author: Gerber, C.J.

text:
    FLORIDA RESEARCH INSTITUTE FOR EQUINE NURTURING, DEVELOPMENT AND SAFETY, INC., a Florida not for profit corporation, Appellant, v. Dana DILLON and Robert Dillon, individually, Appellees.
    No. 4D17-605
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Thomas H. Loffredo and Rebecca A. Rodriguez of Gray Robinson, P.A., Fort Lauderdale, and Kristie L. Hatcher-Bolin of Gray Robinson, Lakeland, for appellant.
    Bruce H. Little of Bruce H. Little, P.A., Fort Lauderdale, for appellees.
   Gerber, C.J.

A corporation, organized to provide horse rescue services, appeals from the circuit court's final judgment, after a non-jury trial, in favor of a wife and husband arising from their alleged membership rights in the corporation. The corporation primarily argues that the trial court erred in two respects: (1) by concluding that the corporation illegally terminated the wife's membership in the corporation without affording her notice and a hearing; and (2) by finding that the husband was a member of the corporation at the time he demanded to inspect the corporation's corporate records. On the first argument, we agree with the corporation and reverse as to the wife's action. On the second argument, we disagree with the corporation and affirm without discussion as to the husband's action.

We present the circuit court's findings of fact in the final judgment as to the wife's action to the extent such findings are supported by competent, substantial evidence. See Acoustic Innovations, Inc. v. Schafer , 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) ("When a decision in a non-jury trial is based on findings of fact from disputed evidence, it is reviewed on appeal for competent, substantial evidence."). Other record facts are included below where necessary to provide a complete picture of the material facts.

Procedural History

The corporation was formed as a not for profit charitable organization under chapter 617, Florida Statutes (governing not for profit corporations). Persons can become member sponsors of the corporation essentially by completing a membership application, paying a membership fee, being approved for membership, and paying recurring contributions towards the care of a horse or horses which the member is sponsoring.

The corporation was governed by a board of directors, sometimes referred to as the board of trustees. The corporation was operated according to a set of bylaws and a set of rules. The corporation's original bylaws provided that the board could remove a member by providing written notice to the member of a hearing, at which the board could remove the member for cause. The corporation later amended its bylaws to delete the requirements of notice and a hearing before the board could remove a member for cause. The amended bylaws provide, in pertinent part:

The Board of Trustees may suspend or expel a member ... for "just cause" after a vote is held at any regular, special or emergency meeting if deemed in the best interest of the organization, the horses or the general membership. Management may enforce the termination of membership if the member has received a prior verbal and written warning as stated in the Rules and Regulations. Should there be a vote of the Board of Trustees to terminate a member, and that vote is unanimous, when they terminate this member, then that member becomes ineligible for reinstatement.

The corporation's rules provide, in pertinent part:

Membership termination is at the discretion of management and the Board of Directors.
...
Any member/sponsor, who we determine has intentionally tried to undermine the organization, the Board of Directors or Management will terminate their membership immediately and without warning.

The bylaws amendment and rules existed before the wife became a member of the corporation.

After the wife became a member of the corporation, she received multiple verbal and written warnings for various rules violations. Despite these warnings, the wife ultimately sent an e-mail to someone outside of the corporation, accusing the corporation of a variety of misdeeds, and alleging, among other things, "[The corporation] is as corrupt as you can imagine."

After the corporation's board became aware of the wife's accusatory e-mail, the board set an emergency meeting without providing notice to the wife. At the meeting, the board unanimously voted to terminate the wife's membership for cause. The corporation sent the wife a letter notifying her of the termination.

The wife brought a declaratory judgment action against the corporation. The wife alleged, among other things, that the board did not legally terminate her membership because the board did not provide her with notice and a hearing before terminating her membership.

In its answer, the corporation alleged that it terminated the wife's membership "pursuant to a fair and reasonable procedure carried out in good faith." The corporation alleged that the wife had violated the corporation's rules and ignored the corporation's directions to comply with the rules before the corporation terminated her after multiple violations.

After a non-jury trial, the trial court entered a final judgment in the wife's favor. The trial court reasoned, in pertinent part:

The termination of any member of [the corporation] is governed by Florida Statute § 617.0607, which dictates that a member may not be expelled or suspended and that a membership of a corporation may not be terminated or suspended except pursuant to a procedure that is fair and reasonable and carried out in good faith. The statute was obviously designed to comply with constitutional due process of law and notice requirements.
...
The changes in the By-Laws affected the requirement of a hearing, but both the [original] and [amended] By-Laws required "just cause" for removal of any member. Procedurally, the determination of whether there is just cause must be "fair and reasonable" by statute which legislates that some measure of due process must occur. The [amended] By-Laws do not establish a procedure for removal that is "fair and reasonable."
No emergency existed for the termination of [the wife's] membership without notice, a hearing and the opportunity to be heard as required by a reasonable interpretation of the By-Laws, and strict interpretation of Florida law and due process.
...
Pursuant to Florida law, and [the corporation's] By-Laws, and constitutional due process of law, [the corporation] was required to provide a fair and reasonable procedure for the termination of [the wife's] membership after they decided to terminate or initiated the process.
[The wife's] membership was never effectively terminated; and therefore, the Court determines her to still be a member of [the corporation].
...
In reaching a decision in this case ..., the Court considered and applied ... sec. 617.0607 [,] Florida Statute[s]. A similar case considered and applied by the Court was La Gorce Country Club v. Cerami , 74 So.2d 95 (Fla. 1954). In Cerami , a member of a private club was terminated under a similar By-Law provision without a hearing and at the sole discretion of the Board. The Supreme Court affirmed the trial court in compelling his reinstatement based on the due process requirement that he be afforded a hearing.
...
The Court finds in favor of [the wife] as to her declaratory action and determines that her membership was not reasonably, fairly or legally terminated and therefore, she continues to be a member of [the corporation].
The [corporation], ... the Board or individual members are hereby ordered to provide all the benefits and obligations of membership in [the corporation] to [the wife] and to refrain from involuntarily terminating the membership of [the wife] without first according her notice and a hearing which comports with Fla. Stat. § 617.0607 and the minimum standards of due process of law ....

Our Review

This appeal followed. The corporation argues that the trial court misapplied the applicable law and relied upon an inapplicable legal standard in ruling that the wife's membership was unreasonably and unlawfully terminated. More specifically, the corporation argues the trial court erred by ruling that the corporation's membership termination procedures were invalid based upon a purported due process violation.

To the extent the trial court's final judgment was based upon its legal conclusion that the corporation's application of the bylaws violate due process, our review is de novo. See Acoustic Innovations , 976 So.2d at 1143 ("[W]here a trial court's conclusions following a non-jury trial are based upon legal error, the standard of review is de novo ."); Natiello v. Winn-Dixie Stores, Inc. , 203 So.3d 209, 210 (Fla. 4th DCA 2016) ("[T]he issue of whether a party has been denied procedural due process is reviewed de novo."); Retreat at Port of Islands, LLC v. Port of Islands Resort Hotel Condo. Ass'n, Inc. , 181 So.3d 531, 532 (Fla. 2d DCA 2015) ("[O]rganizational bylaws are treated as contracts, and we review construction of those bylaws de novo.").

We agree with the corporation's arguments regarding its termination of the wife's membership for three reasons:

1. the plain language of section 617.0607(1), Florida Statutes (2013), does not require notice and a hearing before a not for profit corporation terminates a member;
2. the corporation's bylaws and rules set forth an expulsion and termination procedure "that is fair and reasonable and [was] carried out in good faith" under section 617.0607(1) ; and
3. the case upon which the trial court primarily relied, La Gorce Country Club v. Cerami , 74 So.2d 95 (Fla. 1954), is inapplicable.

We address each reason in turn.

1. Plain Language

First, the plain language of section 617.0607(1), Florida Statutes (2013), does not require notice and a hearing before a not for profit corporation terminates a member. Section 617.0607(1) states: "A member of a [not for profit] corporation may not be expelled or suspended, and a membership in the corporation may not be terminated or suspended, except pursuant to a procedure that is fair and reasonable and is carried out in good faith ." (emphasis added). If the legislature had intended that a member of a not for profit corporation may not be expelled or suspended, or that a membership in a corporation may not be terminated or suspended, except pursuant to "notice and a hearing," then the legislature could have said so. Because the legislature has not said so, both we and the trial court are without power to modify the statute to include the requirement of notice and a hearing before a not for profit corporation terminates a member. See Hill v. Davis , 70 So.3d 572, 575-76 (Fla. 2011) ("Courts are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power. Thus, if the meaning of the statute is clear then this Court's task goes no further than applying the plain language of the statute.") (internal citations and quotation marks omitted).

2. Fair, Reasonable, and Good Faith

Second, the corporation's bylaws and rules set forth an expulsion and termination procedure "that is fair and reasonable and [was] carried out in good faith" under section 617.0607(1). The bylaws provided, in pertinent part:

The Board of Trustees may suspend or expel a member ... for "just cause" after a vote is held at any regular, special or emergency meeting if deemed in the best interest of the organization, the horses or the general membership. Management may enforce the termination of membership if the member has received a prior verbal and written warning as stated in the Rules and Regulations. Should there be a vote of the Board of Trustees to terminate a member, and that vote is unanimous, when they terminate this member, then that member becomes ineligible for reinstatement.

Further, the corporation's rules provided, in pertinent part:

Membership termination is at the discretion of management and the Board of Directors.
...
Any member/sponsor, who we determine has intentionally tried to undermine the organization, the Board of Directors or Management will terminate their membership immediately and without warning.

The record evidence indicates that the corporation complied with this fair and reasonable procedure and did so in good faith. The wife received multiple verbal and written warnings for various rules violations. Despite these warnings, the wife ultimately sent an e-mail to someone outside of the corporation, accusing the corporation of a variety of misdeeds, and alleging, among other things, "[The corporation] is as corrupt as you can imagine." This ultimate action, along with the wife's prior conduct, provided the board with "just cause" to find that the wife was intentionally trying to undermine the organization, and justified the board's unanimous vote to terminate the wife's membership.

3. La Gorce 's Inapplicability

Third, the case upon which the trial court primarily relied, La Gorce Country Club v. Cerami , 74 So.2d 95 (Fla. 1954), is inapplicable. In La Gorce , our supreme court indeed concluded that a social club member was entitled to notice and a hearing before being expelled from the club. However, our supreme court reached that conclusion after finding that "the present case is controlled by statute under which the club was incorporated, namely F.S. § 617.10." Id. at 97. Section 617.10 was repealed in 1990 (effective in 1991), and was very different than the current section 617.0607. Section 617.10 provided, in pertinent part:

Social clubs or societies not for profit may be incorporated under this chapter; provided, however, that any such club or society may, in its by-laws:
...
(2) Prescribe that an incorporator or member shall not have any vested right, interest or privilege of, in or to the assets, functions, affairs, or franchises of the corporation, or any right, interest or privilege which may be transferable or inheritable, or which shall continue after his membership ceases, or while he is not in good standing; provided, that before his membership shall cease against his consent he shall be given an opportunity to be heard ....

(emphasis added).

The current section 617.0607, which the trial court cited in its final judgment, contains no such requirement that before a person's membership shall cease against that person's consent, the person shall be given notice and an opportunity to be heard. Instead, the current section 617.0607(1) states: "A member of a [not for profit] corporation may not be expelled or suspended, and a membership in the corporation may not be terminated or suspended, except pursuant to a procedure that is fair and reasonable and is carried out in good faith ." (emphasis added). The trial court's conclusion, that this procedure requires notice and an opportunity to be heard, finds no support in section 617.0607's plain language or case law.

Conclusion

Based on the foregoing, we reverse the trial court's final judgment to the extent the trial court concluded that the corporation illegally terminated the wife's membership in the corporation without affording her notice and a hearing. We remand for the trial court to enter a new final judgment finding in the corporation's favor on the wife's declaratory action, determining that the wife's membership was reasonably, fairly, and legally terminated, and that the wife ceased being a member of the corporation when the corporation terminated her membership. The new final judgment shall not disturb the trial court's findings of fact and conclusions of law as to the husband's action, which, in sum, were that although the husband was a member of the corporation whose membership was never terminated, the husband's request to inspect the corporation's records was impermissibly vague and overbroad and, therefore, the corporation did not improperly fail to respond to the request.

Affirmed in part, reversed in part, and remanded for entry of new final judgment consistent with this opinion.

Damoorgian and Klingensmith, JJ., concur.


source: Caselaw Access Project

author: Taylor, J.

license: Public Domain

text:
    Mackendy CLEDENORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1566
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2018]
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Mackendy Cledenord appeals his convictions and sentences for lewd or lascivious molestation, sexual battery on a person younger than 12, and lewd or lascivious conduct. Appellant argues that the trial court abused its discretion in denying his cause challenges to two prospective jurors. We disagree and affirm without comment on this issue. Appellant also argues that the trial court abused its discretion in summarily denying his pre-trial motion for reconsideration of the trial court's suppression ruling. We affirm on this issue as well but write to explain that, although the trial court applied an incorrect legal standard in ruling on the motion for reconsideration, we find that the error was harmless.

The following facts are relevant to this opinion. Soon after appellant's arrest, he gave a videotaped statement to police in which he admitted touching the victim's thighs and chest but denied touching her vagina. Appellant moved to suppress his statement.

At the suppression hearing, evidence showed that officers were dispatched to the victim's home shortly after 3:00 a.m. on the date of the incident. The scene was chaotic and emotional, with people talking loudly back and forth.

The officers made contact with the victim's aunt, who did not testify at the suppression hearing. The victim's aunt told the officers that she had thrown a party at her home earlier that evening. After she went to sleep that night, she was awakened to the sound of the victim screaming. When she went to the living room to investigate, she saw a man get up from the area next to the victim, go out to the patio, and take off running. The victim told her aunt and the police that the man had inserted his finger into her vagina.

Witnesses at the scene described the man as a twenty-something black male who had dreadlocks and was wearing a red shirt. The victim's aunt told the police that the man had been at the party earlier that evening. According to the officers' testimony, the victim's aunt and other witnesses said that the man lived next door.

The officers gave conflicting testimony about whether the victim's aunt knew the man's name. Sergeant Scott testified that the victim's aunt did not know the man's name. By contrast, Officer Laurent testified that the victim's aunt identified appellant by name as the man she observed on the patio. Officer Laurent repeatedly testified that the victim's aunt referred to the man as "Mackendy."

The police went next door and knocked on the door. A resident, Mr. Valliere, answered the door and gave the police permission to search for the suspect. Officers entered the home and saw appellant sleeping on the couch. Appellant matched the description of the suspect, as he was black, appeared to be in his mid-twenties, was wearing a red shirt, and had a dreadlock hairstyle. Officers woke appellant up and had him identify himself. Officers handcuffed appellant and took him outside for a show-up identification. The victim's aunt identified appellant as the person she saw inside her house. Appellant was then placed in a patrol car and taken to the police station.

Relevant to this appeal, defense counsel argued that appellant's statement was the product of an illegal arrest inside his residence without probable cause. Additionally, relying on the testimony of a resident of appellant's home, defense counsel argued that the police did not have consent to enter the home.

The trial court denied the motion to suppress, finding that appellant's arrest was lawful. Specifically, the trial court found that: (1) there were exigent circumstances justifying the entry into appellant's home; (2) Mr. Valliere, who had both actual and apparent authority over the common areas of appellant's home, freely and voluntarily gave consent for the officers to enter the home; and (3) the officers had probable cause to detain and arrest appellant "based on the critical one fact, which is this, that the person, that the culprit lives next door, his name is Mackendy, testified to by Laurent and Laurent identifies the defendant on the couch as the same person."

In finding probable cause to arrest appellant, the trial court also emphasized that appellant's age, red shirt, race, and dreads matched the description of the suspect. As a "backup finding," the trial court found that even if the officers did not have probable cause to arrest appellant when they found him in the house, the police acted reasonably in detaining appellant for the purpose of bringing him outside the home for an immediate show-up identification. The trial court concluded that this reasonable detention was elevated into an arrest supported by probable cause when the victim's aunt "immediately identified [appellant] as the person who committed the crime."

About ten months before trial, appellant filed a motion for reconsideration of the trial court's suppression ruling, arguing that newly discovered evidence required the trial court to conduct a new suppression hearing in the interests of justice. Appellant asserted that, after the suppression hearing, the victim's aunt gave deposition testimony directly contradicting the police testimony upon which the trial court's factual and legal rulings relied. Attached to appellant's motion was the aunt's deposition, wherein she testified in relevant part:

• The man she saw on the patio was at the party earlier that night.
• She told the police what the man looked like.
• She did not know the man's name and did not tell police that the man's name was Mackendy.
• She did not know where the man lived and did not tell the police that he lived next door.
• Her brother might have told the police that the man lived next door, but she did not remember anybody telling the police that the man lived next door.

The trial court denied appellant's motion for reconsideration in open court. Applying the "newly discovered evidence" standard used in post-conviction cases, the trial court found that appellant was required to make a showing that the evidence could not have been uncovered through the exercise of due diligence, and noted that there was no allegation in the motion that the witness was unavailable or unknown to appellant. Defense counsel responded that the witness had been in Haiti and that he did not have an address for her there. However, the trial court was unpersuaded by defense counsel's argument and entered a written order denying the motion for reconsideration.

At trial, appellant's statement was introduced into evidence. The jury found him guilty of all charges.

On appeal, appellant argues that the trial court abused its discretion in summarily denying his pre-trial request for the trial court to reconsider its ruling on the motion to suppress, where defense counsel learned of new facts that brought the suppression ruling into question.

A trial court has the inherent power "to reconsider, while the court has jurisdiction of the case and upon appropriate motion or objection by either counsel, a ruling previously made on a motion to suppress." Savoie v. State , 422 So.2d 308, 312 (Fla. 1982). A trial court's decision whether to reconsider a motion to suppress is reviewed for an abuse of discretion. Shermer v. State , 16 So.3d 261, 265 (Fla. 4th DCA 2009).

In the context of post-conviction cases, a defendant seeking relief on the basis of newly discovered evidence must show: (1) the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defense could not have known of it by the use of diligence; and (2) the evidence must be of such nature that it would probably produce an acquittal on retrial. Jones v. State , 709 So.2d 512, 521 (Fla. 1998).

In the context of motions to suppress raised for the first time at trial, however, a trial court should apply a balancing test in deciding whether to exercise its discretionary authority under Florida Rule of Criminal Procedure 3.190(h) to entertain a motion to suppress during trial. See Savoie , 422 So.2d at 311. In deciding whether to consider "a motion to suppress made during the course of a trial, the judge must balance the rights of the defendant to due process and effective assistance of counsel with the rights of the state to have an opportunity to appeal an adverse ruling on the motion to suppress." Id. at 312.

Here, we find that the trial court should not have applied the post-conviction standard for newly discovered evidence in ruling on appellant's request for reconsideration of the trial court's suppression ruling. The post-conviction standard is too restrictive in the pre-trial context, as it is inconsistent with a trial court's broad discretion to reconsider a prior interlocutory ruling on a motion to suppress. The due diligence prong of the post-conviction standard serves the policy of finality, but that policy has little importance before trial. Where reconsideration of a ruling on a motion to suppress in advance of trial would not deprive the state of an opportunity to appeal an adverse ruling, the rights of a defendant to due process and effective assistance of counsel should outweigh any need for finality with respect to an interlocutory suppression ruling. Cf. Savoie , 422 So.2d at 312.

Accordingly, in deciding whether to grant a pre-trial request to reconsider a prior ruling on a motion to suppress on the basis of newly discovered evidence, a trial court should evaluate the nature of the new evidence and whether it would have impacted the prior suppression ruling. A party's lack of due diligence in discovering the new evidence is not a sufficient basis for denying a pre-trial motion for reconsideration of a prior ruling on a motion to suppress.

Nonetheless, although we find that the trial court incorrectly applied the post-conviction standard for newly discovered evidence in ruling on appellant's request for reconsideration of the suppression order, we find that any error was harmless. See State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986).

In this case, there is no reasonable possibility that the newly discovered evidence would have affected the trial court's suppression ruling. The victim's aunt testified in her deposition that she did not know the name of the man on the patio, did not tell the police the man's name, and did not tell the police that the man lived next door. Although this testimony contradicted the officers' testimony in certain respects, it would not have affected the outcome of the suppression hearing.

The evidence at the suppression hearing showed that there were other witnesses at the scene, besides the victim's aunt, who said that the suspect lived next door. Indeed, it is obvious that someone told the police where the suspect lived, even if the officers were mistaken as to whether the victim's aunt gave them this information. Moreover, even if the victim's aunt did not personally tell the police appellant's name or that he lived next door, it is undisputed that she gave police a description of the suspect. Additionally, the victim's aunt's deposition does not call into question the trial court's finding that the police had consent to enter the home next door.

Although the trial court did rely on Officer Laurent's testimony that the victim's aunt told the police the suspect's name, this fact was not crucial to the probable cause determination. When the police found appellant on the couch and saw that he matched the detailed description of the suspect, the police had reasonable suspicion to briefly detain appellant to determine whether the victim's aunt could identify him. The aunt's positive identification of appellant then provided the police with probable cause for his formal arrest. The officers would have had probable cause to arrest appellant regardless of whether the aunt told the police appellant's name or where he lived.

In sum, although the trial court applied an incorrect legal standard in ruling on the motion for reconsideration, we find that the error was harmless. Even under the standard that we announce today, appellant would not have been entitled to reconsideration of the suppression ruling.

Affirmed.

Warner and Gross, JJ., concur.

      The motion was incorrectly designated below as a "motion for rehearing," but in substance was a motion for reconsideration.


author: Warner, J.

text:
    Anthony Chas PARR, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4228
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2018]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant pled guilty to a violation of probation imposed after his convictions for two counts of dealing in stolen property and two counts of giving false ownership or identification information to a secondhand dealer. The trial court sentenced him to fifteen years concurrent on each of the counts for dealing in stolen property and to five year concurrent sentences for the remaining charges. We reverse the sentences because the trial court departed from a position of neutrality in the sentencing proceeding. Appellant also contends that in sentencing him the court erred in considering juvenile dispositions more than five years old, which were included on his scoresheet. We disagree, as prior convictions may be considered, even though they cannot be scored for purposes of determining the lowest permissible sentence under the Criminal Punishment Code. We remand for resentencing before another judge.

In 2011, appellant was charged by information with two counts of dealing in stolen property and two counts of giving false ownership or identification information to a secondhand dealer. Appellant pled to the charges and was adjudicated guilty. He was sentenced to three years in prison for all counts, followed by two years of probation, and was ordered to pay restitution.

Appellant's probation was set to expire in July 2016. However, in November 2015, appellant's probation officer filed a probation violation report for violations including: failure to report to his probation officer; change of residence without consent; and failure to pay restitution and other costs. The officer alleged that appellant absconded and that his whereabouts were unknown. In the addendum to the violation report, new charges were added, including leaving his county of residence without permission and being arrested for possession of heroin.

In November 2016, the trial court held an initial hearing on appellant's VOP. The prosecutor told the judge that plea offers had been made but were now revoked. After appellant rejected an offer of an eight year cap, the State offered appellant a straight eight year prison term, but appellant rejected that offer as well. Appellant told the court that he thought the eight year cap offer was still open, partially because of his change of attorneys due to his dissatisfaction with his first attorney. The court then questioned appellant about the two offers. While appellant said he would take the eight year cap today, the court was not inclined to accept a capped sentence. The court asked appellant whether he would take the straight eight years. After discussing it with his attorney, appellant rejected the court's offer.

At a subsequent hearing, appellant entered an open plea, admitting the violations, except the possession of heroin charge which the State dropped. The court stated that based on the underlying offenses and appellant's scoresheet, appellant faced a sentence between 13.2 months and forty years in prison.

The court reviewed appellant's sentencing scoresheet which included numerous juvenile dispositions, all of which were more than five years old. Appellant then testified, stating that he was homeless and turned himself in after the VOP warrant was issued. Appellant testified that he wished to receive treatment, and if released on probation, he would live with his grandfather. He stated that the victims of "[e]very case [he] ever had" were his family. The prosecutor cross-examined him on his record, listing various charges. Appellant could not remember whether all the juvenile charges were against family members.

Defense counsel then called appellant's grandfather to testify. The grandfather stated that appellant's family did not want him to go back to jail. The court, not the prosecutor, asked the grandfather if appellant was a danger to the community, and he responded, "Absolutely not."

The court began to question the grandfather about appellant's juvenile and adult criminal record. Appellant's juvenile dispositions included burglary of a dwelling, grand theft of a vehicle, forgery, assault, and improper exhibition of a weapon. The court commented on appellant's two burglaries of a dwelling, juvenile dispositions, and the grandfather and appellant responded that those incidents occurred at appellant's mother's house. Appellant told the court that the grand theft of a vehicle charge was from when he was a juvenile. The court stated, "It counts though, correct. Whose car did he steal?" The grandfather and appellant admitted that appellant took the grandfather's van. The court then asked about the juvenile forgery disposition, and the grandfather responded that appellant took his checks. The court asked about two other grand theft charges, adult offenses, but the grandfather told the court that he did not know about those offenses. The following exchange took place:

THE COURT: Two other-two other grand thefts, are you familiar with those?
GRANDFATHER: You'll have to tell me what they are.
THE COURT: I don't know, I'm asking you. Do you know what they are?
THE DEFENDANT: I don't-one was-one was-
THE COURT: I'm not asking you, I'm asking [your Grandfather].
GRANDFATHER: Sir, I don't know.
THE COURT: Cause you're coming into my courtroom and you're saying he's not a danger to anyone else.
GRANDFATHER: I-I don't think-
THE COURT: He's never victimized anybody else?
GRANDFATHER: No, not that I know of.
THE COURT: Not that you know of.
GRANDFATHER: Uh-huh.
THE COURT: Is your lack of knowledge intentional or accidental in that regard?
GRANDFATHER: My lack of knowledge is because-
THE COURT: Are you keeping your head in the sand-
GRANDFATHER: I have no knowledge of that.
THE COURT: As far as whether he's violated anyone else's rights?
GRANDFATHER: I do not know that he has.
THE COURT: Okay. But is that intentional on your part or are you just accidental-are you-are you-
GRANDFATHER: That's the way I feel.
THE COURT: Did you inquire of him in that regard?
GRANDFATHER: That's-THE COURT: Have you looked into it?
GRANDFATHER: Uh, not intentionally look into it.
THE COURT: Because you just told me he's not a threat to anybody else.
GRANDFATHER: I do not believe him to be a threat to anyone.
THE COURT: Okay. Because you don't know if he's-he's violated anyone else's rights.
GRANDFATHER: Not-it has not come to my attention that he has.
THE COURT: How about assault?
GRANDFATHER: No.
THE COURT: Improper exhibition of a weapon?
GRANDFATHER: No.
THE COURT: That is no, you don't know anything about it.
GRANDFATHER: He's not done that.
THE DEFENDANT: No, it's-
THE COURT: It's on his record. I'm looking at his scoresheet.
GRANDFATHER: A gun?
THE COURT: I'm looking at his scoresheet. It's on his record.
GRANDFATHER: I don't know anything about a gun. I have guns, but I don't know that-
THE COURT: I don't know that it's a gun-
GRANDFATHER: He's every had any-
THE COURT: It says weapon, it doesn't mean it's a gun. Resisting a merchant, you're not a merchant, are you?
GRANDFATHER: No sir.
THE COURT: Resisting an officer without violence, are you aware of that?
GRANDFATHER: No sir.
THE COURT: Driving while license suspended, theft-another theft charge. You've told me you don't know of any other victims other than your family.
GRANDFATHER: That's correct.
THE COURT: Okay. And he's violated your family's rights because of what, a drug problem?
GRANDFATHER: No, I don't know that he's ever been on drugs.
THE COURT: So you don't know what motivates him to do these things?
GRANDFATHER: I think he just thought he could get away it and, uh-
THE COURT: So but what-what-
GRANDFATHER: It was proven not so.
THE COURT: We know in our-in the world that we live in, people do things for different reasons. Most criminals have drug problems and they violate people's rights, they steal from them to get money to get drugs or to buy whatever they want. How do you-who is he-what does-what does he do? How is it-he just violates the rights of people in your family? Does he hate all of you? What-what's the situation? I don't get it.
GRANDFATHER: I just thought it was-I think he thought it was an easy way to get things so he could, uh, prepare or to provide for himself.
THE COURT: And he limits it to your family in that-
GRANDFATHER: The occasions when he's done that have been limited to myself, uh, my live-in girlfriend and-and his mother.
THE COURT: All right. Those are the only questions I have. Does the State have any additional questions?

The State then asked the grandfather only one question-whether appellant attempted to check into rehab when he learned that he violated his probation, as appellant testified earlier in the hearing. The grandfather stated that he was not aware of that. He testified that he hoped that appellant could come home, to which the court replied, "So he can steal from you and burglarize and commit grand theft against you?"

After presentation of the evidence, the State argued for a twelve year sentence, noting his criminal conduct commenced in 2000 as a juvenile and continued through 2012. Appellant sought a sentence of six years. The court terminated appellant's probation, and sentenced him to concurrent sentences of fifteen years for the two counts of dealing in stolen property and five years for the two counts of giving false identification information to a secondhand dealer.

Appellant filed a notice of appeal of his sentence. After filing his notice, he filed a rule 3.800(b)(2) motion to correct his sentence, arguing that his juvenile dispositions should not have been included on his scoresheet because they occurred over five years before his primary offenses and that his sentence violated due process and the Eighth Amendment. The court denied this motion.

Appellant argues that the court violated his rights by departing from a position of neutrality in the sentencing process. A court commits fundamental error by abandoning its neutral role and assuming the role of the prosecutor in a criminal prosecution. See Cagle v. State , 821 So.2d 443, 444 (Fla. 2d DCA 2002). In Cagle , which involved a probation revocation proceeding, the court explained:

A trial court may conduct probation revocation proceedings in an informal manner and it may question witnesses, but it may not assume the role of the prosecutor. Edwards v. State , 807 So.2d 762, 763 (Fla. 2d DCA 2002). Doing so deprives the defendant of the fair and impartial tribunal which is the cornerstone of due process. See Marshall v. Jerrico, Inc. , 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). Such conduct amounts to fundamental error that may be raised for the first time on appeal. See Sparks v. State , 740 So.2d 33 (Fla. 1st DCA 1999).

Id. This principle also applies to a sentencing proceeding. See Smith v. State , 205 So.3d 820, 821 (Fla. 2d DCA 2016).

In Sears v. State , 889 So.2d 956, 959 (Fla. 5th DCA 2004), in a probation proceeding, the appellate court reversed because the trial court strayed too far from a position of neutrality. The court said:

The requisite for a neutral finder of fact does not foreclose a judge from asking questions designed to make previously received ambiguous testimony clear. See McFadden [v. State , 732 So.2d 1180, 1185 (Fla. 4th DCA 1999) ]. Certainly a trial judge should not be compelled to act out of confusion or a misapprehension of the facts. The capacity to clear up ambiguous or confusing testimony, however, is not an invitation to trial judges to supply essential elements in the state's case. Id.
A review of the transcript indicates that the court's questioning of witnesses in the present case went well beyond an attempt to clear up ambiguities. While numbers are not necessarily determinative, we cannot help but notice that the trial judge here asked the victim forty questions, while the prosecutor asked her three.

Id. (alteration added). Similarly, in this case, a review of the court's cross-examination of the grandfather leaves no other conclusion but that the court was acting as the prosecutor in grilling the witness on the prior criminal incidents involving his grandson. The court immediately started the cross-examination of the witness without allowing the prosecutor to ask any questions. The questioning went far beyond clearing up ambiguities and was directed to discrediting the witness. By the time the court had finished, the prosecutor had only one question. The court was not neutral but had taken on the role of the prosecutor.

As we said in McFadden , 732 So.2d at 1184, "The requirement of judicial impartiality is at the core of our system of criminal justice." We quoted from State ex rel. Davis v. Parks , 141 Fla. 516, 519-20, 194 So. 613, 615 (1939), which bears repeating here:

This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.
It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this.

Id. As it is apparent that the court deviated from a position of neutrality, it did not secure to this defendant the assurance of judicial impartiality "at the core of our system of criminal justice." Id. Therefore, we reverse and remand for resentencing before a different judge.

Appellant also challenges the court's consideration of his juvenile convictions which were more than five years old at the time of commission of the current offense, claiming that Norvil v. State , 191 So.3d 406, 408 (Fla. 2016), precludes their consideration. We disagree. In Norvil , a trial court had considered an arrest subsequent to the primary offense in sentencing a defendant, but the Criminal Punishment Code did not include subsequent arrests as a sentencing factor. Id. at 407-09. The supreme court held that the trial court could not consider factors not authorized in the CPC in sentencing, concluding that courts should consider only prior arrests and convictions rather than arrests subsequent to the primary offense. Id. at 409. It looked to those factors enumerated in the provisions of the presentence investigation report, noting that under section 921.231(1)(c), Florida Statutes (2010), a court may consider an offender's prior arrests and convictions, as well as the definition of "prior record" in the CPC. Id. ; see §§ 921.0021(4), (5), Fla. Stat. (2010).

The "prior record" of a defendant, as defined in the CPC, excludes juvenile dispositions for offenses committed more than five years prior to the primary offense. See § 921.0021(5), Fla. Stat. (2016). Such convictions cannot be scored for purposes of determining the lowest permissible sentence and should not appear as a "prior record" on the sentencing scoresheet. See § 921.0021(5), Fla. Stat. (2016) ; Fla. R. Crim. P. 3.704(d)(14)(B) ; Graham v. State , 950 So.2d 526, 526 (Fla. 4th DCA 2007). Nevertheless, as noted in Norvil , the legislature authorizes the inclusion of prior arrests and convictions as information to assist the court in determining a proper sentence for the defendant. See §§ 921.231(1)(c) ; 948.015(3), Fla. Stat. (2016). Arrests and convictions for crimes committed while a juvenile would fall into that broad category, whether or not they were within five years of the primary offense. The legislature placed no time limit on the information to be supplied to the court in a presentence investigation. Thus, appellant's juvenile convictions could be considered, even though they could not be scored.

While it does not appear that a PSI was prepared in this case, this does not mean that the court could not consider information that would have been contained in a PSI if it had been available and verified. Because the prior criminal history of a defendant is deemed relevant, even if not scored for the CPC lowest permissible sentence, the court may consider it in sentencing. On remand, however, the court should omit such convictions on the scoresheet as a "prior record," because they are not part of the CPC prior record.

For the foregoing reasons, we reverse for resentencing by another judge, consistent with this opinion.

Gross and Taylor, JJ., concur.


author: Ciklin, J.

text:
    Shane Scott HART, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3766
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2018]
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

Shane Scott Hart appeals his conviction and sentence for felony battery with a weapon. He argues that the trial court erred in denying his request for an instruction on the justifiable use of non-deadly force. We agree with Hart that the defense evidence supported giving the instruction and that the error was not harmless. Thus, we must reverse and remand for a new trial.

After a physical altercation with his neighbor, Hart was charged with aggravated battery with a deadly weapon causing great bodily harm, permanent disability, or permanent disfigurement. Hart utilized a serrated knife in the altercation, leaving his neighbor with life-threatening injuries, including cuts to the face, neck, and back of the head.

According to the defense evidence at trial, Hart was involved in a serious car accident several months prior to the altercation, necessitating hospitalization for five days and two surgeries to repair his broken neck. Medical personnel warned him that he could be paralyzed if he fell or moved his neck the wrong way. At the time of the altercation, he was wearing a hard, stabilizing neck brace that limited his mobility. Hart testified that he could not look down and could not turn to the side without "turning my whole body with it pretty much."

Hart further testified that, while conversing with his neighbor in his neighbor's front yard, he commented on the neighbor's taste in women. The neighbor responded by grabbing Hart's neck brace and moving Hart's body by "kind of thr[owing him] around a little bit back and forth" before pushing him into a grill. While trying to get his balance, Hart felt something "like a handle" on the grill, so he picked it up and swung it at the neighbor. Hart did not know what the object was or how many times he struck the neighbor, and he did not see where the strikes landed. Hart did not intend to hurt the neighbor; he just wanted to get the neighbor off of him. Hart was afraid the neighbor was going to kill or paralyze him.

The trial court denied Hart's request for an instruction on the justifiable use of non-deadly force, reasoning that the victim was injured in "vital locations on the human body," and thus, only the instruction on the justifiable use of deadly force was supported by the evidence. The jury returned a verdict for the lesser included offense of felony battery and found that Hart carried, displayed, used, threatened, or attempted to use a weapon.

On appeal, Hart challenges the trial court's denial of his request for a jury instruction on the justifiable use of deadly force. "The standard of review for jury instructions is abuse of discretion." Garrido v. State , 97 So.3d 291, 294 (Fla. 4th DCA 2012) (quoting Zama v. State , 54 So.3d 1075, 1077 (Fla. 4th DCA 2011) ).

"Where there is any evidence introduced at trial which supports the theory of the defense, a defendant is entitled to have the jury instructed on the law applicable to his theory," however weak the evidence or improbable the defense. Larsen v. State , 82 So.3d 971, 974 (Fla. 4th DCA 2011) (citation omitted).

"Under Florida law, a person is justified in using deadly force in self-defense only when the person reasonably believes that such force is necessary to prevent one's imminent death or great bodily harm or to prevent the imminent commission of a forcible felony." Cruz v. State , 971 So.2d 178, 182 (Fla. 5th DCA 2007). In contrast, "[n]on-deadly force may be used when and to the extent that a person reasonably believes that the use of force is necessary to defend one's self or another against the imminent use of unlawful force." Id.

Larsen, 82 So.3d at 974 (alteration in original).

Where force is deadly as a matter of law, or non-deadly as a matter of law, then the singular applicable instruction should be given. Id. "Where the evidence at trial does not establish that the force used by the defendant was deadly or non-deadly as a matter of law, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force." Id. (quoting Cruz , 971 So.2d at 182 ).

To determine whether force is deadly as a matter of law, "it is the nature of the force and not the end result that must be evaluated. Deadly force occurs where the natural, probable and foreseeable consequences of the defendant's acts are death. By statute, deadly force is defined as force likely to cause death or great bodily harm." Garramone v. State , 636 So.2d 869, 871 (Fla. 4th DCA 1994) (citing § 776.06, Fla. Stat. (1993) ); see also Larsen , 82 So.3d at 974 ("When determining whether the force used is deadly or non-deadly, '[t]he proper focus is on the nature of the force used by the defendant and not the end result.' " (alteration in original) (quoting Cruz , 971 So.2d at 182 ) ).

Thus, whether a knife constitutes deadly force as a matter of law depends on how it was used. For example, courts have determined that the use of a knife was deadly force as a matter of law where it was used to stab a victim in the neck or the chest, as the area of injury was home to vital body parts. See Larsen , 82 So.3d at 975 (affirming trial court's determination that a sharp knife used to stab victim's neck was deadly force as a matter of law); Waldo v. State , 728 So.2d 280, 281 (Fla. 3d DCA 1999) ("[T]he defendant thrust a knife into [the victim]'s chest. The nature of such an act is unmistakably likely to cause death or great bodily harm."), quashed in part on other grounds , 759 So.2d 674 (Fla. 2000). On the other hand, where there was evidence to support the defendant's assertion that he made a single slashing motion with a razor blade toward the victim's hand after the victim attempted to stab him with a knife, the appellate court concluded, "This use of force, if believed by a jury, does not amount to the use of deadly force as a matter of law, such that the natural, probable and foreseeable consequences of DeLuge's act of swinging the razor blade was death." DeLuge v. State , 710 So.2d 83, 85 (Fla. 5th DCA 1998). Likewise, in Howard v. State , 698 So.2d 923, 924-25 (Fla. 4th DCA 1997), despite the victim's fatal knife wound to the heart, this court determined that the use of force was not deadly as a matter of law. The defendant presented evidence that she was waving two knives in front of her face to shield it, and the victim, her husband, impaled himself on her knife while lunging at her. Id. at 924. Accordingly, "[t]he question of whether appellant's act of waving two knives in front of her to shield her face from her husband's assault constituted deadly or non-deadly force should have been a question for the jury under the proper instruction from the court." Id. at 925.

Turning to the facts at hand, despite the location and severity of the neighbor's injuries, the evidence here supported giving both the deadly and the non-deadly force instructions. According to the defense evidence and theory of the case, Hart was attacked while wearing a neck brace that limited his mobility and range of vision. Without knowing what he was holding, Hart grabbed an object and swung it in the victim's direction without knowing where the blows were landing or of the resulting injuries. He did not intend to injure the victim, but only intended for the victim to let him go.

It is not clear that death is the natural, probable, and foreseeable consequence of swinging a knife somewhat blindly-and with limited ability to aim-in the general direction of a victim. Consequently, the nature of the force was not deadly as a matter of law, and whether Hart's actions constituted deadly or non-deadly force was a question for the jury.

The trial court relied on Larsen in erroneously determining that the force was deadly as a matter of law because the neighbor's injuries were to vital locations on his body. Despite similarly involving knife-inflicted injuries to the neck, Larsen is distinguishable. Larsen intentionally stabbed his victim in the neck, Larsen , 82 So.3d at 974, whereas Hart did not intend the wounds he imposed, at least according to the defense theory. The mere comparability of the injuries does not support a conclusion that the force was deadly as a matter of law under the facts of this case.

The error was not harmless. Under the harmless error test, the state bears the burden of proving "that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986). The jury may have found that Hart was not in reasonable fear of his life, as is required under the deadly force instruction, but had it been given the opportunity to consider whether the force was necessary to defend himself against imminent and unlawful force, as is provided in the non-deadly force instruction, it may have reached a different conclusion.

Because the trial court erred in determining that the use of force was deadly as a matter of law and in denying an instruction on the justifiable use of non-deadly force, we reverse and remand for a new trial. On retrial, if the evidence supports giving the non-deadly force instruction and the defendant requests such an instruction, it should be given.

Reversed and remanded for a new trial.

Conner and Forst, JJ., concur.


text:
    Anthony Shane QUINLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-525
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2018]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

In this appeal, appellant claims that his trial counsel was ineffective on the face of the record by failing to file a motion to vacate his plea and sentence, after the trial court sentenced him in excess of what he thought was the plea agreement. We affirm, as we cannot conclude on the face of the record that counsel was ineffective.

The State charged appellant, Anthony Quinlin, with felony battery, criminal mischief, and violation of a pretrial release-domestic violence order. The State made two plea offers to the appellant: one for a straight three-year prison sentence with no probation, and the other for a four-year capped prison sentence. No mention of probation was made with respect to the capped sentence. Appellant accepted the four-year capped sentence, and the trial court ultimately sentenced appellant to three years in prison with two years of probation. Appellant did not object at the time of sentencing, but the record contains a letter from his attorney stating:

I cannot file an appeal for an illegal sentence because you did not receive an illegal sentence. Your offer was 3 years DOC, or a 4 year DOC CAP. He did not exceed the 4 years DOC. I informed you when I recommended you take the 3 year offer that he could give you probation . Remember, the 4 year DOC CAP was for prison time only.

(emphasis added).

Appellant appealed, and he claims that trial counsel was ineffective for failing to file a motion to vacate the plea when the sentence varied from the plea agreement. In Echeverria v. State , 949 So.2d 331, 334 (Fla. 1st DCA 2007), the court reversed a sentence of five years of prison followed by five years of probation because the court found that the record clearly showed that in agreeing to a six-year prison sentence cap, appellant was never informed of the possibility of additional probation. Thus, the defendant had not been properly apprised of the consequences of his plea and had not been given an opportunity to withdraw his plea when the trial court decided to exceed the agreement. See also Jefferson v. State , 515 So.2d 407, 408 (Fla. 1st DCA 1987).

Here, the plea agreement appears to cap appellant's sentence at four years of prison, but the letter in the record indicates that appellant's counsel explained to him that the court could add probation. Because the record does not clearly show that appellant was misinformed regarding his plea, we cannot conclude that his counsel was ineffective on the face of the record for failing to file a motion to withdraw the plea or to correct an illegal sentence, based upon his sentence exceeding the plea agreement sentencing parameters.

Our affirmance is without prejudice to appellant filing a motion for postconviction relief, as it appears that there is a dispute as to the terms of the plea agreement.

Ciklin and Klingensmith, JJ., concur.


author: Damoorgian, J.

text:
    J.G., The Father, Appellant, v. STATE of Florida, Department of Children and Families, Appellee.
    Nos. 4D18-0090 4D18-0091
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2018]
    Lori D. Shelby, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee State of Florida, Department of Children and Families.
    Laura J. Lee, Sanford, for Guardian ad Litem Program.
   Damoorgian, J.

In this consolidated appeal, J.G. appeals the final orders of adoption with respect to his biological children ("the Children"). We dismiss the appeal because it is barred by the applicable statute of repose. Additionally, as J.G. never had any legal parental rights and was not a party to the adoption below, he has no standing to challenge the adoption judgments.

Although it is not disputed that J.G. is the Children's biological father and was active in their lives, the Children's mother was married to another man at the time the Children were born. In 2012, the Department sheltered the Children and instituted dependency proceedings based on the mother's drug use. In its dependency order, the court found that the mother's husband was the Children's legal father by operation of marriage. However, it also recognized that J.G. had a relationship with the Children and placed the Children with J.G. in a non-relative capacity.

After both the mother and her husband failed to participate in the dependency proceedings, the Department filed a petition seeking to terminate their parental rights ("TPR"). J.G. was a participant in the TPR proceedings but did not ever seek to obtain legal parental rights via a petition to establish paternity or any other means. The court entered a judgment terminating the Children's legal parents' parental rights in 2015. Shortly thereafter, the Children were removed from their placement with J.G. based on allegations of domestic abuse. More than two years later, the Children were adopted by non-relatives. J.G. directly appealed the orders of adoption.

As an initial matter, J.G.'s appeals are barred. By operation of statute, J.G. is precluded from filing any "action or proceeding of any kind to vacate, set aside, or otherwise nullify a judgment of adoption or an underlying judgment terminating parental rights on any ground ... more than 1 year after entry of the judgment terminating parental rights." § 63.182(1), Fla. Stat. (2015). Since J.G. did not file his appeal seeking to set aside the adoptions until 2018, more than one year after the termination order was entered, his appeal is barred and must be dismissed. See M.N., Jr. v. Dep't of Children and Families , 161 So.3d 1290, 1291 (Fla. 4th DCA 2015).

J.G. also lacks standing to challenge the adoption proceedings. Because the Children were born into an intact marriage, the Children's legal father was their mother's husband "unless and until a court effect[uated] [a] substitution" via a judgment of paternity. Shuler v. Guardian Ad Litem Program , 17 So.3d 333, 335 (Fla. 5th DCA 2009). Accordingly, if J.G. wanted to be considered the Children's legal father, he was required to seek a judgment of paternity before the court terminated the Children's legal parents' parental rights. See M.L. v. Dep't of Children and Families , 227 So.3d 142, 145-46 (Fla. 4th DCA 2017). He failed to do so and thus lost his chance to be considered the Children's legal father. Shuler , 17 So.3d at 336 (biological father to child born within an intact marriage could not seek to establish paternity after child's legal parents' parental rights were terminated even though biological father was recognized by the court as the biological father and was a participant in the TPR proceedings). Having no parental rights, J.G. "stood as a stranger to the [adoption] proceedings, and the fact that he was supposedly the child's biological father was legally irrelevant." K.L.V. v. Fla. Dep't of Health and Rehab. Servs. , 684 So.2d 253, 254 (Fla. 3d DCA 1996). Therefore, J.G. lacks standing to challenge the adoption orders on appeal.

Dismissed.

Forst and Klingensmith, JJ., concur.


author: Per Curiam.

text:
    Patrick A. SANTERAMO, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1688
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Larry S. Davis and Shana J. Korda of Larry S. Davis, P.A., Hollywood, and Benedict P. Kuehne, Michael T. Davis, and Susan Dmitrovsky of Kuehne Davis Law, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The defendant was tried by a jury and found guilty of money laundering, three counts of violating campaign contribution laws, two counts of organized scheme to defraud, and two counts of grand theft. The State concedes that the defendant will be placed in double jeopardy if convicted of both organized scheme to defraud and grand theft based on the same conduct. See , e.g. , Pizzo v. State , 945 So.2d 1203, 1207 (Fla. 2006). While the trial court recognized the double jeopardy issue, it failed to dismiss the grand theft counts. Instead, adjudication and sentencing were "deferred" as to those counts.

We affirm the defendant's convictions and sentences for money laundering, violating campaign contribution laws, and organized scheme to defraud. We reverse the deferrals of adjudication and remand for dismissal of the grand theft counts.

Affirmed in part; reversed in part; remanded.

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


text:
    Kenson LOUIMA, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3930
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Kenson Louima, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

In this appeal from a summary denial of appellant's motion for post-conviction relief, appellant contends that he is entitled to an evidentiary hearing on his motion, as the record does not conclusively refute his claim. He maintains that his attorney provided ineffective assistance by advising him to reject a plea and misinforming him that the lesser included charge to the crime of carjacking was grand theft. Appellant rejected the plea, and at trial, he was convicted of a lesser included charge of robbery, increasing his sentence far above the plea offer. We agree that the record is insufficient to refute appellant's claims and reverse for an evidentiary hearing.

Appellant was charged with carjacking. After rejecting a plea offer, he went to trial and was convicted of the lesser included offense of robbery. His conviction was affirmed on appeal, although the sentence was reversed to determine whether he qualified as a prison releasee reoffender. Louima v. State , 175 So.3d 893, 896 (Fla. 4th DCA 2015). His PRR status was confirmed on resentencing and affirmed on appeal.

After his appeal was concluded, appellant filed a motion for post-conviction relief based on ineffective assistance of counsel. He alleged that the State had made a plea offer of five years in prison for a conviction for grand theft. He claimed that his attorney advised rejecting the plea, because the case for carjacking was weak and the worst that appellant would face would be a conviction for the lesser included offense of grand theft, which was the State's offer. Based upon this advice, appellant rejected the plea. He alleges that his attorney was ineffective for failing to advise him that a lesser included offense of carjacking was robbery, for which he was ultimately convicted and sentenced to fifteen years in prison. He would have accepted the offer if his attorney had given him the correct information.

The State contends that the record conclusively refutes appellant's allegations. Prior to trial, the court inquired of the plea offer and questioned appellant. The State set forth the offer, including the fact that grand theft was a lesser included offense. The court asked the appellant whether anyone had coerced him or promised him anything to reject the plea (generally the question asked when a defendant is accepting a plea), to which appellant responded "no." The State contends that appellant "lied" by stating that no promises were made to him.

To make a legally sufficient claim of ineffective assistance for advising a defendant to reject a plea offer, a defendant must show:

that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

Alcorn v. State , 121 So.3d 419, 430 (Fla. 2013). The plea proceeding shows that the offer was confirmed in open court; the court would have accepted the offer; and both the conviction and sentence would have been less severe under the plea offer. Appellant clearly alleged that he would have accepted the offer had he been correctly advised. Therefore, the sole question is whether misadvice as to the lesser included offense to the main charge under these circumstances constitutes ineffective assistance of counsel.

"A claim that misinformation supplied by counsel induced a defendant to reject a favorable plea offer can constitute actionable ineffective assistance of counsel." Lamb v. State , 202 So.3d 118, 120 (Fla. 5th DCA 2016) (quoting Colon v. State , 909 So.2d 484, 490 (Fla. 5th DCA 2005) ). A claim of misinformation must be specific as to the deficient performance by counsel. Id. In Lamb , the alleged misadvice was the attorney's claim that the defendant would win at trial. Without specific deficiencies, such as a failure to investigate, the claim was legally insufficient. Id. Where, however, the misadvice involves the extent of penalties to which the defendant may be subject, a sufficient claim is stated. An ineffective assistance claim is sufficient where the attorney failed to advise the defendant of the maximum penalty that he or she faces or for misadvising the defendant that he or she does not qualify as a habitual offender if a plea is rejected. See, e.g. , Alcorn ; Ramos v. State , 141 So.3d 643, 644-45 (Fla. 4th DCA 2014) ; Jackson v. State , 987 So.2d 233, 234 (Fla. 4th DCA 2008) ; Cowart v. State , 864 So.2d 583, 585 (Fla. 3d DCA 2004).

This case presents a claim of misadvice as to factual information which was necessary to allow the defendant to weigh whether to accept the plea offer. Counsel misinformed the appellant that the lesser included offense of carjacking was grand theft, and that it carried a five-year prison sentence. This was erroneous, as robbery is also a lesser included offense of carjacking, and robbery carried a fifteen-year prison sentence. This advice was not a promise by counsel of a result, but erroneous factual information of the potential range of penalties appellant faced should he proceed to trial. Appellant rejected the plea offer, because he was misinformed as to his exposure based upon the lesser included offenses. Counsel's advice to appellant was correct insofar as he advised appellant that he would not be convicted of carjacking; however, he was ineffective for failing to know that appellant could be convicted of robbery, a significantly greater crime and penalty than grand theft.

We conclude that appellant's allegations raised a legally sufficient claim of ineffective assistance of counsel. The record does not conclusively refute appellant's motion. We reverse and remand for an evidentiary hearing.

Reversed and remanded for further proceedings.

Ciklin and Forst, JJ., concur.


author: Winokur, J.

text:
    US BANK NATIONAL ASSOCIATION, as Trustee FOR CSFB HEAT 2006-7, Petitioner, v. Jason TRANUMN and D'Honour Tranumn, Respondents.
    No. 1D16-4911
    District Court of Appeal of Florida, First District.
    January 2, 2018
    Michael K. Winston and Dean A. Morande of Carlton, Fields, Jorden, Burt, P.A., West Palm Beach, for Petitioner.
    Brian J. Lee of Schuler & Lee, P.A., Jacksonville, for Respondents.
   Winokur, J.

The Petitioner, US Bank National Association (US Bank), challenges the circuit court's "Final Judgment in the Amount of $80,587.17" (Final Judgment). This Court found that the Final Judgment is not an appealable non-final order due to pending counterclaims. Therefore, US Bank filed a petition for writ of certiorari requesting that the Final Judgment be quashed because the trial court: 1) severed the Respondents' counterclaims, even though they were inextricably intertwined with their affirmative defenses; 2) granted relief that was not pled; 3) engrafted a "face-to-face" meeting requirement into the Note and Mortgage as a condition precedent to foreclosure; 4) issued a money judgment that purports to be immediately executable, even though the proceedings below are not final because of a pending counterclaim; and 5) issued a judgment granting attorneys' fees directly in favor of the Respondents' counsel and refused to permit US Bank to offset that judgment against its money judgment. We grant US Bank's petition, and write to address the trial court's severance of the Respondents' counterclaims.

I.

On March 31, 2006, Respondents, D'Honour Tranumn and Jason S. Tranumn (the Tranumns), executed a promissory note and mortgage for property located in Duval County. US Bank has the right to enforce the mortgage. In June 2010, the Tranumns were notified that their mortgage was in default due to non-payment of their November 2009 installment, as well as subsequent monthly installments and late fees. The Tranumns paid an $11,835.32 reinstatement fee and the mortgage was taken out of foreclosure. The reinstatement fee made the mortgage current, and the next payment was due in July 2010. However, the Tranumns missed their July payment and subsequently defaulted again on their mortgage. The Tranumns received a letter dated August 15, 2010, indicating that they would have to pay $4,615.10 by September 14, 2010, in order to prevent immediate acceleration, as well as foreclosure. The Tranumns made no further payments.

Consequently, US Bank filed a complaint against the Tranumns to foreclose on the mortgaged property. US Bank alleged that the Tranumns owed a principal balance of $176,402.03, plus interest. The Tranumns filed Amended Answers, Affirmative Defenses, and Counterclaims.

At a bench trial, US Bank elicited testimony that the principal balance owed by the Tranumns was $176,402.03, and the total amount owed including interest, fees, and taxes was $237,509.68. After US Bank and the Tranumns rested, the trial court inquired as to any pending counterclaims. Tranumns' counsel stated that a prior judge had dismissed a jury trial demand for the counterclaims with prejudice. Counsel for US Bank then began to speak on the issue, but was cut off by the trial court:

[US BANK]: If I may, they're inextricably intertwined with the affirmative defenses raised-
THE COURT: Well, that's the reason-we don't handle-when a counterclaim is filed in a foreclosure action, we bifurcate the cases. We keep the foreclosures. The counterclaim goes to the civil division judges that this case is assigned to.
We go forward on the foreclosure unless he enters the stay order staying the foreclosure proceeding because it's integrated into the counterclaim. But I'm just asking that. I'm not addressing that.
Do you have any other witnesses?
[TRANUMNS]: No, I do not.
THE COURT: Okay. So we're concluded with the testimony?
[TRANUMNS]: Yes, sir.

The trial court stated that it was going to deny US Bank the relief of foreclosure. However, the trial court found that the Tranumns owed US Bank monthly payments from August 2010 through June of 2014. The trial court did not immediately issue a money judgment in favor of US Bank, but rather reserved jurisdiction and ordered both parties to communicate and finalize the amount owed by the Tranumns to US Bank. The trial court also reserved ruling on the issue of awarding attorneys' fees to the Tranumns as the prevailing party.

The trial court entered an order finding that US Bank was entitled to a money judgment in the amount of $80,587.17 and that the Tranumns' defense counsel, Schuler & Lee, P.A., was entitled to $33,441.75 in attorneys' fees and costs. In addition, the order denied US Bank's request to offset both judgments and awarded the attorneys' fees directly to Schuler & Lee, P.A. Accordingly, the trial court entered a "Final Judgment in the Amount of $80,587.17" in favor of US Bank. It also filed a "Money Judgment In Favor of Schuler & Lee, P.A. Against Plaintiff" in the amount of $33,441.75.

US Bank filed a timely Notice of Appeal of both of the judgments entered by the trial court. On October 19, 2016, this Court found that the Final Judgment was not an appealable non-final order due to a pending counterclaim, and granted US Bank's request for the Court to invoke its certiorari jurisdiction to review the Final Judgment.

II.

The Constitution of the State of Florida grants authority for a District Court of Appeal to grant a petition for writ of certiorari. Art. V, § 4, Fla. Const. Florida Rule of Appellate Procedure 9.130(a)(3) limits the types of non-final orders that can be appealed to a District Court of Appeal. As a result, a party may petition for certiorari review of non-final orders that are not appealable under Rule 9.130(a)(3). Keck v. Eminisor , 104 So.3d 359, 364 (Fla. 2012). However, in order to qualify for certiorari review, "[t]he order must depart from the essential requirements of law and thus cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal." Martin-Johnson, Inc. v. Savage , 509 So.2d 1097, 1099 (Fla. 1987), superseded by statute on other grounds , § 768.72, Fla. Stat. (1989).

The material injury element needed for certiorari review requires a showing of "irreparable harm." Martin-Johnson, Inc. , 509 So.2d at 1099. This Court has found that "the time, trouble, and expense of an unnecessary trial are not considered 'irreparable injury.' " State v. Lozano , 616 So.2d 73, 75 (Fla. 1st DCA 1993). Similarly, whether a court departed from the essential requirements of law requires something more than just a legal error. See Williams v. Oken , 62 So.3d 1129, 1133 (Fla. 2011) (noting that "[o]nce the district court has granted the petition for writ of certiorari ... 'the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error' " (quoting Haines City Cmty. Dev. v. Heggs , 658 So.2d 523, 528 (Fla. 1995) )).

This Court has already found that the Final Judgment is not an appealable non-final order due to the pending counterclaims. As a result, the question before this Court is whether the Final Judgment constitutes a departure from the essential requirements of law causing US Bank irreparable harm with no adequate remedy on appeal.

III.

The rules of civil procedure address severance of claims as follows: "The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues." Fla. R. Civ. P. 1.270(b). Florida courts have found that "[c]ertiorari is an appropriate remedy for orders severing or bifurcating claims which involve interrelated factual issues because severance risks inconsistent outcomes." Kavouras v. Mario City Rest. Corp. , 88 So.3d 213, 214 (Fla. 3d DCA 2011). Similarly, this Court, in granting certiorari relief, has held that "[i]t is improper to sever a counterclaim and affirmative defenses from the plaintiff's claim, when the facts underlying the claims of the respective parties are inextricably interwoven." Maris Distrib. Co. v. Anheuser-Busch, Inc. , 710 So.2d 1022, 1024 (Fla. 1st DCA 1998) ; see also Yost v. Am. Nat. Bank , 570 So.2d 350, 353 (Fla. 1st DCA 1990).

IV.

The Tranumns argue that US Bank, by failing to make a contemporaneous objection to the court's severance of the counterclaims and affirmative defenses, did not preserve this issue for review. "Generally, a petitioner cannot raise in a petition for writ of certiorari a ground that was not raised below." First Call Ventures, LLC v. Nationwide Relocation Servs., Inc. , 127 So.3d 691, 693 (Fla. 4th DCA 2013). See also Hernando HMA, LLC v. Erwin , 208 So.3d 848, 849 (Fla. 5th DCA 2017). However, an issue may be preserved without a contemporaneous objection if "it appears from the record that the trial court may have interrupted a proper objection." Nieves v. State , 678 So.2d 468, 470 (Fla. 5th DCA 1996).

US Bank attempted to address the issue of severance when the trial court stated that the counterclaim and affirmative defenses would be severed from the foreclosure action. However, the trial court cut off US Bank before counsel could raise an objection. Notwithstanding the interruption, US Bank was able to state that the counterclaims and affirmative defenses were inextricably intertwined with the foreclosure action. Logically, such a statement would have preceded an objection to said severance if not for the trial court's interruption. Thus, for purposes of US Bank's petition, we find that the issue has been preserved.

The decision in Minty v. Meister Financial Group, Inc. , 97 So.3d 926 (Fla. 4th DCA 2012), is particularly useful in analyzing US Bank's petition. In Minty , a lender brought suit against a borrower and their counsel for violating a mortgage refinance loan agreement. Id. at 928. The borrower filed counterclaims alleging that the lender engaged in misconduct respecting the loan agreement. Id. at 929. The court entered an order severing the borrower's counterclaims. Id.

The Fourth District treated the lender's appeal of the severance order as a petition for writ of certiorari, and found that the severance order departed from the essential requirements of the law because the borrower's claims were inextricably intertwined with the lender's claims. Id. at 931. "[I]f we allow the borrower's affirmative defenses and counterclaims to remain severed, then a final judgment in the lender's favor on its claim will moot the borrower's affirmative defenses and counterclaim, leaving the borrower no adequate remedy on appeal." Id.

In this case, the Tranumns' affirmative defenses and counterclaims are inextricably intertwined with US Bank's foreclosure claim. The affirmative defenses include claims of failure to comply with conditions precedent, intentional misrepresentation, and unclean hands. In addition, the three pending counterclaims allege intentional misrepresentation, violations of the Fair Debt Collections Practices Act, and violation of the Florida Consumer Collection Practices Act. Both the affirmative defenses and counterclaims arise from the mortgage executed by the Tranumns. Therefore, they are inextricably intertwined with the foreclosure proceedings.

Consistent with the holdings of Kavouras and Minty , the severance of the Tranumns' counterclaims and affirmative defenses leaves US Bank with no adequate remedy on appeal. It is true that the final judgment here is in favor of the lender, which is different from the procedural posture of Minty , where the borrowers appealed the severance of their counterclaims. However, the rationale is the same-the severance of counterclaims that are inextricably intertwined with a plaintiff's claim risks disparate adjudication of issues which may lead to unequal outcomes that render the counterclaims moot. As a result, the trial court's severance of the Tranumns' counterclaims and affirmative defenses constitutes irreparable harm.

Moreover, an unequal outcome is not the only irreparable harm facing US Bank. US Bank filed a complaint against the Tranumns for defaulting on their mortgage. They sought foreclosure as a remedy. The trial court denied foreclosure and instead issued a money judgment in its favor. Furthermore, the trial court denied US Bank the ability to levy against the property, even in an effort to collect on the Final Judgment. Thus, US Bank was denied the remedy it sought. By issuing its Final Judgment, while a counterclaim is pending, US Bank has no remedy on appeal to challenge the trial court's ruling. US Bank is effectively stripped of its right to foreclosure since appeal is not possible. This also constitutes irreparable harm.

V.

The trial court departed from the essential requirements of the law when it severed the Tranumns' counterclaims and affirmative defenses from US Bank's foreclosure complaint causing irreparable harm. Therefore, we grant US Bank's petition for writ of certiorari and quash the trial court's Final Judgment. We remand the case with instructions to try all claims together.

Ray and Bilbrey, JJ., concur.

      This case only deals with the "Final Judgment in the Amount of $80,587.17." A separate direct appeal of the "Money Judgment in Favor of Schuler & Lee, P.A. Against Plaintiff" is pending before this Court. US Bank v. Tranumn, et al. , Case No. 1D16-2577.


text:
    R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA, Inc., Petitioner, v. In re: ENGLE PROGENY CASES TOBACCO LITIGATION, Respondent.
    CASE NO. 5D16-1780
    District Court of Appeal of Florida, Fifth District.
    DATE: June 23, 2016
    BY ORDER OF THE COURT:
   ORDERED that the Petition for Writ of Prohibition, filed May 24, 2016, is denied.


author: LUCAS, Judge.

text:
    SUN 'N LAKE OF SEBRING IMPROVEMENT DISTRICT, Appellant, v. Zenon AYALA and Lucy Ayala, Appellees.
    Case No. 2D17-2440
    District Court of Appeal of Florida, Second District.
    January 5, 2018
    Donovan A. Roper of Roper & Roper, P.A., Apopka, for Appellant.
    Michael J. Schlesinger ; Joshua B. Bochner and Andrew S. Genden of Schlesinger & Associates, P.A., Miami, for Appellees.
   LUCAS, Judge.

Finding no merit in the arguments raised by Sun 'N Lake of Sebring Improvement District in this appeal, we are bound to affirm. We write, however, to correct an apparent misconception held by the parties and the court below. The Improvement District has posited-and Mr. and Mrs. Ayala and the trial court seem to agree-that the issue of whether sovereign immunity bars a claim arising under the Florida Deceptive and Unfair Trade Practices Act, §§ 501.201-.23, Fla. Stat. (2016), against a state agency or subdivision is a matter of first impression in Florida. But that is incorrect. See Curcio v. Fla. Dep't of the Lottery, 164 So.3d 750, 754 (Fla. 1st DCA 2015) ("[A]lthough sovereign immunity has been waived for breach of contract claims against the State and its agencies, sovereign immunity has not been waived for the unfair and deceptive trade practices and misleading advertising claims asserted by Appellant. These claims are not common law tort claims subject to the waiver of sovereign immunity in section 768.28, Florida Statutes ; they are statutory claims arising under part II of chapter 501 ... and section 817.41 ... respectively. Neither of those statutes contains a clear and unequivocal waiver of the State's sovereign immunity ...." (citation omitted)); cf. Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc., 693 So.2d 602, 609 (Fla. 2d DCA 1997) (explaining that "FDUPTA constitutes a substantive law" and "represents a statutory manifestation of a legislative policy decision that the consuming public is entitled to expanded remedies for recovering economic losses suffered as a consequence of deceptive and unfair trade practices and acts"). The parties have not argued the applicability or persuasiveness of Curcio or Delgado, either on appeal or in the proceedings below. Accordingly, we affirm without consideration of those cases.

Affirmed.

NORTHCUTT and BLACK, JJ., Concur.

      From that shared assumption, the arguments in this appeal revolved almost entirely around whether the nature of a Florida Deceptive and Unfair Trade Practices Act (FDUPTA) claim could be likened to an "intentional tort."


author: SLEET, Judge.

text:
    Brian Keith CHESSER, DC# 142260, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3391
    District Court of Appeal of Florida, Second District.
    January 12, 2018
    Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public, Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for, Appellee.
   SLEET, Judge.

Brian Chesser appeals the order revoking his probation and his resulting forty-month sentence. He argues that the trial court denied him due process when it interrupted him at the sentencing hearing and refused to listen to his statements before sentencing him. We agree. See Amason v. State, 76 So.3d 374, 377 (Fla. 2d DCA 2011) ("A probationer must have an opportunity to present mitigating evidence and argue for sentencing alternatives when the court has sentencing discretion." (citing Black v. Romano, 471 U.S. 606, 614, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) )); see also Johnpier v. State, 89 So.3d 996, 996 (Fla. 2d DCA 2012) (reversing probationer's sentence when "the trial court erred by refusing to hear any argument on sentencing").

The trial court properly accepted Chesser's admission to the violation. However, we must reverse the revocation of Chesser's probation and his resulting sentence and remand to the trial court for further proceedings.

Reversed and remanded.

VILLANTI and KHOUZAM, JJ., Concur.