author: CRENSHAW, Judge.

text:
    Michael Frank LAPACE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1493
    District Court of Appeal of Florida, Second District.
    Opinion filed October 17, 2018.
    Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Michael Lapace appeals his convictions and sentences after pleading nolo contendere to a number of drug related charges. Mr. Lapace entered his pleas after the trial court denied his motion to suppress evidence obtained as a result of a warrantless search of a residence, reserving the right to appeal the adverse ruling. We reverse the trial court's denial of Mr. Lapace's motion to suppress because the evidence presented did not support the trial court's finding that the deputies reasonably believed that exigent circumstances existed that justified immediate entry into the residence without a warrant.

The testimony at the suppression hearing revealed that on September 4, 2016, two Manatee County Sheriff's deputies were responding to an unknown law enforcement problem call. The person who called 911 did not know her exact address and was giving the dispatcher landmarks around her location. At some point, the caller hung up but answered when the dispatcher called back and continued to try and relay the address, which was eventually determined by the cell phone satellite ping. No testimony was elicited at the hearing regarding who had called 911 or what crime or problem the caller had been reporting.

When the deputies arrived at the address provided by dispatch, they saw a woman parked in a car in an empty lot across from the address provided. The deputies approached the woman and asked if she knew why they had been dispatched to that location. The woman responded that she had no idea. As the deputies continued toward the house, and as the woman was pulling away to leave, she yelled out the window that her ex-boyfriend was inside the house and that he had a warrant out for his arrest and she stated his first name. At the hearing, the deputy testified that he could not remember what name she had given but remembered that it started with an "M" and thought it was either Michael or Matthew. The deputies did not know the name of this woman until after they had Mr. Lapace in custody.

The deputies proceeded to knock on the door of the house. Heather Lawson answered the deputies' knock but refused to open the door, stating that she had just been beaten up by an unknown woman. The deputies advised Ms. Lawson that the other woman was no longer there and that it was safe to come out. Ms. Lawson opened the door and appeared to be nervous and hesitant to speak to the deputies. She told them that a woman she did not know had knocked on her door and that they got into a physical altercation. Ms. Lawson had a cut on her foot and a red mark on her leg, where Ms. Lawson indicated that the unknown woman had bitten her.

The deputies asked Ms. Lawson if anyone else was inside the house. Ms. Lawson hesitated, looked back into the house, and stated, "No, and you can't come inside." The deputy testifying stated that he did not believe Ms. Lawson because the woman in the car had told them that there was a male inside and because Ms. Lawson seemed reluctant to answer any questions. At that point, the deputy testified that he believed there was a possible domestic dispute of some sort and believed that he needed to check on the welfare of anyone who may have been inside the house. The deputy acknowledged that based on the injuries observed on Ms. Lawson, any domestic battery would have been a first-degree misdemeanor.

Ms. Lawson was instructed to get her identification, and when she turned to go into the house, the deputies followed her inside. When Ms. Lawson realized they were trying to follow her inside, she again told them that they could not come in and continued to protest while the deputies proceeded to search the house.

Only one of the deputies testified at the hearing. The deputy testified that prior to knocking on the door, he did not hear any yelling or anything else coming from inside the house. There were no trails of blood or anything that would lead one to believe that someone was injured inside. Ms. Lawson had explained that her injuries were the result of a physical altercation with another woman. Once they entered the house, the deputy did not hear anyone crying, did not observe any blood, and did not hear anyone asking for assistance.

The deputy found Mr. Lapace hiding behind the door to a bedroom. Mr. Lapace was not in distress, he did not appear to need any medical attention, and the deputy did not observe any injuries on Mr. Lapace.

Upon finding Mr. Lapace, the deputy physically grabbed Mr. Lapace's arms, put him belly down onto the bed, and put him in handcuffs. While Mr. Lapace was belly down on the bed, the deputy took his ID from his back pocket, ran his identification through dispatch, and learned that Mr. Lapace had a felony warrant. After Mr. Lapace had been detained, the deputy saw a laundry basket next to the bed, and on top of the clothes was a pipe commonly used for smoking methamphetamine. The deputy also noticed an open dresser drawer approximately two feet from the bed with narcotics inside. The deputy then searched through a bag and found a plethora of other narcotics. The deputy seized the property and took Mr. Lapace outside.

Mr. Lapace moved to suppress the physical evidence obtained as a result of the search, contending that contrary to the State's position, exigent circumstances did not justify a warrantless entry into the residence. The trial court denied the motion to suppress, finding that the deputies were entitled to enter the house without a warrant under the emergency aid exception to the warrant requirement. The trial court noted that a 911 call is a cry to authorities for help and found that the deputies would have been remiss in not entering the residence of an abandoned 911 call. The trial court reasoned that after seeing Ms. Lawson come outside with injuries to her body and noting her nervousness and her hesitance to speak to law enforcement, a common reasonable assumption would be that there was someone in the house that either may have injured this woman or that there may be other injured people inside the home.

The trial court's conclusion that the deputies' entry into the residence was lawful was error. In Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), the Supreme Court set forth the principles of Fourth Amendment law:

It is a " 'basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.' " Nevertheless, because the ultimate touchstone of the Fourth Amendment is "reasonableness," the warrant requirement is subject to certain exceptions.... "[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment."
One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. " 'The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.' " Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.

Id. at 403 (alteration in original) (citations omitted).

Whether a warrantless search is justified by such an emergency is determined by the totality of the circumstances. See Zeigler v. State, 402 So.2d 365, 371 (Fla. 1981). The "police may enter a residence without a warrant if an objectively reasonable basis exists for the officer to believe that there is an immediate need for police assistance for the protection of life or substantial property interests." Seibert v. State, 923 So.2d 460, 468 (Fla. 2006) (citing Rolling v. State, 695 So.2d 278, 293-94 (Fla. 1997) ). "[T]he burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). In addition, "an entry based on an exigency must be limited in scope to its purpose. Thus, an officer may not continue her search once she has determined that no exigency exists." Rolling, 695 So.2d at 293.

The dispositive question in this case is whether the State met its burden of showing that the deputies reasonably believed that exigent circumstances existed that justified an immediate entry into the home without a warrant. See Dixon v. State, 36 So.3d 920, 924 (Fla. 4th DCA 2010) ; see also Wheeler v. State, 956 So.2d 517, 521 (Fla. 2d DCA 2007) ("Our analysis turns on whether the State was able to demonstrate that the deputies faced a grave emergency that made entry into Wheeler's home imperative."). If the State meets this burden, ordinarily the court must then determine whether the subsequent search of the house exceeded the parameters allowed if the entry was warranted. Seibert, 923 So.2d at 468. However, neither of the parties here have raised any argument related to the scope of the search that was conducted after the deputies entered the house, and as such, any argument related to the scope of the search has been waived and will not be addressed by this court.

Here, the State contends that the deputies were justified in entering the residence because, under the totality of the circumstances, the deputies' suspicion of a medical emergency was based upon reasonable inferences drawn from the available evidence. However, the cases relied upon by the State are distinguishable from the facts of this case because in each of the cited cases, the officers' belief that there was an immediate need for their entry into the residence to address a medical emergency was based on more than just a suspicion of a "possible domestic dispute of some sort." See, e.g., Michigan v. Fisher, 558 U.S. 45, 45-46, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (holding that exigent circumstances existed when officers responded to a disturbance complaint; observed a pickup truck with its front smashed, damaged fence posts, broken house windows with glass still on the ground, blood on the hood of the pickup and on clothes inside the pickup, and blood on one of the doors to the house; and could see the defendant inside the home, with a cut on his hand, screaming and throwing things, and arming himself with a gun); State v. Shillingford, 136 So.3d 1242, 1244 (Fla. 5th DCA 2014) (holding that exigent circumstances existed when officers were summoned to investigate a domestic battery and observed a blood trail leading to the defendant's apartment and heard moaning coming from within the apartment); C.L.L. v. State, 115 So.3d 1114, 1116 (Fla. 1st DCA 2013) (holding that exigent circumstances existed when officers responded to a 911 hang-up where a disturbance could be heard in the background and upon arrival observed a man with blood on his hands but no injury and admitted to being in a fight but claimed that the other participants had left); United States v. Barone, 330 F.2d 543, 544 (2d Cir. 1964) (holding that exigent circumstances existed where officers heard screams coming from apartment).

In the instant case, the State does not argue that the deputies encountered any screaming, suspicious sounds, blood, or other readily apparent disturbance when they arrived at the residence. The State argues that based on the totality of the circumstances, the deputies could reasonably believe that there was an ongoing domestic dispute based on the 911 call, the information from the unidentified woman, and Ms. Lawson's suspicious behavior and injuries. We consider each of these circumstances in turn.

The 911 call

The deputies were dispatched to the residence in response to an unknown law enforcement problem call. When they arrived, the deputies were armed only with the information that a person had called 911, was unable to give her exact address, and was providing landmarks to assist in locating the residence.

"Exigent circumstances have been determined to exist when 911 calls were received, even in cases when the callers did not identify a life-threatening emergency, when the officers arrived at the source of the 911 call to find suspicious circumstances at the residence." Seibert, 923 So.2d at 469. The focus of the inquiry is on the reasonableness of the officers' belief that an emergency existed at the time of entry. Id. at 468.

In In re J.B., 621 So.2d 489, 489 (Fla. 4th DCA 1993), the officers were responding to a home that was the source of a 911 call where the caller hung up without speaking or requesting assistance. In finding that the officers acted lawfully in trying to enter the home, the court analogized a 911 call to screams for help. Id. at 490. The court also discussed the fact that the 911 system is used to report crimes and injuries requiring immediate assistance and that a disconnect could happen for a myriad of reasons and did not mean the emergency was over. Id. at 490-91. Given that "[a] 911 call is a cry to the authorities for help" and that the officers observed a window with a broken screen and trash all over the front room, taken together with the defendant's unusual behavior, the court in J.B. concluded that the investigating officer had a duty to investigate until he was satisfied that no emergency existed. Id. at 491.

Similarly, in Dixon, the court held that the officers had a duty to investigate a 911 call; however, in order to justify a warrantless entry and search of the apartment, the State was required to prove that exigent circumstances existed that required entry into the apartment immediately without a warrant. Dixon, 36 So.3d at 924. When the officers first arrived at the apartment, before they entered, the defendant and his girlfriend informed them that the robbers had already left the apartment. Id. The testifying officer did not observe evidence of an ongoing burglary, which may have required immediate entry without a warrant. Id. Furthermore, the officer did not testify that he was concerned that there could be victims inside the apartment who needed immediate assistance. Id. Based on those facts, the court held that the observations by the officer did not support the warrantless entry into the apartment. Id.

Here, the deputies certainly had a duty to investigate the 911 call until they were reasonably satisfied that no emergency existed or that a once-urgent situation was no longer urgent. However, the deputies were not entitled to enter the home once they determined that any emergency had dissipated. In the instant case, Ms. Lawson came to the door and gave a plausible explanation for the injuries on her foot and leg, which the deputies were able to corroborate because they saw a woman drive away from the house upon their arrival. The deputies did not hear anything within the residence that would lead them to reasonably conclude that someone in the residence was in distress. They did not observe any evidence of an ongoing domestic dispute, which might have required immediate entry without a warrant. Accordingly, any exigency that may have existed and prompted the 911 call had dissipated by the time the deputies arrived and received the initial explanation from Ms. Lawson that she was battered by an unknown woman, whom the detectives had seen fleeing the scene.

The information from the unidentified woman in the car

After they arrived, the deputies saw an unidentified woman parked in a car across from the residence. When they approached the woman, she stated that she did not know why they were called, but as the deputies began approaching the residence and the woman was driving away, the unidentified woman rolled her window down and shouted to the deputies that her ex-boyfriend was in the house and there was a warrant out for his arrest. The deputy testified that she also stated her ex-boyfriend's name but that he could not recall whether she said Michael or Matthew. He thought the name started with an "M."

An anonymous tip may provide the basis for conducting a warrantless entry to render emergency assistance or to protect someone from imminent injury. But for an anonymous tip to justify a warrantless entry, the tip-considered in the context of the totality of relevant circumstances-must provide an "objectively reasonable basis" for the officer "to believe that there is an immediate need for police assistance." Seibert, 923 So.2d at 468.

Anonymous tips, which are more susceptible to abuse than a tip by a known informant, may be less reliable than other investigative leads. See Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The government's interest in conducting a search based upon an anonymous tip, therefore, is usually measured by examining the tip's "indicia of reliability." Id. Generally, a search based upon an anonymous tip withstands scrutiny under the Fourth Amendment only if the tip contains sufficient details and information that can be independently corroborated by the police to establish a level of reliability regarding the information in the tip. Id. at 270-71, 120 S.Ct. 1375.

Here, the woman did not give her name, did not give her ex-boyfriend's full name, did not give a physical description of her ex-boyfriend, and gave no information regarding the type of warrant allegedly outstanding. The record is devoid of any details that would provide support for the conclusion that the anonymous tip was reliable. The tip provided no basis for concluding either that anyone in the house had suffered any injury or that anyone in the house was at risk of imminent injury. The vague statements concerning an "ex-boyfriend" and a possible warrant are insufficient to establish that it was necessary for the deputies to enter the house "to protect an occupant from imminent injury." See Vanslyke v. State, 936 So.2d 1218, 1224 (Fla. 2d DCA 2006) (quoting Brigham City, 547 U.S. at 402, 126 S.Ct. 1943 ) (holding that even a reliable report that children were living in a house with drugs and guns would not show the existence of an exigency justifying a warrantless search without an additional showing of a specific threat of imminent harm to the children in the house). That the tip proved accurate and that the officers acted with good intentions does not alter the legal conclusion that the search was improper. See J.L., 529 U.S. at 271, 120 S.Ct. 1375 ("The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.").

Ms. Lawson's behavior

In denying the motion to suppress, the trial court considered Ms. Lawson's "demeanor, her behavior, her conduct" in finding that the deputies had an objectively reasonable basis for believing that there was an emergency that required immediate police attention.

Allowing police to use a resident's reaction to law enforcement's presence at their home and the resident's contemporaneous clear expression of unwillingness to engage with the officers "as the only extra information necessary to confirm whatever suspicion brought [the officers] to the door in the first place ... would ... unjustifiably erode 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion'-which stands '[a]t the very core' of our Fourth Amendment protections." Calloway v. State, 118 So.3d 277, 280 (Fla. 5th DCA 2013) (second alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ). Here, Ms. Lawson's reaction to the deputies' presence at her home, together with her unwillingness to allow the deputies into the house, cannot satisfy the requisite showing of an objective belief that there was an ongoing emergency that required the immediate attention of the police. Even when Ms. Lawson's behavior is combined with the information from the anonymous tip-that there was a man in the house, who had an outstanding warrant-and the unknown law enforcement problem call, it was not objectively reasonable for the deputies to believe that there was an ongoing or imminent emergency that required their immediate attention.

There was no objective basis for the deputies to fear for anyone's safety. The deputies responded to the residence and came upon a quiet scene. The deputies observed no noise that would indicate a disturbance, no screaming, no blood, nor anything else that would indicate that there was a domestic disturbance taking place. The only information the deputies had prior to entering the house was that they were responding to an unknown law enforcement problem call based upon a 911 call from a person who did not know her exact address, that there may have been a man inside the house who had a warrant out for his arrest, that Ms. Lawson had a cut on her foot and a bite mark on her leg that she claimed was the result of an altercation with an unknown woman, that an unknown woman had just driven away from the house, and that, based on a hunch, there may have been a "possible domestic dispute of some sort." This was not enough to form an objectively reasonable basis to believe that there was an immediate need for police assistance for the protection of life.

We conclude that the deputies lacked an objectively reasonable belief that there was an ongoing or imminent emergency that required immediate police attention. The entry into the house and subsequent search without a warrant were in violation of the Fourth Amendment. All physical evidence derived from the initial unlawful search should have been suppressed. Accordingly, we reverse Mr. Lapace's convictions and sentences in case number 2016-CF-3094 and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BLACK and SLEET, JJ., Concur.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Peggy A. THORLTON and William D. Thorlton, Appellants, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    Case No. 2D17-2328
    District Court of Appeal of Florida, Second District.
    Opinion filed October 17, 2018.
    Randall O. Reder of Randall O. Reder, P.A., Tampa, for Appellants.
    Nancy M. Wallace and Ryan D. O'Connor of Akerman LLP, Tallahassee; William P. Keller of Akerman LLP, Fort Lauderdale; and David A. Karp of Akerman LLP, Tampa, for Appellee.
   MORRIS, Judge.

Peggy A. and William D. Thorlton appeal the final judgment of foreclosure entered against them and in favor of Nationstar Mortgage, LLC, following a bench trial. For the reasons we explain, we conclude that Nationstar adequately established that its predecessor in interest, Chase Home Finance a/k/a JPMorgan Chase Bank National Association satisfied a condition precedent to filing suit: providing written notice of default as required by paragraph 22 of the mortgage. Thus we affirm on that issue. We affirm on all other issues without further comment.

BACKGROUND

On May 13, 2003, the Thorltons executed a promissory note and mortgage in favor of Wachovia Mortgage Corporation. Paragraph 22 of the mortgage provided that prior to acceleration, the lender must give the borrower notice and an opportunity to cure the default. Paragraph 15 provided that any such notice must be written and that it "shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means."

In 2008, Chase Home Finance filed a foreclosure complaint against the Thorltons. Chase alleged that it was the servicer of the loan and acting on behalf of the owner. That complaint alleged generally that all conditions precedent to the acceleration of the note and mortgage had been performed.

Chase subsequently filed two motions for substitution of party plaintiff, alleging first that it had merged with JPMorgan Chase Bank N.A. and, at a later time, that it had become organized under a new charter and had changed its name to JPMorgan Chase Bank, National Association. In July 2016, prior to trial, a motion to substitute Nationstar as the party plaintiff was filed and ultimately granted.

At trial, Nationstar admitted a copy of the default letter purportedly mailed to the Thorltons on October 2, 2008, in compliance with paragraph 22. The letter contained a header proclaiming "CERTIFICATE OF MAILING." As part of the same exhibit, Nationstar included a screenshot from Chase's electronic records indicating that the default letter was scanned into Chase's system on October 3, 2008. The exhibit was admitted through the testimony of Jason George, a default case specialist employed by Nationstar. Mr. George testified that he had previously worked for JPMorgan Chase and, prior to that, worked for Chase Home Finance before the two entities merged. Mr. George testified he worked for Chase from July 2011 until March 2015. He testified generally about his familiarity with Chase's practices and procedures for creating and maintaining records as well as his familiarity with the boarding process that occurs when one lender takes over the servicing of a loan from another lender.

Prior to the admission of the default letter, the Thorltons' counsel objected based on "hearsay, lack of foundation, and lack of personal knowledge." Specifically, the Thorltons' counsel argued that Mr. George did not have personal knowledge of whether the letter was actually mailed out, regardless of whether it was mailed by Chase or by a third-party vendor. The Thorltons' counsel also argued that Mr. George was not qualified to lay a business records predicate for the admission of the document when the letter was mailed "by yet another department of the company that he apparently spoke to someone about." The trial court overruled the objection and admitted the letter.

During questioning about the letter, Mr. George testified that the letter was part of Nationstar's business records that had previously been part of Chase's business records. He testified that the records were made by employees with personal knowledge of the information being entered at the time it was entered, that the records were kept in the course of Chase's regularly-conducted business activities, and that it was Chase's regular business practice to make and maintain such records. When asked how he knew that the letter was mailed to the Thorltons, Mr. George responded: "That was the routine practice back then for Chase Home Finance."

On cross-examination, Mr. George testified that he worked in multiple departments with Chase and Nationstar, including two days in Chase's breach letter department. Mr. George acknowledged that Chase used a third-party vendor to mail the breach letters and that he knew this because he worked with the third-party vendor during his training. Mr. George explained that the third-party vendor obtains a PDF copy of the breach letter from the lender, prints and mails it first class, and then sends a CD back to the lender informing the lender that the letter was mailed. Mr. George explained that the lender also receives proof of mailing via a copy of each letter with a "proof of mailing stamp from the post office." Mr. George subsequently admitted that he did not work for the third-party vendor at the time that the Thorltons' breach letter was mailed and that he never actually worked for the third-party vendor. He explained that his knowledge about the third-party vendor's mailing process came through his two-day assignment in Chase's breach letter department. He also explained that his knowledge about the third-party vendor's mailing process came entirely from other Chase employees who told him about the third-party vendor.

On appeal, the Thorltons challenged the sufficiency of the evidence regarding the mailing of the default letter. Specifically, the Thorltons argued that because Mr. George did not work for Chase at the time the letter was mailed, he could not have personal knowledge of that issue and, as a result, Nationstar failed to prove it complied with the condition precedent set forth in paragraph 22 of the mortgage.

In response, Nationstar argued that Mr. George's testimony regarding Chase's routine business practices was sufficient to establish that the letter was mailed. Nationstar asserted that Mr. George was not required to have worked for Chase at the time the letter was mailed in order to establish his knowledge of Chase's routine business practices.

After all briefs had been filed in this case, this court issued Spencer v. Ditech Financial, LLC, 242 So.3d 1189 (Fla. 2d DCA 2018). In Spencer, this court addressed the issue of what constitutes sufficient evidence to establish the mailing of a default letter when the testifying witness was not a current employee of and had never worked for the entity which drafted and mailed the letter. Id. At oral argument, the Thorltons noted the Spencer opinion and argued that it also served as a basis to reverse in this case because like the employee in Spencer, Mr. George did not work for the entity which mailed the letter. The Thorltons filed a notice of supplemental authority citing Spencer on the same day that oral argument occurred.

This court then issued an order directing the parties to address Spencer and its application to this case. The Thorltons' supplemental brief noted that their counsel had raised an objection to the sufficiency of Mr. George's knowledge of the mailing issue at trial, and the Thorltons argued that Spencer was directly on point and required a reversal here because Mr. George testified that his knowledge of the mailing of the letter was based merely on his training and the routine business practices of Chase. Thus, the Thorltons argued that because Mr. George had never worked for the third-party vendor which actually mailed the letter and because his knowledge of the third-party vendor's mailing process had been obtained from other Chase employees, the evidence was insufficient to establish that the letter had been mailed.

In its supplemental brief, Nationstar argued that the Thorltons waived any challenge to Mr. George's testimony regarding routine business practices, arguing that the Thorltons only objected to the admission of the default letter as a business record. Nationstar also argued that this issue was not one related to the sufficiency of the evidence. Instead, Nationstar maintained that the issue was an evidentiary issue related to routine business practices under section 90.406, Florida Statutes (2016), or lack of personal knowledge under section 90.604. Nationstar distinguished Spencer by arguing that there, the testifying witness had never worked for the entity (prior servicer) which drafted the default letter, whereas, in this case, Mr. George had worked for Chase, the entity which drafted the default letter. Nationstar pointed to parts of Mr. George's testimony wherein he described working "at three different stations" in the breach letter department and observing how breach letters were submitted to the third-party vendor for mailing and then how Chase received proof of mailing from the third-party vendor. Thus Nationstar argued that Mr. George's testimony was sufficient under Spencer. Citing other cases, Nationstar also argued that testimony regarding routine business practices related to the drafting and mailing of default letters was sufficient to prove the letter was actually mailed.

ANALYSIS

Addressing first the issue of preservation, we reject Nationstar's attempt to frame this issue as one involving only evidentiary considerations related to the admissibility of a business record. In its answer brief, Nationstar relied on Bank of America, N.A. v. Delgado, 166 So.3d 857 (Fla. 3d DCA 2015), to argue that Mr. George was not required to be employed by Chase at the time the default letter was mailed in order to provide a foundation for the admission of Nationstar's business records. And in its supplemental answer brief, Nationstar argued that the issue in this case was not one related to the sufficiency of the evidence regarding the Thorltons' receipt of the default letter. However, Spencer holds otherwise. Indeed, in Spencer, we specifically rejected the appellants' reliance on Delgado, noting that it addressed the sufficiency of the evidence of an entity's boarding process to establish the admissibility of documents like default letters under the business records exception to the hearsay rule, whereas in Spencer, the issue was the sufficiency of the evidence demonstrating an entity's routine business practices to establish that a default letter was mailed. See Spencer, 242 So.3d at 1191. We do not disagree with Nationstar's argument that "basic familiarity with [another entity's] practices for generating, storing, and sending a default [letter] in the normal course of business is all that is required to establish the admissibility of a default [letter] under the business records exception," but as in Spencer, the admissibility of the default letter is not at issue here. See id.

Further, the fact that the Thorltons did not raise the precise issue raised in Spencer below does not preclude them from raising the issue on appeal. As we noted in Wolkoff v. American Home Mortgage Servicing, Inc., 153 So.3d 280, 282 (Fla. 2d DCA 2014), Florida Rule of Civil Procedure 1.530(e) permits parties to raise the issue of the sufficiency of the evidence on appeal even where they did not make such an objection below. While it is true that "[b]asic principles of due process suggest that courts should not consider issues raised for the first time at oral argument," courts also acknowledge that there are "[r]are or unusual instances" where an appellate court may consider arguments raised for the first time on appeal. Powell v. State, 120 So.3d 577, 591, 593 (Fla. 1st DCA 2013) ; see also Wolkoff, 153 So.3d at 282 (recognizing that courts have ability to consider arguments raised for the first time at oral arguments in limited circumstances). This case presents one such circumstance, where a case which addresses an issue presented in this case was decided after all briefing had been completed in this case. Furthermore, we provided both parties with the opportunity to address the proof of mailing issue in supplemental briefs. Thus no due process violation has occurred and we may dispose of this issue on the merits.

Having analyzed the facts and holdings of both Spencer and a subsequently decided case, Soule v. U.S. Bank National Ass'n, 43 Fla. L. Weekly D1590 (Fla. 2d DCA July 13, 2018), we conclude that they do not require a reversal in this case. Rather, we hold that Mr. George's testimony was sufficient to establish that the default letter was mailed.

Spencer requires not only that a testifying witness "be employed by the entity drafting the letter," but also that the witness "have firsthand knowledge of the company's routine practice for mailing letters." Spencer, 242 So.3d at 1191 (emphasis added). Prior to his employment with Nationstar, Mr. George was employed by Chase, which was the entity that drafted the default letter. Mr. George also had knowledge of Chase's routine practice of submitting the letters for mailing to a third-party vendor. He explained what those practices were at the time the subject default letter was mailed out even though he was not in Chase's employ at that time.

That point is where this case factually differs from Spencer. The issue in Spencer was that the testifying witness worked for a successor in interest to the mortgage company that initiated the foreclosure proceedings. The witness had never worked for the mortgage company which was the entity that had both drafted and mailed the letters. Id. at 1190-91. And while the witness testified about the mortgage company's policy and procedure for both drafting and mailing default letters, she had no personal knowledge of those issues. Id. at 1191.

Similarly, in Soule, the testifying witness worked for the successor in interest to the mortgage servicing company that had prepared and allegedly mailed the default letter. Soule, 43 Fla. L. Weekly D1590. The witness testified she had never worked for the original servicing company, and she admitted that she had never been trained in any of the prior servicing company's procedures. Id. Thus we concluded that the witness had no personal knowledge of whether the default letter was mailed or of the prior servicing company's policies and procedures for mailing. Id.

Here, in contrast, not only did Mr. George work for Chase, the entity which drafted the letter, but he also established his familiarity with Chase's routine practices relating to the mailing of the default letters at the time the subject default letter was mailed. We have previously held that "[t]he fact that a document is drafted is insufficient in itself to establish that it was mailed" and that additional evidence is required to establish proof of mailing.

Allen v. Wilmington Tr., N.A., 216 So.3d 685, 687-88 (Fla. 2d DCA 2017). However, such evidence may be in the form of proof of regular business practices. See id. at 688. And we have concluded that such evidence "may be sufficient to establish a rebuttable presumption of mailing," where the witness has "personal knowledge of the company's general practice in mailing letters." Id. (citing CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016) ).

While we acknowledge that Chase was not the entity that ultimately mailed the letter, it had a routine practice for submitting default letters to a third-party vendor which then mailed the letter. As Mr. George explained, Chase would then receive proof of mailing back from the third-party vendor. We are persuaded by PNC Bank National Association v. Roberts, 246 So.3d 482 (Fla. 5th DCA 2018), that Mr. George's testimony was sufficient then to create a rebuttable presumption of the mailing of the letter.

Roberts contains many factual similarities to this case. There, a bank employee testified about the routine business practices of the foreclosing bank which included testimony about the creation of default letters. Id. at 485-86. Specifically, the witness testified that the bank "creates the letter by ordering it from an outsourcing vendor ... which prints the [default] letters, folds them, places them in a window envelope, seals the envelopes, affixes postage, and mails them by first-class mail." Id. at 486. She also testified that the third-party vendor then provided the bank with a report showing which letters were mailed. Id. The Fifth District Court of Appeal acknowledged that the dates on the default letters only established the date that they were drafted and not whether or when they were sent. Id. However, the court ultimately held that the witness's "personal knowledge" of the bank's and the third-party vendor's routine business practices and policies for default letters during the time period when the pertinent default letters were mailed, in conjunction with the admission of the default letters themselves, was sufficient to establish that the letters were mailed. Id.

As in Roberts, the foreclosing bank here, Chase, was not the entity that actually mailed the letter. Additionally, like the foreclosing bank in Roberts, Chase had routine practices for drafting the default letters, submitting them to a third-party vendor for mailing, and then receiving confirmation of mailing back from the vendor. The fact that Mr. George was not employed by Chase at the time the subject default letter was mailed is not dispositive because Mr. George was able to testify not only about his own training and experience with Chase regarding default letters, but also about Chase's policies and procedures relating to the mailing of default letters at the time the subject default letter was mailed. Just as the Fifth District concluded in Roberts, we likewise conclude that where a testifying witness establishes his or her personal knowledge of a foreclosing entity's and third-party vendor's routine business practices and policies for drafting and mailing a default letter, coupled with the admission of the default letter itself, there is competent, substantial evidence that the subject default letter was mailed. Id.

Because Nationstar sufficiently established that its predecessor in interest (Chase) satisfied the condition precedent of providing the paragraph 22 notice, we affirm.

Affirmed.

NORTHCUTT, J., Concurs.

LUCAS, JJ., Concurs in result only.

      The Thorlton's counsel explained to the court that the use of a third-party vendor to mail out default letters was common in the mortgage industry.


author: Per Curiam.

text:
    Kramer FOREST, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4201
    District Court of Appeal of Florida, First District.
    October 18, 2018
    Andy Thomas, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges his criminal judgment and sentence for possession of more than 20 grams of a controlled substance, cannabis. Appellant contends that he could not have committed the charged crime because Florida's criminal code, which classifies cannabis as a substance that "has no current medical use," is in direct conflict with the recent amendment to the Florida Constitution regarding the production, possession, and use of medical marijuana. We disagree.

A "controlled substance" is "any substance named or described in Schedules I-V of s. 893.03." § 893.02(4), Fla. Stat. (2016). Cannabis, or marijuana, is statutorily defined as a Schedule I controlled substance. § 893.03(1)(c)7., Fla. Stat. (2016). A Schedule I substance is one that "has a high potential for abuse and has no currently accepted medical use in treatment in the United States and in its use under medical supervision does not meet accepted safety standards." § 893.03(1), Fla. Stat.

Article X, section 29 of the Florida Constitution, which was approved by voters in 2016, provides for the production, possession, and use of medical marijuana. However, the amendment specifically states "[n]othing in this section allows for a violation of any law other than for conduct in compliance with the provisions of this section" and "[n]othing in this section shall affect or repeal laws relating to non-medical use, possession, production, or sale of marijuana." Art. X, § 29(c)(1)-(2), Fla. Const. Accordingly, nothing in the amendment expressly repeals section 893.03(1)(c) 7.

Florida courts have long held that "[a] statute valid when enacted, and made effective, is not invalidated by a subsequent amendment to the Constitution, unless the amendment is designed to have that effect." Neisel v. Moran , 80 Fla. 98, 85 So. 346, 360 (1919) (on rehearing); see also Graham v. Haridopolos , 108 So.3d 597 (Fla. 2013) (holding that a constitutional amendment creating the Board of Governors did not prohibit the Legislature from enacting statutes that exerted control over the setting of an appropriation for the expenditure of tuition and fees because the amendment did not expressly transfer the Legislature's authority to raise revenue and appropriate for the expenditure of state funds).

As such, we find section 893.03(1)(c) 7., Florida Statutes, constitutional, and we affirm appellant's judgment and sentence.

AFFIRMED .

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


text:
    David Charles SUSSMAN, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D17-3701
    District Court of Appeal of Florida, First District.
    October 18, 2018
    David Charles Sussman, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Brett Coleman, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, David Charles Sussman, appeals the dismissal of his pleading titled "Petition for Writ of Mandamus; 42 U.S.C. § 1983 Civil Rights Complaint; and F.S. 768.28 Tort Complaint," in which he sought the reversal of his disciplinary report and return of lost gain time as to Claims 1 and 2 and $10,000 in nominal and compensatory damages as to Claims 3 through 7. The trial court dismissed the pleading without prejudice because of Appellant's failure to comply with its prior Order on Indigence Status, wherein it declined to adjudicate him indigent under section 57.085, Florida Statutes, and warned that he had thirty days to pay the filing fees or the matter would be dismissed without prejudice.

On appeal, Appellant argues that dismissal was improper because section 57.085, Florida Statutes (2017), does not apply to his collateral criminal claims. Appellant's argument is without merit because, as he recognizes, his pleading is a mixed claim petition, and mixed petitions are not exempt from section 57.085. See Schmidt v. McDonough , 951 So.2d 797, 802-03 (Fla. 2006) (concluding that "because the underlying mandamus petition in this case is a 'mixed' petition, containing both a gain time claim and a civil claim, the petition itself is subject to the prepayment and lien requirements of the prisoner indigency statute"); see also Thomas v. Dep't of Corr. , 159 So.3d 291, 292 (Fla. 1st DCA 2015) (finding that the appellant's mandamus petition challenging his inability to earn gain time and loss of eligibility for a work release program was a mixed petition subject to section 57.085 ).

Appellant's second argument that the dismissal of his civil claims pursuant to section 57.085 violates treaties the United States has entered because it imposes on him an obligation to pay based solely on his status as a prisoner is likewise without merit. See Smith v. Fla. Dep't of Corr. , 974 So.2d 1110, 1111-12 (Fla. 1st DCA 2007) ("The appellants question the constitutionality of section 57.085, and suggest that it violates their right of access to the courts. However, the supreme court has recognized that the legislature may address the prepayment of fees and costs as provided in section 57.085. See Jackson v. Florida Dep't of Corrections, 790 So.2d 381 (Fla. 2000).").

Accordingly, we affirm. Appellant is cautioned that abusive, repetitive, malicious, or frivolous filings will result in sanctions such as a bar on pro se filing in this court or referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See State v. Spencer , 751 So.2d 47 (Fla. 1999) ; see also § 944.279(1), Fla. Stat. (2017).

AFFIRMED .

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


text:
    Montre D. RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2156
    District Court of Appeal of Florida, First District.
    October 18, 2018
    Montre D. Richardson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We are constrained to reverse on procedural grounds the trial court's order denying Appellant's postconviction motion under Florida Rule of Criminal Procedure 3.850. In a previous appeal, Appellant successfully argued that the trial court must attach to its order record excerpts conclusively refuting Appellant's claims. See Richardson v. State , 215 So.3d 1287 (Fla. 1st DCA 2017). Our opinion issued on April 28, 2017. Very promptly, on May 3, 2017, the trial court complied with our decision and re-entered the order denying Appellant's rule 3.850 motion, this time properly attaching records to support the denial. However, our mandate in the previous postconviction appeal did not issue until May 24, 2017.

An appellate court's mandate is the procedural vehicle by which jurisdiction transfers back to the trial court. Mathis v. State, 963 So.2d 299 (Fla. 1st DCA 2007). Until issuance of our mandate, the trial court lacked jurisdiction to enter an order complying with our directions. Accordingly, while we applaud the trial court's efficient compliance with our decision, and are loathe to "punish efficiency," we must reverse the order because it was entered when the trial court did not have jurisdiction. See Leatherwood v. State , 168 So.3d 328, 330 (Fla. 3d DCA 2015) (noting the court's reluctance to punish efficiency); Scott v. State , 156 So.3d 9, 10 (Fla. 5th DCA 2014). Under these circumstances, we reverse and remand for re-entry of the order with record attachments-after our mandate has issued. See Fla. R. App. P. 9.340(a) (defining "mandate" and setting forth procedures).

REVERSED and REMANDED .

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


author: Bilbrey, J.

text:
    PIPELINE CONSTRUCTORS, INC., Appellant, v. The TRANSITION HOUSE, INC., a Florida Corporation, Appellee.
    No. 1D17-1867
    District Court of Appeal of Florida, First District.
    October 18, 2018
    David L. Worthy and Christopher W. Lewis of Niesen, Price, Worthy, Campo, P.A., Gainesville, for Appellant.
    Joseph R. Fitos and Joshua A. Bachman of GrayRobinson, P.A., Orlando, for Appellee.
   Bilbrey, J.

Appellant Pipeline Constructors, Inc., the plaintiff at the trial level, appeals the order dismissing the case for Pipeline's failure to appear at the initial case management conference set pursuant to rule 1.200(a), Florida Rules of Civil Procedure, and the order denying relief from the order of dismissal, pursuant to rule 1.540(b), Florida Rules of Civil Procedure. We agree that dismissal was improper and that relief should have been granted as to the order of dismissal. We therefore reverse and remand.

Pipeline, a subcontractor, filed a claim of lien on April 6, 2016, in the Official Records of Bradford County. The owner of the real property, The Transition House, Inc., filed its notice of contest of lien and served the notice upon Pipeline by certified mail on November 2, 2016. The notice of contest shortened the time limit for Pipeline to file an action to enforce its lien to 60 days, in this case expiring on January 2, 2017. See § 713.22(2), Fla. Stat. Pipeline met the deadline by filing its complaint against Transition House to enforce the lien, and for unjust enrichment, in the circuit court on December 27, 2016. See §§ 85.011, 713.06, Fla. Stat.

Although Transition House had not yet been served with process, the trial judge, by order entered March 9, 2017, ordered a case management conference pursuant to rule 1.200(a). The court set the conference for April 10, 2017, and the order was served via email on one of Pipeline's attorneys. However, the order ended up in that attorney's email "clutter" or junk folder and was deleted without being seen. The order was apparently not served on the attorney's assistant or another attorney for Pipeline, both of whom were designated to receive service. See Fla. R. Jud. Admin. 2.516(b)(1)(A).

Upon the failure of Pipeline's counsel to appear at the case management conference on April 10, 2017, the trial judge entered an order on April 11, 2017, dismissing the cause "without prejudice." Pipeline moved to vacate the order of dismissal, under rule 1.540, Florida Rules of Civil Procedure, asserting that its failure to appear was due to mistake, inadvertence, and excusable neglect. The trial court denied Pipeline's motion to vacate on April 19, 2017, and here Pipeline appeals both orders. Although the order dismissing the action for failure to appear was "without prejudice," it has the effect of a final order and we thus have jurisdiction.

The trial court judges of Florida undoubtedly carry a heavy workload. See Florida's Trial Courts Statistical Reference Guide FY 2016-17, http://www.flcourts.org/publications-reportsstats/statist ics/trial-court-statistical-reference-guide.stml (last visited Sept. 27, 2018). Standards exist for timely disposition of cases and failure to meet those standards can result in reports to the chief justice. See Fla. R. Jud. Admin. 2.250. Canon 3B(8) of the Code of Judicial Conduct requires a judge to "dispose of all judicial matters promptly, efficiently, and fairly." It is therefore laudable that the trial judge here attempted to take control of the case from the start. But a case management conference under rule 1.200(a) can only be set "[a]t any time after responsive pleadings or motions are due."

We need not decide whether the trial judge could sanction Pipeline for not attending the case management conference set contrary to rule 1.200(a) because, even if sanctions had been available, the order dismissing the case for Pipeline's failure to attend the case management conference contained no findings that such failure was willful, flagrant, deliberate, or otherwise aggravated. See Perkins v. Jacksonville Housing Auth. , 175 So.3d 948 (Fla. 1st DCA 2015) ; U. S. Bank Nat. Ass'n v. Martinez , 188 So.3d 107 (Fla. 5th DCA 2016). The "sanction must be commensurate with the offense." Id. at 108. The order of dismissal is therefore reversed and remanded for further proceedings

In Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLC , we held that an attorney's "conscious decision to use a defective email system without any safeguards or oversight in order to save money" does not "constitute excusable neglect." 227 So. 3d 752, 757 (Fla. 1st DCA 2017). However, the basis for excusable neglect here consists of more than just an overactive spam filter. It was reasonable for Pipeline's attorney not to anticipate any orders from the court while there remained time for execution of service of process on Transition House. The fact that service of the order was apparently attempted on only one of the three people designated by Pipeline to receive service also shows an oversight by the trial court. Because Pipeline supported its motion to vacate the order with uncontroverted affidavits establishing facts to support its claim of mistake, inadvertence, surprise, or excusable neglect, the order denying relief under rule 1.540 is also reversed. See Ocwen Loan Servicing, LLC v. Brogdon , 185 So.3d 627 (Fla. 5th DCA 2016) ; Acosta v. Deutsche Bank Nat'l Trust Co. , 88 So.3d 415 (Fla. 4th DCA 2012).

REVERSED and REMANDED .

Wolf and Kelsey, JJ., concur

      The record reflects that Pipeline's complaint was served on Transition House via substitute service on April 12, 2017. See Fla. R. Civ. P. 1.070(j) (summons must be served within 120 days of filing of initial pleading).

      An order dismissing a complaint "without prejudice" to amend is not ordinarily a final, appealable order. Hinote v. Ford Motor Co. , 958 So.2d 1009, 1010 (Fla. 1st DCA 2007). However, "[a]n order that dismisses an action 'without prejudice' may or may not be a final order depending upon whether it unequivocally disposes of a case." Id. Dismissal of an action "without prejudice" to file another, separate action ends the judicial labor in the first action and is thus an appealable final order. Delgado v. J. Byrons, Inc. , 877 So.2d 822, 823 (Fla. 4th DCA 2004) ; Carlton v. Wal-Mart Stores, Inc. , 621 So.2d 451, 452 (Fla. 1st DCA 1993). Additionally, where the new action would be time-barred if refiled, dismissal without prejudice to file a new action operates as a dismissal with prejudice and is thus reviewable on appeal. Martinez v. Collier Cnty. Pub. Sch. , 804 So.2d 559, 560 (Fla. 1st DCA 2002). A new action by Pipeline to enforce its lien would have to be time-barred as of January 2, 2017, by the 60-day limitation set out in section 713.22(2), Florida Statutes.


author: KELLY, Judge.

text:
    D.T., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1549
    District Court of Appeal of Florida, Second District.
    Opinion filed October 24, 2018.
    Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

D.T. appeals from the disposition order that withholds an adjudication of delinquency but finds that he committed ten felony and three misdemeanor offenses. We affirm the order with the exception of the disposition on counts seven and eight.

The trial court found that D.T. committed the delinquent acts of theft of a motor vehicle (count six), theft of a firearm that was in the vehicle (count seven), and theft of other property that was in the stolen vehicle (count eight). We reverse the disposition as to counts seven and eight because the theft of the vehicle and of the contents of that vehicle is one act of taking. See Rudolf v. State, 851 So.2d 839, 842 (Fla. 2d DCA 2003) (reversing a conviction for grand theft of property stolen from a truck where the defendant was also convicted of grand theft of the truck); Moore v. State, 904 So.2d 647, 648 (Fla. 4th DCA 2005) (holding that double jeopardy precluded convictions for both grand theft of a motor vehicle and grand theft based on the defendant's taking of the contents in the vehicle); Beaudry v. State, 809 So.2d 83, 84 (Fla. 5th DCA 2002) (holding that double jeopardy precludes convictions for both grand theft of a motor vehicle and grand theft of the contents of the vehicle when there is no geographic or temporal separation between the two acts of taking). Commendably, the State acknowledges that under the facts of this case this law is controlling.

Accordingly, we reverse the disposition on counts seven and eight and remand for dismissal of those two counts.

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

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Adam TELTSCHIK, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1810
    District Court of Appeal of Florida, Second District.
    Opinion filed October 24, 2018
    Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Adam Teltschik appeals from his judgment and sentences for burglary of a structure and third-degree grand theft. He argues that the trial court erred in denying his motion for judgment of acquittal for the grand theft charge because the State failed to prove the value of the stolen items. We agree and reverse.

To establish third-degree grand theft the State must prove that the property stolen was "[v]alued at $300 or more, but less than $5,000." § 812.014(2)(c)(1), Fla. Stat. (2016). "Value may be established by direct testimony of fair market value or through evidence of the original market cost of the property, the manner in which the items were used, the condition and quality of the items, and the percentage of depreciation of the items since their purchase." Pickett v. State, 839 So.2d 860, 861-62 (Fla. 2d DCA 2003). The State can introduce evidence of the replacement cost of stolen property if the market value at the time and place of the offense cannot be satisfactorily ascertained. § 812.012(10)(a)(1). Because value is an element of the offense, it must be proven beyond a reasonable doubt. Carter v. State, 77 So.3d 849, 851 (Fla. 2d DCA 2012).

Mr. Teltschik was charged with the theft of tools and maintenance equipment from the Four Seasons Golf Resort. Daniel White, the grounds superintendent, testified about the missing items. Mr. White's testimony did not satisfy the criteria for proving value beyond a reasonable doubt. Mr. White gave the purchase price for some items but did not testify about depreciation. For other items he testified about their use and current condition but did not testify about the purchase price or depreciation. For one item he appeared to testify regarding replacement value but there was no testimony that fair market value could not otherwise be established. Thus, the State did not prove the value of the items stolen. See Ciani v. State, 177 So.3d 656, 658 (Fla. 2d DCA 2015) (holding that, although the owner of stolen property testified as to the original cost of the stolen tools, the manner in which they were used and their condition, evidence of market value was lacking because he gave no opinion as to depreciation in the tools' value since the time of purchase); Newland v. State, 117 So.3d 482, 483-84 (Fla. 2d DCA 2013) (holding that replacement cost evidence was insufficient where the owner of a stolen air conditioner did not provide any testimony of the cost to replace the stolen air conditioner unit with a similar unit about one to two years old). While common sense would allow a reasonable juror to conclude beyond a reasonable doubt that the several thousands of dollars in tools and equipment described by Mr. White was worth at least $300, the supreme court has been clear that common sense has no role in proving value in these circumstances. See Marrero v. State, 71 So.3d 881, 889 (Fla. 2011) ("The application of a 'life experience' exception to any criminal statute, including the criminal theft statute, is inconsistent with the uniform system of justice that both the Florida and Federal Constitutions require and should not be left to the whim of individual jury members."). Accordingly, we reverse the conviction for grand theft and remand for entry of a judgment for second-degree petit theft and for resentencing for the lesser offense.

Reversed and remanded with instructions.

LaROSE, C.J., and MORRIS, J., Concur.

      Mr. White testified about a one-month-old chainsaw in great condition that cost $170 new and had been used around five times, but he was not asked about depreciation. He testified about two six-month-old acetylene torches that cost $500 new, but again, nothing about depreciation. He testified that a three-year-old compressor would cost over $200 to replace, but gave no testimony that fair market value could not be ascertained. He claimed that a working sod cutter of unspecified age cost $4000 "years ago," but gave no other information about the item. He testified that a one-year-old commercial weed eater in good condition would "probably" cost $450 to replace but gave no testimony that fair market value could not be ascertained. He stated that a one-and-a half-year-old pole saw that was "barely used" cost $1100 new, but gave no testimony regarding depreciation. He also testified that an industrial fan would "probably cost" over a "couple hundred" to replace and that assorted stolen tools probably cost $75 to $100.


text:
    EXECUTIVE OFFICE OF THE GOVERNOR, Appellant, v. AHF MCO OF FLORIDA, INC. d/b/a PHC Florida HIV/AIDS Specialty Plan, Appellee.
    No. 1D18-3951
    District Court of Appeal of Florida, First District.
    October 29, 2018
    Barry Richard and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, for Appellant.
    Steven R. Andrews, Brian O. Finnerty, and Ryan J. Andrews of The Law Offices of Steven R. Andrews, P.A., Tallahassee, for Appellee.
   Per Curiam.

Appellant, the Executive Office of the Governor, appeals the trial court's order granting mandamus relief to Appellee, AHF MCO of Florida, Inc. d/b/a PHC Florida HIV/AIDS Specialty Plan, requiring Appellant to produce the public records Appellee had requested. We reverse and remand for further proceedings.

On July 19, 2018, Appellee submitted a public records request to Appellant, seeking the production of the following records: (1) "[a] copy of Governor Scott's electronic calendar showing all meetings, events, and appearances involving the Governor for the period July 20, 2018 through October 31, 2018"; (2) "[a] copy of any hardcopy calendars or other documents showing all meetings, events, and appearances involving the Governor for the period July 20, 2018 through October 31, 2018"; (3) "[a]ll documents and records that indicate where Governor Scott will travel during the period July 20, 2018 through October 31, 2018"; (4) "[a]ll documents and records that indicate where Governor Scott will reside during the period July 20, 2018 through October 31, 2018"; and (5) "[a] list of all campaign and fundraising events Governor Scott will attend as part of his campaign for U.S. Senate during the period July 20, 2018 through October 31, 2018." In its response to the public records request, Appellant asserted that it would not produce the records because they are exempt under section 119.071(2)(d), Florida Statutes (2018).

Pursuant to Appellee's ensuing petition for writ of mandamus and the trial court's order to show cause, Appellant filed a response asserting as it does on appeal that the requested information is exempt from disclosure under section 119.071(2)(d) -which exempts "[a]ny information revealing surveillance techniques or procedures or personnel"-because the premature disclosure of prospective information regarding the Governor's detailed schedule and travel plans would reveal surveillance techniques, procedures, or personnel and would jeopardize his security. In addition, Appellant asserted below that Appellee's request (5) does not relate to public records. In support of its argument, Appellant attached to its response the affidavit of a special agent with the Florida Department of Law Enforcement ("FDLE"), who attested that it is the statutory duty of FDLE to provide for the safety of the Governor and that "[p]remature disclosure of prospective information regarding the Governor's detailed schedule, including drive times, and the time and location of the Governor's arrival and departure, would reveal FDLE's surveillance techniques, procedures, and personnel and would compromise" the security of the Governor, as well as the security of law enforcement officers whose job is to protect him.

Following an accelerated hearing where the agent's affidavit was undisputed, and without inspecting the records at issue, the trial court entered an Order on Public Records Request, in which it granted mandamus relief and ordered Appellant to produce the requested public records within ten days upon finding that the requested information does not reveal surveillance techniques, procedures, or personnel or pertain to agency investigation. This expedited appeal followed.

As we have repeatedly stated, "an in-camera inspection is 'generally the only way for a trial court to determine whether or not a claim of exemption applies.' " See, e. g. , Envtl. Turf, Inc. v. Univ. of Fla. Bd. of Trs. , 83 So.3d 1012, 1013 (Fla. 1st DCA 2012) (reversing in part the trial court's denial of a public records request based on its determination without inspection of the records that the asserted exemptions applied and remanding for an in-camera inspection to determine if the records were exempt from disclosure under the alleged exemptions) (citation omitted); Holley v. Bradford Cty. Sheriff's Dep't , 171 So.3d 805, 805 (Fla. 1st DCA 2015) (similar); Garrison v. Bailey , 4 So.3d 683 (Fla. 1st DCA 2009) (similar); see also Lopez v. Singletary , 634 So.2d 1054, 1058 (Fla. 1993) (reaffirming that "it is for a judge to determine, in an in camera inspection, whether particular documents must be disclosed").

Here, the trial court granted Appellee's request for disclosure of public records without inspecting the records, despite the special agent's undisputed attestation that the "[p]remature disclosure of prospective information regarding the Governor's detailed schedule, including drive times, and the time and location of the Governor's arrival and departure, would reveal FDLE's surveillance techniques, procedures, and personnel" and would jeopardize the security of the Governor and the officers whose duty is to protect him. Appellee's requests in (3) and (4) for "[a]ll documents and records that indicate" where the Governor will travel and reside are broad and to the extent they seek information encompassed by the agent's affidavit, such as drive times and arrival and departure times, such information is exempt from disclosure. As to other types of information not referenced in the agent's affidavit, Appellant shall produce any public records requested in (3) and (4)-in addition to any public records requested in (1), (2), and (5)-for an in-camera inspection, and the trial court shall determine if the records and/or entries contained therein are exempt from disclosure under the Public Records Act.

REVERSED and REMANDED.

Lewis and Jay, JJ., concur; Rowe, J., specially concurs with opinion.

I concur in the majority opinion, but write separately to explain why AHF's request for records relating to the Governor's calendar and travel records necessarily reveals information that could compromise the ability of the Governor's security detail to surveil for threats against the Governor and why those records are not subject to disclosure under the Public Records Act.

AHF requested the following records related to the Governor's calendar and travel plans:

(1) A copy of Governor Scott's electronic calendar showing all meetings, events, and appearances involving the Governor for the period July 20, 2018 through October 31, 2018;
(2) A copy of any hardcopy calendars or other documents showing all meetings, events, and appearances involving the Governor for the period July 20, 2018 through October 31, 2018;
(3) All documents and records that indicate where Governor Scott will travel during the period July 20, 2018 through October 31, 2018;
(4) All documents and records that indicate where Governor Scott will reside during the period July 20, 2018 through October 31, 2018; and
(5) A list of all campaign and fundraising events Governor Scott will attend as part of his campaign for U.S. Senate during the period July 20, 2018 through October 31, 2018.

In response to AHF's requests, the Executive Office of the Governor (EOG) asserted that the records requested in (1)-(4) were exempt from disclosure pursuant to section 119.071(2)(d), Florida Statutes (2018), because they contained "information revealing surveillance techniques or procedures or personnel." As to request (5), the EOG asserted that the Governor's campaign schedule and campaign fundraising schedule were unrelated to the transaction of official state business and therefore were not public records. See Butler v. City of Hallandale Beach , 68 So.3d 278 (Fla. 4th DCA 2011).

After AHF petitioned for mandamus relief, the trial court issued an order to show cause to the EOG. In response, the EOG argued that the records requested were exempt from disclosure pursuant to section 119.071(2)(d). Attached to the EOG's response was a sworn affidavit from Darrick Waller, Assistant Special Agent In Charge of the Florida Department of Law Enforcement (FDLE). Waller has served in the Protective Operations Section of FDLE (security detail) for over twelve years, during the administrations of multiple governors. Waller attested that disclosure of the records requested by AHF could reveal surveillance techniques, procedures, and the identity of law enforcement officers, which would "compromise the safety and security of the Governor." The trial court, without conducting an in camera inspection, determined that the records requested by AHF did not reveal any information exempt from disclosure under the Public Records Act, concluding instead that "[i]t simply [was] information regarding the Governor's travel schedule." This oversimplification by the trial court ignores not only the scope of AHF's request, but also that the schedule and travel plans of the Governor's security detail are in lockstep with the Governor's movements.

The Florida Constitution and the Public Records Act grant to the people the right to inspect and copy public records, however, "the legislature also has the prerogative to place reasonable restrictions on that right." Henderson v. State , 745 So.2d 319, 326 (Fla. 1999). The Legislature established such restrictions for agency investigations, specifically making exempt from disclosure "any information revealing surveillance techniques or procedures or personnel." § 119.071(2)(d), Fla. Stat. (2018). This exemption is not limited to records containing written descriptions of surveillance techniques, procedures, and personnel identifications. Rather, it exempts from disclosure "[a]ny information revealing the surveillance techniques or procedures or personnel" of the FDLE, the Capitol Police, and the Governor's security detail. See §§ 119.071(2)(d), 119.011(2), Fla. Stat. (2018) (emphasis added). Thus, the plain language of section 119.071(2)(d) reflects the Legislature's intent to exempt from disclosure any information by which a person could ascertain law enforcement surveillance techniques, procedures, and the identity of law enforcement personnel. See generally Hechtman v. Nations Title Ins. of N.Y. , 840 So.2d 993, 996 (Fla. 2003) ("It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.").

AHF's requests call for the EOG to produce records that reveal surveillance techniques, procedures, and the identity of law enforcement personnel, including members of the Governor's security detail. The records reflecting the Governor's calendar and schedule reveal not only his movements, but also the movements of his security detail. The Governor's security detail accompanies him at events in, around, outside of the Capitol, and wherever the Governor travels. The synchronized movement of the Governor and his security detail is expressly provided for by statute. The Legislature has enacted a number of laws to maintain the security of the Governor, the Governor's immediate family, and the Governor's office and mansion. § 943.68, Fla. Stat. (2018). Members of the security detail are authorized to provide for the Governor's transportation, coordinate safety and security efforts with other law enforcement agencies, bear arms and make arrests (with or without a warrant), and employ the personnel necessary to carry out these duties. §§ 943.68(2), (3), (7), Fla. Stat. (2018). The Capitol Police and the Governor's security detail also respond to all complaints relating to criminal activity or security threats against the Governor. §§ 943.61(4)(g), 943.68, Fla. Stat. (2018).

Indeed, the core mission of the Governor's security detail is to keep a close watch over the Governor. That is the very definition of "surveillance." Surveillance , Merriam-Webster, https://www.merriam-webster.com/dictionary/surveillance (last visited Oct. 19, 2018) ("close watch kept over someone or something"). The affidavit of Waller explains how AHF's requests for the Governor's schedule and travel records inevitably call for documents revealing surveillance techniques, procedures, and identities of those keeping a close watch over him. Waller attested that the duties of the security detail include "advance work, threat assessments, threat response planning, emergency evacuation planning, and sheltering arrangements." Waller averred that the calendar and travel records requested by AHF include highly sensitive information, such as drive times, the time and location of the Governor's arrival and departure, and that premature disclosure of this information would compromise the security detail's statutory duty to maintain the Governor's security and to guard against potential threats.

In addition to the Waller affidavit, AHF introduced a number of exhibits (copies of calendars and scheduling documents produced by the Governor in the past to AHF) that reveal the surveillance techniques, procedures, and the identity of FDLE agents. Those exhibits include: (1) records of daily emails containing the Governor's schedule and revealing the identity of FDLE agents; (2) the Governor's line-by-line personal schedules reflecting that the security detail transports the Governor to and from each event, whether the transportation involves a five-minute drive or air travel; (3) records identifying private aircraft used by the Governor and his security detail; and (4) calendars reflecting that the security detail accompanies the Governor to the airport, private residences, the Capitol, and where the Governor sleeps at night.

Based on the undisputed record before this Court, AHF has requested records that include information revealing surveillance techniques, procedures, and the identities of law enforcement officers. Compelled disclosure of these highly sensitive records not only compromises law enforcement information made exempt under the Public Records Act, it also compromises the statutory mandate of the security detail to provide for and maintain the security of the Governor. For these reasons, I join the majority in holding that the trial court erred in concluding that the records were not exempt under section 119.071(2)(d) and compelling the EOG to produce public records responsive to AHF's request. On remand, the trial court should carefully inspect the public records produced by the EOG to determine whether any of those records reveal any information about surveillance techniques, procedures, or law enforcement personnel. The trial court should also consider testimony and evidence submitted by the parties before determining whether the public records, or portions thereof, may be exempt under section 119.071(2)(d).

      It is undisputed that the EOG releases the Governor's schedule on a daily basis. Although AHF repeatedly referred to this practice to support its argument that the requested records should not be exempt, the Governor's decision to release records on a schedule of his choosing does not waive his ability to assert the exemption prospectively. As a person entitled to assert the exemption under the statute, the Governor may assert or voluntarily waive the exemption.


author: PER CURIAM.

text:
    Lysander LONGMIRE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2217
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 30, 2018
    Lysander Longmire, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Zeigler v. State , 632 So.2d 48, 50 (Fla. 1993) (citing Demps v. State , 515 So.2d 196, 198 (Fla. 1987) ).

ORFINGER, BERGER and EDWARDS, JJ., concur.


author: Winokur, J.

text:
    Trayvis Devonne SHAW, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1804
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Christopher J. Jones of the Law Offices of Edwards and Jones, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and William P. Cervone, State Attorney, Gainesville, for Respondent.
   Winokur, J.

Petitioner Trayvis Shaw, Jr. seeks a belated appeal of his 2016 conviction and forty-year sentence for robbery with a firearm. A special master recommended that Shaw be granted a belated appeal. We disagree, and deny the petition.

During his robbery trial, after the jury left the courtroom to begin deliberations, Shaw fled the courthouse. When court reconvened after the jury reached a verdict, Shaw could not be located. The court proceeded without Shaw, and the jury found him guilty as charged of both counts. The court then sentenced Shaw, but did not orally pronounce that Shaw had thirty days to appeal the judgment and sentence.

Two and a half months later, Shaw was arrested for absconding, and began serving his sentence. Shaw later petitioned for a belated appeal on two grounds: first, that prior to absconding on the day of his trial, he had directed his counsel to appeal any adverse verdict; and second, that the trial court failed to "advise" him of his right to appeal during sentencing.

During a hearing on the petition, trial counsel testified that Shaw never asked him at any time to file an appeal of a potential conviction. The special master found Shaw's assertion that he asked trial counsel to file an appeal not credible, and accepted trial counsel's contrary testimony. However, the special master nonetheless recommended that Shaw be granted a belated appeal because the trial court failed to orally pronounce Shaw's right to appeal. The special master supported this conclusion with three reasons: first, counsel should not have consented to sentencing on the day of trial and Shaw's appellate rights "would have been better protected" had he not; second, family members of Shaw were present at trial and they were never made aware that Shaw could appeal; and third, trial counsel could have just filed a notice of appeal without Shaw's consent. None of these reasons supports belated appeal.

Regarding the first and third reasons, neither is related to the trial court's failure to orally pronounce Shaw's right to appeal. While one can argue that trial counsel should have attempted to postpone sentencing, this has nothing to do with the trial court failing to pronounce the right to appeal. The same is true with the special master's third reason. The possibility that counsel could simply have filed a notice of appeal without any direction from Shaw has nothing to do with pronouncement of the right to appeal; in fact, it has nothing to do with Shaw's right to a belated appeal at all. If the possibility that counsel could have filed a notice of appeal without the defendant's instruction (or even knowledge) shows that belated appeal should be granted, then virtually every belated-appeal petitioner would be entitled to one.

The special master also concluded that Shaw's family members present at trial were never made aware of Shaw's appellate rights. The implication is that family members could have asked trial counsel to appeal if the trial court had rendered this information. Trial counsel is not obligated to appeal merely because family members ask him for an appeal. This reason does not support belated appeal.

The real question presented here is whether a defendant is entitled to a belated appeal when the court does not pronounce the right to appeal at sentencing, when the defendant has absconded and is not present at sentencing. Despite case law holding that a defendant is entitled to a belated appeal if the court fails to pronounce this right, the special master noted correctly that such case law is factually distinguishable from Shaw's case because the defendants there were present to hear the court's advice. This should have ended the inquiry. Notification of the right to appeal is required advice to the defendant. If the defendant is absent, there is no one to advise, and the failure to present the advice is harmless. The court is not required to give advice to an empty chair. Granting a belated appeal in this circumstance is elevating form over substance. Accordingly, Shaw is not entitled to a belated appeal, and the petition is DENIED.

Lewis and Wetherell, JJ., concur.

      The record indicates that neither the State Attorney nor the Attorney General filed a response to the Report and Recommendation of the Special Master. While this lack of response could be viewed as a concession by the State that a belated appeal should be granted, this Court is not bound to accept improper concessions by the State. Perry v. State , 808 So.2d 268, 268 (Fla. 1st DCA 2002). The order from this Court referring the matter to the special master makes clear that this Court determines whether Shaw is entitled to a belated appeal after considering the report and any response. As such, neither the special master's recommendation, nor the lack of response, is dispositive.

      Nor does this fact generally entitle Shaw to a belated appeal. The mere fact that Shaw's counsel declined to postpone sentencing does not demonstrate that a belated appeal is called for.

      The attorney-client relationship requires that lawyers follow their client's directives. See R. Regulating Fla. Bar 4-1.2. Similarly, the rules of professional conduct require a lawyer to ensure that "there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship" and that confidentiality is maintained. R. Regulating Fla. Bar 4-1.8(f)(2). These requirements are inconsistent with the notion that lawyers must file a notice of appeal at the directive of any individual aside from their client.

      See Polk v. State , 884 So.2d 498, 499 (Fla. 5th DCA 2004) ("[W]e grant the petition for writ of habeas corpus for belated appeal because [the defendant] was not advised at the time of sentencing that a thirty-day time limit existed within which an appeal must be filed."); Bowden v. Singletary , 805 So.2d 812, 812 (Fla. 3d DCA 1999) ("Bowden was not informed of his right to file a notice of appeal within thirty days of rendition, and he is therefore entitled to a belated appeal."); Williams v. Singletary , 723 So.2d 923 (Fla. 3d DCA 1999) ("Because the trial court failed to inform the defendant of her right to appeal ... we grant the defendant's petition for belated appeal") (all emphasis added).

      Florida Rule of Criminal Procedure 3.670 requires a trial court when rendering a conviction to "forthwith inform the defendant concerning the rights of appeal therefrom, including the time allowed by law for taking an appeal." (Emphasis added.) Accordingly, Florida courts have emphasized that the rule requires that defendants be "advised" or "informed" of their appellate rights. See cases cited supra n. 4. Thus, Rule 3.670 presumes that a defendant is present during sentencing and that is why, in these above-cited cases, the defendants were granted their petitions for belated appeal. In this case, however, whether the trial court orally pronounced that Shaw had thirty days to appeal his sentence or not, the result is the same: he would not have been informed of his appellate rights since he fled the courtroom before sentencing.


text:
    Willie C. FORD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2091
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Willie C. Ford Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Willie C. Ford Jr., appeals from an order summarily denying several grounds of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Specifically, the lower court determined that Grounds 2, 3, 4, 5, 7, 8, 9, 10, and 11 of the motion were subject to dismissal based on untimely filing. For the reasons below, we reverse the order as to those enumerated grounds of Appellant's motion.

A. Procedural History

In 2000, after pleading guilty to ten counts of burglary and armed burglary, Appellant was sentenced to a prison term of ten years, to be followed by ten years of probation as to count 17 (armed burglary). Appellant served the ten-year prison term and was then released on probation. In August of 2010, the State filed an affidavit alleging a probation violation. In January of 2012, the lower court determined that Appellant willfully and substantially violated his probationary terms. Appellant was sentenced to a prison term of fifty years. This Court per curiam affirmed that judgment and sentence in Ford v. State , 118 So.3d 223 (Fla. 1st DCA 2013) (table). Once the judgment and sentence became final at that point, the two-year window for filing a postconviction motion was set to expire on August 31, 2015.

Appellant filed a motion to correct an illegal sentence in June of 2015, and this Court per curiam affirmed the order denying that motion, with the mandate issuing on February 2, 2016. See Ford v. State , 182 So. 3d 640 (Fla. 1st DCA 2016) (table). While that appeal was still pending, Appellant timely filed his first rule 3.850 motion on July 15, 2015. However, the postconviction court ruled that the motion did not satisfy the pleading requirements of rule 3.850, and on August 30, 2015, Appellant was given sixty days to amend the motion. Appellant then timely filed an amended rule 3.850 motion on October 13, 2015. The postconviction court ruled that the motion contained issues "related" to those in the motion to correct an illegal sentence that was still at issue in a pending appeal. The lower court again dismissed Appellant's timely rule 3.850 motion, but the order did not include an explicit deadline for refiling it upon the conclusion of appellate proceedings regarding the motion to correct illegal sentence. Appellant filed the instant rule 3.850 motion on July 25, 2016. The postconviction court denied that motion as untimely filed, and Appellant appealed.

B. Timelines of the Motion

The lower court erred by imposing an unspecified time restriction for the re-filing of the instant motion. The order on review provides that Appellant had "60 days" to re-file his rule 3.850 motion once the appeal regarding the rule 3.800 motion had concluded. However, the order of dismissal as to the October 13, 2015, motion only advised that Appellant "could refile upon completion of the pending appeal if [he] so wishes." The lower court indicated in the order on review that Appellant should have inferred that his new filing deadline was April 4, 2016, based on (a) the sixty-day re-filing window granted as to the initial motion filed in July of 2015, and (b) the date that the appeal on the rule 3.800 motion concluded, which was February 2, 2016.

It is well-established that a court cannot enforce a filing deadline which must be inferred by a party. See Armstrong v. State , 989 So.2d 1291, 1292 (Fla. 4th DCA 2008) (" 'Facially insufficient motions should be denied without prejudice to refile a sufficient amended motion within an appropriate time period set forth in the order before dismissal or summary denial can be entertained.' " (quoting Woods v. State , 963 So.2d 348, 349 (Fla. 4th DCA 2007) ); Brigham v. State , 950 So.2d 1274, 1275 (Fla. 2d DCA 2007) (concluding that the trial court erred by dismissing the amended motion for postconviction relief as untimely where the order dismissing the original motion granted leave to amend, but did not specify a deadline). As the State now concedes, the order dismissing Grounds 2, 3, 4, 5, 7, 8, 9, 10, and 11 of the instant motion must be reversed and the claims remanded for consideration on the merits. The denial of all remaining grounds is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED .

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


text:
    Lisa VENN, Appellant, v. Kenneth M. FOWLKES, III, Appellee.
    No. 1D17-0003
    District Court of Appeal of Florida, First District.
    October 31, 2018
    William S. Graessle and Jonathan W. Graessle, William S. Graessle, P.A., Jacksonville, for Appellant.
    Rebecca B. Creed and Thomas A. Burns, Creed & Gowdy, P.A., Jacksvonville, for Appellee.
   Per Curiam.

Lisa Venn appeals a final judgment granting a petition for a stalking injunction filed by Kenneth M. Fowlkes, III. We reverse because it is not supported by competent, substantial evidence.

In November 2016, Mr. Fowlkes filed a petition for protection against stalking against Ms. Venn with whom he had a 15-year relationship and shared a minor child. Upon separating in 2009, they sought and obtained injunctions against each other. And since that time their relationship has remained turbulent. In Mr. Fowlkes's 2016 petition here, he alleged that Ms. Venn stalked and harassed him at all hours at his work and home, and harassed him by filing a child support case. The allegations include that Ms. Venn called him many times without leaving a message; has knocked on the door of his house and ran; has created many problems at the restaurant where he works; has claimed to have many pictures of him and his wife; has called and bothered Mr. Fowlkes's brother; has claimed to be in fear of Mr. Fowlkes; and has told a third-party that she would "get the crackers on [him]." Claiming to be "tired of [Ms. Venn's] games, [her] stalking, [and her] harassment through the child support case," Mr. Fowlkes asked the trial court to stop it immediately by granting an injunction.

The trial court held a hearing in which both parties appeared pro se. By that time, the transcript indicates that Ms. Venn had filed her own petition for a stalking injunction against Mr. Fowlkes. At the hearing, Mr. Fowlkes testified that everything in his petition was true and correct and provided no additional substantive testimony. Ms. Venn objected to the injunction and, in response to the trial court's questions, testified to having legitimate reasons for visiting Mr. Fowlkes's workplace and home. For instance, she testified that she came to the restaurant several times with the parties' daughter, at the daughter's request and after Mr. Fowlkes had invited the daughter to eat there. Ms. Venn also conceded placing something in Mr. Fowlkes's mailbox related to her child support case against him. In Ms. Venn's view, Mr. Fowlkes's petition was filed in retaliation for her having filed a child support case against him. And she asked the trial court to have her own stalking petition granted against Mr. Fowlkes. In her view, Mr. Fowlkes and others were conspiring against her.

"A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking." § 784.048(2), Fla. Stat. "Harass" means "to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." § 784.048(1)(a), Fla. Stat. "Whether the purpose for contact is 'legitimate' is evaluated on a case-by-case basis. ... However, courts have generally held that contact is legitimate when there is a reason for the contact other than to harass the victim." O'Neill v. Goodwin , 195 So.3d 411, 413 (Fla. 4th DCA 2016). To be entitled to a stalking injunction, a petitioner must allege and prove two separate instances of stalking, and that the incidents alleged objectively caused substantial emotional distress. Pickett v. Copeland , 236 So.3d 1142, 1144 (Fla. 1st DCA 2018).

In this case, Mr. Fowlkes alleged numerous acts of harassment. But he did not sufficiently establish his case that Ms. Venn's conduct caused him substantial emotional distress. The "substantial emotional distress" that is necessary to support a stalking injunction is greater than just an ordinary feeling of distress. Burroughs v. Corey , 92 F.Supp.3d 1201, 1205 (M.D. Fla. 2015) ("Under Florida law, a reasonable person does not suffer substantial emotional distress easily."), aff'd , 647 Fed. Appx. 967 (11th Cir. 2016). And here, neither the petition, nor Ms. Venn's testimony at the hearing, support the conclusion that her alleged conduct would have caused a reasonable person in Mr. Fowlkes's situation to experience substantial emotional distress as required to obtain a permanent stalking injunction. See Mitchell v. Brogden , 249 So.3d 781, 782 (Fla. 1st DCA 2018) (listing cases with similar facts where the statutory standard was not met). Certainly Mr. Fowlkes's petition, and its description of the years after his personal relationship ended with Ms. Venn, shows that he is annoyed, frustrated, and feeling harassed in his dealings with Ms. Venn, and with the pending child support issue relating to their daughter. But his petition and these circumstances do not demonstrate that Ms. Venn's actions would have caused an objective, reasonable person in his situation to suffer substantial emotional distress.

Accordingly, the final judgment is reversed.

REVERSED .

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

      We also reject Mr. Fowlkes's preservation arguments, because Ms. Venn clearly expressed her objections to the entry of the injunction at the hearing below.