author: Warner, J.

text:
    J.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2466
    District Court of Appeal of Florida, Fourth District.
    [October 31, 2018]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges the trial court's denial of his motion to suppress evidence, which he claims was gathered after an unlawful stop without reasonable suspicion. Officers stopped appellant after a 911 caller from a restaurant, stated that drug dealers were out in front of the restaurant. Based upon the totality of the circumstances, we agree with appellant that the officer lacked reasonable suspicion to stop appellant. We reverse.

A dispatcher from the West Palm Beach Police Department received a 911 call mid-day from a person identifying herself as having a restaurant on Sapodilla Avenue in West Palm Beach. The caller reported that drug dealers were on the corner. She described them as three black males, two of whom were wearing white t-shirts. She did not describe any drug selling activity, but she said that as soon as they would see a police vehicle, they would disappear and come back immediately. She said the drug dealers moved between a few blocks around the restaurant. The caller complained that she had customers from all over South Florida, but as soon as they would see "that," the customers would be scared. The dispatcher told the caller that someone would be there to check things out.

An officer with some familiarity with the neighborhood, which she described as a high crime area, was dispatched to investigate a "suspicious person" call. According to the officer, she was told that there were three black males on the corner of 7th and Sapodilla possibly selling drugs. They were wearing t-shirts and shorts. However, the restaurant caller did not mention shorts in her 911 call. When the officer and her partner got to the corner, she observed one adult black male in a white t-shirt. When this individual saw the police vehicle, he began walking to the rear of the building, an apartment complex. There were no other persons in the area.

The officers exited their vehicle, started walking down the alley towards the building, and ordered the male to stop. He continued walking to the rear of the apartment complex. As the officer rounded the corner, she saw two black juvenile males, wearing no shirts and peeking into an apartment window. The officer recognized appellant, J.H., as one of the boys peeking into the window because he had been in the area on a prior call to which she had responded. The officer knew that J.H. lived in the apartment complex.

When the juveniles saw the officer, they began walking down the alley in the other direction. Then they saw another officer at the other end of the alley. At that point, they reached into their pockets, and the first officer ordered them to stop because she was nervous for her safety and that of other officers on the scene. The officer ordered J.H. to walk towards her and to take his hands out of his pocket. As he approached her, she saw a container in his hand. It was a white, cylindrical container with a red cap and appeared to be a Krazy Glue container with the label off. Based on her training and experience, she knew that these containers are commonly known to hold crack cocaine. She conducted a pat-down search of J.H. for weapons and found a handgun. She then arrested him. Prior to seeing the Krazy Glue container, the officer had witnessed no criminal behavior by J.H.

The State charged J.H. as a delinquent in possession of a firearm, possession of cocaine while in possession of a firearm, and carrying a concealed weapon. J.H. moved to suppress the cocaine and the gun, contending that their seizure was the result of a stop unsupported by reasonable suspicion. The State contended that the officers had received a call from a citizen informant, thus making the call on the higher end of reliability. Based upon the totality of circumstances, the officers had reasonable suspicion to stop J.H. and seize the drugs and weapon. The defense argued that the boys did not match the description given by the caller, and there was no reasonable suspicion to detain J.H. when the officers surrounded J.H. in the alley and ordered him to stop and to take his hands out of his pocket.

The trial court found that the 911 caller was a readily identifiable citizen informant because she gave the name of the restaurant and its address. As a citizen informant, the caller's information is at the high end of the reliability scale and can justify a reasonable suspicion. The court ruled that the officer had a reasonable suspicion, based on the content of the 911 call by a citizen informant, to detain J.H. Additionally, the court ruled that the action of all three of the suspects of reaching into their pockets, plus the sight of the glue container, which was commonly known to hold crack cocaine, justified a stop and frisk. Considering the totality of the circumstances, the higher veracity and reliability of the citizen informant, and the three men's actions in walking away and their subsequent actions in the alley, the court denied the motion to suppress.

Thereafter, J.H. entered a no contest plea and reserved the right to appeal the denial of his motion to suppress. The State conceded that the motion to suppress was dispositive. J.H. was adjudicated delinquent and sentenced to a non-secure residential program under the Department of Juvenile Justice. J.H. now appeals.

In reviewing a motion to suppress, "appellate courts ... accord a presumption of correctness to the trial court's rulings on motions to suppress with regard to the trial court's determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution." Connor v. State , 803 So.2d 598, 608 (Fla. 2001) ; see also Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). "The standard of review of the findings of fact is whether competent, substantial evidence supports the findings." Hines v. State , 737 So.2d 1182, 1184 (Fla. 1st DCA 1999). But the courts review the trial court's application of the law to the facts de novo. Id.

There are three levels of police-citizen encounters: consensual encounters, investigatory stops, and full-blown arrests. Popple v. State , 626 So.2d 185, 186 (Fla. 1993). "During a consensual encounter a citizen may either voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked." Id. During the second level of police-citizen encounter, an investigatory stop is involved. Police "may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime." Id. It "requires a well-founded, articulable suspicion of criminal activity." Id. The third level of police-citizen encounter, an arrest, "must be supported by probable cause that a crime has been or is being committed." Id. This case involves the second level of encounter and requires us to analyze whether the officer had a well-founded suspicion of criminal activity when she ordered J.H. to stop.

"Tips from known reliable informants, such as an identifiable citizen who observes criminal conduct and reports it, along with his own identity to the police, will almost invariably be found sufficient to justify police action." J.L. v. State , 727 So.2d 204, 206 (Fla. 1998), aff'd sub nom. Florida v. J.L. , 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The trial court found that the 911 caller was a citizen informant. Even though she declined to give her name, her identity was readily ascertainable, as she gave the name of the restaurant from which she was calling. See State v. Maynard , 783 So.2d 226, 230 (Fla. 2001) (finding that to qualify as a citizen informant, a person's name need not be known so long as the person's identity is readily discoverable).

However, "founded suspicion is dependent on both the informant's reliability and the content of the information she relays; courts consider both factors in determining whether the totality of the circumstances justifies a stop." Ford v. State , 783 So.2d 284, 285 (Fla. 2d DCA 2001) (citing Alabama v. White , 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ). In Ford , a citizen informant approached police and stated that she had just seen a black man approach an older white man in front of a store. Id. The white man put something in his pocket and handed the black man cash. Id. The informant believed she had witnessed a drug transaction. Id. Officers located Ford, the white man, and they stopped him, searched him, and found drugs. Id. In overturning the denial of a motion to suppress, the Second District determined that the citizen's information did not provide a founded suspicion to stop Ford. Id. at 286. The only information that the citizen conveyed was observing a white man hand a black man money and receive something in return, activity which was as consistent with legal behavior as it was with a drug transaction. Id. Thus, the officers did not have a founded suspicion to detain Ford.

Applying the analysis of Ford to this case, the information provided by the citizen informant was that three drug dealers, who were black men, were standing on the corner near her restaurant. The informant did not state how she knew they were drug dealers, nor did she state that she saw them selling drugs. At least two were wearing white t-shirts. They would move up and down the block, and when they saw a police vehicle, they would disappear, only to reappear after the police vehicle passed. This information does not describe any criminal activity at all, whether it is information supplied by a citizen informant or witnessed by police. "A hand-to-hand exchange can warrant a detention when a law enforcement officer sees what transpires and his training and experience lead him to believe he has witnessed a drug transaction." Id. However, if an officer merely saw individuals, whom the officer knew were involved with drugs, standing on a corner, and the only other activity that the officer witnessed were those individuals disappearing when a police vehicle passed, the officer may have a bare suspicion but not a founded suspicion that criminal activity was occurring.

Considering the totality of the circumstances, the remaining observations of the officer also do not provide founded suspicion to stop J.H. After following one white-shirted individual down the alley, the officer observed J.H. and another juvenile, both of whom were shirtless, looking into an apartment window. The officer did not testify that J.H. was known to have previously engaged in drug dealing; she merely knew that he lived in the apartment building. This information does not increase suspicion of drug dealing, nor does it match the description given by the citizen informant, who stated that at least two of the drug dealers wore white t-shirts. The informant never mentioned how the third was dressed. The fact that J.H. began to walk away from the officer, until he saw the other officer coming up the alley from the other direction, does not add anything to support founded suspicion, because "reasonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears." R.J.C. v. State , 84 So.3d 1250, 1256 (Fla. 4th DCA 2012). While "headlong flight" from an officer in a high crime area may warrant founded suspicion to justify a Terry stop, see Illinois v. Wardlow , 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), this was not "headlong flight." See also Lee v. State , 868 So.2d 577, 581-82 (Fla. 4th DCA 2004) (finding no evidence of "headlong flight" where man walked quickly away from other suspects when police arrived, but there was no other suspicious activity). J.H. was walking away from the officer in an alley in which his home was located.

The officer ordered J.H. to stop and then ordered him to take his hands out of his pocket before the officer observed the glue container which she testified was indicative of a drug container. She had no founded suspicion of criminal activity prior to seeing the container. In fact, she testified that she had seen nothing to suggest criminal behavior before seeing it.

J.H. was detained when the officer ordered him to stop. Because the officer had no founded suspicion of criminal activity, the stop violated the Fourth Amendment. We therefore reverse and remand with directions to dismiss the petition.

May and Forst, JJ., concur.

      The trial court, as well as the parties, indicate that the caller stated the men were "selling" drugs. We have reviewed the record, and the caller never stated that she observed the men selling drugs. Rather, she said that "drug dealers are out there by 7th and Sapodilla." While the dispatcher asked "you said they were selling," the caller did not respond to this. Instead, she corrected her physical description of two of the men as being in white t-shirts.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Thomas G. CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1294
    District Court of Appeal of Florida, Fourth District.
    [October 31, 2018]
    Thomas G. Curry, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm the trial court's denial of appellant's rule 3.850 motion. The motion is untimely, and the retroactivity exception in Florida Rule of Criminal Procedure 3.850(b)(2) does not apply.

Appellant filed his motion in 2018 seeking to vacate a plea he entered in 2004 to felony driving while license revoked as a habitual traffic offender. § 322.34(5), Fla. Stat. (2004). His motion relied on a change in statutory interpretation that was announced in State v. Miller , 227 So.3d 562 (Fla. 2017). The Florida Supreme Court in Miller held that a defendant, who never obtained a license, could not be convicted under section 322.34(5). Id. at 565. In so ruling, the court disapproved of Newton v. State , 898 So.2d 1133 (Fla. 4th DCA 2005) ; State v. Bletcher , 763 So.2d 1277 (Fla. 5th DCA 2000) ; and Carroll v. State , 761 So.2d 417 (Fla. 2d DCA 2000), which held to the contrary. Id. at 563.

Appellant asserted under oath in his motion that he never had a license at the time of the plea and asserted claims of ineffective assistance of counsel. Although the conviction had become final and the sentence was completed many years ago, in his filings, appellant has asserted that the conviction caused him to be sentenced to a 15-year mandatory minimum term as a prison releasee reoffender in a subsequent case.

The trial court considered whether appellant's motion satisfied rule 3.850(b)(2)'s exception to the two-year time limit for bringing a postconviction claim. The exception allows a motion to be filed outside the time limit where:

(2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity[.]

Fla. R. Crim. P. 3.850(b)(2). The trial court concluded that "[t]he Florida Supreme Court's decision in Miller does not assert a fundamental right which requires retroactivity to achieve fairness" and that appellant's claims did not meet any other exception to the two-year time limit in rule 3.850.

We agree with the trial court that appellant's motion was untimely and that the rule 3.850(b)(2) exception is not met as Miller did not announce a new fundamental constitutional rule and, therefore, is not retroactive.

Additionally, we don't believe that the change in Miller would be subject to retroactive application under Witt v. State , 387 So.2d 922 (Fla. 1980). " Witt held that only major constitutional changes will be cognizable in connection with a claim seeking retroactive application of the law.... [C]onstitutional changes that are equivalent to a jurisprudential upheaval in criminal law warrant retroactive application-not evolutionary refinements in criminal law. " Walton v. State , 77 So.3d 639, 643 (Fla. 2011) ; see also State v. Barnum , 921 So.2d 513, 523-24 (Fla. 2005) (rejecting any "clarification versus change" in law distinction and holding that retroactivity of decisional law in Florida is controlled solely by Witt ); State v. Glenn , 558 So.2d 4, 7 (Fla. 1990) ("In practice, because of the strong concern for decisional finality, this Court rarely finds a change in decisional law to require retroactive application.").

"The doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications." Witt , 387 So.2d at 925. The Florida Supreme Court rejected "in the context of an alleged change of law, the use of post-conviction relief proceedings to correct individual miscarriages of justice or to permit roving judicial error corrections, in the absence of fundamental and constitutional law changes which cast serious doubt on the veracity or integrity of the original trial proceeding." Id. at 929.

Miller is an evolutionary refinement in how section 322.34(5), Florida Statutes, should be interpreted-not a constitutional development of fundamental significance. See, e.g. , State v. Woodley , 695 So.2d 297, 298 (Fla. 1997) (holding that State v. Gray , 654 So.2d 552 (Fla. 1995), which had abolished the crime of attempted felony murder in Florida, did not apply retroactively).

Affirmed.

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


author: Ciklin, J.

text:
    C.B., the Mother, Appellant, v. State of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D18-1732
    District Court of Appeal of Florida, Fourth District.
    [October 31, 2018]
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Children's Legal Services, Fort Lauderdale, for appellee.
    Marynelle Hardee, Defending Best Interests Project, Guardian Ad Litem Program, Gainesville; and Thomasina Moore, Statewide Director of Appeals, and Laura J. Lee, Appellate Counsel, Tallahassee, for Guardian Ad Litem Program.
   Ciklin, J.

C.B. ("the mother") challenges an order terminating her parental rights due to her failure to complete her case plan over a period of approximately three years. Because the mother did not address certain circumstances which caused the creation of the case plan to begin with, we affirm.

The mother's four children-then aged approximately 9 years, 7 years, 4 years, and 11 months old-were sheltered in November 2014. Prior to that, in October 2014, the youngest child fell into a cooler of water that the mother kept in the kitchen and nearly drowned. Following this incident, a child protective investigator ("CPI") went to their home and discovered the children were living in a condemned, abandoned home with their mother. The home had broken windows and doors, was filthy, lacked running water, and was in foreclosure. Additionally, there was an open warrant for the mother for truancy issues involving the children.

The mother indicated that she was moving in with the paternal grandmother, so the CPI placed the mother and children at a hotel for two days. Instead of moving in with the grandmother, however, the mother returned to the hazardous home, so the children were removed. The father did not have a place for the children to reside and they were placed with non-relatives.

The Department of Children and Families ("DCF") petitioned to adjudicate the children dependent and the mother entered into a mediation agreement in February 2015 in which she agreed to: (1) provide proof of stable income and housing, (2) provide child support, (3) complete a parenting course, (4) complete couples' counseling, (5) complete psychological evaluation and follow all court-ordered/approved recommendations, and (6) complete individual counseling with the length of time to be determined. In April 2015, the trial court adjudicated the children dependent and accepted a case plan that incorporated the tasks outlined in the mediation agreement.

The mother underwent several psychological evaluations, each of which reinforced the need for individual trauma-based counseling and possible psychotherapy. The mother was also eventually ordered to undergo a substance abuse evaluation, after which she was ordered to comply with substance abuse screenings and medication management tasks.

As of October 2015, the mother had voluntarily discontinued individual counseling, and had failed to comply with several other case plan tasks. She had, however, completed a parenting course. In May 2016, DCF petitioned for termination of her parental rights. At a judicial review in August 2016, the mother indicated her desire to participate in the tasks recommended in her substance abuse and psychological evaluations, so the court ordered that the referrals be provided, effectively granting her a second chance.

In April 2017, after a number of referrals and services, the mother was only partially compliant with her individual psychotherapy requirements and had failed to submit to random urinalysis. DCF filed an amended petition for termination of parental rights in July 2017. At the judicial review that followed, the court found the mother not compliant with numerous case plan tasks, including individual psychotherapy and outpatient substance abuse treatment, from which she was unsuccessfully discharged.

The case proceeded to trial. The mother testified that she was living in a four-bedroom home with the maternal grandmother, and had been living there since January 2017. She acknowledged, however, that she failed to provide the necessary paperwork to her child advocate to get the home approved.

Also at trial, a psychologist who evaluated the mother opined that the mother's psychological issues were pervasive enough to affect the mother on a daily basis and that she may not react appropriately to situations involving her children. She further opined that, given the pervasive level of the mother's symptoms, they would not go away on their own and that trauma-focused therapy was necessary. Additionally, while the mother accepted partial responsibility, there were some issues that brought the children into care that the mother would not acknowledge.

The trial court entered an order terminating the mother's parental rights pursuant to section 39.806(1)(e), Florida Statutes (2018), based on her failure to substantially comply with her case plan, despite being given three years to do so.

The mother now appeals. She contends that because she obtained safe housing and completed parenting classes, she remedied the circumstances that caused the creation of the case plan, and consequently, there was not sufficient proof to terminate parental rights under section 39.806(1)(e). We must disagree.

We review a trial court's decision to terminate parental rights for competent, substantial evidence. J.E. v. Dep't of Children & Families , 126 So.3d 424, 427 (Fla. 4th DCA 2013). A ground for terminating parental rights exists:

(e) When a child has been adjudicated dependent, a case plan has been filed with the court, and:
1. The child continues to be abused, neglected, or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 12 months after an adjudication of the child as a dependent child or the child's placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent's lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child....

§ 39.806(1)(e) 1., Fla. Stat. (emphasis added).

" 'Substantial compliance' means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child's remaining with or being returned to the child's parent." § 39.01(78), Fla. Stat. (2018). "Conversely, the lack of substantial compliance means that the circumstances which gave rise to creation of the case plan have not been significantly remedied to the extent that the well being and safety of the child will be endangered upon the child's remaining with or being returned to the parents." B.L. v. Dep't of Children & Families , 950 So.2d 1264, 1266 (Fla. 5th DCA 2007).

Mere completion of services is not equivalent to substantial compliance with a case plan. See, e.g. , A.B.E. v. Dep't of Children & Families , 47 So.3d 347, 351 (Fla. 4th DCA 2010) (affirming order terminating parental rights and explaining mother's acceptance of in-home parenting instruction was not sufficient to complete case plan task where mother failed to understand or apply lessons). Furthermore, the circumstances surrounding the creation of the case plan may extend to problems identified subsequent to the children's removal, and not exclusively those identified contemporaneous to removal. For example, in D.G. v. Department of Children & Families , 77 So.3d 201, 202 (Fla. 4th DCA 2011), the child was removed from the mother due to the fact that her sibling was severely physically abused. Despite the mother's completion of case plan tasks such as parenting classes and ending her relationship with the sibling's abusive father, her parental rights were terminated due to failure to complete her case plan and material breaches of the plan where psychologists opined she lacked judgment, she tested positive for drugs twice, and she failed to show up for two drug screens, among other uncompleted tasks. Id. at 204-06.

On appeal, the mother in D.G. argued that her drug tests should be ignored because "substantial compliance" means remedy of the circumstances that caused the creation of the case plan, which in her case were unrelated to drug use. Id. at 207-08. This court disagreed and affirmed, explaining that the mother's drug history and use were mentioned in the original petition for termination and the order of adjudication of dependency established the drug use as an issue to be addressed through the case plan. Id. at 208.

The instant case is somewhat similar to D.G. Here, the children were initially sheltered due to inadequate supervision, inadequate housing, and an open warrant for truancy. As the mother contends, the evidence at trial indicated that she indeed completed a parenting course and found better housing. However, early on in the case, the mother agreed to complete individual psychological counseling as well as all court-ordered recommendations resulting from the psychological evaluation when she entered into the mediation agreement. Although neither the dependency petition nor order directly outlined the mother's mental health issues, the initial case plan unequivocally incorporated these tasks and was plainly adopted by the trial court in the order adjudicating the children dependent. Consequently, the original case plan adopted by the court clearly established the mother's mental health as an issue to be addressed.

Moreover, it is important to acknowledge that what is initially recognized as a cause for sheltering children is more often than not a symptom of a larger underlying problem which-by definition-must be addressed. Here, the mother's poor decisions relating to the children prior to DCF intervention were a side effect of her own trauma-based issues. This much was evident by the time the case plan was established. Further, the evidence at trial established as much in that the psychologist transparently linked the mother's mental health issues with her ability to parent.

Because the mother did not complete the case plan tasks required to address mental health issues, there is competent, substantial evidence that she did not substantially comply with her case plan to the extent that the circumstances causing the creation of the plan were remedied.

Consequently, we affirm.

Affirmed.

Damoorgian and Conner, JJ., concur.


text:
    Pedro ROMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1840
    District Court of Appeal of Florida, Fourth District.
    [October 31, 2018]
    Pedro Roman, Bowling Green, pro se.
    No appearance required for appellee.
   Per Curiam.

We affirm the trial court's order denying appellant's motion for post-conviction relief without prejudice to appellant filing a petition for writ of mandamus in the trial court to obtain his records and trial transcripts. See Bush v. State , 947 So.2d 685, 686 (Fla. 4th DCA 2007).

Damoorgian, Ciklin and Klingensmith, JJ., concur.


text:
    Bryan C. DONAHUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2148
    District Court of Appeal of Florida, Fourth District.
    [November 7, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   Per Curiam.

The defendant appeals the circuit court's denial of his motion for resentencing hearing, challenging the thirty-year sentences imposed following convictions for second degree murder and robbery.

We affirm based on Hart v. State , 246 So.3d 417 (Fla. 4th DCA 2018) (en banc) and Pedroza v. State , 244 So.3d 1128 (Fla. 4th DCA 2018). As we did in Hart and Pedroza , we certify conflict with Cuevas v. State , 241 So.3d 947 (Fla. 2d DCA 2018), Blount v. State , 238 So.3d 913 (Fla. 2d DCA 2018), Mosier v. State , 235 So.3d 957 (Fla. 2d DCA 2017), Alfaro v. State , 233 So.3d 515 (Fla. 2d DCA 2017), and Burrows v. State , 219 So.3d 910 (Fla. 5th DCA 2017). We also certify conflict with Katwaroo v. State , 237 So.3d 446 (Fla. 5th DCA 2018) and Tarrand v. State , 199 So.3d 507 (Fla. 5th DCA 2016).

Affirmed; conflict certified.

Warner, Damoorgian and Ciklin, JJ., concur.


text:
    Andrew Jeff COFFEE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-3536 & 4D17-3537
    District Court of Appeal of Florida, Fourth District.
    [November 7, 2018]
    Carey Haughwout, Public Defender, and Narine Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

In this consolidated appeal we find no fundamental error based on the prosecutor's closing argument in appellant's trial for attempted first degree murder of a law enforcement deputy. We therefore affirm appellant's judgment of conviction. However, because the trial court erred by imposing a public defender fee above the statutory minimum of $100 without making factual findings in support of the additional amount, we reverse the public defender fee and remand for the trial court to reduce the fee to $100 or hold a hearing. See Alexis v. State , 211 So.3d 81 (Fla. 4th DCA 2017).

Affirmed in part, Reversed in part, and Remanded.

Taylor, Conner and Kuntz, JJ., concur.


text:
    Jason NUTTLE, Appellant, v. Christine NUTTLE, Appellee.
    No. 4D18-391
    District Court of Appeal of Florida, Fourth District.
    [November 14, 2018]
    Christopher R. Bruce and Charles J. Thompson of Bruce Law Firm, P.A., West Palm Beach, for appellant.
    Carl J. Domino of the Law Offices of Carl Domino, PLLC, Jupiter, for appellee.
   Per Curiam.

Jason Nuttle ("husband") appeals a final judgment modifying his alimony obligation to Christine Nuttle ("wife"). The husband raises six issues: that the trial court (1) made insufficient findings as to the need and ability to pay alimony, (2) improperly imputed income, (3) failed to make its modification of alimony retroactive to the date of the original modification petition, (4) improperly increased alimony for the eighth year contrary to the settlement agreement, (5) made improper findings in the order denying the wife's motion for contempt, and (6) failed to properly determine income for purposes of child support. As to issue three, we reverse and remand for the trial court to make the modification of alimony retroactive to the date the husband's employment was terminated. As to issue five, we remand for the trial court to strike a scrivener's error. We affirm all other issues without discussion.

On November 6, 2015, the parties entered into a settlement agreement pursuant to which the husband agreed to pay durational alimony in the amount of $2,750 per month for years one and two, $2,500 per month for years three through five, $2,250 per month for years six and seven, and $1,000 per month for year eight. Before the trial court signed the final judgment of dissolution of marriage, the husband filed a supplemental petition for modification of support on January 15, 2016, stating that he received notice that his employment would be terminated effective January 31, 2016. On October 26, 2016, the trial court signed a final judgment of dissolution of marriage nunc pro tunc to November 6, 2015, which was the date of the settlement agreement. The trial court accepted the terms of the settlement agreement and reserved jurisdiction on the husband's motion for modification. On November 28, 2016, the husband filed an amended supplemental petition for modification of support, reasserting the allegations in his earlier petition.

During a hearing on the modification motion, the husband testified that when he entered the settlement agreement, he did not know he was going to lose his job as a staff photographer. Since losing his job, he has continued working at his own independent photography business. Both parties presented evidence as to their past and current income. The trial court ultimately reduced the husband's alimony obligation to $2,000 per month retroactive to November 28, 2016, the date of the amended supplemental petition for modification.

A trial court's decision whether to make modification retroactive is reviewed for abuse of discretion. DeSantis v. Smith , 634 So.2d 796, 797 (Fla. 4th DCA 1994). "Retroactivity is the rule rather than the exception which guides the trial court's application of discretion when modification of alimony or child support is granted." Id.

Under Florida law,

the court may modify an order of ... alimony by increasing or decreasing the ... alimony retroactively to the date of the filing of the action or supplemental action for modification as equity requires, giving due regard to the changed circumstances or the financial ability of the parties ....

§ 61.14(1)(a), Fla. Stat. (2016).

In Thyrre v. Thyrre , 963 So.2d 859, 862 (Fla. 2d DCA 2007), the trial court granted the husband's petition for modification. The Second District reversed the denial of his request for retroactivity, reasoning:

[T]he former husband's need for a reduction in his alimony obligation existed at the time of the filing of the petition for modification. In addition, the trial court did not state a reason for rejecting the former husband's request for retroactivity, and the record does not indicate that there was a basis for rejecting the request.

Id. See also Hedstrom v. Hedstrom , 123 So.3d 150, 154 (Fla. 5th DCA 2013) ("[T]rial courts abuse their discretion by failing to grant modification retroactively to the date the petition was filed if the reasons justifying modification existed at that time.").

In this case, the trial court granted retroactive modification, but only to the date of the amended petition for modification. The trial court did not grant retroactive modification to the date of the original petition for modification and the date the husband lost his employment. Like in Thyrre , the husband's need for a reduction in his alimony existed at the time of the filing of the original petition for modification. Additionally, the trial court did not state any reason for rejecting the husband's request for retroactively modifying alimony to the date of the husband's loss of employment. Nor does the record indicate any basis for rejecting the request. Both the original petition and the amended petition cited the husband's job loss as the basis for modification.

In light of the presumption of retroactivity, the trial court's reduction of alimony, and the lack of record support for the trial court's rejection of the request for retroactivity to the date of the original petition for modification, we reverse the final judgment of modification and remand for the trial court to reduce the husband's alimony obligation retroactive to the date the husband was terminated from his employment. We also remand for the trial court to correct a scrivener's error in the order denying contempt and instruct the trial court to strike findings that the husband should be held in contempt. We affirm all other issues raised on appeal.

Affirmed in part, reversed in part, and remanded.

May, Levine and Klingensmith, JJ., concur.


text:
    COUNTYLINE AUTO CENTER, INC., doing business as Lexus of Pembroke Pines, Appellant, v. Olga KULINSKY, Stanislav Kulinsky, Elite Guard Inc. and The Final Notice Agency Inc., Appellees.
    No. 4D17-2847
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Glen R. Goldsmith of Glen R. Goldsmith, P.A., Miami, for appellant.
    Yelena Shneyderman, of Yelena Shneyderman, P.A., Hollywood, for appellees Olga Kulinsky and Stanislav Kulinsky.
   Per Curiam.

Countyline Auto Center, Inc., ("Countyline") appeals the trial court's partial denial of its motion to compel arbitration in the underlying action following its sale of a vehicle to the appellees, Olga and Stanislav Kulinsky ("the Kulinskys"). The trial court ruled that the defamation count included in the Kulinskys' lawsuit against Countyline was an independent tort and did not fall within the scope of the parties' arbitration agreement. We disagree, and reverse because the arbitration clause under review expressly includes tort actions-which encompasses the Kulinskys' cause of action for defamation.

The Kulinskys sued Countyline and others following their purchase of a used Bentley and its subsequent repossession that was the product of a mistake. The Kulinskys' amended complaint alleged three counts against Countyline, one of which was a defamation claim based on the conduct of a Countyline salesman. In particular, the Kulinskys noted that the salesman resided in the same condominium complex as they did, along with many of their business customers. They stated that the condominium community was close-knit, whereby all residents were intimately familiar with each other's personal and business affairs. The Kulinskys claimed that after the repossession, Countyline's salesperson "had conversations with members of the condominium community, in which he falsely stated that [the Kulinskys'] Bentley was repossessed because [they] were suffering financial difficulty." The Kulinskys also asserted that Countyline was vicariously liable for the damages caused by those defamatory statements.

Countyline moved to compel arbitration on all counts based on an arbitration clause within the Bentley's Retail Installment Sales Contract. The clause provided, in relevant part:

Any claim or dispute, whether in contract, tort , statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action.

(Emphasis added). The trial court ruled that the defamation count was independent and outside the scope of that clause.

" '[T]he standard of review applicable to the trial court's construction of an arbitration provision, and to its application of the law to the facts found, is de novo.' " BDO Seidman, LLP v. Bee , 970 So.2d 869, 874 (Fla. 4th DCA 2007) (quoting Fonte v. AT & T Wireless Servs., Inc. , 903 So.2d 1019, 1023 (Fla. 4th DCA 2005) ); accord Allied Prof'ls Ins. Co. v. Fitzpatrick , 169 So.3d 138, 141 (Fla. 4th DCA 2015).

" 'Generally, the three fundamental elements that must be considered when determining whether a dispute is required to proceed to arbitration are: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.' " Sunsplash Events Inc. v. Robles, 150 So.3d 1194, 1197 (Fla. 4th DCA 2014) (quoting Jackson v. Shakespeare Found., Inc ., 108 So.3d 587, 593 (Fla. 2013) ). We write to address only the second element, because it is the only element that the parties expressly dispute. Consequently, we hold-for the following three reasons-that the Kulinskys' defamation claim falls within the scope of the Sales Contract's arbitration provision.

First, the arbitration language expressly contemplates tort actions. See BKD Twenty-One Mgmt. Co., Inc. v. Delsordo , 127 So.3d 527, 531-32 (Fla. 4th DCA 2012) (holding that premises liability claims brought by a resident who fell in a retirement community's common area had to be arbitrated because the lease's arbitration clause expressly covered "negligence" claims "arising out of or related to this Agreement, the Establishment or the services/care provided to the Resident"); Xerox Corp. v. Smartech Document Mgmt. Inc ., 979 So.2d 957, 959-60 (Fla. 3d DCA 2007) (noting that multiple claims, including defamation, were covered by an arbitration clause that encompassed "any and all claims ... arising out of or in any way relat[ed] to th[e] agreement ... between the parties, regardless of whether the claim [was] based upon tortious conduct ... or any other theory at law or in equity ...." (Alterations added) ).

Second, the arbitration language is broad because of the "relates to" language. See Jackson, 108 So.3d at 593. Per its terms, the parties intended to arbitrate "[a]ny claim or dispute, whether in contract, tort, statute or otherwise ... between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application." "The addition of the words 'relating to' broadens the scope of an arbitration provision to include those claims that are described as having a 'significant relationship' to the contract-regardless of whether the claim is founded in tort or contract law." Id. at 593.

We agree with Countyline that there is a significant relationship between the claim and the agreement. The Kulinskys alleged that the defamation claim is based on defamatory statements allegedly made by Countyline's salesman within the scope of his employment. Those statements related to the Kulinskys' purchase of the vehicle and their ability to afford it, which in turn relates to the credit application and contract that controlled the purchase. See e.g. , Roth v. Cohen, 941 So.2d 496, 500 (Fla. 3d DCA 2006) (finding a sufficient nexus between defamation claims and a design contract, thereby bringing the claims into the purview of the contract's arbitration clause).

We distinguish King Motor Co. of Fort Lauderdale v. Jones, 901 So.2d 1017, 1020 (Fla. 4th DCA 2005), where this Court affirmed the trial court's denial of a motion to compel arbitration of tort claims following the plaintiff's purchase of a car at a dealership. There, the plaintiff sued the dealership and alleged that the salesman used the information contained on her credit application to steal her identity, make fraudulent purchases, and fraudulently withdraw from her bank account. Id. at 1017. The dealer's arbitration clause did not refer to tort claims, as in this case, nor did the claim have the required contractual nexus. Id. at 1018-19 ; see BKD Twenty-One, 127 So.3d at 531-32.

Third, to the extent any ambiguity may exist in the scope of the purchase agreement's arbitration provision, we resolve that ambiguity in favor of arbitration. See Jackson , 108 So.3d at 593.

Based on the foregoing, we reverse for entry of an order compelling arbitration of the Kulinskys' defamation claim.

Reversed and remanded.

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


text:
    Julio RIVERA, Appellant, v. NEW HOPE POWER COMPANY, Appellee.
    No. 4D17-3704
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Paul B. Feltman of Alvarez, Feltman, & DaSilva, P.L., Coral Gables, for appellant.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and C. Brooks Ricca, Jr. of C. Brooks Ricca, Jr. and Associates, P.A., West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Yero v. Miami-Dade Cty. , 838 So.2d 686 (Fla. 3d DCA 2003).

May and Forst, JJ., and Hilal, Jennifer, Associate Judge, concur.


text:
    Corey Alexander WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3779
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Carey Haughwout, Public Defender, and Claire Victoria Madill, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Venter v. State , 901 So.2d 898 (Fla. 4th DCA 2005).

Taylor, Ciklin and Conner, JJ., concur.


text:
    John NAESER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-803
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Gethers v. State , 838 So.2d 504, 505 (Fla. 2003) ("[A]bsent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.").

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


text:
    Theodore J. HORNE, Jr., Appellant, v. Katherine M. RHODES, Appellee.
    No. 4D18-861
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Theodore J. Horne, Jr., West Park, pro se.
    Jessica Yero of Jessica Yero, P.A. Fort Lauderdale, for appellee.
   Per Curiam.

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

Levine, Forst and Klingensmith, JJ., concur.


text:
    Erik SANDERSON, Individually; Technomarine Construction, Inc., a Florida Corporation; and Technomarine Group, Inc., a Delaware Corporation, Appellants, v. Christopher KARCH, Appellee.
    No. 4D18-1695
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Thomas J. Ali of Jupiter Legal Advocates, Palm Beach Gardens, for appellants.
    Alan B. Rose and Gregory S. Weiss of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Bank of Am., N.A. v. Ribaudo , 199 So.3d 407, 409 (Fla. 4th DCA 2016) (holding that the court's "clear errors" in failing to consider relevant factors before striking a witness and failing to consider the Kozel factors before dismissing a complaint as discovery sanctions could not be reviewed on appeal in light of sanctioned party's failure to "raise either of these issues at the hearing on the motion to dismiss or by subsequently filing a motion for rehearing or reconsideration").

Gross, Damoorgian and Ciklin, JJ., concur.


text:
    Bryce K. KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2683
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Bryce K. Kennedy, Raiford, pro se.
    No appearance required for appellee.
   Per Curiam.

We affirm the trial court order denying appellant's motion to correct illegal sentence. In his initial brief, appellant raised for the first time a challenge to his sentences based on Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). It was not part of his motion filed below. Accordingly, we affirm without prejudice to his right to raise that challenge by proper motion in the trial court. Cotto v. State , 141 So.3d 615, 616 n.1 (Fla. 4th DCA 2014) (citing Atwell v. State , 128 So.3d 167, 169 (Fla. 4th DCA 2013) ).

Gross, Damoorgian and Klingensmith, JJ., concur.


author: Kuntz, J.

text:
    Paul Anthony CATALDO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1446
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

Paul Anthony Cataldo appeals his conviction for battery on a person 65 years of age or older. We affirm without comment with one exception. Cataldo argues, and the State concedes, that the circuit court erred in denying his Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error.

Specifically, Cataldo argues there are three errors in the written order of probation:

1.) The order of probation incorrectly states that Cataldo entered a guilty plea when, in fact, he was convicted by jury;
2.) The order of probation refers to Cataldo's conviction on count one as "EVIDENCE OF PREJUDICE WHILE COMMITTING BATTERY ON PERSON 65 YEARS
OF AGE OR OLDER" when, in fact, the jury did not find evidence of prejudice; and
3.) The order of probation indicates a probationary period of "3 YEARS, CONCURRENT WITH COUNTS 1,2 - FIRST 6 MONTHS OF PROBATION TO BE SERVED ON COMMUNITY CONTROL II WITH A MONITOR" when, in fact, the court ordered one year of probation for count two.

The State concedes that these three errors should be corrected. Thus, we affirm Cataldo's conviction and sentence but remand for the court to correct the three errors in the order of probation. Cataldo need not be present for the court's entry of the corrected order of probation. See Sirota v. State , 977 So.2d 700, 701 (Fla. 4th DCA 2008).

Affirmed and remanded for correction of order of probation.

Taylor and Conner, JJ., concur.


text:
    BLUEWATER, INC. and Anthony Scott Walker, Appellants, v. CENTER STREET LENDING FUND IV SPE, LLC, Appellee.
    No. 4D18-3152
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Gary Barcus, Pembroke Pines, for appellants.
    No appearance for appellee.
   Per Curiam.

We summarily affirm the trial court's order requiring sequestration of rents under section 697.07(4), Florida Statutes (2018). The statute allows sequestration of rents 'notwithstanding any asserted defenses or counterclaims of the mortgagor.' Id. (emphasis supplied). "In ruling on a motion to sequester rents, a court should refrain from conclusively ruling on affirmative defenses." Tidewater Estates Co-Op, Inc. v. U.S. Bank Nat. Ass'n , 83 So.3d 912 (Fla. 4th DCA 2012). Usury is an affirmative defense. Cerrito v. Kovitch , 423 So.2d 1008, 1010 (Fla. 4th DCA 1982), approved, 457 So.2d 1021 (Fla. 1984). The trial court did not abuse its discretion.

Affirmed .

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


text:
    Daniel CAMMARATA, Appellant, v. Kelly A. CAMMARATA n/k/a Kelly Ahmeti, Appellee.
    Nos. 4D17-2553 4D18-477
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Mary Michele Hudson of Maverick Law, LLC, Palm Beach Gardens, for appellant.
    Matthew David Martin of Martin Family Law, Boca Raton, for appellee.
   Per Curiam.

In this consolidated appeal, the former husband appeals from two orders: (1) the Final Judgment Denying Former Husband's Supplemental Petition for Modification, Denying Former Husband's Motion for Contempt and Enforcement, and Granting Former Wife's Supplemental Petition for Modification of Child Support; and (2) the Final Judgment Awarding Former Wife Attorney's Fees and Costs. We affirm without discussion the portions of the first order which are final, and the second order in its entirety.

We dismiss the appeal as to the portion of the first order which directs that the former wife's supplemental petition for modification of child support is referred to the magistrate for further consideration. The body of the judgment states in part that the trial court "refers all issues related to modification of child support to the general magistrate," and that "[t]he parties shall attend mediation to address the modification of child support prior to scheduling a child support modification hearing before the magistrate." In addition, the trial court specifically "ORDERED" that "[t]he Former Wife's Supplemental Petition for Modification of Child Support and for Other Relief is referred to the magistrate for further consideration. The parties shall attend mediation prior to setting a hearing on the Supplemental Petition for Modification ...." Accordingly, this portion of the order is nonfinal and nonappealable.

Affirmed in part, dismissed in part, and remanded to correct scrivener's error .

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

      There is a scrivener's error in this order that must be corrected. The heading of the final judgment incorrectly reflects that the former wife's supplemental petition for modification of child support was granted . The appellee concedes that the heading of the final judgment is inconsistent with the court's directives within the judgment.


text:
    Paul KLEIN and Sher Klein, Appellants, v. AMERICAN LEARNING SYSTEMS, INC., a Florida Corporation, Appellee.
    No. 4D18-1045
    District Court of Appeal of Florida, Fourth District.
    [December 5, 2018]
    Richard C. Wolfe of Wolfe Law Miami, P.A., Miami, and Alan G. Geffin and Christopher Perez-Gurri of GPG Law, Fort Lauderdale, for appellants.
    John J. Shahady of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort Lauderdale, for appellee.
   Per Curiam.

Affirmed. See Am. Learning Sys., Inc. v. Gomes, 199 So.3d 1076 (Fla. 4th DCA 2016).

Gross, May, JJ., and Caracuzzo, Cheryl, Associate Judge, concur.


text:
    Vilma M. WALKER and Lorren G. Soares, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Solely AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST MORTGAGE LOAN PASS-THROUGH CERTIFICATES, Series 2007-6, Appellee.
    No. 4D18-2760
    District Court of Appeal of Florida, Fourth District.
    [December 5, 2018]
    Vilma M. Walker and Lorren G. Soares, Miramar, pro se.
    Kimberly S. Mello and Joseph H. Picone of Greenberg Traurig, P.A., Tampa, for appellee.
   Per Curiam.

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

Conner, Forst and Kuntz, JJ., concur.


author: PER CURIAM.

text:
    Marco Manuel TORRES, Appellant, v. Honorable Lawrence LEFLER, Appellee.
    Case No. 2D17-2741
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018 Rehearing Denied December 6, 2018
    Marco Manuel Torres, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robert Dietz, Senior Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Marco Manuel Torres appeals two orders entered in a lawsuit that he filed against the Honorable Lawrence Lefler for actions taken in connection with Mr. Torres's criminal case. The first order dismissed his case against Judge Lefler with prejudice based upon judicial immunity. The second ordered Mr. Torres to show cause why the court should not impose sanctions against him for repeatedly filing frivolous lawsuits. The show cause order provided that, in the event that legal justification was not shown, the court would enter sanctions requiring Mr. Torres to pay the filing fee for all future suits he files in Hillsborough County unless he is claiming personal, physical injury or he has obtained a written certification from a Florida attorney about the merits of his case.

The order dismissing Mr. Torres's 42 U.S.C. § 1983 action with prejudice is affirmed without further discussion. See Limehouse v. Whittemore, 773 So.2d 86, 87 (Fla. 2d DCA 2000). The show cause order gave Mr. Torres ten days to show cause why the court should not impose sanctions. Mr. Torres appealed the order prior to the expiration of the ten-day period. Where the court merely reserves jurisdiction for the later imposition of sanctions, judicial labor has not ended and the order is not appealable. See Nathanson v. Rishyko, 140 So.3d 1054, 1055 (Fla. 4th DCA 2014). Because this court lacks jurisdiction to review the nonfinal show cause order, it is dismissed.

Affirmed in part; dismissed in part.

NORTHCUTT, CRENSHAW, and ATKINSON, JJ., Concur.


author: Rowe, J.

text:
    Robert A. KOROLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1381
    District Court of Appeal of Florida, First District.
    August 16, 2018 Rehearing Denied December 5, 2018
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

After consuming fourteen beers, Robert Koroly drove the wrong way on Interstate 110 colliding head-on with a vehicle driven by Johnny Robinson. Within seconds, a third vehicle driven by Clarence Jordan struck Robinson's vehicle. The crash left Jordan with serious injuries, and Robinson died as a result of the injuries he sustained in the crash.

Koroly was charged with DUI manslaughter and DUI with serious bodily injury. Koroly elected not to go to trial and entered a plea. He was sentenced to 13.25 years' imprisonment followed by 6.75 years' probation.

After serving four years of his sentence, Koroly sought to withdraw his plea on grounds that his counsel was ineffective for failing to retain an accident reconstruction expert to evaluate the road conditions that existed at the time of the crash. Koroly argued that had his counsel retained an expert, the expert would have discovered defective signage on the interstate and hazardous weather conditions, both of which could have contributed to the crash. Under those circumstances, Koroly asserts that he would not have entered a plea. The trial court denied Koroly's motion, concluding that counsel's performance was not deficient. We agree and affirm.

I. Facts

Koroly was a commissioned officer in the United States Navy. He had served nearly eight years as a naval aviator, with the last few years of his military career as a flight instructor stationed at the Naval Air Station in Pensacola, Florida. The record is replete with references to Koroly's achievements and honorable service to his country. Numerous letters offered at sentencing by Koroly's family, friends, and colleagues recount Koroly's past accomplishments and future potential.

a. The crash

On April 30, 2010, Koroly celebrated one aspect of that future. He planned to move in with his soon-to-be fiancé and her children. Koroly and his friends visited multiple bars that evening in downtown Pensacola. The celebration lasted into the early morning hours of May 1, 2010.

Sometime before 5:42 a.m., the celebration ended. It is unknown what time Koroly left downtown Pensacola or why he got behind the wheel of his SUV. There is no evidence of where he was headed or how he came to be driving the wrong way on the interstate. What is known is this: with a blood alcohol level of over twice the legal limit, Koroly entered a southbound exit ramp on Interstate 110 and drove at least 1,700 feet in the wrong direction before colliding head-on with 54-year-old Johnny Robinson. Robinson, a single father of four, was traveling home from work to his home in Navarre, Florida. Robinson and Koroly's vehicles spun out of control before coming to a stop in the center lane of the highway. Within seconds, 25-year-old Clarence Jordan struck the right side of Robinson's vehicle.

The force of the impact trapped Koroly inside his SUV. When officers arrived, Robinson was unconscious. Jordan was found lying on the ground next to his driver's side door. He had attempted to exit his car and help Robinson and Koroly, but he fell due to his right hip being dislocated in the crash.

An eyewitness told officers that Koroly's vehicle came out of nowhere and had been traveling in the wrong direction. The witness, who had pulled over to help the victims, observed that Koroly was "out of it." In the ambulance, two emergency responders overheard Koroly admit to drinking fourteen beers. The officers noticed Koroly's eyes were bloodshot and his speech was slurred.

Koroly initially denied being the driver of the SUV. After the officers asked him if he was a member of the military, Koroly changed his story and admitted that he had been driving and could not remember what happened. He cooperated with law enforcement in their investigation by consenting to a blood draw at the hospital. The tests revealed Koroly's blood alcohol content was .166.

Johnny Robinson was pronounced dead at Baptist Hospital from the injuries he sustained in the crash. Clarence Jordan suffered from a broken hand, four broken fingers, a gash on his right leg, and a dislocated hip. He required eight days of hospitalization and underwent hip surgery, followed by extensive physical therapy. Koroly was charged with DUI manslaughter for the death of Robinson. He was charged with DUI with serious bodily injury for causing Jordan's injuries.

b. Retaining counsel

Koroly's parents retained defense attorney Clinton Couch to defend Koroly. The Korolys were intimately involved with the case. Residents of Philadelphia, Mr. and Mrs. Koroly flew to Florida at least four times during a nine-month period to meet with Couch about Koroly's defense. They often prepared written questions for Couch. They wanted to understand the gravity of the charges and what sentence Koroly could be facing.

Early in Couch's representation of Koroly, the Korolys discussed with Couch the possibility of retaining an accident reconstruction expert. According to Mr. Koroly, the Korolys had family friends who were defense attorneys in Philadelphia; those friends stressed to the Korolys that obtaining an accident reconstruction report should be their top priority. Such a report could help explain the cause of the crash. The Korolys conveyed this information to Couch. They asked him to research whether there had been a history of traffic problems near and around the crash site. They also sought information on the road signage, hoping to uncover an alternative cause of the crash unrelated to Koroly's intoxication. During every conversation, whether in person or via telephone, the Korolys asked Couch about the reconstruction expert and whether one could be retained. Money was not an issue. Couch's response was always that he would look into the road signage issues, but the accident reconstruction expert would have to wait until there was a plea offer or trial.

At some point, Couch did contact an accident reconstruction expert, Christopher Bloomberg. According to Couch, he sent Bloomberg a copy of the traffic homicide report and photographs of the scene of the crash. He asked Bloomberg to conduct a "preliminary evaluation" to see if there was anything in the documents that raised "any red flags." Bloomberg, according to Couch, reviewed the documents and determined there was nothing that would justify a more comprehensive accident reconstruction.

Following this communication, Couch did not retain Bloomberg, or any other expert to perform a more comprehensive accident reconstruction. He never told the Korolys that he consulted with Bloomberg; instead, he told them that an accident reconstruction report would not help Koroly's case and suggested Koroly enter a plea.

c. Plea and sentencing

On advice from Couch, Koroly entered a straight-up plea. At sentencing, Koroly and his family offered emotional apologies to the Robinson family and to Clarence Jordan. Koroly accepted full responsibility for "his negligent behavior" and anticipated a period of imprisonment. Koroly admitted that he was solely responsible and that he would never forgive himself for his poor judgment on the morning of the crash. He revealed that he had successfully completed a twelve-step program with a promise to never consume alcohol again. Koroly vowed to turn the Robinson family's tragedy into a life-long mission by joining the movement against drinking and driving. He wanted to help other members of the military who may be unknowingly suffering from alcoholism. After completion of his sentence, Koroly planned to start a military program to reinforce the dangers of drunk driving.

On March 24, 2011, the court sentenced Koroly to the minimum sentence allowable under the Criminal Punishment Code. For DUI manslaughter, a second-degree felony punishable by up to 15 years' imprisonment, Koroly was sentenced to 13.25 years' imprisonment followed by 1.75 years' probation. For DUI with serious bodily injury, a third-degree felony punishable by up to 5 years' imprisonment, Koroly was sentenced to 5 years' probation.

d. Postconviction motion

After serving two years of his sentence, Koroly retained mechanical engineer Donald Fournier to conduct a comprehensive accident reconstruction analysis of the crash. Fournier examined the traffic homicide report and the crash scene photos. He also visited the scene of the accident and attempted to identify Koroly's travel pattern. Fournier uncovered four plausible routes Koroly could have driven from downtown Pensacola to a southbound Interstate 110 exit ramp. He concluded that the roads were deficiently signed, marked, and painted, and that the weather conditions on the morning of the crash were foggy and dark. It was his opinion that as configured, the roadway geometry and signage would actively mislead a driver unfamiliar with the area to enter the southbound exit and that any driver could have found themselves going the wrong way on southbound Interstate 110.

Based on Fournier's findings, Koroly filed a postconviction motion alleging Couch was ineffective for failing to retain an accident reconstruction expert. Had Couch retained an expert, Koroly argued, the deficiencies in the road signage would have been discovered and Koroly would have elected to go to trial.

At the evidentiary hearing on the motion, Couch, Fournier, and Bloomberg testified. Board certified criminal defense attorney Michael Kessler and Koroly's father, Robert Koroly, Sr., also testified. Fournier estimated the distance Koroly drove the wrong way on Interstate 110 was between 1,700 feet (the length of at least five football fields) and two miles. Fournier admitted that he had not taken into account Koroly's blood alcohol level of .166.

Bloomberg, the expert who had been contacted by Couch, recalled speaking to Couch on the phone but could not remember the specific content of their conversation. Bloomberg testified that Couch hired him to "essentially evaluate some materials that were sent in." He performed a preliminary review in order to determine what else would be needed to complete a more comprehensive evaluation and analysis. Following their initial contact, Couch never directed Bloomberg to do anything additional with Koroly's file, and Bloomberg never heard from Couch again. In preparation for his testimony at the postconviction hearing, Bloomberg reviewed Fournier's report. Bloomberg testified that he would have been able to produce a similar reconstruction analysis. But on cross-examination, Bloomberg acknowledged that Koroly's blood alcohol level would have been an issue.

Couch's testimony at the hearing contradicted Bloomberg's testimony in some respects. Couch stated that he retained Bloomberg to conduct a preliminary investigation to see if there were any anomalies in the traffic homicide report and photographs that would justify a more comprehensive accident reconstruction. He recalled that after Bloomberg's review of the documents, Bloomberg gave him the impression that there was nothing in the records that would warrant a more comprehensive reconstruction. Relying on Bloomberg's opinion, Couch went to the Korolys and told them that an accident investigation would not improve Koroly's circumstances. Couch added that if he had ignored Bloomberg's preliminary opinion and retained an expert for a more comprehensive accident reconstruction, he would not have been acting as a good steward of Koroly's funds and could have risked creating a compelling expert witness for the State.

The trial court denied Koroly's motion for postconviction relief, finding Couch's performance was not deficient. The court determined that Couch had retained Bloomberg for the purpose of conducting a preliminary investigation and then made a strategic decision not to go forward with a more comprehensive accident reconstruction after Bloomberg's initial review. In so finding, the court also noted that "[n]o expert witness could alter the fact" that Koroly's operation of a motor vehicle while under the influence caused or contributed to the accident. This appeal followed.

II. Analysis

A claim of ineffective assistance of counsel is governed by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance, an appellant must allege: 1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms, see id. at 690, 104 S.Ct. 2052 ; and 2) that the appellant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different, see id. at 692, 104 S.Ct. 2052. The appellant must make a sufficient showing of both deficient performance and prejudice in order to obtain postconviction relief. See id. at 697, 104 S.Ct. 2052 ; Valle v. Moore , 837 So.2d 905, 910-11 (Fla. 2002). To prove the first prong, the appellant must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland , 466 U.S. at 690, 104 S.Ct. 2052 ; Johnston v. State , 70 So.3d 472, 477 (Fla. 2011). "A reviewing court must then, in light of all the circumstances, determine whether the identified acts or omissions were outside the wide range of professionally competent assistance." Johnston , 70 So.3d at 477 (internal quotations omitted). The prejudice prong requires that the appellant demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Thus, the appellant must demonstrate a likelihood of a different result which is substantial and not just conceivable. Harrington v. Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

a. Deficient Performance

In evaluating whether an attorney's conduct is deficient, counsel's errors must be "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ; see also Bradley v. State , 33 So.3d 664, 671 (Fla. 2010). The defendant "bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Brown v. State , 755 So.2d 616, 628 (Fla. 2000) (citing Strickland , 466 U.S. at 688-89, 104 S.Ct. 2052 ); Long v. State , 118 So.3d 798, 803 (Fla. 2013) ; Occhicone v. State , 768 So.2d 1037, 1048 (Fla. 2000). Courts perform a "context-dependent consideration" and analysis of counsel's conduct to determine whether counsel's decisions were "reasonable" under the circumstances at the time of the alleged deficient performance. Wiggins v. Smith , 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland , 466 U.S. at 688-89, 104 S.Ct. 2052 ); Williams v. Taylor , 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (noting the Strickland test "of necessity requires a case-by-case examination of the evidence").

Koroly asserts that Couch's decision not to retain an expert to conduct a more comprehensive accident reconstruction was unreasonable under prevailing professional norms, focusing on two reasons Couch provided for his decision. Koroly asserts that Couch's desire to be a good steward of Koroly's funds and to avoid creating an expert witness for the State could not be considered reasonable strategy. However, Koroly fails to address Couch's primary, most significant reason for deciding against obtaining an expert report: His reliance on Bloomberg's preliminary, expert opinion that the circumstances of Koroly's crash did not warrant a more comprehensive accident reconstruction analysis. Couch had no reason to disbelieve or challenge Bloomberg's expert opinion. While Couch and Bloomberg recounted different versions of their telephone conversation, the trial court found Couch's testimony more credible. Wait v. State , 212 So.3d 1082, 1085 (Fla. 1st DCA 2017) ("This Court will not substitute its judgment for that of the trial court on questions of fact, the credibility of the witnesses, and the weight given to the evidence."). After examining the damaging evidence against Koroly, including Koroly's admission and blood alcohol level as well as the circumstances surrounding a plea compared to a loss at trial, Couch decided against requesting that Bloomberg provide a more comprehensive accident reconstruction report. While he could have requested such a report, we find Couch's decision not to was reasonable given the circumstances. See Wiggins , 539 U.S. at 523, 123 S.Ct. 2527 ; Strickland , 466 U.S. at 690-91, 104 S.Ct. 2052 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; ... counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."). Accordingly, the trial court correctly determined that Koroly did not meet his burden of proving Couch's performance was deficient. See Nelson v. State , 43 So.3d 20, 28 (Fla. 2010) ("[T]he defendant carries the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.").

b. Prejudice

In addition to failing to establish deficient performance, Koroly also failed to demonstrate prejudice. In Hill v. Lockhart , 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court applied the Strickland test to claims of ineffective assistance of counsel in the context of a defendant pleading guilty to a crime. The Court modified the Strickland prejudice requirement, stating that in plea cases the issue is "whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. 366 ; see also Brazeail v. State , 821 So.2d 364, 368 (Fla. 1st DCA 2002).

Importantly, "[t]he prejudice component of a Hill claim involves a legal standard and is not a purely factual determination." Capalbo v. State , 73 So.3d 838, 841 (Fla. 4th DCA 2011). "Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies." Jae Lee v. United States , --- U.S. ----, 137 S.Ct. 1958, 1967, 198 L.Ed.2d 476 (2017). Rather, in determining whether a defendant was prejudiced, we must objectively consider the totality of the circumstances at the time of the plea:

[I]n determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial , the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial.

Grosvenor v. State , 874 So.2d 1176, 1181-82 (Fla. 2004) (emphasis added).

Here, Koroly testified that if Couch had provided him with the information from an accident reconstruction expert like Fournier, there was "no question" he would have elected to go to trial. Couch seemingly agreed:

Whether or not it would have changed my client's opinion, I think it probably would have, to tell you the truth, because of his complete lack of any kind of history of this type of thing, his complete standing as an officer in the Navy and making sound decisions in combat. I know that this was bewildering to him: How in the world could I have possibly found myself in this position?
So it may have changed his mind. He may have decided this is why I was there is because of inadequate signage, and I made a mistake that anybody could have made. So he may have said, I understand what you are saying, Clint, but I want to take this to trial. I can't say today that he would have wanted - you know, entered a plea or taken the case to trial.

However, under Lee , we cannot upset Koroly's plea based solely on his post hoc assertions that he would have elected to go to trial had he obtained an expert report. Lee , 137 S.Ct. at 1967. Instead, we must apply the Grosvenor factors and consider the totality of the circumstances surrounding his plea. In doing so, we find that the contemporaneous evidence from the time of Koroly's plea does not substantiate his post hoc preference for trial. First, Koroly received a dramatically lower prison sentence than what he would have been subjected to had he elected to go to trial. Charged with second- and third-degree felonies, Koroly was facing up to twenty years' imprisonment with a four-year mandatory minimum. But as a result of the plea, Koroly received the lowest permissible sentence under the Criminal Punishment Code-13.25 years' imprisonment. Second, Koroly signed an agreement acknowledging the consequences of entering a plea, and the sentencing court conducted a sufficient plea colloquy to ensure Koroly understood those rights he was forfeiting, including the right to trial and the right to present any and all defenses.

As to the final factor, any defense Koroly could have raised by virtue of obtaining a more comprehensive accident reconstruction had little to no likelihood of succeeding at trial. Despite the clear language in Grosvenor , Koroly asserts that the success of any potential defense is not a relevant consideration in determining whether Couch's deficient performance prejudiced him. However, the United States Supreme Court recently clarified that where a defendant's decision about going to trial turns on his prospects of success, and the attorney's alleged error affected those prospects of success, "the defendant must also show that he would have been better off going to trial." Lee, 137 S.Ct. at 1966. The Court explained that the prejudice inquiry "demands a case-by-case examination of the totality of the evidence" and focuses on a defendant's decision-making:

A defendant without any viable defense will be highly likely to lose at trial. And a defendant facing such long odds will rarely be able to show prejudice from accepting a guilty plea that offers him a better resolution than would be likely after trial. But that is not because the prejudice inquiry in this context looks to the probability of a conviction for its own sake. It is instead because defendants obviously weigh their prospects at trial in deciding whether to accept a plea. Where a defendant has no plausible chance of an acquittal at trial, it is highly likely that he will accept a plea if the Government offers one.

Id. (internal citations omitted).

Had Koroly obtained a more comprehensive accident reconstruction, he argues he would have advanced a defense at trial that it was not his intoxicated driving that caused the crash, but rather the defective road signs and poor weather conditions that caused him to drive the wrong way onto the interstate. But evidence of poor road conditions and inadequate signage would have had very little probative value in light of the overwhelming evidence of Koroly's intoxication and the extremely low threshold for proving causation under the DUI manslaughter statute. See § 316.193, Fla. Stat. (2011). Under the plain language of the statute, the State was not required to prove that Koroly's intoxicated driving was the sole cause of the fatal crash. As we recently explained in Pryear v. State , 243 So.3d 479 (Fla. 1st DCA Feb. 28, 2018) :

DUI manslaughter requires proof that a defendant operated a vehicle while impaired within the meaning of section 316.193(1), Florida Statutes (2013), and, "by reason of such operation, cause[d] or contribute[d] to causing ... [t]he death of any human being ...." § 316.193(3)(c) 3.a., Fla. Stat. (2013) (emphasis added). "[T]he fact that someone is intoxicated and drives a particular vehicle which causes another person's death should be enough to satisfy the elements of DUI manslaughter." State v. Hubbard , 751 So.2d 552, 563 (Fla. 1999). "The causation element of the amended statute was interpreted by [the Florida Supreme Court] in [ Magaw v. State , 537 So.2d 564, 567 (Fla. 1989),] as not requiring that the conduct of the operator of the vehicle be the sole cause." Hubbard , 751 So.2d at 564 (emphasis in original). "The statute requires only that the operation of the vehicle should have caused the accident. Therefore, any deviation or lack of care on the part of a driver under the influence to which the fatal accident can be attributed will suffice." Magaw , 537 So.2d at 567.

Id. at 486.

That Koroly's intoxicated driving contributed to the death of Robinson and Jordan's injuries was indisputable. Koroly's blood alcohol level was over twice the legal limit. Two emergency responders overheard Koroly say that he had consumed fourteen beers. The officers responding to the scene noticed Koroly's eyes were bloodshot and his speech was slurred. Although Koroly's point of entry is unknown, the expert testimony examined several possible routes, the closest of which placed the scene of the crash at least 1,700 feet away from the nearest entry point. Even if inadequate signage and poor road conditions led Koroly the wrong way, had Koroly not been intoxicated he likely would have noticed the interstate median on his right and the headlights of any oncoming vehicles and corrected his actions before traveling the length of over five football fields and colliding head-on with Johnny Robinson. See Hubbard , 751 So.2d at 563 (citing Ingram v. Pettit , 340 So.2d 922, 924-25 (Fla. 1976) ("Intuitively, someone who is intoxicated will not be able to control his or her automobile in a safe manner and make quick decisions and execute maneuvers that will avoid accidents.") ). No expert testimony could have refuted the fact that Koroly's driving under the influence contributed to the cause of Robinson's death and Jordan's injuries. Koroly's purported defense had virtually no possibility of succeeding at trial. See Hill , 474 U.S. at 59, 106 S.Ct. 366 ("[W]here the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial."); Grosvenor , 874 So.2d at 1181 ("The merits of any defense ... is relevant to the credibility of the defendant's assertion that he would have insisted on going to trial. If the defense was meritless, the defendant's claim carries much less weight.").

Viewing the totality of the circumstances as required by Grosvenor , and applying the Court's clarification of the standard in Lee , we find that Koroly has not established that but for Couch's failure to obtain a more comprehensive accident reconstruction report, he would have elected to go to trial. Koroly acknowledged the consequences of his plea and received a far better sentence than would be likely after trial. Considering the minimum threshold for proving causation for the offenses of DUI manslaughter and DUI with serious bodily injury, Koroly did not meet his burden of proving that his defense of defective road signage would have succeeded at trial in light of the overwhelming evidence of his intoxication. Because Koroly failed to establish either deficient performance or prejudice, we affirm the trial court's denial of postconviction relief.

M.K. Thomas concurs; B.L. Thomas, C.J., concurs in result only.

      In Pryear , we noted that the current version of the DUI manslaughter statute contains an even lower threshold for establishing causation than the version of the statute interpreted in Magaw and Hubbard . Id. The previous version of the statute required that operating a vehicle while intoxicated "cause" a death, whereas the current version requires operating a vehicle while intoxicated "cause or contribute to " the victim's death. See § 316.193(3)(c) 3., Fla. Stat. (2013) (emphasis added).