author: ROTHENBERG, C.J.

text:
    Javier CUENCA, Appellant, v. STATE BOARD OF ADMINISTRATION, Appellee.
    No. 3D18-780
    District Court of Appeal of Florida, Third District.
    Opinion filed November 14, 2018
    Law Offices of Slesnick and Casey, LLP, and James C. Casey, Coral Gables, for appellant.
    Ruth Ann Smith (Tallahassee), Assistant General Counsel; Pennington, P.A., and Brian A. Newman (Tallahassee) and Brandice D. Dickson (Tallahassee), for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

Javier Cuenca ("Cuenca"), a former employee of the Miami-Dade County Public Schools ("MDCPS"), seeks judicial review of the final order entered by the State Board of Administration ("State Board"), concluding that pursuant to section 112.3173(3), Florida Statutes (2012), Cuenca has forfeited his rights and benefits under the Florida Retirement System ("FRS") Investment Plan, except for the portion of his accumulated contributions, because he was convicted of a "specified offense" committed prior to his retirement as defined in section 112.3173(2)(e) 6., Florida Statutes (2012). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 7, 2017, the State Board notified Cuenca that pursuant to section 112.3173 he had forfeited his rights and benefits under the FRS Investment Plan as a result of his October 4, 2016 plea of nolo contendere to two counts of felony battery in case number 14-25626 for acts committed while employed by MDCPS and demanded that Cuenca return the distributions he had received, except for his employee contributions. After receiving the State Board's notice, Cuenca requested a formal hearing before the Division of Administrative Hearings ("DOAH").

At the formal hearing before DOAH, the State Board introduced into evidence, among other things, the following: (1) the transcript of the sworn statement of one of the victims, D.F., made prior to Cuenca's arrest in case number 14-25626; (2) the original information filed against Cuenca relating to D.F.; (3) the arrest affidavit relating to D.F.; (4) the transcript of D.F.'s deposition conducted by Cuenca's counsel following Cuenca's arrest; (5) the consolidated information resulting from Cuenca's negotiated plea; and (6) the transcript of Cuenca's plea colloquy. In addition, several witnesses testified at the hearing, including Cuenca and the prosecutor involved in Cuenca's criminal case.

The evidence presented at the hearing reflects that Cuenca was employed by MDCPS in various positions, including as a basketball coach. After four of Cuenca's basketball players alleged that he had sexually harassed and/or assaulted them, Cuenca was charged in four separate cases with lewd and lascivious molestation on a child twelve years of age or older but less than sixteen years of age, attempted lewd and lascivious molestation on a child twelve years of age or older but less than sixteen years of age, or lewd and lascivious conduct on a child over sixteen years of age by a defendant over eighteen years of age.

D.F.'s sworn statement and/or deposition reflect that Cuenca was D.F.'s basketball coach starting when he was in the seventh grade at a Miami-Dade County middle school, and Cuenca also coached D.F. when he was in the ninth grade at a Miami-Dade County high school. While D.F. and Cuenca were alone in a classroom when D.F. was in the ninth grade, Cuenca asked D.F. to see what he referred to as D.F.'s "virgin line." Cuenca explained to D.F. that by looking at D.F.'s penis, he could tell whether or not D.F. was a virgin and this was important because having sex would adversely affect D.F.'s basketball performance. Because Cuenca had repeatedly asked D.F. to let him see his "virgin line" and D.F. was tired of being repeatedly asked, D.F. pulled down his shorts and exposed his penis. However, when Cuenca attempted to touch D.F.'s genitals, D.F. swiped Cuenca's hand away before Cuenca was able to touch him, pulled up his pants, and left the classroom. D.F. did not initially report this incident. The evidence also reflects that Cuenca asked D.F. if he wanted to take an enhancement drug that would make him stronger and bigger. At first, D.F. said that he did, but after Cuenca told D.F. that he would have to constantly check D.F.'s testicles while on the drug, D.F. decided to not take the enhancement drug because he did not want expose his genitals to Cuenca.

In addition to the original information relating to D.F., the police reports, the consolidated information, D.F.'s sworn statement, the prosecutor's testimony, and the judgment showing Cuenca's convictions for two counts of felony battery, the State Board also introduced a transcript of the plea colloquy, which reflects that Cuenca entered into a negotiated plea on October 4, 2016. The transcript reflects that although Cuenca was willing to change his plea from not guilty to one of no contest, Cuenca was unwilling to plea to any charge that would designate him as a sexual offender or to any charge he believed would later prohibit him from sealing his criminal record. Thus, the State agreed to consolidate the four cases involving four separate victims into a single four-count information under case number 14-25626, dismiss two of the four counts, and amend the two remaining counts relating to victims D.F. and O.Q. to charge felony batteries, in exchange for Cuenca's plea of nolo contendere to two counts of felony battery, and Cuenca's agreement to waive any defects in the new charging document or the arrest forms and to stipulate that there was a prima facie factual basis for the negotiated plea. Pursuant to the negotiated plea, Cuenca pled nolo contendere to the two counts of felony battery, stipulated that there was a factual basis to support his plea, waived any and all defects in the amended information, and agreed, among other things, that during the term of his probation, he could not: have any unsupervised contact with any minor; reside in a setting with minors; or teach, volunteer, coach, or engage in any activity that would place him in a position of authority over minors. Based on the negotiated plea, the trial court found Cuenca guilty of the two counts of felony battery and withheld adjudication.

In addition to the plea colloquy and other documentary evidence, Cuenca and the prosecutor who investigated the case and negotiated the plea with Cuenca, testified at the formal hearing. Cuenca admitted that he was D.F.'s basketball coach at a Miami-Dade County public middle school and high school, and that he was aware of the allegations made by D.F.-that he had asked D.F. to pull down his shorts, and thereafter, he had attempted to touch D.F.'s genitals. Cuenca also acknowledged that he was able to be at the high school because he was a basketball coach at the school, and he additionally acknowledged that he entered into the negotiated plea to resolve the pending criminal charges, including those relating to D.F.

Following the hearing, the ALJ entered its recommended order making numerous factual findings, including that Cuenca was an employee of MDCPS and that Cuenca pled nolo contendere to two counts of felony battery, which constitutes a "conviction" pursuant to section 112.3173(2)(a).

However, in its conclusions of law, the ALJ determined that despite its determination that Cuenca was an employee of MDCPS at the time of the offenses, the State Board failed to establish the "nexus" requirement for forfeiture under section 112.3173(2)(e) 6., and therefore, Cuenca had not forfeited his FRS benefits. Specifically, the ALJ determined that the record lacked competent, substantial evidence of Cuenca's conduct, the circumstances, and the location associated with Cuenca's crimes. Additionally, despite concluding that Cuenca "had a duty to the public to safeguard students," the ALJ determined that the "record fail[ed] to meet the statutory requirement and demonstrate any nexus between the crimes charged against [Cuenca] and his duties as a coach because no factual basis was established ... between the offenses committed and [Cuenca's] position as a coach." In reaching its conclusions, the ALJ found persuasive and relied on Rivera v. Board of Trustees of the City of Tampa's General Employment Retirement Fund, 189 So.3d 207 (Fla. 2d DCA 2016).

Cuenca and the State Board did not file exceptions to the ALJ's recommended order. The matter then went before the State Board for final agency action. In its final order, the State Board adopted the ALJ's factual findings and rejected a portion of the ALJ's conclusions of law, including that the State Board failed to establish the requirements for forfeiture under section 112.3173(2)(e) 6., and therefore, Cuenca had not forfeited his FRS benefits. The State Board also found that the ALJ's reliance on Rivera was misplaced, and included the following additional conclusions of law:

50. School teachers and coaches occupy a unique position with respect to minors, as they act in loco parentis to the students and players that they teach or coach.... Thus, [Cuenca], as a basketball coach acting in loco parentis, was an authority figure who had ample opportunities to engage in inappropriate contact with the students he coached because of his public position.
....
59. In this matter, [Cuenca] by virtue of his public employment exercised a position of authority over the minor victim he taught and coached....
60. The evidence is sufficient to establish a nexus between the offense(s) to which [Cuenca] pled and [Cuenca's] public employment. As such, the requirements of Section 112.3173(2)(e) 6., Florida Statutes, are satisfied, and [Cuenca's] rights and benefits under the FRS Investment Plan must be forfeited.

Cuenca's appeal of the final agency order followed. See § 120.68(1)(a), Fla. Stat. (2017) ("A party who is adversely affected by final agency action is entitled to judicial review.").

ANALYSIS

Cuenca contends that the State Board erred by concluding in its final agency order that Cuenca forfeited his FRS retirement benefits under the catch-all forfeiture provision set forth in section 112.3173(2)(e) 6. As will be discussed fully below, we find no error.

Judicial review of the State Board's final agency action is governed by section 120.68 of Florida's Administrative Procedure Act. See Bollone v. Dep't of Mgmt. Servs., Div. of Ret., 100 So.3d 1276, 1279 (Fla. 1st DCA 2012) ; Simcox v. City of Hollywood Police Officers' Ret. Sys., 988 So.2d 731, 732 (Fla. 4th DCA 2008). The State Board's final agency action may be set aside "only upon a finding that it is not supported by substantial competent evidence in the record or that there are material errors in procedure, incorrect interpretations of law, or an abuse of discretion." Hames v. City of Miami Firefighters' & Police Officers' Tr., 980 So.2d 1112, 1114 (Fla. 3d DCA 2008) (quoting Waters v. Dep't of Health, Bd. of Med., 962 So.2d 1011 (Fla. 3d DCA 2007) ); see also § 120.68(7), Fla. Stat. (2017). Further, "an agency's interpretation of the statutes that it is charged with administering is entitled to deference unless the agency's interpretation is clearly erroneous." Bollone, 100 So.3d at 1279.

A public employee's forfeiture of rights and benefits under a public retirement system is governed by article II, section 8(d) of the Florida Constitution and section 112.3173 of the Florida Statutes. Article II, section 8 (d) provides that "[a]ny public officer or employee who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law." To implement this provision, the Florida Legislature enacted section 112.3173, which provides, in part, as follows:

(3) FORFEITURE.-Any public officer or employee who is convicted of a specified offense committed prior to retirement ... shall forfeit all rights and benefits under any public retirement system of which he or she is a member, except for the return of his or her accumulated contributions as of the date of termination.

§ 112.3173(3) (emphasis added). The term "specified offense" is defined in section 112.3173(2)(e) and, as pertinent in this case, includes the following, which is referred to as the "catch-all" forfeiture provision:

6. The committing of any felony by a public officer or employee who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position[.]

§ 112.3173(2)(e) 6.

As explained by the First District Court of Appeal in Bollone, 100 So.3d at 1280-81 :

In order to constitute a "specified offense" under section 112.3173(2)(e) 6., the criminal acts must be: (a) a felony; (b) committed by a public employee; (c) done willfully and with intent to defraud the public or the employee's public employer of the right to receive the faithful performance of the employee's duty; (d) done to obtain a profit, gain or advantage for the employee or some other person; and (e) done through the use or attempted use of the power, rights, privileges, duties, or position of [the employee's] employment.

This determination is based on the "conduct of the public [employee], not by the elements of the crime for which the [public employee] was convicted ." Id. at 1280 (emphasis added).

The evidence presented at the formal hearing satisfied each of the elements set forth in Bollone. The criminal act was: (a) a felony; (b) committed by Cuenca, who was a public employee with MDCPS; (c) done willfully and with the intent to defraud Cuenca's public employer-MDCPS-of the right to receive the faithful performance of his duties; (d) done to obtain a gain or advantage for himself-sexual gratification; and (e) done through the use of his power, rights, privileges, duties or position as a coach and/or teacher for MDCPS.

Contrary to Cuenca's argument, the State Board correctly rejected several of the ALJ's conclusions of law, including the ALJ's finding that there was no nexus between the criminal acts and Cuenca's public employment with MDCPS. The evidence presented at the formal hearing clearly established that Cuenca was employed by MDCPS as a teacher and/or basketball coach. As a result of his public employment with MDCPS, Cuenca was given access to the students he taught and/or coached, and as a teacher and/or coach, Cuenca exercised a position of authority over these students. Both the students and their parents expected that while the students were in Cuenca's care and under his supervision, he would protect, not abuse the students or engage in inappropriate conduct with them. Instead, while entrusted with the care and supervision of students, Cuenca chose to engage in inappropriate conduct with students he coached, including D.F. Cuenca called D.F. into a classroom or area of the school where nobody was present. Cuenca then asked D.F. to show him his penis under the guise of checking for what he called a "virgin line." Because Cuenca had repeatedly asked D.F. to show him his penis, D.F. finally acquiesced and lowered his shorts, exposing his penis. Cuenca then attempted to touch D.F.'s genitals, but D.F. was able to slap Cuenca's hand away. Based on the evidence presented, the necessary nexus was clearly established. Thus, the State Board correctly concluded in its final agency order that Cuenca forfeited his FRS Investment Plan benefits under the catch-all forfeiture provision, section 112.3173(2)(e) 6.

Although we have determined that the State Board correctly concluded that Cuenca forfeited his retirement benefits, we briefly address Cuenca's misplaced reliance on Rivera. The Board of Trustees of the City of Tampa's General Employment Retirement Fund ("Board") found that based on the evidence presented: Rivera worked at the City of Tampa ("City") Wastewater Department; while working for the City, Rivera used a set of keys issued to him by the City to access the wastewater pump stations; he was arrested at one of the City's wastewater pump stations after he was found on the premises; a subsequent investigation revealed that Rivera had also taken other minors to the wastewater pump stations to engage in unlawful sexual acts with several minor victims; and Rivera pled guilty to: two counts of lewd and lascivious battery of a victim age twelve to fifteen; one count of unlawful sexual activity with minors age sixteen to seventeen; and four counts of lewd and lascivious molestation of a victim age twelve to fifteen. Id.

Thus, the Board concluded that because: Rivera was convicted of specified offenses as defined in section 112.3173(2)(e) 7.; Rivera utilized the keys issued by the City to enter the City's property to commit the specified offenses; and Rivera committed the offenses through the use or attempted use of the power, rights, privileges, duties, or position of his public employment, Rivera had forfeited his retirement benefits. Id. Rivera appealed the forfeiture order.

On appeal, the Second District Court of Appeal concluded that, although the evidence established that Rivera was a public employee and he committed the charged offenses, the Board failed to establish that there was a nexus between Rivera's position as a City employee and his commission of the offenses. This finding was based on the Second District's finding that the Board had failed to introduce a transcript of the plea colloquy (which would have included either a statement of the factual basis for the plea or a stipulation of the factual basis for the plea), and that the only evidence presented was double or triple hearsay. Id. at 213. Although "[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, [ ] it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." § 120.57(1)(c), Fla. Stat. (2017) Thus, the Second District concluded that the forfeiture order was not supported by competent, substantial evidence, and reversed the Board's forfeiture order. Rivera, 189 So.3d at 213.

Rivera, however, is factually distinguishable from the instant case. First, the minor victims of the crimes Rivera pled guilty to were not in any manner related to his position at the City's Wastewater Department. Rivera's position did not involve safeguarding minors and did not place him in any position of authority over minors. In contrast, Cuenca's position as a basketball coach at a Miami-Dade County middle school and high school put him in a position of authority over the students, including D.F. who he coached at middle school and high school. Second, unlike in Rivera, where the required nexus was established solely through hearsay, that was not the case here. The plea colloquy constitutes a statement against interest and is non-hearsay evidence. Additionally, during the plea colloquy, Cuenca stipulated that there was a factual basis for the plea and that the charging documents and arrest forms provided a prima facie basis for the plea, and the trial court additionally found that there was a prima facie basis for the negotiated plea. Moreover, at Cuenca's formal hearing, Cuenca testified and he admitted that he had coached D.F. at a Miami-Dade County public school and that he worked at a Miami-Dade County public school as a coach at the time he committed the offense against D.F. Thus, the nexus between Cuenca's position as a public school coach and the charged offenses was establish by a combination of both hearsay and non-hearsay evidence. We, therefore, conclude that Rivera is distinguishable from the instant case and Cuenca's reliance on Rivera is therefore misplaced.

CONCLUSION

Based on the above analysis, we conclude that the State Board's determination that Cuenca forfeited his rights and benefits under the FRS Investment Plan, except for the portion of his accumulated contributions, is supported by competent, substantial evidence. We, therefore, affirm the order under review.

The remaining arguments raised by Cuenca do not merit discussion.

Affirmed.

      Section 112.3173(2)(a), Florida Statutes (2012), provides as follows:
      (2) DEFINITIONS.-As used in this section, unless the context otherwise requires, the term:
      (a) "Conviction" and "convicted" mean an adjudication of guilt by a court of competent jurisdiction; a plea of guilty or of nolo contendere; a jury verdict of guilty when adjudication of guilt is withheld and the accused is placed on probation; or a conviction by the Senate of an impeachable offense.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Antonio DARWIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-618
    District Court of Appeal of Florida, Second District.
    Opinion filed November 14, 2018
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Antonio Darwin appeals his sentence for one count of uninformed HIV-infected sexual intercourse. Specifically, Mr. Darwin challenges a $525 discretionary fine imposed at resentencing. Because he was not present at resentencing, we reverse.

Following his first sentencing hearing, Mr. Darwin filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b) arguing that a $525 discretionary fine was improperly imposed because it was not orally pronounced. The State agreed that the fine should have been orally pronounced, and the trial court set the matter for a status conference during which it orally pronounced the $525 fine and made no other changes to the original sentence. Mr. Darwin was not present for the resentencing and argues that the trial court erred by proceeding in his absence. We agree.

"A defendant has a right to be present at any sentencing proceeding except those that are purely ministerial in nature." Rivers v. State, 980 So.2d 599, 600 (Fla. 2d DCA 2008) ; see also Jordan v. State, 143 So.3d 335, 338 (Fla. 2014) (noting that this right has been extended to resentencing hearings). Where the trial court is merely conducting a ministerial act, the defendant's absence from the proceedings will be considered harmless error. Thompson v. State, 208 So.3d 1183, 1187 (Fla. 3d DCA 2017). However, "a resentencing at which the trial judge has judicial discretion is not a ministerial act." Jordan, 143 So.3d at 339 ; see also Acosta v. State, 46 So.3d 1179, 1180 (Fla. 2d DCA 2010) ("[W]here the resentencing is within the trial court's discretion, the resentencing is not purely ministerial, and a defendant is entitled to be present at the hearing.").

Here, the trial court exercised discretion in orally pronouncing a discretionary fine at resentencing, the resentencing was not merely a ministerial act, and Mr. Darwin was entitled to be present. See Jordan, 143 So.3d at 339 ; Rivers, 980 So.2d at 600. The State failed to establish that the error of Mr. Darwin's absence was harmless. See Jordan, 143 So.3d at 339 (noting that the burden is on the State to establish beyond a reasonable doubt that the error was harmless). Further, the record does not establish a knowing, intelligent, and voluntary waiver of this right by Mr. Darwin. See Tyler v. State, 793 So.2d 137, 143 (Fla. 2d DCA 2001) ; Elmer v. State, 140 So.3d 1132, 1137 (Fla. 5th DCA 2014).

Accordingly, we must reverse and remand for resentencing.

MORRIS and ATKINSON, JJ., Concur.

      See Osterhoudt v. State, 214 So.3d 550, 551 (Fla. 2017) ("[W]e hold that trial courts must individually pronounce discretionary fees, costs, and fines during a sentencing hearing to comply with due process requirements.").


author: ATKINSON, Judge.

text:
    Jorge AGUILAR, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4086
    District Court of Appeal of Florida, Second District.
    Opinion filed November 14, 2018
    Howard L. Dimmig, II, Public Defender, and Rachel Roebuck, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   ATKINSON, Judge.

Jorge Aguilar appeals the final judgment of conviction and sentence adjudicating him guilty for possessing a firearm as a felon based upon his nolo contendere plea. He reserved the right to appeal the denial of his dispositive motion to suppress the firearm that the police obtained after searching his home. Because the State failed to establish that it discovered the weapon within the scope of the consent Mr. Aguilar voluntarily gave to search his home, we reverse.

On June 10, 2015, seven uniformed officers from the Manatee County Sheriff's Office arrived near Mr. Aguilar's duplex just after two o'clock in the morning in response to a 9-1-1 call that shots had been fired. The deputies were attempting to locate the source of the gunshots. There were at least six police cars parked in front of Mr. Aguilar's small duplex. Lieutenant Andrews spoke with a group of people standing in the street who indicated that the shots had come from the duplex. There had been another shooting at the same address a few weeks earlier, during which someone was shot and injured.

At the hearing on Mr. Aguilar's motion to suppress, seven law enforcement officers testified-Deputy Murges, Deputy Bichsel, Officer Schmitt, Lieutenant Andrews, Deputy Schwartz, Detective Johnson, and Detective Lidell. Deputies Murges, Bichsel, and Schwartz, along with Officer Schmitt and Lieutenant Andrews, were among the seven initial responders. Three detectives arrived approximately twenty minutes later, between 2:28 and 2:35 a.m. according to a crime scene log created by Deputy Murges.

Lieutenant Andrews testified that when he first arrived on scene he saw Mr. Aguilar walking nervously around outside of the duplex. He decided to order an initial security sweep:

Based on the prior incident at the house a week or two before, the fact that odor of gunpowder present in the immediate area, when [Mr. Aguilar] opened the door, there was the haze of burnt gunpowder smoke, I can see a shell casing lying on the floor from being out in the driveway, which did lead me to believe that there was obviously an exchange of gunfire and there was a potential that someone could have been hit and still inside.

At least four of the initial responders participated in the sweep-Deputies Murges, Bichsel, and Schwartz, along with Lieutenant Andrews, who supervised the deputies. Meanwhile, Officer Schmitt questioned Mr. Aguilar outside.

According to Deputy Murges, the sweep occurred within a few minutes after they arrived on scene. Once inside the residence, four deputies testified that they observed shell casings in the living room and smelled gunpowder. Deputy Bichsel went into a bedroom and observed rifle rounds scattered across the floor. Deputy Murges testified that he saw shell casings and bullet holes in the wall in the master bedroom, which he described as "the first bedroom on the left" and distinguished from "the other bedroom, which is just after that." He found Mr. Aguilar's girlfriend and children lying on the side of the bed "in the second bedroom that [he] checked." He testified that, after the deputies escorted the Mr. Aguilar's girlfriend and children out of the house, "we knew we had an actual shooting investigation to conduct." According to Deputy Murges, at this point, everyone was cleared out of the house and the area was sealed, and the house remained empty until the detectives arrived.

However, Lieutenant Andrews testified that he permitted Mr. Aguilar and his girlfriend to go back into the duplex to retrieve some items for their baby; he accompanied the couple into the duplex along with two or three other deputies.

Afterwards, Lieutenant Andrews ordered the deputies not to go back into the house until the detectives arrived.

Detective Johnson testified that upon his arrival he briefly spoke with Lieutenant Andrews in the driveway, entered the residence without "break[ing] stride," and directed everyone to leave in order to secure the scene and begin his investigation-testimony suggesting that law enforcement officers or others might still have been inside the home upon his arrival. The crime scene log indicated that Detective Johnson arrived on scene at 2:28 a.m., but he testified that he thought that it was earlier. Detective Johnson testified that he entered the residence "to get everybody out and secure the crime scene, and then to begin our investigation," adding that "[t]here has to be some sort of a fact-finding, look at everything to see what kind of crime that occurred, what's the evidence, at least initially, however very brief, what do we have on scene." He also testified that this entry was not part of the protective sweep.

Detective Liddell testified that he arrived on scene (at 2:35 a.m., according to the crime scene log) and was briefed by Detective Johnson. Detective Liddell then asked Mr. Aguilar to walk him through the house and show him what had happened, and Mr. Aguilar obliged. Mr. Aguilar did not challenge the trial court's finding that Detective Liddell's reentry into the home was consensual.

Mr. Aguilar explained that he was sleeping in the back room on the floor with his girlfriend and children because he had "been targeted previously several times as a shooting victim." Mr. Aguilar's girlfriend told Detective Liddell that she heard someone in the house. Mr. Aguilar got out of bed to check, and he "saw a black male climbing into the window or standing on the couch." The "person was shooting at him, so he went back into the room."

According to Detective Johnson's probable cause affidavit, he found "a loaded AK-47 style automatic assault rifle," which was "located just underneath the edge of the mattress in the master bedroom, where the defendant sleeps." Neither the State nor the defense adduced any testimony from Detective Johnson about the circumstances surrounding this discovery.

Lieutenant Andrews ordered Deputy Schwartz to obtain consent to search the home from Mr. Aguilar. Deputy Schwartz approached Mr. Aguilar, who was seated in a chair located in the carport about four to five feet from the front door. Deputy Schwartz testified that he read the consent form to Mr. Aguilar "word-for-word," told him he did not have to consent, and watched him sign the form at 2:47 a.m. The form contained the following: "I fully understand my constitutional rights in regard to the search and it is my intention to fully and completely waive such rights by this consent. l give this consent freely and voluntarily, without compulsion or threat of any kind."

By this time, there were ten officers at the scene; however, Deputy Schwartz testified that no one else was nearby when he obtained Mr. Aguilar's signature on the consent form. When asked whether there were any officers inside the duplex when he first approached Mr. Aguilar, Deputy Schwartz replied, "I don't recall knowing anybody was inside the house."

Mr. Aguilar testified that when Deputy Schwartz asked him to sign the consent form "in order to start an investigation," he initially refused because they had already taken "pictures of the crime scene, front bedroom, the window, the vase, the couch with the footprint on it, and [he] didn't see" any "reason why [he needed to sign] if they had already done their job."

Then he explained that Deputy Schwartz approached him again and told him that if Mr. Aguilar wanted them to start a burglary investigation, they needed him to sign the form. Mr. Aguilar testified that he told the deputy that it was just for "the front bedroom and the living room" and attempted to write that on the consent form but was rushed by the deputy. The words "just for" are written on the form. Deputy Schwartz testified that it was not his own writing. He did not recall telling Mr. Aguilar that it was necessary for him to sign the form in order for the scene to be processed; he testified that Mr. Aguilar did not express any concerns about signing the form and did not place any limitations on the scope of the search.

Detective Johnson's initial entry into the house did not produce the weapon in question. However, the legality of his entry, which occurred after the sweep but before consent was obtained, bears upon the State's burden to establish that the consent was voluntarily given.

When ruling on the defendant's motion to suppress the firearm, the trial court stated the following:

And then it's my understanding from what appears to be the more convincing force and effect that ... the house was sealed [after the retrieval of the supplies for the children]. Assuming for the moment that the Defense version that then Detective Johnson entered the house and that this rose to the level of an unlawful search is a little difficult for me to conclude. If he did go in, he was the detective, [and] ... by his remarks, he went in there to decide kind of what do we have? Do we have an actual crime scene here, which apparently they correctly decided they did have, or do we have something else. And so I think his entry was justified. But even if you want to say that he had no moral, legal authority to go in and look around, he didn't find anything.... [I]f Detective Johnson went in before consent was given, he didn't find anything and he had a lawful purpose to be there-to see what kind of crime scene they had, but even if it was unlawful, he didn't find anything.

The court also noted the different versions of events regarding Mr. Aguilar's purported limitation on his consent. Mr. Aguilar's home consists of a living room on the left, a bedroom down a hallway to the left, and a bedroom further down the same hallway to the right. Mr. Aguilar initially described the rooms he consented to have searched as the "front bedroom and the living room." He later referred to it as the "master front bedroom." He referred to the other bedroom, which he claims he did not give consent to search, as the "back bedroom." Detective Liddell testified that the firearm was located underneath the bed in the first bedroom on the left and that the other bedroom on the right was the one where the family was sleeping. However, he stated that he did not locate the firearm himself; he was just told that it was found there. In the probable cause affidavit, Detective Johnson purports to have found the gun "located just underneath the edge of the mattress in the master bedroom, where the defendant sleeps." At the hearing, Detective Johnson testified that the family was sleeping in the back bedroom on the night of the shooting.

In challenging the denial of the motion to suppress, Mr. Aguilar argues that Detective Johnson's initial entry into the duplex was illegal, thereby rendering the subsequent consent presumptively involuntary. He argues that the State failed to rebut that presumption by proving the dissipation of the taint of the prior illegal conduct by clear and convincing evidence. And even if the State managed to meet this burden, Mr. Aguilar contends his consent to the search was involuntary based on the totality of the circumstances. He further argues that even if his consent was otherwise voluntary, the police exceeded the scope of the limited consent that he gave them. Therefore, he concludes, the exclusionary rule necessitated suppression of the firearm.

In reviewing a denial of a motion to suppress, an appellate court must defer to the trial court's factual findings but review its legal conclusions de novo. Hardin v. State, 18 So.3d 1246, 1248 (Fla. 2d DCA 2009) (citing Connor v. State, 803 So.2d 598, 605 (Fla. 2001) ). This court will uphold a trial court's findings of fact "if supported by competent, substantial evidence." C.L.L. v. State, 115 So.3d 1114, 1116 (Fla. 1st DCA 2013) (citing Johnson v. State, 995 So.2d 1011, 1013 (Fla. 1st DCA 2008) ).

"A private home is an area where a person enjoys the highest reasonable expectation of privacy under the Fourth Amendment." Vasquez v. State, 870 So.2d 26, 29 (Fla. 2d DCA 2003) ; see also Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (noting that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed" (quoting United States v. U.S. Dist. Court for E. Dist. of Mich. S. Div., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) ) ). "With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Among those exceptions are a "protective sweep," pursuant to Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), and exigent circumstances, Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006).

The exigent-circumstances exception encompasses an "emergency situation which requires the police to assist or render aid." Seibert v. State, 923 So.2d 460, 468 (Fla. 2006) (citing Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) ). Entering a home to investigate a suspected burglary or to check on the safety of its residents, for example, can constitute exigent circumstances sufficient to permit a warrantless search. See Davis v. State, 834 So.2d 322, 327 (Fla. 5th DCA 2003) (first citing State v. Craycraft, 704 So.2d 593 (Fla. 4th DCA 1997) ; and then citing State v. Haines, 543 So.2d 1278 (Fla. 5th DCA 1989) ).

Law enforcement had an objectively reasonable basis to support their sweep of Mr. Aguilar's house in light of the exigent circumstances they encountered upon their arrival-the 9-1-1 call, the on-scene reports of a shooting, the broken window, the scent of gunpowder, and the unknown status of potential occupants-making their initial, warrantless entry lawful. See Seibert, 923 So.2d at 468 ; State v. Fultz, 189 So.3d 155, 158 (Fla. 2d DCA 2016) ; Vanslyke v. State, 936 So.2d 1218, 1221-22 (Fla. 2d DCA 2006) (citing Brigham City, 547 U.S. at 403, 126 S.Ct. 1943 ).

However, such an entry must be limited in its scope. Rolling v. State, 695 So.2d 278, 293 (Fla. 1997). And once the exigency ceases to exist, so does the limited exception to the warrant requirement. See Anderson v. State, 665 So.2d 281, 283 (Fla. 5th DCA 1995).

It took a few minutes for Lieutenant Andrews and the deputies to complete the lawful sweep of Mr. Aguilar's duplex to locate potential shooters or victims, to clear the residence, and to secure the scene. At this point, the exigency had ended. As such, the police needed to obtain a warrant or Mr. Aguilar's consent in order to lawfully reenter and search the duplex.

Detective Johnson subsequently entered Mr. Aguilar's residence without a warrant and before Mr. Aguilar signed the consent form. He admitted that his entry was not part of the security sweep. And while he indicated that one motivation was to get any remaining individuals out of the house in order to secure the crime scene and start the investigation, all other testimony indicates that no one remained in the house upon his arrival and that the scene had already been secured.

The trial court based its conclusion that Detective Johnson's entry was not illegal, in part, on the fact that he did not find anything while he was in the house. This does not follow, because the "Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained." Kyllo, 533 U.S. at 37, 121 S.Ct. 2038. "[T]here is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home ... all details are intimate details, because the entire area is held safe from prying government eyes." Id. ("[A]ny physical invasion of the structure of the home, 'by even a fraction of an inch,' [is] too much[.]" (quoting Silverman v. United States, 365 U.S. 505, 512, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ) ).

The trial court's factual findings-that Detective Johnson went in to "look around" and decide what "we have" and whether it is "an actual crime scene"-and Detective Johnson's own testimony indicate that his entry violated the Fourth Amendment. Detective Johnson's insistence on the necessity of "fact-finding" upon his initial entry to the house indicates an investigative purpose not related to the exigent circumstances that justified the sweep conducted by the officers who had arrived earlier. Although his primary purpose might have been to clear the residence, his "look at everything to see what kind of crime that occurred" and to determine what "the evidence" is and what "we have on scene" is still a search. Venturing inside a person's home without a warrant or a valid exception violates the Fourth Amendment and therefore constitutes illegal police conduct.

The State generally has the burden of proving the voluntariness of the consent by a preponderance of the evidence; however, where, as here, there has been illegal conduct on the part of the police, that burden is heavier, requiring clear and convincing evidence that the consent was not a product of that illegal conduct. See Reynolds v. State, 592 So.2d 1082, 1086 (Fla. 1992) ; see also Connor, 803 So.2d at 609 ("[W]hen consent is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search."); Neeley v. State, 112 So.3d 764, 766 (Fla. 2d DCA 2013). Because the consent is presumptively involuntary, the "consent will be held voluntary only if there is clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action." Norman v. State, 379 So.2d 643, 647 (Fla. 1980).

Application of this exception to the exclusionary rule turns on three factors: "(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct." State v. Frierson, 926 So.2d 1139, 1143 (Fla. 2006) (quoting United States v. Green, 111 F.3d 515, 521 (7th Cir. 1997) ). Evidence of advice to a defendant of his right to refuse consent may dissipate the taint of prior illegal police action. State v. Boyd, 615 So.2d 786, 790 (Fla. 2d DCA 1993) ; State v. Paul, 638 So.2d 537, 539 (Fla. 5th DCA 1994) ("The taint may be dissipated when the defendant is advised of his constitutional right to refuse consent to search and nonetheless voluntarily does so."). But see Reed v. State, 577 So.2d 1362, 1363 (Fla. 2d DCA 1991) (finding the fact that the officer informed the defendant that he did not have to consent was insufficient, without more, to purge the taint of the illegal stop).

Here, the illegal entry by Detective Johnson occurred at some point after his arrival on scene around 2:28 a.m. It is undisputed that the consent form was signed at 2:47 a.m., less than twenty minutes later, which weighs in favor of exclusion. See Alvarez v. State, 515 So.2d 286, 288 (Fla. 4th DCA 1987) ("[T]he closer the connection between a consent and any improper conduct by the police, the less likely a consent will be found to be freely and voluntarily given, as opposed to being the natural consequence of the police misconduct."). However, in the interim, Mr. Aguilar agreed to walk Detective Liddell through the duplex in an effort to explain the circumstances surrounding the burglary. Additionally, Mr. Aguilar's actions demonstrated that he was aware of his right to refuse to sign the consent form. First, his initial refusal to do so suggests that he knew he had that option. Second, by giving partial consent-limiting the areas of the home in which he allowed the officers to search-he acknowledged his right to refuse consent to areas he did not want to be searched.

Lastly, the prior illegal law enforcement activity itself was not flagrant. Although Detective Johnson's testimony indicates that he conducted a search, it was cursory. Detective Johnson's testimony suggests that the primary purpose of his entry was not to search the residence but to clear the home in order to facilitate a future investigation of the premises, which did not begin until after consent had been obtained. His testimony suggests that while he noticed his surroundings while inside, including the smell of gun powder (which he had already smelled in the carport before entering), spent shell casings, and a broken window, he did not open or move anything. Moreover, although Detective Johnson ultimately recovered the firearm, the discovery was not made during his initial, illicit entry, and he was not the one who obtained Mr. Aguilar's consent. And there were no indications that the police relied upon the fruits of Detective Johnson's illegal search in order to obtain that consent. Accordingly, the State met its burden of presenting clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action. See Golphin v. State, 945 So.2d 1174, 1191 (Fla. 2006).

Having determined that the consent was not the product of Detective Johnson's unlawful entry, thereby overcoming the rebuttable presumption that it was involuntary, Mr. Aguilar's alternative argument, that his consent was involuntary under the totality of the circumstances, must be addressed. See Luna-Martinez v. State, 984 So.2d 592, 602-03 (Fla. 2d DCA 2008) (Villanti, J., dissenting) ("[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ) ). This requires consideration "of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents." Bustamonte, 412 U.S. at 229, 93 S.Ct. 2041. Other factors include whether that person is being arrested or detained, his or her age, education, or intelligence, whether he or she is in a vulnerable physical or mental state, and whether law enforcement made a show of force or engaged in threatening conduct or prolonged detention. I.R.C. v. State, 968 So.2d 583, 586-87 (Fla. 2d DCA 2007). In addition, the location of the search, the time of day, the number of officers involved, and the type of consent (written or oral) are relevant in making this determination, as well as any prior criminal history of the accused, the length of time police interrogated him before he consented, and whether he was in custody. State v. Ojeda, 147 So.3d 53, 57 (Fla. 3d DCA 2014).

Mr. Aguilar was arguably in a vulnerable mental state when he signed the consent form at 2:47 a.m. Indeed, when the first seven officers arrived at 2:11 a.m., they encountered Mr. Aguilar in a state of panic, pacing back and forth in the small carport near the front door of the duplex. Mr. Aguilar saw multiple police officers-as many as ten-going in and out of his duplex. Mr. Aguilar was not permitted to reenter the duplex to retrieve supplies for his baby without as many as four uniformed deputies accompanying him. And he initially refused to sign the consent form presented to him by Deputy Schwartz, reluctantly agreeing to sign the form only after Deputy Schwartz's subsequent request.

On the other hand, only a single deputy approached Mr. Aguilar to obtain the consent; he read the form to Mr. Aguilar and advised Mr. Aguilar that he was not being arrested or detained and that he could refuse to consent to the search. The fact that Mr. Aguilar appeared nervous can be attributed to his having just endured a near-death experience-someone invading his home and shooting at him while his girlfriend and two young children were sleeping-not any heavy-handedness or show of force of the officers, who were reasonably present to investigate a crime of which the defendant was the alleged victim. Cf. Ojeda, 147 So.3d at 58 n.4 ("To some extent, any encounter with an officer of the law may lead to some apprehension," but "this fact alone cannot support a seizure under the Fourth Amendment." (first citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) ; and then citing Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ) ). Additionally, Mr. Aguilar was a twenty-eight-year-old with prior felony convictions for driving with a suspended license and marijuana possession, creating an assumption that he knew his rights. See Ojeda, 147 So.3d at 57-58.

While Mr. Aguilar's testimony regarding his consent is contradictory, much of it strongly supports the conclusion that his consent was free and voluntary. See I.R.C., 968 So.2d at 586 (finding the State had established the voluntariness of defendant's consent even though he had testified "he had no choice but to consent"); State v. Kuntzwiler, 585 So.2d 1096, 1096 (Fla. 4th DCA 1991) (affirming determination that consent was voluntary despite defendant's testimony that "she believed she had no choice but to allow the search"). When questioned by defense counsel-"Did you think you had a choice in signing that or did you think that whether you signed that form or not was going to matter whether or not they searched your house?"-Mr. Aguilar tepidly answered, "Not really." However, when asked a direct question by the State-"So you knew that you had the right to refuse to sign the document?"-he tacitly but clearly answered in the affirmative: "Which I did the first time."

In addition to expressly acknowledging that he had the right to refuse, Mr. Aguilar exhibited an understanding that he could withhold his consent to some areas of the house. Further, his reasons for initially refusing-e.g., "they had already taken pictures of the crime scene ... and I didn't see there was no reason why if they had already done their job"-do not indicate that he was resisting under the buckling pressure of law enforcement but rather disagreeing as to whether the burglary needed to be investigated any further at all.

Additionally, there was no testimony to suggest that Deputy Schwartz or any of the other officers or detectives used intimidation, threats, or any other overtly coercive tactics. Rather, by the defendant's own admission, the law enforcement officer who obtained the consent posed Mr. Aguilar with a choice between signing the consent form and having no investigation of the alleged burglary of which Mr. Aguilar was a victim: "He ... tells me, if you want me to start the burglary investigation, I need you to sign this." The choice Deputy Schwartz posed to Mr. Aguilar was not between signing the form and being detained by law enforcement. Rather, quite intuitively, they could not investigate the crime that had been allegedly committed against him unless he consented to a search of the scene of the crime-his home.

Mr. Aguilar argues that the time of the officers' arrival supports that his consent was not voluntarily given. However, this is not a scenario in which law enforcement officers arrived at a strategic time of their own choosing, from which a defendant could possibly draw reasonable inferences about whether he was free to refuse consent. Rather, the only logical inference to be drawn by Mr. Aguilar was that the officers had arrived at the time they did, not by design, but in response to the emergent situation that had recently developed at his property.

Mr. Aguilar argues that the large number of officers at his home undermines the voluntariness of his consent. However, the convergence of ten officers seems an intuitive response to calls about what sounded like a gunfight being fought out in a residential neighborhood where someone had recently been wounded during a previous shooting. As the court found in Ojeda (where five officers entered the house and two remained on the sidewalk), nothing here suggests that the mere number of officers "overpowered [Mr. Aguilar's] decision-making faculties." Ojeda, 147 So.3d at 59. There, it was "entirely reasonable to order a complement of seven law enforcement officers to investigate" a tip that marijuana was being grown at the defendant's residence because the "inherent danger involved in a narcotics investigation compels the use of caution." Id. Much more so an investigation of a flurry of gunfire.

Mr. Aguilar contends that his cooperation and consent was not voluntary but rather a submission to a show of coercive police authority-including denial of access of his home, which had been cordoned off as a crime scene-that amounted to a seizure. To the contrary, as the victim of a crime, the police questioned Mr. Aguilar about-and he willingly explained-the circumstances of the alleged burglary and shooting. In Ojeda, the court noted that the defendant never elected to terminate the encounter; rather, he communicated with the authorities in a cooperative spirit from the moment that he opened the front door. Id. at 58. While Mr. Aguilar's cooperation was tempered by some equivocation, he was amenable to walking an officer through the residence to give them his blow-by-blow recounting of the home invasion. Further, his explanation of the limitation on his consent suggests that he did want the officers to investigate the burglary. And no evidence indicates that he was not free to leave; the simple fact that he was barred from his own home and may not have had anywhere he felt comfortable going (an unfortunate consequence of the fact that his home was a crime scene) does not rise to the level of detention. The officers were at his home under the very reasonable auspices of the investigation of an alleged crime of which the defendant was the alleged victim. Thus, any inconvenience to him, such as having to be escorted back into the home to retrieve belongings for his children, was a natural result of the violent event that had just taken place, not something imposed upon him by officers of the law as a show of force.

In light of the totality of the circumstances, the trial court did not err in finding that Mr. Aguilar's consent to the search was voluntarily given. However, it did err when it found that the officers' good faith justified their search in excess of the scope of that consent.

The trial court explained that even though Mr. Aguilar had limited the search areas, the officers could have, effectively, misunderstood which rooms he had given them consent to search:

[T]here seems to be a difference of opinion about labels, but Mr. Aguilar says what he told them is they could only search the living area and what he referred to as the first bedroom, I think, or the master bedroom, and Detective Liddell indicates that that's where they found the firearm. Now there is a difference of opinion, I know, between what Mr. Aguilar thinks he was telling them they couldn't search and ... where they found the gun about the label, whether it's the master bedroom or the front room or whatever. But the point is, if that was an oral communication, clearly the law enforcement people knew they had some authority and perhaps there was a difference of opinion about what his reference to whatever room it was was the limitation. So even if they violated that, I think that would have to rise to the level of good faith.

The testimony at the hearing was indeed confusing, such that it is difficult for even a careful student of the cold transcript to determine whether the firearm was discovered in a room to which Mr. Aguilar denied consent to search. However, the State bears the burden of establishing the scope of consent and whether law enforcement remained within it.

State v. Petion, 992 So.2d 889, 896 (Fla. 2d DCA 2008) (citing United States v. Freeman, 482 F.3d 829, 832 (5th Cir. 2007) ).

Nonetheless, the trial court denied the motion on the basis that confusion regarding the scope of Mr. Aguilar's consent gave rise to a good faith belief in the officers that they were not exceeding it. But the question is not whether the officers had a good faith belief that they were searching within the scope of the homeowner's consent. Rather, courts must use the following objective reasonableness standard to measure the scope of consent: "[W]hat would the typical reasonable person have understood by the exchange between the officer and the suspect?" Davis v. State, 594 So.2d 264, 266 (Fla. 1992) (quoting Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ); see also State v. Wells, 539 So.2d 464, 467 (Fla. 1989) ("When the police are relying upon consent to conduct a warrantless search, they have no more authority than that reasonably conferred by the terms of the consent."), aff'd sub nom. Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) ).

The trial court's factual finding that Mr. Aguilar had limited his consent to a search of his home cannot be disturbed, as it was based on competent, substantial evidence. See Crist v. State, 98 So.3d 81, 83 (Fla. 2d DCA 2012). The trial court specifically credited Mr. Aguilar's testimony, indicating that he was taking it "at its face value, even though the officers don't recall any of that conversation, he tried to limit it."

Mr. Aguilar consistently testified that he only gave consent to search the "front bedroom and living room"-the rooms associated with the burglary, where the officers observed bullet holes, casings, and broken windows. And Mr. Aguilar gave his consent only after Deputy Schwartz indicated that Mr. Aguilar needed to sign the consent form in order for the police to begin the burglary investigation. In his probable cause affidavit, Detective Johnson purported to have found the weapon "where the defendant sleeps," and he testified that, "on the night of the shooting," the family was "sleeping in the back bedroom."

Those facts do not support that it was objectively reasonable to have understood that the room in which the firearm was located was within the scope of Mr. Aguilar's consent. On the other hand, other testimony does. For example, Detective Liddell testified that the weapon was found in the master bedroom, which he indicated was the first bedroom on the left, not the bedroom in the back, suggesting that the weapon might have been discovered in the very room Mr. Aguilar consented to be searched.

However, we need not resolve that factual imbroglio to determine that the trial court's conclusion was erroneous. That is because the State-in the face of credited testimony that Mr. Aguilar limited the scope of his consent-adduced no evidence that the law enforcement officers understood that the consent was limited at all, much less any evidence that their search was actually limited. Deputy Schwartz, who testified that he was the only person near Mr. Aguilar while he went over the form, did not provide any explanation as to why the words "just for" appeared on the form; he denied that Mr. Aguilar narrowed the scope of his consent in any way.

The trial court concluded that, "if" the officers exceeded the scope of the consent, they did so in good faith in light of the "difference of opinion" regarding which rooms were included in that scope. This conclusion elides the State's burden to establish what a typical reasonable person would have understood Mr. Aguilar's consent to have included and to prove the officers did not exceed it. More importantly, it cannot be squared with the facts adduced at the hearing-that the officers neither acknowledged nor observed any limitations on the consent whatsoever. Objective reasonableness cannot be attributed to a law enforcement officer's belief that he was searching within the limitations of a scope that he does not even acknowledge existed.

The State failed to meet its burden to establish that the search did not exceed the scope of Mr. Aguilar's consent. As such, the trial court erred by denying his motion to suppress the firearm. Accordingly, we reverse and, because the motion was dispositive, remand with instructions that Mr. Aguilar be discharged.

Reversed and remanded for discharge.

VILLANTI and MORRIS, JJ., Concur.

      The "Crime Scene Contamination Log," referred to by witnesses as the "crime scene log," is a form that lists the names of the law enforcement officers and the times at which they arrived at and departed from the crime scene.

      Florida courts are bound by United States Supreme Court precedent construing the Fourth Amendment to the United States Constitution. Art. I, § 12, Fla. Const.; Bernie v. State, 524 So.2d 988, 991 (Fla. 1988).

      Although the parties and the trial court utilized the term "protective sweep," it is the latter exigent-circumstances exception that applies to the facts of this case. The exception permitting a warrantless "protective sweep" applies in situations where such a search is performed incident to a lawful arrest in order to protect the safety of the officers or others. United States v. Delancy, 502 F.3d 1297, 1306 (11th Cir. 2007).

      The State contends that suppression was not warranted, even if the police located the firearm without Mr. Aguilar's consent or outside of the scope of his consent, based on the inevitable-discovery exception to the exclusionary rule. However, this argument is foreclosed by Rodriguez v. State, 187 So.3d 841, 849-50 (Fla. 2015), which held that the exception does not apply where "the prosecution has made no showing that a search warrant was being actively pursued prior to the occurrence of the illegal conduct."


author: Conner, J.

text:
    NATIONSTAR MORTGAGE, LLC, Appellant, v. Thomas CULLIN, a/k/a Thomas W. Cullin, Delcie Cullin, and Parkland Golf & Country Club, Appellees.
    No. 4D17-84
    District Court of Appeal of Florida, Fourth District.
    November 14, 2018
    Nancy M. Wallace of Akerman LLP, Tallahassee, and William P. Heller and Henry H. Bolz of Akerman LLP, Fort Lauderdale, for appellant.
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellees Thomas Cullin and Delcie Cullin.
   Conner, J.

Nationstar Mortgage, LLC ("Nationstar") appeals the final judgment denying foreclosure entered in favor of the appellees, Thomas Cullin and Delcie Cullin. Because the trial court failed to state the basis for its decision and to make any factual findings on the record or in its final judgment, we are unable to conduct a meaningful appellate review. Accordingly, we reverse and remand for the trial court to enter an amended final judgment reflecting the basis of its decision and to make factual findings pertinent to that ruling.

Background

Nationstar filed a foreclosure action against the appellees. The appellees raised defenses of lack of standing, failure to comply with conditions precedent, and statute of limitations. The case proceeded to a nonjury trial. At trial, Nationstar called one witness and introduced various documents into evidence. After Nationstar finished presenting its case, the appellees called the Nationstar witness to present evidence in support of their defenses and introduced some additional documentary evidence. After the evidence closed, the parties made closing arguments and presented draft proposed final judgments for the trial court to consider. The trial court did not articulate any findings or rulings at the close of the trial.

Eight days after the trial, the trial court entered a final judgment in favor of the appellees. The final judgment stated no findings of fact, conclusions of law, or reasons for the decision. Twenty-eight days after the final judgment was entered, the trial court denied Nationstar's motion for rehearing, again stating no findings of fact, conclusions of law, or reasons for the decision. Nationstar gave notice of appeal.

Appellate Analysis

We find ourselves in a similar situation we confronted in Exotic Motorcars and Jewelry, Inc. v. Essex Ins. Co. , 111 So.3d 208 (Fla. 4th DCA 2013). In Exotic Motorcars , an action for declaratory judgment and breach of contract was filed. Id. at 208. Eventually, the trial court entered a judgment in favor of the appellee which contained no findings of fact, conclusions of law, or other indication of the basis for its decision. Id. at 208-09. Similar to this case, there were several grounds upon which the trial court might have ruled in favor of the appellee. Id. at 209. In Exotic Motorcars we said:

In cases where, as here, orders on review cannot be resolved without meaningful findings, effective review may be deemed impossible and the cause remanded for findings, notwithstanding that such findings may not be mandated by rule or statute.

Id. In support of that legal proposition, we cited Featured Properties, LLC v. BLKY, LLC , 65 So.3d 135 (Fla. 1st DCA 2011). Id.

In Featured Properties , the appellee sued for breach of contract and the appellant counterclaimed for rescission of the contract. 65 So.3d at 136. The trial court awarded damages to the appellee, but did not articulate a legal basis for its ruling or make any findings of facts on key disputed issues. Id. at 136-37. The appellant argued that without findings of fact in the final judgment, the case had to be remanded back to the trial court to make appropriate findings. Id. at 137. The First District agreed that the failure to make findings of fact or to articulate the legal grounds for the judgment rendered the proceedings not ripe for appellate review. Id. The First District concluded that "[e]ven where factual findings are not required by a procedural rule, statute, or other authority, remand may be appropriate where 'effective appellate review is made impossible by the absence of specific findings.' " Id. (quoting Shaw v. Shaw , 445 So.2d 411, 412 (Fla. 4th DCA 1984) ). Therefore, the appellate court reversed and remanded with instructions for the trial court to enter an amended final judgment reflecting the basis of its decision. Id. at 138.

Because the final judgment and trial transcript in this case contain no findings of facts, conclusions of law, or other indication of the basis for the trial court's decision, effective review is impossible. Thus, we remand the case to the trial court to enter an amended final judgment reflecting the basis of its decision and to make appropriate findings of fact. See In re Doe , 932 So.2d 278, 283 (Fla. 2d DCA 2005) ("Where ... orders do not contain sufficient findings of fact ..., appellate courts typically deem them incapable of meaningful review and they remand with directions to the issuing courts to make the necessary findings." (citing Hopkins v. State , 632 So.2d 1372, 1376-77 (Fla. 1994) ) ).

The record suggests that the nonjury trial was conducted and the final judgment was entered by a senior judge whose temporary service in the Seventeenth Judicial Circuit was coming to an end. If the trial judge is no longer serving or is unable to enter an amended final judgment reflecting the basis for the decision, then a new trial must be conducted.

Reversed and remanded with instructions .

Ciklin, J., and Mirman, Lawrence, Associate Judge, concur.


author: PER CURIAM.

text:
    Simon SILVA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1054
    District Court of Appeal of Florida, Third District.
    Opinion filed November 14, 2018
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
    On Motions for Clarification or Rehearing
   PER CURIAM.

Following the issuance of our opinion in this case on September 20, 2018, (1) the appellant, Mr. Silva, filed a motion for clarification, and (2) the appellee, State of Florida, filed a motion for rehearing or clarification. We directed each party to file a response to the other party's motion, and each provided a thoughtful and helpful memorandum. Upon consideration of the motions and responses, we withdraw our opinion of September 20, 2018, grant both parties' separate motions for clarification, deny the State's alternative motion for rehearing, and issue this opinion in the place and stead of the prior opinion.

I.

Simon Silva appeals his convictions for the second-degree murder of Samuel Forman and the attempted first-degree murder of Deborah Daoud. Silva argues that the trial court committed fundamental error by using a jury instruction that shifted the burden to Silva to prove Forman's alleged aggression beyond a reasonable doubt in order to establish the defense of self-defense. We reverse Silva's conviction as to the second-degree murder count, but affirm Silva's conviction and sentence on the count for the attempted first-degree murder of Daoud. Silva's counsel did not request a self-defense jury instruction regarding the attempted first-degree murder count, thus waiving any claim of error for failure to give such an instruction.

II.

Silva was charged with the first-degree murder of his employer and landlord, Forman; and the attempted first-degree murder of a neighbor, Daoud. The charges arose from the shooting of both Forman and Daoud following a confrontation between Silva and Forman. The parties' account of the confrontation differed: Silva claimed he reacted in self-defense, based on a prior threat by Forman and Forman's reach for a dark object in his pocket; while the State claimed Silva was the initial and primary aggressor. The undisputed evidence, however, demonstrated that Silva shot both Forman and Daoud, with Forman succumbing to his injuries.

At trial, Silva claimed the shootings were in response to the aggressive demeanor and actions of Forman and Daoud. Silva resided in a trailer on, and worked at, Forman's junkyard. Silva claimed that Forman started a verbal altercation when Forman observed Silva's unauthorized use of electricity to power his trailer. The parties' confrontation escalated quickly. After a brief exchange of words, Forman allegedly stated "I'm going to shoot you" and reached into his front pocket. Silva testified that he observed Forman pull out a black object, which Silva believed to be a pistol. Silva claimed that this belief, and the accompanying fear, led to the shooting and killing of Forman.

Following the initial shooting, Silva testified that Daoud grew visibly upset and threatened him. Silva claimed Daoud attempted to lunge and throw a microwave at him. Silva reacted to these actions by shooting Daoud, who survived the injuries and fled the scene. Following these events, Silva awaited the arrival of the police. Silva's explanation of the events was emphasized by defense counsel at the beginning of closing arguments, "This is a case of self-defense."

To discredit the self-defense claim, the State presented a differing account of the events. The State portrayed Silva as the initial aggressor and a disgruntled former employee and tenant. For example, the State presented Daoud, who testified that Silva was "aggressive" and "pulled the gun out of nowhere ... [and] just shot [Forman] once." Thereafter, Daoud explained, "[Forman] was kneeling ... with his hands up" and "[Silva] shot [Forman] again." The State claimed the evidence-including, for example, the testimony of Daoud-demonstrated that Silva shot two unarmed individuals who did not act in a manner to justify Silva's claim of self-defense.

After each side presented its case, the trial court engaged in a standard colloquy with Silva and his counsel regarding the jury instructions. The following exchange occurred:

THE COURT: All right. So do we need to go over them again, just put it on the record in the presence of the defendant? Defense, had you made any objections to any of the substance of matters contained in the jury instructions?
[Silva's Counsel]: No, I have not, [y]our Honor, and I'm in agreement with them.
And I've informed my client that I'm in agreement with them.... I believe he's in agreement with the -- with the instructions the way they're written right now.
...
THE COURT: All right. Mr. Silva, are you satisfied then with what your attorney is saying about him going over the jury instructions and finding them to be not objectionable, and you're in agreement with that?
DEFENDANT SILVA: Yes, [y]our Honor.

Following this exchange, the trial court instructed the jury on self-defense:

THE COURT: An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense which Simon Silva is charged if the death of Samuel Forman resulted from the justifiable use of deadly force.
Deadly force means force likely to cause death or great bodily harm. The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself while resisting another's attempt to murder him or an attempt to commit an attempted first-degree premeditated murder upon him.
To find the defendant was justified in his use of deadly force to resist an attempted first-degree premeditated murder, you must find the following three elements beyond a reasonable doubt. Samuel Forman did some act intended to cause the death of Simon Silva that went -- went beyond just thinking or talking about it. Samuel Forman acted with a premeditated design to kill Simon Silva, the act would have resulted in the death of Simon Silva except that someone prevented Samuel Forman from killing Simon Silva or he failed to do so.
...
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or the imminent commission of an attempted first-degree premeditated murder against himself or another.

(Emphasis added). The written jury instructions included the same language:

To find [SILVA] was justified in his use of deadly force to resist an Attempted First-Degree Premeditated Murder, you must find the following three elements beyond a reasonable doubt:
1. SAMUEL [FORMAN] did some act intended to cause the death of SIMON SILVA that went beyond just thinking or talking about it.
2. SAMUEL [FORMAN] acted with a premeditated design to kill SIMON SILVA.
3. The act would have resulted in the death of SIMON SILVA except that someone prevented SAMUEL [FORMAN] from killing SIMON SILVA or he failed to do so.

These instructions were repeated a total of three times. Silva's counsel did not object to the trial court's instructions; Silva concedes this point on appeal. No separate instruction on use of force and self-defense was requested or given among the instructions relating to the count for the first-degree attempted murder of Daoud.

Following the jury instructions, the case was submitted to the jury. The jury found Silva guilty of second-degree murder of Forman and attempted first-degree murder of Daoud. Silva was sentenced to life in prison. Silva's appeal followed.

III.

A. Second-Degree Murder Conviction and Sentence (Forman)

The jury instruction regarding self-defense as to the second-degree murder of Forman was not the then-current standard instruction, and it was error to issue it. The error was not preserved and is reviewed for fundamental error. Wyche v. State, 170 So.3d 898, 903 (Fla. 3d DCA 2015).

The responsibility to ensure that the jury is properly instructed ultimately rests with the trial court, not counsel. While counsel may assemble and submit proposed instructions, the court may not delegate to counsel the court's non-delegable duty to assure that the jury is instructed on the correct law to be applied to the case.

Florida Rule of Criminal Procedure 3.985 provides that the trial court should generally give the standard jury instructions (found on the Florida Supreme Court's website). If the trial court deviates from, or modifies, the standard jury instruction, it is required to state on the record or in a separate order the reasons for doing so. Thus, while the standard jury instructions may be presumed to be correct, final responsibility for correctly instructing the jury remains with the trial court. State v. Hamilton, 660 So.2d 1038, 1046 (Fla. 1995) ; Lozano v. State, 584 So.2d 19, 24 (Fla. 3d DCA 1991).

In the present case, the erroneous instruction placed the burden upon Silva to prove his claim of self-defense on the charge of second-degree murder. We hold that, under these circumstances, this burden-shifting instruction rose to the level of fundamental error, depriving Silva of a fair trial on the charge for which he relied upon his claim of self-defense. Alexander v. State, 121 So.3d 1185 (Fla. 1st DCA 2013) ; Montijo v. State, 61 So.3d 424 (Fla. 5th DCA 2011).

As to Silva's claim of self-defense on the charge of second-degree murder for the shooting and death of Forman, the State makes two arguments: first, that defense counsel affirmatively agreed to the erroneous jury instruction, and second, that we should not address the point because of the concurrent sentence doctrine.

As to defense counsel's affirmative acceptance of the erroneous jury instruction, we are bound by this Court's holding in Philippe v. State, 795 So.2d 173 (Fla. 3d DCA 2001). Philippe holds that in order for defense counsel's agreement with a defective jury instruction to constitute a waiver, defense counsel must be aware of the defect "and affirmatively agree to it." Id. at 174.

In this case, there is no evidence in the record to demonstrate that defense counsel knew the wrong version of the standard jury instruction was under consideration. Defense counsel apparently thought he was agreeing to the then-effective form of standard jury instruction on justifiable use of force, and there is no indication that counsel for the parties or the court knew otherwise.

The State urges us to reject the more stringent holding of Philippe regarding counsel's failure to object to a defective instruction, and to follow instead the more recent analysis of our sibling court in Knight v. State, --- So.3d ----, 43 Fla. L. Weekly D404, 2018 WL 944663 (Fla. 1st DCA 2018), review granted, No. SC18-309, 2018 WL 3097727 (Fla. June 25, 2018). In that case, the trial court used a jury instruction on attempted voluntary manslaughter by act that had been invalidated by the Florida Supreme Court several years earlier (in State v. Montgomery, 39 So.3d 252 (Fla. 2010) ), thereby committing fundamental error.

The First District concluded, however, that objections to the erroneous instruction were waived by counsel, noting among other factors "the existence of a plausible strategic reason for allowing the erroneous instruction to go to the jury." Knight, --- So.3d at ----, 43 Fla. L. Weekly at D407. That Court also addressed defense counsel's "active involvement in developing the jury instructions." Id. at ----, at D408. The First District certified a question of great public importance on the waiver issue, and the Florida Supreme Court has now accepted jurisdiction. Knight v. State, No. SC18-309, 2018 WL 3097727 (Fla. June 25, 2018).

As to the State's invocation of the concurrent sentence doctrine, the State relies on Jordan v. State, 143 So.3d 335, 338 (Fla. 2014) ("in the case of multiple concurrent sentences, an appellate court need not address challenges to every conviction where another conviction with a concurrent sentence of equal or greater length has been affirmed on appeal." (citing Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) ). More recently, this Court applied the doctrine in Green v. State, 224 So.3d 252, 256 (Fla. 3d DCA 2017) (life sentence for kidnapping and sexual battery charges did not amount to fundamental error because the defendant was serving a concurrent life sentence for an armed robbery conviction).

We reject the State's extension of the doctrine to the present case, however, in this direct appeal. See Camellon v. State, 178 So.3d 910, 911 n.3 (Fla. 3d DCA 2015).

Based on these authorities, the concededly erroneous jury instruction on justifiable use of force in the second-degree murder case, and the fundamental error inherent in giving that instruction, we reverse Silva's conviction and sentence on the second-degree murder count. We remand the case to the trial court for a new trial on that count.

B. Attempted First-Degree Murder Conviction and Sentence (Daoud)

As to the charge of attempted first-degree murder of Daoud, Silva failed to request a jury instruction on self-defense, and no self-defense instruction (proper or erroneous) was given to the jury on this count. After the instructions were read to the jury, Silva failed to raise any objection to the instructions as given. These failures are fatal to Silva's claim, as the issue was not preserved and is not fundamental error. See Muteei v. State, 708 So.2d 626 (Fla. 3d DCA 1998) ;

Goode v. State, 856 So.2d 1101 (Fla. 1st DCA 2003). See also Holiday v. State, 753 So.2d 1264 (Fla. 2000).

The evidence at trial regarding Silva's allegedly justifiable use of force against the neighbor/victim, Daoud, was scant. Consistent with that paucity of evidence, the erroneous jury instruction approved and read to the jury on the second-degree murder count was not included with the instructions pertaining to the attempted first-degree murder count. The self-defense instructions read to the jury mentioned only Forman's name and did not refer to Daoud. Three separate times the instruction stated that self-defense required a demonstration that "Samuel Forman acted with a premeditated design to kill Simon Silva."

It is undisputed that Silva used deadly force in his initial interaction with Forman, his landlord, before Silva turned his attention to Daoud. Silva testified that Forman's employees had told him that Forman carried a gun; that Forman pulled a black object from his right pocket; and that Forman said "I'm going to shoot you."

As to Daoud, however, there was no such testimony or evidence. Silva himself said that Daoud's approach was after Silva had shot Forman. His testimony that he feared Daoud was going to "throw the microwave at [him]," was undercut by crime scene photographs showing the microwave, and by Silva's own testimony that he placed his firearm on the microwave as he called 911 to report the shootings. In Silva's initial statement regarding the shootings, Silva did not think that he had shot anyone other than Forman. He told police in that initial interview that he had reported to 911 that "he had shot his boss," which could only be a reference to Forman (Daoud was only a neighbor, not Silva's employer or landlord).

Regarding Silva's prior interactions with Forman, Silva testified that Forman had previously threatened to shoot him. Silva said that he had not reported the prior threat to the police, because Forman was a lawyer and a millionaire, and "All the police around there, they know him." Silva never mentioned any such threat, concern, or interaction regarding Daoud. So the defense's failure to request or include a separate instruction relating to a claim of justifiable use of force against Daoud may have been intentional.

Silva's argument that the erroneous instruction regarding the second-degree murder count may have infected the jury's consideration of the attempted first-degree murder count involving Daoud is unavailing. The complete omission of Daoud's name from the self-defense instruction given as to the second-degree murder charge and Forman distinguishes the present case from the fundamental errors involved in cases such as Alexander and Montijo, cited above and by Silva.

Nor is Silva's back-up argument, a claim of ineffective assistance of counsel "apparent on the face of the record," citing McMullen v. State, 876 So.2d 589, 590 (Fla. 5th DCA 2004), persuasive. First, McMullen itself affirmed the defendant's conviction and sentence, confirming that "normally" (and in McMullen's case) ineffective assistance of trial counsel claims are not cognizable on direct appeal. Id. Second, this Court has declined to find ineffective assistance of trial counsel when such a claim is raised on direct appeal and prejudice is not obvious, but debatable, and thus cognizable only on a motion for post-conviction relief. Corvo v. State, 916 So.2d 44, 46 (Fla. 3d DCA 2005).

For these reasons we affirm Silva's conviction on the attempted first-degree murder count.

IV.

As to the second-degree murder conviction and sentence, and Silva's claim regarding the erroneous jury instruction on justifiable use of force and Forman, we reverse and remand the case for a new trial. In doing so, we specifically confirm our reliance on this Court's decision in Philippe regarding the claim of waiver by counsel and the erroneous jury instruction at issue here. We conclude that Philippe conflicts with the First District's analysis in Knight and could be affected by the Florida Supreme Court's resolution of the question certified by the First District in that case.

As to the attempted first-degree count and Daoud, we affirm Silva's conviction and sentence without prejudice for him to move for post-conviction relief on his claim of ineffective assistance of counsel. In doing so, we express no opinion regarding the merit or lack of merit respecting any such motion.

      Silva's trial was his second trial due to this Court's decision in Silva v. State, 190 So.3d 151 (Fla. 3d DCA 2016).

      The written jury instructions, verdict form, and investigative record identify Forman as "Foreman." We refer to Mr. Forman, the name provided in the information.

      Between 2006 and 2007, the standard jury instruction inadvertently contained the inaccurate language putting the burden of proof on the defendant. The instruction was amended to its present form in 2007 to correct the mistake; In re Standard Jury Instructions, 947 So.2d 1159 (Fla. 2007). The trial in the present case took place in 2017, ten years after the erroneous language was removed.

      To recede from Philippe, as urged by the State, this Court would be required to consider and determine the case en banc.

      The certified question is: IN ORDER FOR COUNSEL TO WAIVE AN ERROR IN A JURY INSTRUCTION THAT WOULD OTHERWISE BE FUNDAMENTAL, IS IT ONLY NECESSARY THAT COUNSEL AFFIRMATIVELY AGREE TO THE INSTRUCTION, OR IS IT ALSO NECESSARY FOR COUNSEL TO AFFIRMATIVELY AGREE TO THE PORTION OF THE INSTRUCTION THAT IS ERROR AND/OR TO BE AWARE THAT THE INSTRUCTION IS ERRONEOUS? Knight, --- So.3d at ----, 43 Fla. L. Weekly at D409.


author: LUCAS, Judge.

text:
    FL-7, INC., Appellant, v. SWF PREMIUM REAL ESTATE, LLC d/b/a Engel & Volkers, LLC, a Florida Limited Liability Company, Appellee.
    SGM Building Group, Inc., a Florida Profit Corporation, Appellant, v. SWF Premium Real Estate, LLC d/b/a Engel & Volkers, LLC, a Florida Limited Liability Company, Appellee.
    Case Nos. 2D17-1231 2D17-2475 Case No. 2D17-2557
    District Court of Appeal of Florida, Second District.
    November 16, 2018
    Kelsey L. Hazzard, J. Michael Coleman, and Christyna M. Torrez of Coleman, Hazzard, Taylor & Diaz, P.A., Naples, for Appellant FL-7, Inc.
    Ian T. Holmes and David P. Fraser of Holmes Kurnik, P.A., Naples; and Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, for Appellant SGM Building Group, Inc.
    Nicholas W. Long, Stanley A. Bunner, Jr., Peter J. Cambs, and Brian O. Cross of Goede, Adamczyk, Deboest & Cross, PLLC, Naples, for Appellee.
    BY ORDER OF THE COURT.
   Appellant, SGM Building Group, Inc., and Appellee, SWF Premium Real Estate, LLC, d/b/a Engel & Volkers, LLC, have filed a Joint Motion for Rehearing and Clarification. We grant the motion for clarification and deny the motion for rehearing. The prior opinion dated October 3, 2018, is accordingly withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

LUCAS, Judge.

In these consolidated appeals, we are called upon to review a final summary judgment entered in favor of SWF Premium Real Estate, LLC, d/b/a Engel & Volkers, LLC (Engel & Volkers), a real estate broker. We need not recount all the details of the underlying real estate transaction that gave rise to this litigation, a transaction that, one could say, remained somewhat fluid throughout its execution. Briefly put, when SGM Building Group, Inc. (SGM) assigned its rights and obligations as a purchaser under two sale agreements to FL-7, Inc. (FL-7) shortly before closing, and FL-7 subsequently closed on the properties without paying Engel & Volkers' commissions, Engel & Volkers sued both SGM and FL-7 to recover the commissions it claims it was owed.

Engel & Volkers' claim against SGM was fairly straightforward: it alleged that SGM had breached a provision to pay Engel & Volkers' commissions pursuant to a brokerage commission agreement following the closings on the two sale agreements. Engel & Volkers' claim against FL-7, however, was not at all clear from its pleading. Counts I and III of the complaint, each of which named SGM and FL-7 together as defendants, claimed that the commission provision in the sale agreements (which, again, Engel & Volkers was not a party to) had been breached when FL-7 closed on the properties after SGM assigned the sale agreements to FL-7. Conspicuously absent from Engel & Volkers' complaint is the term "third-party beneficiary."

Engel & Volkers eventually filed a motion for summary judgment on its claims against FL-7. In that motion, Engel & Volkers appeared to assert that because the pertinent sale agreements referred generically to the "Buyer's" obligation to pay the brokerage commission, and because FL-7 was an "assignee" of the rights and obligations of the sale agreements, FL-7 somehow became directly liable to Engel & Volkers when it closed on the properties without paying the commission. At the summary judgment hearing, Engel & Volkers stated that it was not claiming "that FL-7 is obligated under the assignment -- or the buyer agreements for broker compensation [but] that their obligation is under the plain language of the contracts themselves that they closed as assignor of the original buyer. The brokerage agreements are just a second line of obligation for SGM." In that respect, it would appear that Engel & Volkers was proceeding under the theory that FL-7 "stepped into the shoes" of SGM's obligation pursuant to the sales agreements to pay the brokerage commissions as SGM's assignee. Cf. State v. Family Bank of Hallandale, 667 So.2d 257, 259 (Fla. 1st DCA 1995) ("The law is well established that an unqualified assignment transfers to the assignee all the interests and rights of the assignor in and to the thing assigned. The assignee steps into the shoes of the assignor and is subject to all equities and defenses that could have been asserted against the assignor had the assignment not been made." (citing Dependable Ins. Co. v. Landers, 421 So.2d 175, 179 (Fla. 5th DCA 1982) ) ). Engel & Volkers did not explain why, under the theory of liability it was advocating, it had not pleaded a breach of third-party beneficiary cause of action.

Nevertheless, the trial court granted the motion for summary judgment and entered a final judgment in favor of Engel & Volkers, in which the court ruled: "Defendant, SGM Building Group, Inc., and Defendant, FL-7, Inc. materially breached its [sic] obligation to pay commissions pursuant to Sales Contract 1 ... and Sales Contract 2." The final judgment decreed that SGM and FL-7 would be jointly and severally liable under the two contracts for a judgment of $142,500, plus postjudgment interest. How FL-7 came to share in SGM's liability to Engel & Volkers under two sales contracts to which Engel & Volkers was not a party was an issue the court's judgment did not expound upon. In case numbers 2D17-1231 and 2D17-2475, FL-7 appeals the final judgment against it, as well as the imposition of joint and several liability for that judgment.

Our review of a circuit court's entry of summary judgment is de novo. Herendeen v. Mandelbaum, 232 So.3d 487, 489 (Fla. 2d DCA 2017) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) ). A moving party is entitled to summary judgment "if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c).

Engel & Volkers was a stranger to the sales contracts it sought to enforce against FL-7. Unless it could demonstrate it was a third-party beneficiary under these contracts, Engel & Volkers had no basis to assert a claim for a breach of either of the agreements. See Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1030-31 (Fla. 4th DCA 1994) ("A person who is not a party to a contract may not sue for breach of that contract where that person receives only an incidental or consequential benefit from the contract. The exception to this rule is where the entity that is not a party to the contract is an intended third party beneficiary of the contract." (first citing Metro. Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla. 1985) ; and then citing Jacobson v. Heritage Quality Constr. Co., 604 So.2d 17 (Fla. 4th DCA 1992) ) ). From our review of the record before us, we cannot agree that Engel & Volkers met the "heavy burden" of proving there was no genuine issue of material fact in dispute about the existence (much less a breach) of a purported third-party beneficiary contract between Engel & Volkers and FL-7, because Engel & Volkers has not even pleaded a viable breach of third-party beneficiary cause of action against FL-7 under Florida law. See Mendez v. Hampton Court Nursing Ctr., LLC, 203 So.3d 146, 148 (Fla. 2016) ("To establish an action for breach of a third party beneficiary contract, [the third-party beneficiary] must allege and prove the following four elements: (1) existence of a contract; (2) the clear or manifest intent of the contracting parties that the contract primarily and directly benefit the third party; (3) breach of the contract by a contracting party; and (4) damages to the third party resulting from the breach." (alteration in original) (quoting Found. Health v. Westside EKG Assocs., 944 So.2d 188, 194-95 (Fla. 2006) ) ); Jacobson, 604 So.2d at 18 (reversing and remanding for opportunity to amend to "properly allege a contractual cause of action under a third party beneficiary theory"). Thus, "the pleadings and summary judgment evidence" do not establish Engel & Volkers' entitlement to summary judgment "as a matter of law." Accord Fla. R. Civ. P. 1.510(c).

As the First District explained in Meigs v. Lear, 191 So.2d 286, 289 (Fla. 1st DCA 1966), the summary judgment proceeding "was certainly not designed to be used as a substitute for the parties' pleadings." See also Mark Leach Health Furniture Co. v. Thal, 143 So.2d 64, 66 (Fla. 2d DCA 1962) ("The efforts of the defendant to raise the affirmative defense of failure of consideration to prevent the entry of the summary judgment was ineffective. This affirmative defense was not pleaded in the answer and there was no request to amend."). So, too, in the case at bar we cannot affirm a summary judgment that could only have been entered on an as-yet unpled cause of action.

We find no merit in any of the other issues raised in these appeals or in case number 2D17-2557 and affirm the trial court's rulings in all other respects. However, as it pertains to FL-7, we must reverse the trial court's final judgment and remand the case for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; remanded.

VILLANTI and BADALAMENTI, JJ., Concur.

      The document that purported to effectuate this assignment between FL-7 and SGM was not actually executed by SGM but rather by Garsy Hadi Karimnejad, individually (who is, apparently, the owner and principal of SGM). Neither of the documents were executed by the seller in the sale agreements. We tend to agree with Engels & Volkers' observation that SGM's argument in the litigation below and on appeal (that SGM was relieved of its liability for the brokerage commissions by virtue of an "assignment") rests on the mischaracterization of these documents as being a novation of the purchase and sale agreements.

      Engel & Volkers did not argue to the trial court, nor does it assert on appeal, that the brokerage compensation agreement between SGM and Engel & Volkers was assigned to FL-7.