author: LINDSEY, J.

text:
    Gerrel SNELL, Petitioner, v. Daniel JUNIOR, Director, Miami-Dade Corrections and Rehabilitation Department, and The State of Florida, Respondents.
    No. 3D18-1316
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Carlos J. Martinez, Public Defender, and James Odell, Assistant Public Defender, and Maria E. Lauredo, Chief Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for respondent The State of Florida.
    Before SALTER, LOGUE, and LINDSEY, JJ.
   LINDSEY, J.

Gerrel Snell petitions this Court to issue a writ of habeas corpus ordering that the Nebbia or "source of funds" hold issued by the trial court be stricken as an unlawful order of pretrial detention. For the reasons set forth below, we deny the petition.

Mr. Snell was arrested on Miami Beach on May 23, 2018, and charged with multiple counts of sale and possession of marijuana and being a felon in possession of a firearm. The police obtained a warrant for the search of his home and vehicle wherein they found a shoebox containing over $18,000 in U.S. currency, numerous bags of marijuana, a loaded .380 caliber firearm and a box of .380 caliber ammunition. The arrest affidavit indicates his occupation as a landscaper.

At his first appearance hearing on May 24, 2018, bond was set at $40,500 but the trial court placed a Nebbia hold on the bond to verify the source of the funds that would be used to post that bond. On June 21, 2018, Mr. Snell filed a motion for removal of the Nebbia hold arguing that there is no authority under Florida law for the court to hold Mr. Snell pending a hearing to address the source of funds to post a bond. The trial court denied Mr. Snell's motion, contending that he was not "holding Mr. Snell in pretrial detention" but rather that the Nebbia inquiry was a condition of posting the bond. The trial court further noted that if the first appearance judge had not conditioned the bond on a Nebbia inquiry, it would have imposed a much greater bond. Mr. Snell declined to present any information to the trial court as to the source of funds he might use to post a bond.

Mr. Snell relies on Casiano v. State, which held that:

[U]nder our state's constitution, Florida courts lack authority to detain accuseds for the purpose of inquiring into the source of funds used to post bail. Moreover, any such inquiry "is for the purpose of ascertaining whether the bail set is sufficient to secure the defendant's appearance, not to deny him pretrial release."

241 So.3d 219, 220 (Fla. 2d DCA 2018) (quoting Parrino v. Bradshaw, 972 So.2d 960, 962 (Fla. 4th DCA 2007) (Warner, J., concurring) ), jurisdictional briefs pending, SC 18-642. The Second District further explained that "continuing to hold an accused who has posted the bail set at first appearance is tantamount to pretrial detention, which may only be ordered after proceedings on a proper motion for pretrial detention filed by the State." Casiano, 241 So.3d at 220.

The State contended in response that Casiano, 241 So.3d 219, conflicts with the majority opinion in Parrino, 972 So.2d 960, and two decisions from this Court: Artamendi v. Manning, 700 So.2d 476 (Fla. 3d DCA 1997) and Winer, 771 So.2d 621. In Parrino, the defendant was "charged with two counts of trafficking in Roxycodone (over four grams), aggravated assault on a law enforcement officer, aggravated battery on a law enforcement officer, and kidnapping." 972 So.2d at 961. While incarcerated, the defendant sought a writ of habeas corpus from an order granting the state's motion for a Nebbia hearing. The majority denied the petition and held that:

Section 903.046(2), Florida Statutes (2007) and Florida Rule of Criminal Procedure 3.131(b) authorize the court to inquire into "the source of funds used to post bail," as well as into any other facts, to insure defendant's appearance. The motion filed by the state, and the order entered by the court granting that motion, are authorized by the statute and the rule, and accordingly the issue as to the applicability of Nebbia, a federal case, is beside the point.

Id.

The instant petition does not involve a situation where the court is "continuing to hold an accused who has posted the bail set at first appearance" without the State having filed a motion for pretrial detention. See Casiano, 241 So.3d at 220. Here, the first appearance judge set the bond at $40,500 conditioned on a Nebbia inquiry. Mr. Snell has neither tendered nor proffered that he could post the $40,500 bond but for the Nebbia hold. And, Mr. Snell has not presented any information to the trial court as to the source of any funds he might use to post a bond. Thus, Mr. Snell is in no worse position than if no Nebbia hold had been put in place in the first instance. Rather, he remains incarcerated, apparently, because he is unable to post the bond set at the first appearance hearing, irrespective of the Nebbia hold.

Based on the facts and the procedural posture of this case, we deny the petition. See § 903.046(2)(f), (h), Fla. Stat. (2018) ("When determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court shall consider: ... (f) The source of funds used to post bail or procure an appearance bond, particularly whether the proffered funds, real property, property, or any proposed collateral or bond premium may be linked to or derived from the crime alleged to have been committed or from any other criminal or illicit activities. The burden of establishing the noninvolvement in or nonderivation from criminal or other illicit activity of such proffered funds, real property, property, or any proposed collateral or bond premium falls upon the defendant or other person proffering them to obtain the defendant's release .... (h) The street value of any drugs or controlled substance connected to or involved in the criminal charge.") (emphasis added); Fla. R. Crim. P. 3.131(b)(3) ("In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider the nature and circumstances of the offense charged and the penalty provided by law; ... the source of funds used to post bail;"); Artamendi, 700 So.2d at 477 ("Upon the conclusion that the evidence adduced below established that the standards of United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966) were satisfied as a matter of law, the trial court is ordered to require the acceptance of the tendered $ 700,000.00 bond and thereupon to release the petitioner from custody."); Winer, 771 So.2d 621.

PETITION DENIED.

      As the trial judge correctly explained at the hearing on Mr. Snell's motion for removal of the Nebbia hold, "Nebbia really is what we use in shorthand to mean source of funds and to avoid citing the criminal procedure rule and the statute." Hr'g Tr. 12, June 22, 2018; see also Winer v. Spears, 771 So.2d 621, 622 n.1 (Fla. 3d DCA 2000) (Sorondo, J., concurring) ("United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966) (This case stands for the proposition that a court can require a criminal defendant to establish, prior to posting bond, that the money and/or property used to pay the same were not derived from illicit activities). See also § 903.046, Fla. Stat. (2000)").

      The CJIS docket filed with this Court indicates a motion for modification of bail filed on the same day as the motion for removal of theNebbia hold and denied on June 22, 2018. At the hearing on the motion for removal of the Nebbia hold, the Clerk advised the trial court of same. In any event, neither Mr. Snell nor the State have raised the motion for modification of bail as a basis for granting the instant petition.

      At the hearing on the motion for removal of the Nebbia hold, the trial court specifically inquired of Mr. Snell's counsel whether they had any information as to the source of the funds that Mr. Snell would seek to use to post the bond. Mr. Snell, through his counsel, stated: "No, Your Honor, not at this time." Further, the transcript of the first appearance hearing is not part of the record before us and neither Mr. Snell nor the State has represented to this Court that any information was presented to the first appearance judge as to the source of the funds.

      Mr. Snell has not alleged that he has asked the trial court for a reduction of bond.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard BRIDGES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-973
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 6, 2018 Rehearing Denied August 30, 2018
    Richard E. Bridges, Blountstown, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to Appellant filing a facially sufficient motion if he can do so in good faith. See Rosa v. State , 147 So.3d 583, 584 (Fla. 4th DCA 2014).

COHEN, C.J. and EVANDER and TORPY, JJ., concur.


author: LaROSE, Chief Judge.

text:
    D.F., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2315
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    Kathleen A. Smith, Public Defender, and Bridget Jackman, Assistant Public Defender, Punta Gorda, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Caroline Johnson Levine, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

D.F., who is the subject of a Baker Act proceeding, appeals the trial court's order involuntarily committing him to an inpatient treatment facility for three months. See § 394.467, Fla. Stat. (2016). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm.

I. Procedural and Factual Background

The director of Riverside Behavioral Center in Punta Gorda filed a petition for involuntary inpatient treatment of D.F. A magistrate held an evidentiary hearing on the petition.

D.F.'s psychiatrist, Dr. Hernandez, testified that D.F. suffers from a mood disorder and dementia. As a result, D.F. was argumentative, refused to take his medication, and refused to eat. Dr. Hernandez recounted that D.F. arrived at the Center mildly malnourished and disheveled. He was "three pounds underweight since his last discharge" from a group home less than three months prior. Dr. Hernandez testified that, without treatment, D.F. has "a higher risk to be wandering the neighborhood, getting lost, [and] maybe being a victim of exploitation due to his mental incapacity to make decisions."

Dr. Hernandez recommended that D.F. be placed in a closed facility in Sarasota County. Twice in the past three months, D.F. was placed in less restrictive treatment programs (i.e., group homes), and "it backfired" on both occasions. Dr. Hernandez testified that other facilities outside of Sarasota County would accept D.F., but D.F. refused to leave Sarasota County. Dr. Hernandez also noted D.F. had no family or friends to care for him.

D.F. testified he was willing to go to a group home. D.F. also testified that he could stay with a friend in Englewood or with a roommate at a hotel. D.F. did not testify that his friend or roommate were willing and able to help him. Neither the friend nor the roommate testified at the hearing.

The magistrate filed a report recommending involuntary inpatient placement in a closed facility in Sarasota County. D.F. filed exceptions to the report. The trial court conducted a hearing, approved the magistrate's report and recommendation with a three-month time limit, and entered the order now before us.

II. Mootness Issue

We could treat D.F.'s appeal as moot; more than three months have passed since the commitment order. See L.P. v. State, 995 So.2d 1140, 1141 (Fla. 5th DCA 2008) (holding L.P.'s request for appellate relief moot because the commitment order was effective for six months and more than six months had elapsed from the entry of the order). We will not do so.

The issues on appeal are "capable of being repeated yet evading review." See id. The trial court committed D.F. to involuntary placement three times in a three-month period and referenced D.F.'s two prior commitments as one of its bases for committing him. See id. (addressing an issue raised on appeal, even though L.P.'s request for appellate relief was moot, because "it [was] an important issue [that was] capable of being repeated yet evading review"); see also K.B. v. Fla. Dep't of Children & Families, 202 So.3d 909, 912-13 (Fla. 3d DCA 2016) (concluding that K.B.'s claim was not moot because the involuntary commitment on appeal was "not the first time K.B. has been faced with potential confinement in the [Juvenile Addiction Receiving Facility] without judicial compliance with the Marchman Act").

III. Standard of Review

We have previously explained the procedure, the trial court's standard of review, and this court's standard of review of a trial court order adopting a magistrate's report recommending involuntary placement in Baker Act proceedings. See In re Drummond, 69 So.3d 1054, 1056-58 (Fla. 2d DCA 2011). The magistrate makes factual findings and applies the law to its factual findings "to reach a conclusion that a person either should or should not be committed." Id. at 1057. The trial court then examines the magistrate's report. Id. at 1056-57.

The trial court reviews the magistrate's factual findings with a presumption of correctness and must accept the findings if supported by competent, substantial evidence. Id. at 1056-57. Any factual findings affected by the magistrate's determinations of credibility of competency must be accepted, unless clearly erroneous. Id. at 1057. The trial court reviews de novo whether the magistrate applied the correct law to the facts. Id. Generally, the trial court gives great deference to the magistrate's conclusions "[b]ecause this conclusion is based in large part upon evidence that the magistrate alone had the opportunity to see and hear." Id.

Thereafter, we "review de novo the trial court's decision that the findings of fact in a Baker Act case are supported by competent, substantial evidence and are not clearly erroneous while giving both the magistrate and the trial court the benefit of the presumption of correctness." Id. We "review de novo to determine that both the magistrate and the trial judge applied the correct law." Id. We review "the trial court's decision to accept or reject the magistrate's conclusions under the abuse of discretion standard." Id.

IV. Analysis

D.F. argues that the trial court erred by ordering D.F. to involuntary placement because the State failed to meet its burden that: (A) D.F. was likely to suffer from neglect that would pose a real and present danger of substantial harm to his well-being; and (B) all available less restrictive treatment alternatives would be inappropriate.

The State must prove "by clear and convincing evidence that the statutory criteria authorizing involuntary commitment have been met." Blue v. State, 764 So.2d 697, 698 (Fla. 1st DCA 2000) (citations omitted). Section 394.467(1) sets forth the statutory criteria.

Specific to this case, the State must prove the following as to D.F.:

(a) He ... has a mental illness and because of his ... mental illness:
1. a. ...
b. He ... is unable to determine for himself ... whether placement is necessary; and
2. a. He ... is incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his ... well-being ...
b. ... ; and
(b) All available less restrictive treatment alternatives which would offer an opportunity for improvement of his ... condition have been judged to be inappropriate.

§ 394.467(1). D.F. does not dispute that he has mental illness. Nor does he challenge the finding that he was unable to determine for himself whether placement was necessary. Thus, only criteria (a)(2)(a) and (b) are at issue.

A. Whether D.F. Posed a Real and Present Threat of Substantial Harm to His Well-Being, under Subsection (a)(2)(a)

D.F. contends that "there was no evidence of specific occasions [when] D.F. posed a real and present threat of substantial harm to his well-being[,] ... nor ... any occasion on which such lapses of personal care on his part had resulted in substantial harm to his well-being."

"[T]he need for treatment and medication and the refusal to take medication despite a deteriorating mental condition, standing alone, do not justify involuntary commitment under the Baker Act." Lischka v. State, 901 So.2d 1025, 1026 (Fla. 1st DCA 2005). "Rather, there must also be clear and convincing evidence that without treatment, the patient would pose a real and present threat of substantial harm to himself ...." Id.; see, e.g., Lyon v. State, 724 So.2d 1241, 1242-43 (Fla. 1st DCA 1999) (reversing involuntary commitment because the doctor's testimony merely "amount[ed] to an opinion that Mrs. Lyon would, if not on medication, neglect herself" where the doctor failed "to specify the nature of the self[-]neglect he anticipated in a way that established any real and present threat of substantial harm to her well-being").

D.F. relies heavily on Schexnayder v. State, 495 So.2d 850 (Fla. 1st DCA 1986). In Schexnayder, the district court held that there was no evidence of specific occasions where the appellant's failure to take medication and care for herself resulted in substantial harm to her well-being. Id. at 852. Indeed, a doctor testified that "there was no evidence of dehydration or gross malnutrition at the time of her last self-admission." Id. Moreover, the appellant was able to take care of herself because she "ha[d] a place to live, financial resources ..., insight into her mental illness, knowledge of the necessity for medication, and a history of self-admissions to hospitals." Id.

Unlike Schexnayder, D.F. conceded that he cannot take care of himself without help. And, unlike the doctor in Schexnayder, Dr. Hernandez testified to the specific harm that would befall D.F. if discharged. Without treatment, D.F. would not take his medication or eat. As noted earlier, D.F. was mildly malnourished and disheveled when he first arrived at the Center. The record also reflects that D.F.'s prior placements in a group home were ineffective.

Although D.F. was mildly, not grossly, malnourished, we are not prevented from concluding that the State presented evidence of specific occasions where D.F.'s failure to take medication and take care of himself resulted in substantial harm to his well-being. We note that the malnutrition followed shortly after D.F.'s last discharge from a group home. Thus, the trial court did not err in adopting the magistrate's finding that the State presented clear and convincing evidence that, without treatment, D.F. would pose a real and present threat of substantial harm to himself.

B. Whether the Trial Court Erred By Adopting the Magistrate's Finding that there were No Least Restrictive Treatment Alternative Available, under Subsection (b)

D.F. argues that the State failed to show by clear and convincing evidence that there were no other least restrictive placement alternatives. Particularly, D.F. maintains that he is not a dangerous individual and can survive safely with the help of others. D.F. notes that Dr. Hernandez testified about less restrictive alternatives but preferred that D.F. be in a closed facility in Sarasota County. D.F. also recounts that Dr. Hernandez testified that other facilities outside of Sarasota County were willing to accept D.F. if he was willing to go; D.F. testified he was willing to go to a group home.

However, D.F. ignores the evidence that his previous group home placements "backfired." Dr. Hernandez also testified that he recommended the facility in Sarasota County because D.F. refused to go elsewhere. Dr. Hernandez testified, without rebuttal, that D.F. did not have family or friends to care for him. D.F.'s testimony that he could stay with a friend or roommate falls short of suggesting that either was willing and able to help him.

After hearing the testimony, the magistrate recommended the Sarasota County closed facility for placement, finding less restrictive alternatives inappropriate. Under the circumstances, the magistrate's finding was supported by competent, substantial evidence. See B.L.R. v. State, 74 So.3d 173, 176 (Fla. 1st DCA 2011) (holding that the evidence supported the trial court's order committing appellant to a maximum-risk facility when "the trial court focused on the fact that less restrictive options had been unsuccessful in protecting the public from [a]ppellant's continued delinquency"); see also Singletary v. State, 765 So.2d 180, 181 (Fla. 1st DCA 2000) (holding the State failed to prove less restrictive treatment alternatives were unavailable when Ms. Singletary's mother testified that she would take care of her daughter and would move away from their harmful environment); Williams v. Davis, 459 So.2d 406, 408 (Fla. 1st DCA 1984) ("Once the hospital makes a prima facie showing that the patients meet the criteria, the hearing officer is bound to grant the petition for continued involuntary placement in the absence of contrary evidence from the patient.").

V. Conclusion

The trial court did not abuse its discretion in accepting the magistrate's recommendation. Thus, we affirm the trial court's commitment order.

Affirmed.

CASANUEVA and ATKINSON, JJ., Concur.

      D.F. did not know the last name of his friend. D.F. refused to provide the last name of the roommate based on confidentiality.

      "In a Baker Act case, this law is primarily statutory, so the determination of the correct law is a relatively simple process." Id. (citing §§ 394.451-.4789).

      D.F. also argues that section 394.467(1)(a)(2)(b) is inapplicable. Because section 394.467(1)(a)(2)(b) is inapplicable, we focus on D.F.'s first two arguments.

      Dr. Hernandez also testified that, without treatment, D.F. has "a higher risk to be wandering the neighborhood, getting lost, maybe being a victim of exploitation due to his mental incapacity to make decisions." However, there was no evidence of any recent behavior that indicated a likelihood that D.F. would wander, get lost, or be exploited. See Boller v. State, 775 So.2d 408, 410 (Fla. 1st DCA 2000). This testimony, alone, is insufficient to establish any real and present threat of substantial harm to D.F.'s well-being. See Schexnayder, 495 So.2d at 852. However, the State provided other evidence of self-neglect D.F. would suffer if he was discharged.


author: Per Curiam.

text:
    SPRINGHILL MISSIONARY BAPTIST CHURCH, INC., Petitioner, v. Gerald E. MOBLEY, Respondent.
    No. 1D17-1218
    District Court of Appeal of Florida, First District.
    July 9, 2018 Rehearing Denied August 27, 2018
    Michael M. Brownlee and David A. Corso of Fisher Rushmer, P.A., Orlando, for Petitioner.
    Gerald E. Mobley, pro se, Respondent.
   Per Curiam.

The Springhill Missionary Baptist Church of Gainesville terminated Gerald Mobley's membership, and Mobley sued. After the trial court denied the church's motion to dismiss, the church petitioned this court for a writ of prohibition, arguing that the lower court lacks jurisdiction.

Mobley's initial complaint raised claims of slander, libel, and a First Amendment violation. It alleged Mobley had been a church deacon for three years when the church's pastor and the deacon-board chairman called a special meeting to accuse Mobley of heresy. Regarding the slander claim, Mobley alleged the pastor and chairman falsely accused Mobley "of being a Heretical Apostate committing acts against [the] Church, Spiritual Beliefs, Faith and God orally and publicly in the presence of members of [the] Church Community/Family." Regarding the libel claim, Mobley alleged the pastor and chairman wrote an open letter, made available to all members of the church, disparaging Mobley's good name. Mobley claimed entitlement to $3 million in damages.

The church moved to dismiss, arguing the ecclesiastical abstention doctrine deprived the lower court of subject-matter jurisdiction. The court agreed and dismissed. But the court granted Mobley leave to file an amended complaint alleging additional facts that would support exercise of subject-matter jurisdiction.

Mobley amended his complaint, raising claims of slander, libel, and "Actual Malice and Negligent Deformation [sic]." The new complaint omitted references to heresy and described the church's actions in more general terms. Mobley accused the church of spreading "false statements," "hearsay and malicious rumors," and remarks of a "disparaging derogatory nature." The amended complaint's only specifics came through an attached letter, incorporated into the pleading. See Fla. R. Civ. P. 1.130(b) ("Any exhibit attached to a pleading must be considered a part thereof for all purposes."). That letter, signed by the pastor and deacon chairman, told Mobley his membership was terminated. The letter explained that Mobley's public and private "heretical statements" regarding the inerrancy of the Bible and the divinity of Jesus Christ caused the termination. The letter also noted that the church's action "was required to maintain the integrity of [the] church's doctrine, and to protect the church from false teaching."

The church moved to dismiss the amended complaint, again relying on the ecclesiastical abstention doctrine. After a hearing on the motion, the court announced it would review Mobley's claims to see if they constituted an exception to the doctrine and would rule accordingly. The court then issued an order denying the motion to dismiss without explanation, and the church filed this petition for writ of prohibition.

The ecclesiastical abstention doctrine, also known as the church autonomy doctrine, is based on the Free Exercise Clause of the First Amendment. Malichi v. Archdiocese of Miami , 945 So.2d 526, 529 (Fla. 1st DCA 2006). The doctrine prevents courts from reviewing disputes concerning "theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required." Id. (quoting Watson v. Jones , 80 U.S. 679, 733, 13 Wall. 679, 20 L.Ed. 666 (1871) ). Courts have treated the doctrine as a jurisdictional bar, see Flynn v. Estevez , 221 So.3d 1241, 1247 (Fla. 1st DCA 2017), and granted petitions for writs of prohibition on that basis, see, e.g. , Archdiocese of Miami, Inc. v. Minagorri , 954 So.2d 640 (Fla. 3d DCA 2007) ; Se. Conference Ass'n of Seventh-Day Adventists, Inc. v. Dennis , 862 So.2d 842 (Fla. 4th DCA 2003) ; see also DHL Express (USA), Inc. v. State, ex rel. Grupp , 60 So.3d 426, 428 (Fla. 1st DCA 2011) (noting that a writ of prohibition is appropriate when there are no disputed issues of fact and "the lower tribunal is poised to proceed without subject-matter jurisdiction").

A lawsuit does not, of course, become a theological controversy just because one of the litigants is a church. See Flynn , 221 So.3d at 1247. We therefore must consider "the nature of the dispute and whether it can be decided on neutral principles of secular law without a court intruding upon, interfering with, or deciding church doctrine." Id. ; see also Malicki v. Doe , 814 So.2d 347, 357 (Fla. 2002) (noting that court must determine whether a dispute is about "discipline, faith, internal organization, or ecclesiastical rule, custom or law," or whether it involves "purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization").

We conclude that resolving any claims in Mobley's inartfully drafted amended complaint would require a court to intrude into church doctrine in violation of the ecclesiastical abstention doctrine. Therefore, the doctrine prevents litigation of this dispute and the lower court lacks jurisdiction to proceed.

PETITION GRANTED .

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


author: Kelsey, J. Winsor, J., dissenting.

text:
    Jennifer D. DEMMING, Appellant, Cross-Appellee, v. Frederick D. DEMMING, Appellee, Cross-Appellant.
    No. 1D17-401
    District Court of Appeal of Florida, First District.
    July 9, 2018
    Jennifer D. Demming, pro se, Appellant, Cross-Appellee.
    Gordon Edward Welch, Pensacola, for Appellee, Cross-Appellant.
   Kelsey, J.

We have a jurisdictional conundrum in this dissolution of marriage case, because the trial court entered two orders, five months apart, both of which may have resolved all dissolution issues between the parties. After rendition of the earlier order, the former wife timely moved for rehearing, which was denied. Neither party appealed.

A couple of months later, the former wife moved for entry of a final judgment, and the parties then engaged in informal letter-writing to the trial judge about making various changes to the earlier order, including addressing the issues the former wife had raised in her motion for rehearing directed to the earlier order. Ultimately the trial court entered the later order, different in some respects from the earlier order. From the later order, the former wife appealed and the former husband cross-appealed.

Because the earlier order appeared to be a final, appealable order, we directed the parties to show cause why the appeal and cross-appeal from the later order should not be dismissed as untimely. The former wife asserts two reasons why she believes the earlier order was not final, while the former husband acknowledges that the appeal and cross-appeal may be untimely. Upon consideration of the former wife's arguments and our own analysis of the earlier order, we dismiss this appeal and cross-appeal as untimely.

Jurisdictional Principles.

We are required to dismiss an untimely appellate proceeding. See Miami-Dade County v. Peart , 843 So.2d 363 (Fla. 3d DCA 2003). The parties cannot confer jurisdiction where none exists, and we are not limited to the parties' arguments in determining the existence of jurisdiction. Rather, "[w]e have an independent obligation to assess our jurisdiction in every case ...." Shannon v. Cheney Bros. Inc. , 157 So.3d 397, 399 (Fla. 1st DCA 2015). Having considered the parties' responses to our show-cause order and the governing law, we dismiss this appeal as untimely.

The Earlier Order.

In the earlier order, the trial court approved and adopted as an order of the court the amended report and recommendations of a general magistrate. We have examined two grounds the former wife raises as demonstrating that the earlier order was not appealable, and one other potential issue that we identified. We address each potential issue from the earlier order in full below, and then address the effect of the later order.

The issues arising from the earlier order are as follows (the first two being raised by the former wife). (1) The trial court's order did not expressly state on its face that the marriage was dissolved, but rather adopted the general magistrate's recommendation of dissolution, requiring review of both documents to discern that the marriage was dissolved. (2) The order rejected a valuation of the former husband's personal property without placing a new value on the property and without adjusting equitable distribution to reflect the rejection of the personal property valuation. (3) The trial court adopted the magistrate's recommended formula for determining the former wife's share of the former husband's military retirement, but because the former husband had not retired, "reserved jurisdiction" to calculate the amount due upon the former husband's future retirement.

(1) No Dissolution on Face of Order. We reject the former wife's argument that the absence of an express statement of dissolution on the face of the trial court's order kept that order from being final and appealable. The magistrate's report recommended that the trial court order that "[t]he marriage is irretrievably broken and should be dissolved." The trial court's order "ratified, approved, and incorporated" the magistrate's report, and went on to "adopt[ ] each and every recommendation contained therein as this Court's Order." By approving and adopting the recommendation of dissolution among other aspects of the report and recommendation, the trial court's order was legally sufficient to dissolve the marriage. Norris v. Norris , 28 So.3d 953, 955 (Fla. 2d DCA 2010) (finding a trial court order approving magistrate's recommendation that the marriage be dissolved was final and appealable where it confirmed, ratified, and adopted the magistrate's report as an order of the court). We recognize that, as the former wife has experienced, it may be difficult to help third parties understand they must read the trial court's order in conjunction with the magistrate's recommendation in order to divine that the marriage was dissolved. This logistical problem does not, however, render the earlier order non-final.

(2) Rejection of Personal Property Value. The trial court's earlier order rejected the magistrate's $12,000 valuation of the former husband's personal property, as not supported by competent substantial evidence. The trial court did not, however, take evidence to establish an appropriate valuation or adjust the overall equitable distribution. While this may well have been an issue for appeal, it does not on its face render the earlier order non-final.

(3) Reservation of Jurisdiction to Calculate Former Wife's Share of Former Husband's Military Retirement. The former husband is active-duty military and is not expected to retire for many years. The magistrate's report recommended that the former wife's share of the former husband's military retirement be calculated using a typical formula: "one half (1/2) of the fraction created by dividing the number of months the parties were married by the total number of months of military service." The magistrate's report "reserved jurisdiction to determine the amount, if necessary." The magistrate expressly considered and rejected the former wife's request that this share of retirement be calculated and reduced to present value based on date of dissolution as the beginning point and a 20-year projected date of retirement as the ending point. The magistrate discussed Diffenderfer v. Diffenderfer , 491 So.2d 265 (Fla. 1986), in which the supreme court held, "While reduction to present value might best place the benefits in proper perspective for such purposes, we decline to impose any rigid rules [about whether or not to reduce future retirement to present value] and leave the doing of equity to the trial court." 491 So.2d at 270.

The trial court's earlier order rejected the date of dissolution as the beginning point for calculating the former wife's share of the former husband's retirement benefits, instead adopting date of filing of the petition for dissolution. The trial court also declined to calculate a present value, instead stating, as had the magistrate, that it "reserves jurisdiction to determine the amount to be divided." While the phrase "reserves jurisdiction" on its face naturally causes the reader to wonder if an order is yet final, reading the phrase in its larger context reveals that both the magistrate's report and the trial court's earlier order were merely recognizing that the military retirement calculation would occur at a later date. The right, and the formula by which it would be calculated, were finally resolved. This is a fairly typical approach to the issue as allowed by Diffenderfer . See Johnson v. Johnson , 162 So.3d 137, 138 (Fla. 1st DCA 2014) (reflecting same formula used in a consent final judgment, leaving for the later retirement date the exercise of completing the fraction with amount of military service and performing the math).

The former husband's counsel explained to the magistrate that it would be highly speculative to reduce retirement to present value because the former husband had not yet retired, would not retire before the end of his current enlistment, and might receive disability in lieu of retirement due to injuries and medical conditions already suffered during military service-and the former wife would not be entitled to a share of disability payments. To leave the final calculation for a future date when the variables are established does not prevent orders utilizing this approach from becoming final and appealable. See generally Work v. Provine , 632 So.2d 1119 (Fla. 1st DCA 1994) (noting courts retain jurisdiction to enforce their orders).

The Later Order.

The later order is not a classic "republished" order, because it is different from the earlier order. See Churchville v. Ocean Grove R.V. Sales, Inc. , 876 So.2d 649, 651 (Fla. 1st DCA 2004) (holding republication of an earlier order does not open a new window for appeal); see also Hollifield v. Renew & Co, Inc. , 18 So.3d 616 (Fla. 1st DCA 2009) (holding trial court lacks authority under Fla. R. Civ. P. 1.540(b) to republish an order so a party that negligently missed the appeal deadline can take a timely appeal).

The later order differed from the earlier order because it expressly dissolved the parties' marriage on the face of the order, and adopted an equitable distribution plan that was adjusted to reflect the removal of the earlier valuation of former husband's personal property. It also set forth on its face several rulings recommended by the magistrate, although all of those rulings had been adopted as an order of the trial court in the earlier order. The later order also corrected technical errors in the former wife's address and the mathematically correct amount of the former husband's child support obligation.

We do not conclude, however, that entry of a modified second order, long after expiration of the deadline to appeal an earlier order addressing the same issues, created a new right to appeal. The parties failed to appeal the earlier order, despite thinking it erred in several respects. The question is whether the earlier order was final and appealable, and it was. The failure to have appealed it bound the parties to it, absent a showing of a material change in circumstances.

As noted earlier, the former wife timely moved for rehearing of the earlier order, arguing that "there are numerous reversible errors [she raised ten] in the magistrate's report and the court's order." Her motion for rehearing expressly represented that it had to be filed within 15 days after rendition of the court's order, to preserve her right to appeal that order. While the former wife's understanding of the finality of the earlier order is not controlling, it was correct as explained above. Yet after her motion for rehearing was denied, she failed to appeal. Rather, she immediately moved to disqualify both the magistrate and the trial judge for not accepting her rehearing arguments. The motion to disqualify was denied a month later.

Three more weeks passed before the former wife filed a "motion for final judgment," arguing only that she needed a single judgment stating on its face that the marriage was dissolved. Apparently she also filed with that motion a new proposed final judgment that addressed every issue as to which she disagreed with the earlier order, although her proposed judgment is not in our record. This filing set off a detailed objection from the former husband through his counsel, and a back-and-forth series of e-mails between the parties and letters to the trial court, ultimately culminating in entry of the later order, apparently without a hearing and without addressing the propriety of the procedure.

The earlier order was final and appealable for the reasons set forth above. Once the former wife's timely motion for rehearing was denied, the time to appeal began to run, and expired without an appeal's having been filed. At that point, the earlier order was final and binding on the parties and had res judicata effect. See Donaldson Engineering, Inc. v. City of Plantation , 326 So.2d 209, 210 (Fla. 4th DCA 1976). By failing to appeal, the parties were bound by the earlier order. Their subsequent arguments arose out of purported errors in the order, not out of changed circumstances, and thus after rehearing was denied, their remedy was an appeal. See id. ("If the City had felt that such factual finding was erroneous, it should have sought a rehearing or sought a reversal upon appeal.").

Modification under Florida Rule of Civil Procedure 1.540 would not apply to a judicial error.

Donaldson Engineering, 326 So.2d at 210. The only other avenue to modify a final order in a family law case is by showing changed circumstances. See, e.g., §§ 61.13, 61.14, Fla. Stat. (2017) (authorizing changes in child issues and alimony, respectively, upon a showing of changed circumstances). Not even that avenue of modification is available for property-rights issues, however. The lower tribunal had no statutory authority to enter post-judgment orders on the parties' property rights. See Mason v. Mason , 371 So.2d 226, 227 (Fla. 2d DCA 1979) ; Pruitt v. Pruitt , 370 So.2d 813 814 (Fla. 3d DCA 1979) Sistrunk v. Sistrunk , 235 So.2d 53, 55 (Fla. 4th DCA 1970) ; see also Bragdon v. Bragdon , 393 So.2d 73, 74 (Fla. 5th DCA 1981) (rejecting parties' attempt to revisit dissolution judgment absent changed circumstances, because "Trial courts cannot act as their own appellate courts and review their decisions months after they are made.").

After denying the timely motion for rehearing addressed to the earlier order, and absent any showing of changed circumstances, the trial court was without jurisdiction to modify the earlier order in the ways that it did. The later order was a nullity. Accordingly, we dismiss this appeal and cross-appeal.

DISMISSED .

Winokur, J., concurs; Winsor, J., dissents with opinion.

Winsor, J., dissenting.

The trial court's original order was not final because it left judicial work remaining. M.M. v. Fla. Dept. of Children & Families , 189 So.3d 134, 137 (Fla. 2016) ("An appeal from a final order is appropriate when judicial labor has ended."). Although the order provided a formula for distributing the former husband's retirement, it explicitly reserved jurisdiction "to determine the amount to be divided" pursuant to that formula. "The retention of jurisdiction over a matter, notwithstanding the issuance of an order, suggests judicial labor is not over." Id. at 140 ; accord Pool v. Bunger , 43 So.3d 837, 838 (Fla. 1st DCA 2010) ("The order is not a final order because the trial court's judicial labor is not complete, as reflected by the express reservation of jurisdiction to determine the amount of Appellant's child support arrearages."); Demont v. Demont , 24 So.3d 699 (Fla. 1st DCA 2009) (holding that orders reserving jurisdiction on matters that require further judicial labor are not final); see also Fischer v. Fischer , 224 So.3d 919, 919-20 (Fla. 1st DCA 2017) (collecting cases).

It is no answer to say a court always retains jurisdiction to enforce its orders. If the husband refused to pay what an order specifically required, the court could step in to enforce its earlier order. But if the husband cannot know how much to pay because the court has yet "to determine to amount to be divided," the court's stepping in is something quite different. Here, the court's language shows the judicial labor is not over.

Nor is it an answer to say the trial court should not (or need not) have reserved jurisdiction to determine the retirement divisions. Perhaps a formula with specific direction would have been enough for finality, had the court stopped there. But rightly or wrongly, the court did not stop there. Instead, it reserved jurisdiction to determine future allocations, showing that judicial labor remained.


text:
    Omar ELMOUKI, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D18-0715
    District Court of Appeal of Florida, First District.
    July 9, 2018
    Omar Elmouki, pro se, Appellant.
    Marc Peoples, Department of Transportation, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of the letter issued by the Commercial Motor Vehicle Review Board rejecting his challenge to one of the two citations he received while operating a commercial motor vehicle. We do not have jurisdiction to consider the appeal because Appellant's notice of appeal was not timely filed. Accordingly, we dismiss this appeal.

By letter dated January 18 , 2018, the Review Board informed Appellant that he was entitled to a refund for one of the citations but that he was entitled to "No Relief" for the other citation. See § 316.545(8), Fla. Stat. ("[T]he review board is authorized to modify, cancel, revoke, or sustain such penalty."). The letter-which constitutes final agency action, see Fla. Admin. Code R. 14A-1.004(7) ("The Review Board's decision ... will be final.")-was accompanied by a "Notice of Right to Appeal" stating that the letter may be appealed to a district court of appeal "within thirty (30) days of rendition of this order." The letter includes what appears to be an electronic file-stamp showing that it was filed with the clerk of the Department of Transportation on "1/17 /2018 4:14 PM" (emphasis added).

Appellant filed his notice of appeal on February 19, 2018. Because the notice was filed more than 30 days after the date the letter was filed with the clerk of the Department, we ordered Appellant to show cause why this appeal should not be dismissed as untimely. In response, Appellant argued that the appeal was timely because the thirtieth day after the date of the letter was Saturday, February 17, and the notice of appeal was filed on the next business day.

The problem with Appellant's argument is that the 30-day period for filing the notice of appeal did not commence on the date of the letter; instead, the period commenced when the letter was "rendered" by filing with the clerk of the Department. See § 120.68(2)(a), Fla. Stat. ("All proceedings [for judicial review] shall be instituted by filing a notice of appeal or petition for review in accordance with the Florida Rules of Appellate Procedure within 30 days after the rendition of the order being appealed.") (emphasis added); Fla. R. App. P. 9.020(i) ("An order is rendered when a signed, written order is filed with the clerk of the lower tribunal."). Accordingly, the period for filing the notice of appeal commenced on January 17 and expired on Friday, February 16-three days before Appellant's notice was filed.

Where, as here, the notice of appeal was not timely filed, we have no choice but to dismiss the appeal for lack of jurisdiction. See Peltz v. Dist. Court of Appeal, Third Dist. , 605 So.2d 865, 866 (Fla. 1992) ("The untimely filing of a notice of appeal precludes the appellate court from exercising jurisdiction."); Griffis v. Dep't of Bus. & Prof. Reg. , 90 So.3d 320, 321 (Fla. 1st DCA 2012) ("Because an appellate court has no jurisdiction to consider a late-filed appeal, it must dismiss the appeal."). That said, we recognize the potential confusion caused by the Review Board's letter being dated the day after it was filed with the clerk of the Department. See Pompi v. City of Jacksonville , 872 So.2d 931, 932 (Fla. 1st DCA 2004) (reversing order denying motion to vacate final judgment where the file-stamps on the judgment included inconsistent dates that caused the appellant to miss the deadline for filing a notice of appeal). However, any relief to which Appellant may be entitled based on the conflicting dates must be sought from the Review Board in the first instance. See Durando v. Palm Beach Cty. , 719 So.2d 1258 (Fla. 1st DCA 1998) ; W.T. Holding, Inc. v. Agency for Health Care Admin. , 682 So.2d 1224, 1225 (Fla. 4th DCA 1996).

Accordingly, for the reasons stated above, this appeal is dismissed. The dismissal is without prejudice to Appellant's right to petition the Review Board to vacate and reissue the letter.

DISMISSED .

Roberts, Wetherell, and Osterhaus, JJ., concur.

      The Review Board was created within the Department of Transportation and has the authority to "review any penalty imposed upon any vehicle or person under the provisions of [chapter 316] relating to weights imposed on the highways by the axles and wheels of motor vehicles, to special fuel and motor fuel tax compliance, or to violations of safety regulations." § 316.545(7), Fla. Stat.


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

text:
    Anthony Paul PEOPLES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5875
    District Court of Appeal of Florida, First District.
    July 9, 2018
    Andy Thomas, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

In 2013, Appellant stabbed nineteen-year old Tyquon Prim, plunging the knife more than six inches into Prim's chest. Prim said, "I think I'm going to die," as he staggered to a witness, collapsed, and died. Appellant was charged with second-degree murder.

Appellant waived his right to a jury trial. Appellant eventually participated in a bench trial, resulting in his second-degree murder conviction and life sentence. He now argues that his behavior and indecision as to whether to enter a no contest plea and whether to waive his right to a jury trial should have again resulted in a reconsideration of his competency and another delay in his trial. He further asserts the trial court should not have accepted his waiver of a jury trial. Finally, he argues that the evidence of his actions stabbing the young man to death was not sufficient to show "ill will, hatred, evil intent or spite."

I. FACTS AND PROCEEDINGS AT TRIAL

Appellant was not brought to trial until December 2016. In the three intervening years between the fatal stabbing and trial, Appellant received treatment to restore his competency, appeared before the court several times, and was evaluated by several experts, some of whom opined that Appellant intentionally exaggerated his symptoms and refused medication for the purpose of avoiding trial. Appellant was found competent for trial and was ordered to take his prescribed medication, but when he continued to refuse, the court ordered involuntary medication by injection. This court denied Appellant's petition for review of that order without opinion. Peoples v. State , 205 So.3d 594 (Fla. 1st DCA 2016) (table).

When the date of jury selection arrived, defense counsel indicated that Appellant had been found competent by a defense expert the previous week and there was no reason to believe otherwise. Appellant appeared and said he wanted to "behave" and "cooperate," but wanted to present an insanity defense and had not been told by defense counsel what his defense would be. The court noted that a notice of insanity defense had not been filed; the State explained it was because Appellant refused to cooperate with the experts sent by his counsel for the purpose of preparing such a defense. Appellant said he had not been cooperating because his medication had not been helping, and he wanted more time to talk to his counsel about his defense.

Appellant wavered when asked if he wanted to have a jury or bench trial, but when the attorneys and the court discussed jury selection, Appellant emphatically stated he did not want a jury trial and felt it was in his best interest to have a bench trial. The court inquired as to whether Appellant understood the rights he was waiving, and Appellant indicated he did. However, Appellant also stated, "[T]here's two things that I want done is-is to have a judge trial, and ... and to plead my insanity." Later in the colloquy, Appellant again said he understood his decision and did not need more time to discuss the issue, but said, "I understand I want a judge trial as far as my insanity goes." After the court concluded its inquiry and confirmed with jail staff that Appellant was current on his medication, it accepted the waiver of jury trial. Appellant signed a written waiver.

The bench trial was set for the following day. At the start of proceedings, Appellant indicated he wanted to enter a no contest plea rather than go forward with the trial. The court stated that Appellant appeared competent and accepted Appellant's plea after conducting a colloquy, noting that the "presumptive sentence" without a downward departure was twenty-one years' imprisonment. However, after the court proceeded to sentencing and the State announced it was seeking a life sentence, Appellant interrupted and stated that he would not take a life sentence, but rather believed he would get the lowest permissible sentence if he entered a plea.

The parties indicated they were prepared to proceed to trial, but Appellant stated he did not want a trial and said he understood that twenty-one years' imprisonment was the minimum sentence he could receive without a departure, and life was the maximum. After Appellant satisfactorily answered additional plea colloquy questions, the court again accepted Appellant's no contest plea; however, when the court imposed a life sentence, Appellant again interrupted and asked if he could have a trial. While the court was concerned about how to proceed, it did not think that Appellant's indecision suggested a competency issue, stating, "I'm not dealing with competency. I'm talking about a defendant who goes back and forth about the waiver of their right to a trial, so that's my-I don't think there's any issue as to his competency."

The State noted Appellant's history of malingering, and the defense acknowledged records showing that Appellant "exaggerates and manipulates." The court concluded that the safest course of action would be to allow Appellant to withdraw his plea and proceed with the bench trial.

During the bench trial, Larry Smith, the owner of the Hotel Liquidation Center, testified that while standing outside his business, he saw a black male wearing a red top approach, carrying something that looked like a jigsaw tool. The man ran across the street and out of view. Seconds later, a different black male ran up to Smith with his hands on his chest, bleeding, and fell over. The injured man said, "I think I'm going to die." Smith called for help, and John Flynn and Victor Jose arrived. Flynn followed the man who had passed by, and Jose looked after the injured man while Smith called for police and an ambulance. While on the phone with police, Smith got into his truck to pursue the man. Smith saw Flynn pointing to a house, saying that's where the man was. Flynn got in Smith's truck, and they watched the man enter and exit the house. They gave police the address, and police quickly arrived. Smith saw police take the man into custody, and noticed that at that time he was wearing a blue top. Smith testified that he did not recognize either of the two men and he did not hear any yelling or other noise before the incident.

John Flynn was working at Hotel Liquidation when he heard Smith call his name. Flynn ran to the front of the building and saw a man in red running across the street and through a grassy area. Flynn ran after the man. The man ran behind two homes, and Flynn briefly lost sight of him. When he came into view again, Flynn noticed the man was wearing a blue shirt and had something red in his hand. Flynn did not see what the man did with the red shirt, but he did see him throw something. The man ran inside one of the houses. Smith arrived in his truck, and they saw the man come in and out of the house. Police arrived and took the man into custody.

Deputy Busbee testified that officers were dispatched to the reported stabbing at 10:20 a.m., and he arrived at the scene just minutes later. When he arrived, he was waved down by two individuals in a truck, who pointed him toward an individual wearing a blue shirt and blue jeans, heading into a residence. Deputy Busbee took the man into custody and identified him as Appellant. Deputy Busbee learned that Appellant's grandmother lived at the residence.

Officer Hall testified that his K-9 picked up a track near Hotel Liquidation and followed it to a residence. The dog alerted to a porch and attempted to get under the porch. Officer Hall looked under the porch and saw a knife. From there, the dog tracked to the location where Deputy Busbee had Appellant in custody.

A crime scene technician recovered a large kitchen knife, covered in what appeared to be blood, from underneath the porch at a residence. The blade of the knife was seven inches long. In a trash can near the back yard of the residence, the technician found a red sweater with suspected blood on it. These items were sent for analysis. Another crime scene analyst responded to the hospital and attended the victim's autopsy. A DNA sample was taken from the victim, who had an oval wound approximately one inch wide and two inches long on his chest.

Investigator Jackson made contact with Appellant after his arrest. Appellant had a stain on his shirt that appeared to be blood. Appellant told the investigator he cut his hand on a rake. A test of the stain indicated it was Appellant's blood. When the investigator asked Appellant about a red sweatshirt, Appellant denied owning one.

Investigator Jackson showed Appellant a picture of the victim, and Appellant said he "looked like a punk." When the investigator became aware that Appellant had been previously detained under the Baker Act, he asked if Appellant knew right from wrong. Appellant said he did.

A DNA analyst tested samples from the knife and a red sweatshirt; both tested positive for the presence of blood. The knife handle did not return DNA results, but the blood on the knife and the sweater matched the victim. The analyst also swabbed the sweater for skin cells to determine who was wearing it, and obtained a mixture of two individuals; Appellant's DNA matched one of those profiles, and the victim was excluded as a contributor.

Dr. Minyard, a medical examiner, performed the autopsy and concluded the stab wound collapsed the victim's lung and caused heavy bleeding. The depth of the stab wound was six and one-half inches. The knife was plunged through the victim's rib cage and right lung, collapsing the lung. The direction of the wound was from front to back, from the left side of the chest toward the right side, in a slightly downward movement. The wound caused heavy bleeding into the right pleural cavity. Dr. Minyard examined a knife provided by the sheriff's office and concluded it was consistent with the injury. The cause of death was a stab wound to the chest, and the manner of death was homicide.

After the State rested, Appellant moved for judgment of acquittal, arguing that there was no direct testimony that anyone saw the stabbing, and noting that Appellant's fingerprints and DNA were not found on the knife. The court denied the motion.

Appellant testified that he did not remember stabbing anyone, but that he remembered Prim from "going back to school with him" and "in a dream," but said "nothing never happened aggressive between me and [him]." He denied telling an officer that Prim "looked like a punk."

The court denied the defense's renewed motion for judgment of acquittal. During closing arguments, the defense argued the State had not proven second-degree murder beyond a reasonable doubt, and that "[a]t most it would be a manslaughter charge," but did not elaborate.

The court found Appellant guilty of second-degree murder, declined the defense's request for a downward departure, and imposed a sentence of life imprisonment. The defense noted for the record that it "was not caught off guard" by having to go to trial that day, and that Appellant had repeatedly refused to cooperate with the attempts to pursue an insanity defense. Defense counsel agreed with the court's statement that Appellant "has the capacity to cooperate-when he chooses to."

II. ANALYSIS

A. Trial Court's Determination of Appellant's Competency

"The test for whether a defendant is competent to stand trial is 'whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.' " Peede v. State , 955 So.2d 480, 488 (Fla. 2007) (quoting Dusky v. United States , 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) ). If reasonable grounds to question the defendant's competency arise at any material stage of the proceedings, the court must immediately conduct a competency hearing. Fla. R. Civ. P. 3.210(b); see also Cotton v. State , 177 So.3d 666, 668 (Fla. 1st DCA 2015). However, once a defendant has been declared competent, he is presumed competent in subsequent proceedings, and a new competency hearing is necessary only if a "bona fide question as to the defendant's competency has been raised." Boyd v. State , 910 So.2d 167, 187 (Fla. 2005). "[A] trial court's determination of competency supported by competent, substantial evidence will not be disturbed on appeal." Gore v. State , 24 So.3d 1, 10 (Fla. 2009).

This court has rejected mere equivocation as a reasonable ground to question competency. See Noisette v. State , 661 So.2d 350, 350 (Fla. 1st DCA 1995) (concluding the defendant's indecisiveness about whether to testify did not require the court to conduct a second competency evaluation). And while the trial court here was concerned about Appellant's behavior, it specifically found that Appellant's indecision did not create a competency issue.

Appellant argues that the court implicitly acknowledged doubt as to Appellant's competency when it questioned jail personnel to ensure Appellant had received his medication. Appellant asserts that jail personnel's assurance that Appellant was current on his medication was insufficient to alleviate doubt as to his competency, because the record is unclear as to whether he had received both an antipsychotic and a mood stabilizer. However, while Appellant is correct that the testimony from jail personnel does not specify the content of Appellant's injections, there is no suggestion on the record that Appellant was not receiving both medications. To the contrary, the witness stated that, other than one dose, Appellant had taken his medication voluntarily since entry of the involuntary medication order.

Even if Appellant had not been taking the mood stabilizer, there was testimony at the involuntary medication hearing that if a liquid mood stabilizer was unavailable and Appellant refused to take it in pill form, it would still be beneficial for Appellant to take only the antipsychotic medication. Given the court's multiple statements that it found Appellant competent, its questioning regarding whether Appellant was current on his medication did not constitute reasonable grounds to require a formal competency hearing, but only a thorough and commendable effort to ensure that Appellant's competency was not in doubt.

Further, defense counsel acknowledged Appellant's history of malingering and repeatedly represented that there was no basis to disagree with the court's findings that Appellant was competent. Indeed, defense counsel noted that Appellant had been evaluated the previous week and found competent. While a court cannot make a new competency determination based only on the stipulations of the parties, see, e.g. , Macaluso v. State , 12 So.3d 914, 915 (Fla. 4th DCA 2009), the fact that defense counsel did not request an evaluation and agreed with the court's view of Appellant's competency is a relevant consideration. See Hodgson v. State , 718 So.2d 330, 331 (Fla. 4th DCA 1998) ("Although counsel's failure to request a competency evaluation is not, alone, dispositive, it is evidence that competency to stand trial was not, at that time, in doubt and that defense counsel saw no need for a competency hearing.").

In light of Appellant's history of malingering, the evidence suggesting he was current on his medication, his counsel's representation that he was indeed competent, and the court's observations, the decision not to conduct further competency proceedings was supported by the record and was not an abuse of discretion. See Barnes v. State , 124 So.3d 904, 912 (Fla. 2013) ; Gore , 24 So.3d at 9.

B. Appellant's Waiver of Jury Trial

Appellant's second argument is that the trial court failed to ensure Appellant understood what rights he waived when he agreed to a bench trial, including the right to a unanimous jury verdict. In addition, Appellant argues that he was not correctly informed about the role of the judge and jury in determining facts, and that he mistakenly thought he could raise an insanity defense in the bench trial.

Appellant did not preserve this issue by raising it below. After waiving his right to a jury trial, he did not thereafter move to withdraw that waiver. Because Appellant did not preserve this issue below, we will only consider whether fundamental error occurred in the trial court's decision to allow Appellant to waive his constitutional right to a jury trial. See United States v. Williams, 559 F.3d 607 (7th Cir. 2009) (holding that where defendant failed to challenge his jury-trial error below, court considered issue raised for the first time on appeal under "plain error" standard). We consider the federal "plain error" standard as similar to Florida's "fundamental error" standard, although we recognize the two concepts are not identical. Compare Puckett v. United States, 556 U.S. 129, 135-136, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (discussing, in the context of a claim that government breached plea agreement, four prongs of federal test for plain error, and noting that appellate review is "strictly circumscribed") with Maddox v. State, 760 So.2d 89, 95-96 (Fla. 2000) (discussing fundamental sentencing errors in the context of the Criminal Appeals Reform Act of 1996, noting that fundamental errors may be addressed on appeal where the error " 'reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error ' ") (emphasis added) (quoting Gudinas v. State , 693 So.2d 953, 961 (Fla. 1997) ).

First, we clarify the issues involved. When a defendant challenges the adequacy of the jury-waiver inquiry, he asserts that the trial court failed to conduct a legally sufficient colloquy. When a defendant challenges the voluntariness of the waiver, he asserts that, notwithstanding the adequacy of the court's inquiry, the waiver was not in fact knowingly and voluntarily made. While courts address the adequacy of the jury-waiver inquiry on direct appeal, challenges to the voluntariness of the waiver are properly made by postconviction motion. Compare Christie v. State , 737 So.2d 1157, 1158 (Fla. 1st DCA 1999) (holding that challenge to adequacy of inquiry for waiver of jury trial should have been raised on direct appeal, rather than in a postconviction motion), Morris v. State , 680 So.2d 544 (Fla. 1st DCA 1996) (reversing inadequate jury-trial waiver on direct appeal where defendant orally affirmed that he wanted to waive jury trial, but the court made no further inquiry and no written waiver was filed), and Upton v. State , 644 So.2d 181 (Fla. 1st DCA 1994) (reversing conviction on direct appeal because written waiver of jury trial signed only by defendant's attorney was inadequate without further inquiry as to whether defendant concurred in the waiver), with Schwab v. State , 814 So.2d 402 (Fla. 2002) (considering postconviction defendant's claim that he did not knowingly, intelligently, and voluntarily waive his right to a jury), Chacon v. State , 735 So.2d 569 (Fla. 2d DCA 1999) (stating that challenge to whether a jury-trial waiver was freely and knowingly given is cognizable in a postconviction motion), and Parker v. State , 636 So.2d 794 (Fla. 1st DCA 1994) (concluding that written waiver was legally sufficient, and any challenge to whether waiver was in fact freely and knowingly given should be raised in postconviction motion).

Appellant appears to challenge both the adequacy of the waiver, because the colloquy purportedly lacked two essential inquiries, and its voluntariness, because it was based on his mistaken belief that the insanity defense would be available to him in a bench trial.

Appellant argues the jury waiver colloquy lacked two essential inquiries-whether Appellant understood the roles of jury and judge in a bench and jury trial, and whether he understood a jury verdict required unanimity. However, while it is the better practice for trial courts to use both a thorough on-the-record waiver and a written waiver, either is legally sufficient. Tucker v. State , 559 So.2d 218 (Fla. 1990). Indeed, where the record contains a written waiver of jury trial signed by the defendant, no further inquiry by the court is required. See, e.g. , State v. Upton , 658 So.2d 86, 87 (Fla. 1995) ("When the record contains a written waiver signed by the defendant, the waiver will be upheld."); Zinnerman v. State , 985 So.2d 672, 674 (Fla. 2d DCA 2008) (noting that an "unadorned written waiver" is legally sufficient); Parker , 636 So.2d at 795 (concluding that written waiver executed in conformity with Florida Rule of Criminal Procedure 3.260 is legally sufficient, and trial court's failure to make any inquiry to establish voluntariness of the waiver did not require reversal). Here, the record contains a formal written waiver signed by Appellant pursuant to rule 3.260, and additional inquiry by the court into Appellant's understanding of the waiver. Thus, the trial court's inquiry was adequate as a matter of law.

As to the voluntariness of the colloquy, even if this argument could be raised on direct appeal, we would reject it. Appellant relies principally on an attempt to analogize to several cases in the context of a plea colloquy-not a jury waiver. He argues that, as in cases where the defendant refers to a possible defense during a plea colloquy, the court has a duty to inquire further to ensure that the waiver of defenses, when the defendant waives the right to a jury trial, is knowing and voluntary. Davis v. State , 605 So.2d 936 (Fla. 1st DCA 1992) (explaining that where a defendant claims a defense during the plea proceeding, the court is "obligated to inquire further, to determine whether a defense exist[s], and if so, whether [defendant] was aware of, and knowingly waived, such possible defense."); State v. Kendrick , 336 So.2d 353 (Fla. 1976) ; State v. Lyles , 316 So.2d 277 (Fla. 1975) ; Williams v. State , 316 So.2d 267, 271 (Fla. 1975). Appellant claims that, by analogy, the court was obligated to inform him that the insanity defense was not available in either a bench or jury trial, and that because the court did not do so, his jury trial waiver was invalid, like the waivers of defenses in Davis, Kendrick , Lyles , and Williams . This analogy fails for several reasons.

First, as recognized in Dumas v. State , 439 So.2d 246, 250 (Fla. 3d DCA 1983), there is a "crucial distinction" between the consequences of a guilty plea and those of a jury trial waiver. The Dumas court recognized that "[w]hile a guilty plea ends in judgment, jury waiver is often a tactical decision," and the Florida Rules of Criminal Procedure reflect this difference, establishing "more stringent requirements for a valid guilty plea than for a valid waiver of jury trial." Id. at 250-51. Second, while the plea decisions discussed in the cases cited by Appellant involved the trial court's failure to ensure the defendants knowingly waived available defenses , Appellant was not waiving an available defense by electing a bench trial, as he could not raise an insanity defense regardless of how he proceeded to trial. Third, to the extent the court was required to cure Appellant's misconception, the court did state on the record, in Appellant's presence, that there had been no notice of an insanity defense, and Appellant appeared to acknowledge the issue, saying that he had not cooperated with the experts sent by his defense counsel. Thus, this argument is without merit.

C. Sufficiency of Evidence Proving Second-Degree Murder

In our review of the sufficiency of the evidence, all evidence is viewed in the light most favorable to the verdict, and all inferences are interpreted in favor of the verdict. See Lynch v. State, 293 So.2d 44, 45 (Fla. 1974). Here, it is helpful to compare the elements of the greater crime of premeditated first-degree murder-a capital crime punishable by death-with second-degree murder, which is not a capital felony. Compare § 782.04(1)(a), Fla. Stat. (2013) ("The unlawful killing of a human being[,] ... [w]hen perpetrated from a premeditated design to effect the death of the person killed or any human being ... is murder in the first degree and constitutes a capital felony[.]") with § 782.04(2), Fla. Stat. (2013) ("The 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 premediated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree[.]") (Emphasis added).

The evidence required to prove premeditation has been defined by our supreme court:

Premeditation is more than a mere intent to kill; it is a fully formed conscious purpose to kill [which] may be formed a moment before the act but must exist for a sufficient length of time to permit reflection .... Whether or not the evidence shows a premediated design to commit a murder is a question of fact ... which may be established by circumstantial evidence.

Roberts v. State, 510 So.2d 885, 888 (Fla. 1987) (quoting Wilson v. State, 493 So.2d 1019, 1021 (Fla. 1986) ) (emphasis added). Moreover, premeditation "may be evinced by the defendant's actions in choosing and transporting a certain weapon and employing that weapon in performance of the killing." Floyd v. State , 850 So.2d 383, 397 (Fla. 2002) (citations omitted).

As the supreme court recognized in State v. Bryan, 287 So.2d 73, 76 (Fla. 1973), in reversing this court's decision that the trial court erred in failing to give the standard jury instruction's definition of "ill will, hatred, spite, or evil intent," jurors understand what constitutes second-degree murder, because jurors understand what kind of action demonstrates a "depraved mind" with no regard for another person's right to life: "It is frankly our view that the average juror pretty well understands what a depraved mind is, and particularly where it is noted at least in partial definition as one which has no regard for human life." Id. As the court noted, certain acts are so obviously inherently dangerous and fit squarely within the legislature's definition of an act "imminently dangerous to another and evincing a depraved mind regardless of human life although without a [premediated] design to effect the death of any particular individual." Id. at 74 n.2 (quoting Fla. Std. Jury Instr. (Crim.) ). In Bryan, the court held that the act of striking another person with a loaded pistol that discharged and killed the victim was such an act. Id. at 76. Although the court noted that some "trouble" had previously arisen between the parties, that fact was not cited as a necessary prerequisite to finding the act itself constituted second-degree murder. Id. at 73. Here, the act of plunging a seven-inch knife more than six inches into another person's chest also fits squarely within the legislature's definition of an act imminently dangerous to another, showing a depraved mind with no regard for the victim's right to life.

We recognize that, notwithstanding the supreme court's later holding in Bryan, the supreme court in 1934 held that the concept of "actual malice" necessitates that the State prove additional elements not enacted by the legislature, but somehow embedded in the statutory definition:

Ramsey was charged with the offense of murder in the second degree, one element of which offense is the evincing of a depraved mind in the act of killing the deceased. Depravity of mind is an inherent deficiency of moral sense and rectitude.
It is the equivalent of the statutory phrase 'depravity of heart' which has been defined to be the highest grade of malice.
The legal and technical sense of the word 'malice' differs from its sense in ordinary or common speech. In the technical sense it is a term of art importing wickedness and excluding a just cause or excuse. When so used it denotes a wrongful act done intentionally without just cause or excuse.
That definition may be inaccurate because no just cause or excuse can be allowed for a wrongful act. Malice in law refers to that state of mind which is reckless of law and of the legal rights of the citizen in a person's conduct toward that citizen.
It includes all acts wantonly or willfully done, that is, which any man of reason, knowledge, and ability must know to be contrary to his duty. It is implied from wrongful unjustifiable acts done on purpose or without just or legal excuse.
It is obvious, therefore, that the phrase 'evincing a depraved mind regardless of human life,' as used in the statute (Comp. Gen. Laws 1927, § 7137) denouncing murder in the second degree, was not used in the legal or technical sense of the word 'malice' as above defined. The phrase conveys the idea of 'malice' in the popular or commonly understood sense of ill will, hatred, spite, an evil intent. It is the malice of the evil motive which the statute makes an ingredient of the crime of murder in the second degree.

Ramsey v. State, 114 Fla. 766, 767-68, 154 So. 855 (Fla. 1934) (citations omitted).

This court has held that the State must prove both the statutory elements of second-degree murder and "ill will, hatred, spite or evil intent." See, e.g. , Rasley v. State, 878 So.2d 473, 477 (Fla. 1st DCA 2004) ; Davis v. State, 397 So.2d 1005, 1006-07 (Fla. 1st DCA 1981). While many cases rely on the Standard Jury Instructions in Criminal Cases for authority to support requiring the State to prove additional elements not required by the Legislature, this development in the law has occurred over many decades. See e.g., State v. Ellison, 561 So.2d 576, 577 (Fla. 1990) (citing Fla. Std. Jury Instr. (Crim.) to affirm this court's holding that defendant, driving at high speed to avoid police, crashing through blocked toll gate at 65 mph, losing control of car, and killing 16-month-old child, was not sufficient evidence of ill will, spite, hatred or evil intent);

Light v. State, 841 So.2d 623, 625 (Fla. 2d DCA 2003) (citing Fla. Std. Jury Instr. (Crim.), and noting that instruction incorporates definition of malice explicated in Reed v. State, 837 So.2d 366 (Fla. 2002), a case involving definition of aggravated child abuse).

In Hines v. State, this court discussed the difference between premeditated murder and depraved-mind murder, where the defendant pointed a gun at his girlfriend, told a "joke," and shot her, killing her. 227 So.2d 334, 335 (Fla. 1st DCA 1969). Hines was convicted of premeditated first-degree murder, but this court reversed with direction to reduce the charge to second-degree murder:

The essential distinction between first and second degree murder is the absence of the element of premeditation in second degree murder. 16 Fla. Jur., Homicide, Section 16. The evidence here clearly sustains a charge of murder in the second degree, i.e., the killing of human being, perpetrated by an act imminently dangerous to another and evincing a depraved mind regardless of human life. Section 782.04(2), Florida Statutes, F.S.A. The act of the defendant in pointing the gun at the head of the deceased was clearly imminently dangerous to human life.
The more difficult question is whether the act causing the death evinced a depraved mind regardless of human life. 'Depraved mind' within the second degree murder statute has been variously defined as importing malice in the sense of ill will, hatred, or evil intent, and as an inherent deficiency of moral sense and rectitude. Ramsey v. State , 114 Fla. 766, 154 So. 855. It has also been stated that malice is not limited in its meaning to hatred, ill will and malevolence, but 'denotes a wicked and corrupt disregard of the lives and safety of others * * * a failure to appreciate social duty.' 40 Am.Jur.2d, Homicide, Section 50.

227 So.2d at 335-36.

In Smalley v. State, the Fifth District stated:

A conviction for second degree murder requires proof that the defendant killed the victim with a depraved mind regardless of human life. See § 782.04(2) ; Roberts v. State, 425 So.2d 70, 71 (Fla. 2d DCA 1982). In turn, proof of a depraved mind may be established by proof the shooting was done with "ill will, hatred, spite, or an evil intent." See Sigler v. State, 805 So.2d 32, 34 (Fla. 4th DCA 2001) ; Rayl v. State, 765 So.2d 917, 919 (Fla. 2d DCA 2000).

889 So.2d 100, 102 (Fla. 5th DCA 2004) (emphasis added).

In this case, there was competent, substantial evidence from which the trier of fact could find that Appellant did act out with ill will, hatred, spite, or an evil intent when he stabbed the victim. Initially, we recognize that the circumstantial evidence here was sufficient as a matter of law to prove Appellant possessed the requisite mental state-no one "accidently" or "negligently" plunges a seven-inch knife blade six inches into the chest of another person. Cf. Wilson v. State, 493 So.2d 1019, 1023 (Fla. 1986) (reducing conviction for first-degree murder to second-degree murder where defendant claimed stabbing of five-year-old in chest with scissors was accidental). Circumstantial evidence can be sufficient to prove the elements of second-degree "depraved-mind" murder. Dellinger v. State, 495 So.2d 197 (Fla. 5th DCA 1986) (en banc). In Dellinger , the lack of direct evidence did not preclude a conviction for second-degree murder in light of the circumstantial evidence:

There may be, as in this case, little express testimony concerning a defendant's malice or depraved state of mind.
However, we think the jury could have inferred this necessary element of second degree murder from the evidence in this case. Here Dellinger pointed a rifle at his wife without knowing (and thus without caring) whether or not it was loaded, and then deliberately pulled the trigger, killing her. We think those facts permitted the jury to infer Dellinger had a "depraved mind regardless of human life" when he fired the rifle.

Id. at 198-99.

Thus, the circumstances surrounding the fatal act can prove ill will, spite, hatred or evil intent. Leasure v. State, 105 So.3d 5, 16-17 (Fla. 2d DCA 2012) (affirming denial of defendant's motion for judgment of acquittal in circumstantial-evidence prosecution for second-degree murder, where evidence of three gunshot wounds to victim and other evidence was inconsistent with defendant's claim of self-defense).

Here, in addition to Appellant's use of a deadly weapon to stab the victim-an act which itself could be sufficient to infer the requisite intent, cf. Gibbs v. State , 904 So.2d 432, 435 (Fla. 4th DCA 2005) (concluding that the act of pointing a loaded gun at victim's head and shooting evinces a depraved mind)-the evidence here showed that Appellant was familiar with the victim before the stabbing and thought he "looked like a punk." The trier of fact could reasonably infer enmity from Appellant's description of the victim, his admission that the two had attended school together, and the nature of the act which resulted in the victim's death. The evidence was sufficient to demonstrate that the act of stabbing was an "act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premediated design to effect the death of any particular individual." § 782.04(2), Fla. Stat. (2013).

III. CONCLUSION

Appellant's vacillating while making jury waiver and plea decisions did not give rise to reasonable grounds to question his competency, and the trial court was therefore not required to conduct additional competency proceedings. Further, the inquiry surrounding Appellant's waiver of jury trial was adequate, as the court conducted an oral colloquy in addition to Appellant's written waiver. Finally, the evidence presented was sufficient to prove Appellant acted with ill will, hatred, evil intent or spite when he stabbed the victim. Appellant's judgment and sentence for second-degree murder is AFFIRMED .

Wolf and Ray, JJ., concur.


author: SALTER, J.

text:
    Luis Gerardo Vazquez CALDERON, a/k/a Luis Vazquez, Appellant, v. Juan VAZQUEZ, Appellee.
    No. 3D17-2365
    District Court of Appeal of Florida, Third District.
    Opinion filed July 11, 2018
    Warren Gammill & Associates, and Warren P. Gammill, for appellant.
    Pardo Jackson Gainsburg, and Nicole R. Rekant and Stevan J. Pardo, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   SALTER, J.

Luis Vazquez ("Luis") appeals a circuit court order dismissing his amended complaint with prejudice. The appellee here and defendant in the trial court is Luis's uncle, Juan Vazquez ("Juan"). The amended complaint alleges six counts relating to the proceeds of a $120,000.00 life insurance policy on the life of Luis's father, René Vazquez ("René"; Juan's brother). We reverse the order dismissing the amended complaint with prejudice.

We review a final order dismissing a complaint with prejudice under the de novo standard of review. In doing so, we assume all of the allegations in the complaint are true. We construe all reasonable inferences from the allegations in favor of Luis. United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103-04 (Fla. 3d DCA 2010). The recitation which follows consists of allegations by Luis in the amended complaint, which are subject to proof and to defenses that may be raised by Juan.

In 2003, René was living in Michigan and working at a business owned by Juan.

René's wife, Sulma Vazquez ("Sulma"), and Luis were in their home country, Bolivia, caring for Sulma's father, who was ill. During the time he was working in Michigan, René obtained a Fortis Benefits Insurance Company life insurance policy for $120,000.00 on his life (the "Policy"). Although René designated his brother Juan as the beneficiary of the Policy, he made it clear to Juan that the proceeds of the Policy were to be held in trust by Juan for Sulma and Luis for their education and living expenses after René's death.

René also left a Last Will and Testament signed in La Paz, Bolivia, in September 2003 (the "Bolivian Will"). A translation of the Bolivian Will by a court-certified interpreter included these provisions:

I [René] ... in my role as husband and father, being of sound mind, without any defects in consent, prepare this will in favor of my wife [Sulma] ... and of my son [Luis], so that they can benefit from all the assets I possess or may acquire in the future, furthermore I declare that I have obtained a Life Insurance in the United States of North America in the Company FORTIS BENEFITS INSURANCE COMPANY, for the amount of US$120,000 (ONE HUNDRED TWENTY THOUSAND US DOLLARS) being the only beneficiaries my wife and my son aforementioned for the purpose of assuring the Education Living Expenses of both of them ....

The amended complaint further alleges that René passed away in late 2003, and Juan received the full proceeds of the Policy from Fortis Benefits in 2004. Juan and his wife placed approximately $46,000.00 of those proceeds in an investment account at Banc One Securities Corporation; they named Luis as the sole beneficiary of the money in the account.

As Luis grew up, Juan repeatedly acknowledged that the proceeds of the Policy were intended to be used for Luis's education. In 2012, at Luis's and Sulma's request, Juan sent $20,000.00 of the Policy proceeds to Sulma in Bolivia. Half of the funds were used for Luis's education, and the other half was used to fix up his home.

Sulma executed a written assignment to Luis of her rights in, and claims to, the Policy proceeds before the lawsuit was filed. In the fall of 2014, Sulma and Luis asked Juan to deliver the balance of the proceeds to Luis to pay for his college education. "Juan has repeatedly promised that he would remit the funds to Luis," but in 2015 Juan refused to pay the remaining proceeds to Luis. Juan claimed instead that the funds are his. Luis filed the lawsuit in 2016, filing an amended complaint (as of right) a week after the initial complaint.

Juan moved to dismiss the amended complaint, (a) alleging facts outside the amended complaint (the payment of $70,000.00 in death benefits from a second insurance policy on René's life directly to Sulma, as the designated beneficiary) and (b) contending that the one-page purported Bolivian will was fatally inconsistent with the conceded designation by René of Juan as his beneficiary under the Policy, such that further amendment would be futile.

The trial court agreed, dismissing the amended complaint with prejudice. This appeal followed.

Cases cited by Juan's counsel, particularly Brown v. Di Petta, 448 So.2d 561, 562 (Fla. 3d DCA 1984), do indeed hold that under Florida law, "a beneficiary under a life insurance policy may be changed only by strict compliance with the conditions set forth in the policy," and proof that an insured merely intended to change the beneficiary is insufficient to accomplish such a change. But that is not the issue presented here.

The issue presented here is whether Juan, whether by agreement or operation of law, became a trustee with respect to the proceeds paid over to him as designated beneficiary. The elements of such a trust or an equitable lien-in a strikingly similar case-are detailed in In re Maurer, 267 B.R. 639, 651-53 (Bankr. M.D. Fla. 2001). In that case, as here, the owner of the policy sought to provide for minor children. The owner designated an adult relative as beneficiary to receive the policy proceeds for the benefit of the children.

Florida's statutory Trust Code expressly allows the creation of oral trusts, though the terms of such a trust must be established by "clear and convincing evidence." § 736.0407, Fla. Stat. (2017).

Parol evidence may establish a trust in personal property. In re Estate of Pearce, 481 So.2d 69 (Fla. 4th DCA 1986) ; Rosen v. Rosen, 167 So.2d 70 (Fla. 3d DCA 1964) (trust imposed on life insurance proceeds for the benefit of the insured's minor children).

Nor is the purported Bolivian Will facially or fatally inconsistent with the Policy's beneficiary designation at the time of René's death. That document expresses an intention to benefit Sulma and Luis, not Juan. The term "beneficiaries" may refer to the beneficiaries of his will or the oral trust rather than the beneficiary to receive the proceeds from the insurer initially upon René's death.

It follows that Luis's position is well taken, and the order of dismissal with prejudice must be reversed and remanded for further proceedings. We reiterate that the allegations in the amended complaint remain to be proven, and Juan remains free to raise affirmative defenses to the causes of action enumerated in the amended complaint.

Reversed and remanded for further proceedings.

      But see § 732.703, Fla. Stat. (2017), originally enacted in 2012 to address the effects of a dissolution of marriage upon certain pre-dissolution designations of beneficiary by one of the former spouses in favor of the other former spouse.


text:
    Lorenzo A. MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2888
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018
    Howard L. Dimmig, II, Public Defender and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, for Appellee.
   PER CURIAM.

Lorenzo Martinez appeals his judgment and sentences for: count one, driving with a suspended license and causing death; count two, DUI manslaughter; and count three, failure to remain at the scene of a crash involving death. We agree with Mr. Martinez that his convictions for counts one and two violate Florida's "single homicide rule." See McCullough v. State, 230 So.3d 586, 589 (Fla. 2d DCA 2017) ("[The single homicide rule] provides that although a defendant can be charged and convicted under multiple criminal statutes for conduct causing another's death during one criminal episode, that criminal defendant can only be punished once for that death." (citing State v. Cooper, 634 So.2d 1074, 1074-75 (Fla. 1994) ; Houser v. State, 474 So.2d 1193, 1197 (Fla. 1985) ; Rodriguez v. State, 875 So.2d 642, 645 (Fla. 2d DCA 2004) ) ); see also Senteno v. State, 737 So.2d 1120, 1120 (Fla. 2d DCA 1999) ("[A] defendant may not be convicted of both DUI manslaughter and driving while license suspended or revoked and causing death, with respect to the same victim.").

Therefore, we must reverse and remand with instructions for the trial court to vacate Mr. Martinez's conviction for the lesser, third-degree felony for driving with a suspended license and causing death. See McCullough, 230 So.3d at 595-96 ; Senteno, 737 So.2d at 1120. On remand, the trial court shall resentence Mr. Martinez on all remaining counts with a corrected scoresheet. See Senteno, 737 So.2d at 1120. Mr. Martinez's remaining convictions are otherwise affirmed.

Affirmed in part, reversed in part, and remanded with instructions.

KELLY, VILLANTI, and LUCAS, JJ., Concur.