author: LAMBERT, J.

text:
    Reidel Eugenio ARMAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1528
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 29, 2018
    James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

The issue that we resolve in this case is whether Appellant was placed in double jeopardy, in violation of the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Florida Constitution, when he was tried and convicted upon an information charging him with one count of possession of cannabis in an amount exceeding 20 grams with the intent to sell or deliver and a second count of manufacturing cannabis, each being a third-degree felony in violation of section 893.13(1)(a), Florida Statutes (2015). For the following reasons, we conclude that no double jeopardy violation occurred, and we therefore affirm Appellant's convictions.

The pertinent facts of this case are undisputed. During a single search of Appellant's residence, law enforcement confiscated thirty-one cannabis plants from a bedroom and approximately one kilogram of finished, dried loose-leaf cannabis, packaged into six or seven plastic bags, inside a duffle bag located on the kitchen counter. Further, the cannabis found in the duffle bag came from the plants found in the bedroom. Appellant was convicted after trial of possession of cannabis with intent to sell, manufacture, or deliver and separately for manufacturing of cannabis.

Appellant argues that his dual convictions here violate double jeopardy principles because each "is predicated on indistinct conduct occurring during a single criminal episode" with the conduct being Appellant's "possession of marijuana plants and packaged product." The double jeopardy clauses of the federal and state constitutions prohibit the imposition of multiple punishments for the same criminal offense but do not prohibit multiple punishments for different offenses arising out of the same criminal transaction or episode if the Legislature intended to authorize separate punishments. Roughton v. State , 185 So.3d 1207, 1209 (Fla. 2016) (citing Valdes v. State , 3 So.3d 1067, 1069 (Fla. 2009) ). The Florida Legislature did so when it enacted section 775.021(4)(a), Florida Statutes (2015), which provides, in pertinent part, that a person who, during "the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses ... shall be sentenced separately for each criminal offense." Offenses are separate under this statute "if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial." § 775.021(4)(a), Fla. Stat. (2015). Additionally, the statute explicitly states that it is the intent of the Legislature for there to be a conviction and sentence "for each criminal offense committed in the course of one criminal episode or transaction" except where there are: 1) "Offenses which require identical elements of proof"; 2) "Offenses which are degrees of the same offense as provided by statute"; or 3) "Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." Id. § 775.021(4)(b).

The determination as to whether double jeopardy is violated based on undisputed facts is a purely legal determination, making our standard of review de novo. Binns v. State , 979 So.2d 439, 441 (Fla. 4th DCA 2008) (citing State v. Florida , 894 So.2d 941, 945 (Fla. 2005) ). Similarly, whether section 775.021(4)(a) precludes dual convictions and sentences on undisputed facts is also reviewed de novo. See Roughton , 185 So.3d at 1209 ("The application of the statutory rule of construction based on undisputed facts is a legal issue, subject to de novo review." (citing State v. Drawdy , 136 So.3d 1209, 1213 (Fla. 2014) ) ).

The dispositive question here is whether under section 775.021(4)(a) and without regard to the accusatory pleading or proof at trial, possession of cannabis with intent to sell, manufacture, or deliver and manufacturing of cannabis are separate offenses when they arose out of the same criminal transaction and are charged under the same statute. In Anderson v. State , 447 So.2d 236 (Fla. 1st DCA 1983), the First District Court of Appeal held that convictions for both the manufacture of cannabis and the possession of the same cannabis did not violate double jeopardy because "the crime of 'manufacture' does not require proof of possession." 447 So.2d at 239-40. Subsequently to Anderson , the Florida Supreme Court held in State v. McCloud , 577 So.2d 939 (Fla. 1991), that there is no double jeopardy violation for the crimes of sale of cocaine and possession (or possession with intent to sell) of the same quantum of cocaine, rejecting the argument that section 775.021(4)(b) prohibits dual convictions and sentences for possession and sale of cocaine based on the same act because each offense contains an element that the other does not. 577 So.2d at 940-41. Shortly thereafter, the court applied the same analysis in holding that separate convictions and sentences for possession of a controlled substance and delivery of the same controlled substance did not violate double jeopardy. Davis v. State , 581 So.2d 893, 894 (Fla. 1991).

Appellant was charged with violating section 893.13(1)(a), Florida Statutes (2015), which provides, in pertinent part, that "a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance." We agree with the First District that there is no double jeopardy violation for possession of cannabis and manufacturing of cannabis because each offense contains an element that the other does not. Anderson , 447 So.2d at 239-40. Appellant provides no persuasive explanation for how his convictions for manufacturing of cannabis and possession with intent to sell, manufacture, or deliver the same cannabis can be a double jeopardy violation, yet there is no double jeopardy violation for the sale of cocaine and possession of the same cocaine in McCloud or the possession of cocaine and delivery of the same cocaine in Davis , nor can we discern any.

Appellant separately argues that because he was charged with two violations of the same statute arising out of a single incident, the test to be applied in determining the existence of a double jeopardy violation is not the "same elements" test that is utilized under Blockburger when two separate statutes are being compared, but rather the "allowable unit of prosecution" test. See Guetzloe v. State , 980 So.2d 1145 (Fla. 5th DCA 2008) ; McKnight v. State , 906 So.2d 368 (Fla. 5th DCA 2005). This standard recognizes that double jeopardy is offended if multiple punishments are imposed for the same offense. McKnight , 906 So.2d at 371. In McKnight , the defendant was charged with two counts of first-degree vehicular homicide under section 782.071(1)(b), Florida Statutes (2001), for the death of two separate victims involved in a single accident. Id. at 370. We held that the text of that specific statute, in conjunction with the State's historic treatment of homicide crimes, made clear the Legislature's intent that each victim constituted a separate allowable unit of prosecution and, therefore, the defendant's separate convictions for vehicular homicide were not proscribed by double jeopardy principles. Id. at 373-74. Subsequently, in Guetzloe , we held that one mass mailing by the defendant in violation of Florida's Electioneering Communication Statute constituted only one "allowable unit of prosecution" that the legislature intended to punish and that double jeopardy barred multiple prosecutions for a single distribution of electioneering communications. 980 So.2d at 1147-48.

We distinguish both McKnight and Guetzloe because in those cases, we were addressing multiple violations of the same offense. Here, Appellant's two criminal offenses are distinguishable discrete acts that are not the same offense, even though both are charged under section 893.13(1)(a), because this statute proscribes alternative or separate forms of criminal conduct. As previously discussed, the Florida Supreme Court had no difficulty in applying the "separate offense" analysis under section 775.021(4)(a) in McCloud , holding that there was no double jeopardy violation for convictions of the separate offenses of sale of cocaine and possession of the same cocaine, or in Davis , concluding that there was no double jeopardy violation for the delivery of cocaine and the possession of the same cocaine with the intent to sell or deliver because they were separate offenses. See also State v. Oliver , 581 So.2d 1304, 1305 (Fla. 1991) (approving separate convictions for possession with intent to sell cocaine and sale of the same cocaine arising out of a single transaction). Moreover, under Roughton , our double jeopardy analysis pursuant to section 775.021(4) must "be conducted without regard to the accusatory pleading or the proof adduced at trial, even where an alternative conduct statute is implicated." 185 So.3d at 1211. Simply put, manufacturing of cannabis and possession of cannabis with intent to manufacture are separate offenses under section 775.021(4)(a), even though they have now been codified as crimes under the same subsection of section 893.13.

Accordingly, we hold that Appellant's dual convictions, even though arising out of the same criminal transaction or episode and involving the same cannabis, do not violate the prohibition against double jeopardy. Additionally, none of the three exceptions contained in section 775.021(4)(b) is applicable here because neither of Appellant's offenses is a lesser included offense of the other, they do not have identical elements of proof, and they are not degrees of the same offense.

AFFIRMED.

COHEN, C.J., and BERGER, J., concur.

      The record does not show that count one of the information was ever amended from possession of cannabis with intent to sell or deliver to possession with intent to sell, manufacture, or deliver. There is also no record explanation or indication why the word "manufacture" was included in the jury instruction and verdict form on this count. Nevertheless, this inclusion is not significant to our analysis.

      Section 775.021(4)(a) is a codification of the "same elements" test enunciated in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether a double jeopardy violation occurred. See Cruller v. State , 808 So.2d 201, 203 (Fla. 2002). This test provides that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."Blockburger , 284 U.S. at 304, 52 S.Ct. 180.

      The two crimes occurred when the defendant handed an undercover agent one piece of crack cocaine.

      § 106.1439, Fla. Stat. (2004).

      This exception under section 775.021(4)(b) 2. prohibits a defendant from being punished for violating two or more degrees of the same offense as provided by statute. For example, the theft statute identifies three degrees of grand theft and two degrees of petit theft. See § 812.014, Fla. Stat. (2005). The homicide statute identifies three degrees of murder, see id. § 782.04, and the arson statute has two separate degrees. See id. § 806.01; see also Valdes , 3 So.3d at 1076 (quoting State v. Paul , 934 So.2d 1167, 1177-78 (Fla. 2006) (Cantero, J., concurring) ).


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Baron Canard ROGERS, Appellee.
    Case No. 5D17-3117
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 29, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Darnelle Paige Lawshe, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State of Florida appeals the downward departure sentences imposed on Baron Canard Rogers (the defendant). We reverse.

The State charged the defendant with dealing in stolen property and giving false verification of ownership when conducting a transaction with a pawnbroker. He pled guilty to the charges. The trial court initially sentenced the defendant to two terms of seven years of imprisonment; however, during a subsequent hearing, the trial court re-sentenced the defendant, imposing downward departure sentences.

The State contends that the trial court reversibly erred in imposing downward departure sentences, asserting that the reasons for imposing the sentences are either not legally valid or not supported by substantial competent evidence. We agree.

A downward departure sentence will be affirmed on appeal if the reason given by the trial court for departing is permissible and supported by substantial competent evidence. State v. Centeno, 192 So.3d 705, 706 (Fla. 5th DCA 2016) (citing State v. Burt, 183 So.3d 1117, 1118 (Fla. 5th DCA 2015) ).

Here, the trial court announced its reasons for departure as follows:

All right, for the reasons that were just articulated I'm going to downward depart, and that is the undiagnosed mental illness that your mother testified to that you had had since you were a child. The fact that it was a non-violent felony involving property, that there was no injury or opportunity for injury to other persons.
....
Okay. I'm going to find that it was-the isolated incident that the Defendant has expressed remorse here in the courtroom in that all he did was hurt his family by his stupidity. I'm going to find that there's no redeeming value in sending you to prison and the cost to our society is too great.
....
[T]he other point, that the need for the payment of restitution to the victim outweighs a need for a prison sentence.

None of these reasons justify the imposition of the downward departure sentences.

As for the trial court's statutory reasons for departure, the trial court erred in concluding that departure sentences were warranted based on the fact that the defendant's crimes were isolated incidents for which he showed remorse. Section 921.0026(2)(j) of the Florida Statutes (2017) authorizes the imposition of a departure sentence when the "offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." Importantly, all three elements must be articulated by the trial court to justify departure on this ground. State v. Milici, 219 So.3d 117, 121-22 (Fla. 5th DCA 2017) ; State v. Lindsay, 163 So.3d 721, 724 (Fla. 5th DCA 2015). Here, the trial court failed to articulate that the defendant committed his crimes in an unsophisticated manner; therefore, this reason for departure is invalid.

Next, the trial court erred in imposing the downward departure sentences based on the fact that the need for the payment of restitution to the victim outweighed the need for a prison sentence. See § 921.0026(2)(e), Fla. Stat. (2017). In order to satisfy the terms of the statute, "the defendant must present some evidence of the victim's need." State v. Wheeler, 180 So.3d 1117, 1119 (Fla. 5th DCA 2015). In this case, the defendant failed to present any evidence regarding the loss sustained by the victim; therefore, this ground for departure is not supported by the evidence.

The trial court's finding that departure was warranted based on the defendant's undiagnosed mental illness is also invalid. Section 921.0026(2)(d) of the Florida Statutes (2017) authorizes the imposition of a departure sentence when a defendant "requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment." Here, the defendant did not present evidence on any of these elements. See Lee v. State, 223 So.3d 342, 359 (Fla. 1st DCA 2017).

Furthermore, the trial court's non-statutory reasons also fail to support departure.

When the court bases a departure on a non-statutory factor, the factor must be permissible and supported by competent, substantial evidence. State v. Bowman, 123 So.3d 107, 109 (Fla. 1st DCA 2013). To be permissible, the non-statutory mitigator must be consistent with legislative sentencing policies. Id."The mitigating factors specifically listed by the legislature focus on the nature of the crime, the conduct of the defendant or the mental capacity, condition, or attitude of the defendant. Further, the first purpose of sentencing is to punish, not rehabilitate. Finally, the legislative sentencing policy is to ensure that violent criminals are incarcerated." State v. Chestnut, 718 So.2d 312, 313 (Fla. 5th DCA 1998).

Lee, 223 So.3d at 359-60.

The trial court concluded that departure was permissible because, during the commission of the defendant's crimes, there was no injury or opportunity for injury to other persons. This conclusion does not support the imposition of the downward departure sentences because personal injury was already taken into account during sentencing by virtue of the computations performed in preparing the defendant's Criminal Punishment Code worksheet. See State v. Chapman, 805 So.2d 906, 908 (Fla. 2d DCA 2001) (citing to section 921.0024, Florida Statutes, which provides that victim injury is a consideration when calculating scoresheets).

The trial court further erred in departing downward based on the fact that the defendant's crimes were non-violent felonies involving property. The defendant argued below that this departure reason was proper based on the language of section 921.185 of the Florida Statutes (2017). That statute reads:

921.185. Sentence; restitution a mitigation in certain crimes
In the imposition of a sentence for any felony or misdemeanor involving property, but not injury or opportunity for injury to persons, the court, in its discretion, shall consider any degree of restitution a mitigation of the severity of an otherwise appropriate sentence.

Section 921.185 does not justify the downward departure sentences in this case because the trial court did not impose a sentence which used restitution to mitigate the severity of the defendant's "otherwise appropriate sentence." Instead, the court merely entered an order directing the defendant to pay $463.77 in restitution. Cf.

Noel v. State, 127 So.3d 769, 770 (Fla. 4th DCA 2013), rev. on other grounds, 191 So.3d 370 (Fla. 2016) (upholding sentencing judge's decision to mitigate the length of a guidelines sentence provided the defendant made payment of restitution to the victims).

Lastly, the trial court erred in concluding that departure was warranted because there was no redeeming value in sending the defendant to prison. We held this reason to be invalid in State v. Thompkins:

We are left with the last non-statutory ground-that there is no redeeming value to sending Thompkins to prison. This too is an invalid ground. "In evaluating a non-statutory mitigator, a court must determine whether the asserted reason for a downward departure is consistent with legislative sentencing policies." State v. Knox, 990 So.2d 665, 669 (Fla. 5th DCA 2008) (citations omitted); see also Chestnut. The stated policy of the Criminal Punishment Code is to punish miscreants for their crimes. § 921.002(1)(b), Fla. Stat. (2011) ("The primary purpose of sentencing is to punish the offender."); Moore v. State, 882 So.2d 977, 985 (Fla. 2004) ("The Legislature expressed that the primary purpose of sentencing is to be punishment." (citation omitted) ); State v. McKnight, 35 So.3d 995, 997 (Fla. 5th DCA 2010) ; Chestnut, 718 So.2d at 313 ("Further, the first purpose of sentencing is to punish, not rehabilitate."). Whether there is any redeeming value to the criminal in sending him to prison is largely of secondary concern. See § 921.002(1)(b), Fla. Stat. (2011) ; State v. Hall, 47 So.3d 361, 364 n. 5 (Fla. 2d DCA 2010) ("Rehabilitation is a secondary goal, and it is a stated policy that a defendant's sentence should increase with the length and nature of the defendant's prior record." (citing § 921.002(1)(b), (d) ) ); Chestnut, 718 So.2d at 314 ("It is obvious that prison will always be detrimental to one's future even if it is essential to his appropriate punishment. But the consequence of no prison for violent criminals seems a far worse societal problem.").

113 So.3d 95,100 (Fla. 5th DCA 2013).

Because the trial court failed to set forth valid reasons for departure, the defendant's departure sentences are reversed and this matter is remanded for re-sentencing. On remand, the trial court may still impose downward departure sentences provided that they are supported by valid reasons. Otherwise, the trial court must impose sentences that comport with applicable statutes. See State v. Lindsay, 163 So.3d 721, 725 (Fla. 5th DCA 2015).

REVERSED and REMANDED.

EVANDER and EISNAUGLE, JJ., concur.


author: Per Curiam.

text:
    FLORIDA DEPARTMENT OF HEALTH; Celeste Philip, M.D., in her official capacity as Secretary of Health for the State of Florida; Office of Medical Marijuana Use; and Christian Bax, in his official capacity as Director of the Office of Medical Marijuana Use, Appellants, v. PEOPLE UNITED FOR MEDICAL MARIJUANA; Florida for Care, Inc.; Diana Dodson; and Catherine Jordan, Appellees.
    No. 1D18-2206
    District Court of Appeal of Florida, First District.
    July 3, 2018
    Pamela Jo Bondi, Attorney General, Rachel Nordby, Senior Deputy Solicitor General, and Karen A. Brodeen, Senior Assistant Attorney General, Tallahassee, for Appellants.
    Jon L. Mills, Miami, and Karen C. Dyer, George R. Coe, and Marcy Norwood Lynch, Orlando, of Boies Schiller Flexner LLP; John Morgan of Morgan & Morgan, P.A., Orlando, for Appellees.
    ORDER ON MOTION FOR REVIEW
   Per Curiam.

The Department of Health (DOH) and the Director of the Office of Medical Marijuana Use (collectively the State) appealed an order of the circuit court declaring section 381.986, Florida Statutes (2017), unconstitutional pursuant to Article X, section 29 of the Florida Constitution (the Medical Marijuana Amendment). When the State filed its notice of appeal in this Court, an automatic stay of the circuit court's judgment was entered. Appellees filed a motion to lift the stay in the circuit court. After hearing from the parties, the circuit court entered an order vacating the automatic stay. The State now seeks review of that order. For the reasons that follow, we quash the order vacating the automatic stay and reinstate the stay during the pendency of the appeal.

I.

In 2016, Florida voters adopted Amendment 2, a ballot initiative resulting in the creation of the Medical Marijuana Amendment. The Amendment authorized medical use of marijuana for qualifying patients with certain debilitating medical conditions but authorized DOH to issue reasonable regulations to ensure the availability and safe use of medical marijuana by qualifying patients. Art. X, § 29(d), Fla. Const. In addition, section 29(e) of the Medical Marijuana Amendment provides that "[n]othing in this section shall limit the legislature from enacting laws consistent with this section."

In 2017, the Florida Legislature enacted section 381.986(1)(j), Florida Statutes, defining "medical use" as "the acquisition, possession, use, delivery, transfer, or administration of marijuana authorized by a physician certification." Expressly excluded from the definition of medical use is the "[p]ossession, use, or administration of marijuana in a form for smoking." § 381.986(1)(j) 2.

After the statute was enacted, Appellees brought suit in the circuit court seeking a declaration that the exclusion of marijuana "in a form for smoking" from the statutory definition of medical use was a violation of the Medical Marijuana Amendment. The circuit court issued a declaratory judgment finding that the Medical Marijuana Amendment implied a right for qualified patients to use smokable medical marijuana in private places. The State appealed the circuit court's order, and the order was automatically stayed pursuant to Florida Rule of Appellate Procedure 9.310(b)(2). Appellees moved to vacate the automatic stay.

The circuit court entered an order vacating the automatic stay, determining that the State had no likelihood of success on the merits on appeal and that the individual Appellees were "exposed to irreparable harm [because] they cannot legally access the treatment recommended for them [and] they face potential criminal prosecution for possession and use of the medicinal substance." Further, the court reasoned that by vacating the automatic stay, the status quo would be preserved "by returning the law to its previous state as it existed following the 2016 adoption" of the Medical Marijuana Amendment. The State now seeks review of the order vacating the automatic stay.

II.

Florida Rule of Appellate Procedure 9.310(b)(2) provides, in pertinent part:

Public Bodies; Public Officers . The timely filing of a notice shall automatically operate as a stay pending review ... when the state, any public officer in an official capacity, board, commission, or other public body seeks review.... On motion, the lower tribunal or the court may extend a stay, impose any lawful conditions, or vacate the stay.

The purpose of the automatic stay provision triggered when a government entity or officer appeals an adverse judgment is to accord judicial deference to governmental decisions. See St. Lucie Cty. v. N. Palm Dev. Corp. , 444 So.2d 1133, 1135 (Fla. 4th DCA 1984) (determining that "planning-level decisions are made in the public interest and should be accorded a commensurate degree of deference and that any adverse consequences realized from proceeding under an erroneous judgment harm the public generally."). Although a trial court may vacate an automatic stay during the pendency of an appeal, it may only do so "under the most compelling circumstances." State, Dep't of Envtl. Prot. v. Pringle , 707 So.2d 387, 390 (Fla. 1st DCA 1998) (quoting St. Lucie Cty.) . A party moving to vacate an automatic stay must demonstrate that "the equities are overwhelming tilted against maintaining the stay." Tampa Sports Auth. v. Johnston , 914 So.2d 1076, 1084 (Fla. 2d DCA 2005). Last, in determining whether to vacate an automatic stay, the trial court must consider (1) the government's likelihood of success on appeal, and (2) the likelihood of irreparable harm if the automatic stay is reinstated. Id. at 1079 (citing Mitchell v. State , 911 So.2d 1211, 1219 (Fla. 2005) ).

Appellees have not shown that compelling circumstances exist to support the order vacating the stay in this appeal. We begin by observing that a similar request to vacate an automatic stay was made in Florida Department of Health v. Redner , 1D18-1505. There, the circuit court determined that Redner, a qualifying patient with a debilitating medical condition, was entitled to possess, grow, and use marijuana plants for medical treatment, consistent with his doctor's recommendation pursuant to the Medical Marijuana Amendment. The circuit court vacated the automatic stay, but this Court reinstated the automatic stay because Redner had not demonstrated a likelihood of success on the merits as required to justify the lifting of the automatic stay. Redner filed a petition to invoke the all writs jurisdiction of the Florida Supreme Court to vacate the automatic stay. The Florida Supreme Court denied the petition and explained that Redner's request failed to demonstrate that all writs authority was necessary to prevent irreparable harm.

Here, after the panel's preliminary review of the wording of the Medical Marijuana Amendment and the statute prohibiting the use of medical marijuana in a smokable form, we conclude that Appellees have not sufficiently demonstrated a likelihood of success on the merits as required to justify vacating the automatic stay. Mitchell v. State , 911 So.2d 1211, 1219 (Fla. 2005). "[S]tatutes are presumed constitutional, and the challenging party has the burden to establish the statute's invalidity beyond a reasonable doubt." Jackson v. Stat e, 191 So.3d 423, 426 (Fla. 2016). To strike a statute as facially unconstitutional, Appellees were required to show "that no set of circumstances exists under which the statute would be valid." Fla. Dep't of Revenue v. City of Gainesville , 918 So.2d 250, 256 (Fla. 2005). Appellees failed to meet their burden.

Further, Appellees have failed to demonstrate that they will suffer irreparable harm if the automatic stay is reinstated. On the contrary, reinstating the automatic stay will maintain the status quo pending appeal.

III.

Accordingly, upon consideration of the State's motion for review, we hold that it was an abuse of discretion for the circuit court to vacate the automatic stay. The circuit court's order vacating the automatic stay is quashed and the automatic stay provided by rule 9.310(b)(2) is reinstated and shall remain in effect pending the outcome of the appeal.

Lewis, Rowe, and M.K. Thomas, JJ., concur.

      In concluding that Appellees failed to demonstrate a likelihood of success on appeal and they failed to demonstrate a likelihood of irreparable harm, we do not intend to preclude full review of the issues on appeal by the merits panel.


author: ROTHENBERG, C.J.

text:
    J.B., a Minor, and the Guardian ad Litem Program, Petitioners, v. The STATE of Florida and Carmen Barahona, Respondents.
    No. 3D18-256
    District Court of Appeal of Florida, Third District.
    Opinion filed July 05, 2018
    Baker & McKenzie LLP, and Angela C. Vigil, for petitioner J.B., a minor; Thomasina F. Moore (Sanford), for petitioner Guardian ad Litem Program.
    Eugene Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Philip L. Reizenstein, Assistant Regional Counsel, for respondent Carmen Barahona; Pamela Jo Bondi, Attorney General, and Melissa Roca Shaw and Brian H. Zack, Assistant Attorneys General, for respondent The State of Florida.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   ROTHENBERG, C.J.

J.B., a minor, and the Guardian ad Litem ("GAL") (collectively, "the Petitioners"), petition this Court for a writ of certiorari seeking to quash the trial court's order compelling the release of J.B.'s mental health records for use by the Respondent, Carmen Barahona ("Barahona"), in her death penalty trial. Although the State of Florida took no position in the lower court, it now joins the Petitioners in seeking quashal of the trial court's order.

FACTS AND PROCEDURAL HISTORY

This matter arises from the criminal prosecution of J.B.'s adoptive parents, Barahona and her husband, Jorge Barahona (collectively "the Barahonas"). On, or about, March 23, 2011, the Barahonas were charged with numerous counts, including the first degree murder of their adopted child, N.B., and the child abuse of their adopted child, V.B., who is N.B.'s twin brother.

Although J.B. lived in the Barahona home with the child victims, J.B. is not listed as a victim in the indictment. Prior to the charged offenses, N.B., V.B., and J.B. received psychological treatment at Citrus Health Network ("Citrus")-a non-profit community mental health center that serves mentally ill persons and their families. J.B. continued to receive psychological treatment at Citrus after the death of N.B. and the abuse of V.B. J.B. was approximately six or seven years old at the time.

On December 13, 2017, Barahona filed a motion to compel production of J.B.'s psychological records. In the motion, she contends that J.B. is an eyewitness to the events in question and may have evidence relevant to her defense. Importantly, neither the State nor the defense have listed J.B. as a witness. Further, there has been no attempt to depose J.B. during the seven years that this prosecution has been pending. Both J.B. and the GAL opposed Barahona's motion.

THE TRIAL COURT'S ORDER

The trial court conducted a hearing on Barahona's motion on February 7, 2018. At the conclusion of the hearing, the trial court announced that it was going to grant the motion and order production of the records. The following day, prior to the issuance of a written order, J.B. filed an emergency motion for a stay. Prior to addressing J.B.'s motion for a stay, the trial court issued its order on Barahona's motion to compel production on February 9, 2018.

In its order, the trial court made the following findings: (1) J.B. was an eyewitness to many, if not all, of the events listed in the indictment; (2) the State and the defense need to review the records in order to adequately prepare for trial; (3) the need for the information outweighs any possible harm of disclosure; (4) the court has been "made generally aware" of J.B.'s mental and psychological fragility and, therefore; (5) disclosure of the "potentially relevant " records will "potentially safeguard " her from the trauma of a competency hearing, deposition, and testifying. (emphasis added). Ultimately, the trial court concluded that prohibiting disclosure would actually harm J.B. because the parties would then attempt to depose her and/or subject her to a competency hearing. The trial court therefore concluded that there was "a legitimate and appropriate interest in the parties having access to [J.B.'s] mental health treatment record...."

The order requires production under seal to both the State and the defense but prohibits disclosure to third parties, except for expert witnesses and legal staff. Later that same day, the trial court granted J.B.'s emergency motion and stayed the disclosure pending review by this Court. The instant petition followed.

ANALYSIS

Prohibition

As a preliminary matter, we address the Petitioners' request for a writ of prohibition. Writs of prohibition are narrow in scope, preventative in nature, and meant to be utilized with great caution. English v. McCrary, 348 So.2d 293, 296 (Fla. 1977). Such relief may only be granted when a lower court lacks jurisdiction or is attempting to exceed its jurisdiction. Id. Here, the record is devoid of any such showing. Therefore, prohibition is not an available remedy to address the trial court's discovery order.

Certiorari

Although a writ of certiorari is an extraordinary relief that is granted in very limited circumstances, see Lee v. Condell, 208 So.3d 253, 256 (Fla. 3d DCA 2016) (citing Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) ), it is the proper vehicle to review discovery orders compelling the production of information that is protected by the statutory psychotherapist-patient privilege ("the privilege"). Cruz-Govin v. Torres, 29 So.3d 393, 395 (Fla. 3d DCA 2010). In order to warrant relief, however, the order must depart from the essential requirements of law, causing material injury to the petitioner throughout the remainder of the proceedings below, leaving him/her without an adequate remedy on appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987), superseded by statute on other grounds, as stated in Williams v. Oken, 62 So.3d 1129, 1134 (Fla. 2011). The latter requirements constitute irreparable harm, a condition precedent to invoking certiorari jurisdiction, which should be considered first. Lee, 208 So.3d at 256.

We conclude that the trial court has departed from the essential requirements of law by ordering production of J.B.'s mental health records without first finding that an exception to the privilege applies. Section 90.503, Florida Statutes (2017), which codifies the privilege, specifically provides as follows:

(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

In defining the scope of the privilege, section 90.503(4) lists three exceptions to the privilege: (a) involuntary commitment proceedings; (b) court-ordered mental examinations; and (c) where the patient raises his or her own mental condition during the litigation. Importantly, however, the last exception applies when the patient , not the party seeking the information, places his or her mental health at issue. Cruz-Govin, 29 So.3d at 396. In other words, the moving party cannot "pierce the privilege" by simply lodging a claim that raises an issue regarding the patient's mental health. Id. (citing Viveiros v. Cooper, 832 So.2d 868, 869 (Fla. 4th DCA 2002) ).

Because Barahona seeks to pierce J.B.'s statutory privilege regarding her psychological records, she has the burden of demonstrating that one or more of the enumerated exceptions apply. See Brown v. Montanez, 90 So.3d 982, 986 (Fla. 4th DCA 2012) (holding that the party requesting discovery of privileged psychotherapist documents carries the burden of proving that an exception applies). Barahona, however, has not raised any of the enumerated exceptions, and none apply here. Because she has failed to raise or prove any exception, J.B. has the right to prevent disclosure of her records, and thus, the trial court departed from the essential requirements of law by ordering disclosure. See State v. Famiglietti, 817 So.2d 901, 903-04 (Fla. 3d DCA 2002).

Although, Barahona failed to raise any of the exceptions listed in section 90.503(4), she argues that she is nevertheless entitled to the records under sections 456.057 and 395.3025, Florida Statutes (2017), both of which she claims are exceptions to section 90.503. The former governs general medical records. The latter governs patient and personnel records. Based on our review of sections 395.3025, 456.057, and 90.503, and the relevant case law, we reject this argument.

First, subparagraph (2) of section 395.3025 explicitly states that section 395.3025"does not apply to records maintained at any licensed facility the primary function of which is to provide psychiatric care to its patients, or to records of treatment for any mental or emotional condition at any other licensed facility...." (emphasis added). Here, Citrus' own website describes its primary function as providing "psychiatric care" to its patients. See http://www.citrushealth.org/about. Additionally, subparagraph (4) of section 395.3025 provides:

(4) Patient records are confidential and must not be disclosed without the consent of the patient or his or her legal representative, but appropriate disclosure may be made without such consent ...
(d) In any civil or criminal action, unless otherwise prohibited by law , upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.

(emphasis added).

Section 456.057, which deals with general medical records, contains similar language. Specifically, subparagraph (7)(a) 3. precludes disclosure without a written authorization, except under certain listed circumstances, including the following:

In any civil or criminal action, unless otherwise prohibited by law , upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records.

(emphasis added). The privilege at issue, as codified by section 90.503, is the otherwise prohibited by law provision that precludes disclosure of J.B.'s psychological records. Thus, the statutes do not support Barahona's claim that she need not establish one of the enumerated exceptions in section 90.503(4) because she may compel disclosure under sections 395.3025 and 456.057.

The case law likewise does not support Barahona's claim. In Famiglietti, the plurality opinion issued by this Court, sitting en banc , concluded that: (1) there are only three exceptions to the privilege; (2) the privilege is not qualified in nature; (3) the privilege is not subject to a balancing test; and (3) due process protections do not entitle a defendant to pierce the privilege's protections. Famiglietti, 817 So.2d at 903-04. We also note that the Fifth District Court of Appeal in State v. Roberson, 884 So.2d 976, 980 (Fla. 5th DCA 2004), followed this Court's plurality opinion in Famiglietti and rejected, as this Court rejected in its plurality opinion in Famiglietti, the due process balancing test applied by the Fourth District Court of Appeal in State v. Pinder, 678 So.2d 410 (Fla. 4th DCA 1996).

We additionally conclude that, even if the more permissive or qualified test relied upon by the Fourth District was applied to the instant case, the trial court's order would still constitute a clear departure from established law, as Barahona's request for disclosure of J.B.'s confidential and privileged psychotherapist-patient records is exactly the type of fishing expedition that this Court, the United States Supreme Court, and our sister courts have strongly cautioned against.

In Jaffee v. Redmond, 518 U.S. 1, 9, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), the United States Supreme Court explained that "psychotherapist-patient privilege is rooted in the imperative need for confidence and trust" in which "the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears." Id. (quotation omitted). The mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. Id. In making its findings, the Court emphasized that the protection of these confidential communications serves important public and private interests. Id. at 11-13, 116 S.Ct. 1923. Significantly, the Court rejected, as the plurality opinion issued by this Court rejected in Famiglietti, the balancing test Barahona and the trial court suggest are applicable here. Id. at 17, 116 S.Ct. 1923.

In doing so, the Court reasoned that, "[m]aking the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.... [I]f the purpose of the privilege is to be served, the participants in the confidential conversation must be able to predict with some degree of certainty whether particular discussions will be protected." Id. at 17, 116 S.Ct. 1923 (quoting Upjohn Co. v. United States, 449 U.S. 383, 392, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ). In other words, an uncertain privilege, or one which purports to be certain, but results in widely varying applications by the courts is little better than no privilege at all. Upjohn, 449 U.S. at 392, 101 S.Ct. 677.

Here, defense counsel merely argued that the privileged records might potentially be relevant. This argument falls short of establishing, within a reasonable probability, that the records actually contain information necessary to Barahona's defense. Again, J.B. is not one of the victims. The issue of her competency has not been officially raised by Barahona, and Barahona has not moved to depose J.B. Further, the State has made clear that it does not intend to call J.B. as a witness.

Nevertheless, the trial court reached the conclusion that the disclosure of these potentially relevant records would potentially safeguard J.B. from a competency hearing, deposition, and testifying. There is no record evidence that supports such a finding. Whether J.B. would be less traumatized by disclosure of her confidential psychological records or by being evaluated and potentially being required to testify is something that has not yet been litigated. The only stated reason for the request was to determine whether J.B. was competent and to determine "where to go from there." Those reasons, without more, are insufficient to justify piercing the privilege. See e.g., S.P. v. Vecchio, 162 So.3d 75, 79-80 (Fla. 4th DCA 2014) (quashing a lower court's order unsealing a child victim's mental health records where the defendant's sole basis for the request was to "see what had been left out" for purposes of challenging his sentence). Of equal importance, Barahona has failed to demonstrate-with any degree of specificity-just how J.B.'s prior mental health records are relevant to her current level of competency.

We also conclude that the improper disclosure of J.B.'s privileged communications with her mental health providers will result in irreparable harm. Indeed, Florida courts have consistently and repeatedly held that, absent evidence of a statutory exception or waiver, a trial court departs from the essential requirements of law when it enters an order compelling disclosure of communications or records in violation of the psychotherapist-patient privilege, and such disclosure results in irreparable harm. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995) (concluding that discovery of information protected by a privilege may reasonably cause irreparable harm); see also Flood v. Stumm, 989 So.2d 1240 (Fla. 4th DCA 2008) ; LaCaretta Restaurant v. Zepeda, 115 So.3d 1091, 1092 (Fla. 1st DCA 2013).

CONCLUSION

The trial court's order constitutes a departure from the essential requirements of law that will result in material and irreparable injury. J.B. is not a party to any proceedings in which a final appealable judgment shall be entered. Disclosure of any kind, including an in camera inspection, would let the proverbial cat out of the bag-and generate the same result. See Allstate Ins. Co., 655 So.2d at 94. Neither harm can be properly remedied on appeal. Although Barahona's case is a death penalty case, that does not, without more, justify piercing the privilege. Nothing in the case law suggests that the death penalty implication immunizes Barahona from making the requisite showing of relevance, the applicability of an exception, and/or the existence of a waiver.

Accordingly, we grant the petition for writ of certiorari and quash the trial court's order granting discovery as to J.B.'s psychological/psychiatric treatment records.

Petition granted; order quashed.

      In the alternative, the Petitioners seek to prohibit the production of J.B.'s mental health records.


author: LAGOA, J.

text:
    Barry YAMPOL, Appellant, v. TURNBERRY ISLE SOUTH CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D17-2752
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Legon Fodiman, P.A., and Todd R. Legon, and Jeffrey A. Sudduth, Miami; Hicks, Porter Ebenfeld & Stein, P.A., and Cindy L. Ebenfeld (Hollywood), for appellant.
    Blaxberg, Grayson, Kukoff & Forteza, P.A., and Ian J. Kukoff and I. Barry Blaxberg, Miami, for appellee.
    Before LAGOA, LOGUE, and LINDSEY, JJ.
    ON MOTION TO DISMISS
   LAGOA, J.

Turnberry Isle South Condominium Association, Inc. ("Turnberry"), moves to dismiss Barry Yampol's ("Yampol") appeal from the trial court's Order Granting Turnberry's Motion for Reconsideration of Order and denying Yampol's Motion for Entitlement to Attorneys' Fees and Costs. Turnberry argues that the appeal is premature because the trial court's order does not set the amount of attorney's fees to which Turnberry claims it is entitled. In response, Yampol contends that this Court has jurisdiction because his appeal is based on the portion of the trial court's order denying Yampol's entitlement to attorneys' fees. We agree that dismissal is unwarranted, as this Court possesses jurisdiction to entertain this appeal.

I. FACTUAL AND PROCEDURAL HISTORY

This is the third time that the parties in this litigation have been before this Court. The current appeal deals with a post-judgment order addressing entitlement to attorney's fees. On March 31, 2017, the trial court dismissed the underlying case for lack of prosecution. Following the order of dismissal, Yampol and Turnberry filed competing motions seeking entitlement to attorneys' fees and costs. On September 1, 2017, the trial court entered an "Order Granting [Yampol's] Motion for Entitlement to Attorneys' Fees and Costs and Denying [Turnberry's] Motion for Entitlement to Prevailing Party Attorneys' Fees and Costs" (the "First Order"). Specifically, the trial court found that based on Florida's dual dismissal rule, Yampol was the prevailing party and was entitled to reasonable attorneys' fees. The trial court further found that Turnberry was not the prevailing party and was not entitled to its attorneys' fees and costs. The trial court reserved jurisdiction to determine the amount of the award of attorneys' fees and costs to which Yampol was entitled.

Following entry of the First Order, Turnberry filed a Motion for Reconsideration asking the trial court to: "(i) reconsider its ruling in the [First Order]; (ii) vacate the [First Order] finding Yampol is entitled to his attorney's fees; (iii) find Turnberry to be the prevailing party entitled to attorneys' fees; and (iv) grant all such other relief the Court deems just and proper." Following a hearing, the trial court on November 17, 2017, entered an "Order Granting [Turnberry's] Motion for Reconsideration" (the "Second Order"). Of significance to this appeal, the Second Order states as follows:

[T]he Court finds that the pre-dismissal record is clear that Turnberry was awarded nearly all of the relief it demanded, and the relief was not only awarded to, but the benefit of the relief ordered was received by Turnberry. Therefore, Turnberry was the prevailing party.
....
[I]t is ORDERED AND ADJUDGED that:
1. The Motion for Reconsideration is GRANTED .
2. [Yampol's] motion for entitlement to attorneys' fees is DENIED.

Yampol timely appealed the Second Order. In his Notice of Appeal, Yampol contends that "[t]he nature of [the Second Order] is a final order denying [Yampol's] entitlement to attorneys' fees and costs." Turnberry filed a Motion to Dismiss Appeal, arguing that the Second Order is a non-final, non-appealable order because the trial court has not set the amount of attorney's fees awarded to Turnberry. In his response, Yampol argued that dismissal is not warranted as his "appeal does not arise from an order granting entitlement to attorneys' fees to Turnberry, but rather an order denying Yampol's entitlement to attorneys' fees against Turnberry."

II. ANALYSIS

An order granting entitlement to attorney's fees but not determining the amount of fees or costs is a non-final, non-appealable order, and such an order is subject to dismissal for lack of jurisdiction. Garcia v. Valladares, 99 So.3d 518 (Fla. 3d DCA 2011). A post-judgment order denying a party's claim for entitlement to attorney's fees, however, is an appealable final order. BDO Seidman, LLP v. British Car Auctions, Inc., 789 So.2d 1019, 1020 (Fla. 4th DCA 2001). The issue before us in this appeal is whether an order that grants one party's entitlement to fees and denies the other party's entitlement to fees is an appealable final order.

We find instructive our sister court's case in Reliable Reprographics Blueprint & Supply, Inc. v. Florida Mango Office Park, Inc., 645 So.2d 1040 (Fla. 4th DCA 1994). In Reliable, the trial court entered two separate orders-one denying the defendant's motion for attorney's fees and costs and one granting the plaintiff's motion for attorney's fees and costs. Id. at 1041. While the order denying the defendant's motion for attorney's fees and costs was entered two months before the order granting plaintiff's motion for attorney's fees and costs, the defendants waited to appeal both orders together. Id. The Fourth District dismissed the appeal of the order denying the defendant's motion for attorney's fees and costs as untimely. Id. at 1042. The court held that the order was an appealable, non-final order because the trial court ruled on the entire issue pertaining to the defendant's motion for attorney's fees and costs and was not required to rule on any other issue regarding the motion. Id.; see also Gaccione v. Damiano, 35 So.3d 1008, 1009 n.1 (Fla. 5th DCA 2010) (noting that a portion of the trial court's order denying attorney's fees was appealable because the order was dispositive of a question of entitlement); BDO Seidman, 789 So.2d at 1020 (holding that under Clearwater Federal Savings & Loan Association v. Sampson, 336 So.2d 78 (Fla. 1976), post-judgment orders denying attorney's fees are final and appealable orders ). However, an order denying a motion for attorney's fees is not a final and appealable order when the trial court does not intend to end the judicial labor as to that order. See Scott v. Women's Med. Grp., P.A., 837 So.2d 577, 577 (Fla. 1st DCA 2003). Thus, because the defendant in Reliable waited to appeal the order denying its motion for fees, the appeal was untimely.

Here, the trial court, in its Second Order, ruled on the entire issue of Yampol's entitlement to attorneys' fees. In denying Yampol such entitlement, no further judicial labor on the issue of the amount of attorneys' fees owed to Yampol was required. Because that portion of the Second Order denying Yampol's entitlement to attorneys' fees is an appealable order, we deny Turnberry's motion to dismiss. See id.; see also BDO Seidman, 789 So.2d at 1020. To hold otherwise would prejudice Yampol's appellate rights.

Dismissal denied.

      In Sampson, the Florida Supreme Court stated that "[w]here an order after judgment is dispositive of any question, it becomes a final post decretal order." 336 So.2d at 79. The Court further stated that "[t]o the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment." Id.


author: LOGUE, J.

text:
    Felix SENCION, etc., et al., Appellants, v. MEDULA NETWORK, LLC, Appellee.
    No. 3D17-532
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Tom Regnier Appeals, P.A., and Thomas Regnier (Sunrise), for appellants.
    Sodhi Spoont PLLC, and Eric M. Sodhi and Joshua L. Spoont, for appellee.
    Before LAGOA, LOGUE, and LINDSEY, JJ.
   LOGUE, J.

Felix Sencion, Mundial Sports Network, and the Mundial Group, Inc. (collectively "Sencion"), seek review of the trial court's judgment in favor of Medula Network, LLC entered after default. The record demonstrates that Medula mailed several critical motions and notices, including those relating to the default, to the wrong mailing address. Because Sencion demonstrated excusable neglect, a meritorious defense, and due diligence, the trial court abused its discretion when it denied Sencion's motion to vacate the court's default. Accordingly, we reverse.

Background

In 2016, Medula filed suit against Sencion seeking payment for services rendered. Medula served Sencion at 28 East 28th Street, New York. Sencion responded by filing a letter with the court that claimed most of the money had already been paid. Medula then served Sencion by mail with a motion for clerk's default, an amended motion for court's default, and a notice of hearing for the amended motion for court's default. Rather than sending these documents to the address where Sencion was served, however, Medula mailed the motion and notices to Sencion's former address at 167 Madison Avenue, Suite 603, New York.

Sencion did not appear at the hearing and a default was entered against him. Sencion later reviewed the court docket and discovered the default. He filed a motion to vacate. In the affidavit in support, he testified that the motions and notices had been sent to a former address rather than his current address and he had no notice of the motion or hearing. Meanwhile, Medula moved for final summary judgment but again mailed the motion and notice to the wrong address. Sencion again did not appear at that hearing and the trial court entered a judgment for Medula. That same day, Medula moved to amend the judgment to include the proper 28th Street address. Approximately one week later, Sencion filed a motion to vacate the judgment. The motion to vacate and the motion for amended final summary judgment were both heard at the same time. The trial court denied Sencion's motion and entered the amended final summary judgment. This appeal followed.

Analysis

The trial court's denial of the motion to vacate the default judgment in this case is reviewed for abuse of discretion. Lloyd's Underwriter's at London v. Ruby, Inc., 801 So.2d 138, 139 (Fla. 4th DCA 2001) ("An order denying a motion to vacate a default is reviewed under an abuse of discretion standard."). But "[w]hen it comes to vacating defaults, Florida has a long and proud tradition of favoring adjudicating cases on the merits and setting aside defaults." M.W. v. SPCP Group, LLC, 163 So.3d 518, 519 (Fla. 3d DCA 2015). See Miami-Dade Cnty. v. Coral Bay Section C Homeowners Ass'n, Inc., 979 So.2d 318, 323 (Fla. 3d DCA 2008) ("Florida has a long-standing policy in favor of deciding lawsuits on their merits.") (citation omitted); Allstate Ins. Co. v. Ladner, 740 So.2d 42, 43 (Fla. 1st DCA 1999) ("The longstanding policy in Florida is one of liberality toward vacating defaults, and any reasonable doubt with regard to setting aside a default should be resolved in favor of vacating the default and allowing trial on the merits.") (citing North Shore Hosp., Inc. v. Barber, 143 So.2d 849, 852-53 (Fla. 1962) ).

In order to be granted relief from a default, a party "must show excusable neglect, a meritorious defense, and due diligence in seeking relief after learning of the default." Allstate, 740 So.2d at 43. Sencion satisfied each of these prongs.

Under Florida Rule of Civil Procedure 1.500, the court may enter a default "[w]hen a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules." However, "if such party has filed or served any document in the action, that party must be served with notice of the application for default."Id. Here, the crucial motions and notices were sent to the wrong address, as established by the certificates of service. In his sworn affidavit, Sencion testified that he had not received the amended motion for default, the corresponding notice of hearing, or the court's default order. Under these facts, Sencion demonstrated excusable neglect. Days v. Days, 655 So.2d 1302, 1303 (Fla. 1st DCA 1995) ("Generally, a prior judgment, decree or order must be set aside where there is excusable neglect in the form of a litigant's failure to receive notice of a pending hearing or trial.") (quotation omitted).

Sencion also established a meritorious defense. In both his letter filed with the court and in his affidavit, Sencion asserted that most of the money claimed by Medula had already been paid. Lastly, Sencion exercised due diligence in discovering the default and timely filing motions to vacate.

Because of the preference for adjudicating cases on the merits, and Sencion's establishment of excusable neglect, a meritorious defense, and due diligence, we hold that the trial court erred by not vacating the default. Miami-Dade Cnty., 979 So.2d at 323 ("Keeping in mind the admonition that in case of doubt, discretion is to be exercised in favor of vacating the default, we conclude that the default should have been vacated in this matter.") (citation omitted).

Reversed and remanded.


author: BLACK, Judge.

text:
    Sheri Lynn PORVAZNIK o/b/o E.M.P., Appellant, v. Robert Andrew PORVAZNIK o/b/o R.M.P., Appellee.
    Case No. 2D17-3425
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    Susan M. Bodden, Port Charlotte, for Appellant.
    Pamela T. Calderon, Venice, for Appellee.
   BLACK, Judge.

Sheri Porvaznik challenges the order dissolving a permanent injunction for protection against sexual violence. Ms. Porvaznik asserts that she did not have proper notice of the evidentiary hearing on Robert Porvaznik's motion to dissolve the injunction and thus that the lower court violated her due process rights by proceeding with the hearing and granting the motion without giving her an opportunity to be heard. Ms. Porvaznik also argues that the court erred in admitting the testimony of Mr. Porvaznik's expert witness. We reverse.

On June 14, 2017, Mr. Porvaznik filed a motion to dissolve the permanent injunction. A notice of hearing was served on July 14, 2017, indicating that the matter would be heard on August 15, 2017. Thereafter, an amended notice of hearing was served on August 10, 2017, indicating that the hearing on the motion had been rescheduled for August 22, 2017. Yet on August 15, Mr. Porvaznik appeared with counsel prepared to present evidence in support of his motion to dissolve the injunction. Neither Ms. Porvaznik nor her counsel was present. The matter was not on the court's docket for that day, and the court expressed concern that Ms. Porvaznik did not have adequate notice of the hearing. Nonetheless, the court proceeded with the evidentiary hearing on the motion to dissolve the injunction. At the conclusion of the hearing, the court held as follows: "So based on your expert today and the fact that the petitioner is not here, I'm going to go ahead and find that there's a change in circumstance, and dissolve this injunction." (Emphasis added.) The court entered an order dissolving the injunction that same day. Ms. Porvaznik then filed this appeal.

Without question, the court violated Ms. Porvaznik's due process rights in conducting the evidentiary hearing without notice and an opportunity to be heard. See Chanfrau v. Fernandez, 782 So.2d 521, 522 (Fla. 2d DCA 2001) ("Appellant was given no notice that the court would even contemplate dismissal [of permanent injunction against domestic violence] nor was he given an opportunity to argue against it. By dismissing the injunction without motion, notice, or evidentiary hearing, the court failed to afford appellant due process in this matter."); cf. Samanka v. Brookhouser, 899 So.2d 1190, 1191 (Fla. 2d DCA 2005) (reversing order extending and modifying an existing injunction against appellant for protection against domestic violence where appellant was not given an opportunity to challenge the allegations against her; concluding that since appellant did not have her "day in court," she was denied due process). We therefore reverse the order dissolving the injunction and remand for further proceedings. With proper notice, Ms. Porvaznik will have the opportunity to raise objections to the testimony presented at the evidentiary hearing and to cross-examine the witnesses as she sees fit.

Reversed and remanded.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: PER CURIAM. LUCK, J., dissenting.

text:
    Joao Batista Franca SAYAO, Appellant, v. KNIGHTSBRIDGE BUSINESS NETWORK, INC., Appellee.
    No. 3D17-1543
    District Court of Appeal of Florida, Third District.
    Opinion filed July 11, 2018
    Michael J. Lascelle, P.A. and Jeffrey S. Greenhaus, for appellant.
    Kravitz & Guerra, and Timothy W. Ross ; Roger M. Dunetz, for appellee.
    Before SALTER, LOGUE and LUCK, JJ.
   PER CURIAM.

Affirmed.

SALTER and LOGUE, JJ., concur.

LUCK, J., dissenting.

I would reverse and remand. See JVN Holdings, Inc. v. Am. Const. & Repairs, LLC, 185 So.3d 599, 601 (Fla. 3d DCA 2016) ("[R]efusal to allow an amendment is an abuse of the trial court's discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile." (quotation omitted) ).


text:
    Yuniel Mejias GONZALEZ, Appellant, v. Claudia Marin BAEZ, Appellee.
    No. 3D17-2167
    District Court of Appeal of Florida, Third District.
    Opinion filed July 11, 2018
    Yuniel Mejias Gonzalez, in proper person.
    Claudia Marin Baez, in proper person.
    Before ROTHENBERG, C.J., and LOGUE and LUCK, JJ.
   LOGUE, J.

The appellant, Yuniel Mejias Gonzalez, seeks review of the permanent domestic violence injunction entered against him by the trial court. We affirm.

Under Florida law, "[a] trial court is afforded broad discretion in granting, denying, dissolving or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court must not disturb the trial court's decision." Carricarte v. Carricarte, 961 So.2d 1019, 1020 (Fla. 3d DCA 2007) (quoting Jackson v. Echols, 937 So.2d 1247, 1249 (Fla. 3d DCA 2006) ). The abuse of discretion standard applies to instances in which the trial court's ruling on a request for a permanent injunction rests upon questions of fact. Carricarte, 961 So.2d at 1020. "This is particularly true where the order relies on live testimony or other evidence that the trial court is singularly well-suited to evaluate." Id. (citation omitted).

At the hearing in this case, the appellee testified to the incidents set forth in her petition for injunction. The appellee's aunt, who was present when the incidents occurred, testified and corroborated the appellee's testimony. The trial court also heard testimony from the appellant. The trial court expressly found the appellee and her aunt to be credible and found the appellant not credible. The trial court was well-suited to evaluate the testimony and, contrary to appellant's argument on appeal, nothing in the record demonstrates an abuse of discretion.

The appellant also argues that the appellee testified as to incidents that were not listed in her petition for permanent injunction and relies upon Sanchez v. Marin, 138 So.3d 1165 (Fla. 3d DCA 2014) and De Leon v. Collazo, 178 So.3d 906 (Fla. 3d DCA 2015) as bases for reversal. However, in both Sanchez and De Leon, the party against whom the injunction was sought objected to the testimony relating to incidents that were not set forth in the petition. Here, appellant failed to object to the allegedly improper testimony, and his counsel extensively cross-examined the appellee as to her testimony. See Faddis v. Luddy, 221 So.3d 758, 759-60 (Fla. 3d DCA 2017) (concluding that by not objecting below, the appellant failed to preserve his argument that the trial court denied him due process by considering testimony regarding prior incidents not alleged in the petition). Sanchez and De Leon are therefore distinguishable and inapplicable.

Affirmed.


author: EMAS, J.

text:
    Milton JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2371
    District Court of Appeal of Florida, Third District.
    Opinion filed July 11, 2018 Rehearing Denied July 11, 2018
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler and James Odell, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and LAGOA and EMAS, JJ.
    ON MOTION FOR REHEARING
   EMAS, J.

We deny appellant's motion for rehearing, withdraw our previous opinion, and substitute the following in its stead.

Milton Jackson was charged by information with armed burglary of an occupied structure with an assault or battery, domestic battery by strangulation, and kidnapping. Following a trial, the jury returned a verdict finding Jackson guilty of trespass (as a lesser included offense of burglary) and misdemeanor battery (as a lesser included offense of domestic battery by strangulation). The jury acquitted Jackson of the kidnapping charge.

On appeal, Jackson contends he is entitled to a new trial because the prosecutor made improper "golden rule" arguments in closing. We affirm, concluding that the prosecutor's arguments were not improper, but were relevant arguments supported by the evidence at trial, and were made in fair response to the defense's trial theory and closing argument.

EVIDENCE AND ARGUMENT AT TRIAL

On August 19, 2015, the victim was walking with a friend to a neighbor's house around the corner when Jackson pulled up in his car and called the victim over to talk with him. Jackson and the victim had previously been in an on-again, off-again relationship. The victim told Jackson that she would talk with him when she returned from the neighbor's house. When the victim returned a few minutes later, however, she did not see Jackson or his car. The victim said goodbye to her friend and went inside her house.

Immediately after entering her house, Jackson came up from behind the victim and put her in a chokehold. The victim began to lose consciousness, and Jackson proceeded to drag the victim by her hair into the bedroom where he beat her. Jackson then took the victim into the bathroom where he placed her in the bathtub. While in the bathtub, the victim pretended to be passed out. When Jackson left the bathroom, the victim got out of the bathtub and ran through her back door, fully nude, towards her neighbor, who was outside. The neighbor saw the victim, and also saw Jackson running behind the victim, holding a ceramic crucifix above his head. The neighbor grabbed a glass bottle, broke it in two and used it to threaten Jackson. Jackson started to laugh, saying "God told me to do it." The police arrived soon thereafter, and Jackson was taken into custody.

At trial, the defense's theory was that the incident didn't even happen, given the absence of any visible injuries on the victim which would be consistent with her description of the vicious attack by Jackson. In closing argument, defense counsel attempted to point out this absence of evidence:

DEFENSE COUNSEL: [The victim's] version of events is not really what happened that day.
....
[T]here is no[t] even [a] break-up or anything that happens prior to this.
The defendant just happens to be in her home and just happens to decide that he just wants to attack her.
....
He must have been holding on to [the victim] so tightly that she passed out and could not remember and lost consciousness.
Yet, we talked about corroboration in jury selection. You have these photographs [of the victim's injuries]. There's no marks around her neck. There's no bruising around her neck. There's no redness.
There's not one swelling, bruise, fingermarks, scratches, anything around her neck.
It's not there because there was no strangulation, members of the jury. There's no corroboration.
....
[A]nd also, she mentioned ... that she was dragged by her hair from one room to the next.
Members of the jury, if someone is holding on to your hair so tightly dragging you from one room to the next you would expect for there to be hair on the floor.
When you look at these photographs you're not going to see that.
....
If you get hit repeatedly to the head over and over again with a Grey Goose bottle you're going you have bleeding; you're going to have cuts; you're going to need stitches. When you look at those photographs of [the victim] there's no bleeding.
....
It is impossible to believe her story if there is no Grey Goose bottle and if there is no blood.
They can try and say that, you know, the Rescue cleaned her up and that's why there's no blood in any of the photographs, except that's not what [the victim] said. [The victim] said they didn't do anything. They gave me an ice pack.
She didn't get stitches. She didn't get any bandages. She didn't go to the hospital. No. There's no blood and there's no Grey Goose bottle because it didn't happen the way [the victim] is saying it happened. It didn't happen.

The defense also compared the victim's trial testimony and the statements she made to the officer who arrived on the scene shortly after the crime was committed, noting the inconsistencies.

DEFENSE COUNSEL: You're also allowed to consider the prior inconsistent statements. Now, you heard [the victim] testify that she hit her head on the wall. You heard her admit on the stand today that that was the-today in court, over a year later, that is the first time she ever testified to that.
Members of the jury, you didn't leave your common sense at the door. Everyone knows that memories actually fade over time; they don't get better.
We are now over a year, a year and a month later and this is the first time that she's testifying that Mr. Jackson slammed her head into the wall as he was bringing her into the bathroom.
Why is today the first day that she's talking about that? Why is today the first day that she brings that up because her story is starting to unravel. Her version of events is not what really happened that day.
....
As I mentioned there's conflicting testimony if Mr. Jackson even lives there. She sat there and said no, he didn't live there; he didn't live there. You ... heard Officer Michel say [the victim] told him on the date of the incident that [Jackson] lived there. Well, which one is it: did he live there; did he not live there?

In response to the defense's closing argument, the State made the following argument in its rebuttal closing:

PROSECUTOR: Something that's also very important that I want everybody here to understand. [The victim] walked into her home that night, was put into a chokehold, was dragged by her hair, was hit across the head numerous times with a bottle, and when she realized at one point that she can actually get free she took that option.
But now the defense is trying to say that at the end part of all of this beating, after it all takes place because there's certain things she said-that the Rescue gave her an ice pack instead of cleaning her up. Oh, she wasn't bleeding; she was lying.
Think about what state of mind she's in. You heard the officer. He said trying communicating with her, and she was hyperventilating like she couldn't breathe. She was having a hard time.
Think about the state of mind she's in at that point in time that all these questions were asked to her. What happened? What happened? And she's trying to deal with her own health issues while trying to interact with police-
DEFENSE COUNSEL: Objection, golden rule.
THE COURT: Overruled. Continue. You've got about five minutes left.

The defense preserved this asserted error by contemporaneous objection, and later moved for a mistrial, which the trial court denied. On appeal, Jackson asserts that a new trial is required, because the prosecutor impermissibly invited the jurors to place themselves in the victim's shoes and to feel the pain and suffering experienced by the victim.

ANALYSIS

A trial court's ruling on a motion for mistrial is within the sound discretion of the court and will be sustained on appeal absent an abuse of that discretion. Salazar v. State, 991 So.2d 364 (Fla. 2008) ; Ford v. State, 802 So.2d 1121, 1129 (Fla. 2001). See also Diaz v. State, 139 So.3d 431, 434 (Fla. 3d DCA 2014) (noting: "A trial court's rulings regarding the propriety of comments made during closing argument are reviewed for an abuse of discretion"). In the context of closing arguments, if the trial court overruled the defense's contemporaneous objection, and we determine that the comments were indeed improper, we apply the harmless error standard of review. Snelgrove v. State, 921 So.2d 560, 568 (Fla. 2005). This standard 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." Ibar v. State, 938 So.2d 451, 466 (Fla. 2006) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986) ).

Jackson contends that the prosecutor's comments were a prohibited "golden rule" argument, impermissibly inviting the jurors to place themselves in the victim's shoes and to imagine the pain and suffering experienced by the victim. We do not agree.

" 'Golden rule' arguments are arguments that invite the jurors to place themselves in the victim's position during the crime and imagine the victim's suffering." Mosley v. State, 46 So.3d 510, 520 (Fla. 2009). Closely related is the concept that closing argument "must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law." Lewis v. State, 780 So.2d 125, 129 (Fla. 3d DCA 2001).

Importantly, the State "can comment on the crime as long as the comments 'are based on evidence introduced at trial and are relevant to the circumstances of [the crime] ...' but may not 'cross the line by inviting the jurors to place themselves in the position of the victim.' " Braddy v. State, 111 So.3d 810, 842 (Fla. 2012) (quoting Mosley, 46 So.3d at 521 ).

Thus, in evaluating whether an argument violates the "golden rule," we should not limit our consideration to the words uttered. Rather, we must also consider the relevance and purpose for which the argument was made; the trial evidence supporting the argument; the context in which the argument is made; and whether the argument is in fair reply to the issues raised or arguments advanced by the defense.

Applying these considerations to the instant case, we conclude there was no golden rule violation. The State's closing arguments did not ask or invite the jurors to place themselves in the shoes of the victim to imagine her pain and suffering. Rather, the State pointed to the trial testimony and other evidence in an effort to rebut the defense theory (as argued in the defense closing) that the incident did not even happen, or at least did not happen in the manner and to the extent contended by the State. In support of this theory, the defense closing highlighted the inconsistencies between the victim's trial testimony and her statements to the police, as well as the absence of evidence to corroborate the victim's account of the physical violence visited upon her by Jackson.

On direct examination, Officer Michel testified that the victim was "wet all around," was "perspiring heavily and breathing heavily. She couldn't speak because she was gasping for air. She seemed to be fading in and out of consciousness." Officer Michel further testified that he tried to speak with the victim but "it wasn't feasible to talk to her. She couldn't talk. She could barely breathe. All she kept saying was that she wanted to lay down. She couldn't breathe. Her eyes kept rolling in the back of her head."

We conclude that the prosecutor's argument was advanced in response to the defense's claim that the victim's version of the events was not credible, was inconsistent with her prior statements to the police, and was uncorroborated by any evidence of injuries one would expect to see from the attack she described. Viewed in the context of the record and juxtaposed against the defense's theory, the complained-of comments were simply a part of the State's argument that Officer Michel's observations of the victim and her condition, made shortly after the crime, supported the victim's version of what happened on the night in question. The comments were also offered in support of the State's contention that any inconsistencies between the victim's statements on the scene and her trial testimony could be explained by the victim's mental and physical state at the time she first spoke with Officer Michel.

CONCLUSION

The mere fact that the State asked the jury to consider the victim's mental and physical condition shortly after the crime was committed did not transform this argument into a golden rule violation. Instead, because the arguments advanced by the State were based upon and supported by the evidence introduced at trial, were relevant to an issue in dispute, were made in fair reply to the arguments and theories advanced at trial by the defense, and were not made to inflame the passions or sympathy of the jury or otherwise improperly prejudice the defendant, we find the complained-of argument was not a golden rule violation and the trial court properly overruled the objection.

Affirmed.

      Upon appellant's motion, we granted supplemental briefing in which appellant raised additional instances of allegedly improper comments made by the State during its rebuttal closing argument. However, we find no merit in these claims; the trial court properly overruled objections to comments made in fair response to the defense closing, and properly sustained objections to comments it found improper. To the extent that the trial court improperly overruled an objection to any of these isolated comments, we conclude such error was harmless beyond a reasonable doubt. See Evans v. State, 177 So.3d 1219 (Fla. 2015) ; Muhammad v. State, 782 So.2d 343 (Fla. 2001). The trial court did not abuse its discretion denying appellant's motion for mistrial. Salazar v. State, 991 So.2d 364 (Fla. 2008).

      It is worth noting that the concept of a "golden rule" violation was originally limited in application to civil trials where the plaintiff invited jurors to place themselves in the shoes of the plaintiff and asked jurors to award an amount of damages they (the jurors) would want if they suffered the same injuries suffered by plaintiff. See, e.g., Bullock v. Branch, 130 So.2d 74, 75-76 (Fla. 1st DCA 1961) (disapproved on other grounds by Murphy v. Int'l Robotic Syss., Inc., 766 So.2d 1010 (Fla. 2000) ) (first reported Florida case addressing "golden rule" violation, where plaintiff's counsel argued to the jury: "[T]he court will instruct you that [plaintiff is] entitled to compensation at your hand at such figure that you think is right for his pain suffering and for his discomfort, not only in the past but in the further. How much would you pay to have half inch cut inflicted in your skull? .... What would I have to pay to inflict a half inch cut into your skull, to render you unconscious, to put you home in bed for a week, to force you to use a cane or crutches for months after that, and to leave you for the balance of your life with your walk affected, with your speech affected, with a tremor, with your memory affected, with your handwriting affected? What do you think it's worth?") Some years later, the concept of golden rule migrated to closing arguments in criminal trials as well. See, e.g., Cumbie v. State, 378 So.2d 1 (Fla. 1st DCA 1978) (quashed on other grounds by State v. Cumbie, 380 So.2d 1031 (Fla. 1980) ) (holding it was a golden rule violation for state to argue to jury in sexual battery case: "Now, we men often times can't appreciate the assault on a body that a woman has to undergo when she is being raped or attempted to be raped, but I think we can think about it and kind of try to imagine, if you think of yourself in a similar situation ....")
      Nevertheless, most of the decisions condemning arguments as golden rule violations in the criminal trial context could just as easily have been condemned on broader principles which prohibit arguments that, for example, "unduly arouse and inflame the sympathy, prejudice and passions of the jury to the detriment of the accused." Barnes v. State, 58 So.2d 157, 159 (Fla. 1951). See also Gonzalez v. State, 136 So.3d 1125, 1153 (Fla. 2014). The salient point is this: assigning a label (such as "golden rule") to an argument in a vacuum does little to advance the requisite analysis. The mere fact that a prosecutor in closing argument addresses a victim's mental state, physical state, or injuries suffered does not, standing alone, render the argument a golden rule violation. Such an ipso facto analysis ignores the need to consider the surrounding circumstances of the comment, including the trial evidence supporting the argument, the context in which the argument is made, the relevance and purpose for the argument, and whether it is in fair reply to the issues raised or arguments advanced by the defense.

      Indeed, it has not escaped our notice that the jury, by its verdict, apparently agreed with defense counsel that there was at least a reasonable doubt regarding the nature and severity of any attack upon the victim: Jackson was charged with domestic battery by strangulation, but the jury found him guilty of the lesser included offense of simple (misdemeanor) battery; Jackson was charged with armed burglary with an assault or battery, but the jury found him guilty of the lesser included offense of trespass; and Jackson was charged with kidnapping, but the jury found him not guilty of this charge.


text:
    Bobby Kevin WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1573
    District Court of Appeal of Florida, First District.
    July 11, 2018
    Kerry Adkison, Chipley, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Following a jury trial, Bobby Kevin Williams was convicted of grand theft and failure to appear. This Court affirmed his judgment and sentence. Williams now challenges the final order of the postconviction court on his claims of ineffective assistance of trial counsel. We agree with the court's assessment of all but one of his claims.

In his first claim, Williams alleged that during jury deliberations, when neither defense counsel nor the trial judge was present, the jury asked to review the surveillance video in evidence. The prosecutor responded by informing the bailiff that the jury could view the recording on the court's video player. The bailiff returned a few minutes later and informed the prosecutor that the video player was not working properly. The prosecutor then accompanied the bailiff into the jury room to show the jurors how to view the video on the prosecutor's laptop. When defense counsel returned, Williams told counsel about what had happened, but counsel declined to bring the issue to the court's attention. Williams attached two witness affidavits to his motion to support his claim. He submits that he was deprived of a fair and impartial trial due to counsel's inaction in the face of clear prosecutorial misconduct.

The postconviction court determined that the claim was facially insufficient because it failed to properly allege prejudice. After giving Williams two opportunities to amend, the court dismissed the claim with prejudice.

To state a facially sufficient claim of ineffective assistance of counsel, the movant must allege deficient performance on the part of trial counsel and prejudice resulting from that deficient performance. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accepting Williams's allegations as true, which we must do at this stage of our review, see Flagg v. State , 179 So.3d 394, 396 (Fla. 1st DCA 2015), we conclude that it was error for the court to dismiss this claim. See Brown v. State , 538 So.2d 833, 836 (Fla. 1989) ("[C]ommunications from the jury must be received by the trial judge in person and ... the absence of the judge when a communication is received and answered is reversible error."); Harbaugh v. State , 711 So.2d 77, 80 (Fla. 4th DCA 1998) ("[A] trial judge is required to be present at any aspect of the trial where the lawyers or the parties are in extended contact with the jury, unless the defendant himself makes a sufficient waiver on the record of the judge's presence.").

We therefore reverse the dismissal of this claim and remand for the court either to attach records that conclusively refute the allegations or to conduct an evidentiary hearing to determine the merits of the claim. The order is affirmed in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

B.L. Thomas, C.J., and Wolf and Ray, JJ., concur.


author: KHOUZAM, Judge.

text:
    Julio S. CENDEJAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3957
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018
    Julio S. Cendejas, pro se.
   KHOUZAM, Judge.

Julio Cendejas challenges the order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the denials of claims two, three, and four and remand for further proceedings. We affirm the denial of claim one without comment.

Mr. Cendejas was charged with ten counts of trafficking in various narcotics; possession of a structure used for trafficking, sale, or manufacture of a controlled substance; possession of drug paraphernalia; armed trafficking in amphetamine; and possession of a firearm by a convicted felon. He entered a negotiated guilty plea to counts two, three, five, six, eight, and nine, and the State entered a nolle prosequi on counts one, four, seven, and ten. On counts two, five, and eight, Mr. Cendejas was sentenced to concurrent fifteen-year prison terms, to be followed by five years' probation on each count. He also received mandatory minimum terms of ten years and three years on count eight pursuant to sections 775.087(2) and 893.135(1), Florida Statutes (2015). He was sentenced to time served on counts three, six, and nine. Mr. Cendejas filed a motion for postconviction relief, in which he raised three claims of ineffective assistance of trial counsel and one claim of cumulative error.

We review the order summarily denying Mr. Cendejas' motion de novo. Sanchez v. State, 210 So.3d 252, 254 (Fla. 2d DCA 2017). We review a postconviction court's summary denial of postconviction claims "to determine whether the claims are legally sufficient and whether they are conclusively refuted by the record." Watson v. State, 34 So.3d 806, 808 (Fla. 2d DCA 2010) (quoting Griggs v. State, 995 So.2d 994, 995 (Fla. 1st DCA 2008) ). "When a postconviction court summarily denies a defendant's motion without an evidentiary hearing, an appellate court 'must accept a defendant's factual allegations as true to the extent they are not refuted by the record.' " Balmori v. State, 985 So.2d 646, 649 (Fla. 2d DCA 2008) (quoting Floyd v. State, 808 So.2d 175, 182 (Fla. 2002) ).

To plead a claim of ineffective assistance of counsel, Mr. Cendejas was required to allege facts that show that counsel's performance was deficient and that counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the prejudice prong in the context of a guilty plea, Mr. Cendejas had to allege that but for counsel's ineffectiveness there was a reasonable probability that he would have insisted on going to trial. See Campbell v. State, 139 So.3d 490, 494 (Fla. 2d DCA 2014) (citing Cousino v. State, 770 So.2d 1258, 1260 (Fla. 4th DCA 2000) ).

In claim two, Mr. Cendejas argued that his plea was involuntary "due to counsel's patently deficient failure to properly inform him in advance that the agreed upon plea offer ha[d] been enhanced to a much harsher sentence." More specifically, he alleged that while he and trial counsel had discussed his entering a guilty plea and receiving fifteen-year sentences for counts two, five, and eight, he was not advised of the probationary terms or mandatory minimum sentences. He claimed that had he known he would receive mandatory minimum and probationary terms, he would not have entered the plea.

Counsel's misadvice regarding the length of a sentence may constitute a basis for postconviction relief. State v. Leroux, 689 So.2d 235, 236 (Fla. 1996) ; Cherry v. State, 837 So.2d 597, 598 (Fla. 2d DCA 2003) ("A defendant may seek to withdraw his plea on the ground that it was involuntary due to reliance on counsel's misadvice or misrepresentation regarding the length of a sentence or the amount of time the defendant would serve."); Townsend v. State, 927 So.2d 1064, 1065 (Fla. 4th DCA 2006) ("A mandatory minimum sentence is a direct consequence of a defendant's plea, and the failure to advise a defendant of this consequence renders a plea involuntary." (quoting Thornton v. State, 747 So.2d 439, 441 (Fla. 4th DCA 1999) ) ). Because Mr. Cendejas filed a facially sufficient claim, the only issue before us is whether the claim was conclusively refuted by the record.

Here, the postconviction court relied only on the signed plea form to summarily deny Mr. Cendejas' claim, finding that the mandatory minimum and probationary terms were "clearly contained within the written plea agreement, signed by" Mr. Cendejas. This court has held, however, that "the existence of a signed, written plea agreement, by itself, is insufficient to refute a defendant's claim" that his plea was entered involuntarily. Rivera v. State, 746 So.2d 542, 542 (Fla. 2d DCA 1999) (citing McCallum v. State, 591 So.2d 318, 319 (Fla. 4th DCA 1991) ); see also Cox v. State, 974 So.2d 474, 475 (Fla. 2d DCA 2008) (reversing and remanding summary denial of postconviction claim that plea was involuntary because "a signed, written plea agreement, standing alone, is insufficient to refute a defendant's claim that he misunderstood the terms of the plea agreement or that no other promises were made to induce the plea").

"[A] waiver of rights form can only refute a defendant's claim of involuntary plea if the trial court conducted a proper plea colloquy and determined that the defendant understood the form." Campbell, 139 So.3d at 494 (holding that the waiver of rights form signed by the defendant was insufficient to conclusively refute his claims that his plea was involuntary because the transcript of plea hearing reflected that the trial court failed to conduct proper inquiry); see also Townsend, 927 So.2d at 1066 (rejecting the State's argument that the appellant's claim was conclusively refuted by the signed, written plea form containing the three-year mandatory minimum sentence because the record reflected that the "trial court made no effort to determine if the defendant could read the form, had the requisite level of education or mental capacity to understand the form, or whether the form had been read or explained to him"). Without a transcript of the plea colloquy, we cannot know whether the plea was voluntarily entered. Thus, because the postconviction court attached only the signed plea agreement, claim two is not conclusively refuted by the record. Accordingly, we reverse the denial of claim two and remand for the postconviction court to either attach portions of the record that conclusively refute the claim or to conduct an evidentiary hearing.

Mr. Cendejas argued in claim three that trial counsel was ineffective for failing to object to the imposition of the ten-year mandatory minimum sentence imposed on count eight for his possession of a firearm, see § 775.087(2)(a)(1)(q), and for failing to reserve his right to appeal issues that he would be entitled to raise in the appellate court. He further claimed that he entered into plea negotiations "with the reasonable belief that his right to appeal any and all dispositive issues was to be preserved."

In denying the claim, the postconviction court again relied solely on the plea agreement, specifically pointing to the provision that stated Mr. Cendejas understood that by entering a plea without reserving the right to appeal, he was waiving his right to appeal all matters. The court further found that to the extent Mr. Cendejas was arguing that trial counsel should have challenged the factual basis for the charges to which he pleaded, Mr. Cendejas could not "accept the benefit of the plea wherein the State nolle prossed certain counts in exchange for the Defendant's plea to other counts, to then attempt to challenge the factual matters for which he stipulated by entering into the plea in the first place."

Mr. Cendejas' claim of ineffectiveness is essentially another claim that his plea was involuntary due to trial counsel's deficient performance. See, e.g., Larson v. State, 43 Fla. L. Weekly D865, 2018 WL 1883735 (Fla. 2d DCA Apr. 20, 2018) ("[A]lthough the claim may be couched in terms of ineffective assistance of counsel, the issue is truly whether the plea was entered involuntarily."). Although we conclude that, for the same reasons discussed in claim two, claim three is not conclusively refuted by the record, the claim is facially insufficient because Mr. Cendejas has not alleged that but for trial counsel's deficient performance he would have insisted on going to trial. See Campbell, 139 So.3d at 494. Because his claim is facially insufficient and not conclusively refuted by the record, we reverse and remand so that the postconviction court may strike the claim and provide Mr. Cendejas sixty days to amend it. See Fla. R. Crim. P. 3.850(f).

In claim four, Mr. Cendejas alleged a claim of cumulative error. Because we must reverse claims two and three, we also reverse the postconviction court's denial of this claim so that it may reconsider the claim after it has reconsidered claims two and three. See Flint v. State, 84 So.3d 469, 471 (Fla. 2d DCA 2012).

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

CASANUEVA and MORRIS, JJ., Concur.