, it sought concessions from the Union. The Union resisted. After several unsuccessful negotiating sessions with the Union, the City declared an impasse in December 2009 and, as required, notified the Florida Public Employees Relations Commission ["PERC"] of the impasse. The parties continued to engage in negotiations unsuccessfully.

In May, 2010, a special magistrate selected by the parties, Thomas Terrill, conducted an impasse hearing pursuant to the Public Employees Relations Act. Special Magistrate Terrill concluded that the City proved by clear and convincing evidence that the City was suffering a severe budgetary shortfall and recommended the City be awarded economic concessions. Special Magistrate Terrill released his Recommended Decision on June 18, 2010. On July 13, 2010, without waiting for the impasse proceedings to conclude, the City implemented an impasse resolution that resulted in an approximately 30% cut to its employees' wages, in addition to a sharp increase in the City-provided health insurance plan costs, among other things. The record indicates that the City engaged in the reduction in wages and benefits from July 13, 2010 through March 4, 2011. It is important to note that during that time period, the Appellants were active City employees and Union members directly affected by the City's actions. The Union interpreted the City's actions to be in violation of section 447.403, Florida Statutes (2010), and to be a violation of the Union's right to collectively bargain on its members' behalf. As a result, the Union filed an unfair labor practice claim with the PERC against the City for violation of section 447.501(1)(a) and (c) and alleged the City unilaterally altered the terms and conditions of the bargaining unit's members before the impasse procedures were completed.

The PERC agreed with the Union, and on March 4, 2011, entered a Final Order incorporating Special Magistrate Terrill's Recommended Decision and found that the City engaged in an unfair labor practice in violation of sections 447.501(1)(a) and (c), and ordered the City to do the following:

• Rescind the Impasse Resolution action taken by the City Council on July 13, 2010;
• Conduct a legislative body hearing in a manner consistent with the requirements of Section 447.403, Florida Statutes ;
• Post immediately for sixty days in conspicuous locations where notices to bargaining unit employees are customarily posted, copies of the notice to employees which states that the City will cease the conduct set forth in paragraph one above and will take affirmative action set forth in paragraph two; and
• Pay the Union its reasonable attorney's fees and costs of litigation.

The City appealed the PERC's order and this Court affirmed. City of Hialeah v. Florida Pub. Emp's Council 79, Am. Fed'n of State, Cty. and Mun. Emp's, AFL-CIO, 86 So.3d 1128 (Fla. 3d DCA 2012).

In June 2013, the Union filed a petition in the circuit court to enforce the PERC's March 4, 2011 Final Order, inasmuch as the City had failed to reimburse its employees for lost wages during the period from July 13, 2010 through March 4, 2011, the period for which the City was found to have engaged in the unfair labor practice. In 2014, between the time of the City filing its Answer to the Union's circuit court petition, and the trial court's July 2015 grant of partial summary judgment on liability in the Union's favor, the record indicates these Appellants, non-parties to the Petition, retired from City employment.

In August 2015, at the joint request of the Union and the City, the trial court withheld entry of a final order to allow the parties to negotiate a settlement. From December 2015 through June 22, 2016, the trial court granted five extensions of time to allow for ongoing negotiations. At some point during the extended negotiation period, the City and Union agreed that only those City employees who were active employees as of July 20, 2015 would receive compensation. Thus, the Appellants were excluded from the settlement. Upon learning this, on July 25, 2016, the Appellants filed their first motions to intervene.

While the Appellants' motions to intervene were pending before the trial court, the City and the Union filed their joint motion for court approval of the Settlement Agreement. On August 29, 2016, before the Appellants' motions to intervene were heard, the trial court dismissed the case with prejudice pursuant to the Settlement.

On September 1, 2016, the Appellants filed a motion to vacate the dismissal, contending that their motions to intervene precluded ratification of the Settlement. The Appellants further alleged that as former City employees and Union members they expected the same benefits as active employees under the proposed settlement agreement, and would not have any remedy were they to be excluded.

At the conclusion of the September 12, 2016 hearing on Appellants' motions to intervene, the trial court applied the intervention analysis set forth in Morgareidgev. Howey, 75 Fla. 234, 78 So. 14 (1918), and concluded that 1) the intervention motions were untimely filed and if granted would necessarily result in protracted litigation; 2) as the Appellants seek to individually object to the Settlement Agreement, the court has no jurisdiction to consider individual attacks on the collective bargaining procedures or to order payment of accrued wages; 3) the Appellants failed to show that the Union acted unreasonably in negotiating the underlying dispute, given the City's insurmountable financial crisis, and that in balancing interests, the Union reasonably excised non-active workers from reimbursement because those ex-employees were not subject to furlough and layoff; 4) the Appellants did not identify or exhaust any internal Union administrative remedies. Finally, the trial court noted that Appellants' rights are subordinate to the rights of the parties - the Union and the City. Thus, to permit the Appellants to intervene post-Final Judgment would prejudice the parties by jeopardizing six years of difficult settlement negotiations. The trial court denied the Appellants' motions to intervene and motion to vacate the dismissal. This appeal ensued.

The record indicates the Appellants retired during the pendency of the Union's enforcement action. At that separation, the Union was no longer required to represent their interest in the negotiations. See e.g. Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971) (holding that employers are under no obligation to bargain with unions over benefits for already retired workers, and the union has no duty to represent retirees with the employer, although it may choose to do so). Upon retirement, the Appellants' rights and remedies became subordinate to those of the active Union members.

The petition filed by the Union in the circuit court was filed solely to enforce the PERC Order entered March 4, 2011. We conclude the trial court did not abuse its discretion when it denied the motions to intervene because the Appellants' rationale for intervention, to challenge the Union's decision to excise retired employees from the Settlement Agreement, is a different matter than the enforcement of the PERC order, which was the only issue before the trial court, and would necessarily force a re-opening of the lengthy negotiations and painful concessions made by both the Union and the City. More to the point, the trial court's jurisdiction does not extend in these circumstances to anything other than enforcement of the PERC's order, or to dismiss the action once the parties reached an agreement. The trial court noted that the Appellants' objections to the Settlement Agreement are essentially new claims against the Union. Inasmuch as the Appellants claim the actions of the Union to exclude them from the Settlement Agreement were arbitrary, discriminatory, or taken in bad faith, they are proposing new individual claims against the Union; those claims are entirely separate from the Union's enforcement action against the City and would impermissibly interject these new issues into the litigation. See Nat'l Wildlife Fed'n, Inc. v. Glisson, 531 So.2d 996, 998 (Fla. 1st DCA 1988) (stating that the intervenor must accept the record and pleadings as they exist in the litigation and the intervenor may not raise any new issues).

We conclude that the trial court's substantive analysis pursuant to Morgareidge and progeny supports affirmance. Because that analysis is dispositive, we do not reach the remaining issues on appeal.

Affirmed.

      The Appellants are former civil service employees of the City. They are not parties to the underlying litigation between the Union, the PERC, and the City.

      The Appellants moved to intervene because the statute of limitation for bringing individual claims to the PERC had expired. See Amato v. City of Miami Beach, 208 So.3d 235, 238 (Fla. 3d DCA 2016) (noting the jurisdictional statute of limitation to file a PERC complaint under section 447.503(6) (b) is six months). Once the Appellants retired in 2014 during the pendency of the enforcement action, their interests in the enforcement action necessarily became individual claims, as they were no longer directly represented by the Union in that action. They would have had standing at that point to bring their own individual enforcement claims against the City via the PERC, but failed to do so within the applicable limitation period.

      In addition to determining the interest is appropriate for intervention, the trial court must exercise its sound discretion to determine whether to permit intervention. Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505 (Fla. 1992). These considerations include "the derivation of the interest, any pertinent contractual language, the size of the interest, the potential for conflicts or new issues, and any other relevant circumstances." Id. at 507-08.


author: FERNANDEZ, J.

text:
    Gian Franco MARTINEZ, etc., Appellant, v. Juan FERNANDEZ-URIATE, Appellee.
    No. 3D17-150
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    Hasbun & Mendoza, PLLC, and Maribel Mendoza, for appellant.
    Perez-Abreu & Martin-Lavielle, P.A., Andy W. Acosta and Javier Perez-Abreu, for appellee.
    Before SALTER, FERNANDEZ and SCALES, JJ.
   FERNANDEZ, J.

Gian Franco Martinez ("Appellant"), as personal representative of the estate of Helen Doris Fernandez (the deceased former "Wife"), appeals the lower court's December 14, 2016 order of dismissal for lack of prosecution and the trial court's determination that the Wife's counsel failed to timely move for a substitution of party in accordance with Florida Rule of Civil Procedure 1.260(a)(1). On July 10, 2015, the Wife filed a Petition for Dissolution of Marriage and Other Relief Without Dependent or Minor Children. On October 5, 2015, the Wife passed away.

On October 10, 2016, Juan Fernandez-Uriate ("Appellee" and the former husband) filed a Notice of Lack of Prosecution. On November 16, 2016, the Wife's counsel simultaneously filed a suggestion of death and a motion for substitution of party seeking to substitute Appellant in her stead. The lower court entered its dismissal order on December 15, 2016. This appeal followed.

Appellant argues the trial court erred in dismissing the cause. We agree and reverse.

First, the lower court erred in dismissing the cause for failure to timely move for substitution. Florida Rule of Civil Procedure 1.260(a)(1) provides a 90-day period for filing a motion for substitution, after a suggestion of death is both filed on the record and served pursuant to Florida Rule of Judicial Administration 2.516. Feller v. R.J. Reynolds Tobacco Co., 240 So.3d 61, 64-65 (Fla. 3d DCA 2018) (internal citations omitted). Here, the suggestion of death and motion for substitution were filed and served on the same day, and thus the motion for substitution was filed within the applicable 90-day period. Therefore, there can be no dispute that the motion for substitution was timely filed and rule 1.260(a)(1) cannot be a basis for dismissal.

Second, the lower court erred in dismissing the cause for lack of prosecution. Florida Rule of Civil Procedure 1.420(e) provides that after a compliant service of notice of no record activity, if "no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued ... the action shall be dismissed." Here, record activity occurred within the 60 days immediately following the service of the Notice of Lack of Prosecution. Therefore, rule 1.420(e) cannot be a basis for dismissal.

For the foregoing reasons, the lower court's December 15, 2016 dismissal order is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


author: May, J.

text:
    Brian FITZPATRICK and Lai Fong Fitzpatrick, Appellants, v. Kelly M. MEREDITH, D.C. and Florida Spine and Disc Center, Inc., Appellees.
    No. 4D17-3438
    District Court of Appeal of Florida, Fourth District.
    June 6, 2018
    Christopher M. Larmoyeux of Larmoyeux & Bone, P.L., West Palm Beach, for appellants.
    Scott D. Kirschbaum of Schwartz & Kirschbaum, Miami, for appellee Kelly M. Meredith, D.C.
   May, J.

The plaintiffs in a medical malpractice action appeal an order granting the defendant doctor's motion for relief from a summary judgment on indemnification of the doctor's employer. They argue the doctor waived the right to contest the indemnification judgment because she agreed to its entry. We disagree and affirm.

The plaintiffs sued the doctor and her employer for medical malpractice. The employer cross-claimed against the doctor for a defense to the malpractice claim and for indemnification.

The employer settled with the plaintiffs for $1,000,000, and a final judgment for that amount was entered against it. In exchange for this stipulated judgment, the employer agreed to help the plaintiffs collect the million dollars from the doctor's insurer.

The plaintiffs and the employer then moved for summary judgment against the doctor on the cross-claim for indemnity. The doctor filed a written opposition and cross-moved for summary judgment. At the hearing, however, the doctor's private counsel did not object to entry of the summary judgment against the doctor.

The original trial court granted the motion, stating the following.

It is undisputed that following Plaintiffs' filing the Complaint against the Defendant, Kelly M. Meredith, D.C. and Florida Spine and Disc Center, Inc., that a demand was made to the Defendant Kelly M. Meredith, D.C., through her insurance agent, Arthur J. Gallagher of Risk Management Services, Inc. to provide a defense against the Plaintiffs' claims. The rule of indemnification is that an indemnitor, who has notice that a lawsuit has been filed and who is afforded an opportunity to appear and defend it is bound by a judgment rendered against the indemnitee. Camp, Dressler & McKee, Inc., v. Paul N. Howard , 853 So.2d 1072 (Fla. 5th DCA 2003). Lastly, there is no dispute as to the potential liability of the Defendant, Florida Spine and Disc Center, Inc. as a result of the alleged negligent conduct of Kelly M. Meredith, D.C.

The trial court entered a final indemnification judgment against the doctor for $1,000,000. The doctor did not appeal the judgment. The employer then assigned all of its rights to the final judgment on indemnification to the plaintiffs.

The liability trial against the doctor took place three years after the indemnity judgment was entered before a new judge. The jury returned a verdict favoring the doctor, and the successor trial court entered a final judgment.

The plaintiffs then sought to execute on the assigned indemnity judgment against the doctor. The doctor filed an amended motion for relief from judgment, pursuant to Florida Rule of Civil Procedure 1.540(b)(5). She argued that it was inequitable to enforce the indemnification judgment now that she had been exonerated from liability. The court held a non-evidentiary hearing and granted the motion.

My ruling is premised upon the application of Rule 1.540(b) 5 to the facts of this case. A jury verdict was rendered after the final judgment on indemnity. The final judgment of indemnity was premised upon "alleged" actions. After the entry of the final judgment of indemnity, a jury found there was no negligence of Dr. Meredith. As such, there was no trigger of the "alleged" actions upon which the final judgment of indemnity could flow. There is, number one, neither a basis of the previously "alleged" negligence, nor, number two, was there any corpus for the indemnity itself. There is no inconsistent position taken here by Dr. Meredith. Relief from judgment is granted under the Rule.

The trial court entered an order, which included the following findings:

1. The indemnity judgment was a premature action because at the time the judgment was entered, there had been no trial, and no liability had been affixed.
2. After the indemnity judgment, a jury found Dr. Meredith not guilty, and "[c]onsequently, there was neither a basis (trigger) upon which an indemnity judgment could flow, nor any corpus for the indemnity itself."
3. The court sets aside the indemnity judgment "as it is no longer equitable that it should have prospective application as a result of the subsequent defense verdict and judgment rendered in favor of [Dr. Meredith]."

From this order, the plaintiffs now appeal.

The plaintiffs continue to argue the final summary judgment on indemnification was a "settlement agreement," an arms-length transaction, and there is no basis to set it aside. They argue the trial court erred in granting the rule 1.540(b)(5) motion because the doctor never sought rehearing nor appealed the indemnification judgment.

The doctor responds that the defense liability verdict makes enforcement of the indemnification judgment inequitable. She argues the original judge prematurely entered the indemnity judgment, and rule 1.540(b)(5) provides a mechanism for relief from an inequitable judgment. We agree.

We review orders on Rule 1.540 motions for an abuse of discretion.

Morrison v. West , 953 So.2d 755, 757 (Fla. 4th DCA 2007) (quoting Kroner v. Singer Asset Fin. Co. , 814 So.2d 454, 456 (Fla. 4th DCA 2001) ).

While it is unusual for indemnity to be determined before liability, it seems to have happened here. When that happens, the indemnification judgment is considered premature. Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 643-44 (Fla. 1999) ; see also Rea v. Barton Protective Servs., Inc., 660 So.2d 772, 773-74 (Fla. 4th DCA 1995) (holding that a summary judgment on an indemnity cross-claim is premature when liability has not yet been determined).

Rule 1.540(b)(5) requires the movant to demonstrate that "it is no longer equitable that the judgment or decree should have prospective application." Fla. R. Civ. P. 1.540(b)(5) ; Wells Fargo Bank, NA v. Giglio , 123 So.3d 60, 61 (Fla. 4th DCA 2013). It provides a mechanism for equitable relief from a premature judgment. See Behar v. Jefferson Nat'l Bank at Sunny Isles , 519 So.2d 641, 644 (Fla. 3d DCA 1987) (discussing the co-defendant's ability to move to set aside a default judgment under rule 1.540(b)(5) if a subsequent trial ended in a favorable outcome for co-defendants).

What is unique about this case is the doctor's apparent agreement to entry of the summary judgment on indemnification. It should be noted that the doctor filed an opposition to the motion and cross-moved for summary judgment on the indemnification claim prior to the hearing. Nevertheless, the doctor's private attorney appears to have agreed to the entry of the summary judgment.

Rule 1.540(b)(5) provides for equitable relief to the doctor under the circumstances of this case. The trial court correctly vacated the indemnification summary judgment. We therefore affirm.

Affirmed.

Gerber, C.J., and Warner, J., concur.

      The original judge assigned to the case retired. The successor judge presided over the liability trial and the hearing on the Rule 1.540(b)(5) motion.

      The transcript reveals that issues of insurance coverage and whether counsel retained by the insurer for the doctor on the malpractice claim could represent her on the cross-claim for indemnification. In fact, counsel retained by the insurer withdrew at the hearing, and the doctor's private attorney took over her representation. This may have affected the positions taken by the parties at that hearing.


text:
    Michele HAYWOOD, f/k/a Michele Bacon, Appellant, v. Richard BACON, Appellee.
    Case No. 5D17-1899
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 8, 2018
    Tanya M. Plaut, of Law Office of Tanya M. Plaut, Edgewater, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Michele Haywood F/K/A Michele Bacon (Mother) appeals the supplemental final judgment modifying child visitation and child support as set forth in the final judgment that dissolved her marriage to Richard Bacon (Father). Because the trial court failed to allow Mother to complete the presentation of her case at the evidentiary hearing, we reverse.

The parties' marriage was dissolved on January 24, 2012. They have three children: D.B., Z.B., and C.B. D.B. reached the age of majority during the proceedings. In the original parenting plan, the parties agreed that the minor children would reside primarily with Mother and would visit Father on alternate weekends, half of Winter Break, Spring Break, and seven weeks during Summer Break. Despite the agreement, D.B. resided primarily with Father.

At some point, D.B. returned to live with Mother. Soon thereafter, Z.B. and C.B. expressed a desire to live primarily with Father. Father filed a supplemental petition to modify the final judgment of dissolution alleging that a substantial change in circumstances had occurred since the entry of final judgment. His allegations were based primarily on serious behavioral issues and the minor children's performance at school. Mother filed an answer and counter-petition, denying Father's allegations. A Guardian Ad Litem (GAL) was appointed to represent the minor children. After conducting an investigation and meeting with all of the parties involved, the GAL filed her report recommending that the children reside primarily with Father.

Thereafter, the parties, with the assistance of the appointed GAL, entered into an agreement modifying the parenting plan by agreeing that the two minor children should reside primarily with Father. The agreement resolved the parenting plan issues presented in the parties' respective petitions for modification.

Although the minor children, ages fifteen and seventeen, initially expressed a desire to reside with Father, they changed their minds after their parents agreed to the new parenting plan. As a result, Mother, with the assistance of new counsel, filed a motion to set aside the new parenting plan, arguing, inter alia , that she was coerced into agreeing to the new parenting plan by her former counsel and the GAL. Following an evidentiary hearing, the trial court denied her motion. However, because Mother no longer believed that the new parenting plan was in the children's best interest, the trial court conducted an evidentiary hearing to make that determination.

At the hearing, the trial court terminated the proceedings during Mother's cross-examination of the GAL and failed to permit her to present rebuttal evidence. This was error. Entering a final order without allowing a party to complete presenting evidence generally constitutes a denial of due process. Bielling v. Bielling, 188 So.3d 980, 981 (Fla. 1st DCA 2016) (citing Julia v. Julia, 146 So.3d 516, 520 (Fla. 4th DCA 2014) ("Even if [a] trial court believes that recalling ... witnesses would not make any further impression on the court, it [is] still required to allow the [party] to present [his/her] case fully ....") ); Cole v. Cole, 159 So.3d 124, 125-26 (Fla. 3d DCA 2013), as corrected (Dec. 18, 2013) (reiterating that the "right to be heard includes the right to 'introduce evidence at a meaningful time and in a meaningful manner.' " (quoting Baron v. Baron, 941 So.2d 1233, 1236 (Fla. 2d DCA 2006) ) ); Miller v. Miller, 671 So.2d 849, 851 (Fla. 5th DCA 1996) (finding trial court erred when it prohibited parties from cross-examining GAL during modification proceeding). Thus, we reverse the supplemental final judgment of modification as to the parenting plan and remand for further proceedings. In all other respects, we affirm.

AFFIRM, in part; REVERSE, in part; and REMAND for further proceedings.

ORFINGER, BERGER and EISNAUGLE, JJ., concur.

      Mother does not dispute the trial court's findings and rulings as to child support. Accordingly, those figures should not be revisited unless the trial court determines after further proceedings that it should deny Father's petition for modification.

      Despite the minor children's change of heart, the GAL filed a second report maintaining her original position.

      On remand, we remind the trial court that although it may direct both sides to submit proposed final judgments, it "may not adopt the judgment verbatim, blindly, or without making in-court findings." Rykiel v. Rykiel, 795 So.2d 90, 92 (Fla. 5th DCA 2000), as amended on reh'g (Feb. 9, 2001), quashed on other grounds, 838 So.2d 508 (Fla. 2003) ; accord West v. West, 228 So.3d 727, 728-29 (Fla. 5th DCA 2017) ( [An] "appearance of impropriety exists when the trial judge adopts verbatim one party's one-sided final judgment, especially where the judge did not orally announce findings or rulings during or at the end of trial.").


author: B.L. Thomas, C.J.

text:
    The NATIONAL CENTER FOR CONSTRUCTION EDUCATION AND RESEARCH LTD., CORP., Appellant, v. Ed CRAPO, as Alachua County Property Appraiser, Appellee.
    No. 1D17-765
    District Court of Appeal of Florida, First District.
    June 13, 2018
    D. Kent Safriet of Hopping, Green & Sams, P.A., Tallahassee, and Patrice Boyes of Patrice Boyes, P.A., Gainesville, for Appellant.
    John C. Dent and Jennifer A. McClain of Dent & McClain, Chartered, Sarasota, for Appellee.
   B.L. Thomas, C.J.

The National Center for Construction Education and Research, Ltd., appeals the trial court's final judgment upholding Appellee's denial of its application for exemption from ad valorem property taxes. We affirm.

I. Facts

Appellant, a non-profit corporation registered under section 501(c)(3) of the Internal Revenue Code, is incorporated in Virginia and authorized as a foreign entity to do business in Florida. Appellant develops training materials for the construction industry, with a stated purpose of assuring "that construction clients receive quality services and construction workers have rewarding, progressive careers." Appellant owns and holds its headquarters in a commercial multi-story office building on 3.32 acres of real property in Alachua County.

In January 2015, Appellant attempted to file an application for a combined charitable and education exemption from ad valorem taxation of its 3.32-acre property. After Appellee refused to accept an application claiming two exemptions, Appellant filed one application claiming a charitable exemption, and the following day filed another application claiming an education exemption. Appellee denied both applications, and Appellant appealed those denials to the Alachua County Value Adjustment Board, under sections 196.011 and 196.193, Florida Statutes. After the Value Adjustment Board upheld the denials, Appellant appealed those decisions to the circuit court, which upheld the decisions after a two-day bench trial.

II. Analysis

Statutes providing for an exemption to an ad valorem tax are strictly construed, and any ambiguity must be resolved against the claimed exemption. Sowell v. Panama Commons, LP., 192 So.3d 27, 30 (Fla. 2016) ; Housing by Vogue, Inc. v. State, Dept. of Revenue, 403 So.2d 478, 480 (Fla. 1st DCA 1981). " 'The burden is on the claimant to show clearly any entitlement to tax exemption.' " Id. (quoting Volusia Cty. v. Daytona Beach Racing and Recreational Facilities Dist. , 341 So.2d 498, 502 (Fla. 1976) ).

Property owned by "exempt entities" and used predominantly for "exempt purposes" is exempt from ad valorem taxation, to the extent of the exempt use. § 196.192(2), Fla. Stat. (2015). "Exempt uses" of property include property utilized for educational and charitable purposes. § 196.012(1), Fla. Stat. (2015). Florida Statutes do not define educational purposes, but section 196.198, the educational-property exemption statute, provides that "[e]ducational institutions [ ] within this state and their property used by them ... exclusively for educational purposes are exempt from taxation."

A "charitable purpose" is defined in section 196.012(7), Florida Statutes (2015) as a

function or service which is of such a community service that its discontinuance could legally result in the allocation of public funds for the continuance of the function or service. It is not necessary that public funds be allocated for such function or service but only that any such allocation would be legal.

Appellant argues that because it performs an educational function-a charitable purpose-and because the government spends tax dollars on education, Appellant is entitled to a tax exemption under section 196.012(7), Florida Statutes.

In 1988, the Legislature amended section 196.192 to require that property used for exempt purposes be owned by an "exempt entity" in order to receive ad valorem tax exemption. Mastroianni v. Memorial Med. Ctr. of Jacksonville, Inc. , 606 So.2d 759, 762-63 (Fla. 1st DCA 1992). As a result, exemptions for educational uses of property are restricted to property owned by "educational institutions." See Metropolitan Dade Cty. v. Miami-Dade Cty. Cmty. College Found., Inc. , 545 So.2d 324, 326 n.4 (Fla. 3d DCA 1989) (holding that to qualify for tax exemption under the pre-1988 language of section 196.192(1), applicants could claim exemption for educational use, regardless of the status of the owner, but under the revised language, property used for educational purposes would need to be owned by an educational institution). Appellant is not an "educational institution" as defined by section 196.012(5), and therefore is not eligible to receive an exemption for the use of its property for "educational purposes." Appellant argues, however, that because the government can spend tax dollars on education, "educational purposes" are also "charitable purposes," if they are engaged in by a nonprofit entity, even if that entity is not accredited as an "educational institution" as defined in section 196.012(5), Florida Statutes.

Appellant's interpretation would abrogate the accreditation requirements of section 196.012(5), Florida Statutes, as any nonprofit engaged in an educational function could receive a "charitable purposes" exemption, regardless of whether it is an educational institution. When a court interprets a statute, it must give full effect to all statutory provisions, and should avoid readings that would render part of a statute meaningless. Velez v. Miami-Dade Cty. Police Dep't , 934 So.2d 1162, 1165 (Fla. 2006). We therefore do not agree with Appellant's interpretation that "educational purposes" are "charitable purposes" if engaged in by a nonprofit entity, because such an interpretation would render meaningless the standards for educational institutions in section 196.198. In addition, as noted above, we must interpret the statute to disfavor the exemption. Therefore, the trial court correctly upheld the decision of the Value Adjustment Board, which upheld the denial of the claimed exemption.

AFFIRMED .

Jay and M.K. Thomas, JJ., concur.

      Section 196.012(5), Fla. Stat. (2015), defines educational institution:
      (5) 'Educational institution' means a federal, state, parochial, church, or private school, college, or university conducting regular classes and courses of study required for eligibility to certification by, accreditation to, or membership in the State Department of Education of Florida, Southern Association of Colleges and Schools, or the Florida Council of Independent Schools ....

      Section 196.198, Florida Statutes (2015), contains additional support for the conclusion that entities claiming exemption for educational purposes must meet the "educational institution" criteria from section 196.012(5) :
      Sheltered workshops providing rehabilitation and retraining of individuals who have disabilities and exempted by a certificate under s. (d) of the federal Fair Labor Standards Act of 1938, as amended, are declared wholly educational in purpose and are exempt from certification, accreditation, and membership requirements set forth in s. 196.012 .
      (Emphasis added.) By stating that sheltered workshops can receive an exemption for educational purposes without meeting the "educational institution" requirements, section 196.198 indicates that those requirements are otherwise necessary for an applicant who uses property for educational purposes.

      On appeal, Appellant does not argue, as it did at trial, that it is an educational institution; rather, Appellant argues it performs a charitable function "because if [Appellant] did not provide its curriculum and industry credentialing in workforce education, the State of Florida legally could expend funds to develop curriculum and credentials."


author: Per Curiam.

text:
    Miguel BRUTUS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4144
    District Court of Appeal of Florida, First District.
    June 13, 2018
    Candice Kaye Brower, Criminal Conflict & Civil Regional Counsel, Gainesville, and Michael Jerome Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Miguel Brutus was convicted of six counts of armed robbery and two counts of armed burglary of a dwelling with assault. He was sentenced to a total of forty years. The only issue in this appeal is whether the trial court erred in denying Brutus's motion to suppress photos found on an iPod.

The crimes occurred in February 2014, when Brutus and two other men burglarized two Tallahassee apartment complexes. After Brutus was identified as a suspect, police obtained a warrant to search his home. The warrant found probable cause to believe that the home contained "certain stolen items and evidence," including an "Apple iPod." (capitalization altered).

The warrant then specifically authorized law enforcement to extract certain digital information "[i]n the event cell phone devices [were] recovered." The final paragraph said the scope would also "encompass any items tending to establish the identity of the persons who have dominion and control of the location, premises, automobiles, or items to be seized."

During the search, police found an Apple iPod, reviewed its contents, and saw a photo of a masked man holding two guns. The State Attorney's office later obtained a second warrant explicitly authorizing law enforcement to extract photos and any other electronic data from the iPod. Brutus moved to suppress the evidence from the iPod, arguing that the original warrant was insufficiently specific as to the iPod and that, regardless, the search exceeded the warrant's scope. Brutus further argued that absent the officers' illegal intrusion into the iPod, they never would have secured the second warrant authorizing extraction of the iPod's contents. The trial court denied his motion.

On appeal, Brutus first argues that the warrant's reference to an "Apple iPod" was too general because iPods are now ubiquitous and the warrant did not describe "the device's color, model, or other defining characteristics." He relies principally on our decision in Sims v. State , 483 So.2d 81, 82 (Fla. 1st DCA 1986), in which we found a warrant insufficiently particular because it referenced a "blue wheelbarrow" but contained "no description to identify it from any other blue wheelbarrow." Id. Second, he argues that even if the warrant was sufficiently specific, law enforcement exceeded its scope by searching-rather than merely seizing-the iPod. He points to the fact that the original warrant only authorized extraction of data from "cell phone devices"-not iPods.

We need not decide whether the trial court should have suppressed the evidence found on the iPod because we are convinced beyond reasonable doubt that the error-if any-was harmless. See, e.g. , Ventura v. State , 29 So.3d 1086, 1091 (Fla. 2010). Brutus's accomplice testified that he and Brutus committed the burglaries together "to get money or marijuana" and that the burglaries were Brutus's idea. Cell phone records confirmed that the two were both in the vicinity of second burglary and were in communication at the time the burglary occurred. Items stolen during the robbery were recovered at Brutus's residence, and guns recovered from his residence (and containing his DNA) matched the description of the guns used during the crimes. We are convinced that with or without the photos, the result would have been the same.

AFFIRMED .

Lewis, Kelsey, and Winsor, JJ., concur.