author: KELLY, Judge.

text:
    Joe Samuel BAILEY, Laserscopic Spinal Centers of America, Inc.; Laserscopic Medical Clinic LLC ; Laserscopic Diagnostic Imaging and Physical Therapy LLC; Laserscopic Spinal Center of Florida, LLC; and Laserscopic Surgery Center of Florida, Appellants/Cross-Appellees, v. James S. ST. LOUIS, D.O.; Michael W. Perry, M.D.; EFO Holdings L.P. ; EFO GenPar, Inc. ; EFO Laser Spine Institute, Ltd. ; Laser Spine Institute, LLC; Laser Spine Medical Clinic, LLC ; Laser Spine Physical Therapy, LLC ; and Laser Spine Surgical Center, LLC, Appellees/Cross-Appellants.
    Case No. 2D17-895
    District Court of Appeal of Florida, Second District.
    Opinion filed December 28, 2018
    William J. Schifino of Burr & Forman LLP Tampa; Stuart C. Markman, Kristin A. Norse, and Robert W. Ritsch of Kynes, Markman & Felman, P.A., Tampa; Jennifer G. Altman and Shani Rivaux of Pillsbury Winthrop Shaw, Pittman LLP, Miami, for Appellants/Cross-Appellees.
    Stacey D. Blank and Joseph H. Varner, III of Holland & Knight LLP, Tampa, for Appellees/Cross-Appellants.
   KELLY, Judge.

This is the second appeal from a final judgment entered in favor of the appellants/cross-appellees in an action against the appellees/cross-appellants for breach of fiduciary duty, conspiracy, defamation, slander per se, tortious interference, and violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). The factual background underlying this litigation is fully set forth in Bailey v. St. Louis, 196 So.3d 375 (Fla. 2d DCA 2016) ( Bailey I ), and repeating it here is unnecessary. In Bailey I, we affirmed the final judgment but reversed the damages awarded by the trial court. On remand, with the exception of adding an award for punitive damages, the trial court awarded the same damages this court had previously reversed. Again, we reverse those awards. As to the remaining issues raised in the appeal and in the cross-appeal, we affirm without further comment.

In Bailey I, the appellants had prevailed on claims for breach of fiduciary duty, conspiracy, slander per se, tortious interference, and violation of FDUTPA. We reversed the damages awarded for everything but slander per se because, as explained in our opinion, we could not square the awards with the evidence or the trial court's findings, which were quite limited with respect to damages. See 196 So.3d at 377. We also reversed the trial court's decision not to award monetary damages for the appellees' FDUTPA violations and not to award punitive damages. See id. We determined that the trial court incorrectly ruled that it could not award monetary damages under FDUTPA and that it also erroneously found that the facts did not support an award of punitive damages. See id.

There were two components to the total damage award of $1,600,000 at issue in Bailey I. The first was an award of $300,000 to Laserscopic Spine Centers of America, Inc. (Spine), for out-of-pocket damages for tortious inference. With respect to this award we stated, "In its order, the trial court accepted the calculations of only one of the experts 'as to out of pocket losses,' and it found that the expert testified that the Appellants suffered out-of-pocket damages of $6,831,172." 196 So.3d at 377 (footnote omitted). Yet, the total award of damages was only $1,600,000. The trial court offered no explanation as to how it ended up entering a total award that was less than one-fourth of the amount it cited for out-of-pocket damages alone, and the record provided no insight into the basis for the award.

On remand, the trial court again awarded $300,000. By way of explanation, the court stated that it had rejected the appellants' expert's testimony as to out-of-pocket losses. However, as explained in Bailey I, the trial court had expressly accepted the expert's calculation regarding out-of-pocket losses. The court purports to explain how it determined that $300,000 was the proper award. Its reasoning, however, is nearly a verbatim repeat of the arguments the appellees unsuccessfully urged us to accept in Bailey I. Moreover, the court's explanation rests on the flawed premise that it had rejected the expert's calculations. Accordingly, we again reverse the trial court's award to Spine and remand for entry of an award in the amount of $6,831,172, which is the amount the trial court found was established by the appellants' expert's testimony.

The remaining $1,050,000 of the damage award was the second component at issue in Bailey I. Appellant Laserscopic Spinal Centers of America, Inc. (Spinal), was awarded damages for breach of fiduciary duty, conspiracy, and tortious interference, while appellant Laserscopic Medical Clinic, LLC (LMC), received an award on a claim for breach of fiduciary duty. The appellants had sought damages under various theories, including disgorgement. On appeal, the appellants argued that the trial court had awarded no disgorgement damages, while the appellees argued that the entire $1,050,000 was an award of "lost profits measured by the yardstick of [Laser Spine Institute's] allegedly ill-gotten profits, which [it] was similarly required to disgorge." Because of the way the trial court had prepared its order, it was not possible to determine with certainty whether all or a portion of the award was for disgorgement. What we could determine, however, was that if it was for disgorgement, it was "grossly insufficient." Id. at 378.

The appellants had sought disgorgement of approximately $264,000,000. This figure represented the value of Laser Spine Institute (LSI) in 2009 plus $77.5 million in distributions paid to the owners between 2005 and 2009. In their argument to the trial court, the appellees had taken the position that even if the court found some wrongdoing, any profits LSI earned were attributable solely to the efforts of management and not to any wrongdoing; therefore, the court should not award anything to the appellants. Because it was their position that the appellants were not entitled to any damages, the appellees did not put on any evidence as to what amount of LSI's profits short of $264,000,000 could be attributed to their wrongful conduct.

On appeal, and without explaining how the court might have arrived at $1,050,000 rather than $264,000,000, the appellees argued the award reflected the trial court's conclusion that only this portion of LSI's profits was attributable to the appellees' wrongdoing. In support of this, the appellees pointed to the "Damages" section of the trial court's order and specifically to the trial court's citation to Pidcock v. Sunnyland America, Inc., 854 F.2d 443, 447-48 (11th Cir.1988). The trial court cited Pidcock for the proposition that a plaintiff may only recover profits attributable to the underlying wrong and not profits attributable to a defendant's "special or unique efforts" and that "aggressive or enterprising" management activities "may break the causal chain" between the wrongdoing and the defendant's profits. This, according to the appellees, was the reason the trial court limited the award. We will not repeat our discussion of Pidcock here. Suffice it to say that we thoroughly analyzed its applicability to the facts as found by the trial court, and we concluded that the limiting principles Pidcock discusses were inapplicable. See Bailey I, 196 So.3d at 378. Thus, we held that if the award was for disgorgement, it was "grossly insufficient." See id.

Although we did not address it in our opinion, the appellees also argued that "in cases involving the misappropriation of proprietary information, a court will limit the disgorgement of a defendant's profits 'to the amount of time it would have taken the defendant to independently develop its product without the benefit of the plaintiff's trade secrets-in other words, the "head start" period.' " Thus, they argued that the trial court awarded "lost profits/disgorgement damages in an amount equal to the profits LSI derived from this head start." However, the trial court had found the appellants' misappropriation claims were barred by the statute of limitations. Further, at trial the appellants' did not seek to recover lost profits, instead focusing on disgorgement, business destruction damages, and out-of-pocket damages. Accordingly, we rejected this argument as well.

On remand, the trial court confirmed it was awarding disgorgement damages but then entered the same award we had reversed as "grossly inadequate." This appears to have happened because the appellees convinced the trial court that we had not actually found the award to be inadequate, we had simply found it to be inadequately explained. And as was the case with the out-of-pocket award, the appellees apparently convinced the trial court it could explain its award by adopting the arguments the appellees had made and we had rejected in Bailey I.

In explaining the award on remand, the trial court's overarching focus is on why it believed Spinal was not successful, which as we explain below, is not part of the equation for determining the degree to which a wrongdoer's profits are attributable to its wrongful conduct. First, the trial court points to the appellants' "lack of business skills" and states that because of their lack of skill and poor business decisions they "should not be awarded disgorgement damages beyond the amounts in the final judgment." It also states it is rejecting the appellants' demand for disgorgement damages equal to all the profits earned by LSI because there is no causal relationship between the appellees' tortious conduct and all the profits. The court elaborates, stating that the appellees succeeded because of a "unique combination of individual, skilled medical doctors; highly effective and inventive executives, managers and administrators; creative marketing and advertising programs; and the availability and use of proper capital" and that even though Spinal "followed the same business model, it was not able to succeed."

The trial court's focus on the appellants' supposed lack of business skills as a basis to limit disgorgement shows a complete misapprehension of the principles applicable to disgorgement. Disgorgement is a remedy designed to deter wrongdoers by making it unprofitable to engage in the wrongful behavior. See Duty Free World, Inc. v. Miami Perfume Junction, Inc., 253 So.3d 689, 698 (Fla. 3d DCA 2018) (" 'Disgorgement is an equitable remedy intended to prevent unjust enrichment.' " (quoting S.E.C. v. Monterosso, 756 F. 3d 1326, 1337 (11th Cir. 2014) ) ); Restatement (Third) of Restitution and Unjust Enrichment § 1 (Am. Law Inst. 2011) ("A person who is unjustly enriched at the expense of another is subject to liability in restitution."); Restatement (Third) of Restitution and Unjust Enrichment § 3 ("A person is not permitted to profit by his own wrong."). The point of disgorgement is to deter wrongdoers by stripping them of the gains from their conduct:

Restitution requires full disgorgement of profit by a conscious wrongdoer, not just because of the moral judgment implicit in the rule of this section, but because any lesser liability would provide an inadequate incentive to lawful behavior. If A anticipates (accurately) that unauthorized interference with B's entitlement may yield profits exceeding any damages B could prove, A has a dangerous incentive to take without asking-since the nonconsensual transaction promises to be more profitable than the forgone negotiation with B. The objective of that part of the law of restitution summarized by the rule of § 3 is to frustrate any such calculation.

Id. § 3 cmt. c; see also § 51 cmt. e ("The object of the disgorgement remedy-to eliminate the possibility of profit from conscious wrongdoing-is one of the cornerstones of the law of restitution and unjust enrichment.").

This case is a classic example of what this comment from the Restatement describes. As we detailed in Bailey I, when the appellants did not accept the appellees' offer to invest in Spinal, the appellees told them "you're going to accept this offer or we're going to take your doctors and we're going to take your company. And we're going to go up the street and we're going to do it ourselves." 196 So.3d at 380. When threatened with litigation, the appellees said they were not concerned because the business would make ten times whatever damages they might have to pay in a lawsuit. See id. at 380-81.

Had the appellants been limited to recovering under a lost profits theory, that prediction would unquestionably be accurate. However, the measure of damages for disgorgement is not the profits the appellants might have made absent the wrongdoing-the measure of damages for conscious wrongdoing is the appellees' "net profit attributable to the underlying wrong." Restatement (Third) of Restitution and Unjust Enrichment § 51(4) ; see also Duty Free, 253 So.3d at 698 ("The equitable remedy of disgorgement is measured by the defendant's ill-gotten profits or gains rather than the plaintiff's losses."). "When the defendant has acted in conscious disregard of the claimant's rights, the whole of the resulting gain is treated as unjust enrichment, even though the defendant's gain may exceed" the claimant's loss. Restatement (Third) of Restitution and Unjust Enrichment § 3 cmt. c. In fact, disgorgement may be awarded even if the claimant has not sustained any loss. Restatement (Third) of Restitution and Unjust Enrichment § 3, reporter's note a. ("[I]t is clear not only that there can be restitution of wrongful gain exceeding the plaintiff's loss, but that there can be restitution of wrongful gain in cases where the plaintiff has suffered an interference with protected interests but no measurable loss whatsoever."). The trial court's comments regarding the appellants' business acumen are misplaced in determining a disgorgement award.

To the extent the trial court's order can be read to rely on the limiting principles articulated in Pidcock, we specifically considered and rejected the applicability of those principles in Bailey I. See 196 So.3d at 378-79. Our rejection of this as a basis to limit the award of disgorgement was the law of the case, and the trial court was bound by our determination. See Specialty Rests. Corp. v. Elliott, 924 So.2d 834, 837 (Fla. 2d DCA 2005) ("[Q]uestions of law that have actually been decided on appeal must govern the case in the same court and in the trial court through all subsequent stages of the proceedings."). Moreover, the "business model" to which the court attributes the appellees' success is the one it stole from the appellants along with its doctors, key employees, and everything else. In other words, what the trial court said amounts to a finding that the appellees' success was in fact attributable to their wrongdoing.

Lastly, the trial court sets out the reasoning it used to arrive at the figure of $1,050,000. However, it relies on the "head start" formula the appellees unsuccessfully argued in support of the award in Bailey I. As explained above, we rejected that argument as inapposite. Further, the trial court took this "head start" concept and more or less turned it on its head. The trial court reasoned that Spinal's operations were interrupted for approximately six months; therefore, the appellants were only entitled to six months of LSI's profits. Again, the trial court misapprehends the nature of the disgorgement remedy by measuring the award based on what the appellants lost -six months of profits-not what the appellees gained. See Guyana Tel. & Tel. Co., Ltd. v. Melbourne Int'l Commc'ns, Ltd., 329 F.3d 1241, 1249 (11th Cir. 2003) (reversing where a jury was instructed to measure the plaintiff's right to restitution in terms of its loss rather than the benefit conferred on the defendants because "[r]estitution is a remedy that is often available to victims of a wrong. Restitution measures a plaintiff's recovery according to the defendant's, rather than the plaintiff's, rightful position").

Accordingly, we again reverse the awards for breach of fiduciary duty, conspiracy, and tortious interference and remand for the court to enter an award of disgorgement. Because the only testimony regarding the manner in which the disgorgement award should be measured came from the appellants' expert, the award should be calculated according to the formula he proposed. Specifically, the court should enter an award based on the total value of LSI in 2009 combined with the total of the distributions to the owners of LSI between 2005 and 2009. We also reverse the award for out-of-pocket damages and remand for entry of an award of $6,831,172.

Reversed and remanded for entry of a judgment in accordance with this opinion.

CASANUEVA and CRENSHAW, JJ., Concur.

      The appellees' argument to the trial court was not helpful in terms of understanding the award. Their approach to damages had been to simply argue that the appellants had not proved they suffered any damages as a result of the appellees' conduct. They did not challenge the appellants' out-of-pocket figure, nor did they offer any alternative theory upon which the trial court might have based its award of $300,000.

      While the parties have referred to the recovery the appellants sought as disgorgement of profits, it would be more accurate to describe it as disgorgement of the appellees' wrongful gain. See Restatement (Third) of Restitution and Unjust Enrichment § 3 (Am. Law. Inst. 2011). A conscious wrongdoer is liable for the "net profit attributable to the underlying wrong." Restatement (Third) of Restitution and Unjust Enrichment § 51(4). As used in section 51(4), "[p]rofit includes any form of use value, proceeds, or consequential gains." Restatement (Third) of Restitution and Unjust Enrichment § 51(5)(a). The appellees have not challenged, nor have we considered, the use of these particular elements to calculate "profit" for the purposes of disgorgement. Nor have they challenged the accuracy of the amounts testified to by the appellants' expert. At trial they offered no alternative method by which to calculate the amount of profits subject to disgorgement because it was their position that none of the profits LSI earned were subject to disgorgement.

      In Bailey I we discussed at length the trial court's findings regarding the appellees' wrongful conduct. 196 So.3d at 377-78. When we reference "wrongdoing" in this opinion we are referring to the conduct we detailed in Bailey I.

      It appears from the evidence in the record that the proper amount of the award at a minimum falls between $264,000,000 and $265,000,000.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Timothy S. JOHNSON, Appellant, v. Deborah JOHNSON, Appellee.
    Case No. 5D17-4093
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019 Rehearing Denied April 22, 2019
    Michael L. Lundy and Kim A. Hamill, of Older, Lundy & Alvarez, Tampa, for Appellant.
    Jeffrey P. Cario and Kimberly A. Scarano, of Jeffrey P. Cario, P.A., Brooksville, for Appellee.
   ORFINGER, J.

The former husband, Timothy S. Johnson, raises several arguments in this appeal of the trial court's final judgment dissolving his marriage to the former wife, Deborah Johnson. We conclude the trial court erred in (1) approving the purported stipulated parenting plan that gave the former husband nine overnights per month with the parties' minor child; (2) awarding retroactive child support without considering the former husband's mortgage and bankruptcy payments made during the dissolution's pendency; and (3) ordering the former husband to maintain health and dental insurance for the minor child, but failing to include those costs in the ongoing child support calculation. On all other issues, we affirm without further discussion.

The trial court adopted the parties' purported stipulated parenting plan. A stipulation is an agreement, admission, or concession made in a judicial proceeding. As the essence of a stipulation is an agreement between the parties, a "meeting of the minds" is essential. McGoey v. State, 736 So.2d 31, 34 (Fla. 3d DCA 1999). Here, after the former husband filed the dissolution of marriage petition, the parties stipulated to the entry of a temporary order, which, among other things, set forth a temporary timesharing schedule that gave the former husband between twelve and fourteen overnights per month with the minor child. Three years later, during the dissolution hearing, the parties indicated that timesharing was not at issue because they had stipulated to continue the timesharing schedule set forth in the temporary order. The former husband explained that they agreed "to follow the same parenting plan that has been put in place already" in the temporary order. On the other hand, while the former wife agreed that the former husband would "continue with the amount of time that he had pursuant to the temporary order," she indicated that they had "stipulated that that's nine days per month. That's what he has exercised."

We conclude that the trial court incorrectly determined that the former husband would have nine overnights based on the parties' purported stipulation. Clearly, the parties did not have a meeting of the minds as to the essential terms of the parenting plan. Thus, we reverse this portion of the final judgment. On remand, if the parties cannot agree on timesharing, the trial court must make this determination, taking evidence as necessary.

The trial court also erred in calculating the retroactive child support award. Section 61.30(2)(a)9., Florida Statutes (2014), defines gross income to include "[s]pousal support ... court ordered in the marriage before the court." See also § 61.30(2)(a)13., Fla. Stat. (2014) (defining gross income to include "[r]eimbursed expenses or in kind payments to the extent that they reduce living expenses"). The temporary order adopted the parties' joint stipulation that "as and for temporary spousal support, the Husband shall continue to pay the mortgage on the parties' marital home, as well as the Chapter 13 payment on the parties' bankruptcy." At the trial, the former husband testified that he made the payments, which the former wife confirmed. However, the child support guidelines worksheet, upon which the trial court relied, did not consider the mortgage and bankruptcy payments that the former husband made during the retroactive period. This was error. On remand, in determining the retroactive child support, the trial court shall consider the former husband's mortgage and bankruptcy payments during the retroactive period. See Julia v. Julia, 263 So.3d 795, 798 (Fla. 4th DCA 2019) (holding that trial court erred in awarding retroactive child support without considering former husband's mortgage payments during dissolution's pendency); Schafstall v. Schafstall, 211 So.3d 1108, 1111 (Fla. 3d DCA 2017) ("[T]he trial court was required to include in its calculation of the former wife's gross monthly income the value of the mortgage payments paid by the former husband as in kind contributions."); Jacob v. Jacob, 26 So.3d 11, 12 (Fla. 2d DCA 2009) ("Although the trial court found that the [h]usband was paying for the marital home mortgage, utilities, and upkeep, the child support guidelines worksheet demonstrates that the trial court failed to factor in those contributions in determining the award. Such is an abuse of discretion.").

Finally, the trial court erred in calculating the ongoing child support award. Section 61.13, Florida Statutes (2014), requires that every child support order "shall contain a provision for health insurance for the minor child when health insurance is reasonable in cost and accessible to the child" and that the trial court "shall apportion the cost of health insurance, and any noncovered medical, dental, and prescription medication expenses of the child, to both parties by adding the cost to the basic obligation determined pursuant to s. 61.30(6)." § 61.13(1)(b), (2)(b), Fla. Stat. (2014). The trial court may simply add this medical expense to the child support obligation or order the obligation to be paid separately on a percentage basis. § 61.30(8), Fla. Stat. (2014).

Here, the trial court ordered the former husband to provide dental and health insurance for the minor child. However, the final judgment failed to include those costs in the ongoing child support calculation. We reverse the child support award and remand for reconsideration of that issue. See § 61.30(8), Fla. Stat. (2014) ("Health insurance costs resulting from coverage ordered pursuant to s.61.13(1)(b) ... shall be added to the basic obligation ...."). The trial court may take further evidence as necessary to determine the costs of the insurance.

In sum, we reverse the timesharing schedule, retroactive child support, and ongoing child support determinations, and remand for further proceedings consistent with this opinion. On remand, the trial court shall also amend the final judgment to correct the misaligned formatting error on the second page of the equitable distribution schedule. As to the other issues raised in this appeal, we affirm.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

LAMBERT and GROSSHANS, JJ., concur.


author: Per Curiam.

text:
    Leroy HARRIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2743
    District Court of Appeal of Florida, Fourth District.
    April 3, 2019
    Antony P. Ryan, Director, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Jonathan P. Picard, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Nelfrard v. State , 34 So.3d 221 (Fla. 4th DCA 2010).

Warner, Gross and Forst, JJ. concur.


author: PER CURIAM.

text:
    Jacob A. REED, Appellant, v. Melissa Sexton REED, Appellee.
    Case No. 5D18-1120
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019 Rehearing Denied April 24, 2019
    Jacob A. Reed, Edgewater, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding that, in appellate proceedings, the trial court's decision carries a presumption of correctness and, thus, the appellant has the burden to bring forth an adequate record to demonstrate error); Mathieu v. Mathieu, 877 So.2d 740, 741 (Fla. 5th DCA 2004) (treating the challenge to adequate findings as unpreserved error unless previously brought to the trial court's attention in a motion for rehearing).

BERGER, LAMBERT, and GROSSHANS, JJ., concur.


author: BADALAMENTI, Judge.

text:
    Peter Thomas BYRA, DOC #948219, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1297
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Peter Byra pleaded no contest to felony battery and was sentenced to a thirty-six-month term of probation. He appeals the trial court's revocation order and the resulting sentence of three years' imprisonment. We write only to address a duplicative judgment entered by the trial court. After careful review, we remand with instructions for the trial court to vacate the March 12, 2018, duplicative judgment of guilt, which improperly adjudicated Byra guilty a second time for the underlying felony battery conviction. We affirm the revocation order and resulting sentence without comment.

"If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty...." § 948.06(2)(b), Fla. Stat. (2017) (emphasis added). Here, on April 6, 2016, the trial court entered a written judgment adjudicating Byra guilty of the underlying offense, felony battery. The probation office subsequently filed an affidavit of violation of probation, alleging that Byra violated particular terms of his probation. After a hearing, the trial court revoked Byra's probation and sentenced him to thirty-six months' incarceration.

Byra's sentence after revocation was memorialized in a written judgment and sentence rendered on March 12, 2018. The first page of this six-page order contains a duplicative judgment of guilt for the same underlying felony battery offense for which the court had previously adjudicated Byra guilty on April 6, 2016. This duplicative judgment of guilt for the underlying felony battery offense was unauthorized. See Butler v. State, 195 So.3d 1147, 1148 (Fla. 2d DCA 2016) ("Duplicative adjudications of guilt after revocation of probation or community control are superfluous, are unauthorized, and can cause undue confusion in future proceedings."). Thus, we remand with instructions for the trial court to vacate the March 12, 2018, unauthorized judgment of guilt for the underlying felony battery conviction because the trial court had already adjudicated him guilty of the underlying offense on April 6, 2016. See Schaufler v. State, 255 So.3d 929, 929 (Fla. 2d DCA 2018) ; West v. State, 232 So.3d 522, 523 (Fla. 2d DCA 2017). We affirm the revocation order and the corresponding sentence.

Affirmed; remanded with instructions.

KHOUZAM and BLACK, JJ., Concur.


text:
    Rufus J. YOUNG, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3312
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 9, 2019
    Rufus J. Young, Daytona Beach, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Perkins , 977 So.2d 643 (Fla. 5th DCA 2008).

EDWARDS, GROSSHANS and SASSO, JJ., concur.


author: VILLANTI, Judge.

text:
    Shannon WRIGHT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1164
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Shannon Wright's sole argument on appeal is that his double jeopardy rights were violated when he was convicted of both the unlawful use of a two-way communications device under section 934.215, Florida Statutes (2017), and using a computer to seduce, solicit, lure, or entice a child under section 847.0135(3)(a), Florida Statutes (2017), and that this violation constituted fundamental error. Because the legal argument is correct, we reverse Wright's conviction for the unlawful use of a two-way communications device and remand for the trial court to enter an amended judgment and resentence Wright accordingly.

The underlying charges occurred after Wright, a previously designated sex offender, sent a lewd text message to his minor stepdaughter. Thereafter, he was charged with unlawful use of a two-way communications device and use of a computer to solicit a child. He was also charged with two counts of failure to register in another case.

At a plea hearing, the State informed the court that it would be dropping one of the failure to register charges. The following exchange then occurred:

THE COURT: Okay. And is-now this is not going to be pursuant to a plea agreement or is it?
DEFENSE: No.
STATE: No, Sir.
DEFENSE: No, it is not.
THE COURT: It's just going to be an open plea?
DEFENSE: Correct.
THE COURT: But, the State is going to have to file an amended information, I guess.
STATE: We're just going to orally nolle prose [sic] the case, Judge. One of the cases-we can do that as soon as he-as soon as we agree to the uh-to plea.
THE COURT: Okay. And the bot-and-and-of course the bottom of the guidelines is what?
STATE: It will be 55.95 months.
THE COURT: Do you understand that's the bottom of the guidelines? What's his maximum exposure? Even with the dropping of the cases.
STATE: Oh-to 20 years.
THE COURT: 20 years. Do you understand that?
THE DEFENDANT: Yes, Sir.
THE COURT: That's what you want to do?
THE DEFENDANT: Yes, Sir.

Wright entered a no contest plea to all charges and the trial court sentenced him to consecutive five-year prison terms for the convictions for unlawful use of a two-way communications device and using a computer to solicit a child, as well as a consecutive five-year term of sex offender probation for one failure to register conviction. The State subsequently nolle prossed the remaining failure to register charge.

We review a double jeopardy violation based on undisputed facts under a de novo standard. See Latos v. State, 39 So.3d 511, 513 (Fla. 4th DCA 2010) (quoting Finkley v. State, 16 So.3d 329, 329 (Fla. 4th DCA 2009) ). "A double jeopardy violation can be raised for the first time on appeal because it constitutes fundamental error." Holubek v. State, 173 So.3d 1114, 1116 (Fla. 5th DCA 2015) (citing Gross v. State, 138 So.3d 590, 591 (Fla. 5th DCA 2014) ).

Typically, the entry of a guilty plea "precludes an attack premised on a violation of double jeopardy." Id. (citing United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) ).

However, the Florida Supreme Court explained that there is an exception to the general rule when a defendant can demonstrate: "(a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation." Id. (quoting Novaton v. State, 634 So.2d 607, 609 (Fla. 1994) ). All three prongs must be present and apparent on the face of the record for the exception to apply.

"A general plea is one where no agreement exists as to the sentence the defendant will receive; '[a]n agreement to a specific sentence or a specific sentencing benefit is a key element distinguishing a bargained plea agreement from a general one.' " Latos, 39 So.3d at 513 (alteration in original) (quoting Williamson v. State, 859 So.2d 553, 554 (Fla. 1st DCA 2003) ). In Latos, for example, the State argued that although the defendant's plea might technically be considered an open plea, it was actually a bargained-for agreement because the plea was based on "off-the-record" negotiations for substantial assistance. Id. at 513-14. The Fourth District Court of Appeal disagreed, noting that it was clear from the record that Latos' plea was an open plea since the trial judge confirmed Latos understood there was "no specific agreed upon sentence." Id. at 514. See also Marsh v. State, 253 So.3d 674, 676 (Fla. 2d DCA 2018) (noting that the defendant did not waive his double jeopardy challenge by entering a no contest, open plea because there was no plea bargain). It is thus well-settled that an open plea, without a specific agreement as to sentencing, does not amount to a plea bargain.

With regard to the first prong of Novaton, the State's only argument on appeal is the same argument that was made in Latos-that Wright's open plea was in fact a plea bargain because the State indicated it would nolle pros one of the failure to register charges after Wright entered his plea. The exchange during the plea colloquy, however, clearly demonstrates there was no specific agreement as to Wright's sentence. At the beginning of the exchange, the trial judge astutely asked if the plea was pursuant to a plea agreement, which both the State and the defense confirmed that it was not. The judge further asked Wright whether he understood that the maximum penalty he faced was twenty years in prison, which Wright confirmed. Because there was no specific plea agreement, the judge had complete discretion to sentence Wright anywhere between the minimum sentence on his Criminal Punishment Code scoresheet and the statutory maximum. The fact that the State ultimately decided to nolle pros a charge in a separate case after Wright entered his plea could not transform Wright's open plea into a plea bargain in this case.

Regarding the second prong of Novaton, it is apparent from the record that the two charges constituted a double jeopardy violation. "[W]hen the charged conduct arises out of the same criminal episode, a charge for unlawful use of a two-way communications device under section 934.215 is subsumed within a charge of solicitation under section 847.0135(3)...." Holubek, 173 So.3d at 1116 (citing Hamilton v. State, 163 So.3d 1277, 1279 (Fla. 1st DCA 2015) ; Mizner v. State, 154 So.3d 391, 399 (Fla. 2d DCA 2014) ). Because both offenses arose out of the same criminal episode, Wright's conviction for the unlawful use of a two-way communications device violates the prohibition against double jeopardy.

Finally, concerning the third prong of Novaton, "[w]here a defendant enters an open, unbargained-for plea to the court for multiple counts, such plea does not amount to a waiver of the right to appeal where there is no express waiver of the right to appeal a possible double jeopardy violation." Latos, 39 So.3d at 514-15 (citing Labovick v. State, 958 So.2d 1065, 1068 (Fla. 4th DCA 2007) ). Thus, Wright's nonspecific, general waiver of his right to appeal during the plea colloquy did not waive his right to appeal the double jeopardy violation.

Since the conviction for unlawful use of a two-way communications device was subsumed within the conviction for use of a computer to solicit a child, we reverse and remand for the trial court to vacate the conviction and sentence for unlawful use of a two-way communications device. Wright's remaining convictions are affirmed. Because the record does not indicate whether vacating this conviction will have a material effect on sentencing for the remaining convictions, on remand, the trial court should resentence Wright in accordance with a corrected scoresheet. See Holubek, 173 So.3d at 1117.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: ATKINSON, Judge.

text:
    James L. TATE, Jr., Appellant, v. Walter A. MCNEIL, Secretary, Department of Corrections, Appellee.
    Case No. 2D17-4266
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019
    James L. Tate, Jr., pro se.
    Ashley Moody, Attorney General, Tallahassee, and Erich Messenger, Assistant Attorney General, Tampa, for Appellee.
   ATKINSON, Judge.

James L. Tate, Jr., appeals the trial court's order dismissing his complaint for lack of prosecution. Because there was record activity to avoid dismissal under Florida Rule of Civil Procedure 1.420(e), we reverse and remand for further proceedings.

Tate is in the custody of the Florida Department of Corrections. In his complaint, Tate alleges that his constitutional rights were violated when he was transferred from the Hardee Correctional Institution to the Jefferson Correctional Institution as retaliation for filing grievance complaints.

From August 24, 2012, to May 12, 2017, there was no record activity in the case. On May 12, 2017, the trial court entered an order setting a hearing for lack of prosecution. In its order, the trial court indicated that the case would be dismissed unless Tate showed good cause why the case should remain pending at least five days before the hearing scheduled for August 2, 2017. On June 16, 2017, Tate filed an "Order to Grant Order to Show Cause Coversheet" and a "Motion for Evidentiary Hearing."

On July 12, 2017, the trial court entered an order denying Tate's motion for an evidentiary hearing, in which it stated the following: "Given the lack of record activity since August of 2012, it does not appear that the case is ripe for an evidentiary hearing." The trial court then referenced its order scheduling a hearing for lack of prosecution "for August 2, 2017 to ascertain the current status of this case." On September 22, 2017, the trial court dismissed the case without prejudice for lack of prosecution.

Florida Rule of Civil Procedure 1.420(e) governs the trial court's dismissal of a complaint for failure to prosecute:

In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within 10 months immediately preceding the service of such notice, and no record activity occurs within 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

(Emphasis added.) We review de novo "whether record activity has occurred within the meaning of rule 1.420(e) because 'it involves the construction of a procedural rule.' " Citibank, N.A. v. Konigsberg, 149 So.3d 1185, 1185-86 (Fla. 2d DCA 2014) (quoting Weston TC LLLP v. CNDP Mktg. Inc., 66 So.3d 370, 371-72 (Fla. 4th DCA 2011) ). "Record activity is defined as the 'filing of pleadings, order of court, or otherwise.' " Zuppardo v. Dunlap & Moran, P.A., 186 So.3d 1067, 1068 (Fla. 2d DCA 2016).

The test for determining whether record activity has occurred "during the ten-month period and during the sixty-day grace period is a bright-line rule 'under which any filing of record is sufficient to preclude dismissal.' " Konigsberg, 149 So.3d at 1186 (quoting Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 792 (Fla. 2011) ). Although former interpretations of rule 1.420(e) required record activity that "affirmatively" moved the case forward, a plain reading of the rule does not distinguish between "passive or active" record activity. Wilson v. Salamon, 923 So.2d 363, 368 (Fla. 2005). As such, the trial court need only make "a cursory review of the record because 'there is either activity on the face of the record or there is not.' " Konigsberg, 149 So.3d at 1186 (quoting Wilson, 923 So.2d at 368 ).

Here, prior to the trial court's order setting a hearing for lack of prosecution, Tate had not been previously notified that no record activity had occurred for a period of ten months prior to May 12, 2017. As such, that order served as the notice of his failure to prosecute required by the rule. This gave Tate a sixty-day grace period from service of that notice to make a filing of record to preclude dismissal.

While the rule does provide for the showing of good cause in writing why the action should remain pending-as the trial court ordered here-that only applies if there has been no record activity during the sixty days following notice of failure to prosecute. The opportunity to show cause serves as an exception to the requirement that the action be dismissed after such time period elapses. Here, because Tate created record activity within sixty days of the notice of his failure to prosecute, he was not required to show good cause five days before the hearing on August 2, 2017.

Because Tate's June 16, 2017, filings constituted record activity within the sixty-day grace period, the trial court erred by dismissing the case for failure to prosecute. Accordingly, we reverse the order dismissing Tate's complaint for failure to prosecute and remand for further proceedings.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.


text:
    AUSTIN COMMERCIAL, L.P., a Delaware limited partnership, Appellant, v. L.M.C.C. SPECIALTY CONTRACTORS, INC., d/b/a Mims Construction Company, a Florida corporation, Appellee.
    Case No. 2D18-1051
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019
    Aaron H. Reichelson, Marie Tomassi, and Patrick J. Poff of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., Tampa, for Appellant.
    Douglas A. Wallace and Joseph T. Eagleton of Brannock & Humphries, Tampa; and Derin Parks of Grimes Goebel Grimes Hawkins Gladfelter & Galvano, P.L., Bradenton, for Appellee.
   BADALAMENTI, Judge.

Austin Commercial, L.P. (Austin) appeals from a nonfinal order denying its motion to compel arbitration of its dispute with L.M.C.C. Specialty Contractors, Inc., d/b/a Mims Construction Company (Mims). We hold that Austin and Mims entered into a valid contract mandating arbitration of the underlying lawsuit initiated by Mims. We thus reverse the trial court's order denying Austin's motion to compel arbitration and remand for entry of an order granting Austin's motion to compel arbitration.

The Hillsborough County Aviation Authority (HCAA) awarded a contract to Austin for construction of a consolidated rental car facility and automated people mover at the Tampa International Airport. The project proceeded in two parts: the design phase (Part 1) and the construction phase (Part 2). Mims served as one of Austin's subcontractors on both phases of the project. For each of the two phases, Austin entered into a contract with the HCAA (the prime contracts). The prime contracts state that any action initiated by either party, HCAA or Austin, would be resolved in state court as follows: "Any action initiated by either party associated with a claim or dispute, and the exclusive venue and jurisdiction for any such action, will be brought in the appropriate State Court in and for Hillsborough County, Florida."

After entering into the prime contract for Part 1 with HCAA, Austin executed a "Consultant Agreement" with Mims that served as Austin and Mims's subcontract for the design phase. Section 19.1 of the subcontract between Austin and Mims contained the following provision:

Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be subject to the dispute resolution procedures, if any, set out in the Prime Contract between Austin and the [HCAA]. Should the Prime Contract contain no specific requirement for the resolution of disputes or should the [HCAA] not be involved in the dispute, any such controversy or claim shall be resolved by arbitration pursuant to the Construction Industry Rules of the American Arbitration Association then prevailing, and judgment upon the award by the Arbitrator(s) shall be entered in any Court having jurisdiction thereof.

Austin subsequently executed the "Part 2 Contract" with HCAA governing the construction phase of the project. Thereafter, and consistent with a Memorandum of Understanding between Austin and Mims attached to the Consultant Agreement, Austin executed a Work Order with Mims that extended Mims's work on the airport project to the second phase of the project. The Work Order incorporated the terms and conditions of the Consultant Agreement (including the dispute resolution provision) and served as Austin and Mims's subcontract for the construction phase.

After Mims completed its construction work for Part 2 of the project, Mims filed an amended complaint in Hillsborough County state court for, among other things, breach of contract against Austin under quasi-contractual and equitable theories. It further requested a declaration that it was not required to arbitrate its claims against Austin. HCAA is not a party to the lawsuit. The gravamen of Mims's lawsuit is that Austin did not pay Mims for the services it had provided after it received full payment for the project from HCAA. Mims further alleged that Austin did not employ Mims for all services for the project it had promised to Mims. Austin subsequently filed an amended motion to stay and compel arbitration of the claims.

During the hearing on the motion, Austin argued that Mims agreed to arbitrate the dispute because "the dispute resolution provision [in the Consultant Agreement] says if the owner is not involved in the dispute, you don't go to their dispute resolution procedure, but instead do arbitration." The trial court, however, construed the arbitration clause contained in the Consultant Agreement-and incorporated by reference into the Work Order for Part 2-to deny Austin's motion to compel arbitration. The trial court reasoned that because the prime contract between HCAA and Austin contained a dispute resolution provision providing for litigation of disputes, Austin and Mims were required to litigate their dispute. Austin appeals, arguing that the trial court erred in its interpretation of the Consultant Agreement's dispute resolution provision.

Because the trial court's order denying the motion to compel arbitration is based entirely on its construction of the contract documents, our standard of review is de novo. SCG Harbourwood, LLC v. Hanyan, 93 So.3d 1197, 1199 (Fla. 2d DCA 2012). In ruling on a motion to compel arbitration of a given dispute, courts must consider three elements: "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999). Here, the only element in dispute is whether the parties executed a valid written agreement to arbitrate their claims.

As an initial matter, we reject Mims's argument that it did not enter into a subcontract with Austin for Part 2 of the project. The trial court necessarily determined that there was a valid contract for Part 2 of the project. That is, the trial court relied on language incorporated into the Work Order, the agreement between Austin and Mims for Part 2 of the project, in denying Austin's motion despite Mims's argument at the hearing that the parties did not enter into a contract for Part 2. If the parties never entered into a valid contract, there would have been no need for the trial court to interpret and apply the arbitration clause. Thus, necessary and implicit to its ruling that the agreement between Austin and Mims did not compel arbitration is a finding that the parties did indeed execute a valid subcontract for Part 2.

"It is a generally accepted rule of contract law that, where a writing expressly refers to and sufficiently describes another document, that other document, or so much of it as is referred to, is to be interpreted as part of the writing." OBS Co. v. Pace Const. Corp., 558 So.2d 404, 406 (Fla. 1990). With this in mind, we hold the existence of a subcontract between Austin and Mims for Part 2 is supported by the language of and attachments to the Work Order. The Work Order, which incorporated Part 1's Consultant Agreement, contained the phrase "MIMS PART 2" on the top of every page. The Work Order is signed by representatives of both Austin and Mims. Under a section labeled "SCOPE OF WORK," Austin and Mims agreed that "[t]he Work covered by this Work Order will be performed under the terms and conditions of the Part 1 Consultant Agreement." (Emphasis added.) The parties further agreed that "[t]he Scope of Sublet Work shall be also defined by the Part 2 Contract Documents as contained in the Exhibits listed below and attached hereto by reference, the Austin Part 2 Contract with attachments and Part 2 Supplemental Agreement with attachments as if attached hereto." Exhibit A of the Work Order, consistent with the Memorandum of Understanding appended to the Consultant Agreement, expanded the scope of Mims's services by adding, among other positions, an Assistant Superintendent and Project Engineer to facilitate Part 2 of the project.

Accordingly, an examination of the Work Order and its included attachments confirms that the Work Order served as the subcontract for Mims's work on the construction phase of the project. See OBS Co., 558 So.2d at 406. Because the Work Order served as the subcontract between Austin and Mims for the construction phase of the project, their dispute arising from Mims's work on that phase is governed by the Consultant Agreement's dispute resolution provision incorporated into the Work Order. See Henderson Inv. Corp. v. Int'l Fid. Ins. Co., 575 So.2d 770, 771-72 (Fla. 5th DCA 1991) (holding that surety could compel arbitration where it had incorporated an arbitration clause from the construction contract into its performance bond).

Concluding that Austin and Mims executed a valid subcontract for the construction phase of the project, we next address whether they agreed to arbitrate their claims. The Consultant Agreement's dispute resolution provision incorporated into the contract provides in relevant part:

Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be subject to the dispute resolution procedures, if any, set out in the Prime Contract between Austin and the [HCAA]. Should the Prime Contract contain no specific requirement for the resolution of disputes or should the [HCAA] not be involved in the dispute, any such controversy or claim shall be resolved by arbitration ....

Austin argues that the provision provides for two exceptions to the applicability of the prime contract's dispute resolution provision but the trial court's reasoning only addressed one of the exceptions; namely, that the prime contract "contain[ed] no specific requirement for the resolution of disputes." Mims does not appear to defend or advance the trial court's ruling that because the prime contract between HCAA and Austin contained a dispute resolution provision, Mims was not compelled to arbitrate its claims against Austin. Instead, Mims advances a tipsy-coachman argument that the Consultant Agreement's dispute resolution provision is inapplicable because HCAA is "involved" in its dispute with Austin. We disagree with Mims's contention.

We are mindful that Florida public policy favors arbitration of disputes and thus "courts should resolve doubts concerning the scope of such agreements in favor of arbitration." Stinson-Head, Inc. v. City of Sanibel, 661 So.2d 119, 120 (Fla. 2d DCA 1995). That said, the "determination of whether an arbitration clause requires arbitration of a particular dispute necessarily 'rests on the intent of the parties.' " MDC 6, LLC v. NRG Inv. Partners, LLC, 93 So.3d 1145, 1147 (Fla. 2d DCA 2012) (quoting Seifert, 750 So.2d at 636 ). To ascertain the parties' intent, we examine the plain language of the contract. Id.; see also Bioscience W., Inc. v. Gulfstream Prop. & Cas. Ins. Co., 185 So.3d 638, 640 (Fla. 2d DCA 2016) (explaining that we are bound by the plain meaning of a contract's text when interpreting a contract). We construe a contract, "including the arbitration and the limitation provisions, in a way that gives a reasonable meaning to all the terms, rather than in a way that will render part of the contract of no effect." Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 263 (Fla. 2d DCA 2004).

Turning to the trial court's interpretation of the Consultant Agreement's arbitration provision, the trial court found that the mere existence of a dispute resolution provision within the prime contract rendered the Consultant Agreement's arbitration mandate inapplicable. The trial court's interpretation of the Consultant Agreement's dispute resolution provision does not give a reasonable meaning to its incorporated terms from the prime contract; namely, the applicability of the prime contract's dispute resolution provision. The unambiguous language of the Consultant Agreement's dispute resolution provision provides for two exceptions to the applicability of the dispute resolution procedures set out in the prime contract: (1) the prime contract "contain[s] no specific requirement for the resolution of disputes," or (2) the HCAA is not "involved in the dispute." If either of these two circumstances exists, the dispute "shall be resolved by arbitration." As will be explained, the trial court's finding that the mere existence of a dispute resolution provision within the prime contract, which does not have bearing on the lawsuit initiated by Mims here, requires litigation of the dispute between Mims and Austin belies the plain and ordinary language of the prime contract's dispute resolution provision.

The prime contract, governing Austin and HCAA, requires litigation of disputes that are "initiated by either party." (Emphasis added.) Thus, if Austin or HCAA initiates"[a]ny action," "the exclusive venue" of that action is "the appropriate State Court in and for Hillsborough County, Florida." Reading the dispute resolution provision of the prime contract together with the dispute resolution provision of the Consultant Agreement, as we must, leads us to the conclusion that the trial court's finding that the mere existence of a dispute resolution provision within the prime contract mandated litigation of Mims's and Austin's dispute was erroneous. This is because the prime contract's dispute resolution provision is wholly inapplicable to Mims's and Austin's dispute, as neither HCAA nor Austin initiated the lawsuit at issue here. To hold otherwise effectively contravenes the plain and ordinary language of the prime contract's dispute resolution provision, which is only applicable to lawsuits initiated by HCAA or Austin. Cf. Bioscience W., 185 So.3d at 640 (instructing courts to construe contracts as a whole to give meaning to every provision). Because Mims initiated the underlying action against Austin, the dispute resolution provision found in the prime contract is inapplicable to the dispute between Mims and Austin.

Turning to the second exception to mandatory arbitration set forth in the Consultant Agreement, we must decide whether HCAA is "involved" in the lawsuit Mims initiated against Austin. Mims argues that it qualifies for this exception to the arbitration mandate because HCAA is "involved" in its dispute with Austin. Mims asserts that even though it did not name HCAA as a party to the lawsuit, HCAA is nonetheless involved in the dispute because of HCAA's status as a third-party beneficiary of the subcontract. We disagree.

First, such a broad interpretation of the term "involved" would render the exception superfluous because HCAA, according to the prime contracts, is a third-party beneficiary to "all agreements, subcontracts and purchase orders of [Austin]." (Emphasis added.) See Universal Prop. & Cas. Ins. Co. v. Johnson, 114 So.3d 1031, 1036 (Fla. 1st DCA 2013) ("A contract is not to be read so as to make one section superfluous, and so '[a]ll the various provisions of a contract must be so construed ... as to give effect to each.' " (alteration in original) (quoting Univ. of Miami v. Frank, 920 So.2d 81, 87 (Fla. 3d DCA 2006) ) ).

Next, Mims's proposed, broad interpretation of "involved" invites an interpretation contrary to its plain and ordinary meaning. "Involve" is defined, in pertinent part, as "[t]o relate to or affect" or "[t]o show to be a participant; connect or implicate." American Heritage Dictionary, 923 (5th ed. 2018); see also Bioscience, 185 So.3d at 640 (explaining that we may consult dictionaries to discern the plain meaning of contractual language); State v. Elder, 975 So.2d 481, 483-84 (Fla. 2d DCA 2007) (" 'Involve' is defined, in pertinent part, as 'to draw in as a participant,' to 'implicate,' 'to relate closely,' to 'connect,' 'to have an effect on,' to 'concern directly,' to 'affect.' " (quoting Webster's Third New International Dictionary 1191 (1986) ) ).

Applying these definitions, HCAA is clearly not "drawn in as a participant" to the lawsuit because it is not a party to the lawsuit and, as such, need not participate in it. Indeed, the allegations of Mims's operative complaint show that HCAA has paid Austin "in full for all work performed on the TIA Project." Thus, whether Mims is paid by Austin does not affect HCAA. The financial dispute Mims has initiated against Austin is solely between those two parties and does not "involve" HCAA.

Furthermore, one would not ordinarily understand an entity to be "involved" in a dispute where that entity is neither drawn into the dispute nor affected by the dispute. Only an impermissible, strained textual interpretation of "involved in the dispute" would yield a conclusion that HCAA would be affected by a financial dispute between Austin and Mims. Cf. Bioscience, 185 So.3d at 641 (explaining that the trial court's interpretation of a contractual provision was contrary to the contractual language's plain meaning). Accordingly, supported by the allegations in Mims's complaint, it is difficult to discern that Mims's dispute with Austin affects or implicates HCAA. See Elder, 975 So.2d at 483-84. Because HCAA is not "involved" in Mims's lawsuit initiated against Austin, it does not meet the second exception to the Consultant Agreement's mandatory arbitration provision. Thus, reading all contractual provisions as a whole, Mims's dispute with Austin "shall be resolved by arbitration," as provided by the dispute resolution provision found in the Consultant Agreement and incorporated into Austin and Mims's Work Order.

Accordingly, we reverse the trial court's order denying Austin's motion to compel arbitration and remand for entry of an order granting its motion and referring the dispute to arbitration. See Orkin, 872 So.2d at 266.

Reversed; remanded with instructions.

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

      The prime contracts between Austin and the HCAA provide that "[HCAA] will be identified as an intended third party beneficiary of all agreements, subcontracts and purchase orders of [Austin] related to this Agreement."

      This interpretation was also favored by the trial court. In its discussion with the parties during the hearing, the court commented that "the owner's not involved [in the dispute]."


text:
    JaJuan JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-0673
    District Court of Appeal of Florida, First District.
    April 11, 2019
    JaJuan Johnson, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of February 25, 2019, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. The dismissal is without prejudice to Appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

Lewis, Rowe, and Makar, JJ., concur.


text:
    Brad MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-0588
    District Court of Appeal of Florida, First District.
    April 11, 2019
    Brad Miller, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of February 20, 2019, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. The dismissal is without prejudice to Appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

Lewis, Rowe, and Makar, JJ., concur.


text:
    Brenda M. BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-653
    District Court of Appeal of Florida, First District.
    April 11, 2019
    Michael J. Titus, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this Anders appeal, we affirm Brenda M. Bush's convictions and sentences. But we remand with instructions that the trial court enter a written order finding Bush competent to proceed, nunc pro tunc to the date the trial court made its oral determination of competency. See Fla. R. Crim. P. 3.212(b) ("If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed."); Mullens v. State , 197 So.3d 16, 37-38 (Fla. 2016).

AFFIRMED and REMANDED with instructions.

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

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)


text:
    Keita Jermaine GAYMON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3335
    District Court of Appeal of Florida, First District.
    April 11, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Keita Gaymon admitted to violating his probation, and his corrected scoresheet reflected a total of twenty sentencing points. Because he scored less than twenty-two sentencing points, Gaymon argues that pursuant to section 775.082(10), Florida Statutes (2015), the trial court was required to sentence him to a nonstate prison sanction. However, pursuant to section 775.082(10), the trial court made written findings that Gaymon could present a danger to the public if subject only to a nonstate prison sanction and sentenced Gaymon to five years' imprisonment. Gaymon argues that the enhancement of his sentence under section 775.082(10) is unconstitutional because a jury, not a judge, is required to make the factual findings that were used to increase his punishment beyond the statutory maximum of a nonstate prison sanction.

The outcome of this case is controlled by Brown v. State , 260 So.3d 147 (Fla. 2018). There, the supreme court held that section 775.082(10) was unconstitutional as it applied to Brown because it authorized the trial court to make factual findings unrelated to her prior convictions that increased her maximum sentence from one year in county jail to three years in prison contrary to the holdings in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Brown , 260 So.3d at 149-51. Here, the record demonstrates that the trial court relied on more than Gaymon's prior convictions to support its decision to impose a state prison sentence, including a finding that the short time between the commencement of Gaymon's probation and his violation demonstrated an apparent lack of self-control and that Gaymon's choices and behaviors could not be explained by a drug or substance addiction. Based on these findings, the trial court determined that sentencing Gaymon to a nonstate prison sanction posed a danger to the public and therefore increased Gaymon's maximum sentence from one year in county jail to five years in prison.

Because the court's order reflects that the court relied on more than just Gaymon's prior convictions when it imposed his sentence, we reverse Gaymon's sentence as required by Brown .

As for the instructions on remand, the supreme court in Brown declined to reach the parties' arguments regarding the appropriate remedy because Brown had already served her sentence by the time the court reviewed her case. Id. at 149-50. Although the supreme court noted that the proper procedure on remand would be answered in a future case, it specifically recognized as options that an appellate court could either instruct the lower court to impose a nonstate prison sanction or afford the State an opportunity to present the dangerousness issue to the jury. Id. at n.1. This Court has already determined that on remand, if the defendant remains incarcerated, the proper remedy is to remand for resentencing under the prior version of section 775.082(10). Booker v. State , 244 So.3d 1151, 1169 (Fla. 1st DCA 2018). In Booker , this Court certified the following question of great public importance:

WHETHER THE SECOND SENTENCE IN SUBSECTION (10) OF SECTION 775.082, FLORIDA STATUTES , WHICH AUTHORIZES A TRIAL JUDGE TO MAKE FACTUAL FINDINGS INDEPENDENT OF A JURY AS TO AN OFFENDER'S POTENTIAL "DANGER TO THE PUBLIC" AND TO IMPOSE A STATE PRISON SENTENCE THAT EXCEEDS THE MAXIMUM NONSTATE SANCTION OF UP TO ONE YEAR IN COUNTY JAIL VIOLATES THE SIXTH AMENDMENT AS APPLIED TO BOOKER ? IF THE ERROR IS NOT HARMLESS , WHAT REMEDY IS APPROPRIATE ?

Id. The question remains pending before the supreme court. Booker v. State , 244 So.3d 1151 (Fla. 1st DCA 2018), review pending SC18-752. Until the supreme court addresses the question, we are compelled by Booker to remand Gaymon's case with instructions that the sentencing court resentence him under the prior version of section 775.082(10). Id.

REVERSED and REMANDED .

Wolf, Lewis, and Rowe, JJ., concur.


author: Jay, J.

text:
    Erna MCFADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1473
    District Court of Appeal of Florida, First District.
    April 11, 2019
    Erna McFadden, pro se, Appellant.
    Ashley Moody, Attorney General, and Bryan Jordan, Senior Assistant Attorney General, Tallahassee, for Appellee.
   Jay, J.

The Appellant, Erna McFadden, appeals from an order denying her postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

I.

The Appellant was charged with armed robbery (count I) and two counts of aggravated battery (counts II and III). She pleaded guilty to counts II and III, and a jury trial was held on count I.

At trial, the evidence showed that Dustin McDonald, a CVS employee, saw the Appellant and another woman in the store hiding merchandise in their purses. He alerted his coworker, Dean Campbell, and they followed the two women to the front of the store. Mr. Campbell was on the phone, trying to find the non-emergency number for the police department.

Near the exit, Mr. McDonald asked to search the Appellant's purse, which prompted her companion to flee. Mr. Campbell struggled with the companion briefly before she escaped. While Mr. McDonald was watching the other woman run away, the Appellant slashed him across his face, chest, and hand with a boxcutter. Concerned for the safety of Mr. McDonald and the other customers, Mr. Campbell struggled with the Appellant. She then slashed Mr. Campbell on the face. He disengaged from the Appellant to assist Mr. McDonald. While he was focused on Mr. McDonald's injuries, the Appellant ran past Mr. Campbell and slashed him on his left arm. He saw her get into a gold Ford Taurus with no license plate. Mr. Campbell and Mr. McDonald both testified that they never threatened either woman.

The police apprehended the Appellant and her companion two minutes down the road and less than a mile from the scene. Both Mr. Campbell and Mr. McDonald identified them as the individuals involved in the offenses. When the gold Taurus was searched, police found a brown purse in the back seat and a blue and white purse in the front passenger seat. The blue and white purse contained items that were stolen from the CVS. The brown purse contained a boxcutter. A fragment of the boxcutter's blade was discovered outside the CVS. Surveillance footage was introduced at trial.

Based on this evidence, the Appellant was found guilty of count I. She was sentenced to life in prison on count I and fifteen years in prison on counts II and III. Her convictions and sentences were affirmed on appeal. See McFadden v. State , 129 So.3d 1072 (Fla. 1st DCA 2014) (Table).

The Appellant subsequently filed the instant rule 3.850 motion, raising five ineffective assistance of counsel claims. Upon being granted leave to amend grounds one, two, four, and five, the Appellant filed an amended motion. The trial court summarily denied the amended motion on the merits. This timely appeal followed.

II.

In the Appellant's first and second grounds, she argued that her attorney was ineffective for failing to object to the reading of the principal instruction. She alleged that neither the information nor the evidence showed that she acted in concert with anyone to commit a robbery. She asserted that she was simply shopping with the codefendant until Mr. McDonald approached and asked to search their purses. She claimed that she had been unaware that the codefendant was stealing until she ran away. The Appellant alleged that she only struck the clerk because he struck her first, not to aid in the codefendant's escape. She argued that if counsel had objected, she would have been acquitted of robbery or convicted of a lesser offense.

To prove ineffective assistance, an appellant must allege (1) the specific acts or omissions of counsel that fell below a standard of reasonableness under prevailing professional norms and (2) that the appellant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different. Strickland v. Washington , 466 U.S. 668, 690-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, "[c]ounsel cannot be deemed ineffective for failing to make a meritless objection." Hitchcock v. State , 991 So.2d 337, 361 (Fla. 2008).

"The principals instruction may be given if the evidence adduced at trial supports such an instruction." McGriff v. State , 12 So.3d 894, 894 (Fla. 1st DCA 2009). Under the law applicable to principals,

a defendant will be treated as if he did all the acts performed by the others involved in the perpetration of a crime if (1) the defendant "ha[d] a conscious intent that the crime be done" and (2) the defendant "d[id] some act or sa[id] some word which was intended to and d[id] incite, cause, encourage, assist, or advise another person to actually commit the crime."

Charles v. State , 945 So.2d 579, 581-82 (Fla. 4th DCA 2006) (quoting R.J.K. v. State , 928 So.2d 499, 503 (Fla. 2d DCA 2006) ).

Here, the evidence supported the jury instruction. Mr. McDonald testified that he saw both women stealing items from the store. When confronted about the theft, the Appellant attacked Mr. McDonald. Both Mr. McDonald and Mr. Campbell testified that when the attack began, they were distracted by the codefendant and were not paying attention to the Appellant. It was only after the Appellant injured Mr. McDonald that Mr. Campbell struggled with her. Furthermore, the Appellant attacked Mr. Campbell again after he had disengaged from her to aid Mr. McDonald. This interaction was caught on video surveillance. Under these circumstances, grounds one and two were properly denied.

In the Appellant's third ground, she argued that (a) the state failed to prove a prima facie case, (b) her conviction was obtained through a coerced confession, (c) the prosecutor failed to disclose favorable evidence, (d) her attorney was ineffective for failing to object to improper prosecutorial comments, and (e) her attorney was ineffective for failing to argue the state's failure to prove premeditation. However, the Appellant failed to raise these arguments in her pro se initial brief. Therefore, appellate review of ground three has been waived. See Duest v. Dugger , 555 So.2d 849, 852 (Fla. 1990) ; Watson v. State , 975 So.2d 572, 573 (Fla. 1st DCA 2008).

In the Appellant's fourth ground, she argued that her attorney was ineffective for failing to call an expert witness to testify regarding her mental health issues. She alleged that Mr. McDonald grabbed her arm and threw her into a wall, prompting her to use the boxcutter to defend herself. She asserted that a mental health expert could have testified that she felt threatened under these circumstances due to her mental health issues. She claimed that this omission left the jury without a complete picture of her state of mind. She also argued that counsel failed to present mitigating evidence regarding her mental health issues.

The Appellant does not appear to be arguing that at the time of the offense, she was unable to appreciate the difference between right and wrong or understand the nature or quality of her act. Thus, she does not seem to suggest that an insanity defense was available. Rather, because this argument is premised upon demonstrating her state of mind and the need to defend herself, it appears to be a self-defense argument. Cf. Filomeno v. State , 930 So.2d 821, 822 (Fla. 5th DCA 2006) (holding that a psychologist's testimony concerning the "fight or flight" response was admissible as state-of-mind evidence to support a claim of self-defense).

As an initial matter, the Appellant's factual allegations in this ground are inconsistent with the evidence presented at trial. Mr. McDonald's and Mr. Campbell's testimony established that the Appellant injured Mr. McDonald with the boxcutter while he was distracted by her codefendant's flight. Mr. McDonald did not touch or strike the Appellant. Rather, it was Mr. Campbell who struggled with the Appellant and only after Mr. McDonald had been attacked. The Appellant subsequently attacked Mr. Campbell after the struggle was over, while he was assisting Mr. McDonald.

Furthermore, the Appellant pleaded guilty to the aggravated battery charges and only proceeded to trial on armed robbery. Her attorney relied on her guilty pleas to argue that while she committed the aggravated batteries and would be punished for them, she neither stole property nor intended to help her codefendant steal, and thus, she did not commit armed robbery. The Appellant does not explain how a self-defense theory would apply under these circumstances. Regardless, even if a self-defense theory would apply, this ground remains facially insufficient after an opportunity to amend, as the Appellant does not identify her mental illness or how it affected her perceptions. Therefore, this aspect of her claim was properly denied with prejudice. See Fla. R. Crim. P. 3.850(f)(3).

Insofar as the Appellant argued that counsel failed to present expert testimony regarding her mental health as mitigating evidence, the record reflects that counsel did present such testimony. Therefore, this aspect of ground four is conclusively refuted by the record.

In the Appellant's fifth ground, she argued that her attorney was ineffective for failing to make an adequate motion for judgment of acquittal. She alleged that her attorney should have argued that the state did not prove all the elements of robbery, as she did not take any property, use force in the course of a taking, or have the intent to deprive the victim of any property.

"In moving for a judgment of acquittal, a defendant 'admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.' " Beasley v. State , 774 So.2d 649, 657 (Fla. 2000) (quoting Lynch v. State , 293 So.2d 44, 45 (Fla. 1974) ). "A motion for judgment of acquittal should only be granted if there is no view of the evidence from which a jury could make a finding contrary to that of the moving party." Jeffries v. State , 797 So.2d 573, 580 (Fla. 2001) (citing Lynch , 293 So.2d at 45 ).

Here, any motion for judgment of acquittal arguing that the state did not prove the elements of robbery would have been denied. When viewed in the light most favorable to the state, the evidence introduced at trial shows that the Appellant and a companion stole items from CVS. When two clerks confronted them about the theft, the Appellant injured them both with a boxcutter to aid in her and her companion's escape. Under these circumstances, this ground was properly denied.

AFFIRMED .

B.L. Thomas, C.J., and Bilbrey, J., concur.


author: Ketchel, Terrance R., Associate Judge.

text:
    STATE of Florida, Appellant, v. Anthony SMITH, Appellee.
    No. 1D17-2911
    District Court of Appeal of Florida, First District.
    April 11, 2019
    Eddie D. Evans, Assistant State Attorney, Tallahassee; Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   Ketchel, Terrance R., Associate Judge.

The State appeals the postconviction court's grant of Smith's 3.850 motion. We reverse.

Facts

Smith was charged and convicted in the armed robbery of two victims while the victims waited in a Taco Bell drive-thru. During trial, Smith testified on his own behalf. After other questions, defense counsel asked Smith "Where were you that night, if you know?" The State objected. At sidebar, the State argued that defense counsel had not provided the proper notice of alibi. Defense counsel explained she expected Smith's answer to be he really did not know, but he would have normally been with his grandmother; she stated that she really did not expect Smith to offer an alibi. Defense counsel then offered to withdraw the question and to move to something else. She explained she was not exactly sure what answer Smith would give and "he might go on ... he has a tendency to talk a lot."

The jury convicted Smith of armed robbery and simple robbery. This Court per curiam affirmed his direct appeal, and he moved for post-conviction relief under rule 3.850. Relevant here, Smith argued that trial counsel was ineffective for withdrawing her alibi question because there was no requirement a defendant file a notice of intent if it is the defendant testifying to an alibi; and he also argued defense counsel was ineffective for failing to investigate and call his grandmother as a witness to support the alibi.

Defense counsel testified at the evidentiary hearing that Smith had told her about his grandmother, and that she had investigated but concluded that the alibi was not a good alibi. As to withdrawing her question, counsel explained her intent was to sneak the alibi idea in without focusing on it; she felt the alibi, in general, was weak. When the State objected, she felt it did not matter because she was worried Smith would continue to talk and say something that would hurt his case.

The postconviction court granted Smith's motion as to the claim defense counsel was ineffective for withdrawing the question after she asked it. The State now appeals.

Ineffective Assistance of Counsel

Ineffective assistance of counsel requires both deficiency and prejudice. Bettey v. State , 244 So.3d 364, 366 (Fla. 1st DCA 2018) (citing Strickland v. Washington , 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ); see Hurst v. State , 18 So.3d 975, 996 (Fla. 2009) (noting that failure of either prong precludes relief). We review de novo the postconviction court's legal conclusions regarding whether the facts it finds show both deficiency and prejudice. State v. Dickson , 89 So.3d 277, 279 (Fla. 1st DCA 2012).

Deficiency

Deficiency requires that counsel was not really functioning as "counsel" guaranteed by the Sixth Amendment; i.e., performance "outside the wide range of reasonable professional assistance." Betts v. State , 792 So.2d 589, 590 (Fla. 1st DCA 2001). This Court is "highly deferential" to counsel's performance; it will not second-guess tactical or strategic decisions. Pietri v. State , 885 So.2d 245, 252 (Fla. 2004) ; see State v. Barnes , 24 So.3d 1244, 1249 (Fla. 1st DCA 2009). The standard looks for "reasonably effective assistance." Strickland , 466 U.S. at 687, 104 S.Ct. 2052.

The deficiency question here is whether the improper objection by the State and the resulting sidebar discussion with the court that led defense counsel not to pursue the alibi question was "reasonably effective assistance" by defense counsel. See Strickland , 466 U.S. at 687, 104 S.Ct. 2052. Here, defense counsel's consistent statements (both during the trial sidebar and the post-conviction hearing) revealed she withdrew her question due to strategy: she stated that she did not want to ask Smith an open-ended question because Smith had a tendency to talk, and she feared he would say something that would hurt his case, even if unintentionally. Such strategic reasoning is not "outside the wide range of reasonable professional assistance."

In addition, there is no support for Smith's contention that defense counsel failed to pursue the alibi question because she lacked knowledge of the rule permitting her to ask the question. In fact, counsel testified at the evidentiary hearing to her reasons: she did not want to ask an open-ended question and feared what Smith might say in response; thus, she was fine-strategically-with withdrawing the question.

Accordingly, we find the trial court erred in concluding defense counsel's performance was deficient.

Prejudice

Prejudice requires "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"-"a probability sufficient to undermine confidence in the outcome." Hunter v. State , 817 So.2d 786, 794 (Fla. 2002). Counsel's error(s) must have had more than "some conceivable effect on the outcome of the proceeding." Strickland , 466 U.S. at 693, 104 S.Ct. 2052.

Even if counsel's performance was deficient, there is no "reasonable probability" the results of the trial would have been different if Smith had been allowed to answer the question "Where were you that night?" See Hunter , 817 So.2d at 794 (defining prejudice). Smith's self-serving statement that he was at his grandmother's would not likely have led to a different result, particularly considering that the grandmother would not have been called as a witness to corroborate. It is unlikely the jury would have believed Smith's testimony concerning his whereabouts when it rejected his testimony that he did not commit the crime, when other evidence, including DNA evidence, indicated otherwise. Furthermore, defense counsel explained Smith's testimony was expected to be vague anyway-that he did not recall the night specifically, but he was generally always at his grandmother's. This is in addition to the potential for other harmful testimony that Smith may have said if he was allowed to answer an open-ended question, which was defense counsel's stated strategic concern.

Thus, Smith did not undermine confidence in the outcome, and the postconviction court erred in its legal conclusion Smith showed prejudice.

Conclusion

Smith did not show defense counsel's performance was deficient in that defense counsel made a strategic decision to not permit Smith to answer an open-ended question. Even if it was deficient, however, Smith did not show that this error undermined confidence in the outcome or created a reasonable probability the result of the trial would have been different.

Accordingly, for each of these reasons the trial court erred in granting Appellant's 3.850 motion. The order granting Appellant's 3.850 motion is REVERSED.

B.L. Thomas, C.J., and Winokur, J., concur.

      The State's objection was clearly improper. Fla. R. Crim. P. 3.200 (stating a court cannot exclude a defendant's own alibi testimony for failure to file and serve proper notice of an alibi defense).


text:
    Jeremiah Joseph LOVETT, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-104
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 12, 2019
    Jeremiah Joseph Lovett, Milton, pro se.
    Ashley Moody, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 26, 2017 judgment and sentence rendered in Case No. 2015-CF-9392-A, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

BERGER, WALLIS and SASSO, JJ., concur.


text:
    Arthur M. RISH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3657
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 12, 2019
    Arthur M. Rish, Trenton, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Lori A. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Arthur M. Rish challenges the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm on all grounds except ground four, in which Rish alleged that his trial counsel was ineffective for advising him to reject the State's plea offer.

In ground four, Rish alleged that while his trial counsel properly conveyed a plea offer from the State, counsel misadvised him to reject the offer and failed to inform him that the State could seek to have him sentenced as an habitual felony offender ("HFO"). In summarily denying ground four, the trial court found that it was conclusively refuted by the record because Rish was advised at a hearing that the State was seeking to have him declared an HFO, the State's plea offer did not include one of Rish's charges, and the State withdrew the offer. We disagree and conclude that the record before us does not conclusively refute ground four.

Pursuant to Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prevail on an ineffective assistance of counsel claim, Rish must establish both that his trial counsel's performance was deficient and that he was prejudiced by the deficient performance. The trial court's references to the State's post-offer request for an HFO designation and withdrawal of the offer do not refute the claim because prejudice must be determined upon a consideration of the circumstances at the time of the offer, not after the offer was rejected and withdrawn. See Armstrong v. State , 148 So.3d 124, 126 (Fla. 2d DCA 2014) ("In the context of ineffective assistance resulting in the rejection of a plea offer, '[p]rejudice ... is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice.' " (quoting Alcorn v. State , 121 So.3d 419, 432 (Fla. 2013) ) ). Further, the change of plea and sentencing transcript attached to the court's order does not establish that the State's offer failed to include all of Rish's charges.

Notwithstanding our holding on the merits of the court's ruling, we conclude that ground four was insufficiently pled. Rish failed to allege a specific act or omission constituting deficient performance in that he did not assert that trial counsel's assessment of the case and assurances regarding his probable sentence constituted unreasonable or unsupported advice. See Boyers v. State , 104 So.3d 1230, 1232 (Fla. 2d DCA 2012) ("Mr. Boyers' claim is facially insufficient because he failed to allege a specific deficiency on the part of counsel, such as an assertion that counsel's assessment of the chances of success at trial was unreasonable under the facts and circumstances of the case or that counsel had not investigated or was otherwise unfamiliar with the case.").

In addition, Rish failed to allege prongs two and three under Alcorn v. State , 121 So.3d 419 (Fla. 2013). Under Alcorn , "to show prejudice, the defendant must demonstrate a reasonable probability, defined as a probability sufficient to undermine confidence in the outcome, that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." 121 So.3d at 422.

Because ground four presented a cognizable but facially insufficient claim of ineffective assistance of counsel, we reverse the order as to that ground and remand for the trial court to strike this claim with leave to amend to file a facially sufficient claim within a reasonable time, if Rish can do so in good faith. See Spera v. State , 971 So.2d 754, 761-62 (Fla. 2007) (holding that upon filing legally insufficient rule 3.850 motion, defendant should be given leave to amend to correct pleading defect if pleading defect can be remedied by good faith amendment). In all other respects, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER, WALLIS, and SASSO, JJ., concur.


author: PER CURIAM

text:
    Gregory J. BATIZI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2172
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 12, 2019
    James S. Purdy, Public Defender, and Glendon G. Gordon, Jr., Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM

We affirm this Anders appeal in all respects. However, we note that the judgment contains a scrivener's error where it states that Appellant's sex offender probation for count nine is for a period of eight years following the prison term. This conflicts with the oral pronouncement that the sentence for count nine (a third-degree felony) was two years of prison followed by three years of sex offender probation. Thus, we remand this case for correction of the scrivener's error on the judgment and sentence. See, e.g., Downey v. State, 114 So.3d 356 (Fla. 5th DCA 2013) (affirming an Anders appeal but remanding for correction of scrivener's errors).

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

LAMBERT, GROSSHANS and SASSO, JJ., concur.

      Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).