author: BADALAMENTI, Judge.

text:
    Salvatore AMBROGIO, an individual, and Rosemarie Ambrogio, an individual, Appellants, v. Marceline MCGUIRE, an individual, and The Trust Dated Oct. 25, 1991, Marceline McGuire, Trustee, Appellees.
    Case No. 2D17-2202
    District Court of Appeal of Florida, Second District.
    Opinion filed May 11, 2018
    Kevin P. Kelly and Connor S. Kelly of KellyLaw, P.A., Orlando, for Appellants.
    Marceline McGuire, pro se.
   BADALAMENTI, Judge.

Salvatore and Rosemarie Ambrogio sued Marceline McGuire and "The Trust Dated October 25, 1991," a trust in which Ms. McGuire serves as trustee, over Ms. McGuire's failure to pay on a $33,500 promissory note. After a hearing on Ms. McGuire's motions for summary judgment, the trial court granted final summary judgment in her favor, holding that the statute of limitations had run on all of the Ambrogios' claims. On appeal, the Ambrogios argue that Ms. McGuire neglected to raise statute of limitations as a ground for summary judgment with particularity in any of her written motions and thus failed to comply with Florida Rule of Civil Procedure 1.510(c). We agree and reverse the final summary judgment.

Factual and Procedural Background

The Ambrogios contracted to sell their Polk County home to Ms. McGuire in 2007. Before closing on the deal, the parties signed an unartful, handwritten promissory note, in which Ms. McGuire agreed to pay $33,500 to the Ambrogios once she sold her Lodgewood Drive home. Ms. McGuire took title and possession of the Ambrogios' home but, for reasons not entirely clear from the record, did not sell her Lodgewood Drive home. Over the next several years, the Ambrogios were unsuccessful in their attempts to receive payment from Ms. McGuire. As such, in 2015, they sued Ms. McGuire in a sixteen-count complaint alleging, among other claims, fraud, breach of contract, and unjust enrichment. Ms. McGuire answered the complaint, asserting five affirmative defenses including a statute of limitations defense as follows: "This action is barred by the statute of limitations as evidenced by the alleged promissory note dated February 28, 2007."

Ms. McGuire subsequently filed a series of motions seeking summary judgment, some with attachments and others with no attachments. The common thread of these motions is that they all consist of one-sentence, conclusory statements asserting that there were no issues of material fact and that she was thus entitled to summary judgment. For example, in her motion titled "Amended Motion for Summary Judgment" she stated that she was entitled to summary judgment because the "pleadings, the Deposition of Salvatore Ambrogio previously filed, and the affidavit of Marceline McGuire, marked as Exhibit A, show that there is no genuine issue of any material fact and the defendants is [sic] entitled to judgment as a matter of law."

The trial court subsequently held a hearing on Ms. McGuire's motions for summary judgment. During that hearing, Ms. McGuire's counsel asserted that the trial court must grant summary judgment to her because the statute of limitations as to all of the Ambrogios' claims had run. The Ambrogios' counsel responded that Ms. McGuire neglected to raise statute of limitations as a ground for summary judgment in any of her motions for summary judgment. The trial court asked Ms. McGuire's counsel to identify where the statute of limitations argument had been asserted in Ms. McGuire's motions for summary judgment. Ms. McGuire's counsel responded: "Only in my first affirmative defense that's part of my answer. It's part of the pleadings." (Emphasis added.) The Ambrogios' counsel argued to the trial court that Ms. McGuire's motions for summary judgment did not comply with Florida Rule of Civil Procedure 1.510(c) because none of them "state[d] with particularity the grounds on which [they were] based and the substantial matters of law to be argued." The trial court rejected this argument, ruling that Ms. McGuire's motions for summary judgment complied with rule 1.510(c). The trial court thus granted summary judgment to Ms. McGuire exclusively on the statute of limitations ground, which was fleshed out in detail at the hearing.

Discussion

On appeal, the Ambrogios argue that the trial court erred in granting Ms. McGuire summary judgment on the statute of limitations ground because Ms. McGuire had not raised statute of limitations with particularity in any of her written motions seeking summary judgment.

It is reversible error to enter summary judgment on a ground not raised with particularity in the motion for summary judgment. Williams v. Bank of Am. Corp., 927 So.2d 1091, 1093 (Fla. 4th DCA 2006) (citing, inter alia, Cheshire v. Magnacard, Inc., 510 So.2d 1231, 1234 (Fla. 2d DCA 1987) ). Florida Rule of Civil Procedure 1.510(c) mandates that a motion for summary judgment "must state with particularity the grounds on which it is based and the substantial matters of law to be argued and must specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence ('summary judgment evidence') on which the movant relies." A purpose of this rule "is to eliminate surprise and to provide parties a full and fair opportunity to argue the issues." H.B. Adams Distribs., Inc. v. Admiral Air of Sarasota Cty., Inc., 805 So.2d 852, 854 (Fla. 2d DCA 2001) (citing Lee v. Treasure Island Marina, Inc., 620 So.2d 1295, 1297 (Fla. 1st DCA 1993) ); see also Cheshire, 510 So.2d at 1234 ("The purpose of the rule is to put the opposing party on notice as to the grounds which will be asserted against him." (quoting Burns v. Consol. Am. Ins. Co., 359 So.2d 1203, 1206 (Fla. 3d DCA 1978) ) ); City of Cooper City v. Sunshine Wireless Co., 654 So.2d 283, 284 (Fla. 4th DCA 1995) ("This rule is designed to prevent 'ambush' by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing." (quoting Swift Indep. Packing Co. v. Basic Food Int'l, Inc., 461 So.2d 1017, 1018 (Fla. 4th DCA 1984) ) ).

Moreover, where a party's motion for summary judgment states "only in general terms that no material issues of fact or law existed and that [the movant] was entitled to the relief requested[,] [s]uch a motion is insufficient to place the nonmoving party on notice of the issues of fact or law which will be argued at the hearing." Locke v. State Farm Fire & Cas. Co., 509 So.2d 1375, 1377 (Fla. 1st DCA 1987) ; see also Worley v. Sheffield, 538 So.2d 91, 92 (Fla. 1st DCA 1989) (holding that a motion for summary judgment was insufficient where it conclusively stated that there "is no genuine issue as to any material fact and that the moving party is entitled to a Judgment as a matter of law"). Under such circumstances, reversal and remand for further proceedings is appropriate in order to afford the nonmoving party proper notice and an opportunity to be heard. See Sunshine Wireless Co., 654 So.2d at 284.

Here, Ms. McGuire neglected to raise any legal ground with particularity in her motions for summary judgment, much less state with particularity the statute of limitations ground that the trial court relied upon to grant her summary judgment. It is undisputed that she pleaded, albeit without elaboration, statute of limitations as one of five affirmative defenses in her answer by asserting that the action is barred "as evidenced by the alleged promissory note dated February 28, 2007." Without any elaboration in her motions for summary judgment, she asserted that she was entitled to summary judgment based on "the pleadings... [because] there is no genuine issue of any material fact." (Emphasis added.) It was reversible error for the trial court to conclude that Ms. McGuire complied with rule 1.510(c). See Deluxe Motel, Inc. v. Patel, 727 So.2d 299, 301 (Fla. 5th DCA 1999) (concluding that the trial court erred in granting summary judgment based on arguments made at the summary judgment hearing but not in the written motion for summary judgment).

Ms. McGuire has not cited, nor have we identified, a single case holding that pleading an affirmative defense somehow obviates a summary judgment movant's obligation to comply with the particularity requirements mandated by rule 1.510(c). And to the extent that the trial court's entry of summary judgment was based on Ms. McGuire's incorporation of that affirmative defense by referencing her "previously filed pleadings" in her motions for summary judgment, courts have held that a general assertion is not, without more explication, a particularized ground upon which the motion is based as contemplated by rule 1.510(c). See, e.g., Alexopoulos v. Gordon Hargrove & James, P.A., 109 So.3d 248, 250 (Fla. 4th DCA 2013) (holding that the trial court erred in entering summary judgment for the movant based on lack of standing where the movant's motion for summary judgment raised the issue of standing in a one-sentence footnote because "[the] footnote did not provide [the nonmovant] adequate notice that she would be required to offer record evidence to refute the allegations of lack of standing and to offer a legal rebuttal as to this issue"); Williams, 927 So.2d at 1093 (concluding that a one-sentence footnote in a memorandum of law in support of the movant's motion for summary judgment that raised the issue of liability was insufficient to place the nonmovant on notice of the issue and to allow the nonmovant a full and fair opportunity to argue the issue at the summary judgment hearing).

To hold otherwise would contravene the plain and ordinary meaning of rule 1.510(c), which requires "particularity," not generality, its polar opposite. Fla. R. Civ. P. 1.510(c) ("The motion [for summary judgment] must state with particularity the grounds on which it is based and the substantial matters of law to be argued ...." (emphasis added) ). Even more, to permit what the appellees did here would encourage unnecessary gamesmanship in litigation and sandbagging of a nonmovant to a motion for summary judgment. Additionally, a motion for summary judgment's generalized references to transcripts, attachments, or pleadings without explanation hinder both the nonmovant's and trial court's preparation for hearings on that motion for summary judgment.

Accordingly, because Ms. McGuire's motions for summary judgment did not satisfy the particularity requirement set forth in rule 1.510(c), we reverse and remand for further proceedings in order to offer the Ambrogios a meaningful opportunity to be heard on the particularized arguments that Ms. McGuire contends warrant summary judgment. See Sunshine Wireless Co., 654 So.2d at 284.

MORRIS and BLACK, JJ., Concur.

      Although both Ms. McGuire and The Trust Dated October 25, 1991, are appellees in this appeal, we collectively refer to these parties as "Ms. McGuire."

      In another motion titled "Defendant's summary for motion for summary judgment," Ms. McGuire merely provided factual allegations.

      We express no opinion as to whether the trial court's application of a five-year statute of limitations was correct.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tysheona SMITH, Petitioner, v. STATE of Florida and Cornita A. Riley, as Chief of Orange County Corrections, Respondents.
    Case No. 5D18-1468
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 11, 2018
    Robert Wesley, Public Defender, and Samantha E. Habermehl, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.
    No Appearance for other Respondent.
    CORRECTED
   PER CURIAM.

Tysheona Smith, an incompetent defendant, petitions for a writ of habeas corpus seeking immediate release from the Orange County jail. Because the trial court had no basis to order Petitioner detained until it could make a determination as to whether Smith qualified for involuntary commitment, we grant the petition.

In October 2017, Smith was charged with possession of cocaine and possession of drug paraphernalia. She was evaluated for competency by three experts between October 2017 and January 2018. Each concluded that she was incompetent. Thereafter, on February 16, 2018, Smith was adjudicated incompetent to proceed and placed on conditional release.

On April 24, 2018, Petitioner was arrested again and charged with possession of cocaine and possession of drug paraphernalia. On May 7, 2018, the trial court adjudicated Smith incompetent to proceed based on the prior adjudication and denied conditional release. The court then ordered two of the experts that had already examined Smith to reexamine her for the purpose of determining whether she meets the criteria for involuntary hospitalization.

"[W]here... a defendant has been found incompetent to proceed and is then released upon conditions and commits a new offense, section 916.17(2)[,Florida Statutes,] leaves the trial judge with only two options: modify the conditions of release or involuntarily commit the defendant to DCFS for treatment." Douse v. State, 930 So.2d 838, 839 (Fla. 4th DCA 2006) ; accord Paolercio v. State, 129 So.3d 1174, 1175-76 (Fla. 5th DCA 2014) (citing Douse, 930 So.2d at 839 ). Here, because there was insufficient evidence at the time Smith was detained for the trial court to find that she qualified for involuntary commitment, the only other option was to release her with the appropriate conditions. See § 916.13(1), Fla. Stat. (2017).

Therefore, we grant the petition and direct the trial court to hold an immediate hearing to determine whether Smith's release conditions should be modified or remain the same. If the experts have already completed the reexaminations and rendered reports, the trial court should hold an immediate hearing to make the appropriate determination under section 916.17(2).

PETITION GRANTED.

SAWAYA, BERGER and EDWARDS, JJ., concur.


text:
    Shawn E. MYERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2558
    District Court of Appeal of Florida, Second District.
    Opinion filed May 16, 2018
   PER CURIAM.

Shawn E. Myers timely appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because his claim is not refuted by the record attachments to the postconviction court's order, we reverse. See Fla. R. Crim. P. 3.850(f)(5).

Myers was charged with a violation of section 322.34(5), Florida Statutes (2012), which makes it a third-degree felony for a habitual traffic offender to drive when his or her driver's license has been revoked pursuant to section 322.264. Myers alleged that he never possessed a Florida driver's license and that his trial counsel was therefore ineffective for failing to move to dismiss the information on that basis. See State v. Miller, 227 So.3d 562, 563 (Fla. 2017) ("[P]ossession of a driver license is a prerequisite to a conviction pursuant to section 322.34(5)."). He argued that had counsel moved to dismiss the information, the motion would have been granted and he would not have entered a plea in the circuit court because his case would have been resolved as a misdemeanor in county court. See Finney v. State, 219 So.3d 254, 256 (Fla. 1st DCA 2017) (concluding that because "the highest crime with which [the defendant] can be charged is misdemeanor driving without a valid license ... the circuit court lacks jurisdiction" (citing §§ 26.012(2)(d), 34.01(1)(a), Fla. Stat. (2015) ). The postconviction court summarily denied Myers' postconviction motion, finding that "there was no basis for trial counsel to have filed a motion to dismiss" and that Myers had waived this claim when he entered his plea. This was error.

"[A] trial attorney's failure to investigate a factual defense ... which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction." Zanchez v. State, 84 So.3d 466, 468 (Fla. 2d DCA 2012) (quoting Williams v. State, 717 So.2d 1066, 1066 (Fla. 2d DCA 1998) ). And at the time Myers entered his plea there was a dispute among Florida courts regarding whether someone who had never possessed a driver's license could ever be lawfully charged and convicted of a violation of section 322.34(5). Compare Carroll v. State, 761 So.2d 417 (Fla. 2d DCA 2000) (upholding a conviction under section 322.34(5) even though the defendant had never had a driver's license), receded from, Burgess v. State, 198 So.3d 1151 (Fla. 2d DCA 2016) ; Newton v. State, 898 So.2d 1133, 1134 (Fla. 4th DCA 2005) (following Carroll ); and State v. Bletcher, 763 So.2d 1277, 1278 (Fla. 5th DCA 2000) (same), with Crain v. State, 79 So.3d 118, 122 (Fla. 1st DCA 2012) (concluding that possession of a driver's license was required to support a conviction under section 322.34(5) ). Accordingly, it does not appear that filing the motion to dismiss would have been futile or that the motion would have been without merit.

The postconviction court erred when it concluded that by entering a plea, Myers had waived his claim that counsel was ineffective for failing to challenge the information and raise Myers' lack of a Florida driver's license as a defense. Therefore, we reverse and remand for further proceedings. If the postconviction court again summarily denies Myers' claims, it must attach those portions of the record that conclusively refute them. See Fla. R. Crim. P. 3.850(f).

Reversed and remanded with instructions.

CASANUEVA, KELLY, and SLEET, JJ., Concur.


author: LUCAS, Judge.

text:
    Rubin J. BROOKS, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2105
    District Court of Appeal of Florida, Second District.
    Opinion filed May 16, 2018
    Howard L. Dimmig, Public Defender and Steven G. Mason, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
   LUCAS, Judge.

Faye Kitchen and Shannon Thomas (a/k/a "Funko") were found dead inside Ms. Kitchen's home in the early evening hours of November 12, 2011. Police detectives investigating the scene suspected they had likely been beaten to death, and the ensuing investigation would reveal a trail of evidence that appeared to implicate Rubin Brooks. In addition to that evidence, the State called a former cellmate of Mr. Brooks who recounted Mr. Brooks offering a late night, confessional prayer about the two victims. Because the circuit court deprived Mr. Brooks of the opportunity to impeach that former cellmate's testimony, we must reverse the final judgments and convictions of first-degree murder and remand this case for a new trial.

Mr. Brooks and Funko had a history of drug transactions with one another in Plant City, the latter selling the former crack cocaine on some occasions, while on other occasions, Mr. Brooks would act as a middleman for Funko. But the two had something of a falling out when Funko put a gun to Mr. Brooks' mouth in what may have been a dispute over money.

A few days later, however, in the predawn hours of November 12, 2011, the two men were together again, taking part in an extended sale of crack cocaine to a third party in a mobile home in Plant City. Having sold all they could, at around 5:30 a.m., they were dropped off at Ms. Kitchen's house in Plant City to make more crack. This was the last time Funko was seen alive. A medical examiner determined that Funko and Ms. Kitchen were likely killed in their sleep inside Ms. Kitchen's home; it was later stipulated that both victims died on November 12, 2011.

A little after 7:30 a.m. that same day, one of Ms. Kitchen's neighbors recalled speaking with Mr. Brooks (Mr. Brooks had helped himself to a bottle of the neighbor's lighter fluid); and shortly after that, Mr. Brooks was seen walking away from a smoking barrel in a neighboring yard. The same witness from whom Mr. Brooks had borrowed lighter fluid recalled Mr. Brooks later approaching him and saying, "Funko pulled a gun on me and I was scared but I'm not scared anymore." Another witness, a longtime friend of Mr. Brooks, would also testify that on the morning of November 12, Mr. Brooks was acting "hysterical" and that Mr. Brooks had stated that he and Funko had "had a little confrontation."

Inside the aforementioned barrel, investigators would find a red sweater and blood-stained black pants, a broken knife handle, two dumbbell handles, and a piece of lumber. A witness remembered seeing Mr. Brooks wearing the same sweater on the night of November 11. When tested, it was determined that the sweater contained Funko's DNA and a partial profile that included Mr. Brooks' DNA. As to the knife handle, Funko's body was found with a partial knife blade in his chest; a Florida Department of Law Enforcement crime laboratory analyst conducted a fracture match analysis and concluded that the two parts-the blade and the handle-were at one time a single piece. The two dumbbell handles in the barrel were shaped in such a way that appeared to resemble the head wounds found on Funko's and Ms. Kitchen's bodies.

The State charged Mr. Brooks with two counts of first-degree murder. On the third day of his jury trial, after having presented the aforementioned evidence, the State called Edward Thomas as a witness. Mr. Thomas was a former cellmate of Mr. Brooks while Mr. Brooks was in custody awaiting trial. Mr. Thomas testified that late one night, while they were bunked together, he overheard Mr. Brooks praying aloud and apologizing to God for what had happened to Ms. Kitchen. Mr. Thomas, apparently awoken by Mr. Brooks' praying, engaged in a conversation with Mr. Brooks about the subject of his prayer, which he recounted to the jury:

And he [Mr. Brooks] said Funko did some fucked up shit and, you know I went to-every time I asked him a question he would just you know go at his own pace, you know, so I just let him have the floor ... and then he said Funko had pulled a gun on him in front of some guys.
....
Q. Did he ultimately say what he did to Funko?
A. Oh, yes, ma'am.
Q. What did he say?
A. He said he killed Funko.
Q. Did he say anything about anybody else, a lady?
A. Yes, ma'am.
Q. What did he say?
A. Well, he was just basically saying-well, in a prayer I heard him say in the prayer, you know.
Q. Well, tell us what he said in the prayer?
A. He was like he was sorry for what happened to the lady because she didn't deserve it you know. Like basically I felt like he was remorseful what happened with the lady but he wasn't remorseful what happened with Funko.

After Mr. Thomas finished testifying, however, Mr. Brooks' counsel learned of another witness, Shawn Keene, who claimed to have some information of his own-about the State's witness, Mr. Thomas. Through a proffer, Mr. Keene testified that he and Mr. Thomas were also former cellmates. And Mr. Keene recalled Mr. Thomas telling him that a member of one of the victims' families had offered Mr. Thomas $2000 to testify that Mr. Brooks committed the murder. Mr. Brooks sought to recall Mr. Thomas to inquire about any offers of money to testify against Mr. Brooks and to present Shawn Keene's testimony to impeach Mr. Thomas. The circuit court, however, ruled that the testimony was inadmissible. With respect to recalling Mr. Thomas, the court reasoned that an attorney cannot call a witness solely for the sake of impeaching him; as to Mr. Keene, the court determined that his testimony was hearsay and the declarant was not unavailable to testify, that it went beyond the scope of testimony elicited from Mr. Thomas, and that the testimony was not a statement against penal interest.

The jury found Mr. Brooks guilty on both counts of first-degree murder, after which Mr. Brooks filed a motion for new trial. In its order, the circuit court acknowledged it had mistakenly excluded Mr. Keene's testimony but nevertheless denied the motion, concluding that Mr. Brooks was not prejudiced by the error because of the overwhelming evidence presented of Mr. Brooks' guilt. In our view, the circuit court correctly identified its error but wrongly concluded that that error was harmless.

First, the excluded examinations at issue here-both Mr. Keene's and Mr. Thomas's-were indeed admissible and should have been allowed. See, e.g., Musson v. State, 184 So.3d 575, 578, n.4 (Fla. 2d DCA 2016) (explaining that "the hostility of a witness towards a party against whom he is called may be proved by any competent evidence ... [including] the testimony of other witnesses" (alterations in original) (quoting Jones v. State, 678 So.2d 890, 893 (Fla. 4th DCA 1996) ) ); McCoy v. State, 580 So.2d 181, 185-86 (Fla. 1st DCA 1991) (holding that circuit court's refusal to allow defendant to call detective as an adverse witness to impeach him through use of prior inconsistent statements about a defendant's identity amounted to a denial of due process). Plainly there was error here, and the circuit court recognized it as such. The question this appeal raises is whether the error of the exclusion of this evidence was harmless in Mr. Brooks' case.

The harmless error test, as set forth in Chapman [v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

State v. DiGuilio, 491 So.2d 1129, 1135, 1138 (Fla. 1986).

To be sure, the State put forth considerable evidence that implicated Mr. Brooks in these murders. But as the late Judge Walden once aptly observed, "There can, of course, be no more damning piece of evidence than a confession by the party charged." McDonnell v. State, 292 So.2d 420, 424 (Fla. 4th DCA 1974) (Walden, J., dissenting); see also Sciortino v. State, 115 So.2d 93, 95 (Fla. 2d DCA 1959) (admonishing that "confessions of parties charged with crime should be acted on by courts and juries with great caution"). Here, a witness recounted, at length and in detail, an accused defendant's confession to God for the murder of one victim and a remorseless confession for the murder of another. The confession Mr. Thomas relayed was featured as a point in the State's opening statement and in its rebuttal closing statement to the jury. Depriving Mr. Brooks of the only meaningful opportunity to impeach that witness' testimony for alleged bias cannot be deemed harmless under these facts. See Musson, 184 So.3d at 579 ; McCoy, 580 So.2d at 185-86.

Accordingly, we reverse the judgments and sentences below and remand this case for a new trial.

Reversed and remanded with instructions.

LaROSE, C.J., and KHOUZAM, J., Concur.

      However, neither the dumbbell handles nor the knife handle were tested for fingerprints.

      During the proffer, Mr. Thomas testified that he knew Shawn Keene and that they were housed in the same dorm during one of Mr. Thomas's incarcerations. Mr. Thomas portrayed Mr. Keene as being eager to discuss Mr. Brooks' case but that he always brushed off Mr. Keene because he knew Mr. Keene and Mr. Brooks were friends. Mr. Thomas also denied that anyone from the Kitchen or Thomas families approached him regarding his testimony or ever offered him any money to testify against Mr. Brooks.


author: CRENSHAW, Judge.

text:
    Byron JENNINGS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4451
    District Court of Appeal of Florida, Second District.
    Opinion filed May 16, 2018
    Howard L. Dimmig, II, Public Defender, and Benedict P. Kuehne, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrew Tetreault and Jason M. Miller Assistant Attorneys General, Tampa, for Appellee.
   CRENSHAW, Judge.

Byron Jennings appeals the convictions and sentences imposed after a jury found him guilty of one count of armed kidnapping and one count of sexual battery with a deadly weapon. Jennings was sentenced to fifteen years' imprisonment for the armed kidnapping, which included a ten-year mandatory minimum sentence, and to twenty-five years' imprisonment for the sexual assault with a deadly weapon, which included a twenty-five-year mandatory minimum sentence; the trial court ordered the sentences to be served consecutively. We affirm Jennings' convictions without comment, but because the trial court improperly imposed consecutive mandatory minimum sentences pursuant to section 775.087(2)(d), Florida Statutes (2014), we reverse and remand for resentencing.

With regard to the sentencing issue, the State properly conceded error in its brief. See Williams v. State, 186 So.3d 989, 993 (Fla. 2016) (holding that consecutive sentences of mandatory minimum terms for multiple firearm offenses are impermissible if the offenses arose from the same criminal episode and the firearm was not discharged). In the instant case, the trial court imposed consecutive mandatory minimum sentences for the armed kidnapping and the sexual assault with a deadly weapon charges. The State acknowledges that the trial court erred in imposing consecutive mandatory minimum sentences because there was no finding that the weapon was discharged, and the offenses arose out of the same criminal episode. See id. ; Church v. State, 967 So.2d 1073 (Fla. 2d DCA 2007). Based on this error, we reverse and remand for resentencing.

Affirmed in part, reversed in part, and remanded for resentencing.

CASANUEVA and VILLANTI, JJ., Concur.


text:
    Brandon DURANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2388
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Brandon Durant, in proper person.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Brandon Durant, the defendant, appeals the trial court's denial of his 3.800(a) motion to correct illegal sentence. Durant was charged with eleven counts of attempted first degree murder with a deadly weapon, after shooting into a home occupied by eleven people. He was charged under the section 775.087, Florida Statutes (2014) ("10/20/Life Statute"); each count of the information alleged that he possessed and discharged a firearm. The jury returned a guilty verdict on all eleven counts. However, the jury found that Durant only possessed a firearm and did not discharge a firearm. The trial court sentenced Durant to life in prison on each of the eleven counts and imposed eleven mandatory minimum consecutive ten-year sentences under the 10/20/Life statute. Durant alleged in his 3.800 motion that his eleven mandatory minimum ten-year sentences are illegal because they were imposed consecutively instead of concurrently.

The Florida Supreme Court has clearly delineated that "consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged." Williams v. State, 186 So.3d 989, 993 (Fla. 2016) ; see also Walton v. State, 208 So.3d 60, 64 (Fla. 2016). Accordingly, we find that the trial court erred when it consecutively sentenced Durant to eleven mandatory minimum ten-year sentences. We thus reverse and remand for correction of the sentence in accordance with the Florida Supreme Court precedent set forth in Williams, 186 So.3d at 993, and Walton, 208 So.3d at 64. The defendant need not be present when the trial court enters its order correcting the sentence.

Reversed and remanded with instructions.


author: Per Curiam.

text:
    Fredrick BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5419
    District Court of Appeal of Florida, First District.
    May 16, 2018
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, for Appellee.
   Per Curiam.

Fredrick Brown pleaded guilty to several drug crimes, reserving his right to appeal the trial court's order denying his motion to suppress. Finding no error, we affirm.

Police stopped Fredrick Brown for running a stop sign. They ran his driver's license and registration information against the DHSMV database, which showed Brown's license was suspended. After an officer told Brown he would be arrested for driving with a suspended license, Brown tried to put his car in gear and leave. Officers forcibly removed Brown from the car and arrested him. During a subsequent inventory search of Brown's car, officers found the drugs and paraphernalia that led to the convictions on appeal.

Brown does not dispute the validity of the initial traffic stop. Instead, he contends the officers had no basis to arrest him for driving with a suspended license. He argues that his license was not, in fact, suspended-that the officers relied on an erroneous report. This, he maintains, means the inventory search (which he does not otherwise challenge) was based on an unlawful arrest. And that, he says, means the trial court should have granted his motion to suppress everything that search turned up.

At the hearing, the trial court faced conflicting evidence about whether the license was suspended at the time of the arrest. An officer testified that the license was suspended, referencing the database report on which the officer had relied at the time (and which the defendant attached as an exhibit to his motion to suppress). Brown, on the other hand, testified that his license was never suspended, and he submitted another database document suggesting the license was reinstated later the day of the arrest.

The trial court denied the motion in an order devoid of any factual findings. According to Brown, because the order lacked findings and because there was evidence for and against him, we must conclude the State failed to meet its burden below. But "[a] trial court's ruling on a motion to suppress comes to us clothed with a presumption of correctness and, as the reviewing court, we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Murray v. State , 692 So.2d 157, 159 (Fla. 1997). Here, there was evidence that Brown's license was suspended at the time of the arrest, and we conclude that this evidence supports the trial court's ultimate decision. See State v. Dorsey , 991 So.2d 393, 394 (Fla. 1st DCA 2008) (affirming order on motion to suppress after noting conflict in testimony but concluding that "[t]he trial judge here made an implicit finding concerning the credibility of several officers who testified, and circumstances on this record support this implicit finding"). A different judge might have weighed the evidence differently, but we are obligated to uphold this judge's ruling if supported by evidence.

AFFIRMED .

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


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

text:
    Larry E. O'STEEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4027
    District Court of Appeal of Florida, First District.
    May 16, 2018
    Larry O'Steen, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Larry O'Steen appeals the summary denial of a claim raised in his motion for postconviction relief, arguing that the lower court failed to address a portion of his claim. We agree, and reverse and remand for the court to consider the claim.

In 2010, Appellant was convicted of burglary of an unoccupied structure and sentenced as an habitual felony offender to ten years' imprisonment. The conviction arose from the burglary of a locked shed at a used car lot, and Appellant was identified as the burglar based solely on a fingerprint found on a car part box located inside the shed. This Court affirmed the judgment and sentence without opinion. Osteen v. State , 96 So.3d 889 (Fla. 1st DCA 2012) (table decision).

Appellant filed an amended motion for postconviction relief, alleging several grounds. In Ground 13, Appellant raised a claim about the fingerprint evidence presented in the case, asserting that the witness's inability to identify the specific type of box on which the print was found interfered with the chain of custody, thus making the fingerprint inadmissible. Appellant also asserted in Ground 13-albeit inartfully-that he was prejudiced by his trial counsel's deficiency in failing to argue for judgment of acquittal based on the lack of evidence showing "where exactly box was bought from, how long business has been in possession of box, who bought the box or had it in their possession." With regard to this argument, Appellant cited the principle of law that "when a fingerprint is the only evidence on a person, it has to be showed the only way the fingerprint could have got there was when the crime at question was committed." See, e.g., Miles v. State , 466 So.2d 239, 239 (Fla. 1st DCA 1984) ("The law is clear that, where fingerprint evidence is relied upon to establish that the defendant committed the crime, the circumstances must be such that the print could have been made only at the time the crime was committed.").

In summarily denying Ground 13, the postconviction court addressed only the chain of custody issue, but did not discuss counsel's failure to specifically challenge the sufficiency of the fingerprint evidence. Nor did the court attach portions of the record showing that counsel made an adequate motion raising the issue.

In order to uphold the summary denial of claims raised in a motion pursuant to Florida Rule of Criminal Procedure 3.850, "the claims must be either facially invalid or conclusively refuted by the record." Crumitie v. State , 842 So.2d 271, 273 (Fla. 1st DCA 2003). Where the postconviction court fails to address a facially sufficient claim, the matter must be reversed and remanded for reconsideration. Gore v. State , 100 So.3d 177, 177-78 (Fla. 2d DCA 2012) ("[B]ecause the trial court failed to address one portion of Gore's third claim and the attached portions of the record do not conclusively refute the claim, we reverse the summary denial of that claim.").

Here, Appellant presented a legally cognizable and facially sufficient claim. See Jacobs v. State , 880 So.2d 548, 550 (Fla. 2004) (holding that a postconviction claim is facially sufficient if it "sets out a cognizable claim for relief based upon the legal and factual grounds asserted"); Neal v. State , 854 So.2d 666, 670 (Fla. 2d DCA 2003) (explaining that a claim of ineffective assistance for failure to make an adequate motion for judgment of acquittal is cognizable under rule 3.850 ). Accordingly, because the court did not address the claim and did not attach portions of the record conclusively refuting it, we reverse and remand for further proceedings.

REVERSED and REMANDED .

Wolf and Winokur, JJ., concur.


text:
    Rafael Jacob STOFFEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-0079
    District Court of Appeal of Florida, First District.
    May 16, 2018
    Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Thomas H. Duffy, Assistant Attorney General, Tayo Popoola, Assistant Attorney General, and Steven Woods, Assistant Attorney General, Tallahassee.
   B.L. Thomas, C.J.

Appellant, Rafael Jacob Stoffel, appeals his conviction and sentence for lewd or lascivious molestation of a child under the age of twelve. § 800.04(5), Fla. Stat. (2014). Appellant raises two issues on appeal: 1) whether the trial court erred by denying his request for a jury instruction on the lesser-included offense of battery; and 2) whether the trial court's imposition of the minimum-mandatory term of twenty-five years' imprisonment constitutes cruel and unusual punishment under both the Florida and federal constitutions. We find no merit as to the second issue, but write to address Appellant's claim that he was entitled to a jury instruction on battery.

I.

Appellant took his nine-year-old stepdaughter, S.P., to a movie on a "daddy-daughter" date to celebrate her upcoming birthday. A few minutes into the movie, Appellant asked if he could touch S.P.'s breasts. S.P. consented and Appellant proceeded to put his hand underneath S.P.'s shirt and grabbed her breasts. After the movie, Appellant apologized to S.P. for his actions.

Approximately a year after the incident, S.P.'s mother asked S.P. if Appellant had ever touched her inappropriately. S.P. then told her mother what occurred. S.P.'s mother then confronted Appellant about the incident, and Appellant admitted to touching S.P.'s breasts. Appellant expressed remorse for his actions and self-reported the incident by calling the Department of Children and Families (DCF). As a result, DCF sent its investigator and an Okaloosa County Deputy Sheriff to S.P.'s home. Recorded interviews were conducted with S.P., her mother, and Appellant. S.P. reiterated what had occurred during the movie. During his interview, Appellant stated that when he apologized to S.P for his actions, she stated, "Well, I did say yes." At the conclusion of the interviews, Appellant was arrested and charged with lewd or lascivious molestation of a child under the age of twelve.

During trial, S.P. testified that Appellant touched her breasts for approximately two to three minutes and told her that she was "growing up" and "becoming quite the woman." Additionally, S.P. testified that she "felt like something was wrong, but I wasn't, like, exactly sure, and I didn't really know what was going on." Appellant testified and admitted to touching S.P.'s breasts for a few seconds. Both the State and defense counsel stipulated that, while Appellant was touching S.P., Appellant told S.P. "your chest is getting big."

At the charge conference, defense counsel asked for a jury instruction on the lesser-included offense of battery. The trial court denied the request. The trial court, however, granted defense counsel's request for a jury instruction on the lesser-included offense of attempted lewd or lascivious molestation and a jury instruction for an unnatural and lascivious act.

In its closing statement, the defense argued that Appellant did not have the lascivious intent required to be found guilty of lewd or lascivious molestation. The trial court then instructed the jury:

THE COURT: Lewd or lascivious molestation. To prove the crime of lewd or lascivious molestation, the State must prove the following three elements beyond and to the exclusion of a reasonable doubt: One, [S.P.] was under the age of 12 at the time of the offense. Two, Rafael Stoffel intentionally touched in a lewd or lascivious manner the breasts of [S.P.]. Three, Rafael Stoffel was 18 years of age or older at the time of the offense.
The words "lewd" and "lascivious" mean the same thing. They mean a wicked, lustful, unchaste, licentious, or sensual attempt on the part of the person doing the act.
Neither the victim's loss of chastity nor consent is a defense to the crime charged. The Defendant's ignorance of the victim's age, the victim's misrepresentation of her age, or the Defendant's bona fide belief of the victim's age is not a defense to the crime charged.

During its deliberations, the jury asked the trial court the following question: "Ask [Appellant] why he decided to reach under her shirt. What was he thinking? What was his reasoning?" The trial court responded by informing the jury that "you have all of the evidence that's been received for your consideration of the verdict in this matter." The jury then resumed its deliberations and found Appellant guilty as charged.

II.

There are two categories of lesser-included offenses: necessary and permissive. Sanders v. State , 944 So.2d 203, 206 (Fla. 2006). "Necessarily lesser-included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense." Id. In contrast, a permissive lesser-included offense is one where both offenses appear to be separate on the face of the statutes, "but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been." Id. (quoting State v. Weller , 590 So.2d 923, 925 n.2 (Fla. 1991) ) (emphasis added).

A trial court must instruct the jury on a necessary lesser-included offense. McKiver v. State , 55 So.3d 646, 649 (Fla. 1st DCA 2011). However, the instruction on a permissive lesser-included offense must be given only if: 1) the charging document alleges all the statutory elements of the requested permissive lesser-included offense; and 2) some evidence is adduced at trial that establishes those statutory elements. Khianthalat v. State , 974 So.2d 359, 361 (Fla. 2008). Battery is listed as a lesser-included offense of lewd or lascivious molestation. Fla. Std. Jury Instr. (Crim.) 11.10(c). Accordingly, Florida courts have found that battery is a permissive lesser-included offense of lewd or lascivious molestation. Barnett v. State , 45 So.3d 963, 964 (Fla. 3d DCA 2010). The question for this Court is thus two-fold: 1) did the State's information allege the statutory elements of battery, and if so, 2) did the evidence adduced at Appellant's trial establish those elements?

III.

The elements of battery are an actual and intentional touching or striking of another, without their consent. § 784.03(1)(a)1., Fla. Stat. The fact that Appellant intentionally touched S.P. is uncontroverted. As a result, this Court's analysis centers on the remaining statutory element of consent.

The State's second amended information alleged that Appellant "on or about June 22, 2014, at and in Okaloosa County, Florida, while being eighteen (18) years of age or older, 31 years of age, did unlawfully and intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than twelve (12) years of age, S.P., ..., 9 years of age, or force or entice S.P. to touch the perpetrator, in violation of Section 800.04(5)(b), Florida Statutes."

The language of the information makes no mention of Appellant's touching being against the will of S.P., and there is no evidence in the record to support the finding that S.P. did not consent to Appellant's touching. Certainly, S.P.'s testimony indicates that at the time she felt uncertain or taken aback by Appellant's conduct. It is clear, however, that S.P.'s verbal statements to Appellant before and after the incident demonstrate that the touching was consensual.

We find the holding in Barnett to be persuasive here. The defendant in Barnett was charged with lewd or lascivious molestation of a child under the age of twelve. 45 So.3d at 964. He requested a jury instruction on battery, which the trial court denied. Id. Relying on Khianthalat , the Third District affirmed the trial court, holding that the defendant was not entitled to a jury instruction on battery, because "[t]he information did not include any language stating that the touching was against the will of the victim." Id.

The court in Barnett addressed Belser v. State , 854 So.2d 223 (Fla. 1st DCA 2003), which predated Khianthalat . Barnett , 45 So.3d at 964. In Belser , the defendant was charged with lewd or lascivious molestation of a child under the age of sixteen. 854 So.2d at 224. On appeal, the defendant argued that the trial court erred by denying his request for a jury instruction on battery. Id. This Court held that the defendant was entitled to the instruction and reversed. Id. at 225. In our rationale, we noted that "[t]he state concedes that simple battery is a permissive lesser included offense, that unlawful touching was alleged in the information, and that evidence of battery was presented at trial to support such a finding." Id. at 224. But our decision in Belser made no attempt to analyze the remaining statutory element that the touch be against the will of the victim. Consequently, the Third District in Barnett found that " Belser does not survive the more recent decision of the Supreme Court in Khianthalat ." 45 So.3d at 964. We agree, and hold that Belser has been abrogated by the rule of law articulated by the Florida Supreme Court in Khianthalat .

But Appellant argues that the fact that S.P. was under the age of twelve satisfies the requirements of Khianthalat , because a minor cannot give consent to an unlawful sexual touching; thus, as a matter of law, Appellant's acts were without S.P.'s consent. This assertion is untenable, however, given our Court's recent affirmation that parents and those in loco parentis are privileged to touch their children, non-abusively, against their will. Morris v. State , 228 So.3d 670 (Fla. 1st DCA 2017). As a matter of law, Appellant could not commit a battery against his stepchild, unless Appellant touched her in a lewd manner, which is unlawful, and therefore the fondling would be a lewd and lascivious molestation. Thus, either the act of fondling the nine-year old's breasts was a lewd molestation or it was no crime at all, because a non-lewd touching of a child by a parent cannot constitute a battery , absent evidence of physical injury or other factors not alleged or proven here. See § 784.085, Fla. Stat.; § 827.03(1)(a)&(b), Fla. Stat.

If it had received the battery instruction, the jury could have only found Appellant guilty of battery if they found that the State failed to prove the charged offense (as well as the lesser-included offenses of attempted lewd or lascivious molestation or unnatural and lascivious act) beyond a reasonable doubt. Such a finding necessarily means that the jury would have determined that Appellant did not act with a lascivious intent. Therefore, the resulting touch between Appellant and S.P. could not constitute battery, as a matter of law. Morris , 228 So.3d at 673. Thus, the only proper choices for the jury to consider were in fact provided: Either Appellant committed a lewd or lascivious act, or he committed no crime at all

The record is undisputed that Appellant touched S.P.'s breasts. Appellant admitted touching the victim's breasts. Therefore, the only issue remaining for the jury to resolve was whether Appellant had a lascivious intent. Appellant asked S.P. if she liked being touched, and Appellant commented that S.P. was becoming "quite the woman." Both parties stipulated that Appellant told S.P. that "your chest is getting big." Based on these facts, the jury had sufficient evidence to conclude that Appellant acted with lascivious intent.

AFFIRMED .

Osterhaus and M.K. Thomas, JJ., concur.

      Per statute, a conviction for lewd or lascivious molestation of a child under the age of twelve requires that a trial court impose one of two sentencing options: 1) life imprisonment; or 2) "a split sentence ... of at least twenty-five years' imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person's natural life." § 775.082(4)(a), Fla. Stat. (2014).


text:
    Kacy Danielle CRENSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5843
    District Court of Appeal of Florida, First District.
    May 17, 2018
    Andy Thomas, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Kacey Crenshaw was charged with grand theft after surveillance video showed her leaving her Burger King shift carrying cash in a to-go bag. According to the restaurant's owner, the money in the bag (some $1,600) was supposed to be deposited in the bank, but it never made it. He said other deposits had gone missing in the months before Crenshaw's arrest, too. Almost all of those deposits disappeared on days Crenshaw was scheduled to work.

At trial, Crenshaw moved for a judgment of acquittal. She argued that while she may have left work with money in a to-go bag-as seen in the video-that did not prove she stole anything. Instead, according to Crenshaw and other witnesses, Burger King managers were encouraged to carry deposits in to-go bags-the same bags customers get their food in-because the bags were inexpensive and inconspicuous.

The court denied Crenshaw's motion, and the jury later convicted her of grand theft. The court sentenced her to six months' imprisonment, followed by four years' probation. Now, Crenshaw appeals the court's decision, raising the same judgment-of-acquittal argument and challenging an aspect of her sentence.

We review de novo the order denying the acquittal motion, and we view the evidence in the light most favorable to the State. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002). To survive the motion, the State needed to present evidence that Crenshaw intended to deprive Burger King, permanently or temporarily, of at least $300 worth of property. §§ 812.014(1), (2)(c), Fla. Stat. (2016).

As to the issue of Crenshaw's intent, we note that there was evidence that employees routinely took deposits to the bank in to-go bags rather than bank-provided bags; the restaurant owner confirmed as much on cross-examination. But there was also evidence that the bank never received several deposits Crenshaw was scheduled to deliver (in addition to the one seen in the video), despite having a dual-controlled and video-monitored system of accepting and processing deposits. Furthermore, the jury saw Crenshaw tightly wrap money in one to-go bag, put that money at the bottom of another to-go bag, place other objects in the bag (concealing its contents), and then store the bag among her personal effects. Considering all of this evidence, a reasonable jury could conclude that Crenshaw intended to deprive the restaurant of the money she left the store with. See Manuel v. State , 16 So.3d 833, 835 (Fla. 1st DCA 2005) ("[T]aking the evidence in a light most favorable to the State, intent can be inferred from the circumstances of the incident.").

As to the value of the funds, there was evidence to support a finding that the $300 threshold was satisfied. Although there was evidence of multiple missing deposits, only one day's events were captured on video. But there was evidence that one day's deposit alone was worth at least $1,600. The trial court did not err in denying the motion for judgment of acquittal.

Crenshaw separately argues that the court should have granted her motion to correct a sentencing error. When orally pronouncing sentence, the trial court gave Crenshaw jail credit. But the subsequent written order gave Crenshaw less jail credit. Crenshaw moved to correct the written order to align with the oral pronouncement, but the court denied the motion. The court said its oral pronouncement gave too much credit, that the written order was correct, and that its erroneous oral pronouncement constituted a "scrivener's error." Although the oral pronouncement generally controls-even when it provides too much jail credit, see Nelson v. State , 148 So.3d 173, 174 (Fla. 1st DCA 2014) (holding that the oral pronouncement granting jail credit controls over the written sentence "[r]egardless of whether the appellant is entitled to the credit"); see also Douglas v. State , 140 So.3d 691, 691 (Fla. 1st DCA 2014) ("It is a longstanding principle that a court's oral pronouncement controls over any written sentencing document."), the issue is now moot because Crenshaw has already completed her jail term. See Toomer v. State , 895 So.2d 1256 (Fla. 1st DCA 2005) (issues of jail credit are rendered moot once the sentence has been completed). We therefore dismiss as moot the portion of this appeal challenging the jail credit.

AFFIRMED in part; DISMISSED in part.

Lewis, Kelsey, and Winsor, JJ., concur.


author: Bilbrey, J.

text:
    John Milton STRICKLIN, Appellant, v. Kimberly Rae STRICKLIN, Appellee.
    No. 1D16-5549
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Ross A. Keene, Pensacola, for Appellant.
    James M. Burns, Pensacola, for Appellee.
   Bilbrey, J.

John M. Stricklin, the former husband, appeals the portions of the final judgment awarding the former wife durational alimony of $2,500 per month for 48 months and finding that the former wife is entitled to an award of reasonable attorney's fees and costs. In addition, the former husband appeals the post-judgment order requiring the former husband to pay $19,000 in unpaid attorney's fees directly to counsel for the former wife, in monthly installments of $5,000, until paid in full. The final judgment was largely based on the report and recommendation of a General Magistrate (the "Report"), which was ratified, approved, and incorporated by the trial court. Because the final judgment and the Report upon which it is based fail to contain sufficient factual findings of the former wife's need and the former husband's ability to pay to allow for meaningful appellate review of the durational alimony award, reversal and remand is required. Likewise, because the trial court's post-judgment order requiring the former husband to pay an additional $19,000 towards the former wife's attorney's fees and costs fails to include specified findings to support the award, we must reverse and remand. In all other respects, the final judgment and subsequent order on the former wife's omnibus motion are affirmed.

The Report contains findings that the parties' marriage of approximately seven years was irretrievably broken, that no minor children were involved, and that the former wife "has a demonstrated need and the Husband has considerably more assets and income for support." The General Magistrate then listed each of the statutory factors required by section 61.08(2)(a)-(j), Florida Statutes, and made findings under each factor. Following the discussion in the Report pertaining to alimony, the General Magistrate addressed at length the equitable distribution of the parties' marital assets, the parties' access to non-marital assets, and the applicable liabilities.

The General Magistrate recited various discrepancies in each party's claimed incomes and expenses and noted that the former wife's amended financial affidavit filed May 16, 2016, under-reported her housing expenses and property tax expenses. However, the General Magistrate did not resolve the disputed income and expense figures, correct the erroneous mathematical calculations in the parties' affidavits, or express any method or formula for its determination of the former wife's amount of need and the former husband's ability to pay that or any other dollar amount going forward. The parties submitted multiple financial affidavits over the course of the litigation showing various income and expense figures, but the Report does not determine either party's income and expenses for any defined time periods. While the equitable distribution plan is explained in detail, we are unable to discern from the record how the General Magistrate arrived at her recommendation that the former wife be awarded durational alimony of $2,500 per month.

The trial court's adoption of the Report regarding alimony, over the then husband's objection and exception to the Report, without comment in the final judgment entered December 27, 2016, sheds no light on the basis for the amount of the durational alimony award. Accordingly, the durational alimony portion of the final judgment must be reversed and remanded for specific findings of the former wife's need and the former husband's ability to pay alimony before consideration of the other statutory factors. See § 61.08(2), Fla. Stat.; Bruno v. Bruno , 119 So.3d 1273 (Fla. 1st DCA 2013) (reversing durational alimony award and remanding for further findings of fact on disparities of parties' incomes and financial resources of both parties); see also Broemer v. Broemer , 109 So.3d 284 (Fla. 1st DCA 2013) (reversing awards of bridge-the-gap alimony followed by durational alimony and remanding for correct determination of former husband's monthly income to assess his ability to pay alimony).

Considering the directive that the former husband pay the former wife's attorney's fees, the former husband fails to establish any abuse of the trial court's discretion in the final judgment adopting the General Magistrate's recommendation that the former wife is entitled to an award of reasonable attorney's fees. No particular amount of fees was awarded in the final judgment, and the award of a "reasonable amount for attorney's fees" under section 61.16(1), Florida Statutes, requires only that the court generally base such award on its consideration of the parties' respective financial resources. The Report adopted by the trial court contains sufficient findings on the parties' resources and relative financial positions on the date of that Report to support this general award.

However, the trial court's post-judgment award of $19,000 in remaining unpaid attorney's fees and costs to the former wife, to be paid by the former husband in monthly installments of $5,000 until paid in full, lacks sufficient findings of fact of the former husband's ability to pay. This order was entered on June 14, 2017, more than a year after the Report of the General Magistrate and over six months after the final judgment was entered. The trial court's finding of reasonableness for the $35,000 total for the former wife's attorney's fees, based on the reasonable hours expended and counsel's hourly rate, was properly based on the evidence adduced at the hearing on the former wife's motion. See Rosen v. Rosen , 696 So.2d 697 (Fla. 1997). The court specifically acknowledged the $16,000 paid by the former husband towards the total as supported by the record. However, the court's award of the remaining $19,000, to be paid by the former husband in $5,000 monthly installments, was not supported by findings of fact on the parties' respective financial resources, and in particular the former husband's ability to pay such installments. See Broemer , 109 So.3d at 290 ; accord Dennis v. Dennis , 230 So.3d 1277 (Fla. 1st DCA 2017).

Accordingly, the final judgment is REVERSED in part, on the award of durational alimony in the amount of $2,500 per month for a period of 48 months, and remanded for additional findings of fact to support any finding of the parties' respective need and ability to pay such alimony for the duration specified. In all other aspects, the final judgment is AFFIRMED.

The post-judgment order requiring the former husband to pay $19,000 in remaining unpaid attorney's fees to counsel for the former wife in $5,000 monthly installments is REVERSED and the cause is REMANDED for additional findings of fact on the parties' relevant financial resources at the applicable point in time, showing the former wife's need and former husband's ability to pay such fees on the terms scheduled, if any. The post-judgment order is otherwise AFFIRMED.

B.L. Thomas, C.J., and Jay, JJ., concur.

      The Report acknowledges support payments from the former husband to the former wife prior to the final hearing, and the former husband's provision of health insurance for the former wife under the Family Law Standing Pre-Trial Order not at issue in this appeal.


author: Makar, J.

text:
    COMPASSIONATE CARE HOSPICE OF the GULF COAST, INC., Appellant, v. STATE of Florida, Agency for Health Care Administration, Appellee, and Tidewell Hospice, Inc., Intervenor.
    No. 1D16-5062
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Geoffrey D. Smith and Susan C. Smith, of Smith & Associates, Melbourne, for Appellant.
    Tracy Cooper George, Chief Apepllate Counsel for Agency for Health Care Administration, Tallahassee, for Appellee Agency for Health Care Administration.
    Robert D. Newell, Jr., of Newell, Terry & Douglas, P.A., Tallahassee, for Intervenor Tidewell Hospice, Inc.
   Makar, J.

Hospice care in Florida is regulated by industry-specific certificate of need statutes implemented by the Agency for Health Care Administration, known as AHCA. To gain entry to the marketplace, a hospice provider must apply for and obtain a certificate of need; it cannot simply set up shop and compete for business. At issue is the application of Compassionate Care Hospice of the Gulf Coast, Inc. ("CCH"), which AHCA denied based on its determination that CCH failed to overcome a presumption that no need existed for a new hospice program in Hospice Service Area 8D (Sarasota County). CCH challenges that determination, claiming that AHCA is not fulfilling its regulatory mission because Service Area 8D is monopolized by one incumbent provider and denial of CCH's application perpetuates the existing regional monopoly to the disadvantage of those whose needs may not be served.

As background, AHCA publishes what is called the "fixed need pool," which is the agency's assessment of the need for new facilities in each service area. For Hospice Service Area 8D in 2014, it determined a fixed need of zero for new hospice programs, which creates a rebuttable presumption that no new hospice provider is needed. Fla. Admin. Code R. 59C-1.0355(3)(b) (2018) ("A Certificate of Need for the establishment of a new Hospice program ... shall not be approved unless the applicant meets the applicable review criteria ... and the standards and need determination set forth in this rule."). CCH-whose corporate parent provides hospice services in seven Florida counties including Miami-Dade-did not directly challenge the fixed need determination (though it could have); instead, it applied to establish a new hospice program in Service Area 8D, seeking to overcome the presumption based on "special circumstances," including the existing regional monopoly in Sarasota County and the need to promote competition in the area.

As to regional monopolies and competition, Florida hospice law states:

When an application is made for a certificate of need to establish or to expand a hospice, the need for such hospice shall be determined on the basis of the need for and availability of hospice services in the community. The formula on which the certificate of need is based shall discourage regional monopolies and promote competition.

§ 408.043(2), Fla. Stat. (2015) (emphasis added). The Legislature made clear that-to the extent possible in a government-controlled industry-the economic value of competition was to be promoted and regional monopolies discouraged. This pro-competition, anti-monopoly sentiment is reflected in the administrative rule that governs how an applicant can obtain a certificate of need despite AHCA's determination that no need exists:

Applications to establish a new hospice program shall not be approved in the absence of a numeric need indicated by the formula in paragraph (4)(a) of this rule, unless other criteria in this rule and in Sections 408.035 and 408.043(2) [discouragement of regional monopolies and promotion of competition], F.S., outweigh the lack of a numeric need.

Rule 59C-1.0355(3)(b), Fla. Admin. Code. Thus, even if AHCA has determined that no need exists, an applicant can still receive a certificate for a new facility, but must demonstrate that the discouragement of regional monopolies/promotion of competition-combined with other rule-based criteria-"outweigh the lack of a numeric need." It may also show a "specific terminally ill population is not being served" and "a county or counties within the service area of a licensed Hospice program are not being served." Rule 59C-1.0355(4)(d), Fla. Admin. Code (2018).

The takeaway from the statutory structure of the hospice certificate of need process, which has been in place for thirty years, is that AHCA has much play-in-the-joint in making a determination as to whether to allow a new entrant into a hospice service district, a point repeatedly confirmed by the caselaw addressing certificates of need generally, which says that the "appropriate weight" to be assigned to each statutory criterion has no fixed value and "must vary on a case-by-case basis, depending upon the facts of each case." Collier Med. Ctr., Inc. v. State, Dep't of Health & Rehab. Servs. , 462 So.2d 83, 84 (Fla. 1st DCA 1985) ; see also N. Ridge Gen. Hosp., Inc. v. NME Hosps., Inc. , 478 So.2d 1138, 1139 (Fla. 1st DCA 1985) ("[T]he legislative purpose behind the certificate of need law is to provide for a balanced consideration of all relevant criteria."). In other words, statutory criteria have a free-floating value that may vary if sufficiently linked to the facts of a case. One hospice criterion (say, for example, discouragement of regional monopolies) may be assigned a lesser value if another criterion (say, whether a specific terminally-ill population is being unserved) is assigned great weight. So long as a "balanced consideration of all relevant criteria" was performed, and some reasonable explanation exists for the final outcome, the caselaw suggests an appellate court should defer to the result, absent some abdication by the agency of its responsibilities.

On this point, Tidewell notes that its status as the sole hospice provider in Sarasota County (as well as Manatee, Charlotte, and Desoto counties in three adjoining service areas, which is unique in Florida) is neither improper nor illegal; and that section 408.043(2) does not require that AHCA give greater weight to the policy goal of discouraging regional monopolies and promoting competition than to the other factors. All that may be true, but it does not provide meaningful guidance on how AHCA's discretion to deny entry is adjudged. In this case, Tidewell likes the balance that AHCA has struck, supporting Tidewell's continued regional monopoly in Sarasota County. But AHCA could alter course policy-wise and give greater weight to eliminating regional monopolies and increasing competition by allowing more entry into Hospice Service Area 8D; that change of policy would alter the dynamics of the hospice marketplace, potentially putting Tidewell in the position of explaining why the issuance of a certificate of need to CCH or another competitor was improper.

Given the lack of specific weights assigned to each factor, how an appellate court can decide if AHCA has valued economic competition too much or too little is unclear. Nonetheless, we see it as a close call in this case whether to reverse because the evidence establishes (and the hearing officer found) that Tidewell is a monopolist, that CCH's entry into Sarasota County is economically viable and will increase competition, but that new competition will reduce Tidewell's market share and result in an adverse financial impact on the incumbent with no clear showing of a specific unserved population.

In the end, however, we cannot overturn the denial of CCH's request to serve the Sarasota hospice market, simply because the record establishes that a regional monopoly exists and that competition would be fostered by entry. Rather, we are constrained to decide whether AHCA was in its rights to reject the proffered basis for CCH to enter the market, that being whether an unserved population exists and whether new facilities would harm the incumbent where no new market growth was shown. Because the record shows "a balanced consideration of all relevant criteria," and a stated basis for rejection of CCH's application that is plausible, we affirm on all issues presented.

AFFIRMED .

B.L. Thomas, C.J., and Winokur, J., concur.


author: BLACK, Judge.

text:
    Takendrick CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4698
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018.
    Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Takendrick Campbell appeals from the order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part; our reversal in part requires that Campbell receive a new trial on the charges of trafficking in illegal drugs, trafficking in cocaine, and possession of a controlled substance. Accordingly, we address only the claims necessitating a new trial.

I. The trial

Campbell was charged with trafficking in illegal drugs (oxycodone), trafficking in cocaine, possession of a controlled substance (MDMA), and misdemeanor possession of marijuana. After declining a plea offer from the State, Campbell proceeded to trial.

The State presented the testimony of the arresting officer and a crime lab analyst. As pertinent to our resolution of this appeal, the arresting officer testified at trial that on the day of Campbell's arrest the officer was part of a burglary suppression team and that during his patrol he noticed a man lying in the backseat of a vehicle parked in the driveway of a duplex. The officer testified that he approached the vehicle and made contact with the man, Campbell. He noticed that Campbell had what appeared to be a marijuana cigar in the brim of his hat. After the cigar field tested positive for marijuana, the officer arrested Campbell for possession of marijuana. He then searched the car prior to having it towed. During his search the officer found a container of cocaine and pills in the seatback pocket of the driver's seat; the pills were later determined to be oxycodone and MDMA. The officer determined that Campbell was the second person listed on the vehicle's title.

At the close of the State's case, Campbell's counsel moved for judgment of acquittal, arguing that the State failed to prove Campbell's constructive possession of the cocaine, oxycodone, and MDMA. The court denied the motion, finding that no evidence had been presented that anyone but Campbell was or had been in the vehicle on the day of Campbell's arrest and that the State was therefore entitled to the inference that Campbell had knowledge of and control over the drugs. See State v. Odom, 862 So.2d 56, 59 (Fla. 2d DCA 2003) ("As the sole occupant and driver of the vehicle, Odom had exclusive possession of the vehicle creating an inference of his dominion and control over the contraband contained therein particularly since the contraband was found lodged between the driver's seat and the console of the car. Likewise, knowledge of the presence of the contraband ... could be inferred or presumed because Odom was in exclusive possession of the automobile when it was stopped." (citation omitted) ); see also Fla. Std. Jury Instr. (Crim.) 25.2 ("If you find that (defendant): ... had exclusive control of the place where the substance was located, you may infer that [he] [she] was aware of the presence of the substance and had the power and intention to control it.").

The defense presented no witnesses, and the trial proceeded to closing arguments. As she had done in opening statements, Campbell's counsel argued that Campbell's proximity to the drugs was not enough to convict him. Campbell's counsel argued, in part, that "[p]ossession of the car doesn't equal possession of the drugs." She argued that the State had to prove that Campbell knew the container was in the car and knew drugs were in the container: "[Y]ou can't guess those or infer those or assume those. [The State] has to prove it."

Campbell was found guilty on all counts; he was sentenced to a mandatory 25 years in prison on the trafficking in oxycodone conviction, 10.79 years with a minimum mandatory of 3 years on the trafficking in cocaine conviction, 10.79 years on the possession of MDMA conviction, all to run concurrently with the 25-year sentence, and to time served in county jail on the marijuana possession conviction. Campbell's judgment and sentences were affirmed on direct appeal. Campbell v. State, 109 So.3d 792, 2013 WL 1044014 (Fla. 2d DCA 2013) (table decision).

II. The postconviction motion and hearing

Campbell timely filed the present motion for postconviction relief, raising multiple claims of ineffective assistance of trial counsel. In support of his claims, Campbell attached affidavits from Floyd McKenzie and Campbell's mother, Elsie Campbell. Five of Campbell's claims were summarily denied by a nonfinal order rendered July 27, 2015, including Campbell's claim that his counsel misadvised him regarding a five-year plea deal offered by the State. The July order included the finding that "the trial transcript reveals that no evidence was presented to support a finding that [Campbell] did not have exclusive possession of the drugs."

Four of Campbell's remaining claims were considered at an evidentiary hearing; the final claim, cumulative effect, was to be considered thereafter. Mr. McKenzie and Ms. Campbell both testified at the evidentiary hearing.

Consistent with the affidavit attached to Campbell's motion, Mr. McKenzie testified that he had been in the vehicle on the day that Campbell was arrested. He testified that Ms. Campbell had been driving the car when she and Campbell gave Mr. McKenzie a ride and that he had been sitting in the backseat behind the driver's seat. Mr. McKenzie also testified that he had advised Campbell's trial counsel of his presence in the vehicle and that he would have testified at trial.

Ms. Campbell's testimony corroborated Mr. McKenzie's as to his presence in the backseat of the vehicle on the day of Campbell's arrest. She also confirmed that she had been driving the vehicle that day. Ms. Campbell testified that she had spoken with Campbell's trial counsel several times, asking counsel about the plea offer from the State and whether counsel would have Ms. Campbell and Mr. McKenzie testify at trial. According to Ms. Campbell, counsel repeatedly stated that it made no sense for Campbell to take the plea offer because "the State had no case" and that neither Ms. Campbell's testimony nor Mr. McKenzie's testimony was necessary for trial.

Campbell also testified at the hearing. He stated that he and Ms. Campbell had been in the car the day of his arrest and that Ms. Campbell had been driving. He confirmed that Mr. McKenzie had been sitting in the backseat, behind the driver's seat. Campbell testified that his defense was that the drugs were not his and that he had no knowledge of them. He testified that he wanted his mother and Mr. McKenzie to testify at trial and that his counsel advised him that it was unnecessary to have either of them testify.

On cross-examination, Campbell confirmed that the mandate issued in his direct appeal in 2013 and that his postconviction motion was not filed until 2015. He also confirmed that he knew that his trial counsel had died in 2014. When asked why he did not file a postconviction motion sooner, Campbell testified that he was "trying to scrape up some money for counsel." Ultimately, counsel was retained; postconviction counsel filed the current motion and represented Campbell at the evidentiary hearing.

Because Campbell's trial counsel died prior to the filing of the rule 3.850 motion, only Campbell presented evidence relevant to the disposition of his claims. The State presented no evidence rebutting or conflicting with the testimony presented by Mr. McKenzie, Ms. Campbell, or Campbell.

After consideration of written posthearing arguments, the court entered its final order denying Campbell's motion for postconviction relief, including the claims that counsel was ineffective for failing to call Mr. McKenzie and Ms. Campbell as witnesses. In denying those claims, the postconviction court found that Campbell had failed to carry his burden because the witnesses were not credible and Campbell had not established that the outcome of the trial would have been different had they testified.

III. Analysis

On review of an order denying postconviction relief following an evidentiary hearing, we defer to the postconviction court's factual findings that are supported by competent substantial evidence but we review de novo the court's legal conclusions. Light v. State, 796 So.2d 610, 615 (Fla. 2d DCA 2001). A facially sufficient claim that counsel was ineffective in failing to call witnesses whose testimony would cast doubt on the defendant's guilt generally requires an evidentiary hearing, the purpose of which "is to determine whether trial counsel acted reasonably in not presenting the alleged exculpatory evidence." Perez v. State, 128 So.3d 223, 226 (Fla. 2d DCA 2013) (citing Jacobs v. State, 880 So.2d 548, 555 (Fla. 2004) ). The defendant carries the burden of proving his claims of ineffective assistance of counsel at such an evidentiary hearing. See Williams v. State, 974 So.2d 405, 407 (Fla. 2d DCA 2007) ; see also Fla. R. Crim. P. 3.850(f)(8)(B) ("At an evidentiary hearing, the defendant shall have the burden of presenting evidence and the burden of proof in support of his or her motion, unless otherwise provided by law.").

"[W]hen a defendant presents competent substantial evidence in support of his ineffective assistance claim[s], the burden shifts to the State to present contradictory evidence." Williams, 974 So.2d at 407 (citing Green v. State, 857 So.2d 304, 305 (Fla. 2d DCA 2003) ); accord Thomas v. State, 117 So.3d 1191, 1194 (Fla. 2d DCA 2013) ("Generally, a defendant has the burden to present evidence at a postconviction evidentiary hearing, and once he does so, even if only through the presentation of his own testimony, the State must present contradictory evidence."). While trial counsel's strategic decisions are "virtually unchallengeable," those decisions which are "patently unreasonable" will not withstand scrutiny. Light, 796 So.2d at 616 (first quoting Downs v. State, 453 So.2d 1102, 1108 (Fla. 1984) ; and then quoting Roesch v. State, 627 So.2d 57, 58 n.3 (Fla. 2d DCA 1993) ). Where there is "no conflicting testimony that required the [postconviction] court to assess the relative credibility of different witnesses," the issue is not one of witness credibility. Feldpausch v. State, 826 So.2d 354, 356 (Fla. 2d DCA 2002) ; see also Yarbrough v. State, 871 So.2d 1026, 1029 (Fla. 1st DCA 2004) ("[T]he evidentiary hearing raised virtually no disputed issues.... Thus, the [postconviction] court needed only to apply these established facts to the law regarding ineffective assistance of counsel."). "[I]f a defendant's testimony is unrefuted and the postconviction court has not articulated a reason to disbelieve the defendant, the court cannot choose to disregard the defendant's testimony." Thomas, 117 So.3d at 1194. Additionally, a postconviction court's "capacity to determine the credibility of the witnesses in a postconviction motion is more limited when the [court] is examining whether the failure to call a particular witness prejudiced the defendant." Light, 796 So.2d at 617.

Here, Campbell met his burden under the first prong of Strickland. He presented unrefuted competent substantial evidence that counsel's performance was deficient for failing to call two witnesses who would have testified to a potentially exculpatory fact at trial, namely that Campbell had not been the only person in the vehicle on the day of his arrest. See Edwards v. State, 186 So.3d 1069, 1072 (Fla. 2d DCA 2016) (reversing conviction for constructive possession of cocaine where evidence established that other people had been in the vehicle on the day of the defendant's arrest and otherwise failed to prove that defendant had knowledge of and ability to control the cocaine). Where the defendant is in the exclusive possession of an automobile in which drugs are found, the State is entitled to a presumption that the defendant had knowledge of and control over the drugs; that is, the State need not present evidence of defendant's knowledge of the presence of the drugs. Odom, 862 So.2d at 59 ; see also State v. Lee, 230 So.3d 886, 888 (Fla. 4th DCA 2017) (" 'If the premises on which the drugs are found are in the exclusive possession and control of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over them may be inferred.' This rebuttable inference stands even when the [S]tate offers no evidence of how the defendant came to possess the vehicle in which drugs were found." (quoting Lee v. State, 835 So.2d 1177, 1179 (Fla. 4th DCA 2002) ) ). And "[w]hile the presumption of guilty knowledge may be overcome by evidence tending to show a lack of guilty knowledge, merely demonstrating that others theoretically had access to the automobile would not necessarily negate the presumption." Odom, 862 So.2d at 59 (emphasis added); cf. Edwards, 186 So.3d at 1072 (stating that when drugs are found in an area jointly possessed, the State is not entitled to the inference of knowledge and control). Thus, competent defense counsel would have understood that evidence was necessary to establish that Campbell was not the only person who had been in the vehicle on the day of Campbell's arrest. Cf. Light, 796 So.2d at 614 (stating that "competent defense counsel would understand that the defense needed to raise a reasonable doubt about Officer Penix's testimony" where "the case was a swearing match between a police officer and a nine-time convicted felon").

The failure to present any evidence that Campbell was not the only person in the vehicle that day, and thus to rebut the inference of Campbell's knowledge of and control over the drugs, falls below the standard of reasonably effective counsel. See State v. Plummer, 228 So.3d 661, 668 (Fla. 1st DCA 2017) (concluding that counsel performed deficiently by failing to present evidence as to the nature of the gun-BB or airsoft-where the defendant was charged with carrying a weapon); Kruse v. State, 222 So.3d 13, 17 (Fla. 4th DCA 2017) (concluding counsel performed deficiently in failing to request a self-defense instruction where self-defense was the only proffered defense to the charge); State v. Jackson, 204 So.3d 958, 964 (Fla. 5th DCA 2016) (concluding that counsel rendered deficient performance where she misunderstood the law on insanity as a defense). Campbell established deficient performance of trial counsel. Thus, we consider the more difficult issue of whether Campbell sufficiently established prejudice.

"The benchmark for judging claims of ineffectiveness ... is whether the conduct of counsel 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " Sierra v. State, 230 So.3d 48, 52 (Fla. 2d DCA 2017) (quoting Cabrera v. State, 766 So.2d 1131, 1133 (Fla. 2d DCA 2000) ); see also Balmori v. State, 985 So.2d 646, 649 (Fla. 2d DCA 2008) (reiterating that the deficient performance "must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined" (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986) ) ). "In a case like this one, which turns on counsel's omissions, both the [postconviction] and appellate courts must evaluate the circumstances from the standpoint of what might have been." Lee v. State, 899 So.2d 348, 354 (Fla. 2d DCA 2005). In cases involving the failure to call witnesses, the prejudice prong of Strickland requires that the postconviction court consider the admissibility of the testimony; its weight as determined by whether it goes to the merits of the case, is cumulative, and is material and relevant; and any inconsistencies presented by it. See Light, 796 So.2d at 617 (citing Jones v. State, 709 So.2d 512, 521 (Fla. 1998) ). "That is, the [postconviction court] is not examining simply whether [it] believes the evidence presented as opposed to contradictory evidence presented at trial, but whether the nature of the evidence is such that a reasonable jury may have believed it." Lee, 899 So.2d at 354-55 (quoting Light, 796 So.2d at 617 ).

Here, Campbell's testimony at the hearing as well as the trial transcript attached to the postconviction court's order establishes that Campbell's knowledge of and control over the drugs was the only disputed issue at trial. Mr. McKenzie's and Ms. Campbell's testimony "could possibly have provided the incremental amount of reasonable doubt necessary to win an acquittal"; certainly, their testimony would have been critical to the only defense presented. See Balmori, 985 So.2d at 651 ; see also McClellan v. State, 112 So.3d 754, 755 (Fla. 2d DCA 2013) ("The employer's testimony had the potential to corroborate McClellan's testimony, strengthen his credibility, and kindle reasonable doubt in the minds of the jurors.").

Mr. McKenzie's testimony as to his presence in the vehicle on the day Campbell was arrested was consistent internally and with Ms. Campbell's. Cf. Mosley v. State, 209 So.3d 1248, 1263 (Fla. 2016) (affirming denial of postconviction relief where testimony was internally inconsistent and conflicted with the State's witnesses' testimony). The jury in this case heard the testimony of the arresting officer and was instructed on the presumption in favor of the State; no evidence tending to rebut that presumption was presented, and in fact, Campbell's trial counsel argued an erroneous legal standard. Cf. Cabrera, 766 So.2d at 1134 ("We reject, however, the legal conclusion that the decision to forego this defense was a reasonable trial tactic when defense counsel acknowledged that it was legally available and that there was no other defense to present.").

Where counsel fails to present evidence supporting the defense or otherwise fails to support the defense argued such that the court's "confidence in the outcome of the proceedings has been undermined," prejudice has been established. See Lee, 899 So.2d at 349 (reversing for a new trial where counsel failed to present an adequate defense); cf. Platt v. State, 697 So.2d 989, 991 (Fla. 4th DCA 1997) ("The failure of defense counsel to request an instruction ... has been deemed to be an 'unreasonable omission which severely prejudiced his client's case' where the error complained of 'negated the only defense put forth by trial counsel.' " (quoting Spaziano v. State, 522 So.2d 525, 527 (Fla. 2d DCA 1988) ) ). "[T]he failure to pursue the [available] defense constituted ineffective assistance of counsel because 'defense counsel, by [her] substandard performance, deprived defendant of his sole defense and the opportunity to corroborate the defense ...." Cabrera, 766 So.2d at 1134 (second alteration in original) (quoting Stephens v. State, 748 So.2d 1028, 1035 (Fla. 1999) ); see also Dames v. State, 807 So.2d 756, 758 (Fla. 2d DCA 2002) (reversing for a new trial where counsel was ineffective for "stat[ing] a defense and then fail[ing] to introduce evidence in support of the defense"); Honors v. State, 752 So.2d 1234, 1236 (Fla. 2d DCA 2000) (concluding that both prongs of Strickland had been met where "defense counsel failed to secure the attendance of an exculpatory witness in a circumstantial evidence case" and the witness's testimony "would have cast doubt on the only evidence linking Honors to the crime").

Accordingly, we affirm in part and reverse in part the postconviction order denying Campbell's rule 3.850 motion. Our reversal in part necessitates a new trial on the trafficking charges and possession of a controlled substance charge; Campbell's conviction and sentence for misdemeanor possession of marijuana are unaffected by our decision.

Affirmed in part; reversed in part; remanded with instructions.

MORRIS and BADALAMENTI, JJ., Concur.

      Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-7971
    NO. 2018-BA-0693
    Supreme Court of Louisiana.
    June 15, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the diagnostic monitoring agreement he signed with the Judges and Lawyers Assistance Program ("JLAP") on April 23, 2018.

2. The period of this conditional admission shall coincide with the period of petitioner's JLAP agreement. However, petitioner's conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel ("ODC").

4. Upon the expiration of the term of petitioner's JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner's progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner's continued participation in JLAP.

5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

CLARK, J., would deny conditional admission.


author: PER CURIAM:

text:
    STATE of Louisiana v. Fahim A. SHAIKH
    No. 2017-K-2178
    Supreme Court of Louisiana.
    June 15, 2018
    ON WRIT OF CERTIORARI TO THE THIRD CIRCUIT COURT OF APPEAL, PARISH OF BEAUREGARD
   PER CURIAM:

Writ granted. In its ruling finding the sentence for indecent behavior with a juvenile excessive, the court of appeal did not find the sentence to be grossly disproportionate to the severity of the offense. See generally State v. Bonanno , 384 So.2d 355, 357 (La. 1980). It only found that the sentence equaled or exceeded sentences imposed in other cases that it found to present more severe facts. It provided no other reason for vacating the sentence, and this comparison alone does not demonstrate a manifest abuse of discretion on the part of the trial court. Moreover, it is important to note that while defendant received the maximum sentence, the trial court suspended over 40% of that sentence and ordered it to run concurrently with the sentence for defendant's simple kidnapping conviction. Thus, defendant will likely serve far less than the seven years imposed. Under the circumstances, defendant failed to show that the trial court abused its broad discretion in sentencing. Therefore, the judgment of the court of appeal is reversed, and defendant's sentence for indecent behavior with a juvenile is reinstated.

REVERSED

Hughes, J., would deny.


author: PER CURIAM WEIMER, J., dissenting.

text:
    Kevin COOLIDGE v. Austin BUTLER, dba Austin's Auto Salvage
    No. 2018-C-0313
    Supreme Court of Louisiana.
    June 27, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, OFFICE OF WORKERS' COMPENSATION, DISTRICT 1E
   PER CURIAM

For the reasons assigned in our opinion in Angela Jackson v. Family Dollar Stores of Louisiana, Inc., et al. , 18-0170 (La. 6/27/18), --- So.3d ----, 2018 WL 3154628, the judgment of the court of appeal is affirmed insofar as it determined it had jurisdiction to consider this devolutive appeal, although it could not entertain the appeal until the bond was posted. The case is remanded to the court of appeal to determine whether the bond has been posted and, if so, to consider the appeal on the merits.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed insofar as it determined it had jurisdiction over this devolutive appeal. The case is remanded to the court of appeal for further proceedings consistent with this opinion.

JOHNSON, Chief Justice, dissents and assigns reasons.

In this case, Kevin Coolidge, was injured in the course and scope of his employment as a mechanic with Austin Butler d/b/a Austin's Auto Salvage ("Austin"). On June 29, 2016, the OWC awarded him benefits, including medical expenses, temporary total disability, and supplemental earnings benefits, and assessed sanctions and attorney's fees against Austin. On August 29, 2016, Austin filed a motion for appeal and the OWC signed the order on September 1, 2016. Neither the motion nor the order specified the type of appeal, and Austin did not request that a bond be set. On September 2, 2016, the OWC issued a notice of appeal indicating the appeal was devolutive. No appeal bond was set. On November 28, 2016, claimant filed the instant motion to dismiss the appeal as untimely based on Austin's failure to post an appeal bond in accordance with La. R.S. 23:1310.5(C). The Court of Appeal granted claimant's motion and dismissed Austin's appeal as premature. The court remanded the case to the OWC for the setting of a bond in compliance with La. R.S. 23:1310.5(C).

I disagree with the majority's holding that the court of appeal has jurisdiction to consider this devolutive appeal. I respectfully dissent for the reasons I assigned in my dissent this day in Angela Jackson v. Family Dollar Stores of Louisiana , Inc., et al. , 18-0170 (La. 6/27/18), --- So.3d ----, 2018 WL 3154628 (J, dissenting).

WEIMER, J., dissenting.

I respectfully dissent for the reasons assigned in my dissent in Angela Jackson v. Family Dollar Stores of Louisiana, Inc., et al. , 18-0170 (La. 6/ /18), --- So.3d ----, 2018 WL 3154628.

CRICHTON, J., additionally concurs and assigns reasons:

I additionally concur for the reasons assigned in Angela Jackson v. Family Dollar Stores of Louisiana, Inc., et al. , 18-0170 (La. 6/27/18), --- So.3d ----, 2018 WL 3154628.