author: Levine, J.

text:
    Leslie WELTON, Appellant, v. Lynn WELTON, Appellee.
    No. 4D18-1516
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Brian P. North of Kenny Leigh & Associates, Fort Walton Beach, for appellant.
    No brief filed for appellee.
   Levine, J.

The husband appeals a final judgment of dissolution of marriage, raising several arguments. We reverse and remand because the trial court (1) erroneously found the husband's dissipation of marital assets to be the result of "intentional misconduct," (2) overvalued the husband's stock, (3) failed to address certain items of personal property, and (4) erred in valuing the husband's share of his deceased mother's estate. As to the other issues raised, we find them to be without merit and affirm without further discussion.

The parties were married in 1998. The husband filed for a divorce in 2017. The wife counter-petitioned seeking alimony and an equitable distribution of the parties' assets.

During the pendency of the petition, the husband withdrew roughly $ 130,000 from a Baird 401(k) and moved it to an IRA account with TD Ameritrade. He then took $ 65,000 of the transferred funds from the TD Ameritrade account, incurring a 10% early withdrawal penalty and subject to a 25% tax withholding requirement. The husband used the withdrawn funds to pay off some debts incurred during the marriage. While he paid off debts that were in both parties' names and marital debts that were only in his name, the husband did not pay off any marital debts that were solely in the wife's name. This left the husband with no outstanding debt and the wife with roughly $ 88,000 in debt. At trial, the wife contended that more than half of the funds withdrawn from the TD Ameritrade account were intentionally dissipated for non-marital purposes.

During the pendency of his petition, the husband also sold $ 4,220.24 worth of stock from his employee stock plan. He used these funds to pay off other marital debts. At trial, the wife agreed the husband sold a "big chunk" of his stocks.

In his petition and at trial, the husband also claimed that the wife was in possession of numerous items of his personal property: computers, sporting goods, instruments, and clothing in the marital home. He asked the court to address these items in its final judgment.

Additionally, the husband's mother died during the pendency of the petition. At trial, the estate's attorney testified that the estate account contained around $ 180,000 and that the husband would receive one-third of whatever remained of that account after the payment of estate debts, estate expenses, and the mother's funeral expenses.

In its final judgment, the trial court found that the husband "unilaterally cashed out his entire 401K thereby incurring significant taxes and penalties" and leaving only $ 65,000 in the rollover IRA account. It further noted that had the husband not cashed out the 401(k), he would not have incurred these "additional and unnecessary penalties." As to the stocks, the trial court adopted the wife's equitable distribution schedule. That schedule noted that the husband had sold an estimated $ 4,220.24 worth of stocks, but nonetheless attributed their full pre-sale value of $ 7,000 to the husband. For the purposes of ability to pay alimony, the trial court attributed a full third of the $ 180,000 total estate to the husband. The final judgment was silent as to the items of personal property the husband claimed were still in the marital home.

An appellate court reviews a finding that one spouse improperly dissipated marital assets for abuse of discretion. Bateh v. Bateh , 98 So.3d 750, 751 (Fla. 1st DCA 2012). Except when the dissipation of assets results from intentional misconduct, it is generally error for a court to include dissipated assets in its equitable distribution scheme. Bush v. Bush , 824 So.2d 293, 294 (Fla. 4th DCA 2002).

Similarly, a trial court's alimony award is reviewed for abuse of discretion. Kareff v. Kareff , 943 So.2d 890, 893 (Fla. 4th DCA 2006). At the trial level, a court's valuation of the parties' assets must be supported by competent, substantial evidence. See Hooker v. Hooker , 220 So.3d 397, 399 (Fla. 2017).

We find that the trial court erred in its findings regarding the husband's dissipation of marital assets. Improper dissipation occurs "where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown." Gentile v. Gentile , 565 So.2d 820, 823 (Fla. 4th DCA 1990), disapproved on other grounds by Acker v. Acker , 904 So.2d 384 (Fla. 2005) (citation omitted). In order to include dissipated assets in the equitable distribution scheme, the trial court "must make a specific finding that the dissipation resulted from intentional misconduct." Miller v. Miller , 186 So.3d 1128, 1129 (Fla. 4th DCA 2016) (emphasis omitted) (quoting Roth v. Roth , 973 So.2d 580, 584-85 (Fla. 2d DCA 2008) ).

While the trial court did note that the husband "intentionally dissipated" assets in a manner that was "detrimental" to the wife, this was not enough to warrant inclusion of the dissipated assets in the equitable distribution scheme. Instead, the trial court was required to make particularized findings as to the husband's "intentional misconduct." See id.

The trial court did not make such findings and the record evidence failed to show any intentional misconduct in the husband's use of the marital funds. Instead, both parties' testimony reflects that he used the funds to pay off legitimate marital debts rather than for purposes "unrelated to the marriage." See Gentile , 565 So.2d at 823. Assets depleted in such a manner cannot be included in an equitable distribution scheme. As such, the trial court erred in finding that the husband's dissipation of the marital funds to pay off marital debts was intentional misconduct.

This conclusion finds support in the First District's decision in Walker v. Walker , 85 So.3d 553 (Fla. 1st DCA 2012). There, as here, the former husband incurred penalties after taking an early disbursement from a retirement plan. Like in this case, the trial court's final judgment noted only that the husband had withdrawn the funds and spent the money on various items. Because the trial court failed to make any specific findings of misconduct based on record evidence, the First District reversed. See id. at 555.

As to the stocks, both parties testified that the husband sold some of his stocks during the pendency of the petition; in fact, the equitable distribution scheme adopted by the lower court even notes this. Thus, there is no evidentiary support for the stocks still being valued at $ 7,000. The trial court nonetheless included the pre-liquidation stock value of $ 7,000 in the equitable distribution. Because this valuation lacked competent, substantial evidentiary support, it was error. See Hooker , 220 So.3d at 399.

We also reverse as to the trial court's findings regarding the husband's share of his mother's estate. The uncontroverted evidence was that the husband would receive one third of the remainder of the $ 180,000 after the deduction of estate costs, debts, and funeral expenses. As such, the trial court's finding that he would receive one third of $ 180,000 without regard to the deduction of costs, debts, or expenses was not supported by the evidence and amounted to an abuse of discretion. See Kareff , 943 So.2d at 893.

Finally, the trial court erred in failing to address the items of personal property testified to at trial. In the final judgment, the trial court concluded that the parties failed to "present any evidence regarding other items and/or personal property" and made no findings as to the items identified by the husband as still being in the wife's custody. However, at trial, the husband specifically testified about items left in the marital home and his petition requested an adjudication of rights as to those items.

"In a dissolution action, when the question of property rights is raised, the court must determine the issue since its final judgment of dissolution settles all property rights of the parties and bars further action to determine such rights." Craig v. Craig , 404 So.2d 413, 414 (Fla. 4th DCA 1981). As such, the trial court erred in concluding that there was no evidence presented as to the parties' personal property and failing to make findings as to the personal property testified to at trial. See Lopez v. Lopez , 447 So.2d 898, 898 (Fla. 3d DCA 1983) (holding that trial court erred in failing to adjudicate parties' rights to personal property acquired during the marriage, as requested by the parties).

In conclusion, we find that the lower court erred in four respects: it erroneously found the husband's dissipation of marital assets to be the result of "intentional misconduct," it incorrectly valued the husband's stock, it overvalued the husband's share of his mother's estate, and it failed to adjudicate the parties' rights as to certain personal property. For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion. As to the other issues raised in this appeal, we affirm.

Affirmed in part, reversed in part, and remanded.

Warner and Damoorgian, JJ., concur.

      Additionally, the trial court could not have included the $ 7,000 in stocks under a theory of dissipation via intentional misconduct. Because there was no evidence of intentional misconduct in the husband's liquidation of his stock to pay off marital debts, it would have been error to include the value of the dissipated stock in the equitable distribution scheme on that basis. See Miller , 186 So.3d at 1129.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Louis Jeune JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2744
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Louis Jeune Johnson, South Bay, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm the order denying appellant's petition for writ of habeas corpus. We write solely to clarify a procedural issue. When a defendant mistakenly files a habeas corpus petition attempting to challenge a conviction or sentence, the filing should not be treated as a new, separate civil proceeding.

The petition was an untimely and successive postconviction challenge to appellant's murder conviction in a 2004 criminal case in this same circuit. The petition attempted to raise procedurally barred and meritless claims of trial court error in the jury instructions given at trial in 2006. See Green v. State , 975 So.2d 1090, 1115 (Fla. 2008) ("Habeas corpus is not to be used for additional appeals of issues that could have been or were raised on appeal or in other postconviction motions.").

While appellant's petition was clearly an attempt at collaterally attacking his conviction in the 2004 criminal case, and included the criminal case number, the petition proceeded as a separate, original proceeding and was assigned a civil case number. The judge in the civil division entered the order denying the petition. The appeal from the order denying the petition was thus treated as an appeal from a final order-requiring full briefing and record preparation. See Fla. R. App. P. 9.110.

The request for habeas corpus relief was unauthorized, see Rafael v. Crews , 154 So.3d 505, 506 (Fla. 4th DCA 2015), and the petition should have been dismissed or treated as a postconviction motion under Florida Rule of Criminal Procedure 3.850. See Diaz v. State , 132 So.3d 93, 122 (Fla. 2013) ("Since the adoption of Criminal Procedure Rule No. 1 in 1963, 'habeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief.' ") (citation omitted); Baker v. State, 878 So.2d 1236, 1245 (Fla. 2004) ("The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850."); Buss v. Reichman , 53 So.3d 339, 344 (Fla. 4th DCA 2011) ("Under rule 3.850, collateral challenges to a conviction or sentence must be brought in the court that imposed the conviction and sentence, which is the court best equipped to adjudicate those rights.").

Because the motion would have been untimely and successive, and alleged no valid exception, dismissal of the motion was warranted. See Fla. R. Crim. P. 3.850(b),(h); McClellion v. State , 186 So.3d 1129, 1132 (Fla. 4th DCA 2016) ("Incanting the words 'manifest injustice' does not excuse the procedural bars."). Any appeal taken from the court's summary disposition would then be pursuant to Florida Rule of Appellate Procedure 9.141(b), which does not require full briefing and allows for preparation of a summary record.

In Buss v. Reichman , this Court explained why the court that entered the conviction and sentence is best equipped to review postconviction challenges and why allowing collateral challenges in separate habeas corpus proceedings is unauthorized and fraught with hazards. 53 So.3d at 344-46. An additional benefit of following proper procedure is that the defendant's postconviction filing history is reflected in the record for the criminal case-not scattered across seemingly unrelated civil case numbers.

While dismissal in the criminal case, rather than denying the petition on its merits, was the appropriate disposition for the petition filed here, any such error is harmless.

Affirmed.

Warner, Klingensmith and Kuntz, JJ., concur.

      This Court affirmed Appellant's conviction and sentence on direct appeal in 2007. Louis-Jeune v. State , 956 So.2d 465 (Fla. 4th DCA 2007) (table). Appellant has unsuccessfully appealed the denial of five prior postconviction motions in this case.


author: Warner, J.

text:
    Jeffrey L. LIGHTSEY, Appellant, v. Angelica M. DAVIS, Appellee.
    No. 4D18-2848
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Karen O'Brien Steger and Lori I. Steger of Steger Law, Stuart, for appellant.
    No brief filed for appellee.
   Warner, J.

A father appeals a final judgment of paternity and challenges the court's rulings on parental responsibility and timesharing. He contends that the court erred: (1) in awarding the mother sole parental responsibility without a finding of detriment to the child in shared responsibility; (2) in awarding him only supervised timesharing with the child without setting forth the steps that he must take to obtain unsupervised timesharing; and (3) in providing time sharing at the sole discretion of the mother. There is no transcript in the record, so the errors must appear on the face of the final judgment to warrant reversal. See Dorsett v. Dorsett , 902 So.2d 947, 950 (Fla. 4th DCA 2005). The lack of a transcript prevents review of the failure to make a finding of detriment to the child. We reverse as to the failure to provide steps to secure unsupervised timesharing and the grant of supervised timesharing at the sole discretion of the mother, as the court must provide a means for the father to obtain unsupervised visitation and cannot delegate to a third party the determination of timesharing.

We need not detail all of the findings in the final judgment. It suffices to state that the trial court found that the father was not engaged with his child. The court concluded that based on the factors of section 61.13, Florida Statutes (2018), the father had not demonstrated the capacity to facilitate a close and continuous parent-child relationship. He put his own needs before those of his child, who has resided with the mother in a stable, satisfactory environment. Furthermore, the father has shown no interest in maintaining continuous contact with the child or in being informed about the child's medical needs or daily activities. He "only inquires of the child as a means of getting back together with Mother." Finally, he has not shown "the capacity or disposition to provide any routine for the child or to communicate with Mother with regard to the child's welfare or to provide the child with an environment which is free from substance abuse."

The trial court awarded the mother sole parental responsibility of the child. It ruled that the "Father's contact with the child shall be supervised by the Mother at Mother's discretion until he has demonstrated the ability to properly parent a child, at which" point he could petition to modify his timesharing. The father appeals.

Section 61.13(2)(c) 2., Florida Statutes (2018), provides that "[t]he court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child." Although we have held that such a finding is necessary, see Aranda v. Padilla , 216 So.3d 652, 653 (Fla. 4th DCA 2017), it may be made either on the record or in the final judgment. See Coyne v. Coyne , 895 So.2d 469, 472 (Fla. 2d DCA 2005). "[T]here is no statutory requirement that the trial court make specific written findings in a custody decision." Adair v. Adair , 720 So.2d 316, 317 (Fla. 4th DCA 1998). The failure to include a finding of detriment does not render the judgment fundamentally erroneous. Without a transcript, we cannot ascertain whether the trial court made a finding of detriment to the child at the trial. Therefore, based upon Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1979), we cannot reverse on this ground.

The final judgment did not set forth a timesharing schedule, but it authorized supervised time sharing within the sole discretion of the mother until such time the father has demonstrated that he is able to properly parent. Yet the court did not provide what steps the father should complete to demonstrate that ability. In Whissell v. Whissell , 222 So.3d 594, 595 (Fla. 4th DCA 2017), we held that even if the trial court's decision not to award unsupervised timesharing is supported by competent substantial evidence, the court must provide the parent who is denied timesharing "with specific steps to obtain unsupervised timesharing." A trial court's failure to set forth any specific requirements or standards with which the parent must comply in order to reduce the timesharing restrictions - whether those restrictions constitute a total prevention of timesharing altogether or are only a limitation of timesharing-is error. Id. "While the trial court need not 'set out every minute detail of the steps to reestablish unsupervised timesharing,' the parent must leave the courtroom 'knowing that if [they] satisfactorily accomplish[ ] relatively specific tasks, [they] will be able to reestablish unsupervised timesharing.' " Id. (quoting Witt-Bahls v. Bahls , 193 So.3d 35, 38 (Fla. 4th DCA 2016) ). The trial court must provide the father with that path.

Similarly, the trial court directed that the father's timesharing with the child would be at the sole discretion of the mother. A court may not delegate its responsibility to determine timesharing to a third party. Larocka v. Larocka , 43 So.3d 911, 912-13 (Fla. 5th DCA 2010) (finding error on face of the judgment, where the trial court delegated its duty to establish contact and visitation between the mother and the child to a counselor; recognizing that trial courts may not delegate such authority to third parties). "[I]t is the trial court's responsibility to ensure that an appropriate relationship is maintained between a parent and his or her children, and that responsibility 'cannot be abdicated to any parent or expert.' " Grigsby v. Grigsby , 39 So.3d 453, 457 (Fla. 2d DCA 2010) (quoting McAlister v. Shaver , 633 So.2d 494, 496 (Fla. 5th DCA 1994) ). To prevent this abdication, "a reasonable timesharing schedule based on the parent's individual circumstances must be created based on the exercise of the court's discretion, not the other parent's." Id. (emphasis in original) (citing Letourneau v. Letourneau , 564 So.2d 270, 270 (Fla. 4th DCA 1990) ). Because the court improperly delegated its authority to establish a timesharing schedule to the mother, the judgment was fundamentally erroneous.

We thus reverse the final judgment for the trial court to create a timesharing plan and for it to establish tasks for the father to complete in order to secure unsupervised timesharing with the child. In its discretion, the court may take further evidence on these issues. In all other respects, we affirm the final judgment.

Damoorgian and Levine, JJ., concur.

      The father also claims that the court awarded relief not requested in the pleadings; however, without a transcript of proceedings this issue cannot be decided because it cannot be determined whether issues were tried by implied consent. See Lannon v. Foley , 914 So.2d 518, 518 (Fla. 4th DCA 2005) (noting unpled issues may be tried by implied consent).


text:
    Secret JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2220
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm appellant's conviction and sentence for aggravated battery causing great bodily harm, which was enhanced to a first-degree felony for use of a firearm and resulted in a thirty-year prison sentence. Appellant contends that because the jury found that she used a firearm, she should have been convicted and sentenced for aggravated battery with a deadly weapon, which could not be enhanced. Appellant is incorrect. When the State charges a defendant with aggravated battery causing great bodily harm based on section 784.045(1)(a)1., Florida Statutes (2017), and not section 784.045(1)(a)2., a deadly weapon is not an essential element of the crime, and the crime can be reclassified upward. See Lareau v. State , 573 So.2d 813, 814 (Fla. 1991) ; see also Stoute v. State , 915 So.2d 1245, 1247 (Fla. 4th DCA 2005) (same).

We affirm as to the remaining issues raised as the claimed errors either lacked merit or were harmless beyond a reasonable doubt. See State v. DiGuilio , 491 So.2d 1129 (Fla. 1986).

Warner, Ciklin and Levine, JJ., concur.


author: Damoorgian, J.

text:
    Cherrie Yvette JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3741
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Clyde M. Taylor III of Taylor & Taylor, PA, St. Augustine, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Appellant, Cherrie Johnson, appeals her judgment and sentence for one count of exploitation of an elderly person for a value of $10,000 or more but less than $50,000. Appellant claims the trial court erred in denying her motion for judgment of acquittal based on the State's failure to prove the elements of intent and value. We agree with Appellant that the State failed to prove the valuation element, but otherwise affirm on the intent element. We therefore reverse and remand Appellant's conviction and sentence and instruct the court to readjudicate and resentence Appellant for the offense of exploitation of an elderly person in the amount of less than $10,000.

Facts

This case stems from actions Appellant took after her eighty-eight year old neighbor (the "victim") was involuntarily hospitalized pursuant to Florida's Baker Act after exhibiting signs of dementia. There is no dispute that Appellant had the victim sign a power of attorney ("POA") while the victim was hospitalized and then used that POA to withdraw more than $13,000 from the victim's bank accounts. What was in dispute is what Appellant did and intended to do with the money. Appellant maintains that she simply tried to help the victim and used the money to pay the victim's bills and fix up her house. The State, however, concluded that Appellant obtained the POA knowing that the victim did not understand what she was signing and then used the victim's bank account for purposes not in the victim's best interests. Therefore, the State charged Appellant with exploitation of an elderly person for a value of $10,000 or more but less than $50,000, as well as grand theft. The matter proceeded to a jury trial where the State presented the following evidence.

The victim was involuntarily hospitalized after she was found confused and living in deplorable conditions. Appellant began visiting the victim a few days into her hospitalization and told hospital staff that she was the victim's neighbor and had been looking after her. Appellant also stated that she wanted to get the victim back home and presented the hospital with an undated designation of health care surrogate purportedly signed by the victim. Due to the neglected condition the victim was found in, hospital staff became suspicious of Appellant and rejected the undated designation as it could not verify the victim's signature. As such, the victim remained in the hospital.

Thereafter, Appellant returned to the hospital with a notary and a friend to serve as a witness and had the victim sign forms naming Appellant as her health care proxy and POA. Appellant then recorded the POA in the public records and, with the POA, added herself as a signatory on some of the victim's bank accounts. Around this same time, an anonymous person called police to report a suspected burglary in progress at the victim's house. The responding officer encountered Appellant, her minor daughter, and another woman bringing cleaning supplies into the victim's home. Appellant told law enforcement that they were trying to clean up in preparation for the victim's release from the hospital.

After learning about the victim's execution of the POA and health care proxy, the hospital contacted law enforcement and initiated guardianship proceedings concerning the victim. Law enforcement obtained the victim's bank records and determined that, as the victim's POA, Appellant withdrew a total of $13,549.16 from the victim's accounts. Of those funds, $2,590.02 was deposited into Appellant's personal account. The remaining funds were paid to various persons in the form of bank checks and/or used for retail purchases. Law enforcement also learned that Appellant added her daughter (who was six years old at the time) as the death beneficiary of the victim's accounts. The branch manager who added Appellant's daughter testified that Appellant explained that she took this action to protect the funds in the event a probate case was filed.

Eventually, a guardian was appointed on behalf of the victim and Appellant and her daughter were removed as signatories on the victim's accounts. The guardian placed the victim in a nursing home where she died a short time later.

In her defense, Appellant presented evidence supporting her argument that she had no intent to exploit the victim as all of her actions were to the benefit of the victim. This evidence included testimony from individuals who helped Appellant clean the victim's home and were paid with bank checks as well as photographs documenting the cleanup process. Appellant also submitted invoices and receipts accounting for most of the money she withdrew from the victim's bank accounts. These records established that Appellant used about $8,000 to pay for labor and supplies associated with cleaning the victim's home, property taxes on the victim's home, and an attorney to represent the victim in the guardianship proceedings. Appellant testified that the money transferred into her own account was to compensate herself for the time spent working on the home and/or to reimburse herself for expenses incurred on the victim's behalf. She also admitted to adding her daughter as a beneficiary of the victim's accounts, but explained that she did so based on advice from the bank's manager regarding the protection of the victim's assets.

Considering the foregoing evidence, the jury found Appellant guilty of both theft in an amount of $10,000 or more and exploitation of the elderly in the same amount. After the State elected to proceed only on the exploitation count, Appellant filed a timely post-verdict motion for judgment of acquittal wherein she argued that the State failed to prove either that she had the intent to or actually did deprive the victim of the use or benefit of $10,000 or more because all of the funds Appellant removed from the victim's accounts were used for the victim's benefit. The court denied Appellant's motion and this appeal follows.

Analysis

Appellant was convicted of exploitation of an elderly person under section 825.103(1)(b) of the Florida Statutes. That section defines the charged crime as:

Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain or use an elderly person's or disabled adult's funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent[.]

§ 825.103(1)(b), Fla. Stat. (2016).

The statute further provides that if the funds, assets, or property involved in the exploitation is valued at $10,000 or more but less than $50,000, the offender commits a felony of the second degree. If the funds, assets, or property is valued at less than $10,000, the offender commits a felony of the third degree. § 825.103(3), Fla. Stat.

Based on the foregoing, in order to sustain Appellant's conviction under section 825.103(1)(b), the State was required to prove that: 1) Appellant obtained the victim's funds or assets; 2) with the intent of depriving the victim of the use or benefit of those funds or assets; and 3) while knowing that the victim lacked the capacity to consent. It was also required to prove the value of those assets.

"Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Pagan v. State , 830 So.2d 792, 803 (Fla. 2002) (internal citations omitted). "A more stringent standard of review applies, however, if the state's evidence of guilt is wholly circumstantial." Galavis v. State , 28 So.3d 176, 178 (Fla. 4th DCA 2010). In circumstantial cases, "a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Id. (quoting State v. Law , 559 So.2d 187, 188 (Fla. 1989) ). "[I]f there is direct evidence of a defendant's actus reus , but the defendant's intent is proven solely through circumstantial evidence, the special standard of review applies only to the state's evidence establishing the element of intent." Id.

Appellant argues that the court erred in denying her motion for judgment of acquittal because the State's evidence regarding the element of intent was purely circumstantial and did not refute Appellant's reasonable hypothesis of innocence-that Appellant used the victim's funds solely for the victim's benefit. Alternatively, Appellant argues that even if the State sufficiently proved intent, it did not prove that she actually exploited the victim for $10,000 or more since the unrefuted evidence established that the majority of the money removed from the victim's accounts was used for her benefit. For the reasons set forth below, we hold that the State presented sufficient evidence to send the issue of intent to the jury. However, we agree that the evidence was insufficient to prove that Appellant exploited the victim in an amount of $10,000 or more.

Intent

There are two key cases issued by this Court which are instructive to the issue of intent in an exploitation of the elderly case. The first is Everett v. State , 831 So.2d 738 (Fla. 4th DCA 2002). There, a defendant who was convicted of exploitation of the elderly in the amount of $20,000 or more appealed the trial court's denial of her motion for judgment of acquittal. Id. at 739. The evidence at trial established the defendant took the purported victim to the bank and helped the victim close out one of her accounts. Id. at 739-40. After law enforcement became involved, the defendant stated that most of the money from the closed account was used to repair the victim's home and provided receipts for about half of the funds. Id. at 740. The defendant claimed that she returned the remainder of the money to the victim. Id. at 741. The State did not present any evidence establishing where the remainder of the money went. Id.

On appeal, this Court reversed the defendant's conviction, holding that the State failed to prove the intent element of the charged crime. Specifically, we reasoned:

[T]here simply was no evidence from which the jury could reasonably conclude that [the defendant] exploited the victim either by obtaining, or trying to obtain, the victim's funds with the intent of temporarily or permanently depriving the victim of them. Here, there were no deposits into the defendant's bank accounts, no unexplained sudden acquisition of property in the defendant's name.
In the end, [the defendant] stated that any money which was not accounted for by a receipt, or her own recollection, was given to [the victim]. The State presented no evidence inconsistent with this claim.

Id. at 742.

The second key case is McNarrin v. State , 876 So.2d 1253 (Fla. 4th DCA 2004). There, a defendant was convicted of exploitation of the elderly where the evidence established that the defendant, a caregiver for a ninety-two year old woman, cashed a $6,000 check made out to "cash" from the woman's account. Id. at 1254. The defendant claimed that she cashed the check at the request of the woman and used the money to open an account at the assisted living facility where the woman resided. Id. Since the State did not introduce any evidence at trial establishing that the defendant retained the money or that the money was not used to open an assisted living facility account, this Court reversed the defendant's conviction, holding that the State failed to "present sufficient evidence to establish the necessary intent." Id. at 1254-55.

Everett and McNarrin establish that when a defendant charged with exploitation of the elderly alleges that funds taken from the alleged victim were used for the victim's benefit, the State must submit evidence to the contrary. Such contrary evidence could include unexplained deposits in the defendant's bank accounts or acquisitions of property. See Everett , 831 So.2d at 742. In the instant case, although there was evidence corroborating Appellant's claim that much of the money taken from the victim's accounts was used for the benefit of the victim, there was also evidence establishing that Appellant deposited some of the money taken from the victim's accounts into her own bank account and named her daughter as the beneficiary of the victim's accounts. This evidence, when viewed in the light most favorable to the State, supports the alternative theory that Appellant intended to benefit herself and not preserve the victim's estate. See Durousseau v. State , 55 So.3d 543, 557 (Fla. 2010) ("Under the circumstantial evidence standard, when there is an inconsistency between the defendant's theory of innocence and the evidence, when viewed in a light most favorable to the State, the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied."). Accordingly, we affirm the trial court's denial of Appellant's motion for judgment of acquittal on the issue of intent.

Value

As outlined above, the degree of an exploitation of the elderly conviction depends on the value of the "funds, assets, or property involved in the exploitation" and, therefore, value constitutes an element of the crime that the State must prove beyond a reasonable doubt. § 825.103(3), Fla. Stat. (2016) ; cf. Wiechert v. State , 170 So.3d 109, 111 (Fla. 2d DCA 2015) ("The degree of a theft conviction generally depends on proof of the value of the items stolen, and hence the value of the stolen goods constitutes an element of the crime that the State must prove beyond a reasonable doubt.").

The evidence established a total of $13,549.16 was removed by Appellant from the victim's bank accounts. From that amount, it is undisputed that almost $8,000 was used to pay the victim's real estate taxes, clean up her home, and retain legal counsel to represent the victim in the guardianship proceeding. Subtracting this amount expended for the benefit of the victim from the total removed from the victim's accounts puts the maximum value of the funds taken and not used for the victim's benefit well under $10,000. Accordingly, the State did not prove the value element of the charged crime. We therefore reverse and remand Appellant's conviction and sentence with instructions that the court re-adjudicate and resentence Appellant for the offense of exploitation of an elderly person in the amount of less than $10,000. § 825.103(3), Fla. Stat.

Affirmed in part, reversed in part, and remanded.

Warner and Levine, JJ., concur.


text:
    Anne Marie COROMINAS, As Personal Representative of the Estate of Patrocinio R. Libre, and for the Use and Benefit of Herself, Anne Marie Corominas, and Plaintiff's Counsel, Gold & Gold, P.A., Appellants, v. AJAY DEVELOPMENT GROUP, LLC, Ajay Transportation, Inc., and Koch Parafinczuk Wolf Susen, Appellees.
    No. 4D18-26
    District Court of Appeal of Florida, Fourth District.
    [March 13, 2019]
    Elliot B. Kula, W. Aaron Daniel and William D. Mueller of Kula & Associates, P.A., Miami; and Philip A. Gold of Gold & Gold, P.A., Boca Raton, for appellants.
    Justin R. Parafinczuk and Marcus J. Susen of Koch Parafinczuk Wolf Susen, Fort Lauderdale; and Brian J. Holland of the Law Office of Brian Holland, P.A., Fort Lauderdale, for appellee Koch Parafinczuk Wolf Susen.
   Per Curiam.

The appellants challenge the order determining entitlement to and amount of attorney's fees and costs. The appellants raise issues related to the amount of quantum meruit fees awarded to a law firm that was discharged before the case was resolved. We find no merit in those arguments and we affirm. The appellants also challenge the trial court's award of fees to the discharged law firm for litigating its entitlement to quantum meruit fees. The award of these fees was based on a finding that the appellants took the bad faith position that the discharged law firm was not entitled to quantum meruit fees. We agree with the appellants that the trial court did not make the required factual findings to support a bad faith finding, and we reverse and remand for the trial court to enter an amended order on fees to exclude the expert fee of $ 28,000.

The plaintiff in the lawsuit underlying this appeal settled her wrongful death claim shortly after firing one law firm and retaining another. The predecessor law firm sought fees for the work it had performed before it was discharged. After two evidentiary hearings were held, the trial court found that the successor law firm's position that the predecessor firm "was entitled to no fees was a bad faith position," and that the predecessor firm was entitled to fees for litigating its entitlement to quantum meruit fees, under both the inequitable doctrine "and/or ... Florida case law on contesting entitlement for litigating the issue of entitlement."

The trial court did not state what "Florida case law" it relied on, but the record indicates it was relying on a case that does not apply to the facts of this case, as it involved the issue of whether fees for litigating entitlement are encompassed by the statute permitting fees. See State Farm Fire & Cas. v. Palma , 629 So.2d 830 (Fla. 1993). Here, the predecessor firm's request for fees for litigating entitlement was not based on a statute.

The trial court also based its award of fees for litigating entitlement on the inequitable conduct doctrine. "The inequitable conduct doctrine permits the award of attorney's fees" in "extreme cases where a party acts 'in bad faith, vexatiously, wantonly, or for oppressive reasons.' " Bitterman v. Bitterman , 714 So.2d 356, 365 (Fla. 1998) (quoting Foster v. Tourtellotte , 704 F.2d 1109, 1111 (9th Cir. 1983) ). "[A] finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings." Moakley v. Smallwood , 826 So.2d 221, 227 (Fla. 2002). The findings must "describ[e] the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys' fees." Id.

The written order here does not contain the required detailed factual findings. The predecessor firm relies on statements the trial court made at the second hearing. But the court's statements were not supported by the record and were not the sort of findings that are "predicated on a high degree of specificity." Accordingly, we reverse and remand for the trial court to amend the order on fees to exclude the expert fee of $28,000.

Reversed and remanded for entry of amended order.

Gerber, C.J., Ciklin and Kuntz, JJ., concur.


text:
    Van JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3473
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Van Jackson, Carrabelle, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Hart v. State , 246 So.3d 417 (Fla. 4th DCA 2018) (en banc); Seays v. State , 253 So.3d 21 (Fla. 4th DCA 2018). We again certify conflict with Cuevas v. State , 241 So.3d 947 (Fla. 2d DCA 2018) ; Blount v. State , 238 So.3d 913 (Fla. 2d DCA 2018) ; Mosier v. State , 235 So.3d 957 (Fla. 2d DCA 2017) ; Alfaro v. State , 233 So.3d 515, 516 (Fla. 2d DCA 2017) ; and Burrows v. State , 219 So.3d 910, 911 (Fla. 5th DCA 2017).

Warner, Forst and Klingensmith, JJ., concur.


text:
    Joshua RIZACK, As Plan Administrator of the Post-Confirmation Estate of West End Financial Advisors LLC, et al., Appellant, v. SIGNATURE BANK, N.A., Chris Efstratiou and Charles Liggio, Appellees.
    No. 4D18-546
    District Court of Appeal of Florida, Fourth District.
    [March 20, 2019]
    Kristen M. Fiore of Akerman LLP, Tallahassee, Steven R. Wirth of Akerman LLP, Tampa, Christine B. Gardner of Akerman LLP, West Palm Beach, Jay Cohen of Cohen, Blostein & Ayala, P.A., Fort Lauderdale, and James Wes Christian of Christian, Jewell & Smith, LLP, Houston, TX, for appellants.
    William E. Davis and Akiesha Gilcrist Sainvil of Foley & Lardner LLP, Miami, John E. Westerman, Jeffrey A. Miller, and Michael E. Planell of Westerman, Ball, Ederer, Miller, Zucker & Sharfstein, LLP, Uniondale, NY for appellees.
   Per Curiam.

Appellants, including several Florida investors, appeal the trial court's dismissal of their complaint against Appellees with prejudice due to a lack of personal jurisdiction. They assert that the trial court should have permitted jurisdictional discovery. We agree.

There is no dispute that Appellants carried their initial burden by pleading long-arm jurisdiction pursuant to section 48.193, Florida Statutes (2018). See Becker v. Hooshmand , 841 So.2d 561, 562 (Fla. 4th DCA 2003). Thereafter, both parties submitted several affidavits either in support of or in opposition to the assertion that the lower court possessed personal jurisdiction over Appellees. See id. ; accord Venetian Salami Co. v. Parthenais , 554 So.2d 499, 502 (Fla. 1989) ; McMillan v. Troutman , 740 So.2d 1227, 1228 (Fla. 4th DCA 1999).

"We review a court's order denying a motion to dismiss for lack of personal jurisdiction de novo ." Rolls-Royce, PLC v. Spirit Airlines, Inc. , 239 So.3d 709, 712 (Fla. 4th DCA 2018).

Taking the contents of the affidavits as true, we find that they could not be sufficiently harmonized to provide the trial court with the ability to make its decision based solely upon the affidavits. See McMillan , 740 So.2d at 1228 ; accord Venetian Salami , 554 So.2d at 502-03. Thus, we reverse and remand for the trial court to allow the parties to conduct limited jurisdictional discovery to be presented via affidavit or at an evidentiary hearing. See Gleneagle Ship Mgmt. Co. v. Leondakos , 602 So.2d 1282, 1284 (Fla. 1992) ; accord Rolls-Royce, 239 So.3d at 714 ; Packaging & Distrib. Res., LLC v. Duke Realty Ltd. , 194 So.3d 509, 510 (Fla. 4th DCA 2016). "Once discovery on the jurisdictional issue is concluded, the procedure outlined in Venetian Salami should be followed by the trial court." Gleneagle , 602 So.2d at 1284.

Reversed and remanded.

May, Ciklin and Klingensmith, JJ., concur.


author: Gross, J.

text:
    Ashlyn SALOMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-679
    District Court of Appeal of Florida, Fourth District.
    [March 20, 2019]
    Carey Haughwout, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

A jury rejected Ashlyn Salomon's claim of self-defense and convicted him of second degree murder with a firearm. Because of a fundamental error in the charge to the jury on his legal defense and improper credibility bolstering of witnesses by a state "expert," we reverse and remand for a new trial.

This case involved a shooting outside of an apartment house. Appellant lived in Apartment B with his girlfriend Briana Wilson, two children and Briana's grandmother. Briana's mother lived in Apartment D with her boyfriend, the victim Jonathan Maciel, and one other person.

The witnesses to the shooting and the events leading up to it were all civilians. Law enforcement did not become involved until after the shooting occurred. The case turned on the credibility of witnesses--which witnesses the finders of fact believed would determine the outcome.

Briana's mother and the victim got into a verbal argument about the victim's communication with another woman. Briana went into the apartment, saw her mother arguing with the victim, and walked back outside. Briana called appellant at work and told him about the fight. While on the phone, Briana heard a loud "boom noise." She opened the door and saw the victim hit her mother. Briana told appellant she would have to call him back. She thought she had hung up the phone, but the line remained open and appellant overheard the unfolding ruckus.

The argument between the mother and the victim continued outside of the apartment. Briana began screaming at the victim. Hearing the commotion on the phone, appellant got in his car and rushed home.

Within 8-10 minutes, appellant sped into the apartment complex, parked in the middle of the parking lot, and jumped out of his car. Appellant testified that when he pulled up, it looked like the victim had shoved Briana. There were different versions of the words the victim exchanged with appellant, but the witnesses agreed that the victim and appellant ran towards each other and began "tussling" and wrestling. Briana and her mother separated the two men. The victim retreated to his apartment. Appellant fell back to his car, where he stood behind the open driver's side door.

Reaching into his car, appellant took out his firearm, and held it near his side because he felt that he needed his firearm to defend himself. Briana stood in front of appellant because she did not want him to chase the victim. Briana began pleading with appellant, telling him to stop and think of their daughter.

The victim reemerged from the apartment and headed towards appellant. There were varying accounts about how fast the victim approached appellant. There were also different versions of the lighting conditions. Most importantly, the witnesses varied in their description of the victim's hand placement as he headed for appellant. Only appellant testified that the victim had one hand concealed behind his back or at his side. No witness, not even appellant, saw a weapon in the victim's hands.

As the victim approached the front of appellant's car, appellant raised his gun and fired all 18 rounds; he claimed that he kept shooting because the victim kept coming at him. He testified that the victim was facing him the whole time until he twisted and fell. Other witnesses supported the view that the victim stopped after the first shot and began to retreat to the apartment. After the shooting, appellant backed his car into a space, placed his gun inside the car, and waited for the police to arrive.

Multiple officers from the Fort Pierce Police Department responded to the scene within minutes of the shooting. Lying face down on the ground, the victim was pronounced dead at the scene. According to the medical examiner, the victim died of multiple gunshot wounds. Seven of the 18 bullets hit the victim and 5 of those 7 wounds were on the victim's lower back, buttocks, and back of his arm. There was a single wound on the side of the victim's face and a single wound on the inside of the right elbow. The medical examiner testified that the gunshot wounds were consistent with the victim turning away and being shot while rotating. He also acknowledged that the wounds were consistent with the victim just twisting and turning while staying in one place.

Appellant testified that he was afraid for his life and Briana's life, and felt that the shooting was justified. He knew that the victim owned a firearm, and believed that the victim went to retrieve it when he went back inside his apartment. He felt like the victim had something in his hands when he ran towards him, but he could not see what it was.

After a stand-your-ground hearing, the trial court entered a written order denying appellant's motion for declaration of immunity and dismissal. The court summarized the pertinent facts presented at the hearing, and concluded that "[t]here was not any credible testimony or evidence presented to support the Defendant's version of the shooting." The court gave great credence to two "uninvolved witnesses" who had "no interest in the case." One of these witnesses said that the victim had no weapon in his hands as he approached appellant in a "power walk" as if ready to continue the fist fight; the other witness indicated there was nothing in the victim's hands when he fell to the ground. They also supported the notion that the victim began to retreat after the first bullet hit him, but appellant kept shooting at the victim's back.

We find no error in the procedure the trial court used to handle the stand-your-ground hearing prior to this court's decision in Hight v. State , 253 So.3d 1137 (Fla. 4th DCA 2018), which held that the 2017 amendment contained in subsection 776.032(4), Florida Statutes (2017), did not apply retroactively. We find no error in the court's denial of appellant's motion to dismiss at the stand-your-ground hearing and the denial of his motion for judgment of acquittal at trial. At the pre-trial hearing, the court resolved conflicts in the evidence adversely to appellant, finding that "there was not any credible testimony or evidence presented to support [appellant's] version of the shooting." At trial, a "motion for judgment of acquittal based upon self defense should not be granted unless 'the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.' " Morgan v. State , 127 So.3d 708, 717 (Fla. 5th DCA 2013) (quoting Lynch v. State , 293 So.2d 44, 45 (Fla. 1974) ). Given the conflicts in the testimony, this was clearly a case for resolution by the jury.

The trial court fundamentally erred by omitting a key word from the standard jury instruction on justifiable use of deadly force

The standard jury instruction for the justifiable use of deadly force provides, in pertinent part:

In deciding whether defendant was justified in the use of deadly force, you must judge [him] by the circumstances by which [he] was surrounded at the time the force was used. The danger facing the defendant need not have been actual ; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

Fla. Std. Jury Instr. (Crim.) 3.6(f) (emphasis added).

According to the transcript in the record, the trial court erroneously instructed the jury that "[t]he danger need have been actual " instead of "the danger facing the defendant need not have been actual." Neither the prosecutor nor defense counsel objected to the instruction as given.

Because there was no objection, we must determine whether such error constitutes fundamental error. See Miller v. State , 828 So.2d 445, 447 (Fla. 4th DCA 2002). Appellant correctly points out that the erroneous instruction impacted his sole defense of "self-defense justifiable use of force." "[W]here ... a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant's only defense, it is fundamental error and highly prejudicial to the defendant." Williams v. State , 982 So.2d 1190, 1194 (Fla. 4th DCA 2008) (quoting Carter v. State , 469 So.2d 194, 196 (Fla. 2d DCA 1985) ).

The state argues that the error was not fundamental because the parties did not rely on the erroneous instruction during closing argument. We rejected this argument in Garrido v. State , 97 So.3d 291, 295 (Fla. 4th DCA 2012), where we wrote that "[a]s the jury must follow the law as set forth by the trial court, the fact that the prosecutor and defense counsel correctly state the law during closing does not cure the trial court's reading of an erroneous instruction."

Where fundamental error has occurred, we must reverse and remand for a new trial. If a charge central to a defendant's defense is in error, that error is a fundamental one.

We have spent much time with the transcript and approached this issue with caution because it appears as if there are multiple places in the transcript where words have been omitted. One of those words is the "not" that is not in the transcript of the judge's recitation of standard charge 3.6(f). Neither attorney noticed the omission at trial.

It is possible that the omitted word might have been a problem in transcription, rather than an omission by the experienced trial judge.

The transcript reveals three times during the charge conference that the judge referred to written instructions in a notebook which the jury would have during deliberations. Both attorneys approved the "instructions in the written form." We have scoured the record and do not find that the written instructions given to the jury were marked as an exhibit and included in the record on appeal. If the written instructions were part of the record, and written standard charge 3.6(f) correctly stated the law, we would hold that no fundamental error occurred. It is inconceivable that, without a memory savant, the jury would have recalled a charge where a three letter word was omitted rather than relying upon a hard copy of the charge present in the jury room, where the correct law is set out in black and white. The situation here underlines the importance of including in the record the written collection of instructions on the law that the jury takes into deliberations.

The state's "expert" witness improperly bolstered the testimony of witnesses favorable to the state

Both the state and appellant called witnesses they described as "experts." During the stand-your-ground hearing, the defense expert opined that appellant's use of deadly force was justified; the state's witness testified that appellant's use of force was not objectively reasonable under the circumstances. At trial, in a roundabout way, the experts opined about the reasonableness of appellant's use of deadly force. Neither side objected to the other calling an expert, but they agreed that the experts would not refer to the credibility of witnesses.

To ensure that this opinion is not read as tacit approval of this use of expert testimony, we first address the propriety of such testimony in a case such as this. Had there been an objection to either expert, it should have been sustained. The case turned entirely on how the jury evaluated the testimony of various civilian eyewitnesses to the shooting. The experts reviewed witness statements and other evidence in the case, personally interviewed some witnesses, and essentially opined on the issue of whether the use of deadly force was reasonable, and therefore justifiable under the law.

To be admissible, expert testimony must "assist the trier of fact in understanding the evidence or in determining a fact in issue ...." § 90.702, Fla. Stat (2017). We have also described this quality of expert testimony as being "helpful to the trier of fact." Anderson v. State, 786 So.2d 6, 8 (Fla. 4th DCA 2000) (quoting Holiday Inns, Inc. v. Shelburne , 576 So.2d 322, 335 (Fla. 4th DCA 1991) ). Whether self-defense applies in a given case is a classic question that jurors are well equipped to handle. As we wrote in Mitchell v. State :

In order to be helpful to the trier of fact, expert testimony must concern a subject which is beyond the common understanding of the average person. Expert testimony should be excluded where the facts testified to are of such a nature as not to require any special knowledge or experience in order for the jury to form conclusions from the facts.

965 So.2d 246, 251 (Fla. 4th DCA 2007) (internal citation omitted). Here, the experts' opinions on the viability of self-defense necessarily involved their estimation of the credibility of the competing witnesses, a determination squarely within the wheelhouse of the jury as the finder of fact.

Because the experts testified without objection, we examine appellant's complaints about the testimony of the state's expert, to which there was an objection. We agree that the state's expert was improperly permitted to comment directly and indirectly on the credibility of witnesses.

The state's expert, a law enforcement officer, described the technique for forming an opinion on the self-defense issue:

[W]e have to evaluate what the witnesses say. And we evaluate the facts of the case at this point now because ... we have [Appellant]'s perspective, but we also have multiple witnesses' perspective and we have to kind of filter through all of this.
So how do I evaluate that? How do I evaluate that when we're evaluating use of force incident? We start to look at implicit biases and things like that or biases within people and we look at independent witnesses and we look at what are the facts.
* * *
[I]t's all a part of the totality of the circumstances when we look and we evaluate what the witnesses are telling us. So we have basically like I said, one person that is more leaning towards the decedent, more connection to the decedent, one that has more connections to the Defendant and then we have one that has no connection really to anyone.

The state expert demeaned appellant's credibility concerning whether the victim may have been armed by pointing out "no one says that except for [Appellant]." He bolstered the credibility of a witness favorable to the state by describing her as a "totally independent witness that has no connection to either party.... One witness is independent in my opinion ... it just adds more credence to somebody that does not have a connection." This witness's independence made the location of the victim's hands at a crucial time in the incident "apparent" to the expert. Concerning a witness who did not testify at trial, the expert described what her testimony would have been and then concluded that it was "consistent with everyone except for the Defendant." In rendering an opinion that the use of deadly force was not reasonable, the state expert said "we really have to look at what the witnesses say, every single one of them, except for our Defendant, has the hands to the front."

The Florida Supreme Court has squarely condemned the type of credibility bolstering that occurred here. In Calloway v. State , the Court wrote:

[I]t is erroneous to permit a witness to comment on the credibility of another witness because the jury alone determines the credibility of witnesses. Testimony from a police officer about the credibility of another witness may be particularly harmful because a jury may grant greater credibility to the officer.

210 So.3d 1160, 1189 (Fla. 2017) (internal citations omitted). To the same effect, Tumblin v. State , focused on the abundant case law holding that a law enforcement officer's testimony about another witness's credibility is especially harmful:

"[A]llowing one witness to offer a personal view on the credibility of a fellow witness is an invasion of the province of the jury to determine a witness's credibility." Seibert v. State , 923 So.2d 460, 472 (Fla.2006) (quoting Knowles v. State , 632 So.2d 62, 65-66 (Fla.1993) ). "It is clearly error for one witness to testify as to the credibility of another witness." Acosta v. State , 798 So.2d 809, 810 (Fla. 4th DCA 2001). Moreover, "[i]t is especially harmful for a police witness to give his opinion of a witnesses' [sic] credibility because of the great weight afforded an officer's testimony." Seibert , 923 So.2d at 472 (quoting Page v. State , 733 So.2d 1079, 1081 (Fla. 4th DCA 1999) ); see also Acosta , 798 So.2d at 810. "Police officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy. A jury is inclined to give great weight to their opinions...." Bowles v. State , 381 So.2d 326, 328 (Fla. 5th DCA 1980) ; see also Lee v. State , 873 So.2d 582, 583 (Fla. 3d DCA 2004) (holding police officer's comment that witness was credible and positive in her pretrial lineup identification was error requiring new trial); Olsen v. State , 778 So.2d 422, 423 (Fla. 5th DCA 2001) ("[I]t is considered especially harmful for a police officer to give his or her opinion of a witness' credibility because of the great weight afforded an officer's testimony."); cf. Perez v. State , 595 So.2d 1096, 1097 (Fla. 3d DCA 1992) (stating that improper admission of police officer's testimony to bolster the credibility of a witness cannot be deemed harmless).

29 So.3d 1093, 1101-02 (Fla. 2010).

In a case where so much turned on credibility, the Calloway / Tumblin error here cannot be said to be harmless.

The trial court properly denied appellant's motion for judgment of acquittal of the second degree murder charge

Finally, we reject appellant's argument that the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to prove the ill will required for a conviction of second degree murder.

The crime of second degree murder is defined as "[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree ...." § 782.04(2), Fla. Stat. (2016). "In the context of second-degree murder, an act ... evinces a 'depraved mind' if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and (2) is done from ill will, hatred, spite or an evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life." Wiley v. State , 60 So.3d 588, 591 (Fla. 4th DCA 2011). "However, 'extremely reckless behavior itself is insufficient from which to infer any malice. Moreover ... an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent.' " Id. (quoting Light v. State , 841 So.2d 623, 626 (Fla. 2d DCA 2003) ).

Viewed in the light most favorable to the state, the evidence was sufficient to support a finding that appellant acted with a depraved mind when he shot the victim. Appellant overheard yelling and commotion while on the phone with his girlfriend. He rushed home, sped into the apartment complex, left his car running in the middle of the parking lot, and jumped out to confront the victim, believing that he saw the victim strike his girlfriend when he pulled in. He exchanged angry words with the victim and quickly engaged in a physical "tussle" with him until they were separated. There was time to cool off when the victim retreated to his apartment and appellant went to his car to get his firearm. Appellant's girlfriend tried to keep him from going after the victim, begging him to think of their daughter. When the victim left the apartment, he approached appellant with his hands in front of him and without any weapon. Appellant waited until the victim was within close range before firing all 18 rounds of his gun. Seven of the 18 bullets struck the victim. Five of those seven wounds were located on the victim's back, buttocks, and back of his arm, which indicated that appellant continued to shoot the victim even after he turned away.

We reverse the conviction for second degree murder with a firearm and remand for a new trial.

Conner and Forst, JJ., concur.


text:
    Susan ROMANOFF, Appellant, v. Joy LAZARUS, Appellee.
    No. 4D18-2161
    District Court of Appeal of Florida, Fourth District.
    [March 27, 2019]
    Shlomo Y. Hecht of Shlomo Y. Hecht, P.A., Miramar, for appellant.
    Robert A. Wight of Downey McElroy, P.A., Palm Beach Gardens, for appellee.
   Per Curiam.

Susan Romanoff appeals a non-final order denying her motion to dismiss a personal representative's ("PR") Amended Petition to Recover Estate Assets in an underlying probate action. She argues the trial court erred in denying her motion because she did not waive her right to assert a personal jurisdiction challenge. She acknowledges that she did not raise the defense in her initial motion to dismiss, but she filed a second motion to dismiss wherein she raised the defense prior to a trial court ruling on the jurisdictional issue. We reverse and conclude that she did not waive her right to assert a personal jurisdiction defense.

The procedural posture of this case is as follows. In July 2017, the PR filed a petition to recover assets against Romanoff. On October 26, 2017, Romanoff moved to dismiss the petition, challenging multiple pleading deficiencies. She did not raise a personal jurisdiction challenge. The PR moved to amend the petition.

Romanoff then filed a motion to stay discovery and an amended motion to include a stay based on a personal jurisdiction challenge. The court held a hearing to decide: (1) The PR's motion for leave to file its amended petition; and (2) Romanoff's motion to stay discovery. The court granted the PR's motion for leave to file its amended petition and granted Romanoff's motion to stay discovery pending the motion to dismiss.

On December 6, 2017, Romanoff filed a second motion to dismiss that challenged personal jurisdiction. In support, she filed an affidavit stating she is a New Jersey resident with insufficient Florida contacts.

The PR filed a response, arguing that Romanoff waived the right to assert a personal jurisdiction defense because it was not raised in her initial motion to dismiss. The court held a non-evidentiary hearing on the motion to dismiss. At the hearing, the court clarified that it had not ruled on the personal jurisdiction issue at the last hearing but had deferred ruling until Romanoff's motion to dismiss was heard.

Following arguments of counsel regarding personal jurisdiction, the trial court denied the motion to dismiss by written order. From this order, Romanoff appeals.

"Lack of personal jurisdiction is a waivable defense that must be raised at the 'first opportunity' and before the defendant takes any steps in the proceeding constituting submission to the court's jurisdiction." Snider v. Metcalfe , 157 So.3d 422, 424 (Fla. 4th DCA 2015) (citations omitted); see also Fla. R. Civ. P. 1.140(b) and (h).

A waiver does not occur "if the initial motion to dismiss is amended to include the defense before the motion is heard." Snider , 157 So.3d at 424 (citations omitted).

"Whether a defendant has waived the defense of lack of personal jurisdiction is a pure question of law, which we review de novo." Id. (citation omitted).

In Snider , we affirmed a trial court's order granting a motion to dismiss based on lack of personal jurisdiction where the appellee filed an initial motion to dismiss based on other grounds but, before obtaining a ruling, filed a motion to dismiss based on lack of personal jurisdiction two years later. Id. at 425 ; see also Astra v. Colt Indus. Operating Corp. , 452 So.2d 1031, 1032-33 (Fla. 4th DCA 1984) (reversing the trial court's order denying a motion to dismiss where defendant filed a motion to dismiss attacking the claim on the merits, but then five months later filed an amended motion to assert personal jurisdiction before the initial motion was heard); Cepero v. Bank of N.Y. Mellon Tr. Co., N.A. , 189 So.3d 204, 206 (Fla. 4th DCA 2016) (explaining that if an initial motion to dismiss does not include a claim of lack of jurisdiction, the claim is not waived if the defendant amends the motion to assert the defense prior to a ruling on the initial motion).

Here, the PR contends that at the time Romanoff filed her original motion to dismiss, "the defense of lack of personal jurisdiction existed and was available for Romanoff to assert." The PR maintains that Romellotti v. Hanover Amgro Insurance Co. , 652 So.2d 414 (Fla. 5th DCA 1995), is controlling because of the "identical procedural posture" here.

In Romellotti , the appellant filed a complaint for a declaratory judgment seeking personal injury protection benefits against an insurance company. Id. at 414. The insurance company filed an answer, and the appellant filed an amended complaint. Id. The insurance company then filed a motion to dismiss for lack of personal jurisdiction. Id. The appellant responded to the motion by arguing that the insurance company had waived the defense of personal jurisdiction due to its failure to raise the defense "in its initial responsive pleading or in a motion directed at his initial complaint." Id.

The Fifth District reversed the trial court's order granting the motion to dismiss based on lack of personal jurisdiction. Id. The court determined that the insurance company should have asserted the defense in its answer to the appellant's initial complaint. Id. at 415.

We do not find the procedural posture in Romellotti identical to the posture here, because Romanoff did not file an answer at any point in the litigation. Romanoff did file a motion to stay discovery prior to filing her second motion to dismiss; however, a request for stay is defensive and does not constitute a waiver of a lack of jurisdiction defense. See Faller v. Faller , 51 So.3d 1235, 1237 (Fla. 2d DCA 2011).

Based on Snider , Astra , and Cepero , we find that Romanoff did not waive the defense of lack of personal jurisdiction, because she raised it in the second motion to dismiss filed less than two months after her first motion. More important, the second motion was filed before the trial court ruled on the issue. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

Gross, Taylor and Ciklin, JJ., concur.


author: Taylor, J.

text:
    Noel RODRIGUEZ a/k/a Noel Alexis Rodriguez Nevins, Appellant, v. TEMPERATURE CONCEPTS, INC. and Robert Mark Bordoni, Appellees.
    No. 4D18-2434
    District Court of Appeal of Florida, Fourth District.
    [March 27, 2019]
    Christopher R. Turner of Christopher R. Turner, PLLC, Orlando, for appellant.
    Angelo A. Gasparri of Angelo A. Gasparri, P.A., Boynton Beach, for appellees.
   Taylor, J.

Noel Rodriguez appeals the trial court's entry of final summary judgment in favor of Temperature Concepts, Inc., and Robert Mark Bordoni. The judgment was entered after the trial court reopened the case six months after it had entered an order of dismissal. Because the trial court was without jurisdiction when it reopened the case and entered summary judgment, we reverse the final judgment and remand for reinstatement of the prior order of dismissal. Accordingly, we do not reach the merits of the parties' arguments concerning evidence to support the final summary judgment.

Temperature Concepts and Bordoni brought an action against appellant for civil theft, constructive fraud, conversion, and unjust enrichment. More than 120 days elapsed and appellant still had not been served with the complaint. On March 21, 2016, the trial court sua sponte entered an order directing Temperature Concepts and Bordoni to effect service upon appellant within ten days or to file a motion to show good cause or excusable neglect. The court's order added that failure to comply would result in a dismissal of the case, without further notice or court order. Neither Temperature Concepts nor Bordoni responded to the order. On April 11, 2016, the trial court entered an order dismissing the case. No motion for rehearing was filed.

Four months after the dismissal order, an affidavit of diligent search and inquiry was filed with the court, which noted that there had been one unsuccessful attempt to serve process two weeks after the complaint had been filed.

On October 28, 2016, more than six months after the dismissal order, Temperature Concepts and Bordoni filed a motion to reopen the case to perfect service, alleging that they had made multiple attempts to locate appellant and that they believed he was willfully avoiding service. After a December 2016 hearing, the trial court granted the motion to reopen the case and permitted Temperature Concepts and Bordoni 120 days to serve appellant. On June 13, 2018, the trial court entered final summary judgment in favor of Temperature Concepts and Bordoni.

On appeal, the parties mainly dispute whether the trial court abused its discretion by reopening the case to allow Temperature Concepts and Bordoni to perfect service upon appellant and whether competent substantial evidence supported the final summary judgment. They do not address the trial court's loss of subject matter jurisdiction after it dismissed the case and the dismissal order became final.

Even if "neither party presents an argument regarding the trial court's subject matter jurisdiction, a defect in the trial court's jurisdiction may be raised sua sponte for the first time on appeal." Alekseyev v. U.S. Bank Nat'l Ass'n , 189 So.3d 935, 937 (Fla. 4th DCA 2016).

It is well settled that the trial court loses jurisdiction over a case after it becomes final, with the exception that the trial court has jurisdiction to entertain a timely filed motion under Florida Rule of Civil Procedure 1.540. See Magloire v. Bank of N.Y. , 147 So.3d 594, 596 (Fla. 4th DCA 2014). Outside of a rule 1.540 motion, when an order of dismissal is filed, "[t]he trial court has jurisdiction to entertain a timely motion for rehearing or to revisit the cause on the court's own initiative within the time allowed for a rehearing motion." Id. (quoting Ludovici v. McKiness , 545 So.2d 335, 336 n.3 (Fla. 3d DCA 1989) ). A motion for new trial or rehearing must be served no later than fifteen days after the return of the verdict or the filing of a judgment. Fla. R. Civ. P. 1.530(b) ; Randall v. Griffin , 204 So.3d 965, 967 (Fla. 5th DCA 2016).

In this case, after the trial court entered its dismissal order on April 11, 2016, Temperature Concepts and Bordoni had fifteen days within which to file a motion for rehearing. Alternatively, the court could have, on its own initiative, reconsidered its decision within that same fifteen-day period. Because neither of these actions took place, the order became final and the trial court lost jurisdiction over the case on April 26, 2016. Therefore, the trial court was without jurisdiction when, more than six months later, it entertained and granted the motion to reopen the case to perfect service.

Accordingly, we reverse and remand with directions to vacate the final judgment entered on June 13, 2018 and reinstate the final order of dismissal entered on April 11, 2016.

Reversed and Remanded with directions.

Gerber, C.J., and Kuntz, J., concur.