author: EMAS, J.

text:
    Robert GERING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-558
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Carlos J. Martinez, Public Defender, and Stephen Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   EMAS, J.

INTRODUCTION

Robert Gering appeals from a final judgment adjudicating him a sexually violent predator and ordering his commitment to the Florida Civil Commitment Center, pursuant to sections 394.910 - 394.932, Florida Statutes (2016) ("the Jimmy Ryce Act") and the Florida Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators (Fla. R. Civ. P.-S.V.P. or "Jimmy Ryce Rules"). Gering raises two issues: 1) the trial court was without authority to grant a directed verdict during trial; and 2) even if a directed verdict is authorized in Jimmy Ryce cases, the trial court erred in granting the motion for directed verdict in this case.

We affirm and hold that the Jimmy Ryce Act and Jimmy Ryce Rules authorize either party to move for, and the trial court to grant, a directed verdict in a Jimmy Ryce jury trial. We further hold that the trial court properly directed a verdict in favor of the State in the instant case.

FACTS AND PROCEDURAL HISTORY

In 1986, Gering was charged with, and later convicted of, raping a seventy-year old woman in New York. After serving less than five years in prison, Gering was released from prison, but violated his parole several times. Gering later absconded to Miami Beach where, in 1997, he was charged with and convicted of lewd and lascivious battery and false imprisonment of another elderly woman. Gering was sentenced to twenty years in prison.

On May 1, 2015, the State filed a petition, pursuant to section 394.917, Florida Statutes (2015), to declare Gering a sexually violent predator and sought, following completion of his incarcerative sentence, to have Gering committed to the custody of the Department of Children and Family Services ("DCF"), until his "mental abnormality or personality disorder has so changed that it is safe for [Gering] to be at large." § 394.917(2). The State alleged that Gering suffered from sexual sadism disorder and antisocial personality disorder and that, after evaluation by a licensed psychologist, he is likely to engage in future acts of sexual violence if not confined in a secure facility for long-term control, care and treatment pursuant to Chapter 394, Florida Statutes.

The trial court held a probable cause hearing, found probable cause to believe Gering is a sexually violent predator, and ordered DCF to take Gering into custody following completion of his incarcerative sentence, pending a trial on the State's petition for involuntary civil commitment. Gering requested a jury trial, which was held in February 2016.

At trial, the State presented two witnesses: Dr. Jeffrey Musgrove, a clinical and forensic psychologist, and Dr. Sheila Rapa, also a clinical and forensic psychologist. Both doctors opined that Gering met all of the factors for civil commitment and that he was likely to reoffend in a sexually violent manner if not confined to a secured facility for long-term care, control and treatment.

Following Dr. Rapa's testimony, the State rested and Gering moved for a directed verdict, which the trial court denied. The State also moved for a directed verdict (consistent with its written motion for same), but the court deferred ruling on that motion.

Gering then sought to call Dr. William Samek, a clinical psychologist. The State objected to Dr. Samek testifying as an expert, asserting he was unqualified to offer expert testimony. The trial court agreed and excluded Dr. Samek from offering expert testimony, but did rule that Dr. Samek would be permitted to testify regarding his meetings with Gering and the matters they discussed. Gering's counsel chose not to present any testimony from Dr. Samek and did not proffer the expert testimony it would have elicited from him had he been permitted to testify.

The trial court then heard further argument on the State's motion for directed verdict, and granted the motion, finding there was no conflict in the evidence which could properly be submitted to the jury and that no reasonable juror could find Gering was not a sexually violent predator. The court entered a final judgment of adjudication and civil commitment. This appeal followed.

On appeal, Gering contends that the trial court had no authority to direct a verdict in favor of the State in a Jimmy Ryce trial and alternatively, if the trial court had such authority, it erred in directing a verdict in favor of the State in this case.

ANALYSIS

Does the trial court have the authority to enter a directed verdict in favor of the State in a Jimmy Ryce jury trial?

Because this question requires us to construe a statute and rules of procedure, our standard of review is de novo. State v. Phillips, 119 So.3d 1233 (Fla. 2013).

The Florida Legislature enacted the Jimmy Ryce Act for the purpose of creating "a civil commitment procedure for the long-term care and treatment of sexually violent predators." § 394.910, Fla. Stat. (2016). Under the statute, a "sexually violent predator is any person who 'has been convicted of a sexually violent offense; and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.' " Phillips, 119 So.3d at 1237 (quoting § 394.912(10)(a), (b), Fla. Stat. (2005) ).

Gering's claim appears to be a question of first impression in Florida: Whether a trial court is authorized by statute or rule to direct a verdict in favor of the State in a Jimmy Ryce jury trial. Gering contends that once a Jimmy Ryce jury trial has commenced, the question of whether a respondent is a sexually violent predator must be determined by a verdict of the jury, and the trial court is not authorized to take the case away from the jury and direct a verdict in favor of the State.

We begin by noting that Gering does not contend in this appeal that a commitment proceeding under the Jimmy Ryce Act is criminal in nature; indeed, as the Florida Supreme Court has held on more than one occasion, an involuntary civil commitment proceeding under the Jimmy Ryce Act is civil, not criminal. See, e.g., Westerheide v. State, 831 So.2d 93, 100 (Fla. 2002) (holding that the Jimmy Ryce Act "was clearly intended to create a civil commitment scheme" for those who are determined to be sexually violent predators under the Act); Osborne v. State, 907 So.2d 505 (Fla. 2005) ; Mitchell v. State, 911 So.2d 1211, 1215 (Fla. 2005) (noting "it is now settled law that the statutes authorizing civil commitment of sexually violent predators (i.e., the Jimmy Ryce Act), are civil").

Although Jimmy Ryce proceedings are civil in nature, we acknowledge that in light of the liberty interests implicated by such proceedings and the correlative due process concerns, certain procedures have been established and rights afforded which in some respects mirror procedures established and rights afforded in criminal prosecutions. See Mitchell, 911 So.2d at 1216 (reaffirming that Jimmy Ryce proceedings are civil, but observing that "[t]he liberty interests affected in Ryce Act proceedings are not dissimilar to the liberty interests involved in criminal proceedings, although there are obviously critical distinctions").

In a Jimmy Ryce proceeding, a respondent is afforded certain rights analogous in some respect to criminal proceedings. For example: the right to appointed counsel if he or she is indigent, see Fla. R. Civ. P.-S.V.P. 4.400(a); the right to self-representation following a hearing held pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), see Fla. R. Civ. P.-S.V.P. 4.400(b); the right to an adversarial probable cause hearing under certain circumstances, see Fla. R. Civ. P.-S.V.P. 4.220 and § 394.915, Fla. Stat. (2016) ; the right to seek habeas corpus relief based upon a claim of ineffective assistance of counsel, see Fla. R. Civ. P.-S.V.P. 4.460; § 394.9215, Fla. Stat. (2016). Additionally, the state attorney's office is charged with the responsibility of filing the petition seeking involuntary commitment under the Jimmy Ryce Act and for prosecuting such petition. See generally §§ 394.9125 - 394.914, Fla. Stat. (2016).

Nevertheless, there are also critical procedural differences between a Jimmy Ryce proceeding and a criminal prosecution. For example: A Jimmy Ryce proceeding is initiated by a petition, and respondent is required to respond by filing an answer, including, if appropriate, affirmative defenses, see Fla. R. Civ. P.-S.V.P. 4.100(a); further, "[a]ll pleadings shall comply with the rules governing pleadings in other civil actions" see Fla. R. Civ. P.-S.V.P. 4.100(a); the discovery provisions governing a Jimmy Ryce proceeding virtually mirror the discovery provisions in civil actions, see Fla. R. Civ. P.-S.V.P. 4.280-4.310, 4.390; petitioner is entitled to take the deposition of the respondent in a Jimmy Ryce proceeding, see Fla. R. Civ. P.-S.V.P. 4.310(a); a jury trial in a Jimmy Ryce proceeding must be demanded in writing or is deemed waived, see Fla. R. Civ. P.-S.V.P. 4.430(b), whereas a jury trial in a criminal proceeding is granted as a matter of right unless waived by the defendant, see Fla. R. Crim. P. 3.260 (providing "A defendant may in writing waive a jury trial with the consent of the state"); the burden of proof in a Jimmy Ryce proceeding is "clear and convincing evidence" rather than "beyond a reasonable doubt," see § 394.917(1), Fla. Stat. (2016) ; Fla. R. Civ. P.-S.V.P. 4.240(c); the State can appeal a jury verdict in favor of the respondent in a Jimmy Ryce proceeding. State v. Bryant, 901 So.2d 381 (Fla. 3d DCA 2005).

Gering contends that the State has no right to move for a directed verdict and the trial court has no authority to direct a verdict in favor of the State. For this proposition, he relies on one Jimmy Ryce rule and one statutory provision of the Jimmy Ryce Act:

Rule 4.110, Fla. R. Civ. P. - S.V.P. is entitled "Motions" and provides:
(a) Motion for Summary Judgment. After the pleadings and discovery are closed, but within such time as not to delay the trial, any party may move for summary judgment. Summary judgment practice shall be governed by Fla. R. Civ. P. 1.510.
(b) Motions to Dismiss. Motions directed to the sufficiency of the petition shall be contained in the answer as an affirmative defense.
(c) Motion for More Definite Statement. A respondent may file a motion for a more definite statement which shall be considered a motion for a statement of particulars in response to the original petition. The motion shall disclose the defects in the petition.

Gering contends that rule 4.110 contains the only motions which may be filed in a Jimmy Ryce proceeding and, because rule 4.110 does not include a motion for directed verdict, no such motion is authorized.

In further support, Gering relies upon section 394.917(1), which provides in pertinent part: "The court or jury shall determine by clear and convincing evidence whether the person is a sexually violent predator. If the determination is made by a jury, the verdict must be unanimous." Gering urges us to construe the statutory language of section 394.917(1) to prohibit a motion for directed verdict, because that provision requires that "[t]he court or jury shall determine ... whether the person is a sexually violent predator." (Emphasis added.) This language, Gering posits, evidences a clear intent by the Legislature that, where the trial is by jury, the determination must be reached by a verdict of the jury and cannot be made by way of a directed verdict.

However, Gering's argument ignores a fact of singular import: the Jimmy Ryce Act and the Jimmy Ryce Rules each expressly incorporates the Florida Rules of Civil Procedure:

Rule 4.440(a)(1) (entitled: "Rules of Procedure and Evidence") provides:
(a) In all commitment proceedings initiated under part V, chapter 394, Florida Statutes and this rule, the following applies:
(1) The Florida Rules of Civil Procedure and Florida Rules of Judicial Administration apply unless otherwise superseded by these rules.

(Emphasis added.)

Similarly, section 394.9155(1) provides:

The Florida Rules of Civil Procedure apply unless otherwise specified in this part.

(Emphasis added.)

In light of this express incorporation by the Legislature and the Florida Supreme Court, Florida Rule of Civil Procedure 1.480(a), governing motion for directed verdict, plainly applies to a Jimmy Ryce proceeding "unless otherwise superseded by" the Jimmy Ryce rules. See rule 4.440(a)(1). Gering cannot point to language in any provision of the Jimmy Ryce rules that supersedes or otherwise prohibits application of rule 1.480(a). Gering's reliance on rule 4.110 for this proposition falls far short, as that rule merely sets forth a list of three pretrial motions (motion for summary judgment, motion to dismiss, motion for more definite statement) which are available in a Jimmy Ryce proceeding. Nothing in the language of rule 4.110 indicates it supersedes the express incorporation of the rules of civil procedure, nor does it indicate any intent that the three pretrial motions listed in rule 4.110 constitute the only authorized motions that can be filed in a Jimmy Ryce proceeding. Surely if the Florida Supreme Court intended rule 4.110 to represent an exhaustive or exclusive list of authorized motions, it would have said just that. Stated another way, the relevant question is not whether rule 4.110 permits motions for a directed verdict; the relevant question is whether, in light of the incorporation of the rules of civil procedure, rule 4.110 (or any other rule) prohibits a motion for directed verdict. Demonstrably, the answer is no.

Gering's reliance upon the language of section 394.917(1) is equally unavailing; read in context, that statute merely sets forth the process for a Jimmy Ryce trial by judge or jury and a final determination of whether a respondent is a sexually violent predator. Nothing in the language of that subsection indicates that motions for directed verdict are prohibited or unauthorized. Like the Florida Supreme Court, had the Legislature intended to exempt motions for directed verdict from its incorporation of the rules of civil procedure, it would have said so. We find nothing in the provisions of the Jimmy Ryce Act or the Jimmy Ryce Rules to indicate the Florida Legislature or the Florida Supreme Court intended to prohibit or exclude such motions. See also Osborne v. State, 907 So.2d at 507 (concluding that the State, in a Jimmy Ryce proceeding, possesses the same right to appeal as any other party in a civil proceeding, even though the right to appeal is not expressly provided for in the Jimmy Ryce Act).

In sum, we find no support for Gering's assertion that the State is without authority to seek, and the trial court is without authority to grant, a motion for directed verdict in a Jimmy Ryce proceeding. We further note that, if we were to adopt Gering's position and conclude that rule 4.110 contains the exclusive list of authorized motions, the following motions (which are contained in the rules of civil procedure but are not expressly duplicated in the Jimmy Ryce rules) would be prohibited in a Jimmy Ryce proceeding: motion to amend petition; motion to amend answer to petition; motion for voluntary dismissal (by the State); motion for new trial; motion for rehearing; motion for relief from judgment.

In addition, Gering's position would necessarily preclude both the State and the respondent from moving for a directed verdict in a Jimmy Rice jury trial. But this court, as well as our sister courts, have implicitly recognized a respondent's right to seek a directed verdict at the conclusion of a Jimmy Ryce trial. For example, in Brown v. State, 940 So.2d 609, 610 (Fla. 4th DCA 2006), the Fourth District observed:

In a civil commitment proceeding filed under the Jimmy Ryce Act, the Florida Rules of Civil Procedure generally apply. See § 394.9155(1), Fla. Stat. (2005) ("The Florida Rules of Civil Procedure apply unless otherwise specified in this part."). Florida Rule of Civil Procedure 1.480 outlines the procedures governing a motion for directed verdict. Rule 1.480(b) provides, in pertinent part:
When a motion for a directed verdict made at the close of all of the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict.

In Murray v. State, 27 So.3d 781 (Fla. 3d DCA 2010) respondent was adjudicated a sexually violent predator following a Jimmy Ryce jury trial. On appeal from that judgment, appellant contended that the trial court erred in denying his motion for directed verdict. We affirmed because appellant had failed to comply with rule 1.480(b) by renewing his motion for directed verdict, thus failing to preserve this claim. In doing so, we implicitly acknowledged that a motion for directed verdict, as provided by rule 1.480, was incorporated into the Jimmy Ryce Act and Jimmy Ryce Rules, citing approvingly to Brown for this proposition. See also Roosevelt v. State, 42 So.3d 293 (Fla. 3d DCA 2010) ; Stengel v. State, 248 So.3d 127, 2018 WL 2049655 (Fla. 4th DCA May 2, 2018) ; Hartzog v. State, 133 So.3d 570 (Fla. 1st DCA 2014) ; Shaw v. State, 29 So.3d 1161, 1161 (Fla. 1st DCA 2010) (noting that Florida Rule of Civil Procedure 1.480 is the proper vehicle for seeking a directed verdict in a Jimmy Ryce proceeding); State v. Shaw, 929 So.2d 1145 (Fla. 5th DCA 2006).

CONCLUSION

As the Florida Supreme Court has determined, a Jimmy Ryce proceeding is civil in nature. And while aspects of the Jimmy Ryce Act and the accompanying procedural rules provide certain safeguards which mirror criminal procedures to comport with notions of due process in light of the liberty interests at stake, these additional safeguards do not transform a Jimmy Ryce proceeding from civil to criminal.

Given that the Jimmy Ryce Act and the Jimmy Ryce Rules expressly incorporate the rules of civil procedure (by which either party may seek a directed verdict), and the fact that a motion for directed verdict under the rules of civil procedure is not prohibited or otherwise superseded by any provision of the Jimmy Ryce Act or the Jimmy Ryce Rules, we hold that the trial court has the authority, upon proper motion and showing, to enter a directed verdict in favor of the State or respondent. We conclude that the trial court, in the instant case, properly directed a verdict in favor of the State.

Affirmed.

      On appeal, Gering does not challenge the trial court's determination that Dr. Samek was not qualified to offer expert testimony.

      Because the instant Jimmy Ryce case proceeded by jury trial, we confine our analysis and discussion to directed verdicts under Florida Rule of Civil Procedure 1.480(b). We note, however, that our analysis would appear to be equally applicable to a Jimmy Ryce case that proceeded to a bench trial, in which event rule 1.420(b) (involuntary dismissal) would be invoked.

      Analogously, other proceedings incorporate similar due process protections to protect important liberty interests, but are nonetheless considered civil, rather than criminal in nature. See, e.g., J.B. v. Florida Dep't of Children and Families, 170 So.3d 780, 785 (Fla. 2015) (recognizing certain due process procedures rights must be afforded in termination of parental rights cases (e.g., right to appointed counsel for indigent parents), and establishing a mechanism for bringing a claim of ineffective assistance of counsel in such cases); N.S.H. v. Florida Dep't of Children and Family Servs., 843 So.2d 898, 902 (Fla. 2003) (observing; "termination of parental rights 'cases are not criminal in nature. They are civil proceedings which happen to affect the substantial interests of the parents and children involved' ") (quoting Ostrum v. Dept. of Health and Rehab. Servs. of Fla., 663 So.2d 1359, 1361 (Fla. 4th DCA 1995) ).

      Rule 1.480(a) provides:
      (a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall state the specific grounds therefor. The order directing a verdict is effective without any assent of the jury.

      Indeed, one can find numerous other provisions within the Jimmy Ryce rules authorizing motions beyond those provided in rule 4.110. See, e.g., rule 4.260 (motion for continuance of trial); rule 4.280(c) (motion for protective order); rule 4.310(d) (motion to terminate or limit deposition); rule 4.380 (motion for order compelling discovery); rule 4.431 (motion for interview of juror).

      Gering argues, in essence, that he has a right to a verdict in a jury trial which cannot be short-circuited by a motion for a directed verdict. This is, however, irreconcilable with the fact that rule 4.110(a) expressly authorizes a motion for summary judgment, which may be entered on behalf of the State or the respondent. It is difficult to see how the Jimmy Ryce Act and Jimmy Ryce Rules can be read to require that, once commenced, a jury trial must proceed to verdict (unimpeded by a directed verdict) when the trial court has the authority to enter summary judgment in favor of the State, precluding a trial altogether.

      We find no merit in appellant's remaining argument that the trial court erred in entering a directed verdict in favor of the State. Viewing the evidence, and all reasonable inferences, in a light most favorable to the non-moving party, there was simply "no reasonable evidence upon which the jury could legally predicate a verdict in favor of the non-moving party." appellant. Tylinski v. Klein Automotive, Inc., 90 So.3d 870, 873 (Fla. 3d DCA 2012). See also Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726, 729 (1937) (observing that "the court should never direct a verdict for one party 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.")


source: Caselaw Access Project

author: LINDSEY, J.

license: Public Domain

text:
    Martinez WATTS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-1377
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Martinez Watts, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before ROTHENBERG, C.J., and SUAREZ, and LINDSEY, JJ.
   LINDSEY, J.

We deny the petition for writ of mandamus seeking to compel the trial court to conduct an evidentiary hearing on a post-conviction motion filed by Martinez Watts pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily denied Watts's motion on May 17, 2016. We have previously affirmed this same order denying Watts's Rule 3.850 motion. See Watts v. State, 206 So.3d 715 (Fla. 3d DCA 2016), mandamus dismissed, 2017 WL 822362 (Fla. Mar. 2, 2017) ; see also Watts v. State, 233 So.3d 1107 (Fla. 3d DCA), reh'g denied, 233 So.3d 1109 (Fla. 3d DCA 2017).

Aside from the fact that this Court has adjudicated prior petitions seeking the same relief, the instant petition must be denied. See Martin v. Marko, 564 So.2d 518, 519 (Fla. 4th DCA 1990) (holding that a writ of mandamus is permissible "only to command an inferior court to perform an act involving no exercise of discretion"); see also Bailem v. State, 984 So.2d 604, 606 (Fla. 3d DCA 2008) (denying the petition for writ of mandamus seeking to compel the trial court to conduct an evidentiary hearing on defendant's motion for post-conviction relief after the trial court had summarily denied the motion).

Mandamus relief is only available to compel a lower court to perform a ministerial duty. Bailem, 984 So.2d at 606 (citation omitted). Whether to grant an evidentiary hearing before ruling on a post-conviction motion is not a ministerial duty. Rather, a trial court's "decision of whether to grant an evidentiary hearing on a [post-conviction] motion is ultimately based on the written materials before the court, and the ruling of the postconviction trial court on that issue is tantamount to a pure question of law subject to de novo review." Anderson v. State, 220 So.3d 1133, 1142 (Fla. 2017) (quoting Troy v. State, 57 So.3d 828, 834 (Fla. 2011) (emphasis added). Thus, the fact that the trial court ruled on Watts' motion for postconviction relief without an evidentiary hearing is not the proper subject of a petition for mandamus. Further, Watts had an adequate remedy of which he has availed himself in seeking review of the trial court's summary denial by way of a direct appeal.

Petition denied.


text:
    NATIONSTAR MORTGAGE LLC, etc., Appellant, v. Felicita ROQUE, et al., Appellees.
    No. 3D18-0613
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018.
    Albertelli Law, and Teodora Siderova and Shannon T. Sinai (Tampa), for appellant.
    Jose M. Cervera, for appellees Ysabel Ynoa De De Leon and CUV087 Corp.
    Before ROTHENBERG, C.J., and SUAREZ, and LINDSEY, JJ.
    ON CONFESSION OF ERROR
   LINDSEY, J.

Nationstar Mortgage LLC DBA Champion Mortgage Company ("Nationstar") appeals the trial court's Order Denying [Nationstar's] Objection to Sale and Motion to Vacate November 8, 2017 Foreclosure Sale and Certificate of Sale, To Prevent the Clerk From Issuing Certificate of Title, and To Return the Third Party's Sale Proceeds ("Objection to Sale and Motion to Vacate") entered on January 29, 2018 and the trial court's Order Denying [Nationstar's] Motion for Rehearing ("Motion for Rehearing") entered on March 2, 2018.

The Final Judgment of Foreclosure was entered by the trial court on October 20, 2016 and provided that Felicita Roque (the "Borrower")'s right of redemption "terminated upon issuance of the Certificate of Sale." On November 7, 2017, the trial court denied Nationstar's emergency motion to cancel the November 8, 2017 foreclosure sale. The foreclosure sale proceeded on November 8, 2017, and third party purchaser Ysabel Ynoa De De Leon and CUV087 Corp. ("Appellee-Purchasers") submitted the highest bid. The Certificate of Sale was issued on November 14, 2017. Nationstar filed the Objection to Sale and Motion to Vacate on November 20, 2017, objecting to the foreclosure sale because timely reinstatement funds necessary to cure the default were received on November 8, 2017-six days before the Certificate of Sale was issued.

After the trial court denied the Objection to Sale and Motion to Vacate on January 29, 2018, Nationstar filed the Motion for Rehearing and again reiterated that it had received the requisite reinstatement funds prior to the Certificate of Sale being issued. The trial court subsequently denied the Motion for Rehearing and Nationstar filed a timely Notice of Appeal on March 22, 2018. The Appellee-Purchasers filed a Confession of Error on June 29, 2018, conceding that the trial court erred in denying Nationstar's Objection to Sale and Motion to Vacate because the Borrower properly exercised her right of redemption "within the time, manner, and procedure set forth" in paragraph seven of the Final Judgment of Foreclosure and in compliance with section 45.0315, Florida Statutes (2016). We agree.

Florida courts have consistently held that section 45.0315 affords the trial court authority to set a time in the final judgment by which the mortgagor must exercise their right of redemption or forfeit that right. See Emanuel, 655 So.2d at 249 ("[S]ection 45.0315, Florida Statutes (1993), explicitly empowers a court in the final judgment of foreclosure to fix the time in which the mortgagor may redeem"); see also Saidi v. Wasko, 687 So.2d 10, 11 (Fla. 5th DCA 1996) ("This section empowers a court to fix a time in the final judgment, before which the mortgagor must exercise his right of redemption or forfeit that right.").

Here, it is undisputed that the Borrower reinstated and cured the default on the subject loan on the same day as the foreclosure sale, which was six days prior to the issuance of the Certificate of Sale. Accordingly, the Borrower properly exercised her right of redemption as outlined in the Final Judgment of Foreclosure. Based upon the record before us and the confession of error filed by Appellee-Purchasers, we reverse the trial court's order denying Nationstar's Objection to Sale and Motion to Vacate and the trial court's order denying Nationstar's Motion for Rehearing. We further remand with directions that the trial court enter an order consistent with this opinion and granting Nationstar's Objection to Sale and Motion to Vacate.

REVERSED AND REMANDED.

      "In 1993, the legislature enacted Florida Statutes section 45.0315, codifying the mortgagor's right of redemption and specifying that the mortgagor may cure the indebtedness and prevent a foreclosure sale at 'any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure.' The Third District observed that 'the common law rule announced in Allstate v. Strasser, with respect to redemption , has been displaced by the enactment of section 45.0315, Florida Statutes, which exclusively governs the time, manner, and procedure for the claimed exercise of redemptive rights.' " Straub v. Wells Fargo Bank, N.A., 182 So.3d 878, 881 (Fla. 4th DCA 2016) (first quoting § 45.0315, Fla. Stat. (2014) ; and then quoting Emanuel v. Bankers Trust Co., 655 So.2d 247, 250 (Fla. 3d DCA 1995) (emphasis in original) ).


author: LAGOA, J.

text:
    Thomas BROWN, Appellant, v. BNB INVESTMENT HOLDINGS, LLC, Appellee.
    No. 3D17-1993
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Coffey Burlington, P.L., and David A. Freedman, Miami and Frances E. Blake, for appellant.
    Albert E. Acuña, P.A., and Albert E. Acuña, Miami, for appellee.
    Before LAGOA, SCALES, and LUCK, JJ.
   LAGOA, J.

Thomas Brown ("Brown"), a non-Florida resident, appeals from the trial court's order dismissing BNB Investment Holdings, LLC's ("BNB") Amended Verified Complaint (the "Amended Complaint") for lack of personal jurisdiction. Specifically, Brown appeals that portion of the order which, after dismissing the Amended Complaint for lack of personal jurisdiction, directed him to respond to BNB's second amended complaint within fifteen days of its filing without requiring BNB to effectuate new service of process upon Brown. For the reasons discussed below, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

On October 16, 2013, BNB filed its Amended Complaint against several defendants including Brown. In May 2014, BNB obtained a default judgment against Brown. After his bank account was garnished, Brown moved to vacate the default judgment on the basis that he had never been served with process of service. At the conclusion of a January 17, 2017, evidentiary hearing, where Brown personally appeared and testified, the trial court vacated the default judgment for lack of service of the Amended Complaint on Brown. At the conclusion of that hearing, BNB served Brown with the Amended Complaint while Brown was at the courthouse.

On February 6, 2017, Brown moved to quash BNB's service of process and to dismiss the Amended Complaint for lack of personal jurisdiction. In response to Brown's motion to quash, BNB purportedly effectuated substitute service of process on April 29, 2017, by serving the Amended Complaint on Kevin Hsu ("Hsu"), an individual residing at a San Francisco address associated with Brown.

On May 19, 2017, Brown filed an amended motion to dismiss pursuant to Florida Rule of Civil Procedure 1.140(b)(2), arguing that dismissal was proper because the Amended Complaint: (1) alleged no jurisdictional facts satisfying Florida's long-arm statute; (2) failed to track the language in the long-arm statute; and (3) failed to allege minimum contacts by Brown that satisfied constitutional due process requirements. On July 12, 2017, the trial court held a hearing on Brown's motion to dismiss for lack of personal jurisdiction and orally granted Brown's motion to dismiss. The trial court allowed BNB thirty days to amend its Amended Complaint to remedy the jurisdictional deficiencies and further ordered Brown to file a responsive pleading to that second amended complaint within fifteen days after its filing.

Brown did not contemporaneously object to the trial court's oral ruling at the hearing, but on July 19, 2017, prior to the trial court entering a written order, Brown sent a letter to the trial court, along with a proposed written order, stating that because the court granted Brown's motion to dismiss for lack of personal jurisdiction, it seemed "contradictory for Mr. Brown to be required to file a responsive pleading until he has been properly served." Brown's proposed written order to the trial court, therefore, omitted the requirement that Brown file a responsive pleading within fifteen days of BNB's second amended complaint. In response, BNB sent a letter to the trial court arguing that Brown's motion to dismiss only attacked the sufficiency of its Amended Complaint and that the trial court did not substantively discuss or rule upon whether the service upon Brown was proper.

On August 3, 2017, the successor trial court judge entered BNB's proposed written order requiring Brown to file a response to BNB's second amended complaint. On August 10, 2017, BNB filed its Second Amended Verified Complaint (the "Second Amended Complaint"). BNB sent a copy of the Second Amended Complaint to Brown accompanied with a request for Brown to waive personal service, which Brown declined. Brown timely appealed the trial court's order.

II. ANALYSIS

On appeal, Brown contends that after the trial court dismissed BNB's Complaint for lack of personal jurisdiction, the trial court erred by ordering him to respond to BNB's Second Amended Complaint within fifteen days after its filing without re-service of process. We agree, and we further note that BNB-although not in a Confession of Error-in its Answer Brief "very candidly states that Appellant's legal position is correct ; generally, when a complaint is dismissed for failure to comply with Florida's long-arm statute service of process must be effectuated once again on the corresponding defendant." (emphasis added).

In determining whether a trial court may exercise personal jurisdiction over a non-Florida resident, the court must make two inquiries: (1) whether a " 'complaint alleges sufficient jurisdictional facts' " to satisfy Florida's long-arm statute, and (2) whether sufficient "minimum contacts" are demonstrated to satisfy due process requirements. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989) (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA 1987) ). Additionally, a trial court "does not acquire jurisdiction over a defendant unless the defendant has been served with process as prescribed by law." Synchron, Inc. v. Kogan, 757 So.2d 564, 565 (Fla. 2d DCA 2000).

If a case is dismissed for lack of personal jurisdiction under the long-arm statute, any prior service of process is void. Dimino v. Farina, 572 So.2d 552, 554 (Fla. 4th DCA 1990), disapproved on other grounds by Babcock v. Whatmore, 707 So.2d 702, 705 n.7 (Fla. 1998). In Dimino, the plaintiff filed an amended complaint and effected service of process on the defendant under the long-arm statute. Id. at 553. After the defendant successfully moved to dismiss the case for lack of personal jurisdiction, the plaintiff filed a second amended complaint and mailed a copy to the defendant's counsel. Id. at 553-54. In response, the defendant filed a motion to dismiss for lack of personal jurisdiction and a motion to quash service of process. The trial court denied both the motion to dismiss and the motion to quash. Id. at 554.

On appeal, the plaintiff in Dimino contended that because the original service of process was not quashed when the trial court dismissed the complaint, the service remained valid. Id. The Fourth District Court of Appeal, however, held that when the trial court granted the defendant's motion to dismiss for lack of personal jurisdiction, the trial "court effectively voided the original service of process," and therefore, the plaintiff "was required to re-serve [the defendant] with the second amended complaint." Id. Specifically, the Fourth District noted that "Florida courts have consistently held that the '[f]ailure to adequately allege in the complaint a basis for long-arm jurisdiction under 48.183 voids any service of process.' " Id. (alteration in original) (quoting Mouzon v. Mouzon, 458 So.2d 381, 383 (Fla. 5th DCA 1984) ); see also Wrenn v. McDonnell, 671 So.2d 884, 885 (Fla. 5th DCA 1996) (vacating final judgment of paternity for lack of jurisdiction and concluding that " '[w]ithout a basis for jurisdiction appearing in the complaint ..., service of long-arm process is void.' " (quoting Pluess-Staufer Indus. v. Rollason Eng'g & Mfg., Inc., 597 So.2d 957, 958 (Fla. 5th DCA 1992) ) ).

In the instant case, when the trial court ruled that it lacked personal jurisdiction over Brown and granted Brown's motion to dismiss, the trial court effectively voided the service of process and therefore could not simultaneously order Brown to respond to BNB's Second Amended Complaint within fifteen days after its filing without requiring BNB to re-serve Brown. We thus find that the trial court's order dismissing BNB's Amended Complaint for lack of personal jurisdiction voided the April 29, 2017, service purportedly effectuated upon Brown via substitute service on Hsu, see Synchron, 757 So.2d at 564, and that the trial court therefore erred in requiring Brown to file a response to BNB's Second Amended Complaint without requiring BNB to effectuate new service of process on Brown.

III. CONCLUSION

Based on the foregoing, we find that the trial court erred when, after finding that it lacked personal jurisdiction over Brown, it nevertheless ordered Brown to file a response to the Second Amended Complaint without requiring BNB to effectuate service of process on Brown with that amended pleading. We therefore reverse that portion of the trial court's order. BNB must effectuate service of process on Brown with the Second Amended Complaint. If service is effectuated, Brown may respond in any manner authorized by the Florida Rules of Civil Procedure within the permitted time period.

Reversed in part and remanded for further proceedings.

      The trial court judge presiding at the hearing on Brown's motion to dismiss for lack of personal jurisdiction was Judge Cardonne. Prior to orally ruling on the motion to dismiss, Judge Cardonne advised the parties she was retiring. The case was subsequently transferred to Judge Murphy, who entered the written order on appeal before this Court. Judge Murphy's written order is based on Judge Cardonne's oral ruling.

      Although Brown's motion to quash service of process was also before the trial court and noticed for hearing, the trial court decided at the hearing not to proceed on that motion and ruled solely on the motion to dismiss for lack of personal jurisdiction.

      A review of the record confirms that Brown's amended motion to dismiss solely raised lack of personal jurisdiction pursuant to Florida Rule of Civil Procedure 1.140(b)(2). BNB's letter to the trial court appears to confuse this type of motion with a motion to dismiss for failure to state a cause of action pursuant to Rule 1.1.40(b)(6). No such motion was pending before the trial court.

      The written order entered by the successor judge differs from the trial court's oral ruling by requiring a "response" rather than a "responsive pleading."

      Notwithstanding the concession, BNB argues that Brown waived this issue by failing to object at the conclusion of the hearing. We find this argument without merit as Brown raised the issue with the trial court prior the entry of the written order, and BNB, in its own letter to the trial court, challenged Brown's argument to the trial court on this issue.

      BNB further argues that this Court should dismiss Brown's appeal as moot because BNB effectuated service of process upon Brown in Ira, Texas, by way of substitute service on Brown's mother during the pendency of this appeal. We find BNB's argument without merit. An issue on appeal becomes moot "where, by a change of circumstances prior to the appellate decision, an intervening event makes it impossible for the court to grant a party any effectual relief." Montgomery v. Dep't of Health & Rehab. Servs., 468 So.2d 1014, 1016 (Fla. 1st DCA 1985). Here, the issue on appeal is not moot, as the trial court's order improperly required Brown to file a response after finding that the trial court lacked personal jurisdiction over Brown. By granting the motion to dismiss, the April 29, 2017, service of process in San Francisco was void, and Brown is under no obligation to comply with that aspect of the trial court's order purportedly requiring a response to the Second Amended Complaint within fifteen days of its filing.


author: SUAREZ, J.

text:
    Samuel LOWRY, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-1242
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Samuel Lowry, in proper person
    Pamela Jo Bondi, Attorney General, for respondent.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   SUAREZ, J.

Samuel Dorsey Lowry seeks a petition for habeas corpus based on ineffective assistance of appellate counsel in his prior appeal from judgment of conviction and sentence. See Lowry v. State, 191 So.3d 472 (Fla. 3d DCA 2016). Lowry's direct appeal became final on May 19, 2016. His current petition was put into the correctional facility mailing on June 11, 2018. Florida Rule of Appellate Procedure 9.141(c)(4)(B) states that "[a] petition alleging ineffective assistance of appellate counsel shall not be filed more than 2 years after the conviction becomes final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel."

This petition was filed more than two years after the conviction became final, and Lowry makes no allegation that his counsel affirmatively misled him. We dismiss this petition for habeas corpus as untimely filed.

Dismissed.

      Additionally there is no substantive merit to this petition, as Lowry simply restates issues raised and disposed on direct appeal.


text:
    Frederick Tyrone DIXON, etc., Appellant, v. Cheryl Dixon BELLAMY, Appellee.
    No. 3D17-2100
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018.
    Holland & Knight LLP, and Frances G. de la Guardia, Christopher N. Bellows, and Lee P. Teichner, Miami, for appellant.
    Hoffman & Hoffman, P.A., and Teresa A. Hoffman and Sean Langton ; Boldt Law Firm, and Kimberly Boldt, Mario R. Giommoni, Cody L. Frank, and Ryan C. Tyler (Boca Raton), for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   SUAREZ, J.

Frederick Tyrone Dixon, as the personal representative of the decedent Fred Dixon ("Personal Representative"), appeals from the trial court's order granting Cheryl Dixon Bellamy's Motion for Re-Hearing to determine her right to establish paternity. We reverse.

Fred Dixon ("Decedent") died intestate on May 26, 2016. A Petition for Administration was filed thereafter in probate court to administer the estate, along with an affidavit of heirs. The affidavit of heirs showed that Frederick Tyrone Dixon was the only child of the decedent. Subsequently, Frederick Tyrone Dixon was appointed as the Personal Representative of the Decedent's estate.

On June 24, 2016, Cheryl Dixon Bellamy ("Bellamy") filed an action in probate court to determine her heirship, in which she claimed to be a biological daughter of the Decedent and that she was a beneficiary of the Decedent's estate. Bellamy was born on November 4, 1959 to Mazie Corean Jackson Billings out of wedlock. Bellamy's birth certificate does not identify her father, but she was given the last name "Dixon" at birth. Her mother allegedly had an exclusive sexual relationship with the Decedent at the time of her birth. According to Bellamy, the Decedent openly acknowledged her as his daughter by expressing an interest in adopting her and paying for her college education. Further, an Avuncular DNA Test performed in 2017 produced a 99.8% likelihood that the Decedent's brother is Bellamy's uncle.

In response, the Personal Representative of the Decedent's estate filed a Motion for Summary Judgement, contending that Bellamy's action to establish herself as the Decedent's heir was barred by the statute of limitations. The statute of limitations under section 95.11, Florida Statutes required Bellamy to have brought the action within four years upon reaching the age of maturity- that is, when she was eighteen years of age. The trial court initially granted the Personal Representative's Motion for Summary Judgment finding Rose v. Sonson, 208 So.3d 136 (Fla. 3d DCA 2016) and In re Estate of Smith, 685 So.2d 1206 (Fla. 1996) dispositive of the issue.

Thereafter, Bellamy moved for rehearing on the basis that Rose was wrongly decided and that the rules of statutory construction allowed her claim to determine heirship because the Florida Legislature carved out a new cause of action in the 2009 amendment to section 732.108(2)(b), Florida Statutes. The trial court granted this motion, vacated its prior order and denied the Personal Representative's Motion for Summary Judgment.

We disagree with the trial court's conclusion that Rose was wrongly decided. The Rose court held that the Florida Legislature did not make the amendment to section 732.108(2)(b) retroactive in its application. In Bellamy's case it is equally certain that applying the 2009 amendment to that provision would not have affected the outcome. As Rose provides,

This is so because by the time the 2009 amendment to section 732.108(2)(b) took effect to eliminate the limitations bar previously imposed by section 95.11(3)(b), Rose's claim had long since expired, and as noted in Smith , "[o]nce a claim has been extinguished by the applicable statute of limitations, the claim cannot be revived because a constitutionally protected property right to be free from the claim has vested in the defendant." Id. at 1210 ; see also Wiley v. Roof, 641 So.2d 66, 68 (Fla. 1994) ("Once the defense of the statute of limitations has accrued, it is protected as a property interest just as the plaintiff's right to commence an action is a valid and protected property interest.... Florida's statute of limitations, section 95.011, bars all action unless commenced within designated times.... Once an action is barred, a property right to be free from a claim has accrued.").
Thus, while section 732.108(2) (b) as amended in 2009 provided relief to similarly situated individuals with existing causes of action by eliminating the four year statute of limitations imposed by section 95.11(3)(b) on paternity determinations in probate proceedings to determine intestate succession going forward, this amendment provides no relief to those such as Rose whose claims had already expired by the time the amendment became law.

Rose, 208 So.3d at 139-40. Accordingly, as there is no explicit statutory language in the 2009 amendment to section 732.108(2)(b) to indicate that the Florida Legislature intended to create a new and separate cause of action that would not be subject to the statute of limitations, Bellamy's right to establish paternity was extinguished in 1981-four years after she reached the age of maturity.

Accordingly, we reverse the order granting Bellamy's Motion for Rehearing and vacating the Personal Representative's Motion for Summary Judgment, and remand for entry of judgment in favor of the Personal Representative Dixon.


author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. Ronald GRATE and Charles Morton, Appellees.
    Case No. 5D18-683
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca R. McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellees.
   ORFINGER, J.

The State of Florida appeals the circuit court's order denying its petition for a writ of quo warranto, challenging the Office of Public Defender's authority to intervene in civil traffic infraction cases. We treat this matter as a direct appeal, reverse the circuit court's order, and remand with instructions to grant the petition.

Ronald Grate and Charles Morton were charged in county court with driving with a revoked license as a habitual traffic offender. The Office of Public Defender was appointed to represent them. The assistant public defender assigned to the cases filed motions in county court to modify the adjudications of guilt in earlier civil traffic infraction cases in order to remove a predicate conviction necessary for habitual traffic offender sanctions. The State moved to strike each motion to modify, arguing that the Office of Public Defender had no authority to represent Grate and Morton in civil traffic infraction matters. The county court denied the State's motion to strike and modified the earlier adjudications of guilt to withheld adjudications of guilt. The State then filed a petition for a writ of quo warranto in the circuit court, challenging the public defender's authority to intervene in civil traffic infraction matters. Quo warranto is the proper means for inquiring whether a particular individual has improperly exercised the power or right derived from the state. Whiley v. Scott, 79 So.3d 702, 707 (Fla. 2011). The circuit court denied the State's petition, and the matter is now before us.

Before considering the merits of the arguments presented, we must first determine the nature of our review of the circuit court's decision denying the State's request for a writ of quo warranto. Review of extraordinary writ proceedings is permissible by direct appeal or by certiorari depending on the nature of the petition filed. If the petition for extraordinary relief is filed in the circuit court to review an order by a lower tribunal, the resulting order of the circuit court is reviewable in the district court of appeal by certiorari and not by appeal. See, e.g., Fla. R. App. P. 9.030(b)(2)(B) ("The certiorari jurisdiction of district courts of appeal may be sought to review ... final orders of circuit courts acting in their review capacity."); Sutton v. State, 975 So.2d 1073 (Fla. 2008) (holding prohibition used in circuit court to review disqualification order by county court was reviewable by certiorari); Sheley v. Fla. Parole Comm'n., 720 So.2d 216 (Fla. 1998) (holding that mandamus used in circuit court to review decision by parole commission was reviewable by certiorari). However, when a petition for extraordinary relief initiates a new civil action in the circuit court and is not used as a method of reviewing an order of the county court or a local administrative tribunal, the final order is reviewed by appeal. See, e.g., Fla. R. App. P. 9.030(b)(1)(A) ("District courts of appeal shall review, by appeal ... final orders of trial courts ...."); Fla. R. Civ. P. 1.630 (rule governing extraordinary writs); City of Miami Beach v. State ex rel. Wood, 56 So.2d 520, 520 (Fla. 1952) (appeal from judgment entered in quo warranto proceedings); Brock v. Bd. of Cty. Comm'rs of Collier Cty., 21 So.3d 844, 845-46 (Fla. 2d DCA 2009) (reviewing clerk's appeal from circuit court's granting of quo warranto). Here, because the petition was a new civil action in the circuit court and was not appellate in nature, our review is by appeal.

Turning to the merits, we consider this a matter of statutory construction subject to de novo review. Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass'n, 164 So.3d 663, 666 (Fla. 2015). "The starting point of statutory interpretation is the language of the statute itself." Herrin v. City of Deltona, 121 So.3d 1094, 1097 (Fla. 5th DCA 2013) (citing GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla. 2007) ). "If statutory language is clear and unambiguous, 'there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.' " Id. (quoting A. R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (Fla. 1931) ).

The Office of Public Defender was initially created in this state by statute, and later by an express constitutional provision, to provide indigent defendants the right of counsel guaranteed by the Sixth Amendment. Article V, section 18 of the Florida Constitution provides that the Office of Public Defender "shall perform duties prescribed by general law." This provision grants the Legislature the authority to delineate the duties to be performed by public defenders, including the types of cases for which public defenders can be appointed. Crist v. Fla. Ass'n of Criminal Def. Lawyers, Inc., 978 So.2d 134, 141 (Fla. 2008). Section 27.51, Florida Statutes (2018), defines the duties of the Office of Public Defender and generally provides that public defenders shall represent indigents who have been charged or arrested for a variety of criminal offenses that could result in imprisonment and in a limited number of civil proceedings that threaten their liberty interests, as well as in all indigent criminal direct appeals. See, e.g., State ex rel. Smith v. Jorandby, 498 So.2d 948, 950 (Fla. 1986) (holding section 27.51 permits representation by public defender only in circumstances entailing prosecution by state threatening indigent's liberty interest, including appeals). Thus, the duties of public defenders, as enumerated in section 27.51, include representation of indigent defendants only in circumstances that threaten liberty interests, which do not include civil traffic infraction proceedings. Accord § 924.051(9), Fla. Stat. (2018) ("Funds, resources, or employees of this state or its political subdivisions may not be used, directly or indirectly, in appellate or collateral proceedings unless the use is constitutionally or statutorily mandated.").

Despite the lack of statutory authority, it is argued that the Office of Public Defender can collaterally attack its client's prior civil traffic infraction adjudication, if, in the exercise of its professional judgment, it concludes such representation is necessary to provide effective and complete representation. We reject that argument, as the court did in Mann v. State, 937 So.2d 722, 726-29 (Fla. 3d DCA 2006), which concluded that while the public defender's desire to continue to assist criminal defendants, even after their convictions have become final after appeal and the public defender's statutory duty and authority has terminated, is admirable, to do so would violate Florida's statutory scheme and deny all other similarly situated defendants desirous of representation in collateral proceedings equal protection under the constitutions of the State of Florida and the United States. Though not precisely on point, we find further support for our position in the Florida Supreme Court's holding in State v. Kilgore, 976 So.2d 1066 (Fla. 2007), that the Office of Capital Collateral Regional Counsel, an office similar to the Office of Public Defender, could not represent a capital defendant in challenging a prior non-capital conviction that the prosecution intended to use as an aggravating circumstance in the capital case. Certainly, if publicly funded counsel cannot collaterally attack a prior conviction in a death penalty case, we have no difficulty in concluding that the Office of Public Defender cannot collaterally attack a prior civil traffic infraction conviction.

For these reasons, the circuit court should have granted the State's petition for quo warranto. Accordingly, we reverse the circuit court order and remand with instructions to grant the petition.

REVERSED and REMANDED with instructions.

WALLIS and LAMBERT, JJ., concur.

      The circuit court considered this matter with a three-judge panel. Judge Paulk dissented and would have granted the petition.

      We agree with the State that the county court lacked jurisdiction to enter the subject orders. See Fla. R. Traf. Ct. 6.490.


author: PER CURIAM.

text:
    Shawn Gregory MCNEIL, Appellant, v. Lisa Leann JENKINS-MCNEIL, Appellee.
    Case No. 5D17-3283
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018
    Dorothy J. McMichen, of McMichen, Cinami & Demps, PLLC, Orlando, for Appellant.
    Joanna M. Mitchell, of Mitchell & Associates, PA, Clermont, for Appellee.
   PER CURIAM.

Shawn Gregory McNeil ("Former Husband") appeals from the final judgment dissolving his marriage to Lisa Leann Jenkins-McNeil ("Former Wife"). He raises six arguments on appeal, one of which we find to be dispositive. We reverse the final judgment because the requisite evidence of residency in Florida was not established.

This case proceeded to trial upon Former Wife's counter-petition for dissolution of marriage. To obtain a dissolution of marriage in Florida, one of the parties to the marriage must reside six months in the state before the filing of the petition. § 61.021, Fla. Stat. (2015). Residency for this statutory period is jurisdictional and must be alleged and proved. Wise v. Wise , 310 So.2d 431, 432 (Fla. 1st DCA 1975) (citing Kutner v. Kutner , 159 Fla. 870, 33 So.2d 42, 44 (Fla. 1947) ; Chisholm v. Chisholm , 98 Fla. 1196, 125 So. 694, 700 (Fla. 1929) ). Here, Former Wife alleged in her counter-petition that Former Husband had been a Florida resident for at least six months prior to filing his petition for dissolution of marriage but did not separately allege that she was a resident of Florida. Thus, Former Wife had the burden at trial of proving Former Husband's residency in Florida.

Section 61.052(2), Florida Statutes (2015), requires that proof of residence under section 61.021 be corroborated by a "valid Florida driver license, a Florida voter's registration card, a valid Florida identification card issued under [section] 322.051, or the testimony or affidavit of a third party." The residency requirement may not be established by the uncorroborated testimony of one party, Lemon v. Lemon , 314 So.2d 623, 623-24 (Fla. 2d DCA 1975), nor can the requirement of corroborating evidence be waived by admission by the parties in the pleadings that the residency requirement has been met. Grey v. Grey , 995 So.2d 623, 623-24 (Fla. 2d DCA 2008) (citing Fernandez v. Fernandez , 648 So.2d 712, 713 (Fla. 1995) ). Residence can never be assumed, nor can it be established by agreement. Fazio v. Fazio , 66 So.2d 297, 299 (Fla. 1953) (citing Phillips v. Phillips , 146 Fla. 311, 1 So.2d 186, 188 (Fla. 1941) ).

Former Husband did not attend the trial. Moreover, Former Wife failed to establish Former Husband's residency in Florida with any of the necessary corroborative evidence under section 61.052(2), resulting in the trial court lacking jurisdiction to enter the final judgment. See Lemon , 314 So.2d at 624 ("Since petitioner failed to establish the statutory prerequisite of residence, the lower court lacked jurisdiction to enter a final judgment."). Accordingly, we reverse the final judgment as void and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

SAWAYA, LAMBERT and EISNAUGLE, JJ., concur.


author: COHEN, C.J.

text:
    Craig Eugene EDWARDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1846
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, C.J.

Craig Edwards appeals two of his consecutively imposed minimum mandatory sentences. We affirm.

Edwards was sentenced for several crimes committed when he was sixteen years of age. Two of the charges of which he was convicted were attempted felony murder with a firearm (count 3) and robbery with a firearm (count 4). The trial court originally sentenced Edwards to life in prison for counts 3 and 4, which included minimum mandatory sentences per count imposed consecutively.

Edwards subsequently obtained an evidentiary hearing for reevaluation of his sentences based on Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). At that hearing, the trial court analyzed section 775.087, Florida Statutes (2017), under which Edwards was sentenced, then stated, "unfortunately, the statute requires consecutive time, consecutive min-man time" for counts 3 and 4. The court resentenced Edwards to concurrently serve 45 years on counts 3 and 4, but re-imposed the minimum mandatory sentences on the counts consecutively.

Edwards then filed a motion to correct sentencing error, arguing in part that under Williams v. State, 186 So.3d 989 (Fla. 2016), "[c]onsecutive sentencing is not mandatory under [ section 775.087 ] under these circumstances and the Court has the discretion to run counts 3 and 4 concurrently." The court entered an order reiterating that the minimum mandatory sentences were to run consecutively.

Edwards filed a motion for rehearing, again calling the court's attention to Williams. Regarding the consecutively imposed minimum mandatory sentences, the court stated, "Counts 3 and 4 of this case each have a 20-year minimum mandatory, which the Court is imposing consecutive to each other for a total of 40 years. That ruling was not a scrivener's error and Defendant has not argued or proven that the statute does not permit it."

Where the record indicates that a trial court believed that consecutive minimum mandatory sentences were required rather than permissible under section 775.087, reversal for resentencing is required. See James v. State, 43 Fla. L. Weekly D816 (Fla. 2d DCA Apr. 18, 2018) ; Mason v. State, 210 So.3d 120, 121 (Fla. 2d DCA 2016). It is clear that at Edwards's initial resentencing, the trial court believed that it was required to impose the minimum mandatory sentences consecutively. However, Edwards presented Williams to the court in both his motion to correct sentencing error and motion for rehearing. The court's order on rehearing stating that the imposition of consecutive minimum mandatory sentences was not a scrivener's error and that the sentence imposed was one permitted by statute, in conjunction with the fact that the court had specifically been provided Williams twice, persuades us that the court was aware of its discretion to impose the sentences concurrently, and instead chose to re-impose the sentences consecutively. Accordingly, we affirm.

AFFIRMED.

PALMER and ORFINGER, JJ., concur.

      See Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that the Eighth Amendment prohibits courts from imposing a life without parole sentence on a juvenile nonhomicide offender; thus, states must give juvenile nonhomicide offenders sentenced to life without parole a meaningful opportunity to obtain release).

      See Williams v. State, 186 So.3d 989 (Fla. 2016) (holding that section 775.087 permits but does not require consecutive minimum mandatory terms of imprisonment for multiple firearm offenses committed contemporaneously).

      Edwards also argued in his motion to correct sentencing error that the trial court improperly subjected his sentences to a judicial review in 25 years instead of 20 years under section 941.1402, Florida Statutes (2017). The trial court correctly granted that portion of the motion.


author: MORRIS, Judge.

text:
    Cornelius SHANNON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4844
    District Court of Appeal of Florida, Second District.
    Opinion filed July 27, 2018
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Cornelius Shannon appeals his drug convictions, specifically challenging the denial of his dispositive motion to suppress. After his motion was denied, he entered into a negotiated plea agreement with the State, reserving his right to appeal the denial of the motion. He also challenges his judgment and sentence on count five, claiming that he did not enter a plea to that count. We agree that the trial court erred in denying his motion to suppress and accordingly reverse his convictions, thus mooting his second issue on appeal.

In a multicount information against three defendants, Shannon was charged with one count of trafficking in illegal drugs, four through fourteen grams; one count of possession of a controlled substance; one count of driving with a suspended or revoked license; and one count of possession of drug paraphernalia. Shannon filed a motion to suppress physical evidence seized during a search of his vehicle immediately prior to his arrest, arguing that his vehicle was not within the curtilage of the motel rooms that were the subject of the search warrants. He argued that the parking space did not meet the definition of curtilage set forth in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987).

At the hearing on the motion to suppress, law enforcement officers with the Manatee County Sheriff's Office testified that they had been conducting surveillance of a motel in Bradenton, specifically rooms 120, 121, and 124. On two different dates, the officers sent a confidential informant into room 121, and the informant purchased heroin on both occasions. On a third occasion, October 9, 2015, the informant purchased heroin from room 124. On that date, law enforcement observed individuals going from room 120 to room 124, and they recognized two suspected drug dealers, neither of which were Shannon. The officers did not observe Shannon during their surveillance; he was not a target of the investigation, and he was not named in the warrant. The CI had not identified Shannon as the person who sold him drugs.

Law enforcement had obtained search warrants that authorized the search of rooms 120, 121, and 124 of the motel, "its curtilage, any vehicles located within the curtilage, and any or all persons found therein, who [were] reasonably believed to be involved in the crime or crimes, for any and all controlled substances." Law enforcement executed the search warrants around 6:30 p.m. on October 9th. Members of the SWAT team arrived at the motel in an armored vehicle, and other officers arrived in their vehicles. The occupants of rooms 120, 121, and 124 were alerted that law enforcement were on their way, and the occupants began to exit the rooms and scatter. Shannon exited room 124 and traveled a few feet to his car, which was parked in the parking space in front of room 120. He carried something near his abdomen. He entered his car and tried to leave but was blocked in at the entrance by a law enforcement vehicle. He then reversed and drove around to the back of the motel, where he was again blocked in by law enforcement. Shannon exited his car with his hands up, lay on the ground, and threw his keys to the side toward the officers. After officers were informed that Shannon was observed leaving the motel room, Shannon's car was searched. In the passenger side of the car, an officer discovered a blue coffee can with a false bottom containing drugs.

The State argued that Shannon's car was parked in the curtilage of the motel rooms and that the search of his car was therefore authorized by the warrants. The State also argued that law enforcement was permitted to search Shannon because he was leaving the location where a search warrant was being executed. The defense argued that the parking space did not meet the definition of curtilage. The trial court found that when Shannon exited room 120, it took him "about two-and-a-half, three seconds" to reach his vehicle parked in front of room 124 and that the hood of Shannon's vehicle was about three feet from the door of room 120. The trial court concluded that as a matter of law, a motel may have a curtilage and that in this case, Shannon's vehicle was in the curtilage of rooms 120, 121, and 124. The trial court found that even if the vehicle had left the curtilage, it had not left the motel and that under Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), law enforcement was permitted to search Shannon's vehicle. The trial court denied his motion to suppress.

Shannon then entered into a plea agreement with the State, whereby he agreed to plead no contest to the charges in counts three, six, and seven in exchange for a sentence of 108 months in prison on count three with a three-year minimum mandatory term. The parties agreed, and the trial court found, that the motion to suppress was dispositive, and Shannon reserved his right to appeal the denial of the motion as part of his plea agreement.

On appeal, Shannon contends that the trial court erred in denying his motion to suppress because his vehicle was not in the curtilage of the motel rooms and therefore was not subject to search pursuant to the terms of the search warrants. He claims that the parking space in which his car was parked did not qualify as a curtilage under the definition set forth in Dunn.

We review de novo the trial court's ruling that the parking space constituted a curtilage because the issue involves a legal conclusion. See State v. K.S., 28 So.3d 985, 987 (Fla. 2d DCA 2010) ("The trial court's 'determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record.

However, the circuit court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review.' " (quoting State v. Clark, 986 So.2d 625, 628 (Fla. 2d DCA 2008) ) ).

Prior to Dunn, the First District held that a car in the parking lot of an apartment building was on (or within) the curtilage of the apartment building for purposes of a search warrant authorizing a search of vehicles located on the curtilage. See Joyner v. State, 303 So.2d 60, 61-63 (Fla. 1st DCA 1974) (holding that curtilage mentioned in warrant included "a semi-circular driveway which ran the length of the property adjoining the entire multi-dwelling unit"). The Joyner court held

that yards, courtyards, driveways and parking areas usually and customarily used in common by occupants of apartment houses, condominiums and other such complexes with other occupants thereof constitute a part of the curtilage of a specifically described apartment or condominium or other living unit thereof and that an automobile located on such common areas and identified by the use of keys obtained from the occupant of such specifically described apartment, condominium or other living unit is a part of that curtilage and subject to search upon the issuance of a valid warrant authorizing a search of the living unit and curtilage thereof.

Id. at 64 ; see also Menendez v. State, 521 So.2d 210, 213 (Fla. 1st DCA 1988) (citing Joyner and holding that where a defendant was seen driving a car into a motel's parking lot and was seen entering the motel from the car, the "car parked in the motel parking lot was within the motel room's curtilage").

But in 1987, the Supreme Court set forth a more narrow definition of a curtilage:

[C]urtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

Dunn, 480 U.S. at 301, 107 S.Ct. 1134. These factors do not "produce[ ] a finely tuned formula," but they "are useful analytical tools" because "they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Id."[T]he primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home." Id. at 301 n.4, 107 S.Ct. 1134. In Dunn, the Supreme Court held that a barn did not constitute a curtilage of the defendant's home and was thus not entitled to Fourth Amendment protection. Id. at 301-02, 107 S.Ct. 1134.

After Dunn, the Florida Supreme Court addressed the inconsistent, common law definition of curtilage, concluding that Florida's burglary statute, which must be strictly construed in favor of the defendant, requires "some form of an enclosure in order for the area surrounding a residence to be considered part of the 'curtilage.' " State v. Hamilton, 660 So.2d 1038, 1044-45 (Fla. 1995). In Wheeler v. State, 62 So.3d 1218 (Fla. 5th DCA 2011), the Fifth District applied the factors in Dunn to determine whether a car was located within a residence's curtilage for purposes of a search warrant authorizing the search of any car located within the residence's curtilage.

Appellant, who had no connection to the investigation or the residence that was the target of the search, happened to be parked in his car in front of the residence with a female companion at the time the warrant was executed. The residence was located on a city street adjacent to a paved road. It was surrounded by a chain-link fence with an opening for ingress and egress through a dirt driveway. Appellant was parked outside the chain link fence, parallel to the road within the city right-of-way very close to the paved portion of the right-of-way. Part of Appellant's vehicle was parked over the driveway portion of the right-of-way impeding, but not blocking, ingress and egress to the property through the opening in the fence. Appellant and his companion were in the vehicle at the time of the search.

Id. at 1219-20. The Fifth District considered the four factors in Dunn and concluded that "the area outside the chain link enclosure is outside the curtilage of the residence." Id. at 1220. The court noted that although the location of the car was close to the house, the car was "outside the fence and within an area designated as a public right-of-way" and "[t]he homeowner manifested no attempt to protect against observation by people passing by." Id. at 1220-21. And "[t]he fact that the homeowner chose to enclose a portion of the yard with a chain-link fence is perhaps the most compelling fact here." Id. at 1220. The court reversed the trial court's denial of the appellant's motion to suppress.

Here, the trial court concluded that Shannon's car had been parked in the curtilage of rooms 120, 121, and 124. The court found that the car was parked three feet in front of room 120 and that when Shannon exited room 124, it took him about two-and-a-half seconds to get to his car in front of room 120. However, the proximity of the car to the rooms is only one factor set forth in Dunn. Consideration of the other Dunn factors leads to the conclusion that the parking space in front of 120 did not constitute the curtilage of the three motel rooms identified in the warrants. There was no indication that the parking space was enclosed, thus suggesting that it was accessible to anybody walking around the motel. There was no indication that the occupants of the rooms took any steps to protect the parking space from observation of people passing by or that the parking space was used for other purposes by the occupant of the rooms. The parking space was used by Shannon at the time in question, but there was no indication that it could not have been used by anybody else visiting the motel.

Cases from other jurisdictions support our conclusion that the parking space in this case was not within the curtilage of the three motel rooms. See United States v. Duenas, 691 F.3d 1070, 1081 (9th Cir. 2012) ("[The district court] correctly concluded that only the first of the four Dunn factors suggested that the front yard was curtilage. The front yard was not enclosed; there was no evidence as to how the yard was used; nor was there any evidence that the [residents] tried to protect the yard from observation. We therefore agree with the district court that the front yard was not curtilage ...."); Mack v. City of Abilene, 461 F.3d 547, 554 (5th Cir. 2006) (holding that parking lot of apartment complex was not curtilage of defendant's apartment where proximity of the car to the apartment was not reflected in the record but where "the parking space was in an open parking lot, the lot is a common area used for parking with multiple spaces, and a vehicle parked in the lot is not shielded from view by others"); Rogers v. State, 543 So.2d 719, 722 (Ala. Crim. App. 1988) (holding that motor home parked fifty feet away from apartment in common parking area was not in curtilage because there was no indication that "it was within an area exclusively controlled by the owner of the apartment" or that the "owner had any expectation of privacy in the motor home"); Commonwealth v. McCarthy, 428 Mass. 871, 705 N.E.2d 1110, 1113 (1999) (holding that visitor's parking space at apartment complex was not part of curtilage of defendant's apartment because it was twenty-five feet away from the side entrance of the apartment building, the space in between included "common hallways, entrances, and exits to other apartment units," the enclosure "encompass[ed] a common area utilized by all the tenants and visitors," "each space ... is freely visible to anyone entering the lot," and the record did not show "any landscape or design features within the parking lot which would create a reasonable expectation of privacy in any individual parking space"); State v. Williford, 239 N.C.App. 123, 767 S.E.2d 139, 143 (2015) (holding that parking lot of defendant's apartment was not "located in the curtilage of defendant's building" because even though "the parking lot was in close proximity to the building, it was not enclosed, was used for parking by both the buildings' residents and the general public, and was only protected in a limited way"); Sanders v. Commonwealth, 64 Va.App. 734, 772 S.E.2d 15, 22-23 (2015) (holding that "the walkways immediately outside of the appellant's two different motel rooms did not qualify as curtilage" because even though "the walkways at issue were in close proximity to the rooms and provided the only apparent means of ingress and egress," "the areas at issue were not inside any sort of enclosure indicating an intent to maintain individual privacy," "nothing in the record establishes that the registered guest obtained either a property interest in any of the areas outside the rented room or a right to exclude others from those areas," and "nothing had been done by the guests to protect the areas from people passing by the motel room doors"). After consideration of the Dunn factors and the cases cited above, we conclude that the parking space at issue was not part of the curtilage of any of the three motel rooms. It cannot be said that the parking space "harbors those intimate activities associated with domestic life and the privacies of the home." Dunn, 480 U.S. at 301 n.4, 107 S.Ct. 1134. Accordingly, the officers were not justified in searching Shannon's car pursuant to the search warrants.

Shannon also argues that the officers could not search his car under the authority of Summers, which the trial court cited in its ruling. In Summers, "the dispositive question [was] whether the initial detention of [the defendant] violated his constitutional right to be secure against an unreasonable seizure of his person." 452 U.S. at 694, 101 S.Ct. 2587. The defendant was leaving his residence as officers were preparing to execute a warrant to search his residence for narcotics. After the officers found narcotics in the house, they had probable cause to arrest him. During a search of his person incident to arrest, the officers found drugs. Id. at 692, 101 S.Ct. 2587. The Court stated that "the validity of the search of [the defendant's] person ... depends upon a determination whether the officers had the authority to require [the defendant] to re-enter the house and to remain there while they conducted their search." Id. at 695, 101 S.Ct. 2587. The Court held that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Id. at 705, 101 S.Ct. 2587 (footnotes omitted).

The facts of this case are very different from those in Summers. Here, there was no evidence that the officers had probable cause to arrest Shannon prior to the search at issue, and the drugs were found in his car, not on his person. Thus, even if Summers justified the detention of Shannon during the search of the motel rooms, Summers did not give the officers authority to search his vehicle. See Stahl v. State, 634 So.2d 258, 259 (Fla. 2d DCA 1994) ("A warrant to search for contraband carries with it the limited authority to detain residents of the premises while the search is conducted. If the premises search results in probable cause to arrest the resident, then a search of the person following arrest is permissible." (emphasis added) (citing Summers, 452 U.S. 692, 101 S.Ct. 2587 ) ). On appeal, the State does not argue that the search of Shannon's car was valid for any other reason, and the State presented no other legal basis, with supporting evidence, to justify the search of Shannon's car. See Hilton v. State, 961 So.2d 284, 296 (Fla. 2007) ("When a search or seizure is conducted without a warrant, the government bears the burden of demonstrating that the search or seizure was reasonable."). We conclude that the trial court erred in denying Shannon's motion to suppress, and we therefore reverse his judgment and sentences on this basis.

Reversed and remanded with directions for discharge.

KELLY and LUCAS, JJ., Concur.

      His judgment reflects that he pleaded no contest to trafficking in illegal drugs, four to fourteen grams (count three); possession of a controlled substance (count five); driving while license suspended or revoked (DWLSR), third or subsequent offense (count six); and possession of drug paraphernalia (count seven). He was sentenced to 108 months in prison on the trafficking count with a three-year minimum mandatory, to concurrent five-year sentences on the counts for DWLSR and possession of a controlled substance, and to time served on the paraphernalia count.

      An Alabama court noted that Florida "assumed a unique position" in regard to whether a common area of a parking lot may be considered a curtilage of an apartment. Rogers v. State, 543 So.2d 719, 721 (Ala. Crim. App. 1988).

      After the Dunn decision, this court relied on Joyner in holding that "[v]ehicles within the curtilage of a residence may be searched pursuant to a search warrant authorizing a search of that residence as well as its curtilage," but in that case, this court noted that the "highly detailed description of the residence included" parts of the curtilage in which the car was found. State v. Ferris, 623 So.2d 752, 754 (Fla. 2d DCA 1993).


text:
    Danny MARRERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1442
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before LAGOA, EMAS, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See State v. Michel, No. SC16-2187, --- So.3d ----, 2018 WL 3613383 (Fla. July 12, 2018) ; Currie v. State, 219 So.3d 960 (Fla. 1st DCA 2017), rev. denied, No. SC17-1300, 2018 WL 2383022 (Fla. May 25, 2018).


text:
    Carlos MALVICINO, et al., Appellants, v. Valeria SCHVARTZMAN, et al., Appellees.
    No. 3D17-1801
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018.
    Lawrence J. Shapiro & Associates, P.A., and Lawrence J. Shapiro, for appellants.
    Kluger, Kaplan, Silverman, Katzen & Levine, P.L., and Abbey L. Kaplan and Jamie L. Zuckerman, for appellees.
    Before SUAREZ, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Because the trial court did not abuse its discretion given the record, we affirm. See Fla. R. Civ. P. 1.070(J) ; Premier Capital LLC v. Davalle, 994 So.2d 360 (Fla. 3d DCA 2008).

Affirmed.


author: SCALES, J.

text:
    Roxanna DENIS, Appellant, v. Carl Edouard DENIS, Appellee.
    No. 3D17-1219
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Roxanna Denis, in proper person.
    Law Office of Pamela M. Gordon, P.A., and Pamela M. Gordon (Hollywood), for appellee.
    Before FERNANDEZ, SCALES and LUCK, JJ.
   SCALES, J.

Appellant Roxanna Denis ("Wife") challenges three portions of a final judgment dissolving her marriage to appellee Carl Edouard Denis ("Husband"): (i) the trial court's denial of Wife's claim for either bridge-the-gap or rehabilitative alimony; (ii) the trial court's denial of Wife's claim for attorney's fees; and (iii) the trial court's requiring of Wife to pay one-third of the minor child's uninsured medical and dental expenses.

We conclude that the trial court did not abuse its discretion in denying Wife's claims for alimony and attorney's fees, and therefore affirm these determinations without further discussion. With regard to the third issue raised by Wife, however, we reverse and remand to the trial court either to: (i) require Wife to pay only 28.48 percent of the minor child's uninsured medical and dental expenses, or (ii) specify its rationale for requiring the Wife to pay one-third (i.e., 33.33 percent) of these expenses. Husband concedes that, based on Husband's Child Support Guidelines Worksheet, Wife's responsibility for these expenses should be only 28.48 percent rather than the 33.33 percent ordered in the final judgment.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      To the extent that Wife's argument is based upon the trial court's failure to recite specific factual findings warranting the denial of Wife's alimony claim, we note that Wife filed no motion for rehearing directed toward the final judgment, and the basis for the trial court's ruling is supported by the record. Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001).


text:
    Murad AYESH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2597
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    David S. Molansky, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before LAGOA, FERNANDEZ, and LINDSEY, JJ.
   LAGOA, J.

Appellant, Murad Ayesh ("Ayesh"), appeals from the trial court's order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his post-conviction motion and on appeal, Ayesh argues that defense counsel was ineffective because he misadvised Ayesh regarding the impact of his plea on future employment, and therefore, his guilty plea should be vacated. Because loss of employment is a collateral consequence and not a direct consequence of the plea, we affirm the trial court's order.

It is well-established that a defendant must only be made aware of the direct consequences of his or her plea. See State v. Partlow, 840 So.2d 1040, 1042 (Fla. 2003). The distinction between direct and collateral consequences of a plea " 'turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.' " Major v.State, 814 So.2d 424, 431 (Fla. 2002) (quoting Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982) ). However, neither " 'the trial court nor counsel is required to forewarn a defendant about every conceivable collateral consequence of a plea to criminal charges.' " State v. Rodriguez, 990 So.2d 600, 607 (Fla. 3d DCA 2008) (quoting Simmons v. State, 611 So.2d 1250, 1252 (Fla. 2d DCA 1992) ).

Because the impact of a plea on current or future employment is a collateral consequence of the plea, as it does not affect a defendant's range of punishment in any manner, we find that it is insufficient to render a plea involuntary and therefore does not provide a basis to vacate a plea. See Murphy v. State, 868 So.2d 585, 586 (Fla. 2d DCA 2004) (finding that trial court "correctly concluded that the loss of employment was a collateral consequence of Murphy's plea"). Accordingly, we affirm the trial court's order denying Ayesh's post-conviction motion.

Affirmed.


text:
    Givanni PARKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-796
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Givanni Parks, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   SUAREZ, J.

Givanni Parks appeals from the trial court's denial of a post-conviction petition styled as a petition for habeas corpus. We conclude that the trial court properly denied the appellant's petition for writ of habeas corpus as it consisted solely of arguments made by him in prior unsuccessful post-conviction motions. Appellant raises two arguments: that his sentence is illegal and he did not violate his plea agreement. This Court has previously reviewed and dismissed those arguments. See Parks v. State, 863 So.2d 382 (Fla. 3d DCA 2003). As such, we consider this petition as if filed as a 3.850 motion. We therefore affirm the trial court's denial of Park's petition as successive.

Affirmed.