author: BURKE, Judge.

text:
    R.V.D. v. STATE of Alabama
    CR-16-1317
    Court of Criminal Appeals of Alabama.
    June 1, 2018
    Maria Lazarte Reuther, Birmingham, for appellant.
    Steve Marshall, atty. gen., and P. David Bjurberg, for appellee.
   BURKE, Judge.

R.V.D. was convicted of two counts of first-degree sodomy, a violation of § 13A-6-63(a)(3), Ala. Code 1975, and two counts of sexual abuse of a child less than 12 years old, a violation of § 13A-6-69.1, Ala. Code 1975. He was sentenced to life imprisonment without the possibility of parole for each of the sodomy convictions and to 20 years' imprisonment for each of the sexual-abuse convictions, all sentences to run concurrently. This appeal follows.

The evidence presented at R.V.D.'s bench trial indicated that he sodomized and sexually abused his granddaughter, P.P., over a period of approximately five years. P.P. testified about two specific incidents of abuse. The first incident P.P. testified about occurred "right before [her] third birthday." (R. 12.) P.P. stated that R.V.D. told her to "touch his tinkle spot with [her] hands" and that he did the same thing to her. (R. 12.) According to P.P., R.V.D. would get her to "rub it and stuff like that." (R. 13.) P.P. also testified that R.V.D. put his mouth on the same spot on her and would "lick it and stuff." (R. 14.) P.P. testified that she refers to her "private" as a "tinkle spot," and that a "private" is "where you use the bathroom from." (R. 18.) P.P. also testified that R.V.D. told her not to tell anyone what he had done "or else he would hurt [her]." (R. 16.)

P.P. went on to testify about a second incident in which the same thing happened. P.P. stated that when she was eight years old, she was at R.V.D.'s house and "Granny was sleeping, and [R.V.D.] was doing it to me, and he said that he would give me a honey bun if I did it to him." (R. 16.) According to P.P., she then went to her grandmother's room and told her what R.V.D. had done. P.P.'s grandmother relayed the allegations to P.P.'s mother, who reported the incident to police.

The State also introduced three letters R.V.D. wrote to various members of his family in which he acknowledged that he had abused P.P. and asked for forgiveness. (R. 42.) In a letter to P.P., R.V.D. stated: "I am so very sorry for what I did to you. I wish I could take it all back." (C. 88.) In the same letter, R.V.D. continued: "Each time I touched you I prayed for forgiveness and asked God to take away the temptation, but the next time we were together, I yielded again." (C. 88.)

In his defense, R.V.D. called Dr. Glen King, a forensic psychologist who testified regarding his evaluation of R.V.D. According to Dr. King, R.V.D. suffered from a condition called cardiovascular dementia. Dr. King opined that, although R.V.D. was competent to stand trial, he was unable to "understand the nature and quality of his actions and wrongfulness of his acts" at the time he abused P.P. The trial court was not persuaded; it found R.V.D. guilty of all charges.

I.

On appeal, R.V.D. argues that he did not knowingly and intelligently waive his right to a jury trial. However, R.V.D. did not first present this issue to the trial court. Therefore, it is not preserved for appellate review.

" 'Review on appeal is restricted to questions and issues properly and timely raised at trial.' Newsome v. State, 570 So.2d 703, 717 (Ala. Crim. App. 1989). 'An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.' Pate v. State, 601 So.2d 210, 213 (Ala. Crim. App. 1992). ' "[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof." '
McKinney v. State, 654 So.2d 95, 99 (Ala. Crim. App. 1995) (citation omitted). 'The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.' Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987). 'The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.' Ex parte Works, 640 So.2d 1056, 1058 (Ala. 1994)."

Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala. 2003).

Moreover, this argument is refuted by the record. Before trial, R.V.D. filed a "Motion to Waive Jury Trial" in which he specifically stated that it would be in his "best interest to be tried by the Judge in this matter." (C. 18.) Both R.V.D. and defense counsel signed the motion. Additionally, the following exchange occurred immediately before the trial began:

"THE COURT: [Defense counsel], it's my understanding that in this particular case that you have waived your client's right to a trial by jury and request that I try this case on a non-jury basis?
"[DEFENSE COUNSEL]: I have, Your Honor, and I've talked to my client at length about that also.
"THE COURT: All right. [R.V.D.], do you agree to not have a jury trial?
"[R.V.D.]: Yes, sir."

(R. 6.) Thus, the record refutes R.V.D.'s contention.

R.V.D. also contends that he did not knowingly and intelligently waive his right to testify in his own defense. R.V.D. notes that, in his pro se notice of appeal that was addressed to the circuit clerk, he asserted that he "was never able to say anything in [his] own defense." (C. 59.) However, this is not sufficient to preserve the issue for appellate review. Because the issue was not first presented to the trial court, it is not preserved for this Court's review. See Ex parte Coulliette, 857 So.2d at 794-95.

II.

R.V.D. also argues that his sentence of life imprisonment without the possibility of parole for each of his sodomy convictions is illegal. In its brief on appeal, the State concedes that a remand is necessary for the trial court to reconsider its sentences for R.V.D.'s sodomy convictions. (State's brief, at 14.) After reviewing the record, we agree that the trial court did not have the authority to sentence R.V.D. to life imprisonment without the possibility of parole for either of his sodomy convictions.

The record reveals that, after the trial court adjudicated R.V.D. guilty of each count of sodomy, the court made a finding that the acts occurred when "the child was less than six." (R. 107.) The trial court went on to sentence R.V.D. as follows: "With regard to the two sodomy counts, the Court, by statute, can only impose one penalty, which is life without parole." (R. 107.) Nothing in the record suggests that R.V.D. was being sentenced pursuant to the Habitual Felony Offender Act. Thus, the only statute that could potentially authorize that sentence is § 13A-5-6(d), Ala. Code 1975, which provides:

"In addition to any penalties heretofore or hereafter provided by law, in all cases where an offender is convicted of a sex offense pursuant to Section 13A-6-61, 13A-6-63, or 13A-6-65.1, when the defendant was 21 years of age or older and the victim was six years of age or less at the time the offense was committed, the defendant shall be sentenced to life imprisonment without the possibility of parole."

As noted, P.P. testified about two specific instances in which R.V.D. sodomized her. P.P., who was 10 years old at the time of trial, testified that her birthday was June 12, 2007. (R. 19.) According to P.P., the first instance of sodomy happened "right before [her] third birthday." (R. 12.) Thus, the first incident would have occurred prior to June 12, 2010. However, subsection (d) of the above-mentioned statute, the provision under which R.V.D. was sentenced, was not added to § 13A-5-6, Ala. Code 1975, until that statute was amended in 2011. See Ala. Acts 2011, Act No. 2011-555, p. 1037, § 1. The Act was approved by the governor on June 9, 2011, and became "effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law."

Thus, in 2010, when, according to P.P.'s testimony, the first instance of sodomy occurred, § 13A-5-6, Ala. Code 1975, contained no provision under which R.V.D. could be sentenced to life imprisonment without the possibility of parole. " 'A defendant's sentence is determined by the law in effect at the time of the commission of the offense.' " Holley v. State, 212 So.3d 967, 969 (Ala. Crim. App. 2014), quoting Davis v. State, 571 So.2d 1287, 1289 (Ala. Crim. App. 1990). As it existed at the time of R.V.D.'s first sodomy offense, § 13A-5-6(a)(1), Ala. Code 1975, provided that a Class A felony such as first-degree sodomy, see § 13A-6-63(b), Ala. Code 1975, was punishable by imprisonment "for life or not more than 99 years or less than 10 years." Accordingly, the trial court was not authorized to sentence R.V.D. to life imprisonment without the possibility of parole for that particular count of first-degree sodomy.

As to R.V.D.'s second sodomy conviction, the record reveals that, on direct examination, the State asked P.P. how old she was when the second incident occurred. P.P. replied: "Because it was when I was eight, and it was right before I told." (R. 17.) Thus, as to that particular instance of sodomy, the record refutes the trial court's finding that the victim was less than six years of age when it occurred.

It is well settled that, "under the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury, not a judge[ ], and must be established beyond a reasonable doubt, not merely by a preponderance of the evidence." Lightfoot v. State, 152 So.3d 445, 448 (Ala. 2013), citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As noted, first-degree sodomy is a Class A felony punishable by imprisonment "for life or not more than 99 years or less than 10 years." § 13A-5-6(a)(1), Ala. Code 1975. Thus, a sentence of life imprisonment without the possibility of parole exceeds the maximum penalty authorized by law.

Section 13A-5-6(d), Ala. Code 1975, requires that, for the imposition of a sentence of life imprisonment without the possibility of parole, the offender be 21 years of age or older and the victim be "six years of age or less at the time the offense was committed." Under Apprendi, the State was required to prove those facts beyond a reasonable doubt. The record contains no evidence indicating that P.P. was under the age of six when the second incident of sodomy occurred. This Court has held:

" ' " 'Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court's conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.' " ' Ex parte Jackson, 886 So.2d [155] at 159 [ (Ala. 2004) ], quoting State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996), quoting in turn Ex parte Agee, 669 So.2d 102, 104 (Ala. 1995)."

Washington v. State, 922 So.2d 145, 158 (Ala. Crim. App. 2005).

Because there was no testimony establishing that P.P. was six years of age or less when the second incident of sodomy occurred, the trial court's finding in that regard is without supporting evidence. Accordingly, § 13A-5-6(d), Ala. Code 1975, did not apply to that particular conviction. Therefore, R.V.D.'s sentence of life imprisonment without the possibility of parole as to that count of first-degree sodomy is not authorized by law.

R.V.D. did not raise either of these issues at trial or in a postjudgment motion. However, " '[m]atters concerning unauthorized sentences are jurisdictional.' Hunt v. State, 659 So.2d 998, 999 (Ala. Crim. App. 1994). Therefore, this Court may take notice of an illegal sentence at any time. Pender v. State, 740 So.2d 482, 484 (Ala. Crim. App. 1999)." Holley v. State, 212 So.3d at 968-69. Because R.V.D.'s sentences of life imprisonment without the possibility of parole are illegal, this Court must reverse those sentences and remand the case with instructions that R.V.D. be resentenced accordingly.

We note that R.V.D. does not challenge the sufficiency of the evidence as to any of his convictions and that he did not make a motion for a judgment of acquittal at trial. His arguments relate only to the trial court's specific findings regarding the age of the victim when one offense occurred and the date on which the other offense occurred. Thus, his convictions are due to be affirmed.

III.

Finally, R.V.D. argues that he was sentenced in violation of Rule 26.9(b), Ala. R. Crim. P., which provides, in pertinent part: "In pronouncing sentence, the court shall ... [a]fford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence." R.V.D. asserts, and the State agrees, see State's brief, at 14-16, that the trial court failed to follow this provision. After reviewing the record, we agree that R.V.D. was not given an opportunity to speak on his behalf before his sentences were imposed. See (R. 107-110.)

Although R.V.D. did not object at trial, this Court has held that such matters are an exception to the general rules of preservation. In Green v. State, 200 So.3d 677, 678-79 (Ala. Crim. App. 2015), we noted:

"This Court has previously held, however, that 'the requirement that the defendant be afforded the opportunity to speak on his or her behalf at the sentencing hearing [is an] exception[ ] to the general preservation rule and [is] required to afford a defendant the minimal due process.' Banks v. State, 51 So.3d 386, 392 (Ala. Crim. App. 2010). Accordingly, this issue is properly before this Court for review.
" 'Rule 26.9(b)(1), Ala. R.Crim. P., provides that, in pronouncing the sentence, the circuit court must "[a]fford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence." In Banks, 51 So.3d at 393, this Court noted:
" ' "[R]egarding the requirement of an allocution, Ex parte Anderson, 434 So.2d 737 (Ala. 1983), and the cases following it hold that when the lack of an allocution or the waiver of allocution is raised on direct appeal remand is required because a sentence without an allocution is erroneous. See Davis v. State, 747 So.2d 921, 925 (Ala. Crim. App. 1999) ; Newton v. State, 673 So.2d 799, 800-01 (Ala. Crim. App. 1995) ; Burks v. State, 600 So.2d 374, 382-83 (Ala. Crim. App. 1991) ; Duncan v. State, 587 So.2d 1260, 1264 (Ala. Crim. App. 1991) ; Cline v. State, 571 So.2d 368, 372 (Ala. Crim. App. 1990) ; Maul v. State, 531 So.2d 35, 36 (Ala. Crim. App. 1988). See also Ebens v. State, 518 So.2d 1264, 1269 (Ala. Crim. App. 1986) ; Oliver v. State, 25 Ala. App. 34, 34, 140 So. 180, 181 (1932) (wherein the court noted that 'to constitute a valid judgement[, the fact that the defendant was asked if he had anything to say why the sentence of law should not be pronounced upon him] must appear in the minute entry of the judgment'). We note that in Shaw v. State, [949 So.2d 184 (Ala. Crim. App. 2006) ], this Court recognized and reiterated that on direct appeal, when the issue of the lack of an allocution or a waiver of an allocution is raised, the case is to be remanded. 949 So.2d at 187. Rule 26.9(b)(1) [, Ala. R. Crim. P.,] also provides that in pronouncing the sentence, the trial judge must '[a]fford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence.' The Committee Comments following Rule 26 state that a defendant is entitled to allocution, regardless of the gravity of the sentence imposed. See Rule 26.9, Ala. R. Crim. P., Committee Comments." '
" Thompson v. State, 92 So.3d 801, 805 (Ala. Crim. App. 2011)."

Because R.V.D. was not given an opportunity to speak on his own behalf before sentence was pronounced, this Court must reverse R.V.D.'s sentences and remand the case with instructions that the trial court resentence R.V.D. and conduct a sentencing hearing in which a proper allocution is provided pursuant to Rule 26.9(b), Ala. R. Crim. P.

Conclusion

For the foregoing reasons, R.V.D.'s convictions for first-degree sodomy and sexual abuse of a child less than 12 years old are affirmed. However, the judgment is reversed as to each of his sentences, and this case is remanded with instructions that the trial court resentence R.V.D. in compliance with Rule 26.9(b), Ala. R. Crim. P. As to R.V.D.'s two sentences of life imprisonment without the possibility of parole, the trial court is instructed to resentence R.V.D. in compliance with Part II of this opinion. The trial court is directed to make a return to this Court showing compliance with these instructions within 49 days from the date of this opinion. The record on return to remand shall include a transcript of the sentencing hearing.

AFFIRMED AS TO CONVICTIONS; AND REVERSED AND REMANDED AS TO SENTENCES.

Welch and Kellum, JJ., concur. Windom, P.J., concurs in the result. Joiner, J., concurs in part and concurs in the result, with opinion.

JOINER, Judge, concurring in part and concurring in the result.

I concur in the Court's judgment affirming R.V.D.'s convictions. As to the Court's judgment reversing R.V.D.'s sentences, I concur in part and concur in the result.

I agree with the Court's reversal of R.V.D.'s sentences on the basis that R.V.D. was not "afforded the opportunity to speak on his ... behalf at ... sentencing." Banks v. State, 51 So.3d 386, 392 (Ala. Crim. App. 2010). As the Court notes, the lack of an allocution is a matter that may be raised for the first time on direct appeal.

I agree with the Court's reversal of R.V.D.'s sentences for his sodomy convictions, but, for the reasons expressed in my special writing in Hall v. State, 223 So.3d 997 (Ala. Crim. App. 2016), I do not agree that R.V.D.'s contention that the sentences are unauthorized is a "jurisdictional" claim. Rather, the claim is one "not subject to the ordinary rules of preservation and waiver" and, thus, may be raised for the first time on direct appeal. See Hall, 223 So.3d at 988 (Joiner, J., concurring specially) ("[A]lthough a claim on direct appeal that the circuit court imposed an unauthorized sentence has been described as 'jurisdictional' in some cases-particularly before Ex parte Seymour [, 946 So.2d 536 (Ala. 2006) ] -such a claim is more properly characterized as not being subject to the ordinary rules of preservation and waiver on direct appeal.").

      As noted, R.V.D. waived his right to a trial by jury. Thus, the trial court was the factfinder in the present case.
      *Note from the reporter of decisions: On August 3, 2018, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Brian M. CASEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3552
    District Court of Appeal of Florida, First District.
    January 25, 2019 Rehearing Denied April 09, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Chad Christopher RICHARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4558
    District Court of Appeal of Florida, First District.
    January 25, 2019 Rehearing Denied April 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cedric Antonio BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2398
    District Court of Appeal of Florida, First District.
    January 22, 2019 Rehearing Denied April 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Martin MCCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1962
    District Court of Appeal of Florida, First District.
    September 28, 2018 Rehearing Denied January 07, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jarrod ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1567
    District Court of Appeal of Florida, First District.
    February 5, 2019 Rehearing Denied April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Claude R. RATLIFF, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0683
    District Court of Appeal of Florida, First District.
    January 30, 2019 Rehearing Denied April 09, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rahim Rashid ALLAH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4678
    District Court of Appeal of Florida, First District.
    January 28, 2019 Rehearing Denied April 09, 2019
    DECISION WITHOUT PUBLISHED OPINION
   DISMISSED.


text:
    Marvin SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0612
    District Court of Appeal of Florida, First District.
    January 25, 2019 Rehearing Denied April 09, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Maurice T. HERRING, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1929
    District Court of Appeal of Florida, First District.
    February 12, 2019 Rehearing Denied April 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Vasiliy BABICHEV, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1952
    District Court of Appeal of Florida, First District.
    February 12, 2019 Rehearing Denied April 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ronald D. PERRYMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2302
    District Court of Appeal of Florida, First District.
    February 12, 2019 Rehearing Denied April 23, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rodney MAXWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-558
    District Court of Appeal of Florida, First District.
    February 8, 2019 Rehearing Denied April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Brent MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3773
    District Court of Appeal of Florida, First District.
    February 21, 2019 Rehearing Denied April 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James WIDNER, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-0311
    District Court of Appeal of Florida, First District.
    February 21, 2019 Rehearing Denied April 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Samuel JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3546
    District Court of Appeal of Florida, First District.
    February 21, 2019 Rehearing Denied April 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Joseph M. SHELTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1937
    District Court of Appeal of Florida, First District.
    February 21, 2019 Rehearing Denied April 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Elizabeth J. PALATINE and John G. Palatine, Appellants, v. REUNION GRANDE CONDOMINIUM ASSOCIATION, INC., Appellee.
    Case No. 5D18-1677
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Eric J. SCHOENUNG and Connie M. Schoenung, Petitioners, v. Michael NULL and Mary C. Null, Respondents.
    No. 1D17-5171
    District Court of Appeal of Florida, First District.
    February 25, 2019 Rehearing Denied April 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Eva H. CANNIE, Petitioner, v. CITY OF JACKSONVILLE, Respondent.
    No. 1D18-611
    District Court of Appeal of Florida, First District.
    February 25, 2019 Rehearing Denied April 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Jimmie CASEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-159
    District Court of Appeal of Florida, First District.
    February 25, 2019 Rehearing Denied April 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven Earl KIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-0206
    District Court of Appeal of Florida, First District.
    March 1, 2019 Rehearing Denied April 23, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Phillip KESSLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1359
    District Court of Appeal of Florida, First District.
    February 25, 2019 Rehearing Denied April 09, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony Eugene ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3844
    District Court of Appeal of Florida, First District.
    February 25, 2019 Rehearing Denied April 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kyle Chang CADEGIANI, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5006
    District Court of Appeal of Florida, First District.
    February 25, 2019 Rehearing Denied April 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Lester Bernard PERSON Jr., Appellant, v. Dashan Denise PERSON, Appellee.
    No. 1D18-2866
    District Court of Appeal of Florida, First District.
    March 5, 2019 Rehearing Denied April 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    MATERNAL GRANDMOTHER, D.H. n/k/a D.S. and The Adoption Entity, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-2111
    District Court of Appeal of Florida, First District.
    March 5, 2019 Rehearing Denied April 09, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Regan C. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1720
    District Court of Appeal of Florida, First District.
    March 5, 2019 Rehearing Denied April 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eugene V. ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1014
    District Court of Appeal of Florida, First District.
    March 5, 2019 Rehearing Denied April 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Glen Dale SPIVEY, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D17-4891
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Barry RANDOLPH, Appellant, v. James REBARCHAK, Appellee.
    No. 1D17-4460
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Xavier Tyrone MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3721
    District Court of Appeal of Florida, First District.
    March 21, 2019 Rehearing Denied April 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael D. REED, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3538
    District Court of Appeal of Florida, First District.
    March 15, 2019 Rehearing Denied April 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kelvin WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2527
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dartorian Markell LEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-75
    District Court of Appeal of Florida, First District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Brian BEVAN, Jane Bevan, and Lisa Bevan, Appellants, v. Estate of Glenn John LIGNAU; and Willy Lignau, Individually and as Personal Representative of the Estate of Glenn John Lignau, Appellees.
    Case No. 2D17-4147
    District Court of Appeal of Florida, Second District.
    Opinion filed December 7, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jesse Lee RAY, as Personal Representative of the Estate of Deborah L. Veilleux, Deceased, Appellant, v. FOWLER WHITE BOGGS, P.A., John A. Krentzman, and Allstate Insurance Company, Appellees.
    Case No. 2D17-2697
    District Court of Appeal of Florida, Second District.
    Opinion filed October 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cathy A. ADKINS, Appellant, v. Gregory L. ADKINS, Appellee.
    Case No. 2D18-1225
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mary Jean ZISKA, Appellant, v. 21ST MORTGAGE CORPORATION, Appellee.
    Case No. 2D17-1909
    District Court of Appeal of Florida, Second District.
    Opinion filed December 19, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael MULROONEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1568
    District Court of Appeal of Florida, Second District.
    Opinion filed December 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert GEISSLER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1064
    District Court of Appeal of Florida, Second District.
    Opinion filed December 14, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Earl E. HENRY, P.E., Appellant, v. FLORIDA BOARD OF PROFESSIONAL ENGINEERS, Appellee.
    Case No. 2D18-1866
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Harry ZEA and Alison Zea, a/k/a Allison Zea, Appellants, v. NATIONAL COLLECTIONS, LLC, Appellee.
    Case No. 2D18-212
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason MEMMER, Appellant, v. Pam STEWART, as Commissioner of Education, Appellee.
    Case No. 2D18-2946
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Josefina GOMEZ, Appellant, v. AVATAR PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    Case No. 2D18-526
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven Allen KING, Appellant, v. Sandra Lynn KING, Appellee.
    Case No. 2D17-2996
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Maria ANNEXY a/k/a Mary Annexy and Annexy Group LLC, Appellants, v. CITY OF TARPON SPRINGS, a Florida municipal corporation, Appellee.
    Case No. 2D18-2418
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Benjamin M. ALLEN, AS TRUSTEE OF the BENJAMIN ALLEN REVOCABLE TRUST DATED DECEMBER 14, 2015, Appellant, v. WELLS FARGO BANK, N.A., Successor BY Merger to WELLS FARGO BANK MINNESOTA, N.A. (f/k/a Norwest Bank Minnesota, N.A. ), as Trustee Under That Certain Polling and Servicing Agreement Relating to Structured Asset Securities Corporation Mortgage Pass Through Certificate 2002-HF-1; Kondaur Capital Corporation, as Separate Trustee of Matawin Ventures Trust Series 2015-1; Jay Sullivan, as Guardian for Bertha A. Sullivan, Incapacitated; Randall O. Reder ; Unknown Tenant #1; Unknown Tenant #2; and/or Tenants in Possession if the Above Defendants are Alive and if One or More of Said Defendants are Dead, Their Unknown Spouses, Heirs, Devisees, Grantees, Personal Representatives, Creditors and All Other Parties Claiming by, Through or Against Them; and All Parties Having or Claiming to Have Any Right, Title or Interest in the Property Described in the Complaint, Appellees.
    Case No. 2D18-1054
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    SARABAY MARINE, INC., a Florida Corporation, and PND, LLC, a Florida Limited Liability Company, Appellants, v. Robert GREENE, Esq., an individual, and Greene, Hamrick, Perrey, Quinlan & Schermer, P.A., a Florida Professional Association, Appellees.
    Case No. 2D18-687
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason P. VERSAKOS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3758
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Harrison REES, Appellant, v. NICOSIA CONSULTING INTERNATIONAL, LLC, Appellee.
    Case No. 2D18-1956
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sydric Revon REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3807
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James D. DONOVAN, as personal representative of the Estate of Patricia H. Donovan, Petitioner, v. Kendra OYEN, as personal representative of the Estate of Timothy J. Donovan, Respondent.
    Case No. 2D18-4050
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Christopher PACE, DOC #H07495, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2382
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jerome PERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3831
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eric GARCIA, DOC #R65068, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2473
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jerome MARION, DOC #114535, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2527
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Darrell Jerome BURNSIDE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3778
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tajhon Boderick WILSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3838
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cedric HOUSTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3996
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Deonta LANE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-443
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Renette BAPTISTE-FAUSTI, Appellant, v. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC., Appellee.
    No. 4D18-992
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ann Marie LIVERMAN, Appellant, v. David A. TYREE, AS TRUSTEE OF the 2148 LAND TRUST, Appellee.
    No. 4D18-510
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Henry B. JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D14-5910
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    George C. GRIMSLEY, Appellant, v. BARFIELD MCCAIN, P.A., a professional association, attorney Ryan R. McCain, individually, and attorney Darren J. Ayoub, individually, Appellees.
    No. 4D18-3492
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James Wilson HALL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3802
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wesley Thomas GRACE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2652
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Elijah CAPEHART, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2708
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Larry FIELDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3254
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Philip Warren DUFFEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3290
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mario Joel NINA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3803
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Matthew Samuel STRATIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3916
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Crystal Ann TURNBEAUGH, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-491
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William CRESCENZO, Appellant, v. Irene SIMPSON, as Personal Representative of Estate of Herminia Quinones, Appellee.
    Case No. 2D18-296
    District Court of Appeal of Florida, Second District.
    Opinion filed January 4, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    U. S. BANK NATIONAL ASSOCIATION, Appellant/Petitioner(s), v. FIDDLER'S CREEK COMMUNITY DEVELOPMENT DISTRICT 2, Appellee/Respondent(s).
    CASE NO.: 2D19-1021
    District Court of Appeal of Florida, Second District.
    May 02, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    In the INTEREST OF M.A.L., a Child.
    S.A., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D19-2
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    In the INTEREST OF G.B., G.B., K.B., C.B., and R.B., children.
    R.B., Appellants, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-4640
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    NON SURGICAL SOLUTIONS OF VENICE, P.A. d/b/a Agran Chiropractic, Appellant/Petitioner(s), v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee/Respondent(s).
    CASE NO.: 2D18-4243
    District Court of Appeal of Florida, Second District.
    April 11, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed. Denied.


text:
    C.S.B., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-4469
    District Court of Appeal of Florida, Second District.
    May 02, 2019
    BY ORDER OF THE COURT:
   Because C.S.B. has failed to serve an initial brief as provided by this court's order of February 1, 2019, this appeal is dismissed for failure to prosecute.

VILLANTI, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Christopher PONCE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-0703
    District Court of Appeal of Florida, Second District.
    May 02, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    INNOVATIVE IRRIGATION SOLUTIONS, Appellant/Petitioner(s), v. David MORALES, et al LLC d/b/a Trinity Irrigation, Appellee/Respondent(s).
    CASE NO.: 2D19-1388
    District Court of Appeal of Florida, Second District.
    May 02, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    B. M., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-4948
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Michael O'BRIEN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3220
    District Court of Appeal of Florida, Second District.
    May 2, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Tevin CAMPBELL, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0757
    District Court of Appeal of Florida, Second District.
    May 02, 2019
    BY ORDER OF THE COURT:
   Pursuant to the notice of voluntary dismissal filed herein, this appeal is dismissed.


text:
    Nytavis Dajuan BROWN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0836
    District Court of Appeal of Florida, Second District.
    May 02, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    James V. ZIZZI, Appellant/Petitioner(s), v. Carol A. ZIZZI, Appellee/Respondent(s).
    CASE NO.: 2D18-1386, 2D18-2290
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Stephen WILLIAMS and Magnolia Williams, Appellant/Petitioner(s), v. SAFEPOINT INSURANCE COMPANY, Appellee/Respondent(s).
    CASE NO.: 2D19-0279
    District Court of Appeal of Florida, Second District.
    May 06, 2019
    BY ORDER OF THE COURT:
   Pursuant to the notice of voluntary dismissal filed herein, this appeal is dismissed.


text:
    Lanica BURCH, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0044
    District Court of Appeal of Florida, Second District.
    May 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Gordon FLACH, Appellant/Petitioner(s), v. Joseph FARRELL, Appellee/Respondent(s).
    CASE NO.: 2D18-4717
    District Court of Appeal of Florida, Second District.
    May 06, 2019
    BY ORDER OF THE COURT:
   The parties' stipulation for dismissal filed May 2, 2019, is treated as a notice of voluntary dismissal and is granted. This appeal is dismissed.


text:
    Stephen P. LITZENBERGER, as Personal Representative of the Estate of Paul Litzenberger, Deceased, Appellant/Petitioner(s), v. Steven BOWERS, Appellee/Respondent(s).
    CASE NO.: 2D18-4531
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Davel Mario ROSS, Appellant/Petitioner(s), v. Mark INCH, Secretary D. O. C., Appellee/Respondent(s).
    CASE NO.: 2D19-0968
    District Court of Appeal of Florida, Second District.
    April 9, 2019
    BY ORDER OF THE COURT:
   Petitioner's petition for writ of habeas corpus is denied.

KELLY, VILLANTI, and BADALAMENTI, JJ., Concur.


text:
    Phillip A. DANIEL, Appellant/Petitioner(s), v. Esther JACOBO, Interim Secretary, Appellee/Respondent(s).
    CASE NO.: 2D19-0986
    District Court of Appeal of Florida, Second District.
    April 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Oscar DOPICO, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0550
    District Court of Appeal of Florida, Second District.
    April 09, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Derrick L. KNOTT, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-0790
    District Court of Appeal of Florida, Second District.
    February 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    C. T., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D19-0306
    District Court of Appeal of Florida, Second District.
    May 02, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    R.O., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D19-0169
    District Court of Appeal of Florida, Second District.
    May 2, 2019
    BY ORDER OF THE COURT:
   Because R. O. has failed to serve an initial brief as provided by this court's order of March 19, 2019, this appeal is dismissed for failure to prosecute.

VILLANTI, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Terry Gene BOLLEA, Appellant/Petitioner(s), v. Linda Marie BOLLEA, Appellee/Respondent(s).
    CASE NO.: 2D19-1049
    District Court of Appeal of Florida, Second District.
    April 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Ronnie MENDOZA, Appellant/Petitioner(s), v. Thomas M. KNIGHT, Sheriff, Appellee/Respondent(s).
    CASE NO.: 2D19-1397
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    BY ORDER OF THE COURT:
   Petitioner's petition for writ of habeas corpus is transferred to the Twelfth Judicial Circuit Court for Sarasota County.

MORRIS, BLACK, and ATKINSON, JJ., Concur.


text:
    Brittany MADRID, Appellant/Petitioner(s), v. Richard HARRIS, III Appellee/Respondent(s).
    CASE NO.: 2D18-4162
    District Court of Appeal of Florida, Second District.
    May 02, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed. Denied.


text:
    Michael ABNER, et al., Appellant/Petitioner(s), v. WELLS FARGO BANK, N.A., Appellee/Respondent(s).
    CASE NO.: 2D17-4223
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    E. S., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-4706
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    David RENCZKOWSKI, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NOs.: 2D18-4705 2D18-5053
    District Court of Appeal of Florida, Second District.
    April 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Perry ROUHANI, Appellant/Petitioner(s), v. SUPERIOR FENCE & RAIL OF PINELLAS COUNTY, INC., et al., Appellee/Respondent(s).
    CASE NO.: 2D16-4325
    District Court of Appeal of Florida, Second District.
    April 16, 2019
    BY ORDER OF THE COURT:
   This is an appeal from an order entered in the proceedings supplementary to a final judgment entered in lower court case number 2009-CA-007533. That final judgment has been reversed by this court. 1385 Starkey, LLC v. Superior Fence & Rail of Pinellas County. Inc., 44 Fla. L. Weekly D251 (Fla. 2d DCA Jan. 18, 2019). As a result, this appeal is dismissed as moot.

NORTHCUTT, VILLANTI, and BLACK, JJ., Concur.


text:
    Harvey JONES, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2891
    District Court of Appeal of Florida, Second District.
    April 03, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Benjamin LANG, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0427
    District Court of Appeal of Florida, Second District.
    April 03, 2019
    BY ORDER OF THE COURT:
   Petitioner's petition for writ of prohibition is denied.

LaROSE, C.J., and CASANUEVA and MORRIS, JJ., Concur.


text:
    John T. LILLIE, Jr. and Jennifer E. Lillie, Appellant/Petitioner(s), v. WILMINGTON SAVINGS FUND SOCIETY FSB, AS TRUSTEE OF STANWICH MORTGAGE LOAN TRUST, Appellee/Respondent(s).
    CASE NO.: 2D18-1679
    District Court of Appeal of Florida, Second District.
    May 10, 2019
    BY ORDER OF THE COURT:
   Pursuant to the joint stipulation for dismissal, this appeal is dismissed.


text:
    Jesse DONOFRIO, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4237
    District Court of Appeal of Florida, Second District.
    April 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Nelson SERRANO, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0382
    District Court of Appeal of Florida, Second District.
    April 03, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Christina PAYLAN, M.D., Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0389
    District Court of Appeal of Florida, Second District.
    April 03, 2019
    BY ORDER OF THE COURT:
   Petitioner's petition alleging ineffective assistance of appellate counsel is denied.

KELLY, VILLANTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Timothy Dale WASHINGTON, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-5031
    District Court of Appeal of Florida, Second District.
    April 09, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Reashod ROSIER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4952
    District Court of Appeal of Florida, Second District.
    April 9, 2019
    BY ORDER OF THE COURT:
   This petition for writ of mandamus is denied as moot.

KELLY, VILLANTI, and BADALAMENTI, JJ., Concur.


text:
    Sandra Efigenia NADAL HIDALGO, Appellant/Petitioner(s), v. Carmine MARCENO, Sheriff of Lee County, Appellee/Respondent(s).
    CASE NO.: 2D19-1080
    District Court of Appeal of Florida, Second District.
    April 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Rashaad J. WALKER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0831
    District Court of Appeal of Florida, Second District.
    April 03, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Chloe J. BOWMAN, Appellant/Petitioner(s), v. Adam W. BOWMAN, Appellee/Respondent(s).
    CASE NO.: 2D19-1088
    District Court of Appeal of Florida, Second District.
    May 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Earl BUTLER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-5056
    District Court of Appeal of Florida, Second District.
    April 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Donald E. WATERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2709
    District Court of Appeal of Florida, Second District.
    Opinion filed January 23, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daniel Brian MASSON, DOC #T95854, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4021
    District Court of Appeal of Florida, Second District.
    Opinion filed January 23, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Willie LONDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-857
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alan P. NUNEZ NINO, DC #Y15694, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1485
    District Court of Appeal of Florida, Second District.
    Opinion filed January 23, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alan NUNEZ NINO, DC #Y15694, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1677
    District Court of Appeal of Florida, Second District.
    Opinion filed January 23, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    P.L.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-473
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kirk M. PICKARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-438
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kevin SINGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3962
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nico Vincenzo GALLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1236
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Malik Hamid ZAMAN, Appellant, v. Derrick M. CREW and Ada Berrios, Appellees.
    No. 4D18-2114
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daryl JONES, Appellant, v. Marlene M. JONES, Appellee.
    No. 4D18-2006
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Erskine James MCKINLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-384
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Hilton WIENER, Appellant, v. Ila WIENER n/k/a Ila Lerner, Appellee.
    No. 4D18-1440
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Derek CROCKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1789
    District Court of Appeal of Florida, Fourth District.
    [January 10, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cladet WILLIAMS and Henry Walker, Appellants, v. SAFEPOINT INSURANCE COMPANY, Appellee.
    No. 4D18-177
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Esdras Donato LOPEZ JUAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-533
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Semie ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3164
    District Court of Appeal of Florida, Fourth District.
    March 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Valentino TELFORT, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3648
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Suzanne M. HONIGMAN, Appellant, v. Aaron HONIGMAN, AS TRUSTEE OF the DAN HONIGMAN REVOCABLE TRUST, Jeffrey Skatoff, as Trustee ad litem, and Stacy Meschke, Appellees.
    No. 4D18-871
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Willie James MCCANTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-962
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    M.J., a Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-3449 4D17-3452 4D17-3455 4D17-3459 4D17-3460 4D17-3461
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Algalita DESUME, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2677
    District Court of Appeal of Florida, Fourth District.
    March 28, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lorraine E. SMITH f/k/a Lorraine S. Carter, Appellant, v. EAYC INVESTMENT, LLC, a Florida limited liability company, Appellee.
    No. 4D18-896
    District Court of Appeal of Florida, Fourth District.
    March 28, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Barbara Halpern ALTOMARE and Richard Altomare, Appellants, v. BOCAIRE COUNTRY CLUB, INC., Appellee.
    No. 4D18-1501
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Raymond RIVAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1863
    District Court of Appeal of Florida, Fourth District.
    March 28, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Erik Phillip EASON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3379
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Anthony V. PUGLIESE, III, Anthony V. Pugliese, Inc. d/b/a The Pugliese Company, and Joseph Reamer, Appellants, v. FD DESTINY, LLC, Land Company of Osceola County, LLC, Elisabeth and Jonathan Deluca as Co-Personal Representatives of the Estate of Frederick A. Deluca, FD Destiny Credit, LLC, and Doctor's Associates, Inc., Appellees.
    No. 4D18-0403
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dennis COX, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-53
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jean Marie DELVAR a/k/a Jean Delvar, Appellant, v. NEW PENN FINANCIAL LLC d/b/a Shellpoint Mortgage Servicing, Assignee of All Interests from Ocwen Loan Servicing, LLC Formerly GMAC Mortgage, LLC, and Marie Elie Delvar a/k/a Marie Delvar, Appellees.
    No. 4D18-655
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sharmarkco EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3294
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Paul G. MEAD, Appellant, v. STATE of Florida and Department of Corrections, Appellees.
    Case No. 5D18-2713
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 26, 2019 Rehearing Denied April 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kenneth BARNETTE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1928
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 26, 2019 Rehearing Denied April 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jose DESRAVINES and Gislene Laurore, Appellants, v. MERCANTILE MORTGAGE COMPANY, Citi Mortgage, Inc., Law Offices of David J. Stern, P.A., Provest, LLC, Penney Mac Loan Service, LLC., Kahane & Associates, P.A., Kyle Phillip King, et al, Appellees.
    Case No. 5D18-198
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 5, 2019 Rehearing Denied April 8, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    D & D TRACTOR AND TRUCK SERVICE, INC., Appellant/Cross-Appellee, v. BORUCH-DAVID, LLC f/k/a Boruch-David, Inc., Brevard Land Materials, Inc., Appellees/Cross-Appellants.
    Case No. 5D17-2327
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Manohar JAIN, as Trustee, and Its Successors or Successor Trustees Under the Manohar Jain Trust Dated July 1, 2000 and Usha Jain, as Trustee, and Its Successors or, et al., Appellants, v. BAY HILL PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    Case No. 5D18-2033
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 26, 2019 Rehearing Denied April 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael Lee KING, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2889
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carl Michael EDWARDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2879
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Scot BAIRD and Debbie Baird, Appellants, v. Dennis R. NEUTZE and Arlene C. Neutze, Appellees.
    Case No. 5D18-1129
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019 Rehearing Denied April 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Antonio Teshawn NEAL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3503
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019 Rehearing Denied April 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Claude Junior ROUX, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2198
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Maryellen VERSCHLEISER, Appellant, v. PUBLIX SUPERMARKETS, INC., Appellee.
    Case No. 5D18-162
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019 Rehearing Denied April 23, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jose D. ORTIZ-TORRES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1936
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Freemel BEST, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3182
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dwayne Tyrone SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2723
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Sheraud RIGGINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2397
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    D.D., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2187
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert Lee FISCUS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2977
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Scott RUTHERFORD, Appellant, v. Kathryn KENNEDY, Appellee.
    Case No. 5D18-2980
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    The MAGIC MECHANIC, INC., Appellant, v. GRAHAM MEDIA GROUP, ORLANDO INC. d/b/a WKMG-TV, Appellee.
    Case No. 5D18-1890
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Caracuzzo, Cheryl, Associate Judge.

text:
    Alphonso DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3955
    District Court of Appeal of Florida, Fourth District.
    [January 16, 2019]
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Caracuzzo, Cheryl, Associate Judge.

After we remanded appellant's case for a de novo resentencing hearing, he appealed his new sentence of 30 years as being vindictive because it was longer than the sentence imposed by the original judge. Since appellant has failed to establish actual vindictiveness on the part of the new sentencing judge, the sentence is affirmed.

Appellant was employed as a teacher and a coach. He had sexual relations with a student, caused her to abort the resulting pregnancy, and then convinced his nephew to falsely claim that the nephew was the father of the victim's child.

A jury found appellant guilty of sexual battery by a person in familial or custodial authority and unlawful sexual activity with a certain minor. He was sentenced to 20 years on Count I, and a concurrent term of 15 years on Count II. Appellant appealed that sentence, and this court per curiam affirmed. Davis v. State , 163 So. 3d 1215 (Fla. 4th DCA 2015).

Thereafter, appellant moved for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing in part, that the scoresheet used at his sentencing improperly contained victim penetration points, even though the jury did not make the requisite findings to support the addition of the points. The state conceded error and the case was remanded for correction of the scoresheet and a new sentencing hearing.

At the resentencing hearing ("Resentencing One"), the original judge stated that the incorrect assessment of penetration points did not change his sentence. The original judge again sentenced appellant to a term of 20 years on Count I, and a concurrent term of 15 years on Count II.

Appellant appealed his sentence a second time. Again, this court reversed the sentence, finding that the trial court erred in failing to hold a de novo resentencing hearing where appellant would have "the opportunity to submit evidence." Davis v. State , 219 So.3d 863, 864 (Fla. 4th DCA 2017).

A second resentencing ("Resentencing Two") hearing was conducted in front of a different judge. That trial judge conducted a de novo sentencing hearing and did not limit either party as to the presentation of any evidence. The judge indicated that the sentence was also based upon a review of the court transcripts, everything provided to him by both the defense and prosecution, and the Pre-Sentence Investigation. At the conclusion of the Resentencing Two hearing, the court sentenced appellant to 30 years on Count I, and a concurrent term of 15 years on Count II. Appellant now appeals this sentence as vindictive.

"[I]mposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal." Mendez v. State , 28 So.3d 948, 950 (Fla. 2d DCA 2010). Therefore, no action was necessary to preserve this argument for appeal.

Whether an increased sentence is vindictive "is a question of law subject to de novo review by this court." Parker v. State , 977 So.2d 671, 672 (Fla. 4th DCA 2008).

Appellant argues that the sentence imposed by the Resentencing Two trial judge was improperly vindictive because it exceeded the sentence imposed by the original sentencing judge. To resolve this issue it must first be determined whether a presumption of vindictiveness applies, and then, whether appellant has made the requisite showing of vindictiveness.

Because the sentence appellant attacks was imposed by a judge other than the one who imposed the original sentence, there is no presumption of vindictiveness. As we have previously explained,

[a] re-sentence after a reversal and re-trial which is more onerous than the original sentence is presumed vindictive where imposed by the same judge, but when, as in this case, a different judge imposes the increased sentence, the presumption does not apply and the defendant has the burden of demonstrating vindictiveness. Texas v. McCullough , 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986).

Kovaleski v. State , 1 So.3d 254, 258 (Fla. 4th DCA 2009). We have declined to apply the presumption of vindictiveness when "a different trial judge sentence[s] appellant the third time around." Harris v. State , 653 So.2d 402, 404 (Fla. 4th DCA 1995) ; see also Knowles v. State , 617 So.2d 1136, 1137 (Fla. 4th DCA 1993) (declining to apply the presumption of vindictiveness, in part, because "the judge who imposed the first sentence ... was not the judge who tried the case and imposed the [second] sentence...").

Appellant attempts to distinguish the instant case from Kovaleski , arguing that Kovaleski involved a resentencing after a retrial, not after a remand just for resentencing. See Kovaleski , 1 So.3d at 258. However, we see no reason why a resentencing after a retrial should be treated differently than a resentencing without a retrial when it comes to applying a presumption of vindictiveness. In Harris, we declined to apply the presumption in a resentencing case by a new judge without a retrial. 653 So.2d at 403-04.

Since there is no presumption of vindictiveness, appellant has the burden of proving actual vindictiveness. Wilson v. State , 845 So.2d 142, 156 n.8 (Fla. 2003) ("Where the totality of the circumstances does not give rise to a presumption of vindictiveness, the burden remains upon the defendant to prove actual vindictiveness."). Therefore, the next step is to determine whether appellant has demonstrated actual vindictiveness.

"In the context of sentencing, 'the word "vindictive" has lost its dictionary definitions.... The sentencing term "vindictive" has become a "term of art," describing the legal effect of a given objective course of action, generally not implying any personal or subjective animosity on the part of the trial judge.' " Blanco v. State , 849 So.2d 381, 383 (Fla. 3d DCA 2003) (alteration in original) (quoting Nairn v. State , 837 So.2d 519, 520 (Fla. 3d DCA 2003) ).

Appellant has failed to demonstrate actual vindictiveness on the part of the Resentencing Two judge. The judge explained his sentence and nothing that he said suggested that the sentence was vindictive. Different sentencing judges might well come to different conclusions based on the same facts. As the Supreme Court has observed, "[i]t may be often that the [second sentencer] will impose a punishment more severe than that received from the [first]. But it no more follows that such a sentence is a vindictive penalty for seeking a [new] trial than that the [first sentencer] imposed a lenient penalty." McCullough , 475 U.S. at 140, 106 S.Ct. 976 (alterations in original) (quoting Colten v. Kentucky , 407 U.S. 104, 117, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) ). There was no suggestion of any retaliatory motive on the part of the Resentencing Two judge. Finally, contrary to appellant's argument, there was no difference between the scoresheets used at the Resentencing One and Resentencing Two hearings.

We reject appellant's argument that Kramer v. State , 868 So.2d 1246, 1249 (Fla. 4th DCA 2004), injected an entirely new standard into this area of the law by its reference to an "appearance of vindictiveness." We read that reference as dicta contained in instructions on remand, without any citation to authority. We do not read this reference as an abandonment of the principles established by the Supreme Court in North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), Alabama v. Smith , 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), and McCullough .

Appellant has failed to carry his burden of demonstrating that the new sentence was actually vindictive.

Affirmed.

Gross and May, JJ., concur.


author: Per Curiam.

text:
    Cornell ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3877
    District Court of Appeal of Florida, Fourth District.
    [December 5, 2018]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Picard, Assistant Attorney General, West Palm Beach, for appellee.
    CONCESSION OF ERROR
   Per Curiam.

Appellant was charged with attempted first degree murder. Following a jury trial, he was convicted of the lesser included offense of attempted second degree murder. As the state concedes, the trial court's failure to instruct the jury on the necessarily included offense of attempted manslaughter by act amounted to fundamental error because that offense is one step removed from the convicted offense of attempted second degree murder. See Walton v. State , 208 So.3d 60, 64 (Fla. 2016) ; Coleman v. State , 110 So.3d 971, 972 (Fla. 2d DCA 2013). Nothing in the record suggests that appellant expressly waived the instruction. Defense counsel did not waive the error by failing to request an instruction on attempted manslaughter by act. See Roberts v. State , 242 So.3d 296,299 (Fla. 2018).

Reversed and remanded for a new trial .

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


author: Conner, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Philip Morris USA Inc. and Liggett Group LLC and Vector Group Ltd., Petitioners, v. Saundra ALONSO, as Personal Representative of the Estate of Francis Alonso, Delores Balaban, Donald Champion, as Personal Representative of the Estate of Gayle Kella, Mark Cohn and Mildred Cohn, Timothy Kelley and Cynthia Kelley, Bernard Kranis and Claire Kranis, Leah Nerenberg, as Personal Representative of the Estate of Jack Nerenberg, Omar Ramadan, as Personal Representative of the Estate of Farouk Ramadan, John Reiner, as Personal Representative of the Estate of Delores Reiner, Perry Silver, as Personal Representative of the Estate of Jeanette Blinder, Stanley Ray Tinnell, as Personal Representative of the Estate of Elthe M. Tinnell, Peter M. Tuttman, as Personal Representative of the Estate of Jerome A. Tuttman, Respondents.
    No. 4D18-2444
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Val Leppert and William L. Durham II, of King & Spalding LLP, Atlanta, Georgia, and Jeffrey L. Furr of King & Spalding LLP, Charlotte, North Carolina, for petitioner R.J. Reynolds Tobacco Company.
    Stacey E. Deere and Timothy E. Congrove of Shook, Hardy & Bacon LLP, Kansas City, Missouri, for petitioner Philip Morris USA Inc.
    Kelly Anne Luther, Maria H. Ruiz and Giselle Manseur of Kasowitz Benson Torres LLP, Miami, for petitioners Liggett Group LLC and Vector Group LTD.
    Jonathan Martin, John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, for respondents Timothy Kelley, Perry Silver and Leah Nerenberg.
    Juan P. Bauta, II, and James L. Ferraro of The Ferraro Law Firm, P.A., Miami, for respondent Dolores Balaban.
   Conner, J.

R.J. Reynolds Tobacco Company and other defendants below (collectively, "Petitioner") seek to disqualify the trial judge below in twelve cases, after the trial judge disclosed an ex parte communication with a plaintiff's counsel in another tobacco litigation case about an issue that is a hot button issue in tobacco litigation cases. Based on the unique facts of these cases, we grant the petition.

Background

The cases we address in this proceeding are Engle progeny tobacco cases. In another Engle progeny tobacco case pending at the same time, which Petitioner refers to as the "Calloway case," the trial court conducted a pre-trial status conference. At the beginning of the status conference, the following occurred:

THE COURT: Mr. Gdanski [ (plaintiff's counsel) ], is Mr. Hammer [another attorney in the firm] going to participate in this trial?
MR. GDANSKI: Mr. Hammer is going to participate in this trial, yes, sir.
THE COURT: Okay. Very well.
Pursuant to the commentary of Canon 3E(1) of the Code of Judicial Conduct, please be advised that I have known Mr. Hammer for approximately 30 years. We were teammates on the same flag football team in the Broward County Young Lawyers Division. I've seen Mr. Hammer intermittently since then.
Approximately two years ago, Mr. Hammer moved down the street from me. I see him a few times a week, him and his dog.
This past Sunday, I spoke with him with regard to his recent trial in front of Judge Rodriguez. I guess it went until approximately midnight one night. We also spoke briefly with regard to Judge Rodriguez and his thoughts concerning consolidations. So, thank you.

Based on the above disclosure, Petitioner moved to disqualify the trial judge in the Calloway case. The motion was denied. Petitioner then filed a petition for writ of prohibition in this Court regarding the Calloway case.

The day after the Calloway petition was filed in this Court, Petitioner moved to disqualify the trial judge in the fifteen other Engle progeny cases then pending before the same judge, alleging the same grounds asserted in the Calloway case. The day after the motions for disqualification were filed in twelve of the cases, the motions were summarily denied by the trial court.

Thereafter, we issued an order in Calloway requesting the plaintiff to show cause why the petition should not be granted. Five days later, before any appellate determination was made in Calloway , the trial judge entered an order in that case "of its own initiative" disqualifying himself. The Calloway disqualification order additionally ordered that the case was transferred to another circuit judge, with trial to commence only three days after the date of the order.

Three days after entering the disqualification order in Calloway , the trial judge also issued orders in three remaining Engle progeny cases in which the motion to disqualify were pending, granting the motions. In the three remaining cases, Mr. Hammer was counsel of record. However, in the twelve other cases in which the motions to disqualify were previously denied, Mr. Hammer was not counsel of record.

Petitioner then filed the petition under review, seeking to prohibit the trial judge from further presiding over the twelve cases in which the motions to disqualify were denied. The petition argues that in addition to the disclosure made by the trial judge during the status conference, the trial judge has demonstrated bias by entering a sua sponte order of disqualification in the Calloway case at a time during which the trial court did not have jurisdiction to enter such an order, by handpicking the successor judge for that case, and by pushing the Calloway case to trial within three days after the entry of the disqualification order.

As we did in Calloway , we issued an order to show cause. Respondents have filed responses and Petitioner has filed a reply. We proceed with our appellate analysis.

Appellate Analysis

"Whether the motion [to disqualify a trial judge] is legally sufficient is a question of law, and the standard of review of a trial judge's determination of a motion to disqualify is de novo." Gregory v. State , 118 So.3d 770, 778 (Fla. 2013). "Whether the motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial." Id. (quoting Rodriguez v. State , 919 So.2d 1252, 1274 (Fla. 2005) ). Subjective fear is not sufficient; instead, the fear must be objectively reasonable. Id.

In this case, the alleged sole ground for disqualification is an ex parte communication by the trial judge. The Code of Judicial Conduct in Canon 3B(7) states that:

(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that :
....
(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

Fla. Code Jud. Conduct, Cannon 3B(7) (emphases added). Regarding Canon 3B(7), the commentary to the code provision makes clear that "[t]he proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding , except to the limited extent permitted." Fla. Code Jud. Conduct, Cannon 3B(7) cmt. (emphases added).

Under certain circumstances, an ex parte communication alone can be sufficient to require disqualification. "It is because of its effect on the appearance of impartiality that an allegation of an ex parte communication is legally sufficient to require recusal." Pearson v. Pearson , 870 So.2d 248, 249 (Fla. 2d DCA 2004) (holding that an ex parte communication alone is legally sufficient to require recusal); Robbins v. Robbins , 742 So.2d 395, 397 (Fla. 2d DCA 1999) (same). For that reason, in cases addressing motions for disqualification based on ex parte communications with a judge, the issue is not whether an ex parte communication actually prejudices one party at the expense of another. Instead, "[t]he impartiality of the trial judge must be beyond question." Rose v. State , 601 So.2d 1181, 1183 (Fla. 1992). In most cases, it is the extent or duration of the ex parte communication which gives the appearance that the trial judge is not impartial. See, e.g. , Pearson , 870 So.2d at 249 (trial judge interviewed the child in chambers with the mother present and neither father nor counsel were present); Rollins v. Baker , 683 So.2d 1138, 1139 (Fla. 5th DCA 1996) (trial judge permitted wife's counsel to appear for an undetermined amount of time to discuss request for entry of an injunction for protection, without notice to husband or his counsel); Hanson v. Hanson , 678 So.2d 522, 523 (Fla. 5th DCA 1996) (trial judge and counsel spent an hour discussing the proposed final judgment counsel was to prepare, without notice to opposing counsel).

An ex parte communication in addition to other actions by the trial judge can be grounds for disqualification, where the extent or duration of the communication appears to be brief. In Brake v. Murphy , 693 So.2d 663 (Fla. 3d DCA 1997), an attorney's billing records showed the attorney had two fifteen minute conferences with the trial judge to discuss a proposed draft order. Id. at 665. After addressing an argument that the motion for disqualification was untimely, the Third District determined that the two relatively short instances of ex parte communications warranted disqualification and wrote: "The certitude of our decision ... is reinforced by several highly questionable orders rendered after the surcharge order [entered after the ex parte communication]." Id.

However, "[a]n ex-parte communication by a judge is not, per se, a ground for disqualification as a matter of law." Nassetta v. Kaplan , 557 So.2d 919, 921 (Fla. 4th DCA 1990). A motion asserting an ex parte communication as grounds for disqualifying a judge must allege the communication with specificity and must demonstrate prejudice. Id. ; Patton v. State , 784 So.2d 380, 391 (Fla. 2000) (allegations regarding ex parte proceedings must evidence prejudice on the part of the judge). In other words, in the context of ex parte communications, the motion to disqualify must demonstrate prejudice by establishing that the impartiality of the trial judge is not "beyond question."

In deciding this case, we are guided by the principle that "[a] trial judge's decision must be overturned when 'the appellate court cannot determine if the trial judge's actions were harmless because the trial court's order was based on communications outside the record.' " Albert v. Rogers , 57 So.3d 233, 236 (Fla. 4th DCA 2011) (quoting Wilson v. Armstrong , 686 So.2d 647, 648-49 (Fla. 1st DCA 1996) ). In Albert , that legal principle was applied in the context of the trial judge engaging in ex parte communications by conducting an independent investigation of the facts. Id. at 235. In Wilson , the principle was applied in the context of the trial judge engaging in an ex parte communication with one of the parties' accountant. 686 So.2d at 648. We apply the principle in this case as well because in disclosing the ex parte communication in this case, the trial judge did not supply sufficient details of the communication to allow us to conclude there was no prejudice because "[t]he impartiality of the trial judge [is] beyond question." Rose , 601 So.2d at 1183.

The trial judge in this case sought to avoid the appearance of impropriety by properly complying with Canon 3E(1) and disclosing in the Calloway case his relationship with Attorney Hammer and the conversation he had with him the weekend before. It is clear from that disclosure that there was a "brief" conversation about Hammer's recent Engle progeny trial before Judge Rodriguez. The trial judge then explained, "We also spoke briefly with regard to Judge Rodriguez and his thought concerning consolidations." Presumably, "his thoughts" was a reference to Judge Rodriguez, but an inference could be drawn that "his thoughts" referred to Attorney Hammer. Regardless, we agree with Petitioner's argument that it is unknown what information was discussed by Hammer about the issue of consolidation, which appears to be a hot button issue in Engle progeny cases.

More troubling are the steps taken by the trial judge after the ex parte communication. When Petitioner moved to disqualify the trial judge in the Calloway proceeding, the motion was denied, resulting in a prohibition proceeding before this Court. After we issued an order to show cause in Calloway and before any appellate decision was made, the trial judge sua sponte issued an order of recusal in that case. We are very troubled by the fact that in the Calloway disqualification order, the trial judge ignored our stay order and directed that the Calloway case be transferred to another judge, specifically named, and that the scheduled trial was to begin on a specific date.

Given the unique facts of this case: (1) the ex parte communication with the trial judge in Calloway about an issue that is a hot button issue in Engle progeny cases, as disclosed by a brief statement describing the topic, but with no details; (2) a reversal in position by the trial judge in Calloway by voluntarily disqualifying himself while appellate review was pending and the attempt to control the case after disqualification; and (3) the timing of orders denying motions to disqualify in twelve Engle progeny cases and granting such motions in three cases, where all fifteen motions alleged the same grounds, we conclude that we are required to overturn the trial court's order denying disqualification because the trial court permitted an ex parte communication on an important topic involving Engle progeny cases and we cannot determine that the trial judge's actions were harmless. See Wilson , 686 So.2d at 648-49. We further conclude that the unique facts of this case demonstrate that "the appearance of impropriety so permeated the proceeding[s] below as to justify a suspicion of unfairness, mandating reversal." Hanson , 678 So.2d at 525.

Our decision in this case should not be construed or interpreted to mean that the trial judge should be disqualified in all Engle progeny cases that may appear before him.

Petition granted.

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

      Engle v. Liggett Grp., Inc. , 945 So.2d 1246 (Fla. 2006).


text:
    DEUTSCHE BANK, NATIONAL TRUST COMPANY, AS TRUSTEE FOR the HOLDERS OF THE BCAP LLC TRUST 2007-AA1, Appellant, v. Jose QUINTELA, Appellee.
    No. 4D18-873
    District Court of Appeal of Florida, Fourth District.
    [March 27, 2019]
    Allison Morat and Morgan W. Bates of Bitman O'Brien & Morat, Maitland, for appellant.
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellee.
   Per Curiam.

Deutsche Bank filed a two-count complaint against Jose Quintela: Count I sought foreclosure due to Quintela's non-payment on his mortgage and Count II sought to reform a potentially incorrect legal description within the mortgage. The Bank abandoned reformation at trial, but obtained a foreclosure; nevertheless, Quintela was awarded attorneys' fees and costs. We find that was error and reverse.

During trial, the Bank conceded that there was no testimony to support reformation. However, the Bank continued to pursue foreclosure and the trial court ultimately entered a final judgment of foreclosure. Because the trial court's judgment failed to specify that the Bank did not prevail as to the reformation count, Quintela moved for clarification and to vacate the entire final judgment. He also alleged that a final judgment based on an incorrect legal description of the subject property was "an inequitable Final Judgment."

Although the trial court amended the final judgment to clarify that it found in favor of Quintela on the reformation count, the court did not vacate the foreclosure, but, instead, ordered the subject property to be sold at a public sale.

Despite the trial court's final judgment of foreclosure in favor of the Bank, Quintela moved for attorneys' fees and costs pursuant to section 57.105(7), Florida Statutes (2015), because he prevailed on the reformation count. Quintela alleged he was entitled to fees and costs under section 22 of the mortgage and the reciprocity provision of section 57.105(7). Section 22 stated, in relevant part:

Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument .... If the default is not cured ... Lender at its option may require immediate payment in full.... Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence.

The trial court held a hearing on Quintela's motion for attorneys' fees and costs. At the hearing, Quintela admitted that the Bank prevailed as to the foreclosure, but sought fees and costs related to defending both the foreclosure and reformation. Quintela argued that an award was warranted because he prevailed on the reformation count and the defense of both counts was inextricably intertwined. After hearing arguments from both parties, the trial court granted Quintela's request and awarded him $ 62,283.54 in fees and costs for defending the Bank's action. This appeal followed.

"[W]e review de novo a trial court's final judgment determining entitlement to attorney's fees and costs based on a provision in the mortgage and the application of section 57.105(7)." See Bank of N.Y. Mellon Tr. Co., N.A. v. Fitzgerald , 215 So.3d 116, 118 (Fla. 3d DCA 2017).

Under section 57.105(7), "[i]f a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract."

In Natarajan v. Horn , 402 So.2d 596, 596 (Fla. 2d DCA 1981), Natarajan sought reformation of a contract he entered into with Horn. The trial court granted a directed verdict in favor of Horn and awarded him prevailing party attorneys' fees based on a provision in the contract. Id. This provision stated, "Any party failing to comply with the terms of this contract will pay all expenses, including a reasonable Attorney's fee, incurred by the other party to this contract as a result of such failure." Id. On appeal, the Second District ultimately reversed, finding Horn was not entitled to fees under the provision. The Second District reasoned that there was no contention as to whether Natarajan failed to comply with any term of the contract because the action "was not brought to enforce the contract or any provision thereof, but rather to rescind or reform the contract." Id. at 597. Thus, the reformation action was determined to be a remedy pursued separate and apart from a claim resulting from a breach of the contract. Id.

Similarly, the relevant portion of Quintela's mortgage states that the "Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22 ...." (Emphasis added). While that provision clearly applies to the Bank's foreclosure action, it does not include the reformation claim because reformation is not a remedy provided under Section 22 of the mortgage. See Natarajan , 402 So.2d at 597. As Natarajan held, the Bank's reformation claim is "completely outside the terms of the contract" and cannot form the basis for an award of attorneys' fees and costs pursuant to the mortgage. See id .

Furthermore, Quintela was not the prevailing party. To be entitled to attorneys' fees and costs under a prevailing party statute or contract, the trial court must determine that a party has "prevailed." In Coconut Key , we addressed how to determine who is a prevailing party: "Black's Law Dictionary ... defines 'prevailing party' as '[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded.' BLACK'S LAW DICTIONARY 1154 (8th ed. 2004)." Coconut Key Homeowner's Ass'n v. Gonzalez , 246 So.3d 428, 433 (Fla. 4th DCA 2018) (alteration in original). While "a party who receives affirmative judicial or equitable relief is clearly considered a prevailing party under the law," the party must also prevail on a "significant issue" to obtain attorneys' fees as a prevailing party. See id . at 433-34 ; accord Anglia Jacs & Co. v. Dubin , 830 So.2d 169, 172 (Fla. 4th DCA 2002).

The reformation claim was not a significant issue. "Florida courts have repeatedly held descriptions of property in mortgages sufficient despite minor mistakes and irregularities where the description of the property intended to be encumbered could be determined from a review of the entire instrument." Salam v. U.S. Bank Nat'l Ass'n , 233 So.3d 473, 475 (Fla. 4th DCA 2017) (quoting Regions Bank v. Deluca , 97 So.3d 879, 884-85 (Fla. 2d DCA 2012) ).

In this case, the Bank did not intend to simply reform the legal description of the subject property but to foreclose upon Quintela's mortgage. Although the Bank did not succeed on its reformation count, the trial court ultimately ruled that the Bank could foreclose upon Quintela's property, and this court previously affirmed the foreclosure judgment. See Quintela v. Deutsche Bank Nat'l Tr. Co ., 229 So. 3d 353 (Fla. 4th DCA 2017). The fact that the Bank was able to obtain a final judgment of foreclosure without having to reform the legal description of the property shows that the reformation count was insignificant "in the scheme of this particular case." See Markin v. Markin , 953 So.2d 13, 15 (Fla. 4th DCA 2007) (holding that a party did not prevail where he "obtained no relief from the total amount he was required to pay, let alone relief that could be classified as significant"); see also Salam , 233 So.3d at 475.

For these reasons, we find that Quintela was not a prevailing party below, and reverse the trial court's order granting Quintela attorneys' fees and costs.

Reversed .

May, Ciklin and Klingensmith, JJ., concur.


text:
    Avril DEOKI, Appellant, v. WELLS FARGO BANK, N.A., as Trustee for Option One Mortgage Loan Trust 2007-FXD1, Appellee.
    No. 4D18-3513
    District Court of Appeal of Florida, Fourth District.
    [March 13, 2019]
    Avril Deoki, Sunrise, pro se.
    No brief filed for appellee.
   Per Curiam.

The court has reviewed appellant's initial brief and finds that no preliminary basis for reversal has been demonstrated. The appeal is therefore affirmed pursuant to Florida Rule of Appellate Procedure 9.315.

Gross, Conner and Klingensmith, JJ., concur.