author: Rowe, J.

text:
    Justin David LANTZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2029
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Andy Thomas, Public Defender, and Kevin Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

Around 10:00 p.m. on August 1, 2016, Justin David Lantz called police because his mother, Robin Susan Lantz, threw him out of her house. Deputies from the Okaloosa County Sheriff's Office responded to the call and found Lantz sitting on the front porch of the house. After deputies spoke with the mother, she allowed Lantz to reenter the house to gather his belongings. A deputy then observed Lantz playing with a lock on a window near the front door. Deputies saw Lantz exit the house, but they did not see him leave the property.

Hours later, between midnight and 1:00 a.m., Zachery Chumley was driving towards Brooks Bridge on Highway 98 when he observed a small, blue truck speeding and running red lights. He testified that there was a carpet hanging out of the bed of the truck, and he observed a man driving the truck. Chumley saw the truck go under the bridge and he followed to make sure that an accident had not occurred. Chumley testified that the truck was parked at an odd angle, the driver's side door was open, the interior lights were on, and the truck bed was down. This sight prompted Chumley to call 911. Chumley later identified Lantz as the driver of the truck.

When the deputies arrived at the bridge, Lantz was standing in the water below the bridge, having descended a very steep embankment. One of the deputies spotted an object in the water. Lantz claimed the object was a shirt that he had taken off. On closer examination, the deputy determined that the object in the water was the body of a deceased woman, rolled up in a carpet. The woman was Lantz's mother.

The deputies transported Lantz to a nearby hospital because Lantz had multiple abrasions on his legs. When a doctor asked Lantz why he was in the emergency room, Lantz responded that "he was dumping his mother's body after he murdered her and was chased by the police and slid down a bank and into some barnacles." Lantz then initiated a conversation with a deputy while waiting to be interrogated and confessed to the deputy, "Nobody is going to bond me out. My mom would bond me out, but I fucking killed her." And then, while his injuries were being photographed by a crime scene technician, Lantz asked the technician if she was single and if she liked murderers.

An autopsy was performed on the victim. The medical examiner opined that the victim suffered several blunt force injuries to the right side of her head, including a broken eye socket and cheekbone. The victim also showed signs of defensive wounds to her right hand. The medical examiner testified that the victim was hit five or six times while she was in a prone position. He identified a ligature mark around her neck, which was inflicted while she was lying down. The medical examiner opined that it would have taken three to five minutes for the victim to die as a result of strangulation. He concluded that the cause of death was a combination of strangulation and blunt force injuries to the victim's head.

The jury convicted Lantz of first-degree premeditated murder, and the court sentenced him to life imprisonment without the possibility of parole. This timely appeal follows.

Analysis

Lantz argues that the trial court abused its discretion by (1) granting the State's motion in limine to exclude evidence that the victim was argumentative when she was intoxicated and that she was intoxicated at the time of her death, (2) denying Lantz's request for a special jury instruction on premeditation, and (3) denying his motion for a judgment of acquittal. Finding no error by the trial court, we affirm.

Motion in Limine

A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion. McCray v. State , 919 So.2d 647, 649 (Fla. 1st DCA 2006). The court's discretion is limited by the evidence code and applicable case law. Id.

Before trial, the State filed a motion in limine to exclude evidence of the victim's intoxication at the time of her death and the victim's reputation for being argumentative while intoxicated. Defense counsel argued that the evidence was relevant because Lantz's defense was that he killed his mother after she provoked him. The trial court granted the State's motion. Lantz argues that the exclusion of the evidence concerning the victim's intoxication and belligerence when intoxicated deprived him of the right to present a defense to the charge against him.

Evidence of a person's character is usually inadmissible to prove that the person acted a certain way on a particular occasion. Savage v. State , 99 So.3d 1001, 1002-03 (Fla. 1st DCA 2012). But where a defendant asserts that he acted in self-defense or there is doubt about who was the first aggressor, evidence of the victim's aggressive character may be admitted to show that the victim acted in conformance with that character trait at the time of crime. Id. ; Dupree v. State , 615 So.2d 713, 720 (Fla. 1st DCA 1993) ("[W]e have found no Florida case in which aggressive character evidence was allowed without evidence as well of self-defense or doubt regarding who was the first aggressor."). Here, Lantz never argued that he acted in self-defense or that the victim was the first aggressor. Thus, the evidence regarding the victim's reputation for being aggressive while intoxicated and her intoxication on the night of her death was properly excluded by the trial court.

Despite the fact that the evidence was properly excluded under the evidence code, Lantz, relying on the decision in Curtis v. State , 876 So.2d 13 (Fla. 1st DCA 2004), argues that his constitutional right to a fair trial was violated by the exclusion of the evidence. Because Lantz did not present this argument to the trial court, it is not preserved for appellate review. Archer v. State, 613 So.2d 446, 448 (Fla. 1993) ("For an issue to be preserved for appeal, ... it 'must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.' ") (quoting Tillman v. State , 471 So.2d 32, 35 (Fla. 1985) ). Even if the issue had been preserved, Lantz's argument is without merit.

In Curtis , the Court concluded that evidence of a confession by a third party that he shot the victim was not admissible under any exception to the hearsay rule. However, the Court found evidence of the third-party confession should have been admitted because the exclusion of such evidence violated the defendant's constitutional right to a fair trial. Id. at 19 ("[T]he courts must also consider the constitutional effect of excluding evidence in a criminal trial. In some cases, judges have a duty to admit evidence that does not fit neatly within the confines of the Evidence Code in order to protect the defendant's rights to a fair trial.").

The facts of this case are distinguishable from Curtis . The exclusion of evidence of the victim's intoxication and reputation does not present the same constitutional concerns as the exclusion of a confession to a crime by a third party. See Reynolds v. State , 934 So.2d 1128, 1144 (Fla. 2006) (declining to extend the rationale in Curtis to the trial court's exclusion of hearsay statements from a third party that did not amount to a confession). Further, the holding in Curtis has not been extended by this Court or any other Florida court beyond the context of confessions. We decline to extend its holding here.

Jury Instruction

Lantz next argues that the trial court erred by not granting his request for modification of the standard jury instruction on premeditated homicide. We review a trial court's decision to give or withhold a jury instruction for an abuse of discretion. Kervin v. State , 195 So.3d 1181, 1182 (Fla. 1st DCA 2016).

A portion of the standard jury instruction on premeditated homicide provides:

"Killing with premeditation" is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

Fla. Std. Jury Instr. (Crim.) 7.2. Lantz asked the trial court to replace the sentence "The decision must be present in the mind at the time of the killing," with the following language:

Premeditated design is more than mere intent to kill. It is a fully formed and conscious purpose to take human life formed upon reflection and deliberation and entertained in the mind both before and at the time of the homicide.

Lantz argued that his proposed instruction provided a better definition of the state of mind required for first-degree murder than the standard jury instruction.

To be entitled to a special jury instruction, a defendant must demonstrate that (1) the special instruction is supported by the evidence, (2) the standard instruction does not adequately cover the theory of defense, and (3) the special instruction is a correct statement of the law and not misleading or confusing. Stephens v. State , 787 So.2d 747, 756 (Fla. 2001) ; Peterson v. State , 24 So. 3d 686, 689 (Fla. 2d DCA 2009). Here, Lantz failed to establish that the standard jury instruction did not cover his theory of defense. Lantz argued that his proposed instruction was a better statement of the law but did not explain why or how the definition of premeditation in the standard jury instruction was insufficient. Because the definition of premeditation in the standard jury instruction was sufficient, the trial court properly denied the request for a special jury instruction. See Coday v. State , 946 So.2d 988, 995 (Fla. 2006).

Judgment of Acquittal

Finally, Lantz argues that the trial court erred by denying his motion for judgment of acquittal because the State failed to prove premeditation. A trial court's ruling on a motion for judgment of acquittal is reviewed de novo. Jacobson v. State , 248 So.3d 286, 288 (Fla. 1st DCA 2018). If the State has presented competent evidence to establish every element of the crime, then judgment of acquittal is improper. Id.

The supreme court has defined premeditation as:

[M]ore than a mere intent to kill; it is a fully formed conscious purpose to kill. Premeditation may be formed in a moment and need only exist for such a time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act. Premeditation can be shown by circumstantial evidence.

Glover v. State , 226 So.3d 795, 805-06 (Fla. 2017) (quoting Morrison v. State , 818 So.2d 432, 452 (Fla. 2002) ). Premeditation may be established by circumstantial evidence, including "the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted." Id. (quoting Sochor v. State , 619 So.2d 285, 288 (Fla. 1993) ); see also Twilegar v. State , 42 So.3d 177, 190 (Fla. 2010) (holding that premeditation may be established by circumstantial evidence).

Here, the State presented competent, substantial evidence that Lantz acted with premeditation when he murdered his mother. Hours before the murder, his mother and Lantz were engaged in a dispute that required police intervention. Lantz was seen manipulating a lock on one of the front windows of his mother's house before he was escorted from the property by the police. A few hours after this confrontation, a witness saw Lantz driving in an erratic manner towards Brooks Bridge. When Lantz was approached by the police, he was standing at the water's edge. Officers observed the body of Lantz's mother floating in the water, wrapped in a carpet, a short distance from where Lantz stood.

The medical testimony established that the victim was lying down when she was hit at least five or six times. The blunt force of the blows fractured the victim's right eye socket and cheekbone. In an attempt to protect her head, the victim suffered defensive wounds to her hand. During the fight, the victim was placed in a chokehold. The medical evidence demonstrated that the victim was strangled while she was lying down. The medical examiner opined that it took three to five minutes before the victim succumbed to the strangulation.

Additionally, the State presented Lantz's own incriminating statements to the jury. Lantz admitted to an emergency room doctor that he had murdered his mother and dumped her body, he confessed to a deputy that he killed his mother, and he referred to himself as a murderer when speaking to a crime scene technician.

Based on the dispute between Lantz and the victim hours before the murder, the manipulation of the window lock, the vicious nature of the attack, the prolonged strangulation, the supine position of the victim during the attack, and Lantz's incriminating statements when he was apprehended, the evidence was sufficient for the jury to conclude that Lantz acted with premeditation when he murdered his mother. The trial court did not err in denying Lantz's motion for judgment of acquittal.

Because Lantz failed to demonstrate any error by the trial court, his conviction and sentence for first-degree murder are AFFIRMED .

Ray and Osterhaus, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    COMPREHENSIVE HEALTH CENTER, LLC, etc., Appellant, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 3D18-972
    District Court of Appeal of Florida, Third District.
    Opinion filed February 6, 2019
    Marlene S. Reiss, for appellant.
    Shutts and Bowen, LLP and Suzanne Y. Labrit (Tampa), for appellee.
    Before FERNANDEZ, LOGUE, and SCALES, JJ.
   PER CURIAM.

We recognize appellee's confession of error and answer the certified question consistent with the Florida Supreme Court's opinion in Progressive Select Insurance Company v. Florida Hospital Medical Center, No. SC18-278, 260 So.3d 219, 2018 WL 6816810 (Fla. Dec. 28, 2018). We reverse and remand for further proceedings consistent with Progressive.


text:
    Richard W. BASS, Appellant, v. Jeffrey BASS, Appellee.
    Case No. 5D18-522
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 5, 2019
    Richard W. Bass, Melbourne, pro se.
    Mark S. Wilensky, of Dubiner & Wilensky, L.L.C., Wellington, for Appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979) (holding that presumption of correctness attaches to trial court's decision and that without adequate record, appellate court cannot conclude that judgment is not supported by evidence or alternative theory).

AFFIRMED.

COHEN, GROSSHANS, and SASSO, JJ., concur.


text:
    CITY OF ORLANDO, Appellant, v. Carlus L. HAYNES and Carlos M. Romero, Appellees.
    Case No. 5D18-953
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 5, 2019
    Derek J. Angell, of O'Connor & O'Connor, LLC, Orlando, for Appellant.
    Carlus L. Haynes, of Law Office of Haynes and Laurent, P.A., Orlando, pro se, and Bradley N. Laurent, of Law Office of Haynes and Laurent, P.A., Orlando, for Appellee.
    No Appearance for Appellee, Carlos M. Romero.
   PER CURIAM.

AFFIRMED. See Hayes v. State, 94 So.3d 452, 461 (Fla. 2012) ("[T]he proper remedy when the trial court fails to abide by its duty under the Melbourne[ v. State, 679 So.2d 759 (Fla. 1996) ] procedure is to reverse and remand for a new trial.").

EVANDER, C.J. and GROSSHANS and SASSO, JJ., concur.


text:
    J.M., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2849
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 8, 2019
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
    ON CONCESSION OF ERROR
   PER CURIAM.

Based on the State's concession of error, we reverse and remand for a reduction of J.M.'s conviction from a first-degree to a second-degree misdemeanor. See B.J.M. v. State, 185 So.3d 692, 694 (Fla. 5th DCA 2016).

REVERSED AND REMANDED, with Instructions.

WALLIS, EISNAUGLE, and HARRIS, JJ., concur.


text:
    Joseph BARKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1710
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 8, 2019
    Joseph Barker, Crawfordville, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Due to Appellant's apparent abuse of the legal process by his repeated meritless, frivolous pro se filings attacking his judgment and sentence in Orange County Circuit Court Case Number 2009-CF-10484, this Court issued an order on December 26, 2018, directing Appellant to show cause why he should not be prohibited from future pro se filings. See State v. Spencer , 751 So.2d 47, 48 (Fla. 1999). Having carefully considered Appellant's response and finding it fails to show cause why sanctions should not be imposed, we conclude that he is abusing the judicial process and should be barred from further pro se filings regarding the above referenced case.

Therefore, in order to conserve judicial resources, Appellant is hereby prohibited from filing with this Court any further pro se filings concerning the above referenced case. The Clerk of this Court is directed not to accept any further pro se filings concerning the referenced case. Any future filings regarding the referenced case will be summarily rejected by the Clerk, unless filed by a member in good standing of The Florida Bar. See Isley v. State , 652 So.2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough.").

Should Appellant ignore the above imposed sanction and requirement that further pleadings be signed by a member in good standing of the Florida Bar, this Court will direct the Clerk to provide a certified copy of this opinion and any subsequent, related opinions to the appropriate institution for consideration of disciplinary action against Appellant. See § 944.279(1), Fla. Stat. (2018) ; Simpkins v. State , 909 So.2d 427, 428 (Fla. 5th DCA 2005).

BERGER, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Alejandro D. BENABE-RIVERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-315
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 8, 2019
    Alejandro D. Benabe-Rivera, Perry, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Due to Appellant's apparent abuse of the legal process by his abusive, repetitive, malicious, or frivolous pro se filings attacking his judgment(s) and sentence(s) in Orange County Circuit Court Case Number 2011-CF-005070, this Court issued an order directing Appellant to show cause why he should not be prohibited from future pro se filings. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). Having carefully considered the response and finding it fails to show cause why sanctions should not be imposed, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, Appellant is prohibited from filing with this Court any further pro se filings concerning the above referenced case. The Clerk of this Court is directed not to accept any further pro se filings concerning the referenced case. Any future filings regarding the referenced case will be summarily rejected by the Clerk, unless filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary proceedings. See § 944.279(1), Fla. Stat. (2018) ; Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

EVANDER, C.J., ORFINGER and SASSO, JJ., concur.


text:
    Jesus G. GONSALEZ, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3714
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 8, 2019
    Jesus G. Gonsalez, Sneads, pro se.
    Ashley Moody, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 28, 2018 judgment and sentence rendered in Case No. 2017-CF-0589, in the Circuit Court in and for Putnam County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAMBERT, HARRIS and SASSO, JJ., concur.


text:
    Davion SANDERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1133
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 8, 2019
    James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Davion Sanders appeals the judgment and sentence entered against him after the trial court found that he violated several conditions of his probation. We affirm in all respects, except for the finding that Sanders violated condition six of his probation. As to condition six, which prohibited Sanders from associating with a person known to engage in criminal activity, the State concedes, and we agree, that evidence of a positive drug test did not support a finding that Sanders violated this condition. See Cromartie v. State, 241 So.3d 970, 971 (Fla. 1st DCA 2018). Such error is fundamental. See Odom v. State, 15 So.3d 672, 678 (Fla. 1st DCA 2009). Nevertheless, we find that it is clear from the record that the trial court would have made the same decision to revoke Sanders' probation and sentence him accordingly had it properly found that there was no evidence Sanders associated with a person engaged in criminal activity. Id. (citing Reed v. State, 127 So.3d 817, 819-20 (Fla. 2d DCA 2013) ).

Accordingly, we affirm Sanders' judgment and sentence but remand with directions that the trial court strike that portion of the order finding a violation of condition six.

AFFIRMED in part, REVERSED in part, and REMANDED.

BERGER, WALLIS and EISNAUGLE, JJ., concur.

      Sanders was sentenced to 180 months in the Department of Corrections for both of the underlying charges of Attempted First-Degree Premeditated Murder and Possession of a Firearm by a Delinquent. The trial court ordered that the sentences run concurrently.


author: WALLIS, J.

text:
    Johnathan Oshaun GOULD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2595
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 8, 2019
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   WALLIS, J.

Johnathan Oshaun Gould appeals his judgment and sentences for attempted armed burglary of a conveyance with a firearm, attempted robbery with a firearm, possession of a firearm by a convicted felon, and aggravated assault while discharging a firearm. Gould raises two issues on appeal, and we find merit in one of them. Gould argues that the trial court erred by denying his ore tenus motion to withdraw his guilty pleas that he made prior to sentencing without giving him the opportunity to be heard. We agree and reverse.

At the sentencing hearing, in response to Gould's ore tenus motion to withdraw his previously entered guilty plea, the trial court asked if Gould had filed a written motion. When Gould explained that he had not, the trial court denied the motion and instructed Gould to file a written motion at an appropriate time.

As we explained in McInturff v. State, 111 So.3d 296, 297 (Fla. 5th DCA 2013), "there is no requirement that a motion to withdraw a guilty plea be in writing," and a motion raised at a sentencing hearing, but prior to the imposition of sentence, is a timely Florida Rule of Criminal Procedure 3.170(f) motion. Based on the record, the trial court, like the court in McInturff, denied the motion because it was not written. See id. This was reversible error because a written motion was not required, and the trial court should have given Gould an opportunity to be heard on his motion. See id.; see also Lehmkuhle v. State, 20 So.3d 971, 974 (Fla. 2d DCA 2009) ("The trial court here should have given Lehmkuhle an opportunity to be heard before ruling on his motion."); Morales v. State, 973 So.2d 679, 681 (Fla. 2d DCA 2008) (holding that defendant who orally moved to withdraw plea at beginning of sentencing should have been given opportunity to present argument and be heard on his motion to withdraw plea before sentencing). Accordingly, we reverse and remand the case to the trial court to hold a hearing on Gould's motion.

REVERSED and REMANDED with Instructions.

ORFINGER and LAMBERT, JJ., concur.


author: Per Curiam.

text:
    Laurie M. COSTELLO, Appellant, v. CITY OF ARCHER, Florida, and Florida Crossroads Industrial Zone, LLC, Appellees.
    No. 1D17-4274
    District Court of Appeal of Florida, First District.
    February 8, 2019
    Joseph W. Little, Gainesville, for Appellant.
    S. Scott Walker, Courtney Wilson Johnson, and Patrice Boyes, Gainesville, for Appellees.
   Per Curiam.

Affirmed. See Malley v. Clay County Zoning Comm'n , 225 So.2d 555 (Fla. 1st DCA 1969) ; see also § 166.041(7), Fla. Stat. (2012).

Lewis, Makar, and M.K. Thomas, JJ., concur.


author: Winsor, J.

text:
    STATE of Florida, Appellant, v. Dennis A. BOHLER, Appellee.
    No. 1D17-5343
    District Court of Appeal of Florida, First District.
    February 11, 2019
    Ashley B. Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellant.
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   Winsor, J.

After a jury convicted Dennis Bohler of drug possession, the trial court granted his motion for new trial. This is the State's appeal of that decision. We have jurisdiction, see Fla. R. App. P. 9.140(c)(1)(C), and we affirm.

The State charged Bohler with sale of a controlled substance within 1,000 feet of a childcare facility, along with possession of a controlled substance with intent to sell. To build their case, authorities had wired a confidential informant and sent him to the tire store where Bohler worked. The State's effort to gather video evidence of a drug transaction was unsuccessful. As the trial court found, "[m]any of the shots were of the tops of trees, floors, and everything but an actual drug transaction." The court went on to conclude that it was "apparent that this occasion was the informant's first use of hidden taping equipment and no practice or dry-run was ever tried to hone or refine the informant's technical proficiency." But the State did have the informant's word. The informant testified that he gave Bohler money for drugs and that Bohler then went with him to get the drugs from a nearby car, but that the drugs were not there. The informant reported that Bohler told him to come back in thirty minutes, after which Bohler told him to look in an open desk drawer in the tire store. There, the informant testified, he found and took cocaine, completing the transaction.

Bohler testified in his defense, denying that he sold the informant drugs. The case therefore turned on whether the jury believed the informant or Bohler. The jury ended up acquitting Bohler on the drug-sale charge, but it convicted him of simple possession, a lesser included offense. Bohler then moved for a new trial, arguing-among other things-that the jury's verdict was contrary to the weight of the evidence, see Fla. R. Crim. P. 3.600(a)(2), and that the trial court should have allowed Bohler more leeway in impeaching the informant, see id. 3.600(b)(6).

After a hearing, the court entered a detailed written order granting Bohler a new trial. We now review that order under the abuse-of-discretion standard, Stephens v. State , 787 So.2d 747, 754 (Fla. 2001), keeping in mind that "a stronger showing is required to upset an order granting than an order denying a motion for new trial," Cloud v. Fallis , 110 So.2d 669, 673 (Fla. 1959).

When considering a rule 3.600(a)(2) new-trial motion based on weight of the evidence, "the trial court must exercise its discretion to determine whether a greater amount of credible evidence supports an acquittal." Kelley v. State , 16 So.3d 196, 196-97 (Fla. 1st DCA 2009) (quoting Ferebee v. State , 967 So.2d 1071, 1073 (Fla. 2d DCA 2007) ). The court must "weigh the evidence and determine credibility just as a juror would." Bell v. State , 248 So.3d 208, 209 (Fla. 1st DCA 2018), review denied, 2018 WL 6619798 (Fla. Dec. 17, 2018) ; accord Tibbs v. State , 397 So.2d 1120, 1123 n.9 (Fla. 1981) (" Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror.").

Here, in granting Bohler's motion, the court did just that: it weighed the evidence and considered witness credibility. It concluded that the informant-the State's principal witness-had little credibility, noting he had fought with Bohler, had business disputes with Bohler, and had a strong desire to make a drug buy to secure a favorable sentence in his own criminal case. And it also weighed the other evidence presented, concluding that the verdict was against the manifest weight of the evidence. Although the State argues that the court improperly considered evidence that was not presented to the jury, the court's determinations about the evidence that was presented is enough to uphold the court's order. In short, the State has not met its difficult burden of showing an abuse of discretion.

AFFIRMED .

Rowe and Bilbrey, JJ., concur.


text:
    Carin Elaine MAXEY, Petitioner, v. James Michael DUNKEL and Karen McClain Dunkel, Respondents.
    No. 1D18-4789
    District Court of Appeal of Florida, First District.
    February 8, 2019
    Michael M. Naughton, Jacksonville, for Petitioner.
    No appearance for Respondents.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Bilbrey, Winokur, and Jay, JJ., concur.


text:
    Hadi BARAKAT d/b/a Barakat Food Store, Appellant, v. FLORIDA OFFICE OF FINANCIAL REGULATION, Appellee.
    No. 1D17-3637
    District Court of Appeal of Florida, First District.
    February 11, 2019
    Michael T. King, Neptune Beach, for Appellant.
    Anthony Cammarata and Miriam S. Wilkinson A.G.C., Tallahassee, for Appellee.
   Per Curiam.

Hadi Barakat appeals the Office of Financial Regulations's denial of his request to contest a final order entered against him as the proprietor of a convenience store that is alleged to have engaged in transactions violating Florida check cashing laws. He claims he was out of the country and that the OFR's service of its complaint against him on a shopkeeper and at his parent's home was ineffectual; the OFR counters that service was proper as to both (Barakat had listed his parent's home as an official address) and that Barakat's affidavit is not credible. Under these circumstances, where the OFR has served notice of the complaint in facially valid ways and Barakat claims that notice was invalid based on disputed facts, a limited remand is necessary to adjudge the matter. See Avante, Inc. v. Agency for Health Care Admin. , 722 So.2d 965 (Fla. 1st DCA 1998) ; Symons v. State, Dep't of Banking and Fin. , 490 So.2d 1322 (Fla. 1st DCA 1986) ; Brown v. State, Dep't of Fin. Servs. , 899 So.2d 1246 (Fla. 4th DCA 2005).

REVERSED and REMANDED .

Lewis, Makar, and M.K. Thomas, JJ., concur.


author: Per Curiam. Kelsey, J., dissenting.

text:
    William RENTE, Appellant, v. ORANGE COUNTY BOCC and Cannon Cochran Management Services, Inc., Appellees.
    No. 1D17-2664
    District Court of Appeal of Florida, First District.
    February 11, 2019
    Bill McCabe, Longwood, and Manuel Franco, Tampa, for Appellant.
    Kristen L. Magana of Broussard, Cullen & Blastic, P.A., Orlando, for Appellees.
   Per Curiam.

In this workers' compensation appeal, the claimant, William Rente, seeks reversal of the order denying him benefits. The Judge of Compensation Claims (JCC) erred by failing to complete the analysis required by case law and section 440.20(4), Florida Statutes (2015). He further erred in excluding portions of the testimony of an unauthorized physician. We, therefore, reverse and remand for further proceedings.

Factual Background

On September 8, 2015, Rente slipped and fell on an algae-covered walkway. The Employer/Carrier (E/C) initially accepted compensability, and Rente received authorized medical care at Centra Care, starting on September 11. He was diagnosed with a contusion of the sacrum and right hip pain. Because of his continuing complaints, Centra Care referred him for an MRI. The study, completed on October 21, revealed moderate multilevel degenerative disc disease, including a diffuse disc bulge at the L4-5 level and superimposed bilateral posterior lateral disc herniations, right greater than left, causing severe bilateral neural foraminal stenosis and impingement of the bilateral L4 nerve roots. The age of the condition was indeterminate.

On November 9, Dr. Haque, the E/C-authorized orthopedic spine surgeon, examined Rente. Dr. Haque testified that Rente complained of continuing symptoms of low back pain radiating to the right lower extremity. The doctor stated that Rente gave him a history of episodic low back pain that predated the workplace accident, but explained that it was different from his present complaints and that it had not prompted him to seek medical care. Rente told the doctor that he had previously seen a chiropractic physician for his neck, but not for his low back.

The adjuster testified that Rente did not name his chiropractor until December 4, 2015, when Rente reported to the Carrier that he had received treatment from Dr. Fogarty prior to his workplace accident. Thereafter, the Carrier secured Dr. Fogarty's records and scheduled Rente for an independent medical evaluation. On May 1, 2016, the E/C filed their Notice of Denial, asserting that the 2015 workplace accident was no longer the major contributing cause of Rente's need for treatment or entitlement to disability benefits.

Litigation Below

Rente argued at the final hearing that the E/C were estopped from denying compensability because they waived that right by failing to deny compensability within 120 days, and the E/C accepted as compensable the low back condition by providing treatment for it. The E/C argued that the exception to the 120-day rule applied because there were facts and information they could not have discovered within 120 days.

At the hearing, the E/C objected to any opinion testimony voiced by Dr. Fogarty. The JCC agreed that opinions given by unauthorized physicians were admissible to the extent the testimony addressed the diagnosis of a pre-existing condition; however, when the JCC was advised that Dr. Fogarty had been deposed after the subject claim was filed and had been asked questions about Rente's prior diagnosis, the JCC sustained the objections, concluding that any testimony given after the date of the accident was an inadmissible opinion.

The JCC denied and dismissed all of the claims with prejudice. He rejected the E/C's argument that they accepted compensability only of an exacerbation of a pre-existing condition, and the E/C has not challenged that finding on appeal. The JCC noted, however, that Dr. Haque changed his opinion on causation after reviewing Dr. Fogarty's pre-accident records that detailed treatment provided for Rente's low back complaints, and that Dr. Haque's change of opinion, along with the E/C's notice of denial, occurred more than 120 days from the initial provision of benefits. The JCC explained that Rente's misrepresentation about his prior low back symptoms to Dr. Haque, as testified by Dr. Haque, does not change this part of the analysis. Nevertheless, "[i]t is highly significant ... to the issue of whether 'the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120 day period ....' "

The JCC concluded that the E/C performed "a reasonable and timely investigation into the compensability of claimant's low back condition. It was claimant's misstatements to Dr. Haque about prior symptoms and treatment to his low back that were the direct and proximate cause of any delay in the [E/C] issuing its notice of denial." Accordingly, the JCC found that the E/C had "not waived the right to deny compensability of claimant's low back condition." The JCC did not, however, decide when the E/C had sufficient information to renew its investigation after receipt of the additional information in this case.

120-Day Rule

Section 440.20(4) provides:

If the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee's entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits as required under subsection (2) or s. 440.192(8). Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability. Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.

The JCC's finding that the E/C established "material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120 day period" has record support. Likewise, the JCC's conclusion that "[i]t was claimant's misstatements to Dr. Haque about prior treatment to his low back that were the direct and proximate cause of any delay in the [E/C] issuing its notice of denial" has record support. That the cause for the delay was a misrepresentation does not control the analysis required here, however, because the JCC erred when he found the E/C "perform[ed] a reasonable and timely investigation into the compensability of claimant's low back condition." The JCC could not reach such a conclusion in the absence of a finding as to when that investigation should have begun.

The statute does not require that certainty exist before the investigation period begins to run; otherwise, why would a carrier have 120 days to investigate? As noted in Mims v. Confederated Staffing , 940 So.2d 518, 520 (Fla. 1st DCA 2006), "[t]he statute does not ... provide that the carrier have nothing less than actual notice, but rather that it have sufficient information to enable it to deny compensability within 120 days." Further, "[t]he requirement of an 'immediate and good faith' investigation does not mandate that every investigative act that can be taken is, in fact, taken. It is merely a requirement that the E/C be prepared to decide, within 120 days , what position they wish to take on a given claim, and be accountable for that decision." Wintz v. Goodwill , 898 So.2d 1089, 1091 (Fla. 1st DCA 2005) (emphasis added).

When the 120-day period begins to run is a factual determination. See Sierra v. Metropolitan Protective Services , 188 So.3d 863 (Fla. 1st DCA 2015).

If there were material facts the E/C was not aware of, the carrier still had the obligation to conduct an investigation once it became aware of sufficient pertinent information. In Mims , following the claimant's December 31, 2003, workplace accident, the E/C accepted compensability of the claimant's low back condition and provided both medical and indemnity benefits. 940 So.2d at 519. The diagnosed condition was an L4-5 disc herniation for which surgery was recommended and performed. Id. The surgical note prepared on June 24, 2004, "disclosed spinal stenosis with no evidence of disc herniation." Id. The surgeon, in a conference with the E/C's attorney on November 15, 2004, "informed the E/C's attorney that 100 percent of claimant's need for medical treatment was caused by pre-existing degenerative changes due to claimant's personal condition, spinal stenosis." Id. In its analysis, the Mims court explained as follows:

Although we acknowledge that nothing in the medical records prior to the laminectomy conducted on June 24, 2004, placed the E/C on notice that the back injury suffered by claimant during the course of his employment was not the major contributing cause of his condition, we are unable to uncover any support in the record for the judge's finding that such notice was not received by the carrier until the conference of November 15, 2004.
Dr. Scharf's surgery notes of June 24, 2004, should have reasonably brought to the carrier's attention the fact that claimant's personal condition preexisted the industrial accident, thereby alerting it to the necessity of beginning an investigation, yet it failed to take any action within 120 days from such notice. The carrier presented no evidence that Dr. Scharf did not provide his office notes to it, that he misled it, or that his notes were lost or misplaced. The only evidence offered by the carrier as an excuse for its failure to deny within the 120-day period was that it only actually became aware as of November 15, 2004, that the industrial accident was not the major contributing cause of the injury. The statute does not, however, provide that the carrier have nothing less than actual notice, but rather that it have sufficient information to enable it to deny compensability within 120 days.
In our judgment, the carrier had such information through the provision of Dr. Scharf's notes.

Id. at 520 (citation omitted).

Here, on remand, the JCC must determine when the E/C had material facts relevant to the issue of causation that called into question their obligations to Rente, thus triggering the duty to "immediately and in good faith commence investigation of the employee's entitlement to benefits under this chapter" and whether they denied compensability within 120 days thereafter. § 440.20(4), Fla. Stat.

Exclusion of Testimony

A JCC's exclusion of evidence is reviewed for an abuse of discretion. See Escutia v. Greenleaf Prods., Inc. , 886 So.2d 1059, 1060 (Fla. 1st DCA 2004). Section 440.13(5)(e), Florida Statutes (2015), provides the only medical opinion testimony admissible before the JCC is that of expert medical advisors, independent medical examiners, and authorized treating physicians.

Nevertheless, this court has determined the testimony of a physician other than those enumerated in section 440.13(5)(e) is admissible to the extent it is limited to "a factual report of the information contained in [a doctor's] office records" regarding the claimant. Office Depot v. Sweikata , 737 So.2d 1189, 1191 (Fla. 1st DCA 1999). That testimony can include a claimant's complaints, the doctor's diagnosis, and the prescribed treatment. Id.

Our review of the JCC's order failed to locate any specific guidance as to what portions of Dr. Fogarty's records and deposition the JCC found were admissible, if any. When referencing Dr. Fogarty, the JCC refers to the doctor's records, not his deposition testimony. To the extent the JCC excluded any of Dr. Fogarty's deposition testimony or any portion of the doctor's reports, it was error. Dr. Fogarty was not asked to express an opinion relative to the issue before the JCC, which was medical causation. Rather, the doctor was asked to describe the treatment he provided to Rente and was asked to put Rente's complaints and the clinical exam results into context. See Gutierrez v. Vargas , 239 So.3d 615, 622 (Fla. 2018) ("While an expert witness assists the jury to understand the facts, a treating physician testifies as a fact witness 'concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another.' Fittipaldi USA, Inc. v. Castroneves , 905 So.2d 182, 186 (Fla. 3d DCA 2005). This necessarily involves testifying with regard to the exercise of the treating physician's specialized medical knowledge as applied to other facts of the case, namely the plaintiff's symptoms. A treating physician is a fact witness, and testifies to past facts based on personal knowledge.").

Arguably, the closest Dr. Fogarty came to expressing an opinion was in answer to the question of whether he ever suspected Rente was suffering from a herniated disc. But this question only asks that the doctor summarize Rente's symptoms, the results of diagnostic testing, and his ensuing diagnosis. The JCC should have considered the totality of Dr. Fogarty's testimony and records.

Conclusion

On remand, the JCC must determine the start date of the 120-day pay-and-investigate period and then determine whether the E/C denied compensability in a timely manner. If the JCC determines once again that the E/C did not waive the right to deny compensability, the remaining issues must be re-addressed after consideration of Dr. Fogarty's testimony in full.

REVERSED and REMANDED for further proceedings consistent with this opinion.

Wolf and Bilbrey, JJ., concur; Kelsey, J., dissents with opinion.

Kelsey, J., dissenting.

This case is not about the 120-day rule so much as it is about the E/C's independent right to contest major contributing cause. The JCC expressly found that pre-existing conditions were the MCC of Claimant's need for treatment after his fall. This finding is supported by competent, substantial record evidence in the Claimant's medical records and in the opinions of Drs. Haque and Meinhardt, which the JCC was entitled to accept in lieu of the contrary opinion from IME physician Dr. Greenberg. There is no outcome-determinative reason to remand for the JCC to specify which parts of Dr. Fogarty's deposition were improper opinion testimony and then ask Dr. Meinhardt if that changes his ultimate opinions on MCC. In relevant part, Dr. Fogarty's deposition testimony duplicated the contents of his records concerning Claimant's complaints, examinations, and test results, which alone are sufficient to support a conclusion that the fall was not the MCC of the need for treatment. With or without the clearly factual parts of Dr. Fogarty's deposition, the opinions of Drs. Haque and Meinhardt were sufficiently supported by competent, substantial evidence including Dr. Fogarty's records, which duplicated the factual parts of his deposition testimony. The E/C was not required to cross-appeal in order to rely on the JCC's express finding, supported by competent, substantial evidence, that the Claimant's fall was not the MCC of his need for treatment. A remand on this record simply runs up the costs of reaching the same conclusion. We should affirm in all respects.

      We would note that the E/C neither pled nor pursued a fraud defense pursuant to sections 440.09(4) and 440.105(4)(b), Florida Statutes.


text:
    Marshall CASSEDY, Jr., Appellant, v. Monique WOOD, Nikki Clark and Darcy Cavell, Appellees.
    No. 1D17-2496
    District Court of Appeal of Florida, First District.
    February 11, 2019
    J. Marshall Conrad and Anthony L Bajoczky, Jr. of Ausley McMullen, Tallahassee, for Appellant.
    David P. Healy of Dudley, Sellers, Healy & Heath, PL, Tallahassee, for Appellees.
   Per Curiam.

Appellant, Marshall Cassedy ("Cassedy"), appeals a trial court's order awarding attorney's fees pursuant to the terms of a lease agreement, but denying additional fees under section 768.79, Florida Statutes. The trial court held attorney's fees were not due pursuant to the statute because (1) the terms of the lease were binding, and (2) the settlement proposal was ambiguous and thus unenforceable. Because we find Cassedy is entitled to recover his attorney's fees and costs from Appellees ("Lessees") under both the terms of the lease agreement and section 768.79, the order is reversed.

Facts

Cassedy, the owner of real property, entered into a lease agreement with Lessees. Cassedy filed a complaint claiming Lessees had breached the terms of the lease by vacating the property and terminating rent payment. Cassedy served proposals of settlement for $ 25,000.00 on each of the Lessees separately as required by section 768.79 and Florida Rule of Civil Procedure 1.442. The terms of the proposals for settlement to each Lessee were identical and read:

Pursuant to Section 768.79, Florida Statutes and Fla. R. Civ. P. 1.442, Plaintiff, Marshall Cassedy, Jr. ("Cassedy"), directs this Proposal for Settlement to Defendant, Monique Wood ("Wood"). Cassedy offers to settle and resolve all claims for damages that would otherwise be awarded Cassedy against Wood in a final judgment in this action for the total sum of $ 25,000.00 (the "Settlement Amount").
The Settlement Amount includes payment for any award of attorney's fees and suit costs to which Cassedy may be entitled and $ 0.00 of which sum is for any claim that Cassedy may have against Wood to an award of punitive damages because no such claim has been asserted or certified in this case.
The only conditions of the Proposal for Settlement are as follows:
1. Wood shall tender the Settlement Amount at the office of Cassedy's counsel.
2. No later than ten (10) days following tender and the clearance of funds representing the Settlement Amount, Cassedy shall cause his counsel to file a notice, in conformity with the requirement of Fla. R. Civ. P. 1.420(a)(1)(A), causing the dismissal with prejudice of Cassedy's claims asserted in this action against Wood.

All three Lessees rejected the settlement offers, and the case proceeded to a jury trial. The jury found Lessees jointly and severally liable for the sum of $ 83,657.60. The trial court entered a final judgment retaining jurisdiction to determine attorney's fees and costs due to Cassedy.

Cassedy filed a motion asserting his entitlement to attorney's fees, costs and prejudgment interest pursuant to section 768.79, as well as the lease agreement. Regarding attorney's fees and costs, the lease agreement provided, "Lessee agrees to pay the cost of collection and ten per cent [sic] attorney's fees on any part of said rental that may be collected by suit or by attorney, after the same is past due." Following a hearing, Cassedy was awarded attorney's fees pursuant to the lease agreement ($ 8,365.75 or ten percent of the judgment), but denied attorney's fees under section 768.79. The trial court surmised it was unable to determine from the wording of the settlement proposal whether the judgment was 25% over the settlement offer; specifically, whether the three settlement offers of $ 25,000.00 each should be aggregated for the purpose of comparison to the amount awarded. The trial court further concluded that regardless of whether the offer of settlement should be aggregated, Cassedy was not entitled to attorney's fees per statute, as the terms of the lease "controlled."

Cassedy argues on appeal that the terms in the lease agreement do not bar recovery of attorney's fees under 768.79, and the offers of settlement should not be aggregated for the purpose of determining entitlement under the statute. We agree.

Analysis

A lower court's ruling on a motion for attorney's fees and costs pursuant to section 768.79 and Rule 1.442 is reviewed de novo. Kuhajda v. Borden Dairy Co. of Ala., LLC , 202 So.3d 391, 393-94 (Fla. 2016) ; Paduru v. Klinkenberg , 157 So.3d 314, 316 (Fla. 1st DCA 2014).

Cassedy first argues the trial court erred in denying attorney's fees pursuant to section 768.79, claiming the fee provision in the lease agreement does not prevent a simultaneous award of attorney's fees under the statute. Section 768.79 provides:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. Where such costs and attorney's fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of costs and fees, less the amount of the plaintiff's award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in the amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is inadmissible in subsequent litigation, except for pursuing the penalties of this section.

The purpose of an attorney's fee provision in a contract is not to enrich the prevailing party, but to make the prevailing party whole through reimbursement of litigation. Tierra Holdings, Ltd. v. Mercantile Bank , 78 So.3d 558, 563 (Fla. 1st DCA 2011). Section 768.79 imposes a penalty. Id. ; see also Schussel v. Ladd Hairdressers, Inc. , 736 So.2d 776, 778 (Fla. 4th DCA 1999). Because the statute is "in derogation of the common law rule that each party pay its own fees," it "must be strictly construed." Tierra Holdings , 78 So.3d at 563 (quoting Willis Shaw Express, Inc. v. Hilyer Sod, Inc. , 849 So.2d 276, 278 (Fla. 2003) ). "Further, because an award under the offer of judgment statute serves as a penalty, the strict construction rule must be applied 'in favor of the one against whom the penalty is imposed,' and the statute must never be 'extended by construction.' " Tierra Holdings , 78 So.3d at 563 (quoting Sarkis v. Allstate Ins. Co. , 863 So.2d 210, 223 (Fla. 2003) ).

Here, both parties support their arguments with citation to Tierra Holdings . In Tierra Holdings , the trial court awarded attorney's fees to one party pursuant to section 768.79 and to another party pursuant to an attorney's fee provision in the contract. Id. at 559-60. The issue raised as a matter of first impression in the case was whether "a valid proposal for settlement under section 768.79, Florida Statutes, cuts off a prevailing party's claim for contractual attorney's fees and costs incurred after the date of the proposal." Id. at 561. This Court answered the question in the negative. In reaching its conclusion, this Court noted the fee provision at issue was very broad and provided simply that the " 'prevailing party' in any litigation in connection with the contract would be entitled to all costs and expenses including attorney's fees." Id. at 560. This Court further recognized there was nothing in the contract language limiting a "prevailing party's entitlement to an award of fees based upon the opposing party's offer to settle" nor did the plain language of section 768.79"authorize ... the modification of a contractual right to attorney's fees." Id. at 563.

Although the Tierra Holdings decision is not directly on point, its decision provides direction. Here, the issue before this Court is whether a party can be awarded attorney's fees under a lease agreement provision and section 768.79 simultaneously. As in Tierra Holdings , the contract language in the attorney's fee provision of the lease does not explicitly waive any attorney's fees which may be available per statute. Further, the plain language of section 768.79 does not simply make attorney's fees permissible, but mandatory if all requirements set forth are met and the offer was made in good faith. See TGI Friday's, Inc. v. Dvorak , 663 So.2d 606 (Fla. 1995). Thus, because section 768.79 imposes a penalty, the fact that an attorney's fee award is mandatory under the statute if all requirements are met, and this Court's ruling in Tierra Holdings , we find a party may be awarded fees pursuant to terms in a contract and section 768.79 simultaneously. See Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc. , 53 So.3d 348 (Fla. 4th DCA 2011) (holding seller was entitled to attorney's fees based on a provision in the contract as well as under 768.79); Fed. Auto Ins., Inc. v. Bus. Acquisitions Brokerage, Inc. , 839 So.2d 767 (Fla. 4th DCA 2003) (holding party entitled to attorney's fees under both contract language and section 57.115, Florida Statutes ). Stated another way, an award of attorney's fees and costs to a party under the terms of a lease agreement does not preclude an award of additional fees and costs under section 768.79.

Cassedy next challenges the trial court's conclusion that the proposals for settlement were ambiguous, as it could not determine whether the three settlement offers of $ 25,000 should be aggregated for the purpose of comparison to the judgment. This question was settled by the supreme court in Anderson v. Hilton Hotels Corporation , 202 So.3d 846 (Fla. 2016). In Anderson , the supreme court determined that aggregating offers of settlement for the purpose of determining entitlement to attorney's fees "cannot be tolerated under a strict construction of section 768.79." Id. at 858. The court determined Anderson became entitled to fees when he obtained a judgment that "was at least 25% greater than any of these offers." Id.

Here, there is no dispute Cassedy obtained a judgment 25% greater than any of the $ 25,000.00 offers of settlement. Lessees do not argue Cassedy has failed to meet the requirements of the statute, and we find no basis in the record upon which such an argument could be made. Thus, as the proposals for settlement meet the requirements set forth in section 768.79 and Rule 1.442, Cassedy was entitled to receive additional attorney's fees pursuant to the statute.

Conclusion

The trial court erred in determining Cassedy could not receive additional attorney's fees under section 768.79. Based on the imposition of a penalty pursuant to section 768.79 and its mandatory application if all requirements are met, we find a party is not precluded from receipt of attorney's fees under a contract and the statute simultaneously. In addition, the trial court erred in concluding the offers of settlement were ambiguous as it could not determine whether the offers should aggregated for determining entitlement under section 768.79. Therefore, we reverse the order below and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED .

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.

      Names differed as to each Lessee.


text:
    State of Florida, DEPARTMENT OF FINANCIAL SERVICES, Appellant, v. CHOICE PLUS, LLC, Appellee.
    No. 1D17-2036
    District Court of Appeal of Florida, First District.
    February 11, 2019
    Lori Lynn Jobe, Assistant General Counsel of the Department of Financial Services, Tallahassee, for Appellant.
    Michael J. Farrar of Michael J. Farrar, P.A., Aventura, for Appellee.
   Per Curiam.

AFFIRMED . See State, Agency for Health Care Admin. v. Planned Parenthood of Sw. & Cent. Fla., Inc. , 207 So.3d 1032 (Fla. 1st DCA 2017) ; Bank of America v. Turkanovic , 204 So.3d 595 (Fla. 1st DCA 2016) (holding trial court lacks jurisdiction to impose sanctions if the case is voluntarily dismissed within the safe harbor period in section 57.105(4), Florida Statutes, and before a motion for sanctions is filed); Town of Davie v. Santana , 98 So.3d 262 (Fla. 1st DCA 2012) (holding that administrative law judge lacked jurisdiction to award attorney's fees under section 120.595(1), Florida Statutes, once the petition was dismissed, the case was closed and no motion for attorney's fees was pending).

B.L. Thomas, C.J., and Jay and M.K. Thomas, JJ., concur.


text:
    Maurice Javon JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5687
    District Court of Appeal of Florida, First District.
    February 11, 2019
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

We previously affirmed appellant's sentences based on our decision in Burns v. State , 212 So.3d 546 (Fla. 1st DCA 2017). However, the Florida Supreme Court quashed our decision in this case and remanded for reconsideration in light of its decision in Miller v. State , 43 Fla. L. Weekly S426 (Fla. Oct. 4, 2018).

In Miller , 43 Fla. L. Weekly S426, the supreme court held that consecutive mandatory minimum sentences for multiple firearm offenses are impermissible where there are not multiple victims or multiple injuries to a single victim and approved the decision of the Fifth District Court of Appeal in Torres-Rios v. State , 205 So.3d 883 (Fla. 5th DCA 2016). We, therefore, determine that appellant was illegally sentenced to consecutive mandatory minimum sentences for attempted murder in the second degree and possession of a firearm by a convicted felon.

We quash the consecutive mandatory minimum sentences and instruct the trial court on remand to enter an order imposing the mandatory minimums to run concurrently.

Sentencing QUASHED and REMANDED for resentencing.

Wolf, Lewis, and Roberts, JJ., concur.


text:
    S.H., Mother of A.B., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3555
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 14, 2019
    Elliott R. Ambrose, of Law Office of E.R. Ambrose, Brooksville, for Appellant.
    Kelley Schaeffer, of Children's Legal Services, Bradenton, for Appellee.
   PER CURIAM.

We have carefully reviewed the record and conclude that clear and convincing evidence supports the trial court's ruling that the termination of Mother's parental rights is in A.B.'s manifest best interest and is the least restrictive means for protecting A.B.

AFFIRMED.

COHEN, GROSSHANS, and SASSO, JJ., concur.


text:
    E.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1476
    District Court of Appeal of Florida, First District.
    February 11, 2019
    Candice K. Brower, Criminal Conflict & Civil Regional Counsel, Region One, and Melissa J. Ford, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges his adjudication of delinquency for trespassing on school grounds pursuant to section 810.097(1), Florida Statutes. Appellant contends the State failed to present a prima facie case of guilt because there was no evidence appellant was on school grounds for an illegitimate purpose. We agree.

The State presented video surveillance evidence from Rickards High School and GPS data from appellant's electronic monitoring device to show that appellant was on the grounds of Rickards High in a white car that drove by the front office. There was no evidence the car stopped or was anywhere other than the public driveway for a very short period of time. The school's assistant principal testified that appellant was not a registered student and did not check in with the front office. This evidence alone, however, does not prove that appellant was on school grounds for an illegitimate purpose.

Since the State failed to provide evidence of an essential element of the offense, we are required to REVERSE and REMAND with directions for the trial court to vacate appellant's adjudication of delinquency for trespassing on school grounds.

Wolf, Lewis, and Wetherell, JJ., concur.


author: Bilbrey, J.

text:
    David Lawton PETTY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3686
    District Court of Appeal of Florida, First District.
    March 4, 2019
    Andy Thomas, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Bilbrey, J.

Appellant, David Lawton Petty, challenges the trial court order finding him in indirect criminal contempt and imposing a ten-day jail sentence. We affirm the order finding him in contempt but reverse for resentencing in accordance with rule 3.840(g), Florida Rules of Criminal Procedure.

Rule 3.840(g) requires that prior to the pronouncement of sentence for indirect criminal contempt, the court "inform the defendant of the accusation and judgment," "inquire as to whether the defendant has any cause to show why sentence should not be pronounced," and afford the defendant "the opportunity to present evidence of mitigating circumstances." In addition, the sentence must be pronounced "in open court and in the presence of the defendant." Fla. R. Crim. P. 3.840(g). The trial court did not comply with these requirements, and the failure to comply with rule 3.840(g) is fundamental error. Gooden v. State , 931 So.2d 146 (Fla. 1st DCA 2006) ; see also Ensign v. State , 67 So.3d 353 (Fla. 2d DCA 2011).

The order finding Appellant in willful contempt of court is affirmed, but the sentence imposed is reversed pursuant to Gooden . This cause is remanded for resentencing compliant with rule 3.840(g).

AFFIRMED in part, REVERSED in part, and REMANDED .

Rowe and Kelsey, JJ., concur.


text:
    VANACORE CONSTRUCTION, INC., a Florida Corporation, Appellant, v. Alfred A. BARTHOLOMEW and Phyllis L. Bartholomew, a Married Couple, Appellees.
    Case No. 5D18-1669
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 15, 2019
    Thomas E. Jablonski, Robert M. Klein, Houston S. Park III and Andrew M. Feldman, of Klein Glasser Park & Lowe, P.L., Miami, for Appellant.
    William Douglas Stanford, Jr., Peter A. Robertson and Thomas J. Tollefsen, of The Robertson Firm, St. Augustine, for Appellees.
   PER CURIAM.

For the reasons expressed in Vanacore Construction, Inc. v. Osborn , 260 So.3d 527 (Fla. 5th DCA 2018), we reverse and remand.

REVERSED and REMANDED.

COHEN, GROSSHANS and SASSO, JJ., concur.