author: SUAREZ, J.

text:
    WESTCHESTER FIRE INSURANCE COMPANY, LLC, Appellant, v. KESOKI PAINTING LLC, Appellee.
    No. 3D16-2523
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018
    Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.
    Taylor Espino Vega & Touron, P.A., and Daniel R. Vega and Vanessa A. Van Cleaf, for appellee.
    Before SUAREZ, FERNANDEZ, and LUCK, JJ.
   SUAREZ, J.

Appellant Westchester Fire Insurance Company, LLC (Lee Construction Group, Inc.'s surety) appeals from a final judgment, following a jury trial, entered in favor of Kesoki Painting, LLC. Because we find that Westchester was not entitled to a directed verdict, we affirm.

BACKGROUND

This case involves a dispute as to the scope of work required under a Subcontract Agreement (the "Agreement"). In March 2014, Lee Construction Group, Inc., the Contractor, entered into the Agreement with Kesoki, the Subcontractor, to perform painting and waterproofing work for the Miami-Dade County Overtown Transit Village. The dispute arises from the work required to waterproof windows. Specifically, the work involved cutting window gaskets and applying a sealant to prevent leaks between the window glass and the frame.

The controlling specifications did not include instructions to cut the gaskets at an angle. However, the County determined that instead of trimming the gaskets level with the frame before applying the sealant, it wanted the gaskets cut at a 45 degree angle. Luis Enriquez, Lee's president, requested a written directive from the project manager after explaining that cutting the gaskets at a 45 degree angle deviated from the specifications and would be more time consuming and costly. Based on written instructions from the County, Enriquez directed Kesoki to cut the gaskets at 45 degrees. Enriquez acknowledged that complying with the County's instructions to cut the gaskets at an angle as opposed to flush was "a bit more work" but suggested that Kesoki wait to submit a change order because the additional cost could perhaps be offset by using a less expensive sealant.

Ultimately, the less expensive sealant was not used, and the anticipated savings never materialized. Consequently, Kesoki submitted a change order to Enriquez in the amount of $104,599.40 for the extra work associated with cutting the gaskets at a 45 degree angle. Enriquez asked Kesoki to reduce the amount, which Kesoki did, submitting a reduced change order in the amount of $95,169.40. Enriquez signed the revised change order, added an additional fifteen percent contractor markup, and submitted it to the County. The County rejected the gasket-cutting change order "for the reason that it is within the scope of the construction documents[.]"

Following the County's rejection of its change order, Kesoki filed suit against Westchester, Lee's surety, alleging that Kesoki was entitled to recover for the extra gasket-cutting work. After the lawsuit was filed, Charles Nyarko, the project architect, rejected the change order in writing, finding that the gasket-cutting work was a requirement under the Agreement's specifications. The case proceeded to a jury trial, and the jury returned a $91,904.00 verdict in favor of Kesoki. Westchester sought judgment in accordance with a previously filed motion for directed verdict, arguing that (1) Nyarko, the project architect, had the final say as to scope of work disputes, and (2) Kesoki could only modify the Agreement with respect to the gasket-cutting work with a signed writing from both Lee and Kesoki. The trial court denied Westchester's motion and entered final judgment in favor of Kesoki. Westchester timely appealed.

ANALYSIS

We review the denial of Westchester's motion for directed verdict de novo; however, we view all record evidence and every inference based on that evidence in a light most favorable to Kesoki, the non-moving party. See Maggolc, Inc. v. Roberson, 116 So.3d 556, 558 (Fla. 3d DCA 2013). We also review the trial court's interpretation of the Agreement de novo. Sunhouse Const., Inc. v. Amwest Sur. Ins. Co., 841 So.2d 496, 498 (Fla. 3d DCA 2003).

Westchester first argues that it was entitled to a directed verdict because the Agreement gives the project architect the final say over disputes that arise between Lee and Kesoki regarding the scope of work, and the project architect determined that the 45 degree cut was required by the specifications. The relevant dispute-resolution provision provides as follows:

2.5 If a dispute arises between the Contractor and the Subcontractor regarding the Scope of Work, or in the interpretation of the Contract Documents, and the parties hereto do not promptly resolve that dispute, the decision of the [Architect] shall be final.

We agree that this provision would require the parties to be bound by the project architect's determination as to the required scope of work in the event of a dispute between Lee, the Contractor, and Kesoki, the Subcontractor. See James A. Cummings, Inc. v. Young, 589 So.2d 950, 954 (Fla. 3d DCA 1991) ("When parties to a contract agree by its express terms to be bound to the determination made by an architect, that agreement is binding upon the parties."). But we reject Westchester's argument because unlike in Cummings, where "[s]everal disputes arose" between the general contractor and subcontractor, the evidence in this case, viewed in a light most favorable to Kesoki, establishes that there was no dispute between Lee and Kesoki regarding the scope of the gasket-cutting work.

Before the work started, Lee's president, Enriquez, repeatedly acknowledged that cutting the gaskets at a 45 degree angle would be more work. Enriquez explained to the project manager that the work was outside of the specifications and would be more time consuming and costly. Further, he suggested that Kesoki hold off on submitting a change order in case the cost of the extra work could be offset by other savings. After the work had been completed, Enriquez accepted and signed Kesoki's revised change order. At trial, Enriquez testified that when he submitted the change order, both he and Kesoki believed that the gasket-cutting work was extra work. Based on our review of the record, we conclude that there was simply no dispute between Lee and Kesoki, so there was nothing for the architect to resolve.

Westchester also argues that it was entitled to a directed verdict because Kesoki failed to establish that it modified the Agreement. Westchester relies on the following provision:

15.2 This Agreement represents the entire agreement and understanding between Contractor and Sub Contractor and supersedes all prior negotiations, representations or agreements, either oral or written. This Agreement may be amended only by an instrument in writing signed by Contractor and Sub Contractor.

We reject this argument because the Agreement also contains a provision that allows Lee to make additions to the Work without invalidating the Agreement:

10.7 CHANGES IN THE WORK The Contractor may direct the Subcontractor, in writing, without invalidating this Agreement, to make revisions, modifications and additions to the Work. The Contract Sum and the Contract Time would be adjusted accordingly. The Subcontractor, prior to the commencement of such added, changed or revised Work, shall submit promptly to the Contractor written copies of any claim for adjustment to the Contract Sum and Contract Time for such revised Work in a manner consistent with this Agreement and the Contract Documents.

Here, Lee did what the Agreement provided for by directing Kesoki, in writing, to undertake the additional work of cutting the gaskets at a 45 degree angle. No modification of the Agreement was necessary because the Agreement itself already allowed Lee to make such changes to the work.

Because we find that there was no dispute between Lee and Kesoki for the architect to resolve regarding the scope of work and the Agreement allowed Lee to make additions to the work, we conclude that Westchester was not entitled to a directed verdict, and we affirm the decision below.

Affirmed.

      A gasket is a rubber seal inside the perimeter of the window frame that holds the glass in place.

      Enriquez was also concerned that cutting the gaskets at a 45 degree angle would impede the windows' structural integrity: "Cutting [the gaskets] level I have no problem doing so because it is listed in the scope of work and if the glazing starts getting loose on those windows in the future than [sic] at least I am covered because it was on the scope to do so. The way it's being requested to do so now leaves me exposed .... The pressures at 22 stories are much higher and at the end of the day this will fall on me if I proceed without having this in writing if some type of failing happens on these windows down the road."

      During cross-examination, however, Nyarko was asked why the specifications did not state that the gaskets were to be cut at 45 degrees. He answered, "I didn't intend it to be cut at 45 degrees. That's why it wasn't written."

      Moreover, the next section, 10.8, provides a means through which Kesoki could submit a claim for additional cost.

      Although the Agreement's "pay after paid" clause was briefly mentioned during oral argument, neither party raised any arguments with respect to this clause in their briefs. We therefore decline to address any issues concerning the clause here.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.J., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2492
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Williams v. State, 689 So.2d 393, 396 (Fla. 3d DCA 1997) ("A defendant's confession or statement may be considered in connection with the other evidence, but the corpus delicti cannot rest upon the confession or admission alone. Therefore, the state must introduce substantial independent evidence of corpus delicti that tends to show that the charged crimes were committed.") (citations and quotations omitted); Burks v. State, 613 So.2d 441, 443 (Fla. 1993) ("[T]he state has the burden of proving by substantial evidence that a crime was committed, and ... such proof may be in the form of circumstantial evidence.") (quoting State v. Allen, 335 So.2d 823, 824 (Fla. 1976) ); Thomas v. State, 531 So.2d 708, 711 (Fla. 1988) ("Corpus delicti need not be proven beyond a reasonable doubt, but merely by evidence tending to show a crime has been committed.").


text:
    John S. HASKELL, Appellant, v. Unni HASKELL; PCP Group, LLC; Florida Investment Trust Enterprises, LLC; Material Connection Florida, Inc.; and Haskell Textiles Corp., LLC, Appellees.
    Case No. 2D18-470
    District Court of Appeal of Florida, Second District.
    Opinion filed December 21, 2018.
    William P. Cassidy, Jr., and Nicole Deese Newlon of Johnson & Cassidy, P.A., Tampa, for Appellant.
    Eric R. Maier and Richard C. Alvarez of Older Lundy & Alvarez, Tampa, for Appellee Unni Haskell.
    No appearance for remaining Appellees.
   PER CURIAM.

The amended final judgment of dissolution of marriage is affirmed with the exception of the court's determination of entitlement to attorney's fees. We dismiss the appeal as it pertains to this issue because we do not have jurisdiction to review a ruling on attorney's fees that determines entitlement but reserves jurisdiction on amount. See Card v. Card, 122 So.3d 436, 436 (Fla. 2d DCA 2013).

CASANUEVA, SILBERMAN, and SLEET, JJ., Concur.


text:
    WESTCHESTER FIRE INSURANCE COMPANY, LLC, Appellant, v. KESOKI PAINTING LLC, Appellee.
    No. 3D17-2391
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018
    Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.
    Taylor Espino Vega & Touron, P.A., and Daniel R. Vega and Vanessa A. Van Cleaf, for appellee.
    Before SUAREZ, LOGUE, and LINDSEY, JJ.
   SUAREZ, J.

In this companion case to 3D16-2523, Westchester Fire Insurance Company, LLC, appeals from a final judgment awarding attorney's fees in favor of Kesoki Painting, LLC. "The standard of review for an award of prevailing party attorney fees is abuse of discretion." Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Florida, 97 So.3d 204, 213 (Fla. 2012). However, Westchester failed to include a hearing transcript. "Without a transcript of the hearing, our review is limited to errors appearing on the face of that judgment." Pazouhandeh v. Salgar Const. Co., 112 So.3d 151, 152 (Fla. 5th DCA 2013). We find no such errors here on the face of the trial court's detailed and well-written order. Accordingly, we affirm.

Affirmed.


text:
    Julio Francisco SANTIEXPOSITO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-868
    District Court of Appeal of Florida, Third District.
    Opinion filed December 26, 2018.
    Carlos J. Martinez, Public Defender, and James A. Odell, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before LAGOA, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See J.A. v. State, 247 So.3d 710 (Fla. 3d DCA 2018).


text:
    Doribel ESCORCIA, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 3D17-2299
    District Court of Appeal of Florida, Third District.
    Opinion filed December 26, 2018.
    Scanziani Law and Paul John Scanziani, for appellant.
    Albertelli Law and Shannon T. Sinai and Brandon S. Vesely (Tampa), for appellee.
    Before SALTER, EMAS and LINDSEY, JJ.
   PER CURIAM.

Affirmed. Bartram v. U.S. Bank Nat'l Ass'n, 211 So.3d 1009 (Fla. 2016) ;

U.S. Bank, N.A. v. Amaya, 254 So.3d 579 (Fla. 3d DCA 2018) ; HSBC Bank USA, Nat'l Ass'n for Luminent Mortg. Tr. 2007-2 v. Sanchez, 245 So.3d 784 (Fla. 4th DCA 2018).


text:
    M.S., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-113
    District Court of Appeal of Florida, Third District.
    Opinion filed December 26, 2018
    Carlos J. Martinez, Public Defender, and James A. Odell, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Negron v. State, 306 So.2d 104, 108 (Fla. 1975), receded from on other grounds, F.B. v. State, 852 So.2d 226 (Fla. 2003) (holding: "Proof of the element of value is essential to a conviction for grand larceny and must be established by the State beyond and to the exclusion of every reasonable doubt. In determining the value of property, proof thereof may be shown by such elements or facts affecting the question as may exist. Recourse may be had to the items of cost, as well as the utility and use of the property. The original market cost of the property, the manner in which it has been used, its general condition and quality, the percentage of depreciation since its purchase or construction are elements of proof to be submitted to the jury to aid it in ascertaining value in such cases"); Bloodsaw v. State, 994 So.2d 378 (Fla. 3d DCA 2008) ; Gilbert v. State, 817 So.2d 980 (Fla. 4th DCA 2002). See also § 812.012(10)(a)1., Fla. Stat. (2017) (providing that "value" as used in sections 812.012-812.037 means, inter alia, "the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense"); § 92.605(5), Fla. Stat. (2017) (providing: "In a criminal proceeding in a court of this state, an out-of-state record of regularly conducted business activity, or a copy of such record, shall not be excluded as hearsay evidence by s. 90.802, if an out-of-state certification attests that: (a) Such record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (b) Such record was kept in the course of a regularly conducted business activity; (c) The business activity made such a record as a regular practice; (d) If such record is not the original, it is a duplicate of the original, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness"); § 90.902(11), Fla. Stat. (2017) (providing that "[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required for admissibility" of an "original or duplicate of evidence that would be admissible under s. 90.803(6), which is maintained in a foreign country or domestic location and is accompanied by a certification or declaration from the custodian of the records or another qualified person" setting forth the requisite factors for admission as provided in section 90.803(6) ).


author: Per Curiam. Winokur, J., concurring in part and dissenting in part.

text:
    William V. DUPRIEST, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5702
    District Court of Appeal of Florida, First District.
    December 27, 2018
    William V. DuPriest, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

On appeal, the appellant only challenges the postconviction court's order that summarily denied ground B, C, and D of his motion for postconviction relief. Because the postconviction court failed to attach any portions of the record that conclusively refute the appellant's allegations and we must accept the appellant's factual assertions as true, we reverse. See Jennings v. State , 123 So.3d 1101, 1121 (Fla. 2013)

("When reviewing the summary denial of a claim raised in a rule 3.850 motion, the court must accept the movant's factual allegations as true to the extent that they are not refuted by the record."). On remand, we require the postconviction court to hold an evidentiary hearing on grounds B and C because of the circumstances surrounding this case. First, this case languished in the lower court for nearly twelve years. Second, the lower court granted the appellant an evidentiary hearing on grounds B and C, and even denied the State's request to revisit its decision. Third, a number of scheduled evidentiary hearings had been continued or cancelled. Fourth, when the instant case came before the postconviction court for an evidentiary hearing, at the start of the hearing, the postconviction court announced that it did not need to hold the hearing as there was enough to deny the appellant's motion, signed an order that it had prepared prior to the hearing, and terminated the hearing. For those reasons, we are requiring the postconviction court to hold the evidentiary hearing on grounds B and C. We also urge the postconviction court to hold an evidentiary hearing on ground D. The appellant alleged that trial counsel was ineffective for failing to fully investigate or hire an expert in pharmacology or biochemistry in order to understand how his prescription medication interacted with his medical conditions and abuse of illicit substances. Without a thorough statement of the steps trial counsel had taken to understand the interactions, it will be difficult for the postconviction court to conclusively refute the appellant's claims.

REVERSED and REMANDED for further proceedings consistent with this opinion.

Roberts and Bilbrey, JJ., concur; Winokur, J., concurs in part dissents in part with opinion.

Winokur, J., concurring in part and dissenting in part.

I agree with the majority that the order must be reversed. I would reverse the court's order because it failed to attach records that conclusively refute one of DuPriest's postconviction grounds. I would only order an evidentiary hearing regarding the part of DuPriest's ground B that asserted that he would not have pleaded guilty if counsel had advised him of the "heat of passion" defense. I would hold that the remainder of DuPriest's ground B, as well as ground D, could have been conclusively refuted by the record.

I specifically disagree that the "circumstances surrounding this case" entitle DuPriest to an evidentiary hearing. We do not know why it took so long for the lower tribunal to issue an order in this case. This fact alone, while regrettable, does not compel the court to hold an evidentiary hearing. The same is true for the fact that the court may have earlier granted, and later cancelled, an evidentiary hearing. Finally, I do not find it improper that the trial judge announced at the outset of the hearing that a hearing would be unnecessary and signed an already-written order. Even if it were, I do not believe that we should sanction the trial court by ordering an evidentiary hearing. Except as noted above, the court did not err in ruling that an evidentiary hearing is unnecessary. We should not remedy alleged wrongs committed by the trial court by ordering an evidentiary hearing on claims that are legally insufficient or refuted by the record.

      We note the dissent's position that ground B was insufficiently pled. Even if ground B was legally insufficient, the record before this Court shows that the appellant would be entitled to amend this claim unless the claim is not amendable or is conclusively refuted by the record. Spera v. State , 971 So.2d 754, 761 (Fla. 2007) ; Taylor v. State , 120 So.3d 540, 551 (Fla. 2013).

      In ground C, DuPriest argued that counsel was ineffective for failing to advise him that he could not have been legally convicted on two burglary counts. Because DuPriest could have been legally convicted on both counts, he failed to state a sufficient claim, and this ground could have been denied without attaching records conclusively refuting it. See Franqui v. State , 59 So.3d 82, 95-96 (Fla. 2011) ("Generally, a defendant is entitled to an evidentiary hearing on a rule 3.850 motion unless (1) the motion, files, and records in the case conclusively show that the movant is entitled to no relief, or (2) the motion or particular claim is legally insufficient.") (Emphasis supplied). The addition of arguable and unnecessary dicta in the trial court's order does not render an insufficient claim sufficient. DuPriest's ground D alleged that counsel was ineffective for failing to adequately investigate his defense under section 775.051, Florida Statutes, so that an expert could testify that he was involuntarily intoxicated due to his consumption of Klonopin. Under section 775.071, DuPriest would have to establish that "he was taking the medication as prescribed and pursuant to a lawful prescription." Stimus v. State , 995 So.2d 1149, 1151 (Fla. 5th DCA 2008) ; see also Montero v. State , 996 So.2d 888, 891 (Fla. 4th DCA 2008) ("This exception applies where the defendant unexpectedly becomes intoxicated by prescribed medication that is taken in a lawful manner."); Cobb v. State , 884 So.2d 437, 439 (Fla. 1st DCA 2004) (holding that section 775.051 did not provide a valid defense where the appellant did not take her medications as prescribed). In his own motion, DuPriest squarely contradicts any argument that he took Klonopin as prescribed; specifically, he consumed it before getting "extremely intoxicated" from alcohol (which he acknowledges is contrary to the prescription) and before consuming an additional illegal narcotic that he describes as "a notorious mood-altering drug known for inducing black-outs." As such, DuPriest is not entitled to an evidentiary hearing on this ground.


text:
    James HICKMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1415
    District Court of Appeal of Florida, Third District.
    Opinion filed December 26, 2018.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Alonzo v. State, 46 So.3d 1081, 1084 (Fla. 3d DCA 2010) (explaining that a trial court's genuineness analysis, under Melbourne v. State, 679 So.2d 759 (Fla. 1996), may be implicit); Carillo v. State, 962 So.2d 1013, 1016 (Fla. 3d DCA 2007) (holding that "the trial court implicitly underwent a genuineness inquiry and found the State's proffered reason to be non-pre-textual"); Pringle v. State, 792 So.2d 533, 536 (Fla. 3d DCA 2001) (observing that, in the Melbourne context, "no magic words or incantations are required, and that substance must control over form. The trial court's quest is not to create a perfect script, but to assure that peremptory challenges are not used to exclude persons from jury service for improper reasons").


author: SILBERMAN, Judge.

text:
    Daniel INMAN, Appellant, v. Catherine INMAN, Appellee.
    Case No. 2D18-482
    District Court of Appeal of Florida, Second District.
    Opinion filed December 28, 2018
    Jeremy T. Simons and Erin C. Catey of Simons & Catey, P.A., New Port Richey, for Appellant.
    Steven D. Miller, Plantation, for Appellee.
   SILBERMAN, Judge.

Daniel Inman, the Former Husband, seeks review of the order denying his supplemental petition for termination or modification of spousal support as provided in a stipulated divorce decree. The Former Husband sought termination under section 61.08(8), Florida Statutes (2016), based on the remarriage of Catherine Inman, the Former Wife. He alternatively sought modification under section 61.14(1)(a), Florida Statutes (2016), based on the changed circumstances of the parties' financial positions. We conclude that the trial court properly determined that the language of the stipulated divorce decree precludes termination under section 61.08(8). However, it appears that the court imposed a heavier burden than that required by law in denying the request for modification under section 61.14(1)(a). Accordingly, we affirm in part and reverse in part.

The stipulated divorce decree provides for alimony as follows:

4. That as and for spousal support, Defendant shall pay to Plaintiff in the form of Military Allotment, the sum certain Eight Hundred Dollars ($800) per month. Said payments shall commence immediately and continue in effect each month thereafter for the remainder of Plaintiff's life. Said sum is fair and equitable, since the parties previously were married from about July 16, 1988, through July 19, 2007, when they divorced in Nye County, Case Number CV25328. The parties then remarried on about December 1, 2011. Furthermore, this spousal support order shall replace and make null and void the July 19, 2007, spousal support order, which required Defendant to pay Plaintiff $1600 per month.

(Emphasis added.) The Former Husband sought termination of his alimony obligation based on section 61.08(8), which provides in pertinent part, "An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony." The trial court concluded that the language of the stipulated divorce decree precluded termination under section 61.08(8).

If a marital settlement agreement provides for the continuing payment of alimony despite the remarriage of the recipient, then its terms will control over those in section 61.08(8). Herbst v. Herbst, 153 So.3d 290, 292 (Fla. 2d DCA 2014). In Herbst, this court construed a provision in a settlement agreement that provided for alimony payments "beginning the date of the final judgment and continuing for the life of the Petitioner." Id. at 291. This court determined that the provision "unambiguously addresses the circumstances under which alimony may be terminated ... by requiring that payments continue in a specified amount until the Former Wife dies." Id. at 292. We find the facts of this case materially indistinguishable from those in Herbst and affirm the denial of the Former Husband's request for termination under section 61.08(8).

The Former Husband alternatively sought modification under section 61.14(1)(a), based on the changed circumstances of the parties' financial positions. Section 61.14(1)(a) provides for the modification of alimony when the parties enter into support agreements "and the circumstances or the financial ability of either party changes." Under section 61.14(1)(a), the party seeking relief must establish (1) a substantial change in circumstances, (2) that was not contemplated at the time the final judgment was rendered, and (3) that is permanent, material, sufficient, and involuntary. Dogoda v. Dogoda, 233 So.3d 484, 486 (Fla. 2d DCA 2017). The proof required is the same regardless of whether the award was established by court order or settlement agreement. § 61.14(7) ; Dogoda, 233 So.3d at 486.

The trial court determined that the Former Husband established that his current employment situation constituted a substantial change in circumstances that was not contemplated at the time of the divorce decree. However, the court found that the Former Husband did not establish that his employment situation was permanent or involuntary. In considering the Former Wife's alleged increased financial ability due to her remarriage, the court reasoned: "However, because Former Husband's alimony obligation was set by a voluntary agreement of the parties, the Former Husband's burden is exceptionally heavy. This Court heard no evidence that the $800.00 spousal support obligation was established based on Former Wife's need and that Former Wife's remarriage reduced said need." (Emphasis added) (footnote omitted). Thus, the court denied relief.

These findings reflect that the trial court imposed a heavier burden of proof on the Former Husband because the alimony provision was set forth in a stipulated divorce decree. Although the court may have still denied the Former Husband's request for modification had it applied the proper standard of proof, we cannot be certain. For this reason, we reverse and remand for reconsideration of the Former Husband's request for modification under section 61.14(1)(a) using the proper burden of proof.

Affirmed in part, reversed in part, and remanded.

VILLANTI and ROTHSTEIN-YOUAKIM, JJ., Concur.

      While this provision may be waived in a support agreement, the stipulated divorce decree does not contain such a waiver. See Rosenthal v. Rosenthal, 199 So.3d 541, 542-43 (Fla. 1st DCA 2016).

      The Former Wife concedes that the Former Husband does not bear a heavier burden of proof on this issue as expressly stated in section 61.14(7). We recognize that some courts, including ours, have issued decisions employing a heavier burden of proof subsequent to the 1993 enactment of section 61.14(7). See, e.g., Morrison v. Morrison, 60 So.3d 410, 413 (Fla. 2d DCA 2011) ; Simpson v. Simpson, 68 So.3d 958, 962 (Fla. 4th DCA 2011) ; Pollock v. Pollock, 722 So.2d 283, 285 (Fla. 5th DCA 1998). However, as our sister courts have recognized, we are bound by the language of section 61.14(7). See Ellisen v. Ellisen, 150 So.3d 1270, 1271 n.2 (Fla. 5th DCA 2014) ; Garvey v. Garvey, 138 So.3d 1115, 1120 (Fla. 4th DCA 2014).


author: EMAS, J.

text:
    Teddie Charles THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2019
    District Court of Appeal of Florida, Third District.
    Opinion filed January 2, 2019
    Teddie Charles Thomas, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   EMAS, J.

Teddie Charles Thomas appeals from an order summarily denying his motion for postconviction relief. In his motion, Thomas alleges: In 2007, he was sentenced to seven years in prison followed by five years of probation. He was released from prison in 2015 and began serving the probationary portion of his sentence. He was arrested in April 2018 for violating his probation and, as a result, was sentenced on April 17, 2018 to 366 days in state prison, but was awarded only 17 days, an apparent reflection of credit for time spent in the county jail awaiting his violation of probation hearing. Thomas asserts that he did not waive the credit for the seven years previously served in prison, and that the trial court was required to credit that time against the sentence imposed following the violation of probation.

The trial court docket does not reflect that the State filed any response to Thomas' motion. The trial court summarily denied Thomas' motion on July 27, 2018. This appeal followed.

As a general rule, a defendant "sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless such credit is waived." Gonzalez v. State, 194 So.3d 380, 382 (Fla. 3d DCA 2016) (quoting Dortly v. State, 107 So. 3d 1229, 1230 (Fla. 1st DCA 2013) ). See also Sainvilus v. State, 689 So.2d 1261, 1261-62 (Fla. 3d DCA 1997) (holding: "A prisoner who is sentenced to prison for violating probation... is entitled to credit for time actually served in prison, prior to commencement of the probationary term").

On appeal, the State properly and commendably concedes that the trial court erred in summarily denying the motion without any record attachments (such as a transcript of the probation violation hearing or plea colloquy) conclusively refuting Thomas' claim that he did not waive his entitlement to credit for the prison time previously served on his split sentence. See, e.g., Brothers v. State, 959 So.2d 1260 (Fla. 3d DCA 2007).

We therefore reverse and remand for the trial court to consider Thomas' claim on the merits or to enter a new order with record attachments conclusively refuting Thomas' claim that he did not waive his entitlement to credit for prison time previously served. Because Thomas' allegations, if true, would appear to entitle him to immediate release from prison, we direct the trial court to expedite this cause on remand.


author: Per Curiam.

text:
    Julie L. JONES, Secretary of the Florida Department of Corrections, T. J. Lingo, Randy Romine, and Warden Coker, Appellants, v. Derrick ALLEN, Appellee.
    No. 1D18-2739
    District Court of Appeal of Florida, First District.
    December 28, 2018
    Pamela Jo Bondi, Attorney General, and Erik Kverne, Assistant Attorney General, Tallahassee, for Appellants.
    No appearance for Appellee.
   Per Curiam.

DISMISSED . Fla. Highway Patrol v. Jackson , 238 So.3d 430 (Fla. 1st DCA 2018).

Rowe, Bilbrey, and Kelsey, JJ., concur.


text:
    ERHM ORTHOPEDICS, INC., a Florida Corporation, Appellant, v. Todd EDWARDS, an Individual, Appellee.
    Case No. 2D18-924
    District Court of Appeal of Florida, Second District.
    Opinion filed January 4, 2019
    Frederick J. Mills and Ryan T. Quigley of Morrison and Mills, P.A., Tampa, for Appellant.
    John D. Mullen of Phelps Dunbar LLP, Tampa, for Appellee.
   SILBERMAN, Judge.

In this action dealing with an employment agreement, ERHM Orthopedics, Inc. (ERHM), appeals a final order determining that there was no prevailing party and that ERHM is not entitled to attorney's fees. Because ERHM prevailed on the significant issues before the court and received an affirmative judgment in its favor in the form of a permanent injunction, ERHM is the prevailing party. Thus, we reverse the order denying attorney's fees and remand for further proceedings. Although ERHM makes its argument in three separate issues, this case turns on the fact that under any measure ERHM is the prevailing party.

ERHM sells orthopedic products to surgeons in multiple counties in Florida. Todd Edwards entered into an employment agreement with ERHM in 2012. The employment agreement contains a covenant not to compete within those counties and a covenant not to solicit ERHM's customers for two years. The agreement also contains an attorney's fees provision that provides for an award of fees to the prevailing party. Edwards resigned in 2016. He now works for Orthopedic Resources of Florida, Inc., a direct competitor of ERHM that sells orthopedic products to surgeons in the same geographic market. ERHM filed suit against Edwards and obtained a temporary injunction.

The temporary injunction states that it is undisputed that Edwards went to work for a competitor and that Edwards' "post-hearing memorandum characterizes his role with the new company as a 'commissioned sales representative.' " The trial court rejected Edwards' argument that ERHM had no legitimate business interest in preventing solicitation of ERHM's customers. The trial court enjoined Edwards from working for any company that competes with ERHM within the restricted territory for two years, except that the trial court tailored the injunction to allow Edwards to work for his current employer in a limited capacity of "post-sale surgical 'case coverage.' " Significantly, Edwards was prohibited from soliciting new accounts or "new business on his new employer's existing accounts." Edwards was also prohibited from having contact with any of the doctors that ERHM marketed products to during the one-year period prior to Edwards' departure from ERHM. The trial court recognized in the temporary injunction that "case coverage is an important post-sale service" that assists the new employer's "ability to satisfy its existing customers"; however, "the real money of a commissioned sales representative is obviously derived from the solicitation of new accounts."

On direct appeal, this court per curiam affirmed the temporary injunction. See Edwards v. ERHM Orthopedics, Inc., 229 So.3d 1229 (Fla. 2d DCA 2017). The parties thereafter stipulated to the entry of a Consent Final Judgment and Permanent Injunction that the trial court entered which enjoined the same activity as in the temporary injunction. In the stipulation, Edwards waived his right to appeal the final judgment. The trial court then held a hearing on ERHM's motion for attorney's fees. The trial court determined that there was no prevailing party and that ERHM was not entitled to an award of attorney's fees under the employment agreement. ERHM now appeals from that order.

To the extent that our determination involves an interpretation of the parties' contract, our review is de novo. Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So.3d 1034, 1039 (Fla. 2d DCA 2013). But generally our review of a trial court's determination of the prevailing party is for an abuse of discretion. Id."[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney's fees." Id. at 1043 (alteration in original) (quoting Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla. 1992) ). A trial court's determination of the prevailing party depends on whether that party was successful "on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Trytek v. Gale Indus., Inc., 3 So.3d 1194, 1200 (Fla. 2009) (quoting Moritz, 604 So.2d at 809-10 ). In some cases, it may be justified to determine that there is no prevailing party, such as when the effect is "an unjust reward to a party whose conduct caused the failure of the contract." KCIN, Inc. v. Canpro Invs., Ltd., 675 So.2d 222, 223 (Fla. 2d DCA 1996). But "[p]revailing party attorney's fees are just and proper in the majority of contract litigation." Id.

ERHM's conduct did not cause the failure of the parties' employment agreement. Instead, Edwards resigned and went to work for a competitor in violation of the agreement. The trial court stated that it was examining the economic interests that were at stake and looked to the Trytek decision which applied a "flexible rule" to "achieve an equitable result" in determining the prevailing party. 3 So.3d at 1202. Trytek dealt with a construction lien where the contractor received a net judgment of $1525 after a set off of damages awarded on the homeowner's counterclaim. Id. at 1197. The supreme court concluded as follows:

[A] trial court has the discretion to make a determination that neither party has prevailed on the significant issues in litigation after a thorough examination of all the factors, including the issues litigated, the amount of the claim of lien versus the amount recovered on the lien, the existence of setoffs and counterclaims by the homeowner, and the amounts offered by either party to resolve the issues prior to the litigation, assuming that those negotiations were not otherwise confidential either by agreement or statute.

Id. at 1203.

Here, the trial court found that ERHM clearly prevailed on a significant issue in the litigation because ERHM received injunctive relief. But the trial court recognized that it had narrowed the relief ERHM sought. The trial court also found that it had rejected Edwards' argument that "the contract had no legal effect because it was unsupported by a legitimate business interest." The trial court determined as follows:

The court concludes that the plaintiff had a legitimate reason to bring the action, and that in its absence the self-restraint of the defendant may not have prevented the intrusion into plaintiff's legitimate business interests, so the defendant cannot be called the prevailing party (he has not argued for that status in any event). But because the statute worked as expected to deter the defendant from violating most of the plaintiff's legitimate business interests, and because the plaintiff argued consistently for a broader remedy tha[n] the court ultimately adopted, the court concludes there is no prevailing party in the resolution of the motion for temporary injunction.

In essence, the trial court found no prevailing party because the temporary injunction, as well as the permanent injunction, allows Edwards to engage in "post-sale surgical 'case coverage' " for the new employer. But Edwards is totally prohibited from sales by being enjoined from soliciting new accounts or "new business on his new employer's existing accounts." Edwards is also prohibited from having contact with any doctors that he had marketed products to during the one-year period prior to his departure from ERHM. Based on the circumstances here, the trial court abused its discretion in determining that there was no prevailing party. ERHM prevailed on the significant issues in the litigation and received injunctive relief for the time period requested and the geographic area requested.

Therefore, we reverse the order denying ERHM's motion for attorney's fees and remand for further proceedings.

Reversed and remanded.

VILLANTI and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: LINDSEY, J.

text:
    Maurice A. TALLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1500
    District Court of Appeal of Florida, Third District.
    Opinion filed January 9, 2019
    Law Offices of Aubrey Webb, P.A., and Aubrey Webb, Coral Gables, for appellant.
    Ashley Brooke Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before LOGUE, and LINDSEY, JJ., and SUAREZ, Senior Judge.
   LINDSEY, J.

Maurice Talley appeals his conviction and sentence for the first-degree murder of Roger Glenn. Talley contends reversal is required because (i) the trial court erred in denying his motion for mistrial following the emotional outburst of the victim's family in front of the jury; (ii) the trial court abused its discretion in denying his proposed special jury instructions; (iii) the improper comments made by the prosecutor during closing arguments, collectively, constitute fundamental error; and (iv) the trial court erred in denying his motions for judgment of acquittal given the insufficient evidence and circumstantial nature of the case. For the reasons set forth below, we disagree and affirm.

I. BACKGROUND

Police responded to an apartment complex located in Miami Gardens where Roger "Loso" Glenn was killed after being shot in the head. Upon arriving at the scene, police found Glenn's girlfriend, Stacy Tyler, crying hysterically over the victim's body in the hallway outside of the door of her apartment. Stacy's sister, Tracy Tyler, was also there and identified herself and Stacy to Officer Bryan Blanco, who was one of the first officers on the scene. According to Officer Blanco, Tracy told him that immediately preceding the shooting, an individual she knew as "Maurice" was outside Stacy's apartment yelling for the victim to come outside. Tracy further told Officer Blanco that, shortly after the victim exited the apartment, she heard an argument followed by a loud bang, which she described as a gunshot. According to Officer Blanco, Tracy described an individual running from the scene who was of a medium build with a short haircut, in his 20s, and wearing a gray hoodie jacket with dark jeans. This description also matched the description Tracy gave to the 911 operator. Further, Stacy provided Officer Blanco with the same description.

Tracy testified about the interaction she had with Talley upon arriving at the apartment complex on the day of the shooting. Specifically, Tracy testified that Talley asked where Stacy and the victim were because the victim "wanted his money back" and that "today is the deadline." Tracy explained that Stacy was dating the victim who was known to her as "Loso." Tracy further testified that later the same day the victim and Talley got into a heated argument in the courtyard over the money, with a physical altercation avoided only after people nearby held the two men back. After that heated argument, Tracy, Stacy, and the victim returned to Stacy's apartment where they all consumed alcohol, joined by Helen Tyler, Tracy and Stacy's aunt.

Tracy further testified that after drinking for approximately ten minutes, she left the apartment and went upstairs to another apartment to visit her mother's friend. Tracy stated that when she returned to her sister's apartment "a couple of seconds" later, Talley was knocking on the door and yelling for the victim to come outside. Tracy testified that no one else was in the hallway, and that she went inside the apartment and told the victim that Talley was at the door. As she had previously explained to Officer Blanco, Tracy testified that she heard a gunshot shortly after the victim walked out of the apartment.

When Tracy opened the apartment door, she saw the victim on the ground and immediately called 911, telling the operator that "Maurice" had shot the victim. A portion of the 911 recording was played for the jury during which Tracy can be heard frantically telling the operator that "some boy name Maurice" shot the victim after "[h]e knocked on my sister's door and say that he wanted to talk to 'em." Tracy further told the operator that "[h]e had on a sweat, a sweatshirt that was gray, and some black jeans." In addition, Tracy identified Talley in a photo line-up.

Further, during the State's direct examination, Tracy testified that she suffers from paranoid schizophrenia and depression. She also testified that, while she did sometimes take the prescription drug, Valium, she had not taken any on the day of the murder. During cross-examination, Tracy testified that she sometimes hears voices, thinks people are following her, and has seen spirits since she was a little girl.

Stacy testified that she was the victim's girlfriend and that her nickname for him was "Loso." She also witnessed the argument between Talley and the victim over money on the day of the shooting. Stacy testified that she had consumed alcohol with the victim, Tracy, and her aunt Helen, but was not so impaired that she was unable to perceive what was going on. Stacy further testified that when her sister told the victim that Talley was at the door, the victim exited the apartment, alone and unarmed, and closed the door behind him. She stated that the victim did not own a gun. A few seconds after the victim walked outside, Stacy testified that she heard a single gunshot.

Once outside the apartment, Stacy saw the victim on the ground and, except for a single male running from the scene, the hallway was empty. Stacy testified that she could not discern the fleeing man's identity from behind, but that he was wearing a gray hoodie sweatshirt and "had a fro." Later at the police station, Stacy identified Talley from a photo line-up as the person involved with the victim in the argument earlier in the day in the courtyard. In addition, she testified that she had previously seen Tally because he has two children with her neighbor, Lenora, and visits often. Similar to her sister, Stacy testified that she sometimes sees dead people and that they sometimes touch her.

Helen testified that she too saw Talley in the courtyard earlier on the day of the murder. She further testified that Tracy came into the apartment and said that someone wanted to talk to the victim and that the victim exited the apartment. Within seconds, a gunshot rang out.

Crime scene technicians found a single spent casing underneath the victim's body, but no fingerprints or DNA was collected. Additionally, a single projectile was recovered from the victim's body following the medical examiner's autopsy. A firearm and tool mark examiner with the Miami-Dade Police Department testified that the spent projectile and recovered casing were most likely fired from the same 9mm firearm; however, no weapon was found at the scene or subsequently recovered.

At trial, during the State's opening statement, proceedings were briefly interrupted when several members of the victim's family became emotional during the State's remarks on the medical examiner's expected testimony. The family members abruptly left the courtroom crying, and defense counsel moved for a mistrial based on the disruption in front of the jury. At a sidebar discussion, the trial court denied Talley's motion because "there was nothing directed to any particular juror or at the jury," there was no verbal communication by the spectators, and that the upset family members "acted in an appropriate manner by exiting from the courtroom." At defense counsel's request, the trial court gave a curative instruction for the jury to disregard any disruptions that may occur and that the jury's verdict "must be based on the evidence."

After the State rested, Talley moved for judgment of acquittal and argued the State was unable to exclude every reasonable hypothesis of innocence as required in a purely circumstantial evidence case. The trial court denied Talley's first and second motions for judgment of acquittal. The trial court also denied defense counsel's request for a special jury instruction specifically addressing how the jurors should weigh testimony of witnesses under the influence of alcohol or drugs. The jury found Talley guilty of first-degree murder with the discharge of a firearm. This timely appeal followed.

On appeal, Talley seeks reversal on the following grounds: (i) the trial court erred in denying his motion for mistrial following the emotional outburst of the victim's family in front of the jury; (ii) the trial court abused its discretion in denying his proposed special jury instructions; (iii) the improper comments made by the prosecutor during closing arguments, collectively, constitute fundamental error; and (iv) the trial court erred in denying his motions for judgment of acquittal given the insufficient evidence and circumstantial nature of the case. We address each of these arguments below.

II. STANDARD OF REVIEW

A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Knight v. State, 76 So.3d 879, 885 (Fla. 2011). We similarly review the denial of a criminal defendant's request for a special jury instruction under an abuse of discretion standard. Billie v. State, 963 So.2d 837, 839 (Fla. 3d DCA 2007) (citing Stephens v. State, 787 So.2d 747, 755 (Fla. 2001) ).

A motion for judgment of acquittal is reviewed under a de novo standard, and a conviction will not be reversed where it is supported by competent substantial evidence. Giralt v. State, 935 So.2d 599, 601 (Fla. 3d DCA 2006) (citing Boyd v. State, 910 So.2d 167, 180 (Fla. 2005) ). However, a special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. State v. Law, 559 So.2d 187 (Fla. 1989). The State must only introduce competent evidence "inconsistent with the defendant's theory of events, and is not required to conclusively rebut every possible variation of events which can be inferred from the evidence." Giralt, 935 So.2d at 601.

If the State demonstrates an inconsistency with the defendant's theory, trial courts "should deny the motion for judgment of acquittal and allow the jury to resolve the inconsistency." Id. at 602. Upon reviewing the evidence in a light most favorable to the State, if a rational juror could find the existence of the elements of the offense beyond a reasonable doubt, there is sufficient evidence to sustain the conviction. See Pagan v. State, 830 So.2d 792, 803 (Fla. 2002) (citing Banks v. State, 732 So.2d 1065 (Fla. 1999) ).

III. ANALYSIS

A. Motion for Mistrial

Several of the victim's family members became emotional during opening statements and exited the courtroom visibly and audibly crying. According to Talley, this outburst prevented him from a fair and impartial jury in that it constituted improper contact with the jury. As a result, Talley claims he was prejudiced and is entitled to a new trial. We disagree. The granting of a motion for mistrial is not based on whether an error is merely prejudicial but rather whether "an error is so prejudicial as to vitiate the entire trial." Wellons v. State, 87 So.3d 1223, 1225 (Fla. 3d DCA 2012) (quoting Salazar v. State, 991 So.2d 364, 372 (Fla. 2008) ). "In order for the prosecutor's comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise." Id. at 1224 (quoting Spencer v. State, 645 So.2d 377, 383 (Fla. 1994) ).

When considering defense counsel's motion, the trial court stated on the record that "two or three" family members left the courtroom when they became emotional during a portion of the prosecutor's opening remarks. The trial court emphasized that nothing was directed to any particular juror or the jury and that the upset family members "acted in an appropriate manner by exiting the courtroom." Moreover, a curative instruction was given to the jury at defense counsel's request. As such, we conclude that the family members' non-verbal, emotional outburst was in no way "so prejudicial so as to vitiate the entire trial." See Wellons, 87 So.3d at 1225 (citation omitted). Accordingly, we cannot find that the trial court abused its discretion in denying the motion for mistrial. See Joseph v. State, 704 So.2d 1149 (Fla. 3d DCA 1998) ("[T]he strong curative instruction promptly given by the trial court alleviated any possible prejudice, thus the court correctly denied the mistrial motion." (citing Kivett v. State, 629 So.2d 249 (Fla. 3d DCA 1993) ) ).

B. Special Jury Instructions

Next, Talley argues the trial court abused its discretion in denying his request for a special jury instruction regarding the effect of drugs or alcohol on a witness's ability to perceive and recall. According to Talley, he first proposed the following modification to the standard instructions:

The testimony of someone who is shown to have used addictive drugs or alcohol during the period of time about which the witness testified must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses. The jury must determine whether the testimony of the drug or alcohol abuse has been affected by the drug or alcohol use of the need for drugs or alcohol. You should never convict any defendant upon the unsupported testimony of such a witness unless you believe that testimony beyond a reasonable doubt.

Alternatively, Talley proposed:

In judging the credibility of a witness you may also take into account the effect, if any, of drug usage upon the witnesses' ability to accurately perceive, remember, and recall.

The trial court denied the request as to both proposed instructions, ultimately concluding that the standard instructions adequately covered the juror's responsibility to weigh the evidence and evaluate the reliability of a witness's testimony. The standard instructions given here instructed the jury to consider, in part, the following when weighing a witness's testimony:

1. Did the witness seem to have an opportunity to see and know the things about which the witness testified?
2. Did the witness seem to have an accurate memory?
3. Was the witness honest and straightforward in answering the attorneys' questions
....
5. Does the witness's testimony agree with the other testimony and other evidence in the case?
....
8. Did the witness at some other time make a statement that is inconsistent with the testimony [he] [she] gave in court?

See Fla. Std. Jury Instr. (Crim.) 3.9. The jury was further instructed to consider, among other factors, the following in deciding how much weight to give the elicited eyewitness testimony: (i) "[t]he capacity and opportunity of the eyewitness to observe the Defendant based upon the length of time for observation and the conditions at the time of the observation"; (ii) "[w]hether the identification was the product of the eyewitness's own recollection or was the result of influence or suggestiveness"; (iii) [a]ny inconsistent identification made by the eyewitness"; and (iv) "[t]he totality of circumstances surrounding the eyewitness's identification." See Fla. Std. Jury Instr. (Crim.) 3.9.

In Stephens v. State, the Florida Supreme Court explained that "[i]n order to be entitled to a special jury instruction, [the defendant] must prove: (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing." 787 So.2d at 756 (footnotes omitted). Thus, here, Talley has the burden of demonstrating that the trial court abused its discretion in giving only the standard instructions.

Standard jury instructions for criminal trials are presumed correct and are generally preferred over special instructions. Stephens, 787 So.2d at 755. While a defendant maintains the right to have the jury instructed on any valid theory of defense, failure to grant a modification to standard instructions is not an error where the instructions given adequately cover applicable legal standards and the defendant's theories of the case. See Chiarenza v. State, 217 So.3d 128 (Fla. 3d DCA 2017) ; see also Stephens, 787 So.2d at 755 (citation omitted).

Here, Talley argues the trial court abused its discretion in denying his proposed special jury instructions because the State's case rested on the testimony of Tracy and Stacy, both of whom admitted to consuming alcohol on the day of the shooting, and both of whom testified they could sometimes hear or see dead people. We reject this argument. Although the proposed instructions covered Talley's theory that Tracy and Stacy were mistaken as to their version of events because of alcohol use or questionable mental health, Talley failed to meet his burden to prove the standard instructions given did not adequately cover his theory of the case. See Alvarez v. State, 890 So.2d 389, 397 (Fla. 1st DCA 2004) ("Where the Florida Standard Jury Instruction adequately apprises the jury as to the law and evidence, it is proper to give the standard instruction rather than a requested special instruction.") (citing Carpenter v. State, 785 So.2d 1182, 1200 (Fla. 2001) ).

There is no question that the jury understood the reliability of the sisters' testimony to be central in determining whether the State proved its case beyond a reasonable doubt. The reliability and credibility of Tracy and Stacy's recollection of the events surrounding the victim's murder was presented to the jury in great detail by both sides throughout the trial. However, the standard jury instructions, together with the juror's common sense, provided sufficient guidance in assessing the reliability of the witnesses' perception and the potential effect of contemporaneous alcohol use on the witness' perception and ability to recall.

As such, we conclude that the jury received adequate instruction on their duty to weigh facts and circumstances that could have any bearing on the witnesses' reliability and credibility, including the consumption of alcohol or history of mental health issues. See Sutton v. State, 909 So.2d 292, 293 (Fla. 3d DCA 2004) (concluding that the reliability of an eyewitness who consumed drugs and alcohol on the weekend of the murder "was within the common understanding and common sense of lay jurors and the standard jury instruction on weighing the evidence was adequate"). Therefore, we cannot find that the trial court abused its discretion in denying the request for special jury instruction(s).

C. Alleged Improper Comments During Closing Argument

Talley asserts that the prosecutor made several improper comments during closing arguments that collectively rise to the level of fundamental error. The only comment that defense counsel objected to was made in the following context:

[STATE]: I submit to you ask yourself this question. How much courage it took for those women to come in here and tell 14 people sitting in a box not to mention everybody else in this courtroom watching them, the Judge, the prosecution, the Defense, the defendant sitting here, how much courage did it takes [sic] from [sic] them to come from that neighborhood to sit on that stand and tell you what they saw, ask yourselves. They didn't want to do it, we talked about it. We had to put them on monitors, we had to get the Court involved to basically get them in here and cooperate because they come from a neighborhood you don't snitch. You don't snitch and you don't talk[.]

(Emphasis added).

This comment, while certainly improper, when considered individually or collectively with any of the other purportedly improper comments, does not warrant reversal. The prosecutor's "snitch" comment was isolated, it was not repeated before or after the objection, and the remark was not made a theme or feature of the State's closing. See Lammons v. State, 246 So.3d 524, 526 (Fla. 3d DCA 2018) (holding that the objected-to improper comment by the prosecutor was harmless error because it was isolated, not repeated after the objection, and was not made a feature of the State's rebuttal close).

Further, the trial court sustained the objection and upon the request of defense counsel, gave the following curative instruction: "I'm going to have to ask the jury to disregard that last statement[-counsel for the State's] inappropriate argument made in this case." Any error was cured by the curative instruction and the instruction sufficiently dispelled any prejudicial effect from the "snitch" remark. See Jennings v. State, 124 So.3d 257, 266 (Fla. 3d DCA 2013) ("Generally speaking, the use of a curative instruction to dispel the prejudicial effect of an objectionable comment is sufficient." (quoting Rivera v. State, 745 So.2d 343, 345 (Fla. 4th DCA 1999) ) ). In addition, after the defense had rested and prior to closing argument, the trial court instructed the jury that what the attorneys say in closing is not evidence.

Next, we address Talley's argument that the prosecutor made improper and inflammatory comments, to which he did not object, that warrant reversal. "In order to preserve an allegedly improper prosecutorial comment for review, a defendant must object to the comment and move for a mistrial." State v. Revenel, 184 So.3d 629, 631 (Fla. 3d DCA 2016) (quoting Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999) ). Florida courts recognize that an "exception to the contemporaneous objection rule is where the unobjected-to comments rise to the level of fundamental error ...." Card v. State, 803 So.2d 613, 622 (Fla. 2001) (citing McDonald v. State, 743 So.2d 501, 505 (Fla. 1999) ); see also Bell v. State, 108 So.3d 639, 650 (Fla. 2013) (holding that unpreserved claims regarding improper prosecutorial comments during closing argument are reviewed for fundamental error).

"Fundamental error is that which 'reaches down into the validity of the trial such that a guilty verdict ... could not have been obtained without the assistance of the alleged error.' " Bell, 108 So.3d at 650 (quoting Wade v. State, 41 So.3d 857, 868 (Fla. 2010) ). The Florida Supreme Court has explained the contemporaneous objection rule and its fundamental error exception as follows:

[F]ailing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review. The sole exception to the general rule is where the unobjected-to comments rise to the level of fundamental error, which has been defined as error that "reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error."

Simpson v. State, 3 So.3d 1135, 1146 (Fla. 2009) (quoting Brooks v. State, 762 So.2d 879, 899 (Fla. 2000) ).

"We conduct a two-part inquiry to determine if closing comments comprise fundamental error. First, we determine whether the comments were impermissible." Robinson v. State, 211 So.3d 59, 60 (Fla. 4th DCA 2017). Next, we must resolve whether the improper comment constitutes fundamental error by determining if it affected the validity of Talley's trial such that, but for the comment, the jury could not have reached the verdict it did. See Farina v. State, 937 So.2d 612, 629 (Fla. 2006) (citing Miller v. State, 782 So.2d 426, 432 (Fla. 2d DCA 2001) ).

The first unobjected-to comment is as follows:

[STATE]: Obviously [Stacy, Tracy, and Helen Tyler] have stuff they are dealing with. Okay, they have stuff they are dealing with. For you to discount their testimony, you would have to discount Stacy, Tracy and Helen. You would have to find all three are liars and then he walks.[ ] You walk him. You acquit him he walks out the door. For you to acquit him you have to discount all three of those ladies and ask yourselves this. You heard the 911 call which is mere moments after the shooting happened. Do you think these women were sophisticated enough to take that moment in time and say oh, my God Loso is dead, you know what I don't know who did it let's pin this on Maurice Talley. Let's pin it on Maurice. Come on, we have a couple of seconds here come on ladies let's get this together I saw this and you saw that, okay, we're going to take Maurice out on this one.

(Emphasis added).

The second comment Talley contends was improper for the prosecutor to remark is as follows:

Your job is simply to look at the evidence, consider his actions on that day and determine which crime the State has proven .... And, of course if you find that he did not commit a crime, then you will acquit him of everything and he walks out the door with you. If you think his actions on December 5th of the year 2014 don't constitute a crime of any variety ... if you think of what he did on that day does not constitute a crime, then you acquit him.

(Emphasis added).

The final alleged improper comment occurred in the State's rebuttal as follows:

There is no evidence that was presented to you that we were in custody of Maurice's Talley's phone. There is no evidence that there were any cell phone records. We would have brought it to you.
Members of the jury, if you disbelieve the testimony of the Tylers, if you think that they are all crazy that they've made it up that Maurice Talley was there, then walk him. Let him walk out that door acquit him. I submit to you that is not reasonable.

(Emphasis added).

First, Talley contends the prosecutor's "walk out the door" references impermissibly appealed to the jury's community conscience and cumulatively constitute fundamental error. We disagree. We recognize that Florida courts have consistently "condemned impassioned arguments which appeal to the jury's community sensibilities or civil conscience." Fleurimond v. State, 10 So.3d 1140, 1149 (Fla. 3d DCA 2009) (citing Smith v. State, 818 So.2d 707, 710 (Fla. 5th DCA 2002) ; Otero v. State, 754 So.2d 765, 769 (Fla. 3d DCA 2000) ; Birren v. State, 750 So.2d 168, 169 (Fla. 3d DCA 2000) ); see also Charriez v. State, 96 So.3d 1127, 1128 (Fla. 5th DCA 2012) ; Norman v. Gloria Farms, Inc., 668 So.2d 1016, 1021 (Fla. 4th DCA 1996). However, when considered in the context of the entire closing argument, the prosecutor's "walk out the door" comments were not an improper appeal to the jury's community sensibilities or conscience. Further, contrary to Talley's assertion, the "walk out the door" comments did not suggest that the jury pick a side, condone the victim's murder if returning a not guilty verdict, or convict Talley for the good of the community.

The cases relied on by Talley are readily distinguishable, and they contain comments far more egregious and numerous than the closing remarks in the instant case. In Crew v. State, 146 So.3d 101 (Fla. 5th DCA 2014), one of two cases cited by Tally involving reversal on the basis of fundamental error, the prosecutor's improper comments included: "We're talking about justice for DJ and we're talking about letting that man walk .... Hold him accountable for what he's done. Don't let him get out of here and make this cheap. Don't make it cheap. Don't make it a misdemeanor." Id. at 106. The prosecutor further stated, among numerous other improper comments, that, "Jerry Crew doesn't have a moralistic thing about him. Not one. Jerry Crew is nothing more than a hopeless old crack addict ...." Id. at 104. The prosecutor continued with "This is a moralistic person? This is a person who has a limitation on what's wrong and what's right? No, not at all." Id. at 105. In addition, the prosecutor stated, "My God, imagine how high he's going to be. His little crackhead eyes are going to glow." Id. And, the prosecutor continued on from there with "It's like Christmas come early for a crackhead" and "[the defendant] gets to walk out of here without facing any of the facts of what he's done ...." Id. at 105-06.

Moreover, in addition to the foregoing vitriolic, demeaning, and inflammatory comments set forth above, which are some, but not all of those considered by the court in Crew to be improper, the prosecutor commented on defense counsel's out-of-court questioning and cross-examination of a State witness who had suffered a stroke. Id. Finally, after all of the foregoing, the prosecutor began referring to defense counsel solely by his first name and finished with a discussion of the victim and his family, stating, "Don't spit in his family's face." Id.

In Pacifico v. State, 642 So.2d 1178 (Fla. 1st DCA 1994), the second of Talley's cases involving fundamental error, a new trial was warranted in light of the trial court's denial of two motions for mistrial and numerous improper comments by the prosecutor, to which some were objected and some not. Specifically, the defense challenged five specific areas of prosecutorial misconduct, contending the cumulative effect of which constituted fundamental error: (1) the prosecutor's "free man" comments; (2) the prosecutor's use of pejorative terms to characterize the defendant; (3) the prosecutor's statement that "[t]his defendant is a criminal, and he needs to be convicted" to suggest that he has the propensity to commit a crime; (4) the prosecutor's reference to the defendant as "a liar" and asking the jury to send a message about lying in the courtroom; and (5) the prosecutor's reference to matters not in evidence and to her personal beliefs about the evidence. Id. at 1182-84.

Clearly, the improper comments in Crew and Pacifico crossed the line of acceptable advocacy. In the instant matter, however, the State's "walk out the door" comments, which would not have been made in a perfect trial, did not reach the line crossed in Crew and Pacifico and do not rise to the level of fundamental error.

Lastly, Talley asserts that the prosecutor impermissibly shifted the burden of proof by telling the jury, "[f]or you to discount their testimony, you would have to discount Stacy, Tracy and Helen. You would have to find all three are liars and then he walks." At the outset, we conclude that this burden-shifting comment was indeed improper. However, as set forth above, this comment did not draw an objection from the defense. We recognize that this particular comment improperly suggested to the jury that acquittal was proper only if they found the State's witnesses to be dishonest. However, we do not find that this comment rises to the level of fundamental error, when considered individually or cumulatively with the other alleged improper comments. While the burden-shifting comment was improper, it was isolated, and the jury was repeatedly told by the prosecutor, defense counsel, and trial judge that the State had the burden of proving Talley's guilt beyond and to the exclusion of all reasonable doubt. Indeed, after making the isolated burden-shifting remark, the prosecutor provided the jury with an accurate statement of the law. See Poole v. State, 151 So.3d 402, 415 (Fla. 2014) (explaining that once a comment is found to be improper, "factors to be weighed in determining whether an improper comment rises to the level of fundamental error include whether the statement was repeated and whether the jury was provided with an accurate statement of the law after the improper comment was made" (citing Poole v. State, 997 So.2d 382, 395 (Fla. 2008) ) ).

After the State raised an objection during defense counsel's closing, the trial court read to the jury the reasonable doubt instruction, which includes an explanation of the State's burden of proof. Furthermore, because the jury instructions contained lesser-included offenses and the discharge of a firearm was alleged, the trial court charged the jury four different times that the State had to prove beyond a reasonable doubt that Talley committed first-degree murder or any lesser-included offense. This was in addition to the standard instruction on reasonable doubt and burden of proof.

Accordingly, we do not believe that the isolated error here, notwithstanding its impropriety, reached the level of fundamental error such that a verdict of guilty could not have been obtained without the assistance of the improper comments. See Sampson v. State, 213 So.3d 1090, 1092 (Fla. 3d DCA 2017) ("We affirm, concluding that the prosecutor's arguments, while improper, did not constitute fundamental error."); Augustine v. State, 143 So.3d 940, 940-41 (Fla. 4th DCA 2014) (finding no fundamental error despite explaining that "[a]ny one of the improper arguments here may have warranted reversal if preserved"); Rodriguez v. State, 27 So.3d 753, 754 (Fla. 3d DCA 2010) (finding that the prosecutor's misstatement as to the State's burden of proof was not fundamental error where the error was not intentional, the misstatement could have been corrected with a curative instruction had defense counsel objected, and the jury was repeatedly instructed on the correct burden of proof); Montanye v. State, 976 So.2d 29, 31 (Fla. 5th DCA 2008) ("Upon careful review of the instant record we conclude that the prosecutor's improper statements do not rise to the level of fundamental error ...."); State v. Fountain, 930 So.2d 865, 867 (Fla. 1st DCA 2006) ("Although the prosecutor's statements were improper, the unpreserved error was not fundamental.").

Finally, the cases Talley cites to support his claim that the improper burden-shifting comments warrant a new trial are inapposite, as those cases either do not involve the application of the fundamental error standard or address significantly more errors than at issue here. See, e.g., Maharaj v. State, 78 So.3d 63 (Fla. 4th DCA 2012) (finding that the State's improper burden-shifting comments during closing argument did not constitute fundamental error but reversing on other grounds); Atkins v. State, 878 So.2d 460 (Fla. 3d DCA 2004) (finding that the trial court abused its discretion in denying defendant's motion for mistrial where the sole defense was misidentification and prosecutor stated: "[w]e're not saying that [what the victim] said is not true, he must be mistaken and he said he's not a liar. He would have to be a liar, he would absolutely have to be a liar.");

Pacifico, 642 So.2d 1178 (reversing based on extensive prosecutorial misconduct throughout trial that included comments appealing to the jury's community conscience, derogatory references to the defendant, impermissible prior bad act impeachment, improper comments on matters not in evidence, and erroneous expressions of personal belief). In contrast, we are considering whether isolated, unpreserved comments, individually or collectively with the single preserved "snitch" remark, rises to the level of fundamental error. They do not.

D. Judgment of Acquittal

The last argument Talley raises on appeal is that the trial court erred in denying his motion for judgment of acquittal given what he characterizes as the insufficient and circumstantial nature of the evidence. When considering a motion for judgment of acquittal, all evidence is viewed in the light most favorable to the State. Irizarry v. State, 905 So.2d 160, 165 (Fla. 3d DCA 2005). In wholly circumstantial evidence cases, such as the instant case, the standard applicable is as follows:

[A] motion for judgment of acquittal should be granted in a case based wholly upon circumstantial evidence if the [S]tate fails to present evidence from which the jury could exclude every reasonable hypothesis except that of guilt. However, [t]he [S]tate is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. Once the State meets this threshold burden, it becomes the jury's duty to determine whether the evidence fails to exclude all reasonable hypotheses of innocence ... and where there is substantial, competent evidence to support the jury verdict, [the Court] will not reverse.

Davis v. State, 207 So.3d 177, 195 (Fla. 2016) (alterations in original) (internal citations and quotations omitted).

Talley's sole theory of defense was that Tracy and Stacy were mistaken and lacked credibility because they admitted to consuming alcohol on the day of the shooting and their testimony raised questions as to their mental health. As such, Talley asserts the evidence does not exclude his hypothesis that the State's witnesses placing Talley at the scene were mistaken or hallucinating. We disagree as sufficient evidence exists in the record to contradict Talley's hypothesis. "It is the function of the jury, not of the court, to weigh the evidence and to assess the credibility of the witnesses." Del Rio v. State, 478 So.2d 79, 80 (Fla. 3d DCA 1985) (citing Rodriguez v. State, 436 So.2d 219, 220 (Fla. 3d DCA 1983) ). Thus, in viewing all evidence in the light most favorable to the State, we conclude that the State satisfied its burden of introducing evidence inconsistent with Talley's version of events to support the denial of his motion for judgment of acquittal.

E. CONCLUSION

Based on the foregoing, we find no abuse of discretion in the trial court's denial of Talley's requested special jury instructions or motion for mistrial. We further find that the improper comments made by the prosecutor during closing argument do not individually or cumulatively warrant a new trial. Finally, we affirm the trial court's denial of Talley's motions for judgment of acquittal because the State introduced competent evidence inconsistent with Talley's hypothesis of innocence sufficient to allow the jury to determine whether the evidence failed to exclude all reasonable hypotheses of innocence.

Affirmed.

      During its direct examination of Officer Blanco, the State asked, in reference to the identity of the individual in the gray hoodie and dark jeans, whether Tracy indicated "that she knew this Maurice or was this someone unknown." In response, Officer Blanco testified that, "[s]he stated it was a person known to her." In addition, Officer Blanco was permitted to testify, over objection, that Stacy told him "a person she knows by the name of Reece [also referred to throughout the testimony as Maurice] shot her boyfriend." Further, according to Officer Blanco, Stacy "did not state that she witnessed the person shoot him but only that she saw the person running from that location."

      At trial, Detective Pacheco testified that a mugshot taken following Talley's arrest approximately two weeks after the shooting depicted Talley with a "kind of bushy" hair style.

      Talley also claims the trial court erred in failing to strike the testimony of both Tracy and Stacy Tyler. We affirm the trial court on this issue without discussion.

      In addition, we decline Talley's invitation on appeal to adopt a new standard requiring trial courts to poll the jury any time there is an emotional outburst or disruption by a spectator during trial proceedings. First, no request was made to the trial court to poll the jurors. Second, we believe the decision of whether to poll jurors is better left to the discretion of trial judges who are in the best position to assess the intensity of the outburst and its potential effect on jurors. See Thomas v. State, 748 So.2d 970, 980 (Fla. 1999) ("In reviewing motions for mistrial dealing with emotional outbursts from witnesses, appellate courts should defer to trial judges' judgments and rulings when they cannot glean from the record how intense a witness's outburst was.") (citing Arbelaez v. State, 626 So.2d 169, 176 (Fla.1993) ; Torres-Arboledo v. State, 524 So.2d 403, 409 (Fla.1988) ; Justus v. State, 438 So.2d 358, 366 (Fla.1983) ).

      During trial, Tracy specifically denied taking Valium or any other drugs on the day of the murder. While Stacy admitted to having consumed alcohol that day, she testified that it did not affect her ability to see, hear, or perceive the events on the date in question.

      The defense did not move for a mistrial.

      In its Answer Brief, the State concedes that the prosecutor's statement, "[y]ou would have to find all three are liars," was improper pursuant to this Court's decision in Atkins v. State, 878 So.2d 460 (Fla. 3d DCA 2004). However, in Atkins, the defense preserved the issue and moved for a mistrial, which was denied.

      Following the burden-shifting comment, the prosecutor told the jury "[w]e have to prove beyond a reasonable doubt, beyond and to the exclusion of all reasonable doubt that this defendant is guilty of the crime of murder." Later, the prosecutor stated "[r]emember you [sic] not judging this man, you are judging the evidence of his actions on that particular day."

      In denying Talley's motions for judgment of acquittal, the trial court noted that there was never any challenge to the competency of Tracy or Stacy.


author: HENDON, J.

text:
    Edward RANGEL, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D19-0138
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2019
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.
    Ashley Brooke Moody, Attorney General, and Linda Katz, Assistant Attorney General, for respondent.
    Before SALTER, LINDSEY and HENDON, JJ.
    ON CONFESSION OF ERROR
   HENDON, J.

Pursuant to the State's proper concession, we grant the emergency Petition for Habeas Corpus, quash the alias capias and estreature of bond issued by the trial court, and remand with directions to the trial court to accept the Petitioner's written waiver of presence.

Petition for Writ of Habeas Corpus granted and cause remanded. This opinion shall take effect immediately.


author: LAGOA, Associate Judge.

text:
    Joseph SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-0991
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Ashley Brooke Moody, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and HENDON, J., and LAGOA, Associate Judge.
    ON CONFESSION OF ERROR
   LAGOA, Associate Judge.

Joseph Smith ("Smith") appeals his conviction and sentence for possession of a controlled substance, possession of drug paraphernalia, and resisting an officer without violence, arguing that his trial was fundamentally flawed due to the trial court's failure to instruct the jury as to reasonable doubt. As the State correctly concedes, the trial court's failure to instruct the jury as to Florida Standard Jury Instruction (Criminal) 3.7 Plea of Not Guilty; Reasonable Doubt, and Burden of Proof, or any similar instruction, constituted fundamental error. See Cavagnaro v. State, 117 So.3d 1111, 1112 (Fla. 3d DCA 2012) (finding fundamental error where the jury charge did not include Florida Standard Jury Instruction (Criminal) 3.7 or any similar instruction); see also Curry v. State, 169 So.3d 1258, 1258 (Fla. 5th DCA 2015) ; Burnette v. State, 103 So.3d 1059 (Fla. 1st DCA 2013). Accordingly, we reverse Smith's conviction and remand for a new trial.

Reversed and remanded.


text:
    BLACK RIVER CRAWFISH FARMS, LLC v. Jack A KING Jr., et al.
    NO. 2018-C-1396
    Supreme Court of Louisiana.
    January 8, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF CONCORDIA
    Writ denied.
    CLARK, J., would grant and docket.
    CRICHTON, J., would grant and docket and assigns reasons.
    GENOVESE, J., would grant and docket.
    Crichton, J., would grant and assigns reasons.
   I would grant and docket this application to examine the intersection of Civil Code articles related to real rights and prescription of nonuse, see C.C. arts. 481, 3448, and restoration claims asserted pursuant to La. R.S. 31:22. See also La. R.S. 31:27, 31:28, 31:29.


text:
    STATE of Louisiana v. Chadric L. GREEN
    NO. 2018-KO-0293
    Supreme Court of Louisiana.
    January 3, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF DESOTO
    Writ denied.
    GENOVESE,J., would grant in part and assigns reasons.
    GENOVESE, J., would grant in part for the following assigned reasons:
    I would grant this writ solely to correct the trial court's failure to comply with the mandates of La.Code Crim.P. art. 873. Defendant absconded during his jury trial. He was found guilty of a felony (possession of a firearm by a convicted felon) in abstentia by unanimous verdict. He was later apprehended and brought to court for sentencing wherein he represented himself without stand-by counsel. At that appearance and before his sentencing, Defendant made an oral pro se motion for a new trial, which was denied instanter, and the trial court immediately sentenced Defendant (without any delay) to fourteen years at hard labor, without benefits, and imposed a $1,000.00 fine. In denying this writ outright, the majority ignored the trial court's failure to comply with La.Code Crim.P. art. 873 relative to the delay between conviction and sentence. Louisiana Code of Criminal Procedure Article 873 states in pertinent part: "If a motion for a new trial ... is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled." In this case, Defendant was sentenced by the trial court immediately after overruling his oral pro se motion for a new trial. This was legal error in direct contravention of the mandate ("shall") of La.Code Crim.P. art. 873. Thus, I would grant this writ in part for the sole purpose of vacating Defendant's sentence and remanding the matter to the trial court for resentencing in accordance with La.Code Crim.P. art. 873. I would deny all other aspects of this writ.


author: Hughes, J., concurring.

text:
    STATE EX REL. Terry SMITH v. STATE of Louisiana
    No. 2018-KH-29
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE 40th JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. JOHN
    Writ denied.
    HUGHES, J., concurs and assigns reasons.
   Hughes, J., concurring.

While I concur with the denial of this writ, I note that La. C. Cr. P. art. 580(A) provides for a one year, not two year, period for the state to proceed after a suspension.


text:
    Michael Thomas ACURIO v. Danielle Dickerson CAGE, a/k/a Danielle Dickerson Acurio, a/k/a Danielle Dickerson
    No. 2018-C-1762
    Supreme Court of Louisiana.
    January 8, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF BOSSIER
    Writ denied.
    HUGHES, J., concurs and assigns reasons.
   Hughes, J., concurring.

Although I concur with the denial of this writ, I continue to believe the original case was wrongly decided. Acknowledgment under oath of a document filed before the marriage is sufficient.


author: PER CURIAM:

text:
    STATE EX REL. Marvin G. DEAL v. STATE of Louisiana
    No. 2017-KH-1850
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Anthony ARMSTEAD
    No. 2018-KH-0033
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Stephen KRELL
    No. 2017-KP-0013
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Bernard Franklin VERRETT v. STATE of Louisiana
    No. 2017-KH-1809
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Weimer, J., recused.


text:
    STATE EX REL. Thomas SPARKS A/K/A Abduallah Hakim El-Mumit v. STATE of Louisiana
    No. 2017-KH-1956
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON
   PER CURIAM:

Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review.

The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Phillip Orlando JOHNSON
    No. 2017-KP-2135
    Supreme Court of Louisiana.
    January 8, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.