author: WALLIS, J.

text:
    Helen Joyce WALSH, Appellant, v. David M. WALSH, Appellee.
    Case No. 5D17-1655
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 14, 2018
    Marcia K. Lippincott, of Marcia K. Lippincott, P.A., Lake Mary, and Clayton D. Simmons, of Clayton D. Simmons, P.A., Lake Mary, for Appellant.
    Andrew Joseph Chmelir, of Jacobson, McClean & Ferwerda, Winter Springs, for Appellee.
   WALLIS, J.

Helen Walsh (Wife) appeals the order denying her amended motion for enforcement and contempt sanctions against David Walsh (Husband) and the order denying her motion for attorney's fees. She contends that the trial court erred in several respects, many of which stem from the trial court's misinterpretation of the parties' Marital Settlement Agreement (MSA). Finding the trial court committed numerous errors, we reverse and remand.

In March 2008, Husband and Wife entered into the MSA in order to resolve financial issues related to the dissolution of their long-term marriage. Although Wife raises numerous claims on appeal, the central issue relates to the parties' interpretation of the definitions of the terms "gross income," "periodic income," and "periodic alimony" as used in the MSA.

The MSA states, inter alia :

8. ALIMONY FOR WIFE. The Husband shall pay to the Wife for her support and maintenance as permanent, periodic alimony thirty percent (30%) of the Husband's gross income. Gross income is to be defined as the periodic income that Husband receives as a direct result of his employment efforts, before considering any deferrals and tax affected retirement savings husband may elect to have deducted from his pay. Income that Husband receives as a result of his assets and/or savings that were previously divided with Wife, pursuant to this agreement, or income from any of Husband's new investments and/or savings, after April 26, 2005 or thereafter, are not gross income to be used to determine Wife's future alimony payments .... Husband's business expenses and related reimbursements are not to be considered income to Husband.
....
Payments may be made bi-monthly on the first and fifteenth of the month.

(emphasis added). Additionally, Husband and Wife executed an Addendum to the MSA, which they agreed would control if the Addendum and the MSA were in conflict. Paragraph 1 of the Addendum provides that Husband agrees to pay Wife "periodic alimony in the minimum amount of $2,000.00 per month inclusive of the 30% of Husband's income until she dies or remarries, or cohabitates with another individual per section 3 below." Subsequently, the court entered the Final Judgment dissolving the parties' marriage, which incorporated the MSA and the Addendum by reference.

In March 2017, Wife filed her amended motion for enforcement and contempt sanctions (Motion for Enforcement), claiming Husband violated the Final Judgment by paying Wife alimony based upon his adjusted gross income after deferrals were made. Wife additionally requested that Husband pay her attorney's fees. In response, Husband moved in limine to exclude the admission of parol evidence at the hearing on Wife's Motion for Enforcement, claiming that the language in the MSA is clear and unambiguous when it defines Husband's income and corresponding alimony obligation.

During the hearing on the Motion for Enforcement, the court granted the motion in limine and refused to consider parol evidence, finding that paragraph 8 of the MSA clearly defines the term "gross income." However, the court permitted Wife to proffer a tax code expert's testimony into the record.

After the proffer, Husband provided detailed testimony regarding his compensation structure for his job as a corporate executive. Husband explained that he was subject to different compensation programs that, at times, included base pay, "income deferrals," and the opportunity for performance-based bonuses. He also testified that he routinely paid Wife 30% of his yearly bonuses. According to Husband, he overpaid Wife alimony in the amount of $263,912.10 because he wanted to be cautious, even though he did not believe it was necessary to do so under the MSA. At the hearing, Husband's attorney clearly informed the trial court and Wife that Husband was not seeking a credit for any overpayment of alimony.

After considering the matter, the trial court entered an order denying the Motion for Enforcement and granting the motion in limine to exclude parol evidence. The court specifically found that the MSA and the Addendum are clear and unambiguous and are not subject to attack by parol evidence. The court additionally found that Husband overpaid Wife $263,912.10 in alimony, and that Husband's obligation to pay no less than $2000 per month as stated in the Addendum was exceeded by cumulative alimony payments that he made in 2016. The court, therefore, awarded Husband a credit for his alimony overpayments.

Wife thereafter filed a supplemental motion for attorney's fees and a motion for rehearing. The trial court granted Wife's motion for rehearing solely for the purpose of interpreting the meaning of paragraph 4(D) of the MSA and determining if it controls whether the court may award attorney's fees. Paragraph 4(D) of the MSA reads, inter alia :

A party who fails on demand to comply with this provision or any other obligation contained in this Agreement shall pay to the other party all attorney's fees, costs and other expenses reasonably incurred as a result of that failure or the enforcement of the obligation.

The court ultimately denied Wife's motion for attorney's fees, finding that Paragraph 4(D) was never triggered because Husband did not fail to comply with the requirements of the parties' agreements and, in fact, overpaid his alimony obligation under the MSA.

Wife appeals the order denying the Motion for Enforcement and the order denying her motion for attorney's fees. She specifically claims that the trial court misinterpreted the MSA, improperly excluded parol evidence at the hearing, abused its discretion when it awarded Husband a credit for alimony overpayments against future alimony, and erred when it denied her request for attorney's fees.

A marital settlement agreement is a contract subject to the well-settled principles of contract interpretation. Crawford v. Barker, 64 So.3d 1246, 1255 (Fla. 2011). When interpreting a marital settlement agreement, "the language itself is the best evidence of the parties' intent, and its plain meaning controls." Id. (quoting Richter v. Richter, 666 So.2d 559, 561 (Fla. 4th DCA 1995) ). Courts routinely consult dictionaries to ascertain the plain meaning of words used in contracts. Burlington & Rockenbach, P.A. v. Law Offices of E. Clay Parker, 160 So.3d 955, 958 (Fla. 5th DCA 2015). "The entire contract should be considered and provisions should not be considered in isolation to other provisions in the contract." Id. The goal of contract interpretation is to arrive at a reasonable interpretation of the text in order to accomplish its stated meaning and purpose.

Am. K-9 Detection Servs., Inc. v. Cicero, 100 So.3d 236, 238-39 (Fla. 5th DCA 2012).

When a contract is unambiguous and clear, it must be interpreted in accordance with its plain meaning. Washington Nat'l Ins. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013). If, however, a contract is reasonably susceptible to more than one interpretation, it is ambiguous. Elias v. Elias, 152 So.3d 749, 752 (Fla. 4th DCA 2014). In that instance, the issue of proper interpretation of the ambiguous contract is a question of fact requiring the submission of extrinsic evidence to show the intent of the parties when the contract was drafted. Id.

Contrary to the court's findings, paragraph 8 of the MSA does not clearly show that the parties intended to exclude from income for alimony calculation purposes "incentive based payments or bonuses" and other types of income. Rather, the definition of "gross income" included in paragraph 8, and, specifically, the term "periodic income" is susceptible to two reasonable interpretations.

For example, the dictionary defines "periodic" as "occurring or recurring at regular intervals" or "occurring repeatedly from time to time." Periodic , Merriam-Webster's Collegiate Dictionary 921 (11th ed. 2012). This definition reveals two reasonable interpretations. First, based on the first portion of the definition of periodic, one reasonable interpretation is that something is periodic when it occurs more than once and at regular intervals. Based on this definition, it is reasonable to find, as the trial court found, that the parties meant for the term "periodic income" to mean only that income that Husband receives at "regular intervals" like base pay, and they meant to exclude other types of income that Husband did not receive on a regular basis or that he usually received but that were not guaranteed income. Second, based on the second part of the dictionary definition of "periodic," another reasonable interpretation of "periodic income" could mean income that Husband received "repeatedly from time to time" like bonuses and incentive pay that he received more than once. Even though the bonuses and incentive pay were not paid at regular intervals, they would still qualify as "periodic income" for purposes of the MSA because Husband received them from "time to time" as a "direct result of his employment efforts."

Because the term "periodic income" is susceptible to two reasonable interpretations, those terms are ambiguous, and the court erred in finding otherwise. See Washington Nat'l Ins., 117 So.3d at 949 ; Elias, 152 So.3d at 752. Accordingly, the parties' intent in drafting that provision was a question of fact that the lower court needed to resolve. See Land O'Sun Realty Ltd. v. REWJB Gas Invs., 685 So.2d 870, 872 n.3 (Fla. 3d DCA 1996). Therefore, the trial court should have allowed the introduction of extrinsic evidence to establish the parties' intent in drafting the MSA as it relates to the definition of "gross income" for purposes of calculating alimony. See Elias, 152 So.3d at 752 ; Land O'Sun, 685 So.2d at 872.

We additionally conclude that the trial court erred when it awarded Husband a credit for his overpayment of alimony because the issue was not raised in the pleadings and it was not tried by consent. See Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So.2d 1244, 1252 (Fla. 2008) (allowing a court to rule on a matter without proper pleading and notice violates party's due process rights). Therefore, the trial court violated Wife's due process rights when it awarded Husband a credit against alimony in its order on the Motion for Enforcement. See id.

Finally, we conclude that the trial court erred by denying Wife's request for attorney's fees pursuant to section 61.16, Florida Statutes. As previously explained, marital settlement agreements are governed by contract principles. Mott v. Mott, 800 So.2d 331, 333 (Fla. 2d DCA 2001). A party can waive his right to attorney's fees under section 61.16 in a marital settlement agreement. DeCampos v. Ferrara, 90 So.3d 865, 869 (Fla. 3d DCA 2012). However, such a waiver "depends upon express language to that effect." Id. Here, there is no provision in the MSA that specifically states that the parties waived their right to attorney's fees under section 61.16. Moreover, none of the provisions discussing attorney's fees can be read as an implicit waiver of the right to recover fees pursuant to section 61.16. Because the language of the MSA does not specifically waive the right to pursue fees under section 61.16, it was error for the lower court to deny Wife's motion for attorney's fees without considering her need for fees and Husband's ability to pay. See Caryi v. Caryi, 119 So.3d 508, 511 (Fla. 5th DCA 2013) (finding provision in MSA that stated "[t]he parties shall each be responsible for his or her own attorneys' fees and costs associated with this matter" did not reflect intent by either party to waive right to seek attorneys' fees award in subsequent action); Planes v. Planes, 477 So.2d 42, 42-43 (Fla. 3d DCA 1985) (finding footnote in parties' agreement stating that wife waives "any and all claims that she now has, or may ever have, to ... attorney's fees" does not prevent award of section 61.16 fees in enforcement proceeding).

For the previously explained reasons, we reverse the order denying Wife's Motion for Enforcement and remand so that the trial court can determine the parties' intent regarding alimony when they drafted the MSA. On remand, the trial court shall consider relevant extrinsic evidence offered by the parties regarding their intent in drafting the MSA. Additionally, we remind the trial court that it should not award relief beyond the scope of the pleadings. We finally reverse the order denying Wife's motion for attorney's fees and remand so that the trial court can determine whether it is appropriate to award Wife attorney's fees under section 61.16.

REVERSED and REMANDED with Instructions.

EDWARDS and HARRIS, JJ., concur.

      During this litigation, Husband has taken inconsistent positions regarding his bonuses. Although Husband argues on appeal that any bonuses he received throughout his career were neither guaranteed payments nor periodic income as defined by the MSA and the Addendum, he routinely paid Wife 30% of those bonuses.

      Normally, Wife's failure to request rehearing on the credit issue would preclude appellate review. See Hall v. Marion Cty. Bd. of Cty. Comm'rs, 236 So.3d 1147, 1153 (Fla. 5th DCA 2018). However, the deprivation of Wife's due process rights was fundamental error that may be raised for the first time on appeal. See id. at 1153-54.

      We also note that the trial court erred when it awarded Husband a credit for his overpayment of alimony because there is no evidence from the hearing that: (1) the parties agreed that Husband would overpay Wife alimony in certain years and then receive a credit for that overpayment later; or (2) it would be equitable to award Husband a credit for the overpayment, especially since he deducted those overpayments on his taxes. See Martinez v. Martinez, 383 So.2d 1153, 1155 (Fla. 3d DCA 1980) (finding husband not entitled to a refund of overpayments of alimony where they were voluntarily made and not contemplated as a loan from husband to wife); Hubshman v. Hubshman, 379 So.2d 670, 671 (Fla. 4th DCA 1980) (holding court erred in awarding husband credit toward future alimony where neither party had considered overpayments as advances on future alimony payments and they were more in nature of gifts to wife).


source: Caselaw Access Project

author: KHOUZAM, Judge.

license: Public Domain

text:
    Cynthia J. BRO, Appellant, v. Keith BRO, Appellee.
    Case No. 2D18-31
    District Court of Appeal of Florida, Second District.
    Opinion filed December 14, 2018
    Ingrid Anderson, Clearwater, for Appellant.
    No appearance for Appellee.
   KHOUZAM, Judge.

Cynthia J. Bro appeals the amended final judgment of dissolution of her marriage to Keith Bro. We reverse and remand for the trial court to reconsider the equitable distribution scheme.

The parties were married in St. Petersburg, Florida, on November 26, 2005. They separated on or about July 8, 2014. Ms. Bro filed a petition for dissolution on July 18, 2014, and Mr. Bro filed a counter-petition shortly thereafter. Two children were born of the marriage: A.E.B., a boy born in 2007, and A.C.B., a boy born in 2009. During the marriage, the parties owned and operated multiple businesses, including CK Holdings, LLC, a real estate holding company that owned an office/warehouse facility. Ms. Bro, a certified public accountant, also had her own accounting firm.

The parties resolved all issues related to parental responsibility and timesharing in an agreed-upon parenting plan, which the court ratified. They also entered into a partial marital settlement agreement, which was approved by the court and resolved much of the equitable distribution of their assets and liabilities. However, the agreement left open several issues for the court to address, including the distribution of CK Holdings as well as the parties' prior federal income tax refunds and liabilities.

A final evidentiary hearing was held on October 9, 2017, and the amended final judgment of dissolution of marriage was entered on December 14, 2017. As to CK Holdings, the court ordered the business's property to be sold and the proceeds to be distributed between the parties. As to tax refunds and liabilities, the court found that the $55,119.67 refund Ms. Bro received from her personal tax return in 2013 was a marital asset and that Mr. Bro was entitled to a portion of it. Ms. Bro argues on appeal that both of these holdings are erroneous. We agree.

"The standard of review for a trial court's equitable distribution of marital assets and liabilities is abuse of discretion." Callwood v. Callwood, 221 So.3d 1198, 1201 (Fla. 4th DCA 2017). It is true that "[t]he trial judge can ordinarily best determine what is appropriate and just because only he can personally observe the participants and events of the trial." Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980). However, a court's failure to apply the correct legal rule is error as a matter of law. Id.

I. CK Holdings, LLC

At the final hearing, Mr. Bro argued that selling CK Holdings' property and dividing the proceeds would be the best way to do equity between the parties and prevent Ms. Bro from gaining an unfair advantage from unilateral actions she had taken to increase the business's value.

The court agreed, specifically finding that Ms. Bro had used the business to unilaterally and unfairly advantage herself, thereby disadvantaging Mr. Bro. In an attempt to fashion an equitable remedy, the court determined that CK Holdings' property should be sold and distributed between the parties.

However, the court did not have authority to reach CK Holdings' property directly because the LLC is a separate legal entity and was not a party to the suit. See Ehman v. Ehman, 156 So.3d 7, 8 (Fla. 2d DCA 2014) ("Tierra Technologies [LLC] was never brought in as a party to this dissolution proceeding, and the trial court did not have the power or authority to transfer the property of a corporation without the joinder of that entity."); Mathes v. Mathes, 91 So.3d 207, 208-09 (Fla. 2d DCA 2012) (holding that the trial court in a dissolution proceeding did not have jurisdiction over a nonparty corporation and discussing "the basic difference between the family's marital assets and those of [their] separate Florida corporation"). Accordingly, it was error for the court to order the sale of CK Holdings' commercial property.

II. 2013 Tax Refund

Ms. Bro testified at the final hearing that she used the funds from her 2013 tax return for personal living expenses. She denied spending the funds on anything that was not a regular expense for her during the marriage. No evidence was presented to dispute that this was how she used the funds. Instead of presenting contrary evidence, Mr. Bro argued that Ms. Bro's testimony on this point was not credible, emphasized that Ms. Bro was a CPA, and claimed that in order to do equity the court should divide the refund between the parties. The court agreed with Mr. Bro, indicating that he did not find Ms. Bro's testimony on the issue credible and questioning, "How do we know she didn't take a vacation?" The court ultimately found that

[t]he Wife, a Certified Public Accountant, created an advantageous tax situation for herself by filing her 2013 federal income tax return as married filing separate, thus requiring the Husband to do the same. This resulted in the Wife receiving a substantial refund and the Husband having to pay substantial taxes.

Based on these findings, the court determined that Mr. Bro was entitled to a portion of Ms. Bro's 2013 tax return as a marital asset.

"This court has held that it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings unless there has been misconduct during the proceedings that results in the dissipation." Bair v. Bair, 214 So.3d 750, 758 (Fla. 2d DCA 2017). "Misconduct is not shown by 'mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves.' " Belford v. Belford, 51 So.3d 1259, 1260 (Fla. 2d DCA 2011) (quoting Roth v. Roth, 973 So.2d 580, 585 (Fla. 2d DCA 2008) ). Instead, "there must be a specific finding of intentional misconduct based on evidence showing that the marital funds were used for one party's 'own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.' " Id.

"If there is uncontradicted evidence in the record that the dissipated funds were used to pay marital expenses during the dissolution proceedings and if there is no evidence of misconduct, then it is an abuse of discretion to include the dissipated funds in the equitable distribution scheme." Bair, 214 So.3d at 759. Indeed, in Roth v. Roth, this court specifically noted that a court's disbelief of one party's testimony on how funds were spent was not enough, by itself, to support a finding of misconduct:

Because there is uncontradicted evidence in the record that the dissipated funds were used to pay marital expenses during the dissolution proceedings and because there is no evidence that the Husband engaged in misconduct in expending the funds, the trial court abused its discretion in including these dissipated funds in the equitable distribution scheme. While the Wife is correct that the trial court could have chosen to disbelieve the Husband's testimony concerning how he spent the funds, the trial court cannot make a finding that the Husband intentionally dissipated assets in the absence of some evidence of such conduct. Thus, on remand, the trial court must revisit the equitable distribution scheme without including these assets.

973 So.2d at 586.

In this case, it is clear that the court did not find Ms. Bro's testimony on how she spent the tax refund to be credible. Moreover, the court found that Ms. Bro created an advantageous tax situation for herself while disadvantaging Mr. Bro. But the court did not make a specific finding of intentional misconduct and no evidence was presented to rebut Ms. Bro's testimony that the funds were used for living expenses. Accordingly, we conclude that the court abused its discretion by distributing Ms. Bro's 2013 tax refund.

In light of these two errors, we reverse and remand for the trial court to reconsider the equitable distribution scheme. As the parties addressed prospective alimony and child support in their partial marital settlement agreement, there is no need for the trial court to reconsider these issues.

Reversed and remanded.

LUCAS and ATKINSON, JJ., Concur.

      Mr. Bro filed a notice of cross-appeal. But after he failed to file an answer/cross-initial brief, this court dismissed the cross-appeal and proceeded without a brief from Mr. Bro.


author: SILBERMAN, Judge.

text:
    Jonathan TATE, Appellant, v. Vanessa TATE, Appellee.
    Case No. 2D17-4703
    District Court of Appeal of Florida, Second District.
    Opinion filed December 14, 2018
    Keeley R. Karatinos of Mander Law Group, Dade City, for Appellant.
    Vanessa Tate, pro se.
   SILBERMAN, Judge.

Jonathan Tate seeks review of a final judgment of injunction for protection against domestic violence. Vanessa Tate, Jonathan's sister, obtained an injunction based on evidence that he broke into her unoccupied home and stole her cats. We reverse because the court's finding that Vanessa had an objectively reasonable fear of becoming the victim of domestic violence is not supported by competent substantial evidence.

Under section 741.30(1)(a), Florida Statutes (2016), an injunction for protection against domestic violence may be available to someone "who is either the victim of domestic violence ... or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence." Domestic violence is defined as "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." § 741.28(2).

"Where 'fear alone is the "reasonable cause" alleged to support the injunction, then not only must the danger feared be imminent but the rationale for the fear must be objectively reasonable as well.' " Zapiola v. Kordecki, 210 So.3d 249, 250 (Fla. 2d DCA 2017) (quoting Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007) ). This court reviews the issuance of an injunction on this basis for competent substantial evidence. Id.

In this case, the trial court found that Vanessa had an objectively reasonable fear of becoming the victim of domestic violence based on evidence that Jonathan broke into her unoccupied home and stole her cats. The court reasoned as follows:

[H]e knew he wasn't supposed to be [in Vanessa's house]. He was creeping around; he used a flashlight; he didn't turn on the lights. He wiped the doorknob before he closed it. He used his shirt to open the door. He clearly knew he wasn't supposed to be there. He went into someone's home without her permission, that's what she's testified to.
....
He went inside her home without her permission; invaded her privacy and her space without her permission. I think that would install [sic] fear in anyone. I think that's-a reasonable person would be in fear of that person that broke into their home.

This evidence was insufficient to establish that Vanessa had an objectively reasonable fear of becoming the victim of domestic violence. Vanessa did not testify to any acts of violence toward her or threats of violence by Jonathan. Indeed, Vanessa did not even establish any danger to her cats. Instead, she presented evidence that she and Jonathan rescued the cats together after he had moved his possessions into her home. After Jonathan moved out, he stealthily entered the home and stole the cats so he could keep them as pets in his own home. However, he did not use any force in his entry or commit any acts of violence while in the home. He simply took the cats and refused to give them back.

Under these circumstances, the court erred in entering the injunction for protection against domestic violence. See Phillips v. Phillips, 151 So.3d 58, 59 (Fla. 2d DCA 2014) (reversing an injunction for protection against domestic violence because the estranged wife acknowledged "that there had been no violence or threats of violence from" the husband); Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (reversing the extension of an injunction because it was not based on any acts or threats of violence towards the wife but was based on evidence "that she is upset by the Husband's dealings with their children and that she believes that the Husband is using the children to harass her").

We are not persuaded that the result should be changed based on Vanessa's testimony that Jonathan has had violent outbursts in the past that make her fear for her well-being and safety. These "violent outbursts" were not directed at Vanessa and included actions like egging old roommates' cars and putting nails under their tires. There was no evidence that Jonathan had engaged in actual acts or threats of violence against their persons. Accordingly, we reverse the final judgment of injunction for protection against domestic violence.

Reversed.

LUCAS and SALARIO, JJ., Concur.

      Under the statute, such evidence would be insufficient in itself to establish a basis for a domestic violence injunction.


author: Per Curiam.

text:
    Aaron Matthew ERSKINE, Appellant, v. Lela Ann ERSKINE, Appellee.
    No. 1D18-1785
    District Court of Appeal of Florida, First District.
    December 14, 2018
    Trevor A. Thompson, Tallahassee, for Appellant.
    Laura E. Keene, Pensacola, for Appellee.
   Per Curiam.

Appellant, the former husband, appeals the trial court's non-final order on temporary relief for spousal support. In this marital dissolution case, Appellant raises two issues.

First, he contends that he was entitled to a hearing on his exceptions to the magistrate's order. We agree. Yoxsimer v. Yoxsimer , 918 So.2d 997, 999 (Fla. 2d DCA 2006) (holding that trial court deprived the wife of due process and departed from essential requirements of law when the wife was denied a hearing on the exceptions); Knorr v. Knorr , 751 So.2d 64, 65-66 (Fla. 2d DCA 1999) (holding that Florida Family Law Rule of Procedure 12.490(f) derives from Florida Rule of Civil Procedure 1.490(h) and the language of the rule providing for a hearing on exceptions to a magistrate's report has been held to be mandatory); Gutierrez v. Gutierrez , 48 So.3d 118, 119 (Fla. 5th DCA 2010) (holding that it is "reversible error for a trial court to fail to conduct a hearing on timely filed exceptions"); see also Fla. Fam. L. R. P. 12.490(f). On remand, the trial court shall hold a hearing on the Appellant's Exceptions to the Magistrate's Report and Recommended Order on Wife's Motion for Reconsideration.

Second, Appellant contends that the trial court erred in awarding alimony and fees in excess of Appellee's need, funding an award by invading the principal of non-marital assets, and ordering alimony and child support in an undifferentiated amount. On this claim, we also agree. While temporary support awards are within the broad discretion of trial courts, the record must contain competent substantial evidence that demonstrates one party's need and the other party's ability to pay. Buchanan v. Buchanan , 225 So.3d 1002, 1003 (Fla. 1st DCA 2017). Awards, whether temporary or final, should not be in excess of a recipient spouse's needs and an order awarding as much should be reversed. Lin v. Lin , 37 So.3d 941, 942 (Fla. 2d DCA 2010). Further, in awarding attorney's fees, lower courts must make specific findings as to the hourly rate and number of hours expended. Giovanini v. Giovanini , 89 So.3d 280, 282 (Fla. 1st DCA 2012). When determining the amount of an award, trial courts must look to all financial resources of the parties, including cases in which "the parties' standard of living required invading the principal of non-marital assets." Stacpoole v. Stacpoole , 856 So.2d 1131, 1132 (Fla. 1st DCA 2003). Here, the record is unclear as to whether Appellant's non-marital accounts were invaded during the marriage to maintain a standard of living. Additionally, a trial court's determination of child support must begin with a calculation of the parties' income. Shaw v. Nelson , 4 So.3d 740, 743 (Fla. 1st DCA 2009). Thus, further factual findings regarding these accounts and a calculation of the parties' incomes are necessary.

Moreover, reversal is required when a trial court adopts a proposed order for temporary support where some findings in the order contradict the trial judge's oral ruling. Duke v. Duke , 19 So.3d 338, 339 (Fla. 2d DCA 2009). In the instant case, the trial court bypassed the oral pronouncement imputing minimum wage upon Appellant and ordered an undifferentiated award to the Appellee in contradiction to the ruling at the hearing. An undifferentiated award such as this is improper because it renders this Court unable to determine whether the trial court properly applied the statutory child support guidelines. Nilsen v. Nilsen , 63 So.3d 850, 851 (Fla. 1st DCA 2011).

REVERSED and REMANDED .

Roberts, Makar, and Bilbrey, JJ., concur.


author: SUAREZ, J.

text:
    C.H.-C., et al., Petitioners, v. MIAMI HERALD PUBLISHING CO., et al., Respondents.
    No. 3D18-1421
    District Court of Appeal of Florida, Third District.
    Opinion filed December 14, 2018.
    Law Office of Richard F. Joyce, P.A., and Richard F. Joyce, for petitioners.
    Leslie Hinds, for respondent Department of Children and Families; Akerman LLP, and Kristen M. Fiore (Tallahassee), for respondent Guardian ad Litem Program; Akerman LLP, and Cindy A. Laquidara (Jacksonville), for respondent Guardian ad Litem Program; Thomasina Moore, Statewide Director of Appeals, and Laura J. Lee (Tallahassee), for respondent Guardian ad Litem Program; Holland & Knight LLP, and Sanford L. Bohrer and Scott D. Ponce, for respondent Miami Herald Media Company and Carol Marbin Miller; Akerman LLP, and Scott D. Lawrence (Dallas, TX), for respondent Guardian ad Litem Program.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   SUAREZ, J.

The minor children, C.H.-C., L.H.-C., B.H.-C., T.H.-C., and M.H.-C., by and through their court-appointed Attorney ad Litem, petition for writ of certiorari seeking to quash the order of the trial court granting the Miami Herald access to a redacted transcript of a judicial review hearing. We conclude that the Herald has met the statutory requirement of demonstrating to the trial court that it has a proper interest in reviewing the dependency hearing transcript or recording. Therefore, we deny the petition.

The children were the subject of a January 17, 2018 judicial review hearing held pursuant to section 39.701, Florida Statutes (2018). The Miami Herald, via its reporter Carol Marbin Miller (also named as a Respondent), was not present at that hearing. The Herald sought to intervene and for access to either a transcript or the audio recording of the hearing. After examining the hearing transcript in camera, hearing arguments from all involved counsel regarding production of the transcript or the recording, and reviewing counsels' proposed redactions, the trial court granted the Herald's request for a copy of the judicial review hearing transcript with only the children's names redacted. The children sought this writ of certiorari to quash that order.

ANALYSIS

We first note that Chapter 39 hearings, including the one in question, are presumptively open to the public. § 39.507(2), Fla. Stat. (2018). Court records required by Chapter 39, including dependency hearing transcripts or recordings, however, shall not be open to inspection by the public unless the court allows "persons deemed by the court to have a proper interest therein" to inspect those records. § 39.0132(3), Fla. Stat. (2018). Further, "except as otherwise provided, nothing in this section prohibits the publication of the proceedings in a hearing." § 39.507(3), Fla. Stat. (2018). Therefore, the issue presented in this petition is whether the trial court abused its discretion by finding that the Herald was an entity with a proper interest in the transcript or recording.

The Herald gave two reasons for its interest in the transcript of the judicial review hearing. First, the Herald asserted that its interest arose out of its coverage of an unrelated case involving a deceased sibling, E.C., who was allegedly murdered by the children's mother. The remaining children's review hearing was not, however, related to that criminal case. Second, the Herald based its interest in this judicial review hearing on its role as surrogate for the public in reporting the performance of the Department of Children and Families, the courts, and private agencies, all of which are tasked with the care and protection of our children. The Petitioners opposed releasing the redacted transcript to the Herald, citing their privacy interest in maintaining the confidentiality of the hearing transcript. The Petitioners asserted that release of information in the redacted transcripts will irreparably harm the children by subjecting them to more scrutiny, material injury that cannot be remedied on appeal.

In this case, the trial court properly examined the hearing transcript in camera, heard the parties' arguments, and reviewed the parties' proposed redactions to the transcript. In its lengthy and detailed order, the trial court acknowledged that Chapter 39 hearings are presumptively open to the public while written transcripts and audio recordings of those hearings are ostensibly confidential. See, e.g., Fla. R. Jud. Admin. 2.420(b)(l)(A) (defining court records) and 2.420(d)(l)(B)(i) (including Chapter 39 records among the information that must be designated and maintained as confidential when contained within a court record); § 39.0132(3) - (4), Fla. Stat. (2018). The court determined that 1) the Herald and its reporter had standing to seek access to the dependency hearing transcript; 2) the parties did not identify any facts mentioned or discussed during the hearing which, if disclosed as a result of granting the Herald access to the transcript, would result in irreparable harm to the Petitioners; and 3) the Herald and its reporter met the statutory requirement of "persons deemed by the court to have a proper interest therein." All that was requested by the Herald, and all that was granted by the trial court, is a copy of either the transcript or recording of the hearing. The court properly did not give the Respondents an "unfettered right to view, copy or otherwise access all court files in this matter." See D.C. v. J.M., 133 So.3d 1080, 1081 (Fla. 3d DCA 2014) (emphasis added).

Section 39.0132(3) gives the trial court the discretion to deem the Respondents to have a proper interest in the requested transcript. The trial court did not depart from the essential requirements of the law in so concluding. Further, the Petitioners have not identified any confidential information or fact contained in the hearing transcript that would cause irreparable harm to the Petitioners as a result of granting the Herald access to the redacted hearing transcript. Finding neither a departure from the essential requirements of law, nor irreparable harm, we deny the petition for certiorari.

Petition denied.

      The Herald's standing to intervene is not at issue. See Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113 (Fla. 1988) ; Miami Herald Pub. Co. v. Lewis, 426 So.2d 1 (Fla. 1982).

      A literal reading of the statutory provisions means that a member of the public is permitted to attend a Chapter 39 hearing and listen to, observe all that goes on, take verbatim notes, and communicate the contents of the hearing to any third person, but is not permitted to read the transcript or listen to a recording of the hearing once it has concluded unless deemed by the court to be a person with a proper interest in the proceedings.

      In general, "there is a well-established common law right of access to court proceedings and records," either civil or criminal. Barron, 531 So.2d at 116. The general right of access has been limited by statute in the case of certain juvenile proceedings, where it comes into conflict with privacy rights of the children at issue, e.g., adoptions and termination of parental rights hearings.

      The trial court's order provides, with respect to the Respondents' role as a surrogate for the public,
      There is a public interest in having an adequate basis for evaluating the performance of the Department of Children and Families and the courts in carrying out their responsibilities relating to the protection of our children. It is the press that can provide critical information to enable the community to gain a greater understanding of the causes and contributing factors of deaths resulting from child abuse or neglect.


author: Winokur, J.

text:
    Kelly Lamont WHISBY, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3949
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Andy Thomas, Public Defender, Joanna A. Mauer, Assistant Public Defender, and Kathleen Pafford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Robert Charles Lee, Assistant Attorney General, and Steven Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Although the State sought admission of collateral-crime evidence under section 90.404(2)(a), Florida Statutes, we find that it was admissible under section 90.404(2)(c). We therefore affirm the judgment entered against Kelly Lamont Whisby.

I.

The State charged Whisby in an eight-count information with armed kidnapping with intent to commit sexual battery, three counts of sexual battery, and other offenses. The State alleged that Whisby kidnapped the victim, S.C., at gunpoint and forced her into his car. Whisby drove S.C. to various locations where he forced her to perform oral sex and intercourse. Whisby then led police in a high-speed chase that ended when Whisby abandoned his car and forced S.C. to hide under a shed with him. Whisby was found by a police dog and arrested.

Before trial, the State filed a notice of intent to rely on collateral-crime evidence pursuant to section 90.404(2)(a), Florida Statutes. The collateral-crime evidence showed that Whisby committed a sexual battery less than twenty-four hours before he kidnapped S.C. The State proffered the testimony of the victim of the prior sexual battery, W.W., who testified that Whisby kidnapped her at gunpoint and forced her into her car that Whisby had previously stolen. Whisby then forced W.W. to perform oral sex and then drove to a nearby park where he forced her to have intercourse.

The trial court found that the State proved the prior sexual battery by clear and convincing evidence. The court recounted several similarities between the collateral crime and the charged crime, noting that both incidents involved women who had previously been in intimate relationships with Whisby, that the same car and gun were used, and that Whisby used a tissue or napkin to clean either the victim or himself after each incident. As a result, the court found the prior sexual battery strikingly similar to the charged offenses and "relevant to establish a material fact at issue, including, but not limited to, proof of motive and opportunity." The trial court also found that "the probative value of [W.W.'s] testimony [was] not substantially outweighed by the danger of unfair prejudice." As such, the court ruled that the State would be permitted to introduce the collateral-crime evidence.

At trial, W.W. testified as to the prior sexual battery. During its rebuttal closing argument, the State argued that W.W.'s testimony corroborated S.C.'s testimony and the other evidence of the charged offenses. The jury found Whisby guilty as charged of armed kidnapping with intent to commit sexual battery, three counts of sexual battery, and other offenses.

II.

A trial court's decision to admit collateral-act evidence is reviewed for abuse of discretion. Goggins v. State , 211 So.3d 1100, 1103 (Fla. 1st DCA 2017) (citing Easterly v. State , 22 So.3d 807, 814 (Fla. 1st DCA 2009) ). Similar fact evidence of other crimes is admissible "when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity." § 90.404(2)(a), Fla. Stat. The State is required to give notice to defense counsel of its intention to admit such evidence. § 90.404(2)(d), Fla. Stat. Additionally, similar fact evidence of other crimes is subject to exclusion under the balancing test of section 90.403, Florida Statutes, and cannot become the feature of the trial. Truehill v. State , 211 So.3d 930, 945 (Fla. 2017).

Accordingly, this Court has held that prior to admitting collateral-crime evidence, a trial court must determine whether the defendant committed the collateral crime, whether the crime is similar enough to be relevant, whether the crime is too remote in time to be relevant, and whether its prejudicial effect substantially outweighs its probative value. Vice v. State , 39 So.3d 352, 355 (Fla. 1st DCA 2010) (citing Robertson v. State , 829 So.2d 901, 907-08 (Fla. 2002) ). The State must prove that a collateral crime occurred by clear and convincing evidence before it may be admitted. See State v. Norris , 168 So.2d 541, 543 (Fla. 1964) ; Harrelson v. State , 146 So.3d 171, 173 (Fla. 1st DCA 2014).

This Court asked for supplemental briefing on the issue of whether the trial court's admission of Whisby's prior sexual battery could be affirmed pursuant to section 90.404(2)(c), Florida Statutes. An appellate court may affirm "if a trial court reaches the right result, but for the wrong reasons." Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 644 (Fla. 1999). Regardless of whether the trial court properly admitted the prior sexual battery under section 90.404(2)(a), we conclude that it was admissible under section 90.404(2)(c).

III.

In 2011, the Florida Legislature enacted section 90.404(2)(c) providing that "[i]n a criminal case in which the defendant is charged with a sexual offense, evidence of the defendant's commission of other crimes, wrongs, or acts involving a sexual offense is admissible and may be considered for its bearing on any matter to which it is relevant." While evidence of collateral crimes is generally inadmissible under section 90.404(2)(a) if it is relevant "solely to prove bad character or propensity," evidence of a collateral sexual offense "may be considered for its bearing on any matter to which it is relevant." § 90.404(2)(c), Fla. Stat. (emphasis added).

Due to its recent addition to the Evidence Code, Florida courts have not addressed the admissibility standards of section 90.404(2)(c). However, this section sets forth admissibility standards that are substantially identical to those in section 90.404(2)(b), Florida Statutes, which concerns admissibility of collateral crimes of child molestation. The Florida Supreme Court has articulated requirements for admitting collateral-crime evidence pursuant to section 90.404(2)(b). McLean v. State , 934 So.2d 1248 (Fla. 2006). Because subsection (2)(b) sets forth requirements for the admissibility of collateral acts of child molestation that are identical to the requirements for the admissibility of collateral acts of a sexual offense in subsection (2)(c), we apply the McLean standards here.

The McLean court held that the admission of such evidence does not violate due process when applied in cases where identity is not at issue. 934 So.2d at 1251. Specifically, it found that "due process is satisfied by weighing the probative value of the evidence of prior acts of child molestation against its potential for unfair prejudice, which is compelled by section 90.403, Florida Statutes." Id. The court also set forth a non-exclusive list of factors that a trial court should consider when balancing the collateral crime evidence pursuant to section 90.403 :

(1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances.

Id.

Thus, collateral-crime evidence of a sexual offense is admissible even if offered to show propensity. See Rutledge v. State , 1 So.3d 1122, 1129-30 (Fla. 1st DCA 2009) (acknowledging that evidence of a collateral crime may be admissible to show propensity under section 90.404(2)(b) ). However, the State must still demonstrate that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. § 90.403, Fla. Stat. We consider the factors set forth in McLean in conducting this analysis.

IV.

Whisby argues that the sexual battery of W.W. cannot be affirmed under section 90.404(2)(c) because it is not similar to the charged offense. We disagree. The incidents occurred less then twenty-four hours from each other and in almost identical fashion: Whisby forced W.W. and S.C. into his car at gunpoint and drove them to various locations while coercing them to engage in sexual acts, and the incidents concluded with Whisby using a tissue or napkin to either clean them or himself. Additionally, Whisby used the same vehicle and gun to commit both acts. Regardless of whether the crimes are "strikingly similar," which would permit admission under section 90.404(2)(a), see Robertson v. State , 829 So.2d 901, 909 (Fla. 2002), they are similar enough to support admission under the analysis outlined in McLean .

The trial court found the prior sexual battery relevant and similar to the charged offenses. The State briefly mentioned the collateral crime in its opening statement and again in its rebuttal closing argument, arguing how it corroborated the evidence of Whisby's charged offenses. Additionally, W.W. was the only witness who testified about the collateral crime. The State's other eleven witnesses, including S.C., testified as to Whisby's charged offenses and how forensic evidence, notably DNA, linked Whisby to the crimes. Thus, the collateral-crime evidence did not "transcend the bounds of relevancy" and become "an assault on the character of [Whisby]." Durousseau v. State , 55 So.3d 543, 551 (Fla. 2010) (quoting Williams v. State, 117 So.2d 473, 475 (Fla. 1960) ). Therefore, the probative value of Whisby's prior sexual battery was not substantially outweighed by the danger of unfair prejudice and it did not become a feature of the trial.

Finally, Whisby relies on Robertson to argue that the admission of the disputed evidence cannot be affirmed under section 90.404(2)(c) because that issue was never addressed below. In Robertson , the Florida Supreme Court reversed the district court's finding that the State's impeachment of the defendant during trial with a prior bad act could have been affirmed as properly admitted collateral-crime evidence. 829 So.2d at 907. The court emphasized that the "tipsy coachman doctrine," permitting affirmance on appeal even if the correct argument was not made below, requires "support for the alternative theory or principle of law in the record before the trial court." Id. Since the trial court did not make the pre-trial determinations required for admission of collateral-crime evidence, "the record did not permit the Third District to affirm the trial court's admission of collateral crime evidence ...." Id . at 909.

The record in this case is different. Unlike Robertson , the State filed a notice of intent to offer collateral-crime evidence. W.W. proffered testimony at a pretrial hearing, defense counsel cross-examined her, and both sides argued whether the evidence should be admitted. The trial court found that the prior sexual battery was relevant and that it was not unduly prejudicial. This is essentially the same analysis that the trial court would have conducted if the State sought to introduce the collateral-crime evidence under section 90.404(2)(c). Therefore, the record is amply sufficient to allow us to affirm the admission of the evidence under section 90.404(2)(c) by resort to the tipsy coachman doctrine.

V.

The collateral-crime evidence of Whisby's sexual battery of W.W. was not only relevant, but also highly probative of his charged offenses. While the trial court admitted the evidence pursuant to section 90.404(2)(a), we find that there is a sufficient record to affirm its admission under section 90.404(2)(c). As a result, the trial court did not abuse its discretion in admitting evidence of the prior sexual battery.

AFFIRMED .

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

      We reject Whisby's other arguments on appeal.

      The court did not explain how evidence of Whisby's sexual battery upon W.W. provided him with the motive or with the opportunity to commit a sexual battery upon S.C., or whether the crime upon W.W. was relevant to Whisby's motive or opportunity in some other sense. This is a primary reason why we analyze this case below under section 90.404(2)(c) rather than section 90.404(2)(a).

      Section 90.404(2)(c) 2., Florida Statutes, defines "sexual offense" to include the crime of sexual battery as codified in section 794.011, Florida Statutes. Whisby was charged with three counts of sexual battery pursuant to section 794.011(3).

      Section 90.404(2)(b), Florida Statutes, provides that "[i]n a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant."


author: ROTHENBERG, C.J.

text:
    FLORIDA WELLNESS & REHABILITATION CENTER, INC. a/a/o Maria Gomez, Petitioner, v. MARK J. FELDMAN, P.A., Respondent.
    No. 3D18-1575
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018.
    Landau & Associates, P.A., and Todd Landau (Hallandale Beach), for petitioner.
    Mark J. Feldman, P.A., and Mark J. Feldman, Miami, for respondent.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

The petitioner, Florida Wellness & Rehabilitation Center a/a/o Maria Gomez ("Florida Wellness"), seeks second-tier certiorari review of an order entered by the Appellate Division of the Miami-Dade Circuit Court ("the circuit court") dismissing Florida Wellness's appeal of a final order entered by the Miami-Dade County Court ("the county court"). We grant the petition and quash the order of dismissal.

I. Facts and Procedural History

Florida Wellness retained Mark J. Feldman, P.A. ("Feldman") to represent it in a dispute seeking to recover PIP benefits. Prior to the resolution of the PIP action filed in the county court, Florida Wellness discharged Feldman, and thereafter, Feldman filed a notice of charging lien and retaining lien.

Following Florida Wellness's resolution of the PIP action for $15,000, Feldman filed an amended motion seeking to impose and/or to enforce the lien ("motion to enforce the lien"). Thereafter, the county court conducted two hearings relating to Feldman's motion to enforce the lien.

Following the first hearing, at which a court reporter was present, the county court entered a detailed order granting Feldman's motion to enforce the lien. In its order, the county court found that Feldman had perfected its charging lien and is entitled to an award of reasonable attorney's fees and costs, jointly and severally against Florida Wellness and the PIP carrier.

Although the county court acknowledged that the circuit court, sitting in its appellate capacity, had previously issued an opinion holding that a discharged attorney is limited by the settlement proceeds for satisfaction of the charging lien, the county court found that the case referenced in the prior opinion was factually and legally distinguishable from the instant case because, as stipulated by all counsel at the hearing, "none of the parties or their counsel of record ever contacted or included Mark J. Feldman, Esq. for the purpose of discussing the reasonable attorney fees and costs to be paid to Mark J. Feldman, P.A., prior to concluding the settlement in this matter." The order further provides: "The Court recognizes that parties may settle the compensatory amounts related to their lawsuit without including the discharged attorney who has filed a charging lien. However, parties and their attorneys who do not properly negotiate the charging lien with the discharged attorney do so at their own peril." (citation omitted). Thus, the county court held that Feldman's recovery of reasonable attorney's fees and costs for the charging lien was not limited by the settlement proceeds.

Thereafter, the county court conducted a second hearing to address the award of reasonable attorney's fees and costs to Feldman. Following the hearing, the county court entered a final order awarding attorney's fees and costs to Feldman that exceeded the settlement amount of $15,000.

On February 19, 2018, Florida Wellness appealed to the circuit court the final order entered by the county court and paid the filing fee and the initial deposit for the preparation of the appellate record. On April 6, 2018, the clerk of the circuit and county court ("the Clerk's office") sent an "Invoice" in the amount of $216 to Florida Wellness's counsel for the preparation of the completed record, which provided: "FAILURE TO PAY THIS FEE BY APRIL 23, 2018 SHALL RESULT IN THE DISMISSAL OF THE CASE. " Florida Wellness's counsel did not pay the invoice by the April 23rd deadline imposed by the Clerk's office and there was no further communication or order sent to Florida Wellness's counsel regarding the invoice.

On April 30, 2018, Florida Wellness's counsel contacted Feldman's counsel to inform him that he would be filing a motion for extension of time to file the initial brief that was due that day. Feldman's counsel indicated that he would object to the motion for extension of time and also informed Florida Wellness's counsel of the outstanding invoice issued by the Clerk's office.

Florida Wellness filed its motion for extension of time, noting Feldman's counsel's objection. In response, Feldman filed an objection to Florida Wellness's motion, asserting, in part, that Florida Wellness had not filed the transcripts of the hearings that led to the entry of the final order, and without the transcripts, the appeal could not proceed, and therefore, Florida's Wellness's request for an extension of time to file the initial brief was "ill-founded."

A few minutes after Florida Wellness filed its motion for extension of time, Feldman filed a motion to dismiss the appeal based on two grounds: (1) Florida Wellness's failure to pay the $216 invoice issued by the Clerk's office, and (2) Florida Wellness's failure to provide an adequate record for appellate review, and specifically, the transcripts of the hearings.

On May 1, 2018, Florida Wellness mailed a check to the Clerk's office for the payment of the outstanding $216 invoice. On that same day, the circuit court granted Florida Wellness's motion, extending the due date for the filing of the initial brief to June 29, 2018.

On May 17, 2018, despite Florida Wellness's payment of the invoice , the circuit court entered an unelaborated order granting Feldman's motion to dismiss. The circuit court denied Florida Wellness's verified motion for rehearing, and this second-tier petition for writ of certiorari followed.

II. Analysis

"On a petition for writ of certiorari filed from a decision of the circuit court rendered in its appellate capacity, this court must determine whether the 'circuit court afforded procedural due process and whether it applied the correct law.' " Affirmative Ins. Co. v. Gomez, 14 So.3d 1244, 1246 (Fla. 4th DCA 2009) (quoting Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000) ). Second-tier certiorari is "reserved for cases in which there has been a violation of a clearly-established principle of law resulting in a miscarriage of justice." United Auto. Ins. Co. v. Cty. Line Chiropractic Ctr., 8 So.3d 1258, 1259 (Fla. 4th DCA 2009).

In its motion to dismiss, Feldman argued that the dismissal of the appeal was warranted based on two grounds: (1) Florida Wellness's failure to pay the $216 invoice issued by the Clerk's office; and (2) Florida Wellness's failure to ensure that a complete record, including the transcripts of the hearings, was prepared and transmitted. Because the circuit court's dismissal order was unelaborated, we address both arguments.

In addressing Florida Wellness's petition, we are guided by the following well-settled principles. First, Florida's public policy favors deciding controversies on their merits. See Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So.3d 395, 397 (Fla. 3d DCA 2009) ; Gillespie v. City of Destin, 946 So.2d 1195, 1199 (Fla. 1st DCA 2006). Second, dismissal is an extreme sanction that is reserved for only the most flagrant violations of procedural rules. See Nicaragua Trader, 19 So.3d at 397 ; Lindsey v. King, 894 So.2d 1058, 1059 (Fla. 1st DCA 2005).

A. Failure to Timely Pay the $216 Invoice Issued by the Clerk's Office

In the instant case, Florida Wellness's failure to timely pay the invoice issued by the Clerk's office for the preparation of the appellate record did not warrant the imposition of the most severe sanction-dismissal-thereby depriving Florida Wellness of having the controversy decided on its merits. See I Creatives, Inc. v. Premier Printing Sols., Inc., 163 So.3d 606, 608 (Fla. 3d DCA 2015) (granting petition for writ of certiorari and quashing dismissal order, finding that "[m]ere noncompliance with a pre-failure communication by the clerk of the court does not ipso facto reach the level of disrespect" warranting the sanction of dismissal).

Florida Wellness did not intentionally and flagrantly disregard an order issued by the circuit court. Rather, it negligently failed to timely pay the invoice issued by the Clerk's office. Following Florida Wellness's failure to timely pay the invoice, it did not receive any further notification or communication from the circuit court stating that the appeal would be dismissed. Further, upon learning of the invoice, Florida Wellness immediately mailed a check to the Clerk's office. In addition, prior to the circuit court's dismissal the appeal , Florida Wellness paid the $216 invoice. Under the circumstances, if the circuit court dismissed the appeal based on Florida Wellness's failure to timely pay the invoice, we conclude that there has been a violation of a clearly-established principle of law resulting in a miscarriage of justice.

B. Failure to Include the Transcripts in the Appellate Record

Under the circumstances of this case, Florida Wellness's failure to file the transcripts of the hearing did not warrant the imposition of the most extreme sanction-dismissal. Although the sanction of dismissal is permitted for violating a procedural rule, as "[d]ismissal is an extreme sanction ..., it is reserved for the most flagrant violations of the appellate rules." Gomez, 14 So.3d at 1246 (quoting Irvin v. Williams, 736 So.2d 705, 706 (Fla. 1st DCA 1999). Prior to dismissing Florida Wellness's appeal, the circuit court did not issue an order directing Florida Wellness to file the omitted parts of the record, namely the transcripts of the two hearings, or threaten Florida Wellness with dismissal if the transcripts were not filed. " Florida Rule of Appellate Procedure 9.200(f)(2)... requires an appellate court to allow the appellant an opportunity to supplement an incomplete record before deciding the case based on the insufficiency of the record." Starks v. Starks, 423 So.2d 452, 453 (Fla. 1st DCA 1982). Here, no such opportunity was given.

Further, in opposing Florida Wellness's motion for extension of time to file the initial brief, Feldman argued, among other things, that Florida Wellness had not filed the transcripts of the hearings, and therefore, Florida Wellness's request for an extension of time was "ill-founded." The circuit court granted Florida Wellness's motion for extension of time, thereby rejecting Feldman's argument. Despite knowing that the transcripts had not been filed, the circuit court did not issue an order instructing Florida Wellness to file the transcripts or warn Florida Wellness that the failure to do so would result in the dismissal of its appeal. Accordingly, under the circumstances of this case, assuming that the circuit court dismissed the appeal based on Florida Wellness's failure to transmit the transcripts, we conclude there has been a violation of a clearly-established principle of law resulting in a miscarriage of justice.

III. Conclusion

Based on the above analysis, we grant the petition for writ of certiorari, quash the dismissal order, and remand for further proceedings.

Petition granted; order quashed; remanded for further proceedings.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

      There was a court reporter present at the second hearing. The transcript of that hearing was filed after the circuit court granted Feldman's motion to dismiss the appeal, but prior to the circuit court's denial of Florida Wellness's motion for rehearing. The transcript of the hearing reflects that the court reporter was not present for the entire hearing, but the transcript includes the testimony of two witnesses, including the testimony of Mark J. Feldman.

      In reality, the invoice should have indicated that the failure to timely pay the invoice may result in the dismissal of the case.

      Florida Wellness's counsel claims he did not learn about the invoice sent by the Clerk's office prior to contacting Feldman's counsel due to a "backlog in the mail department."

      Based on the circuit court's granting of Florida Wellness's motion for extension of time to file the initial brief, thereby rejecting Feldman's argument that the motion was "ill-founded" because the transcripts had not been filed, it appears that the dismissal of the appeal was most likely based on Florida Wellness's failure to pay the $216 invoice, not the lack of the transcripts. Further, although the lack of a transcript is usually fatal to an appellant, see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979), an appellate court may still review and reverse an order on appeal if the error appears on the face of the order. As Florida Wellness had not yet filed its initial brief, it is not clear whether it would have argued that the transcripts were not necessary to resolve the appellate issues.


author: SCALES, J.

text:
    Karen JACOBSEN, et al., Petitioners, v. Barbara BUSKO, as Court-Appointed Guardian of Karen Jacobsen, Respondent.
    No. 3D18-1545
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018
    The Law Office of Jonathan N. David, Esq., P.A., and Jonathan N. David, for petitioners.
    Law Office of Henry Marinello, P.A., and Henry E. Marinello and Jessica Marie Marinello, for respondent.
    Before LAGOA, LOGUE and SCALES, JJ.
   SCALES, J.

Petitioner, attorney Jonathan N. David, seeks certiorari review of an order denying Mr. David's motion seeking authorization to represent Karen Jacobsen, the ward in this guardianship proceeding. We deny Mr. David's petition.

The trial court determined the ward was incapacitated and appointed a guardian to represent the ward's interests. Thereafter, the record reflects that the ward reached out directly to Mr. David to hire him as the ward's attorney. While section 744.3215(1)(l) of the Florida Statutes (2018) does give the ward a right to counsel, the ward's right to contract with Mr. David was removed by the trial court's prior order determining the ward was incapacitated. See In re Guardianship of Bockmuller, 602 So.2d 608, 609 (Fla. 2d DCA 1992). Only the ward's plenary guardian, respondent Barbara Busko, has the capacity to enter into a contract with an attorney on behalf of the ward. Id. (citing section 744.3215(3)(a), which provides that "[r]ights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right ... [t]o contract"). Ms. Busko has hired counsel other than Mr. David to represent the ward.

Accordingly, we deny the petition.

      Mr. David designated the ward as "co-petitioner" in the petition.

      We also deny the guardian's request for attorney's fees.


author: PER CURIAM.

text:
    Dontravis SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3095
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    Dontravis Smith, Lake City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Dontravis Smith appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, in which he alleged a claim of newly-discovered evidence. In his motion, Smith alleged that Rakim Sharpe, one of the two robbery victims, had recanted his testimony identifying Smith as one of the perpetrators. Sharpe's affidavit was attached to the motion. Significantly, in his affidavit, Sharpe averred that the other victim, Willie Lofton, had admitted giving false identification testimony at trial. Because the record does not conclusively show that Smith is not entitled to relief, and the nature of the alleged newly-discovered evidence warranted an evidentiary hearing, we reverse.

At trial, Sharp testified, with an admitted degree of uncertainty, that Smith was one of the individuals who had robbed him. By contrast, Lofton's identification testimony was unequivocal. The alleged newly-discovered evidence, as set forth in Sharpe's affidavit, would arguably undermine his identification testimony at trial, as well as impeach Lofton's trial testimony. Furthermore, the affidavit was not "inherently incredible" nor "obviously immaterial." See Davis v. State , 26 So.3d 519, 526 (Fla. 2009). Accordingly, we conclude that the trial court erred in failing to conduct an evidentiary hearing on Smith's motion. See Barros v. State , 254 So.3d 1186, 1187 (Fla. 5th DCA 2018) (holding evidentiary hearing required to evaluate testimony of recanting witness where witness' affidavit not inherently incredible nor obviously immaterial); Floyd v. State , 202 So.3d 137, 140 (Fla. 2d DCA 2016) (holding evidentiary hearing required even though alleged newly-discovered evidence would be admissible only for impeachment purposes; affidavits were consistent with appellant's theory of defense that witnesses who testified at trial had knowingly given false testimony).

REVERSED and REMANDED for an evidentiary hearing.

EVANDER, EISNAUGLE and HARRIS, JJ., concur.


author: Ray, J.

text:
    Jesse Eli BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1959
    District Court of Appeal of Florida, First District.
    December 27, 2018
    Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Ray, J.

Jesse Eli Baker appeals his judgment and sentence for two counts of armed robbery. Of the issues presented, we find merit in his assertion that the trial court applied the wrong legal standard in ruling on his motion for new trial on the ground that the verdicts were contrary to the weight of the evidence. We affirm on the other issues without further comment.

After the jury returned guilty verdicts, Baker moved for a new trial, raising several issues, including that the trial court erred in denying his motions for judgment of acquittal and that the verdicts were contrary to the weight of the evidence. Each of these claims is decided under a different legal standard. Compare Fla. R. Crim. P. 3.380(a) (directing judgment of acquittal when "the court is of the opinion that the evidence is insufficient to warrant a conviction") with Fla. R. Crim. P. 3.600(a)(2) (directing new trial if "[t]he verdict is contrary to law or the weight of the evidence"). Unlike a motion for judgment of acquittal, which tests the sufficiency of the evidence, a motion for new trial "requires the trial court to weigh the evidence and determine credibility just as a juror would." Bell v. State , 248 So.3d 208, 209 (Fla. 1st DCA 2018). In the latter role, the trial court acts as a "safety valve" where the evidence of guilt is tenuous but technically sufficient to go to the jury. Robinson v. State , 462 So.2d 471, 477 (Fla. 1st DCA 1984).

When the record reveals the trial court applied, or appeared to apply, the wrong legal standard in ruling on a motion for new trial, appellate courts have reversed and remanded for the limited purpose of having the trial court reconsider the motion using the correct standard. See, e.g., Jordan v. State , 244 So.3d 1178 (Fla. 1st DCA 2018), and cases cited therein. That is what is required here.

In its oral ruling, the trial court denied Baker's motion for new trial "for the reasons stated on the record, as I outlined during the trial." At trial, Baker filed a motion for judgment of acquittal in which Baker argued that the evidence of robbery was insufficient because the perpetrators did not take money that was under the care, custody, or control of the victims. He also argued that there was not sufficient evidence that the gun was operable. The trial court reserved ruling on the firearm issue, but denied the motion to the extent Baker alleged there was insufficient evidence of a robbery, ruling that "[a]ll of the evidence is sufficient for the state's case to proceed to the jury" and that "[t]he state has met their burden of proof." The trial court later denied Baker's renewed motion for judgment of acquittal, also reasoning that the "state has met their burden of proof sufficient for the case to go to the jury." Because the trial court denied Baker's motion for new trial by simply referring back to its rulings during trial, it failed to assess the verdicts in light of the weight and credibility of the evidence, as it was required to do.

This case is distinguishable from our recent decision in Moreland v. State , 43 Fla. L. Weekly D2037, 253 So.3d 1245 (Fla. 1st DCA Sept. 5, 2018), where the trial court denied a motion for new trial that raised both sufficiency and weight of the evidence arguments by explaining, "The Court will rely on the rulings previously made in this case, and I will deny the motion for new trial at this time." We concluded that because the ruling consisted of two independent clauses that directly corresponded with the arguments made in the motion, the appellant failed to demonstrate that the court employed an incorrect legal standard when ruling on the motion for new trial. Id. By contrast, the only explanation for the denial of Baker's motion was "the reasons stated on the record, as I outlined during the trial." The court's explicit reference to its rulings during trial as the sole reason for denying the motion also distinguishes this case from Bell v. State , 248 So.3d 208, 209 (Fla. 1st DCA 2018), where we concluded there was "nothing to indicate" the wrong standard was used, even though the trial court only discussed the sufficiency of the evidence arguments.

We therefore reverse and remand for the trial court to consider the weight of the evidence when ruling on that portion of Baker's motion for new trial. If the court concludes the verdicts are against the weight of the evidence, it must grant the motion for new trial. If it holds otherwise, it may again deny the motion and enter a new judgment and sentence accordingly. Jordan , 244 So.3d at 1179.

AFFIRMED in part, REVERSED in part, and REMANDED.

Wolf and Lewis, JJ., concur.


text:
    Pamela Denise BOREN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3361
    District Court of Appeal of Florida, First District.
    December 27, 2018
    Andy Thomas, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Ray, J.

In this single-issue appeal, Pamela Boren contends the trial court fundamentally erred by failing to hold a competency hearing or enter a written order of competency despite having reasonable grounds to believe she was incompetent to stand trial. The State properly concedes error.

Prior to trial, defense counsel moved for a competency evaluation under Florida Rule of Criminal Procedure 3.210(b). As grounds for counsel's belief that Boren was not mentally competent to proceed, counsel alleged that Boren did not seem to "understand the roles of defense counsel, prosecutor, jury, and judge," had trouble communicating with counsel, and appeared unlikely to conduct herself appropriately at trial. Counsel also alleged that Boren reported she had been diagnosed as bipolar and was experiencing hallucinations. The trial court granted the motion and appointed an expert to examine Boren. The record is silent on what happened next regarding Boren's competency. The case proceeded to trial, and the jury found Boren guilty of the charged offenses.

Once a court "has reasonable grounds to question the defendant's competency, the court has no choice but to conduct a hearing to resolve the question." Zern v. State , 191 So.3d 962, 964 (Fla. 1st DCA 2016) ; see also Fla. R. Crim. P. 3.210(b) (requiring trial court to set a competency hearing within twenty days if defense counsel, the state, or the trial court has reasonable grounds to believe that a defendant is not mentally competent to proceed). The trial court is duty-bound at that point to make an independent determination of the defendant's competency and to enter a written order if the defendant is found competent to proceed. Dougherty v. State , 149 So.3d 672, 677-78 (Fla. 2014) ; see also Fla. R. Crim. P. 3.212(b). These requirements are designed "to safeguard a defendant's due process right to a fair trial and to provide the reviewing court with an adequate record on appeal." Dougherty , 149 So.3d at 676.

Here, nothing in the record shows that a hearing was held or that the trial court ruled on Boren's competency. We therefore remand for a retroactive determination, if possible. Zern , 191 So.3d at 965. If the court finds that Boren was competent at the time of trial, it should enter a nunc pro tunc order memorializing this finding with no change in the judgment or sentence. If a retroactive determination is not possible, or if the court finds that Boren was not competent, the court must hold a new trial provided that Boren is competent to proceed at that point in time.

REVERSED and REMANDED with instructions.

Roberts and Winsor, JJ., concur.


author: CASANUEVA, Judge

text:
    Richard Delgado CRUZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4284
    District Court of Appeal of Florida, Second District.
    Opinion filed December 28, 2018
    Richard Delgado Cruz, pro se.
    No appearance for appellee.
   CASANUEVA, Judge

Richard Delgado Cruz timely appeals a final order summarily denying his motion for postconviction relief, which he filed under Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court's order to the extent it denies relief on grounds one and three of the motion without further discussion. We reverse the denial of relief on ground two and remand for further proceedings.

I. Procedural and Historical Background

Mr. Cruz was convicted of burglary of a dwelling with assault or battery while in actual possession of a firearm, robbery with a firearm while in actual possession of a firearm, three counts of kidnapping to facilitate a felony, and three counts of sexual battery with a firearm while in actual possession of a firearm following a jury trial. Ultimately, Mr. Cruz received eight consecutive life sentences for his offenses, with mandatory minimum ten-year terms imposed on each of the offenses for which he actually possessed a firearm, to run concurrently. We affirmed Mr. Cruz's appeal from his judgment and sentences.

Cruz v. State, 160 So.3d 422 (Fla. 2d DCA 2014). Thereafter, he filed the instant motion for postconviction relief.

II. Standard of Review and Burden of Proof

"When reviewing the summary denial of a motion for postconviction relief, this court applies de novo review and 'must accept the movant's factual allegations as true to the extent that they are not refuted by the record.' " Martin v. State, 205 So.3d 811, 812 (Fla. 2d DCA 2016) (quoting Jennings v. State, 123 So.3d 1101, 1121 (Fla. 2013) ). "[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ; see also Fla. R. Crim. P. 3.850(f).

The purpose of the constitutional requirement of effective assistance of counsel is to ensure a fair trial. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. To plead a facially sufficient claim for ineffective assistance of trial counsel, a defendant must plead sufficient facts to establish that his trial counsel's performance was deficient and that he was prejudiced thereby. Martin, 205 So.3d at 812 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ). With respect to the deficiency prong, a defendant must overcome a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. With respect to the prejudice prong, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. If a claim fails on either the deficiency or prejudice prong, the postconviction court can deny the claim. Id. at 687, 104 S.Ct. 2052.

III. Ground Two of the Motion and the Postconviction Court's Ruling

In ground two of his motion, Mr. Cruz alleged that his trial counsel was ineffective for failing to timely and adequately object when the State's DNA expert, Robyn Ragsdale, testified regarding the statistical analysis of a DNA match for a profile she developed from evidence taken from the crime scene. He alleged that at trial, the DNA evidence was the primary basis for identifying him as one of the perpetrators of the offenses. Mr. Cruz pointed out that his counsel objected to Ms. Ragsdale's testimony about the statistical component prematurely, before the State qualified her and laid the predicate for the admission of that testimony, and the trial court overruled the objection. Thereafter, he alleged, the State failed to elicit testimony from Ms. Ragsdale to demonstrate that she was qualified to testify about the statistical component of the DNA testing or to lay the predicate for the admission of her testimony about her statistical analysis. More specifically, the State never elicited testimony from Ms. Ragsdale to demonstrate that she had sufficient knowledge of the DNA database or what formula was used to perform the statistical analysis.

Mr. Cruz asserted that had defense counsel made a timely and adequate objection, the court would have required the State to establish the proper predicate for the admission of her testimony. If it could not do so, he alleged, the trial court would have precluded Ms. Ragsdale from testifying about the statistical component of the DNA match and the outcome of the trial would have been different. Citing to Perdomo v. State, 829 So.2d 280 (Fla. 3d DCA 2002), Mr. Cruz requested an evidentiary hearing to determine whether the proper predicate could be laid for Ms. Ragsdale's testimony about the statistical analysis. Thereafter, the postconviction court could determine whether his convictions should stand or whether he was entitled to a new trial.

The postconviction court denied relief on ground two, observing that when Ms. Ragsdale began to testify about the statistical component of the DNA analysis, trial counsel made an objection that Ms. Ragsdale was not an expert in statistical analysis and the objection was overruled. Thereafter, "Ms. Ragsdale went on to explain that statistical analysis is commonly done and that she has been conducting such analysis since 1996." The postconviction court found that a subsequent objection along the same lines would not likely have been successful. Thus, it concluded that Mr. Cruz failed to demonstrate deficient performance or prejudice.

The postconviction court's legal conclusion that the foregoing testimony was sufficient to establish the admissibility of Ms. Ragsdale's testimony about the statistical analysis of the DNA profile she developed is incorrect and fails to refute Mr. Cruz's claim that his counsel's performance was deficient. In addition, the record does not conclusively refute Mr. Cruz's claim of prejudice, in that as a result of his trial counsel's failure to properly object, the State never established the proper predicate for the admission of the primary evidence used to obtain his conviction, thereby undermining confidence that Mr. Cruz received a fair trial with a just and reliable outcome.

IV. The Requisite Foundation for Admitting DNA Evidence

In Florida, DNA testing is a two-step process that includes a biochemical component and a statistical component. Butler v. State, 842 So.2d 817, 827 (Fla. 2003). A biochemical analysis is employed to determine whether two DNA samples look alike, then a statistical analysis is employed to determine the frequency of that profile in the population. Id. at 827-28 (citing Brim v. State, 695 So.2d 268 (Fla. 1997) ). Simply establishing that two patterns match without offering any scientifically valid estimate of the frequency with which such matches might occur by chance in the population is meaningless. Brim, 695 So.2d at 270. Because a juror's understanding about how unusual a DNA profile is could be wrong, testimony about DNA analysis must go beyond a simple statement of the occurrence of a match and must provide the trier of fact with expert guidance about its probative value. Id.

In order for testimony about the statistical component of DNA to be admitted, the judge must determine that the witness is qualified to present the testimony. Murray v. State, 692 So.2d 157, 164 (Fla. 1997) (citing Ramirez v. State, 651 So.2d 1164, 1167 (Fla. 1995) ). Although a witness need not be a statistician or a mathematician to testify about the statistical significance of a DNA match, Perdomo, 829 So.2d at 283, the witness must demonstrate "a sufficient knowledge of the [population] database grounded in the study of authoritative sources," Butler, 842 So.2d at 828 (quoting Murray, 692 So. 2d at 164). In addition, the witness must identify the method used to calculate the frequency statistics so that the judge may determine whether the method used is generally accepted in the scientific community in accordance with Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Butler, 842 So.2d at 827-28 ; Murray, 692 So.2d at 161-62 ; Brim, 695 So.2d at 271-72. It is the burden of the proponent of the evidence to establish that the witness is qualified to report the frequency statistics and that frequency statistics satisfy the requirements of Frye. Murray, 692 So.2d at 161, 164.

V. Counsel's Objection to the Statistical Evidence in this Case

The record attachments to the postconviction court's order reflect that when Ms. Ragsdale began to testify about her statistical analysis, counsel objected because the State had "not established through the testimony that she's an expert in statistical analysis." That objection was not entirely accurate because a witness need not be a statistician or mathematician to testify about the statistical significance of a DNA match. Perdomo, 829 So.2d at 283. The trial court overruled the objection. Ms. Ragsdale proceeded to testify that she was "familiar with the type of statistical analysis," that it was "something that is commonly done" in her profession, that she had been "performing statistical analysis ... since 1996," and that it is "part and parcel of what" she does. Thereafter, Ms. Ragsdale provided the statistical data for the DNA profiles that she developed in the case without further objection.

Although the record attachments to the postconviction court's order reflect that Ms. Ragsdale stated that statistical analysis is commonly done and that she has been performing such analyses since 1996, this was insufficient to lay the proper predicate for her testimony about her statistical analysis. Nothing in the attachments to the postconviction court's order demonstrates that Ms. Ragsdale testified about her knowledge of the population database from which the statistics were generated or that she identified the method she used to perform the statistical analysis. See Murray, 692 So.2d at 163 (holding that as the proponent of DNA evidence admitted at trial, the State failed to carry its burden of establishing the admissibility of probability calculations for a DNA profile developed from the crime scene when its expert had no knowledge about the database used to calculate the frequency statistics about which he testified); Casias v. State, 94 So.3d 611, 613-15 (Fla. 2d DCA 2011) (holding that the admission of testimony about the statistical analysis of a DNA match was erroneous when the expert failed to identify the statistical method used and the trial court was unable to determine whether that method was generally accepted); Gibson v. State, 915 So.2d 199, 202 (Fla. 4th DCA 2005) (holding that a witness was not qualified to testify about the statistical component of a DNA match when she failed to identify the formula used or any knowledge of the authorities pertinent to the population database); Perdomo, 829 So.2d at 283-84 (holding that a witness was not qualified to testify about the statistical component when he did not sufficiently describe his education and experience in such analysis or the database, the methodology used, or that the methodology was generally accepted); Miles v. State, 694 So.2d 151, 152-53 (Fla. 4th DCA 1997) (holding that statistical DNA evidence was not properly admitted when the trial court did not determine that the statistical methodology employed was generally accepted, there was no testimony about what statistical technique was applied, and there was no testimony about the State's expert's qualifications to report population frequency statistics based upon sufficient knowledge of the database).

If counsel had adequately objected, then the State would have been required to establish that Ms. Ragsdale had sufficient knowledge of the population database used in the statistical analysis and the method used to calculate the frequency statistics. If the State was unable to demonstrate Ms. Ragsdale's knowledge of the population database or if the formula used in the statistical calculation was not generally accepted, the evidence that allegedly served to identify Mr. Cruz as a perpetrator of the offenses would have been excluded. The record attachments to the postconviction court's order do not refute Mr. Cruz's allegations that his trial counsel was deficient for failing to adequately object to Ms. Ragsdale's testimony about the statistical component of the DNA evidence or that he was prejudiced because the primary evidence identifying him as one of the perpetrators of the offenses was improperly admitted.

Mr. Cruz alleged sufficient facts to establish that his trial counsel was deficient for failing to make an adequate objection to Ms. Ragsdale's testimony about the statistical component of the DNA evidence and that he was prejudiced by counsel's deficient performance, thereby stating a facially sufficient claim for postconviction relief in ground two. Because his claim was not conclusively refuted by the record attachments to the postconviction court's order, we reverse the summary denial of relief on ground two and remand for further proceedings.

VI. Conclusion

We affirm the postconviction court's order to the extent that it summarily denied relief on grounds one and three. Because Mr. Cruz stated a facially sufficient claim for relief in ground two that is not conclusively refuted by the record attachments to the postconviction court's order, we reverse the summary denial of that ground and remand for further proceedings. The postconviction court may again deny relief if it can attach record evidence that conclusively refutes the claim. Fla. R. Crim. P. 3.850(f). Otherwise, it must order the State to respond to the claim and hold an evidentiary hearing if necessary. Id.

Affirmed in part; reversed in part; remanded.

KELLY and CRENSHAW, JJ., Concur.

      We granted, in part, Mr. Cruz's petition alleging ineffective assistance of appellate counsel due to counsel's failure to file a motion to correct the mandatory minimum sentences, which had been improperly imposed to run consecutively. Cruz v. State, 194 So.3d 574, 574 (Fla. 2d DCA 2016). We reversed Mr. Cruz's sentences for the offenses for which he actually possessed a firearm and remanded for the trial court to resentence him in accordance with our opinion. Id. at 575-76.

      Mr. Cruz's proposed relief is based upon a line of cases addressing the trial court's improper admission of testimony on the statistical component of DNA evidence on direct appeal. See Brim v. State, 695 So.2d 268, 275 (Fla. 1997) ; Casias v. State, 94 So.3d 611, 616 (Fla. 2d DCA 2011) ; Perdomo, 829 So.2d at 284. In this appeal from an order summarily denying Mr. Cruz's motion for postconviction relief, however, we are limited to determining whether the record attachments to the postconviction court's order conclusively refute Mr. Cruz's claim of ineffective assistance of trial counsel and, if not, directing the postconviction court to conduct further proceedings to resolve Mr. Cruz's motion on remand. See Fla. R. App. P. 9.141(b)(2)(D).

      Although the legislature amended sections 90.702 and 90.704, Florida Statutes (2013), to replace the Frye test with the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Florida Supreme Court recently held that those amendments were unconstitutional. DeLisle v. Crane Co., No. SC16-2182, 258 So.3d 1219, 2018 WL 5075302 (Fla. Oct. 15, 2018).