author: May, J.

text:
    Clinton JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-845
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant challenges the denial of his motion for downward departure and his sentence. He argues the trial court erred in denying his motion for downward departure and that errors in the scoresheet require a resentencing. We agree in part. We affirm the order denying the downward departure motion without further comment. But, a few technical, but significant, scoresheet errors require us to reverse the defendant's sentence and remand the case for resentencing.

The defendant was on drug offender probation for a drug charge. He entered a no contest plea to violating his probation by committing new offenses and to the new offenses of armed kidnapping and robbery with a weapon. The State proffered a factual basis for the plea.

In short, three men entered an AT & T store and robbed an employee of numerous cell phones. They bound the victim's wrists behind her, and ordered her to stay facing the wall. Just before leaving, one of the codefendants pepper sprayed the victim.

Shortly after this robbery, another similar robbery occurred at a T-Mobile store. The surveillance video from that robbery was released to the media, which led to a Crime Stoppers tip identifying four perpetrators; one of them was the defendant. The T-Mobile incident was prosecuted separately from the AT & T incident, case no. 13-233.

The defense stipulated to the factual basis proffered by the State, but added that the codefendants played more egregious roles in the offenses. Defense counsel acknowledged the law on principals. The judge responded: "[i]t's as if he was he was doing everything that the other actors did. The only thing I can't impose is minimum mandatories if firearms were used."

The scoresheet calculated the defendant's lowest permissible sentence as 122.55 months or approximately 10.2 years. The defendant moved for a downward departure. He argued that he did not possess a weapon and played only a minor part in the armed robbery. He argued that the crime for which he was on probation was non-violent. He claimed he was eligible for a downward departure because he was too young to appreciate the consequences of his actions. The trial court denied the motion.

The court sentenced the defendant to fifteen years in prison with credit for time served in case no. 13-233. The court revoked the defendant's probation and sentenced him to concurrent fifteen years in prison with credit for time served.

In his third motion to correct sentencing error, the defendant argued his scoresheet incorrectly ranked his armed kidnapping offense as a Level 10 instead of a Level 9 offense because he was not in actual possession of a weapon. He argued that ranking the offense too high and assessing victim injury points, without a jury finding that he possessed a weapon or that the victim suffered an injury, violated his Sixth Amendment rights. Finally, he argued the judgment in case no. 13-233 referenced an incorrect statute and contained a scrivener's error.

The State responded there were no scoresheet errors and only the scrivener's error needed to be corrected. The motion was deemed denied when the trial court failed to rule within 60 days. The defendant now appeals.

On appeal, the defendant continues to argue the scoresheet improperly classified him as a principal, ranking his primary offense one level too high, which resulted in the imposition of twenty-four extra points. He also disputes the added victim injury points because he claims the record does not support a finding of physical injury. And, the defendant argues the addition of these points violates his Sixth Amendment right. The defendant suggests the use of the inaccurate scoresheet was not harmless. He requests that we reverse and remand for a new sentencing.

The Scoresheet Errors

Level of Offense

Kidnapping is a first degree felony, punishable up to life and is ranked as a level nine offense. §§ 787.01(2); 921.0022(3)(i), Fla. Stat. (2018). Section 775.087(1), Fla. Stat. (2018), provides for reclassification of felonies when a weapon or firearm is involved. The statute provides that: "[f]or purposes of sentencing under chapter 921 ..., a felony offense which is reclassified under this section is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the felony offense committed." § 775.087(1).

However, our supreme court has held that "when a defendant is charged with a felony involving the 'use' of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony." State v. Rodriguez , 602 So.2d 1270, 1272 (Fla. 1992). Here, the State admitted the defendant was never in possession of a weapon.

The scoresheet therefore should have reflected the primary offense as a level nine, instead of a level ten, offense. The defendant should have been assessed 92 points instead of 116 points. This is a difference of twenty-four (24) points.

Victim Injury Points

Section 921.0021(7)(a), Fla. Stat. (2018) defines "victim injury" as "the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense."

The defendant argues the record does not support adding slight victim injury points. He suggests the victim only had her hands bound by a zip tie and was pepper sprayed on the side of her face. Contrary to the victim's testimony from the other robbery, this victim did not describe physical injuries suffered from the pepper spray or restraints.

The State responds that the victim's testimony was sufficient for the assessment of victim injury points. See Green v. State , 496 So.2d 256, 259 (Fla. 5th DCA 1986). Pepper spray is considered a chemical weapon, except when used for self-defense. § 790.001(3)(b), Fla. Stat. (2018). And, the court specifically commented on the potential damaging effect of pepper spray. The State further suggests that even if the victim injury points were error, the error was harmless. See Davis v. State , 711 So.2d 1314, 1314 (Fla. 2d DCA 1998).

The victim's testimony was short, but sufficient to support the allocation of slight victim injury points. There was no error in adding slight victim injury points.

Resentencing and Correction of Errors

"[I]t is essential for the trial court to have the benefit of a properly calculated scoresheet when deciding upon a sentence...." State v. Anderson , 905 So.2d 111, 118 (Fla. 2005). "When a scoresheet error is challenged on direct appeal, the error 'is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.' "

Chambers v. State , 217 So.3d 210, 213 (Fla. 4th DCA 2017) ) (quoting Brooks v. State , 969 So.2d 238, 241 (Fla. 2007) ).

First, both the defendant and State agree that the judgment contains a scrivener's error in the statute referenced. The judgment references § 787.01(a), Fla. Stat (2017), but it should read § 787.01(1)(a), Fla. Stat. (2017). That error needs correction.

Second, the judgment incorrectly references § 775.087. That enhancement section applies only when the defendant is in actual possession of a weapon or firearm. Once again, the defendant and State agree the defendant was not in actual possession of a weapon or firearm. And, while we disagree with the defendant on the addition of victim injury points, the State cannot establish the court would have imposed the same sentence absent the twenty-four (24) points added for the weapon enhancement.

Finally, the record fails to reflect a written order on the court's revocation of probation. "If a trial court revokes a defendant's probation, the court is required to render a written order noting the specific conditions of probation that were violated." King v. State , 46 So.3d 1171, 1172 (Fla. 4th DCA 2010). While the trial court orally pronounced its revocation of the defendant's probation based on the new law violations, there is no written order revoking probation in the record. Both the defendant and the State agree, the error should be corrected.

Reversed and remanded for a new sentencing hearing and correction of the scrivener's error .

Gross and Conner, JJ., concur.

      The State responds the scoresheet issues were not preserved, and even if they were, any error was harmless. We disagree with the State. The defendant's 3.800(b) motion specifically raised the scoresheet issues; they were preserved. See Senger v. State , 200 So.3d 137, 144 (Fla. 5th DCA 2016).

      We find no merit in the defendant's attempt to raise these issues to a constitutional level.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Steven GOODSTEIN, as Personal Representative of the Estate of Andrew Scott Goodstein, Appellant, v. Shelley GOODSTEIN, as Conservator for Blake Goodstein and Chandler Goodstein, and Grant Goodstein, Appellees.
    No. 4D18-2382
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    George L. Sigalos and Jennifer B. Carroll of Simon & Sigalos, LLP, Boca Raton, and Jay Kauffman of Day Pitney/Chapin Ballerano & Cheslack, Delray Beach, for appellant.
    Jenna G. Rubin, Norman A. Fleisher, and Jacob W. Warren of Gutter Chaves Josepher Rubin Forman Fleisher Miller P.A., Boca Raton, for appellees.
   Per Curiam.

Steven Goodstein, personal representative ("P.R.") for Andrew Goodstein's estate, appeals the trial court's non-final orders granting the beneficiaries' petition to designate a trust company as a depository for estate assets. The P.R. argues that the court erred by granting the petition based upon a local policy without finding "other cause" under section 69.031(1), Florida Statutes (2017). We affirm because the record provides support for a restricted depository, but we reprove any local policy that presumes the need for a restricted depository in all cases. Whether there is cause for a restricted depository should be decided on a case-by-case basis.

The decedent, Andrew, was survived by an adult son and two minor children ("the beneficiaries"). The will named the Andrew's father, Steven, the P.R. The beneficiaries initially objected, but then mediated a settlement agreeing to Steven's appointment. Subsequently, they complained that by restricting information about estate assets he did not comply with the terms of their agreement. The beneficiaries then petitioned for an order designating a restricted depository for the assets.

The petition cited two grounds for a restricted depository. First, the beneficiaries believed that a recently-enacted local policy required restricted depositories in all probate cases, and Andrew's estate avoided the requirement only because it opened before the policy started. Second, the beneficiaries disputed the P.R.'s marshalling and expenditure of estate assets. At the hearing, they also requested a depository because of the litigious nature of the case.

The trial court agreed that restricted depositories were a matter of course in all probate cases in its jurisdiction, pursuant to local policy. It explained that the policy was intended to prevent assets from pouring out during probate administration. The court believed the policy also reduced expenses and increased productivity by encouraging attorneys to resolve cases more quickly. Therefore, it granted the beneficiaries' petition and entered a separate order designating a depository. The court was willing to reconsider the order if the use of a restricted depository increased litigation or became problematic.

Given that the issue on appeal turns on the interpretation of a statute as it relates to a local policy, this court utilizes a de novo standard of review. See J.M. v. Gargett , 101 So.3d 352, 356 (Fla. 2012). To interpret a statute, this court primarily looks to the plain meaning of the statute, and if the language is clear and unambiguous, then the language controls. See id.

According to section 69.031(1) :

When it is expedient in the judgment of any court having jurisdiction of any estate in process of administration by any guardian, curator, executor, administrator, trustee, receiver, or other officer, because the size of the bond required of the officer is burdensome or for other cause, the court may order part or all of the personal assets of the estate placed with a bank, trust company, or savings and loan association ... designated by the court ....

(Emphasis added).

The emphasized language makes it clear and unambiguous that a blanket policy providing for a depository to be used in all probate cases is improper. See e.g. , Sarasota All. for Fair Elections, Inc. v. Browning , 28 So.3d 880, 886 (Fla. 2010) ("A local government enactment may be inconsistent with state law if (1) the Legislature 'has preempted a particular subject area' or (2) the local enactment conflicts with a state statute." (quoting Lowe v. Broward Cty. , 766 So.2d 1199, 1207 (Fla. 4th DCA 2000) ) ). Under the statute, there are only two situations in which a court may order a restricted depository be used: (1) when the size of the bond required of the administrator or other officer is burdensome or (2) "for other cause." See § 69.031(1). Trial courts must look at each case carefully to determine whether it falls under one of these two situations.

Considering the application of section 69.031(1) to this case, no bond was required; however, the record presented grounds for the trial court to properly find "other cause" requiring a restricted depository. There is no dispute that the estate has significant assets, and the trial court believed the general goals of the local policy applied to preserve the assets and encourage efficient administration. Further, at the time of the hearing, neither the beneficiaries nor trial court knew how estate assets were being spent. It is also notable that the court repeatedly agreed that it would reconsider the depository requirement if necessary. Lastly, the record evidenced great tension between the P.R. and beneficiaries due to the parties' litigiousness-which included a lawsuit concerning the P.R.'s failure to timely provide information about estate assets. Thus, the circumstances provided support for a restricted depository due to "other cause."

Accordingly, we affirm the designation of a depository in this case, but admonish the trial court that it may not have a blanket policy requiring restricted depositories in all cases. "Other cause" for a restricted depository must be considered on a case-by-case basis. See § 69.031(1).

Affirmed.

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


text:
    Joyce T. DOLPHIN, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D18-3262
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Joyce T. Dolphin and Richard E. Linn, Authorized Representative, West Palm Beach, pro se.
    No brief filed for appellee.
   Per Curiam.

Affirmed . See Fla. R. App. P. 9.315(a).

Gross, Ciklin and Taylor, JJ., concur.


author: Klingensmith, J.

text:
    E.G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3957
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant E.G., a minor, appeals the trial court's disposition order adjudicating him delinquent for grand theft and sentencing him to placement in a residential commitment program concurrent with his sentence in other cases. Specifically, he claims the trial court erred by failing to consult a predisposition report (PDR) prior to issuing the commitment order, as required by Florida Statutes. We agree, and reverse.

After the trial court adjudicated appellant delinquent, it moved to the matter of disposition. The trial court noted appellant was serving a prior commitment and had a new case direct-filed in adult court. The State asked the court for a concurrent sentence with placement in a residential commitment program. The trial court considered ordering a PDR but did not do so:

THE COURT: I'm going to set sentencing.
[THE STATE]: Yes, sir.
THE COURT: [Counsel for Department of Juvenile Justice], I'm thinking should I order PDR and staffing because I'm confused. Because the State's got an intent to direct file. We're talking about AMI.
....
[DEFENSE COUNSEL]: If I could speak briefly, Your Honor. I do believe that if a PDR is done, I know it's our office's position is that-intent to direct file-that should not be considered at that time. And where you can consider that at sentencing, Your Honor.

The court set a disposition date for two weeks later where the following exchange between the trial court and appellant ensued:

THE COURT: [Appellant], you need to ask me to lock you up in a Level 6 because right now that prosecutor is trying to put you away for two or three years in state prison. Ask me to give you six to nine months in a juvenile facility to get the help you need. Ask me, [appellant].
APPELLANT: Can you give me a Level 6 so I can get the help I need?
THE COURT: Yes, sir. You want to hide out. I'm going to do the best I can. I'm transferring you to a level 6 but that adult judge may ignore that and just go ahead and lock you up in state prison. But it makes it difficult when you hiding out for them to haul you back, you understand-
APPELLANT: Yes, sir.
THE COURT: -from a rehab facility and stick you in state prison. You want the judge to have to struggle.

The trial court committed appellant to a non-secure residential program to be followed by probation. This appeal followed.

"It is well established that courts must strictly comply with the statutory procedures surrounding a juvenile disposition hearing." K.P. v. State , 97 So.3d 966, 967 (Fla. 4th DCA 2012) (quoting K.D. v. State , 911 So.2d 885, 886 (Fla. 1st DCA 2005) ).

Section 985.43(1)(a), Florida Statutes (2017), provides that a predisposition report is required when a trial court anticipates residential commitment:

(1) Upon a finding that the child has committed a delinquent act:
(a) The court may order the department to prepare a predisposition report regarding the child's eligibility for disposition other than by adjudication and commitment to the department or for disposition of adjudication, commitment to the department, and, if appropriate, assignment of a residential commitment level. The predisposition report shall be the result of the multidisciplinary assessment, when such assessment is needed, and of the classification and placement process, and it shall indicate and report the child's priority needs, recommendations as to a classification of risk for the child in the context of his or her program and supervision needs, and a plan for treatment that recommends the most appropriate placement setting to meet the child's needs with the minimum program security that reasonably ensures public safety. A predisposition report shall be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department.

(Emphasis added); accord K.P. , 97 So.3d at 967. Failure to consider a predisposition report before disposition is reversible error. See M.B. v. State , 720 So.2d 321, 321 (Fla. 4th DCA 1998). "The requirement of a PDR may be waived, but only if a trial court informs the juvenile of his rights and confirms the juvenile understands the significance of the waiver." B.B. v. State , 718 So.2d 399, 399 (Fla. 4th DCA 1998).

The record is clear that the trial court did not order a PDR, nor did it advise appellant of his rights or the significance of waiving them. See id. Further, the court did not explain to appellant on the record what a level 6 facility was so that he could be adequately apprised of what kind of placement he was being coerced into "asking" for. Even though the trial court obviously believed that this placement was in appellant's best interests, appellant's pressured acquiescence to his level 6 placement at the disposition hearing did not constitute a valid waiver of the PDR. We recognize the trial court appeared to be trying to assist appellant in dealing with his current and future issues in the justice system; nonetheless, the trial court erred in failing to order a PDR as required by section 985.43(1)(a), given that it anticipated ordering appellant to residential commitment from the outset.

We affirm without comment the appellant's adjudication of delinquency, but reverse and remand for a new disposition hearing before a different judge to be conducted consistent with this opinion. We take no position on the ultimate disposition to be ordered by the successor judge in this case, and leave that to his or her sound discretion.

Affirmed in part, reversed in part and remanded for new disposition hearing .

May and Levine, JJ., concur.


author: Forst, J.

text:
    Adam Richard CLARKE, Appellant, v. Kinsley Elizabeth STOFFT, Appellee.
    No. 4D18-106
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Christopher R. Bruce and Rosalie M. Cruz of Bruce Law Firm, P.A., West Palm Beach (withdrawn as counsel after filing briefs), for appellant.
    Ralph T. White of Law Office of R.T. White, Palm Beach Gardens, for appellee.
   Forst, J.

Adam Clarke, the husband, appeals from a final judgment of dissolution of marriage. We find merit only in his argument that the trial court erred in giving Kinsley Stofft, the wife, ultimate decision-making authority over "all major decisions affecting the welfare of the child[ren]" without specifying the areas over which the wife could exercise that authority. We therefore reverse that aspect of the judgment. In all other respects we affirm.

Regarding parental responsibility, the final judgment incorporated a parenting plan, which states in relevant part:

Shared Parental Responsibility with Ultimate Decision Making Authority
It is in the best interest of the children that the parents confer and jointly make all major decisions affecting the welfare of the child. Major decisions include, but are not limited to, decisions about the children's education, healthcare, and other responsibilities unique to the family. If the parents cannot agree as to any major decision; the Mother shall have ultimate decision-making authority.

(Underline emphasis added).

The husband argues that the open-ended language in the above provision with respect to the wife's ultimate decision-making authority is contrary to Florida law. This argument has merit, and our decision in McClure v. Beck , 212 So.3d 396 (Fla. 4th DCA 2017), is dispositive. See also Seligsohn v. Seligsohn , 259 So.3d 874, 2018 WL 6204111 (Fla. 4th DCA Nov. 28, 2018).

In McClure , we held that, while "giving one parent ultimate authority over specific matters in situations where the parties are unable to come to an agreement is allowed," "[t]he final judgment must ... delineate the 'specific aspects of the child's welfare' over which the parent shall have ultimate responsibility to comply with section 61.13(2)(b)2.a. [now codified as section 61.13(c)2.a.], Florida Statutes." 212 So.3d at 398 (citing and quoting Schneider v. Schneider , 864 So.2d 1193, 1194-95 (Fla. 4th DCA 2004) ).

The trial court's final judgment in McClure mandated that the parties confer and attempt to agree on all major decisions affecting the welfare of the children, specifying that "Major decisions include, but are not limited to , decisions about the children's education, healthcare, and other responsibilities unique to this family . If the parties are unable to agree[,] the Father shall have ultimate decision-making authority." 212 So.3d at 398. We held that such a directive:

fails to specify concrete aspects of the children's lives that the [designated parent] will have ultimate decision-making authority over. By using the phrase, "include, but are not limited to," the court left the [designated parent's] decision-making authority open-ended. This problem is compounded by the additional language: "and other responsibilities unique to this family." This leaves open all decisions affecting the children.

Id.

Here, the final judgment similarly "failed to identify specific areas over which the [wife] had final decision-making authority." Id. at 399. Accordingly, we reverse and remand for the trial court to address this issue. See id. "On remand, any award of ultimate decision-making authority must be limited to specific decisions and those decisions must be expressly listed in the final judgment." Seligsohn , 259 So.3d at 877.

The husband also attempts to challenge various restrictions imposed on his timesharing in the parenting plan. However, the wife testified at trial that the parenting plan was exactly what the parties had discussed and agreed upon at their mediation just ten days prior. The trial court found all of the wife's testimony to be credible. Furthermore, the parenting plan was entered into evidence without objection by the husband because the husband failed to appear at trial-despite having notice of the proceedings. The husband, therefore, cannot now complain that the trial court reversibly erred by adopting the parenting plan offered by the wife.

Affirmed in part, reversed in part and remanded.

Gerber, C.J., and Klingensmith, J., concur.


author: Kuntz, J.

text:
    Willie PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-460
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

Willie Perry appeals a circuit court order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. In his motion, Perry argued his 65-year prison sentences for armed kidnapping, carjacking with a firearm, and sexual battery on a victim 12 years or older were de facto life sentences and illegal under recent case law and sections 775.082(3)(c) and 921.1402(2)(d), Florida Statutes (2014). Bound by Kelsey v. State , 206 So.3d 5 (Fla. 2016), we reverse and remand for resentencing.

In 2013, the circuit court ordered a third sentencing hearing pursuant to Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). After a non-evidentiary hearing, the court resentenced Perry to concurrent terms of 65 years in prison with a 10-year mandatory minimum for armed kidnapping and carjacking with a firearm, and a concurrent term of 65 years in prison for sexual battery.

Perry filed a rule 3.800(a) motion, arguing that his sentences were de facto life sentences and that he was entitled to resentencing under chapter 2014-220, Laws of Florida, which has been codified at sections 775.082, 921.1401, and 921.1402, Florida Statutes.

On appeal, Perry argues case law following his resentencing shows he is entitled to relief. See, e.g. , Kelsey , 206 So.3d at 5. In Kelsey , the defendant was a juvenile when he committed armed sexual battery, armed burglary, and armed robbery. Id. at 6-7. Kelsey's original life sentence was declared unconstitutional under Graham , and the circuit court resentenced him, before July 1, 2014, to concurrent sentences of 45 years in prison. Id. at 7. After the legislature enacted chapter 2014-220, Kelsey moved for resentencing. Id. at 8. In resolving the case, our supreme court rephrased the certified question:

Is a defendant whose original sentence violated Graham v. Florida , 560 U.S. 48 [130 S.Ct. 2011, 176 L.Ed.2d 825] (2010), and who was subsequently resentenced prior to July 1, 2014, entitled to be resentenced pursuant to the provisions of chapter 2014-220, Laws of Florida?

Id. at 6. The court answered the question in the affirmative. Id. ; see also id. at 8 ("[A]ll juveniles who have sentences that violate Graham are entitled to resentencing pursuant to chapter 2014-220, Laws of Florida, codified in sections 775.082, 921.1401 and 921.1402, Florida Statutes (2014)."). While the court has clarified its post- Graham jurisprudence, see, e.g. , Franklin v. State , 258 So.3d 1239, 2018 WL 5839174 (Fla. Nov. 8, 2018) ; State v. Michel , 257 So.3d 3 (Fla. 2018), it has not receded from the holding in Kelsey .

The question answered in Kelsey controls our disposition here. The circuit court concluded that Perry's sentence violated Graham . As a result, Perry was resentenced. But he was resentenced before July 1, 2014. Thus, under the Florida Supreme Court's holding in Kelsey , Perry has a right to be resentenced pursuant to the provisions of chapter 2014-220, codified at sections 775.082 and 921.1402, Florida Statutes (2014).

Reversed and remanded for resentencing .

Gerber, C.J., and Forst, J., concur.

      We issued written opinions regarding Perry's conviction on two prior occasions. See Perry v. State , 973 So.2d 1289, 1290 (Fla. 4th DCA 2008) ("We therefore affirm Perry's convictions but reverse for re-sentencing as to the consecutive ten-year mandatory minimum sentences for armed kidnapping and carjacking with a firearm."); Perry v. State , 900 So.2d 755, 757 (Fla. 4th DCA 2005) ("We direct the trial court to permit Perry to withdraw his plea.").

      The earlier decision that Perry's sentence violated Graham is not the subject of this appeal. We affirmed the court's order determining Perry's sentence violated Graham . Perry v. State , 187 So.3d 1258 (Fla. 4th DCA 2016).


text:
    Tony Moore HICKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3235
    District Court of Appeal of Florida, Fourth District.
    [January 23, 2019]
    Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Paul Patti III, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant appeals the revocation of his probation raising multiple issues on appeal. We affirm all issues. However, we remand with instructions for the trial court to correct the written revocation order to conform to the trial court's oral pronouncement, which found two grounds for revocation: felon in possession of a firearm and felon in possession of ammunition. See Walker v. State , 243 So.3d 1013 (Fla. 4th DCA 2018). We also remand with instructions for the trial court to enter a corrected written order, consistent with the trial court's oral pronouncement, finding that appellant poses a danger to the community. See Arnone v. State , 204 So.3d 556, 557 (Fla. 4th DCA 2016).

Affirmed and remanded with instructions.

Gross, Levine and Forst, JJ., concur.


text:
    Kevin NELMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3089
    District Court of Appeal of Florida, Fourth District.
    [January 23, 2019]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Kevin Nelms was convicted of first-degree murder in 1985 for a crime he committed as a juvenile. He was originally sentenced to life in prison with the possibility of parole after twenty-five years, but after postconviction proceedings, he was resentenced to life in prison with judicial review after twenty-five years. He now appeals the new sentence imposed at resentencing. We affirm.

In August 2016, Nelms filed a motion for postconviction relief requesting a resentencing hearing based on Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding that the Eighth Amendment is violated when a court imposes on a juvenile homicide offender a mandatory sentence of life in prison without the possibility of parole), and Atwell v. State , 197 So.3d 1040 (Fla. 2016) (holding that under Florida's existing parole system, a sentence of life with the possibility of parole after twenty-five years is indistinguishable from a life without parole sentence because Florida's parole system does not provide for individualized consideration of a juvenile's status at the time of the offense).

After granting the postconviction motion, the trial court held a two-day hearing, during which the court heard testimony from numerous state witnesses regarding the heinous nature of the murder and from multiple defense witnesses regarding Nelms' rehabilitation in prison. At the end of the hearing, the court resentenced Nelms to life in prison, with judicial review after twenty-five years, pursuant to chapter 2014-220, Laws of Florida, as codified in sections 775.082, 921.1401, and 921.1402 of the Florida Statutes. The court's order noted that Nelms could be paroled prior to the date of the scheduled judicial review.

On appeal, Nelms argues that his new sentence violates the Eighth Amendment as established in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), because it does not afford him a meaningful opportunity for release and because the trial court did not find that he was incorrigible or irredeemably corrupt to support the imposition of a life sentence.

We review the constitutionality of a sentence de novo. St. Val v. State , 174 So.3d 447, 448 (Fla. 4th DCA 2015).

The Eighth Amendment's ban against cruel and unusual punishment is implicated under Graham "when a juvenile nonhomicide offender's sentence does not afford any 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,' " because "the Eighth Amendment will not tolerate prison sentences that lack a review mechanism for evaluating this special class of offenders for demonstrable maturity and reform in the future because any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult." Henry v. State , 175 So.3d 675, 679-80 (Fla. 2015) (citing Graham , 560 U.S. at 70-71, 75, 130 S.Ct. 2011 ).

Under Miller , a violation occurs when a court imposes on a juvenile offender a mandatory sentence of life in prison without the possibility of parole in a homicide case. Horsley v. State , 160 So.3d 393, 399 (Fla. 2015) (citing Miller , 567 U.S. at 489, 132 S.Ct. 2455 ). "The opportunity for release will be afforded to those who demonstrate the truth of Miller 's central intuition-that children who commit even heinous crimes are capable of change." Montgomery , 136 S.Ct. at 736. However, Miller does not absolutely foreclose a court from imposing a life sentence in a juvenile homicide case. Horsley , 160 So.3d at 398-99 (citing Miller , 567 U.S. at 479-80 & n.8, 132 S.Ct. 2455 ). Instead, Miller requires the court to first consider the juvenile offender's "youth and attendant characteristics" before imposing the uncommon sentence of life without parole, which is reserved for only the "rare" juvenile offender "whose crime reflects irreparable corruption." Horsley , 160 So.3d at 399 (quoting Miller , 567 U.S. at 479-80, 483, 132 S.Ct. 2455 ).

It is settled that resentencing in accordance with chapter 2014-220, Laws of Florida, is the appropriate remedy for a sentence that violates Miller . See Horsley , 160 So.3d at 405 (concluding that "applying chapter 2014-220, Laws of Florida, to all juvenile offenders whose sentences are unconstitutional under Miller is the appropriate remedy"). Here, after the court found that Nelms' 1985 sentence violated Miller based on Atwell , the remedy was to resentence him pursuant to chapter 2014-220, which the court did. Nelms' new sentence was not a life sentence without the possibility of parole or without an opportunity for release based on maturation and rehabilitation, which places this case outside the apparent boundaries of Graham , Miller , and Montgomery . In addition, because the resentencing court did not impose the uncommon sentence of life without parole, the court did not need to find that Nelms was the rare juvenile whose crime reflects incorrigibility or irreparable corruption. Nelms was sentenced to life in prison with judicial review after twenty-five years, in accordance with chapter 2014-220. Because such a sentence offers an opportunity for release and cannot be found to be tantamount to a sentence of life in prison without the possibility of parole, Nelms' sentence does not violate Graham , Miller , and similar cases.

We recently affirmed a defendant's life sentence imposed after the court granted him a resentencing hearing and provided for judicial review in twenty-five years. See Cutts v. State , 225 So.3d 244 (Fla. 4th DCA 2017). In Cutts , the defendant was initially sentenced in 1997 to life without parole for first-degree murder. Id. at 245. He moved for resentencing in light of Miller , and the state conceded that he was entitled to a new sentencing hearing as a matter of law. Id. After granting the defendant a new sentencing hearing pursuant to Miller , the trial court held a hearing wherein it considered witnesses' testimony on the defendant's behalf, the defendant's remorse, and the criteria set out in section 921.1401, Florida Statutes, before imposing the new sentence of life in prison with review after twenty-five years. Id. On appeal, the defendant argued that his new sentence violated the Eighth Amendment's prohibition on cruel and unusual punishment. Id. at 244. We disagreed and affirmed the new sentence, noting that the trial court had made express findings in accordance with section 921.1401. Id. However, we remanded for the trial court to include those findings in the written sentencing order. Id. at 244-45.

Similarly, we affirm Nelms' life sentence with review after twenty-five years, which was imposed upon resentencing. Here, in addition to considering witnesses' testimony and Nelms' remorse, the resentencing court considered the criteria set forth in section 921.1401, Florida Statutes, made express findings, and reduced those findings to writing in its resentencing order, as required by section 775.082(1)(b) 3., Florida Statutes.

We further note that Nelms' reliance on Atwell is misplaced. Recently, the Florida Supreme Court held that a juvenile offender's sentence of life with the possibility of parole after twenty-five years does not violate the Eighth Amendment as described in Graham and Miller , and thus, a juvenile offender who receives such a sentence is not entitled to resentencing under section 921.1402, Florida Statutes. State v. Michel , 257 So.3d 3 (Fla. 2018). In so ruling, the Michel court departed from in its earlier Atwell decision, which had held that the juvenile's sentence of life with the possibility of parole was tantamount to a life without parole sentence under Florida's parole system, which failed to account for individualized sentencing considerations required for juvenile offenders. Atwell , 197 So.3d at 1041. As a result, even Nelms' seemingly more stringent initial sentence of life with the possibility of parole after twenty-five years would not now be considered a violation of Miller that would require resentencing under chapter 2014-220.

Accordingly, we hold that Nelms' current sentence does not violate either Graham or Miller and affirm his life sentence with judicial review after twenty-five years.

Affirmed.

Taylor, Ciklin and Conner, JJ., concur.

      However, as will be discussed in this opinion, Atwell was later abrogated in State v. Michel , 257 So.3d 3 (Fla. 2018).


author: Conner, J.

text:
    Timothy SHADE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-133
    District Court of Appeal of Florida, Fourth District.
    [January 23, 2019]
    Carey Haughwout, Public Defender, and Marcy Karr Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

Appellant, Timothy Shade, appeals his convictions and sentences for two counts of burglary involving a single entry of a dwelling. Appellant raises five issues on appeal. We affirm four of the issues without discussion. However, we agree with Appellant's argument that the trial court violated double jeopardy by convicting and sentencing him for two counts of burglary where there was only one entry. We reverse and remand for the trial court to (1) vacate the conviction and sentence on one count and (2) vacate the sentence on the other count and resentence Appellant on that count.

Background

Appellant was charged as follows: Count 1, armed burglary of a dwelling; Count 2, burglary of a dwelling with a battery; and Count 3, robbery with a deadly weapon. The matter proceeded to a jury trial.

The State's theory of the case was that Appellant and another intruder, whom the victim had seen before, burglarized her home. After the victim discovered the burglars in her home during her lunch break from work, Appellant pinned her against a wall, hit her with an object shaped like a knife in a leather case, and fled. When police arrived, the victim gave a statement and provided a description of the intruders. Appellant was later found, and the victim positively identified him during a show-up identification.

At the close of the State's case, Appellant argued that the two burglary charges should not go to the jury because allowing both would pose an issue of double jeopardy, and he requested that the trial court dismiss the second count. The trial court denied the request.

The jury returned its verdict finding Appellant guilty of burglary of a dwelling, as a lesser-included offense of armed burglary of a dwelling charged in Count 1, and guilty as charged of burglary of a dwelling with a battery as charged in Count 2. The jury found Appellant not guilty of robbery with a deadly weapon as charged in Count 3. Appellant was adjudicated guilty accordingly. His criminal punishment scoresheet listed Count 2 as the primary offense and burglary of a dwelling, a lesser-included offense of Count 1, as the additional offense. As to Counts 1 and 2, Appellant was sentenced as a habitual felony offender to concurrent terms of ten years in prison with credit for time served followed by concurrent terms of ten years of probation. After sentencing, Appellant gave notice of appeal.

Appellate Analysis

Appellant argues that the dual burglary convictions and sentences based on a single entry violate the constitutional prohibition against double jeopardy. The determination of whether double jeopardy is violated based upon undisputed facts is a pure question of law. Latos v. State , 39 So.3d 511, 513 (Fla. 4th DCA 2010). As such, the standard of review is de novo . Id.

Appellant correctly relies on Hawkins v. State , 436 So.2d 44 (Fla. 1983), in which our supreme court wrote:

Hawkins next contends that he should not have been found guilty of both burglary counts since each count charged the same crime, although one was grounded in an assault committed during the burglary and the other in carrying a deadly weapon. We agree with this assertion and reverse Hawkins' conviction on one charge of burglary because the two counts constituted the same statutory offense under section 810.02, Florida Statutes (1979).

Id. at 46.

As in Hawkins , Appellant here was charged with two burglaries, one asserting he committed a battery during the burglary and the other asserting he carried a deadly weapon. Although Appellant was not convicted of burglary with a deadly weapon, he was nevertheless convicted of a lesser-included burglary in Count 1, along with burglary with a battery as charged in Count 2. Thus, the dual convictions and sentences violate double jeopardy. See Coleman v. State , 956 So.2d 1254, 1255 (Fla. 2d DCA 2007) (determining that convictions and sentences for burglary of a dwelling with assault or battery and armed burglary of a dwelling violate double jeopardy, where there is only one entry); Trotman v. State , 545 So.2d 890, 891 (Fla. 4th DCA 1989) (determining that convictions and sentences for two counts of burglary, one alleging burglary with an assault and the other alleging burglary with a battery, violated double jeopardy where there was only one entry).

The State acknowledges Hawkins , but argues that dual burglary convictions are authorized by section 775.021(4)(b), Florida Statutes (2017), which provides:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4)(b), Fla. Stat. More specifically, the State argues that none of the exceptions in section 775.021(4)(b) apply to this case.

Although when considering the offenses as charged , the State's argument seems facially correct, the flaw in the State's argument is that for sentencing purposes, the trial court must consider the offenses for which Appellant was found guilty by the jury. Using the correct focal point, the State's argument has no merit, because the verdict for Count 1 (burglary of a dwelling) demonstrates it is also a lesser-included offense of Count 2 (burglary of a dwelling with a battery), where the statutory elements of the lesser offense are subsumed by the greater offense. Additionally, as found by the jury, one offense (Count 2) is a first-degree felony burglary, and the other offense (Count 1) is a second-degree felony burglary. Thus, sections 775.021(4)(b) 2. and 3. apply to this case. For that reason, we reject the State's argument and conclude the trial court improperly convicted Appellant of both counts of burglary where there was only one entry.

To remedy this error, one conviction and both sentences should be vacated, and where the sentencing scoresheet contains points for both convictions, the cause should be remanded for resentencing on the greater offense. Coleman , 956 So.2d at 1257.

Appellant argues that he is entitled to a new trial on the burglary charge because "two counts of the same crime were improperly sent to the jury." However, Appellant has not cited any authority for this argument and we reject the argument.

Because the sentencing scoresheet contains points for both burglary convictions, we reverse and remand for the trial court to vacate the conviction for Count 1 (burglary) and the sentences for both counts and to resentence Appellant as to Count 2 (burglary of a dwelling with a battery).

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

Gross and May, JJ., concur.


text:
    Matthew MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1990
    District Court of Appeal of Florida, Fourth District.
    [January 23, 2019]
    Carey Haughwout, Public Defender, and Claire V. Madill, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant appeals the order revoking his probation, raising six issues. We find all of the issues except one to be without merit and affirm without discussion. As to that issue, the state concedes, and we find, that appellant was on community control rather than probation at the time of the violation. We therefore remand for the trial court to correct the revocation order to reflect a violation of community control. See Gaston v. State , 698 So.2d 641 (Fla. 4th DCA 1997) ; Brown v. State , 656 So.2d 262 (Fla. 1st DCA 1995).

Affirmed and remanded with instructions.

Gerber, C.J., Levine and Forst, JJ., concur.


author: Levine, J.

text:
    Caryn Hall YOST-RUDGE, Appellant, v. A TO Z PROPERTIES, INC., a Florida Corporation, Appellee.
    No. 4D17-3204
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Caryn Hall Yost-Rudge, Stuart, pro se.
    Alexander D. Gonano of Gonano & Harrell, Fort Pierce, for appellee.
   Levine, J.

One of the hallmarks of the Florida Constitution is the provision protecting the familial home by enforcement of homestead protections in article X, section 4 of the Florida Constitution. That provision provides that a married owner of homestead real estate may alienate the homestead by sale only if joined by the spouse. Fla. Const. art. X, § 4 (2)(c).

In this case, the husband sold the property, claimed by appellant ("wife") to be protected by homestead, without the wife's agreement or signature on the warranty deed. Appellee ("buyer") claims that municipal violations regarding the safety of that property resulted in an injunction prohibiting the wife and her husband from occupying the property which, in turn, resulted in their abandonment of the property. The buyer claims further that if the property was abandoned, then the property lost its homestead protection, obviating the buyer's need to obtain the wife's written consent to her husband's sale of the property.

We find, consistent with the Florida Constitution, that the wife must agree to the sale of the property and that her being prevented from returning to the property due to an injunction for municipal violations was not an abandonment that destroyed the homestead protections of the property. We find the trial court erred in granting partial summary judgment and finding that the wife had no homestead interest in the property sold by the husband without her consent. We therefore reverse.

The wife lived on the property at issue with her husband until March 2010. On March 5, 2010, after a series of code compliance issues with the City of Stuart and Martin County deeming the property unsafe, the wife and her family were ordered by a court to vacate the property and enjoined from occupying or residing on it. They complied and never resumed residence on the property, instead living in rented residences or staying with friends. Eventually, the government cleared debris and certain structures from the property.

In March 2015, the wife's husband sold the property to the buyer and Capital C, Inc., who later quit-claimed its interest to the buyer. The wife was not a party to the warranty deed. The buyer then filed a complaint to quiet title and for relief declaring that the wife and her husband had no homestead interest in the property.

The wife, pro se, answered the complaint, asserting that the transfer was legally insufficient without her signature due to her continuing homestead interest in the property. She generally alleged that she maintained an intent to return to the property and had been trying over the course of several years to return it to habitable condition. The wife concluded that because she intended to return and never claimed another homestead, the property remained her homestead even in her absence. When the buyer moved for partial summary judgment on its claim as to the wife, the wife responded by again denying abandonment of the property.

After a hearing on the summary judgment motion, the trial court entered partial final summary judgment in favor of the buyer. In doing so, it noted that the wife had failed to file any affidavits in opposition to summary judgment and had not raised any affirmative defenses in her answer. The court ruled that, at the time of the sale to the buyer, the property was not the homestead of the wife or her husband, so the buyer acquired the property free and clear as a result of the husband's sale. This appeal follows.

We review an order granting summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). Summary judgment is proper only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id. The party seeking summary judgment is required to present competent evidence demonstrating the non-existence of any material issue of fact. Bratt ex rel. Bratt v. Laskas , 845 So.2d 964, 966 (Fla. 4th DCA 2003). At the summary judgment stage, all doubts are resolved against the moving party. Id.

Article X, section 4 of the Florida Constitution applies homestead protection "to the residence of the owner or the owner's family." Fla. Const., art. X, § 4 (a)(1). As a result, the married owner of a homestead property may not alienate the property without joinder or consent of his or her spouse. Vera v. Wells Fargo Bank, N.A. , 178 So.3d 517, 519 n.1 (Fla. 4th DCA 2015). The protections of homestead are limited to the residence of the owner and generally require the owner's occupancy of the home with the intent to remain there. Law v. Law , 738 So.2d 522, 524 (Fla. 4th DCA 1999).

The homestead is accorded special status under Florida law and, as such, the Florida Constitution's homestead provisions are construed liberally. See JBK Assocs. v. Sill Bros., Inc. , 160 So.3d 94, 96 (Fla. 4th DCA 2015) ("Homestead exemption laws should be liberally applied to the end that the family shall have shelter and shall not be reduced to absolute destitution.") (quoting Orange Brevard Plumbing & Heating Co. v. La Croix , 137 So.2d 201, 204 (Fla. 1962) ).

It is clear, however, that once homestead is established, it still can be lost due to abandonment. "Once homestead status is acquired, it continues until the homestead is abandoned or alienated in the manner provided by law. To show abandonment, both the owner and his family must have abandoned the property." Coy v. Mango Bay Prop. and Invs., Inc. , 963 So.2d 873, 878 (Fla. 4th DCA 2007) (citation omitted). Consistent with the special status of Florida homestead, a finding of abandonment requires a "strong showing" of intent not to return to the homestead. In re Herr , 197 B.R. 939, 941 (Bankr. S.D. Fla. 1996).

Whether a property has been abandoned and thus lost its homestead protections is determined, case by case, in light of the totality of circumstances. Beensen v. Burgess , 218 So.2d 517, 519 (Fla. 4th DCA 1969). Only in light of the totality of circumstances, with all doubts resolved against the moving party, can it be determined that the owner has abandoned the property and abandoned its homestead protections.

Florida courts have consistently held that a property is not abandoned for the purposes of homestead protection when the owner involuntarily ceases to reside on the property. In re Estate of Melisi , 440 So.2d 584, 585 (Fla. 4th DCA 1983). For example, the Florida Supreme Court held in Stokes v. Whidden , 97 Fla. 1057, 122 So. 566 (1929), that a homestead was not abandoned even though the owner of the property had been adjudged insane and committed to a state institution. In that case, unlike this one, the owner's family continued to live on the property. Id. at 566 ; see also Dean v. Heimbach , 409 So.2d 157 (Fla. 1st DCA 1982) (finding homestead not abandoned when father had to leave county as condition of bail but intended to return and family continued to live on property).

Still, courts have also upheld homestead protections even when a property has been left completely unoccupied, as is the case here. One such case is Crain v. Putnam , 687 So.2d 1325 (Fla. 4th DCA 1997). There, the homeowner had been absent from the homestead property for around two years after being placed in a nursing home in a vegetative state; nothing was done with the property during this period. Id. at 1326. However, the homeowner's furniture, clothing, and most of her possessions remained on the property, she received mail at the property, and, given her condition, she could not "communicate any intention regarding her residence" or her plans to maintain it as a homestead. Id. This court was asked to determine whether the article VII homestead tax exemption still applied to the property in light of this absence. Id. We concluded that, under the circumstances, the property retained its homestead character. Id. In doing so, we noted that Florida's homestead protections are not subject to a physical presence requirement, nor are they forfeited when a homeowner involuntarily changes his or her residence. Id.

Another factually similar and persuasive case is In re Herr . In Herr , the owner's home was destroyed by a hurricane and the property was rendered uninhabitable after the city demolished the remaining structures on the property. 197 B.R. at 941. The property languished for three years without any action by the debtor, but the debtor maintained that he was planning on selling the property and using the proceeds to purchase a new homestead. Id. Because Florida law requires a "strong showing of a debtor's intent not to return to his residence" before the homestead can be considered abandoned, the court held that the property retained its homestead protections. Id.

In re Gaines , No. 05-14608, 2007 WL 1228157 (Bankr. M.D. Fla. Apr. 18, 2007), where evidence of homestead intent was lacking, is distinguishable from this case. There, the court concluded that the property was not a homestead where the owner was absent, failed to present any evidence that he actually intended to reoccupy the property, and could not provide factual support as to why he left the property for five years. This is unlike the present case, where the wife provided evidence of ongoing litigation to preserve the property or be able to return to it.

Here, the trial court decided the homestead issue on summary judgment. As discussed above, abandonment turns on intent and is necessarily a fact-intensive inquiry. See Beensen , 218 So.2d at 519 ("The question of whether there has been an abandonment of a homestead so as to deprive it of its status as such under the constitution should be determined by consideration of all of the pertinent facts and circumstances of each case."). The information available to the court at summary judgment gave rise to a genuine issue of material fact. Although the wife did not submit an affidavit in response to the motion for summary judgment or raise affirmative defenses, she did affirmatively deny the allegations of the complaint. Further, the record does contain some evidence indicating there was a conflict of material fact as to whether the wife abandoned the property.

For one, the wife maintained in her answer that the family was involuntarily "forced off" the property and generally asserted a continuing homestead interest in the property. Additionally, the wife attached to her answer in denial evidence indicating that, after being removed from the property, she was making efforts to remediate it with the intention of returning. These attachments included a 2011 letter from an engineering consultant reflecting that the husband had the property inspected in June 2010 for structural issues with the home. Another 2011 letter indicated that the husband tried to contact the city commission regarding his attempts to bring the property up to code and to "determine the facts concerning my building, on my property." Further, an invoice indicated that the husband paid for waste disposal on the property as late as January 2011. Finally, numerous court filings from the wife indicated that she was fighting to retain the property until at least 2012, supporting her argument that she did not intend to abandon the property.

The trial court erred in granting summary judgment, since the question of the wife's intent relating to the alleged abandonment of the homestead was still in dispute. Viewing the facts in the light most favorable to the wife, the non-movant, genuine issues existed as to her intent to abandon the property or retain the property as her homestead. In the face of such issues of material fact, it was error to enter summary judgment against her. See Bratt , 845 So.2d at 966.

In conclusion, due to the material conflict of facts and the special status accorded to the protection of the homestead property, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

Warner and Ciklin, JJ., concur.

      The wife and her husband lived together in their home on the property for several years before legally marrying in August 2010. The record reflects that this home was still standing at and after the date of the marriage despite the family having vacated the property in March 2010.


text:
    Maria FELICIANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3506
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Hilliard Moldof of Hilliard E. Moldof, P.A., Fort Lauderdale, and Kelsey Moldof of Moldof Law, P.A., Fort Lauderdale, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We reverse the circuit court's order denying postconviction relief following an evidentiary hearing and remand for a new trial.

Appellant was convicted of one count of lewd or lascivious molestation. The victim was her son. Now an adult, the son testified that his mother fondled him while he bathed between 2004 and 2006 when he was around ten or eleven years old. He also testified that, at a different time, his mother open mouth kissed him. Appellant denied that the incidents occurred and suggested that her son had a motive to fabricate the story-there was family friction and her son had considered trying to become emancipated when he was fifteen. The jury found appellant guilty as charged. The trial judge sentenced appellant to eight years in prison followed by ten years of probation. Appellant's direct appeal was unsuccessful.

Appellant's motion for postconviction relief was based on her lawyer's failure to call two witnesses, appellant's sister and a long-time family friend. Both witnesses had lived with appellant and her children. The testimony of both witnesses was favorable to appellant. The family friend would have directly contradicted the victim's claim in a deposition that appellant had salaciously kissed him in front of the family friend, who then chastised appellant. At trial, the defense lawyer stipulated that the sister should be precluded from testifying for violating the witness sequestration rule; the lawyer did not seek a hearing on the rule violation to determine any prejudice to the state, nor did she argue for a lesser sanction.

At the hearing below, the state commendably stipulated to defense counsel's ineffectiveness for failing to call the two witnesses to testify at trial. We have carefully reviewed the record. This was a credibility case, without any other tangible evidence, and the witnesses would have significantly undermined the victim's testimony and provided a counterpoint to the state's case. Under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we find counsel's errors to be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." There is a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

Reversed and remanded for a new trial .

Gross, May and Damoorgian, JJ., concur.


text:
    Samantha ROUSSELL, Appellant, v. The BANK OF NEW YORK MELLON, f/k/a The Bank of New York as Successor in Interest to JP Morgan Chase Bank, N.A. as Trustee for Structured Asset Mortgage Investments II Trust 2006-AR7 Mortgage Pass-Through Certificates Series 2006-AR7, Appellee.
    No. 4D17-3944
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Samantha V. Roussell, Doral, pro se.
    Nancy M. Wallace of Akerman LLP, Tallahassee, and William P. Heller of Akerman LLP, Fort Lauderdale, for appellee.
   Per Curiam.

A homeowner appeals a final judgment of foreclosure entered in favor of The Bank of New York Mellon based on the bank's motion for summary judgment. Because material issues of fact remain as to standing and the condition precedent of notice, we reverse and remand for further proceedings.

The bank filed a complaint against the homeowner for mortgage foreclosure and to reestablish a lost note. A copy of the note attached to the complaint listed America's Wholesale Lender as the lender and did not contain any endorsements. The homeowner filed an answer and affirmative defenses, arguing that the bank lacked standing and failed to comply with the condition precedent of adequate notice concerning the default and acceleration.

The bank filed a lost note affidavit from an employee of the servicer, Nationstar Mortgage, LLC. The affidavit stated that the bank acquired the loan from the original lender, America's Wholesale. The affidavit listed several transfers of servicing rights, ending with Nationstar. According to the affidavit, "[t]he Note was lost by the prior holder of the note, and prior to the transfer to Nationstar."

The bank moved for summary judgment. The homeowner opposed the motion, arguing that the bank lacked standing and failed to comply with the condition precedent of notice. After a hearing, the trial court entered a final judgment of foreclosure.

An order granting summary judgment is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). "Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show 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." Frost v. Regions Bank , 15 So.3d 905, 906 (Fla. 4th DCA 2009). "It is the moving party's burden to show, conclusively, the absence of any genuine issue of material fact." Patel v. Aurora Loan Servs., LLC , 162 So.3d 23, 24 (Fla. 4th DCA 2014).

The homeowner raised the issue of standing as an affirmative defense. "Whether a party has standing to bring an action is a question of law to be reviewed de novo." Joseph v. BAC Home Loans Servicing, LP , 155 So.3d 444, 446 (Fla. 4th DCA 2015). A party seeking to enforce a lost note must establish, inter alia, that it was "entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred." § 673.3091(1)(a), Fla. Stat. (2017).

The bank failed to satisfy the requirements of section 673.3091(1)(a). The affidavit from the bank's servicer stated that "[t]he Note was lost by the prior holder of the note, and prior to the transfer to Nationstar," the current servicer. Notably, the affidavit is unclear as to who lost the note because the affidavit does not state the identity of the prior noteholder. One could infer the prior noteholder was the servicer immediately prior to Nationstar, Green Tree Servicing LLC. However, it is also possible that the original lender, America's Wholesale, was the prior holder of the note.

A computer screenshot attached as an exhibit to the affidavit purported to evidence the bank's receipt of the note from America's Wholesale. However, the screenshot did not contain any reference to America's Wholesale. Additionally, the screenshot reflected an assignment by EMC Mortgage Corporation, but there is no indication in the affidavit or elsewhere in the record of this entity's relation to the note and mortgage. Further, the screenshot listed Countrywide as the prior servicer, but the bank's affidavit, which allegedly listed all prior servicers, made no mention of Countrywide.

Another exhibit to the affidavit, a computer printout, purported to show that the prior holder of the note was in possession of the note when the loss occurred. However, nothing in the exhibit indicates the identity of the prior holder of the note or when the loss occurred. Further, there is a conflict between the printout and the affidavit regarding the entity from whom Nationstar acquired the loan for servicing. A notation on the printout indicated that Nationstar acquired the loan from Specialized Loan Servicing, while the affidavit stated that Nationstar acquired the loan from Green Tree Servicing. These inconsistencies and conflicts, coupled with the vagueness regarding who lost the note, give rise to material issues of fact as to the bank's standing.

Material issues of fact also exist as to the bank's compliance with conditions precedent. "A plaintiff ... must either factually refute any alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment before being entitled to a summary judgment of foreclosure." Patel , 162 So.3d at 24. The homeowner raised a legally sufficient defense by alleging that the bank failed to comply with the condition precedent of notice. See Fla. R. Civ. P. 1.120(c). The bank did not factually refute this defense. As such, summary judgment must be reversed and the case remanded for further proceedings. See Patel , 162 So.3d at 25 ; Frost , 15 So.3d at 906.

Reversed and remanded for further proceedings.

Warner, Ciklin and Levine, JJ., concur.


text:
    CROWN DIVERSIFIED INDUSTRIES CORP. and Liberty Mutual Insurance Company, Appellants, v. Eileen PRENDIVILLE, Appellee.
    No. 1D17-4802
    District Court of Appeal of Florida, First District.
    Dates of Accidents: April 26, 2016; June 27, 2016 December 10, 2018 Rehearing Denied January 22, 2019
    Edward C. Duncan III of Law Offices of Amy L. Warpinski, Fort Myers, for Appellants.
    Wayne Johnson of DeCiccio & Johnson, Maitland, for Appellee.
   Per Curiam.

In this workers' compensation case, the Employer/Carrier (E/C) appeal the order of the Judge of Compensation Claims awarding Eileen Prendiville benefits for her alleged injury caused by exposure to mold in the workplace. We agree with the E/C's first argument and reverse because the JCC admitted the opinion testimony of Dr. Powers, Prendiville's independent medical examiner, which was not competent evidence.

Background

Prendiville worked for several years as an administrator in her employer's resort complex in Clermont. In 2015, she developed symptoms of sinus infection, cough, voice loss (dysphonia ), bronchitis, and swelling of the legs (lymphedema ). Prendiville had never experienced these symptoms before 2015. Due to similar complaints from a co-worker, an environmental study was performed in the workplace in August 2015. The study revealed no elevated microbial spores in the air of the areas tested, but the surface swabs indicated spores of several different molds, including Curvalaria. Prendiville subsequently testified that she smelled and saw what appeared to be mold in her personal office and other areas of the workplace; she also took photographs.

In 2016, Prendiville underwent allergy testing in which she reacted positively to various allergens including selected weeds, trees, grasses, animals, and molds. The molds previously identified in the 2015 environmental study were among the numerous molds to which Prendiville had an allergic reaction. She later testified that she was led to believe that mold exposure at work was the cause of her medical problems because her symptoms were worse at work and better when she was away from work. In December 2016, Prendiville filed a petition for benefits. The E/C denied compensability of any workplace injury and the matter proceeded to hearing before a JCC.

In the final order, the JCC found that Prendiville satisfied her burden of proving mold exposure at work as the major contributing cause of her injury via the testimony of Dr. Powers. Dr. Powers testified that he is board certified in family practice. He admitted that he does not generally treat patients who have been exposed to mold/fungi and that he had never previously treated a patient like Prendiville whose condition is "more extreme." He holds no specialized licensing in mold exposure, infectious disease, toxicology, or any related field, and he never claimed to be an expert on mold-related injuries or diseases. Although Dr. Powers examined Prendiville in July 2016, he did not complete his report until November 2016 because it "required a lot of research" and he had never previously researched mold exposure. As a part of his research, Dr. Powers consulted with Dr. Uppal, an infectious disease doctor in New York who specializes in mold exposure, and reviewed the medical records of Prendiville's co-worker who had similar symptoms.

Ultimately, Dr. Powers opined that Prendiville was exposed to mold in the workplace and that this exposure was the major contributing cause of Prendiville's symptoms. During this testimony, the E/C raised multiple objections along with a general standing objection "to any of the doctor's opinions based on improper predicate and improper foundation, [and] lack of evidence of actual mold exposure." At the conclusion of cross-examination, the E/C placed a general objection on the record challenging the doctor's expertise "under ... section 90.702." The E/C also objected to the doctor's reliance on the co-worker's medical records as hearsay.

Approximately a month before the final hearing, the E/C unsuccessfully moved to strike Dr. Powers's opinion evidence as based on a lack of competent substantial evidence. The E/C asserted that there was no evidence of any kind of exposure, resulting in a "fallacy leap" in the logic of the doctor's opinion, and that the co-worker's medical records were irrelevant.

Standard of Review

A JCC's decision to admit evidence is reviewed for abuse of discretion. See King v. Auto Supply of Jupiter, Inc. , 917 So.2d 1015, 1017 (Fla. 1st DCA 2006) (holding that a JCC's admission of evidence is reviewed for abuse of discretion). In addition, the Florida Evidence Code applies to workers' compensation proceedings. See Alford v. G. Pierce Woods Mem'l Hosp. , 621 So.2d 1380, 1382 (Fla. 1st DCA 1993).

Discussion

On appeal, the E/C raise several challenges to the JCC's admission of Dr. Powers's opinion testimony based primarily on the application of the rules of expert testimony under the Florida Evidence Code. We conclude that the JCC abused his discretion by admitting the expert testimony over the E/C's objections because it was based on improper bolstering and lacked a sufficient factual foundation.

The problems with Dr. Powers's testimony stem from the evidentiary requirements set forth in sections 90.704 and 440.09(1). Section 440.02(1), Florida Statutes (2016), provides, in pertinent part, that an injury or disease caused by exposure to a toxic substance, such as mold, "is not an injury by accident arising out of employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee." Section 440.09(1) requires that "[t]he injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries." Dr. Powers testimony did not supply a sufficient evidentiary basis for concluding that Prendiville was exposed to mold in her workplace, or that her mold exposure at work was the major contributing cause of her symptoms.

The first problem with Dr. Powers's expert opinion was that it was improperly bolstered by the professional opinions and reports of others. In Linn v. Fossum , 946 So.2d 1032, 1039-40 (Fla. 2006), the Florida Supreme Court explained that improper bolstering occurs when an expert is used as a conduit for otherwise inadmissible evidence, and the expert reaches an opinion by relying on the opinions and publications of other experts. See also State Dep't of Corr. v. Junod , 217 So.3d 200, 207 (Fla. 1st DCA 2017) (holding an expert medical advisor's reference to other experts' opinions and publications to have rendered his occupational causation opinion incompetent). Here, Dr. Powers gave testimony describing several published articles that he found on the internet. These articles were attached to his deposition transcript. He "greatly" relied on this literature in reaching his opinion on workplace causation in this case, and the JCC then identified articles appended to his deposition as evidence supporting the final compensation order below.

Dr. Powers further bolstered his testimony with the opinions of New York-based infectious disease doctor, Dr. Uppal, who specializes in mold infections. Dr. Powers did not reach his opinion independently, but admitted (1) that he had never had a patient like Prendiville; (2) that he did not reach an opinion until after his consultation with Dr. Uppal, who was currently treating a similar patient; and (3) that he adopted Dr. Uppal's recommendations that Prendiville needed to see an infectious disease physician, adopting her specific recommendations for particular blood tests and recommending that Dr. Uppal be authorized to take over Prendiville's care. This was not a situation where Dr. Powers relied on "his own independent opinion." See Gutierrez v. Vargas , 239 So.3d 615, 627 (Fla. 2018). But instead, Dr. Powers gave voice to Dr. Uppal's opinion in the absence of the availability of cross-examination.

Dr. Powers also relied on the inadmissible medical records of Prendiville's co-worker to bolster his opinion, which he identified as "facts and data" forming the basis of his opinion. Although Dr. Powers did not have a "face-to-face" consultation with the co-worker's physicians, it is clear that he treated her medical records as both evidence and confirmation of his occupational causation opinion regarding Prendiville.

The second problem with Dr. Powers's testimony is that it lacked a sufficient factual foundation to establish occupational causation. Dr. Powers opined that Prendiville became infected from "whatever molds or substances were in that building" and suggested that the most likely substance was Curvularia mold. In reaching this opinion, Dr. Powers relied heavily on the co-worker's medical records which showed that she had been infected with Curvularia mold. But these records are not clearly applicable to Prendiville's medical condition, whereas section 440.02(1) restricts conclusions that exposure arose out of employment unless there is clear and convincing evidence establishing that there was "exposure to the specific substance involved at [harm-causing] levels." Prendiville's apparent infection from a specific mold has not been demonstrated by diagnostic testing despite the fact that a blood test would provide objective proof. Even if we were to assume proper "facts or data" support Dr. Powers's opinion that Prendiville was exposed to Curvularia mold at work, Prendiville did not establish "that the facts or data are of a type reasonably relied upon by experts in the subject" to conclude that she actually contracted any disease or injury from that exposure. Indeed, Dr. Powers appeared to concede that there was currently insufficient facts to determine which mold (of the many potential molds that may be found anywhere in Florida) caused Prendiville's symptoms.

For these reasons, we find that the JCC abused his discretion when he admitted Dr. Powers's occupational causation opinion testimony into evidence. We, therefore, reverse the order below.

REVERSED and REMANDED .

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