text:
    Jorge NOLASCO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1123
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney General, for appellee.
    Before SALTER, LOGUE and HENDON, JJ.
   PER CURIAM.

This is an appeal from a final judgment of conviction and sentence following the defendant's entry of pleas of guilt. The sole issue before us is whether the trial court erred in adjudicating the defendant, Jorge Nolasco, mentally competent to proceed.

Nolasco was indicted in 1999 for one count of first-degree murder, two counts of attempted first-degree murder, one count of unlawful possession of a firearm while engaged in a criminal offense, and one count of discharging a firearm from a vehicle. His defense counsel moved for a competency evaluation, and Nolasco was ruled incompetent in 2001. Pursuant to section 916.13, Florida Statutes (2001) and Florida Rule of Criminal Procedure 3.212(c), Nolasco was remanded to the Florida Department of Children and Families for treatment in a secure residential facility for the mentally ill.

Between 2002 and 2016, Nolasco was assessed for restoration to competency to proceed in the pending criminal case, on several separate occasions and by several mental health professionals. Following the trial court's review of the conflicting evidence at the competency hearings during that interval, Nolasco remained in treatment.

In January 2017, the trial court ordered further evaluations. Two professionals found Nolasco competent, while one was unable to reach a conclusion (based on Nolasco's refusal to participate in the evaluation). The trial court found Nolasco competent to proceed. Nolasco's counsel requested further evaluation, which the trial court authorized in July 2017; both experts rendered reports finding Nolasco competent.

As the criminal case was prepared for trial in April 2018, Nolasco's counsel requested a further competency evaluation, which the trial court authorized. One mental health expert reported that Nolasco likely was competent, but did not rule out the possibility that Nolasco was suffering from a major psychiatric illness. A second expert concluded that Nolasco was competent to proceed. Defense counsel requested a third evaluation, which was authorized by the trial court, and that evaluation was conducted in the courtroom. The expert concluded that Nolasco was competent.

The trial court entered an order finding Nolasco competent to proceed, and trial commenced the following day. After jury selection, Nolasco entered a guilty plea to the reduced charge of second-degree murder on one count, and a guilty plea to the remaining counts. This appeal followed.

Analysis

"[W]hen analyzing a competency determination on appeal, this Court applies the competent, substantial evidence standard of review. In other words, a trial court's determination of competency supported by competent, substantial evidence will not be disturbed on appeal." Huggins v. State, 161 So. 3d 335, 344 (Fla. 2014). Moreover, when (as here) expert testimony regarding a defendant's competency is conflicting, "this Court has traditionally afforded great deference to the trial court's resolution of that conflict." Id.

Nolasco argues here that there was an absence of competent, substantial evidence, as the trial court's acceptance of a stipulation between counsel for consideration of the 2017 expert reports allegedly fell short of the required "independent legal determination"; Hernandez v. State, 250 So. 3d 183, 186 (Fla. 3d DCA 2018). Hernandez is distinguishable, however, as in that case there was "nothing in the record to suggest that the trial court reviewed or considered the expert's report, or made an independent assessment or finding of Hernandez's competency." Id. In the present case, the trial court did review the reports and did make independent findings-certainly in the 2018 hearings and apparently in 2017 as well.

The trial court's ultimate ruling, at the May 2, 2018, hearing, was:

I do hereby find that based on both reports, reading through them, taking all of the factors into consideration, including the prior history of Mr. Jorge Nolasco, I do find he is competent to proceed, based on the findings of the doctors. I also find it interesting that I happened to read factually that he has consistently been showing symptoms of malingering, and is clearly trying to feign that he has some kind of mental illness. And as the doctors have found, he has malingering antisocial personality disorder, but I find he is mentally competent proceed at this time.

Competent, substantial evidence exists in this record to support the trial court's determination of competence, and the final judgment of conviction and sentence are thus affirmed.

      There is no complete transcript of the February 2017 hearing available, but the order finding Nolasco competent to proceed states that the trial court examined the evidence presented, and there is no indication of exclusive reliance by the court on the stipulation. The same trial judge presided over the case from May 2015 onward and had personal interactions with Nolasco during a series of hearings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Christopher HAMMONDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-875
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 28, 2019 Rehearing Denied July 17, 2019
    James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Christopher Hammonds appeals his sentence after entering a no contest plea. Because Hammonds failed to file a motion to withdraw his plea, we are without jurisdiction. See Hicks v. State, 915 So. 2d 740, 741 (Fla. 5th DCA 2005) ; accord Murphy v. State, 181 So. 3d 574 (Fla. 5th DCA 2015) ; Campos-Carriera v. State, 106 So. 3d 483 (Fla. 5th DCA 2013) ; Vestal v. State, 50 So. 3d 733, 735 (Fla. 5th DCA 2010) ; Bailey v. State, 21 So. 3d 147, 150 (Fla. 5th DCA 2009). But see Dortch v. State, 242 So. 3d 431, 433 (Fla. 4th DCA), review granted, SC18-681, 2018 WL 3635017 (Fla. July 11, 2018). Consequently, we dismiss the appeal without prejudice to Hammonds's right to seek appropriate and timely postconviction relief below.

DISMISSED.

ORFINGER, WALLIS and EISNAUGLE, JJ., concur.


text:
    Stephen WAMLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-4003
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 2, 2019
    Rachael E. Reese, of O'Brien Hatfield, P.A., Tampa, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Curry v. State , 257 So. 3d 1076 (Fla. 4th DCA 2018).

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


text:
    Kenneth BROWN, Appellant, v. Lauren BROWN, Appellee.
    Case No. 5D18-1263
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 28, 2019 Rehearing Denied July 18, 2019
    Jaime T. Halscott, of Halscott Megaro, P.A., Orlando, for Appellant.
    Mercedes R. Wechsler, Mercedes R. Wechsler, P.A., Orlando, for Appellee.
   PER CURIAM.

The former husband, Kenneth Brown, appeals the final judgment dissolving his marriage to the former wife, Lauren Brown. He challenges the timesharing, equitable distribution of marital assets and debt, retroactive support, and attorney's fee award on appeal. Because the former husband has not provided this Court with the necessary transcripts of the proceedings below, we are precluded from addressing whether the trial court's decisions on these matters are without evidentiary support. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) ; see also Rayess v. Bitar, 254 So. 3d 1197 (Fla. 5th DCA 2018). We must affirm unless the former husband can demonstrate that "fundamental error appears on the face of the appealed order." Murphy v. Murphy, 948 So. 2d 864, 865 (Fla. 5th DCA 2007). The former husband has made no such showing in this case.

AFFIRMED.

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


author: ATKINSON, Judge.

text:
    Myrdalis DIAZ-RAMIREZ, M.D., Appellant, v. DEPARTMENT OF HEALTH, Board of Medicine, Appellee.
    Case No. 2D18-1249
    District Court of Appeal of Florida, Second District.
    Opinion filed July 3, 2019.
    Jon M. Pellett of The Doctors Company, Jacksonville, for Appellant.
    Christine E. Lamia, Chief Appellate Counsel and Katelyn R. Boswell, Assistant General Counsel, Florida Department of Health, Tallahassee, for Appellee.
   ATKINSON, Judge.

Myrdalis Diaz-Ramirez (Diaz-Ramirez), a licensed physician in Florida and Oregon, appeals the final order of the Department of Health, Board of Medicine (the Board). Because Diaz-Ramirez has not been adversely affected by the Board's action, we dismiss the appeal for lack of standing. See § 120.68(1)(a), Fla. Stat. (2018) ("A party who is adversely affected by final agency action is entitled to judicial review.").

The Board filed an administrative complaint against Diaz-Ramirez alleging a violation of section 456.072(1)(bb), Florida Statutes (2013). After an Administrative Law Judge (ALJ) of the Division of Administrative Hearings conducted a hearing on the matter, the ALJ issued a recommended order recommending that the complaint be dismissed. The Board issued a final order dismissing the complaint against Diaz-Ramirez but modified portions of the recommended order. Diaz-Ramirez argues that the Board violated section 120.57(1)(l ), Florida Statutes (2018), by making the modifications.

Despite the Board's dismissal of the complaint, Diaz-Ramirez contends she has standing because the Board's modifications place her in a negative light, damage her professional reputation, and could subject her to possible discipline by other entities. The changes to the ALJ's recommended order regard the construction of a statute and the interpretation of a prior judicial opinion. Diaz-Ramirez has not demonstrated that the modifications have the potential to affect her professional reputation or the light in which she is perceived. See Bodenstab v. Dep't of Prof'l Regulation, 648 So. 2d 742, 743 (Fla. 1st DCA 1994) (finding a doctor did not have standing where the record refuted his argument that he was adversely affected by portions of an order granting licensure). Nor under the circumstances of this case has Diaz-Ramirez proven that her claims of potential discipline by other entities are more than mere speculation. See Martin Cty. Conservation All. v. Martin County, 73 So. 3d 856, 861-64 (Fla. 1st DCA 2011) (holding that appellants' basis for standing on appeal was insufficient where it was based on speculation regarding future judicial interpretations of amendments to the county's growth plan); cf. Wills v. Fla. Elections Comm'n, 955 So. 2d 61, 63-64 (Fla. 1st DCA 2007) (holding that a law enforcement officer had standing to appeal final order, even though charges were dismissed, because the Florida Elections Commission's modified findings of fact would require the West Palm Beach Police Department to investigate him); Rabren v. Dep't of Prof'l Regulation, 568 So. 2d 1283, 1288 (Fla. 1st DCA 1990) (holding that pilot had standing to appeal final order, despite the administrative complaint being dismissed, due to the "fact that there are [new] pending charges against appellant based upon the legal conclusion contained in the final order").

We conclude that Diaz-Ramirez lacks standing to bring this appeal as she did not establish that she is adversely affected by the Board's modifications to the ALJ's recommended order. See Petito v. Constr. Indus. Licensing Bd., 99 So. 3d 552, 552-53 (Fla. 1st DCA 2012) (finding that the appellant lacked standing where he obtained the relief he sought from the licensing board and did not demonstrate a basis for apprehension that as a result of the proceeding he would be disciplined in the future); Bodenstab, 648 So. 2d at 743.

Dismissed.

CASANUEVA and KELLY, JJ., Concur.


author: Per Curiam.

text:
    Jordan JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4325
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Damaris E. Reynolds and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   Per Curiam.

Jordan Johnson appeals his conviction for carrying a concealed weapon. His only argument on appeal is that the trial court should have granted his motion to suppress. We reject this argument and affirm.

Officers initiated a 2:00 a.m. traffic stop after noticing a headlight out on Johnson's car. Officers then smelled burnt marijuana, detained Johnson, and searched the car. Inside the car, they found the gun that led to the charge.

On appeal, Johnson acknowledges "the long line of cases that hold that the smell of burnt marijuana coming from a vehicle provides an officer with probable cause to detain the defendant and conduct a warrantless search." Init. Br. at 8 (citing State v. T.P. , 835 So. 2d 1277 (Fla 4th DCA 2003) ; State v. Williams , 967 So. 2d 941 (Fla. 1st DCA 2007) ; State v. Jennings , 968 So. 2d 694 (Fla. 4th DCA 2007) ); see also State v. Betz , 815 So. 2d 627, 633 (Fla. 2002) ("As the odor of previously burnt marijuana certainly warranted a belief that an offense had been committed, this unquestionably provided the police officers on the scene probable cause to search the passenger compartment of the respondent's vehicle."). But, he contends, those cases became irrelevant after Florida authorized medical marijuana. In other words, he argues, while the officer's "search based on the odor of marijuana was constitutional prior to the enactment of [ § 381.986, Fla. Stat.], now that medical marijuana is legal, it is no longer a sufficient basis for probable cause." Init. Br. at 7. He does not argue that he is a medical-marijuana user; his argument is that the smell alone is no longer enough since someone might be a medical-marijuana user.

There are several problems with this argument. First, as the State notes, at the time of the stop, Florida's medical-marijuana laws did not authorize smokable marijuana, see § 381.986(1)(j)(2), Fla. Stat. (2017) (excluding from "medical use" the "use, or administration of marijuana in a form for smoking"), and the officers smelled burnt marijuana. Second, Florida law did not allow use in "a vehicle" other than "for low-THC cannabis." Id. § 381.986(1)(j)(5)(b). Third, although Florida law does not criminalize all use of medical marijuana, possession of marijuana remains a crime under federal law. See 21 U.S.C. § 812(c) ; see also Gonzales v. Raich , 545 U.S. 1, 27, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (noting that federal controlled substance act "designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses"). Fourth, even if smoking marijuana were legal altogether, the officers would have had probable cause based on the fact that Johnson was operating a car. See § 316.193(1)(a), Fla. Stat. (criminalizing driving under the influence of drugs).

Finally, even putting all of this aside, the possibility that a driver might be a medical-marijuana user would not automatically defeat probable cause. The probable cause standard, after all, is a "practical and common-sensical standard." Florida v. Harris , 568 U.S. 237, 244, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013). It is enough if there is "the kind of 'fair probability' on which 'reasonable and prudent people, not legal technicians, act." Id. (some marks omitted). Here, we cannot say that it would be unreasonable for an officer to conclude there is a fair probability that someone driving around at 2:00 a.m., smelling of marijuana, is acting unlawfully. And this is true whether or not Florida law allows the medical use of marijuana in some circumstances.

In short, Johnson has not shown that the trial court's order denying suppression-an order that comes to us "clothed with a presumption of correctness," Terry v. State , 668 So. 2d 954, 958 (Fla.1996) -was wrong.

AFFIRMED .

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


text:
    Dana S. CANNON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1626
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Crystal McBee Frusciante, Sunrise, for Appellant.
    Ashley Moody, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In Cannon v. State , 206 So. 3d 831 (Fla. 1st DCA 2016), we reversed the order denying Appellant's motion to set aside the denial of her rule 3.850 motion and remanded for an evidentiary hearing before a different judge on Appellant's claim that the judge who denied the rule 3.850 motion was biased against her based on an offhand comment the judge made about one of her attorneys. After the hearing on remand, the postconviction court entered a detailed order finding that the judge made the comment in jest; that the judge did not harbor any animus towards Appellant's attorney; and that there was no indication that the result of the postconviction proceeding was unreliable because the judge held a nine-hour evidentiary hearing on the rule 3.850 motion and explained his ruling in a detailed order that was per curiam affirmed on appeal in Cannon v. State, 166 So. 3d 768 (Fla. 1st DCA 2015) (table). These findings are supported by competent substantial evidence, and based on the findings, we find no error in the court's denial of Appellant's motion to set aside the denial of her rule 3.850 motion.

That said, this case highlights why judges should avoid attempts at humor while on the bench, even if it is intended for the laudable purpose of reducing unnecessary tension in the courtroom. The judge's offhand comment here spawned years of postconviction litigation and multiple appeals in this case, all of which could have been avoided if the judge had simply exercised a little self-restraint. We understand that some judges have a more relaxed style on the bench than others, but judicial humor is rarely as funny as the judge thinks it is, and judicial humor is never funny when it is at the expense of an attorney or a party. See In re Kwan , 443 P.3d 1228, 1231 n.1, 2019 WL 2223543, at *3 n.1 (Utah 2019) ("It is an immutable and universal rule that judges are not as funny as they think they are. If someone laughs at a judge's joke, there is a decent chance that the laughter was dictated by the courtroom's power dynamic and not by a genuine belief that the joke was funny."); Brofman v. Fla. Hearing Care Ctr., Inc. , 703 So. 2d 1191, 1192 (Fla. 4th DCA 1997) ("Jokes by the trial judge are a risky venture in any event, and the closer the joke to the subject matter of the litigation, the greater the risk that the attempted humor will, in one way or another, be inappropriate."); People v. Melton , 44 Cal.3d 713, 244 Cal.Rptr. 867, 750 P.2d 741, 753-54 (1988) ("Well-conceived judicial humor can be a welcome relief during a long, tense trial. Obviously, however, the court should refrain from joking remarks which the jury might interpret as denigrating a particular party or his attorney.").

AFFIRMED .

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

      The comment also led to a remand for additional proceedings in a case involving the same judge and attorney but a different defendant. See Alexander v. State , 210 So. 3d 256 (Fla. 1st DCA 2017).


text:
    Randall BLAKE, James Bradford, Robert Bunn, Mark Carroll, Donald Cheatham, Kyle E. Doran, Roger Emery, Robert Gher, Larry Gochnour, Mark S. Gray, Larry Green, James Jackson, George Jarnutowski, Lyndon Johnson, Kevin Scott Lagow, Roy Lawrence, Thomas Gary Lee, Robert Lemay, Mason Logan, Clyde Lowe, James T. McDaniel, Penny McGuire, Barry Form Morgan, Alyson Cobb Morgan, Charles Newton, Francis Robert Neyer, Bruce Nicewander, Beverly Oakes, William Alan Page, Sharon Patterson, Robert Recker, Joe Rouse, Lloyd Sanders, Marvin Tom Scarborough, Paul Smith, Robert Spittler, Jerry Stapleton, Carol Stevens, Art Wallace, Winston Wayne Walters, Barbara Whitaker, and Mark Wright, Petitioners, v. ST. JOHNS RIVER POWER PARK SYSTEM EMPLOYEES' RETIREMENT PLAN, Respondent.
    No. 1D17-4750
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Thomas A. "Tad" Delegal, III, and James C. Poindexter of Delegal Law Offices, P.A., Jacksonville, for Petitioners
    Cindy A. Laquidara and Allison M. Stocker of Akerman LLP, Jacksonville, for Respondent.
   Per Curiam.

Petitioners seek review of an order of the circuit court, which while sitting as an appellate court exercising certiorari review, denied Petitioners relief from a local administrative action impacting their retirement benefits. Constrained by the narrow standard of review applicable to second-tier certiorari, we deny the petition.

Facts and Procedural History

Petitioners are retirees who were employed by the St. Johns River Power Park and are members of the St. Johns River Power Park Employees' Retirement Plan ("Respondent" or the "Plan"). Petitioners retired on various dates over a thirteen-year period beginning in 2003 and began receiving pension benefits from Respondent. In 2015, during a required Internal Revenue Service ("IRS") review of the Plan, Respondent determined that its actuaries had miscalculated some retirees' benefits on an ongoing basis for thirteen years. Respondent concluded that the miscalculation resulted in Petitioners' being paid more benefits than they were entitled to under the Plan. Upon discovering the error, Respondent provided a submission ("Corrective Action") to the IRS Voluntary Correction Program indicating that it planned to take corrective action by recouping the overpayments, including five percent interest, and adjusting Petitioners' future benefits accordingly. Through its application to the IRS, Respondent requested that the IRS issue a compliance statement approving its proposed Corrective Action. The IRS approved the Corrective Action and issued a signed compliance statement. Respondent then sent letters to Petitioners notifying them of its error and outlining their options for repaying the overpayment.

Petitioners requested and received a hearing before the committee charged with managing and administering the Plan (the "Committee") to contest the Corrective Action. Petitioners argued that Respondent was barred from taking the Corrective Action under the doctrine of equitable estoppel. Through sworn affidavits, Petitioners contended that they relied on Respondent's representations in deciding to retire on the dates elected, rather than later dates when they would have received higher benefits. Counsel representing the Committee's initial decision to recoup the overpayments argued that Petitioners were not entitled to the money and that the IRS requires recoupment in such circumstances for the Plan to keep its tax-qualified status.

The Committee issued its final decision denying Petitioners' appeal and requiring repayment of the overpayments, plus interest. In rendering its unanimous decision, the Committee's order stated that it considered the "affidavits and retirement files on the part of [Petitioners] and written and oral legal submissions and argument with regard to [their] position." The Committee provided the following reasons for the denial of Petitioner's appeal:

1. [Petitioners] have been overpaid and have received benefits not authorized or contemplated by the Plan. Accordingly, they must return those benefits. There is neither a hardship exception, nor, the Committee determined, evidence of such a hardship even if there were such an exception for any of the Members ....
2. Plan section 10.15 provides that any overpayment due to the Plan's trust fund shall be subject to five (5%) interest.
3. Plan section 7.06(2) requires all actions of the Committee to be uniform and nondiscriminatory, and other Plan participants have been assessed the interest charge.
4. A failure to follow the governing Plan document's terms would not comply with federal tax requirements and therefore would jeopardize the tax-qualified status of the Plan, with adverse tax consequences to the Plan and to you and all other participants.
5. The Committee has a fiduciary obligation to recover amounts due to the Plan's trust fund, for the future payment of pension benefits to all Plan participants who are entitled to benefits from the Plan.

Petitioners thereafter sought review of the Committee's decision through a petition for writ of certiorari filed in the circuit court, arguing that the Committee "failed to address, and therefore rejected Petitioners' estoppel arguments" and that the Committee's concern about the tax consequences of affording Petitioners relief was not supported by competent substantial evidence.

After briefing and oral argument by the parties, the circuit court denied certiorari relief, finding that Petitioners were afforded due process, the Committee observed the essential requirements of the law, and the Committee's decision was based on competent substantial evidence. The court noted that the express language of the Plan and other record documents such as the Benefits Notification Summary were sufficient competent substantial evidence to support the Committee's decision. The court also found that there was competent substantial evidence in the record to indicate that "Respondent's benefit calculations were only estimates, support a finding that any miscalculation by Respondent regarding Petitioners' benefits amounts was not material, was not detrimentally relied upon by Petitioners, and was not the cause of a change in Petitioners' decisions regarding whether to retire." The court concluded that equitable estoppel could not apply to allow Petitioners to obtain greater benefits than the language of the Plan itself permitted because it would "jeopardize the Plan's tax-exempt status, result in additional costs and penalties to the Plan and its participants, and risk further non-compliance with the Internal Revenue Code." Petitioners now seek review of the circuit court's ruling.

Analysis

The order being challenged arises from the circuit court's certiorari review of a local administrative action. In exercising first-tier certiorari review, the circuit court is limited to considering, based on the record before it, "(1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence." Haines City Cmty. Dev. v. Heggs , 658 So. 2d 523, 530 (Fla. 1995). Because the circuit court functions as an appellate court in such review, it may not reweigh the evidence or substitute its judgment for that of the local administrative body. Id.

As the case proceeds up the judicial ladder, the inquiry narrows. The district court reviews the circuit court's judgment by second-tier certiorari review and may consider only (1) whether the circuit court afforded procedural due process and (2) applied the correct law. Id. These two prongs are "merely expressions of ways in which the circuit court decision may have departed from the essential requirements of the law." Id. To warrant relief, it is not enough for the district court merely to disagree with the result reached by the circuit court. Dep't of Highway Safety & Motor Vehicles v. Morrical , 262 So. 3d 865, 868 (Fla. 5th DCA 2019). Indeed, the supreme court has cautioned appellate courts "not to expand certiorari jurisdiction to review the correctness of the circuit court's decision." Futch v. Fla. Dep't of Highway Safety & Motor Vehicles , 189 So. 3d 131, 132 (Fla. 2016) (citing Nader v. Dep't of Highway Safety & Motor Vehicles , 87 So. 3d 712, 723 (Fla. 2012) ). Instead, second-tier certiorari relief is "reserved for those situations when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Id. at 132 (quoting Nader , 87 So. 3d at 717 ).

In the instant case, Petitioners contend that the circuit court departed from the essential requirements of law by failing to conduct an appropriate first-tier certiorari review of the Committee's decision. Specifically, they argue that the court impermissibly made its own factual findings on the elements of equitable estoppel and reweighed the evidence, rather than considering whether the Committee's decision was supported by competent substantial evidence.

For support, Petitioners cite Broward County v. G.B.V. International, Ltd. , 787 So. 2d 838, 843 (Fla. 2001). In that case, a developer sought initial certiorari review in the circuit court of the county commission's denial of the developer's application for plat approval. Id. at 840. The circuit court denied the petition, reasoning in part that the developer was estopped from raising its claim because it had misrepresented its position in its application before the commission. Id. at 841. On second-tier certiorari review, the district court held that the circuit court departed from the essential requirements of law because the circuit court "reached beyond the Commission's stated reasons and decided the application on a basis not raised before the County Commissioners. In order to do so, the circuit court relied on evidence not presented to the Commissioners and thus not considered by them in denying approval." G.B.V. Int'l., Ltd. v. Broward Cty , 709 So. 2d 155, 155 (Fla. 4th DCA 1998). The district court then proceeded to evaluate the merits of the commission's decision and, after concluding that the developer was entitled to plat approval, remanded to the circuit court for entry of an order directing the commission to approve the plat as requested. Id. at 156.

On review before the Florida Supreme Court, the supreme court agreed with the district court that the circuit court departed from the essential requirements of law "by applying the wrong law" (i.e., instead of applying the first-tier certiorari standard of review, the court applied an independent standard of review and "made its own factual finding based on the cold record"). G.B.V. , 787 So. 2d at 845. But the supreme court also ruled that the district court went too far by ruling on the merits of the commission's decision, reasoning that "the district court's role on second-tier certiorari review was limited to a two-pronged review of the circuit court decision, not a de novo review of the agency decision." Id. at 845. The supreme court returned the case to the circuit court with directions for it to apply the three-pronged standard of review for first-tier certiorari. Id. at 846.

Mindful of our limited role in reviewing the circuit court decision before us, we conclude that the court properly applied the first-tier certiorari standard of review to the Committee's decision and thus did not violate the essential requirements of the law. Unlike the situation in G.B.V. , the factual "findings" challenged by Petitioners are based on the circuit court's review of the record for competent substantial evidence presented to the Committee that supported the Committee's decision. This is not a case where the circuit court made factual findings regarding a theory or argument not put forth before the administrative body. The court acknowledged in its order that the Committee considered, and rejected, Petitioners' arguments, including their equitable estoppel argument, by pointing to statements in the Committee's determination letter that its decision was based on the stipulated record, including Petitioners' retirement files, affidavits, legal arguments, and transcript of the administrative hearing. The order also cited language from the Plan, the IRS statement, and the Benefits Notification Statements, all of which supported the Committee's determination that the retirement benefits calculations were estimates subject to correction and that the Plan afforded no hardship exception.

While the circuit court may or may not have agreed with the Committee's decision, it was not at liberty to second guess the decision. See Fla. Dep't of Highway Safety & Motor Vehicles v. Wiggins , 151 So. 3d 457, 464 (Fla. 1st DCA 2014) ("The sole starting (and ending) point is a search of the record for competent substantial evidence supporting the decision.");

G.B.V. , 787 So. 2d at 846 n.25 ("On first-tier certiorari review, the circuit court's task is to review the record for evidence that supports the agency's decision, not that rebuts it-for the court cannot reweigh the evidence."). That the record contained other evidence, such as Petitioners' affidavits, which may have supported a finding of equitable estoppel is irrelevant. See Clay Cty. v. Kendale Land Dev., Inc. , 969 So. 2d 1177, 1181 (Fla. 1st DCA 2007) (noting that in certiorari review, "[w]hether the record also contains competent substantial evidence that would support some other result is irrelevant"). Had the circuit court relied on that evidence in the record to rule that equitable estoppel should apply, it would have been engaging in exactly the type of "reweighing" or fact-finding that is forbidden on first-tier certiorari review.

Because Petitioners have not met their heavy burden to show that the circuit court violated the essential requirements of the law, the petition is denied.

Ray, C.J., and Rowe and Osterhaus, JJ., concur.

      The court cited the "Notification of Benefits" signed by each Petitioner, which states in part:
      This calculation is subject to correction . If you are or become aware of errors in the data that was used, the calculations that were made, or the plan provisions that were applied, it is your responsibility to contact the plan administrator. The plan has the right to recover from you amounts that were paid to you in error . (Emphasis added).

      Without providing any supporting argument or legal authority, Petitioners also make the perfunctory claim that the circuit court "failed to afford due process of law by refusing to require that [the Committee] make factual findings regarding their claims of equitable estoppel." This argument is waived. Hammond v. State , 34 So. 3d 58, 59 (Fla. 4th DCA 2010) ("Claims for which an appellant has not presented any argument, or for which he provides only conclusory argument, are insufficiently presented for review and are waived.").


text:
    #1 ANYTIME BAIL 24/7 INC. and Financial Casualty & Surety, Inc., Appellants, v. STATE of Florida and Clerk of the Circuit Court for Citrus County, Florida, Appellees.
    Case No. 5D18-2681
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 9, 2019
    James Patrick Tarquin, Ocala, for Appellants.
    Ashley Moody, Attorney General, Tallahassee, and Shelley Cridlin, Senior Assistant Attorney General, Tampa, for Appellee, State of Florida.
    Adam A. Czaya, of Keith Taylor Law Group, P.A., Lecanto, for Appellee, Clerk of the Circuit Court for Citrus County, Florida.
   PER CURIAM.

AFFIRMED. See Cty. of Volusia v. Audet, 682 So. 2d 687 (Fla. 5th DCA 1996).

COHEN, EDWARDS and GROSSHANS, JJ., concur.


text:
    Miguel Luis PAGAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-1401
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 9, 2019
    Miguel L. Pagan, Bristol, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Novaton v. State , 634 So. 2d 607 (Fla. 1994).

COHEN, LAMBERT, and EISNAUGLE, JJ., concur.


text:
    Jonathan HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5073
    District Court of Appeal of Florida, First District.
    July 10, 2019
    Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Jonathan Hartley was 15 years old when he took the life of a pizza delivery driver during a series of armed robberies. He ultimately entered a negotiated plea to second-degree murder, attempted armed robbery, and armed robbery. The court sentenced him to life in prison with a minimum mandatory term of 40 years for the second-degree murder, 15 years for the attempted armed robbery with a 15-year minimum mandatory term, and 20 years for the armed robbery.

After this court affirmed his convictions and sentences on direct appeal, Hartley filed pro se motions for postconviction relief under Florida Rule of Criminal Procedure 3.850 challenging his life sentence and asserting claims of ineffective assistance of trial counsel. The court granted his motions in part-ordering resentencing for the second-degree murder based on Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) -but denied his remaining claims without a hearing. This is Hartley's appeal from that order.

In his initial brief filed through appointed counsel, Hartley argues that the court erred in summarily denying his claims regarding counsel's failure to seek suppression of certain pretrial statements and the alleged failure to advise him regarding available defenses. We affirm the denial of the latter claim without comment but reverse and remand for further proceedings on the former.

As to the suppression claim, Hartley alleged that his guilty plea was both involuntary and entered without the assistance of reasonably effective counsel because counsel did not challenge the admission of statements obtained in violation of his privilege against self-incrimination. He asserted that after he had invoked his right to remain silent and his right to counsel, law enforcement used his mother as their agent to interrogate and pressure him into making admissions without counsel being present. He argued that although counsel did file a motion to suppress his inculpatory statements, the motion failed to allege as a basis for suppression that he was interrogated after he had invoked his rights. The court summarily denied the claim as refuted by the record, relying on the motion to suppress and transcripts from the plea hearing.

However, a review of the motion to suppress reveals that it did not raise the legal theory advanced in Hartley's rule 3.850 motion. Nor was there any discussion during Hartley's plea colloquy on the motion to suppress or any advice given to him about the potential suppression of his statements. And the fact that he entered into the plea agreement did not negate the possibility of ineffective assistance of counsel. See MacKinnon v. State , 39 So. 3d 537, 538 (Fla. 5th DCA 2010).

As conceded by the State in response to this court's Toler order, the record on appeal does not conclusively refute Hartley's claim on the motion to suppress his inculpatory statements. Even so, this claim is facially insufficient and should have been dismissed. It is impossible to evaluate whether the claim would have presented a viable theory to support a motion to suppress based solely on the conclusory allegations that Hartley's mother acted as an agent of law enforcement at the time of the police interview. See Floyd v. State , 257 So. 3d 1148, 1152 (Fla. 1st DCA 2018) (concluding that a claim of ineffective assistance of counsel for failing to file a motion to suppress was facially insufficient where the defendant failed to allege any supporting facts to show that the evidence would have been subject to suppression). We therefore reverse the portion of the order that denied this claim as refuted by the record and remand for the court to provide Hartley with an opportunity to state a facially sufficient claim. See Ferris v. State , 996 So. 2d 228, 229 (Fla. 1st DCA 2008) (requiring an opportunity to amend because "[t]he trial court did not deny the claim on the basis of facial insufficiency, and, as such, the appellant could not have been aware of the application of Spera [v. State , 971 So. 2d 754 (Fla. 2007) ] to this issue").

AFFIRMED in part and REVERSED and REMANDED in part for further proceedings.

Ray, C.J., and Wetherell and Bilbrey, JJ., concur.

      Hartley has abandoned the other claims in his motion by not raising them on appeal. See Watson v. State , 975 So. 2d 572, 573 (Fla. 1st DCA 2008) ("Traditionally, when a defendant submits a brief in an appeal from a summary denial of a postconviction motion, this Court may review only those arguments raised and fully addressed in the brief.").

      Toler v. State , 493 So. 2d 489 (Fla. 1st DCA 1986).


text:
    Lorenzo BROOKS, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-1802
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Lorenzo Brooks, pro se, Petitioner.
    Kenneth S. Steely, General Counsel; Gayla Grant and Eric Salvatore Giunta, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Roberts, and Jay, JJ., concur.


author: KHOUZAM, Chief Judge.

text:
    Robert MAZUR, Individually; KYC Solutions, Inc.; Penguin Random House, LLC; Little, Brown and Company, Inc.; Good Film, Ltd.; Broad Green Pictures, LLC ; Infiltrator Productions Limited ; Ellen Borwn Furman; Brad Furman; Yul Vazquez; and Good Film Productions U.S., Inc., Petitioners, v. Francisco Javier OSPINA BARAYA, Respondent.
    Case Nos. 2D18-4268 2D18-4269
    District Court of Appeal of Florida, Second District.
    Opinion filed July 10, 2019
    Gregg D. Thomas, Carol Jean LoCicero, and Mark R. Caramanica of Thomas & LoCicero, P.L.; Laura R. Handman of Davis Wright Tremaine LLP, Washington, DC; and Geoffrey S. Brounell of Davis Wright Tremaine LLP, New York, NY, for Petitioners Robert Mazur, individually; KYC Solutions, Inc.; Penguin Random House, LLC; and Little, Brown and Company, Inc.
    Gregory W. Kehoe of Greenberg Traurig, P.A., Tampa, for Petitioner KYC Solutions, Inc.
    Alison M. Steele of Alison M. Steele, P.A., St. Petersburg; and Louis P. Petrich of Leopold, Petrich & Smith, P.C., Los Angeles, CA, for Petitioners Good Film Pictures, LLC; Broad Green Pictures, LLC; Infiltrator Productions Limited; Ellen Brown Furman; Brad Furman, Yul Vazquez; Good Film Productions U.S., Inc.; Robert Mazur, and KYC Solutions, Inc.
    Jon Polenberg, Yasin Daneshfar, and Andrew Polenberg of Becker & Poliakoff, Ft. Lauderdale, for Respondent.
   KHOUZAM, Chief Judge.

Francisco Javier Ospina Baraya filed a defamation suit against Penguin Random House LLC, Hachette Book Group, Inc., Robert "Bob" Mazur, and Mazur's company, KYC Solutions, Inc. (collectively, the "Book Defendants") as well as Good Film, Ltd., Broad Green Pictures, LLC, Infiltrator Productions Limited, Ellen Brown Furman, Brad Furman, Yul Vazquez, and Good Film Productions U.S., Inc. (collectively, the "Movie Defendants"). Baraya alleged that he had been falsely portrayed as a money launderer and integral member of Pablo Escobar's criminal operations in Mazur's nonfiction book The Infiltrator as well as the movie based on the book. The Book Defendants and the Movie Defendants filed motions to dismiss, arguing Baraya had failed to provide them with presuit notice as required by section 770.01, Florida Statutes (2018). Apparently agreeing with Baraya's position that section 770.01 does not apply here, the circuit court denied the motions. The Defendants filed in this court petitions for writs of certiorari seeking to quash the orders denying the motions to dismiss. "The denial of a motion to dismiss for failure to provide the presuit notice required by section 770.01 is a proper subject for certiorari review." Zelinka v. Americare Healthscan, Inc., 763 So. 2d 1173, 1173 n.1 (Fla. 4th DCA 2000). However, we are constrained to deny the petitions because Florida courts have interpreted section 770.01 to apply only to news media, i.e., the press.

Our scope of review on a petition for writ of certiorari is very narrow. "[T]he departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error." Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003). "A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Id. Mere disagreement with the circuit court's interpretation of applicable law is an improper basis for certiorari review. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla. 2000). Where an issue is debatable and there is no case law on point, there is no clearly established principle of law for the lower court to depart from and a petition for writ of certiorari cannot be granted. See Sjuts v. State, 754 So. 2d 781, 783-84 (Fla. 2d DCA 2000) ; Wolf Creek Land Dev., Inc. v. Masterpiece Homes, Inc., 942 So. 2d 995, 997 (Fla. 5th DCA 2006).

The Petitioners/Defendants argue that the circuit court violated clearly established principles of law by either misinterpreting or misapplying section 770.01, which provides as follows:

770.01. Notice condition precedent to action or prosecution for libel or slander
Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.

The Petitioners/Defendants argue that this statute applies here because books and movies constitute "other medium." And because Baraya failed to give presuit notice as required by the statute, they argue that Baraya's suit should be dismissed. Although the circuit court did not set forth any specific findings, it rejected the Petitioners/Defendants' argument, apparently agreeing with Baraya's position that section 770.01 does not apply to books or movies and that the Petitioners/Defendants are "non-media defendants" for purposes of the statute.

Florida courts have consistently interpreted section 770.01 to apply only to news media, i.e., the press. "In its original form, section 770.01 applied only to newspapers and periodicals." Zelinka, 763 So. 2d at 1174. "In 1976, the statute was amended to include reference to 'broadcasts' in addition to 'publications' and to 'other mediums' in addition to newspapers and periodicals." Id. Even after the 1976 amendment, Florida courts have relied on the Florida Supreme Court's decision in Ross v. Gore, 48 So. 2d 412 (Fla. 1950), for guidance on the parameters of the statutory language in section 770.01. This is because, at the time of the amendment, "the legislature was aware of Ross since it is presumed to be cognizant of the judicial construction of a statute when contemplating changes in the statute." Bridges v. Williamson, 449 So. 2d 400, 401 (Fla. 2d DCA 1984). "Further, because the legislature enacted only minor amendments to the statute, consistent with technological developments in mass communication media, it is presumed that it approved the interpretation given the earlier statute by the Florida Supreme Court." Davies v. Bossert, 449 So. 2d 418, 420 (Fla. 3d DCA 1984).

The supreme court in Ross held that the legislative intent behind the statute was to relieve newspapers and periodicals of punitive damages in libel and slander suits as well as "to afford to newspapers and periodicals an opportunity in every case to make a full and fair retraction in mitigation of the damages which a person may have suffered by reason of the publication." 48 So. 2d at 415. More broadly, "[t]he purpose of the statute is to protect the public's interest in the free dissemination of news." Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So. 2d 1376, 1378 (Fla. 4th DCA 1997) (citing Ross, 48 So. 2d at 415 ). Florida courts use the terms "media defendant" and "non-media defendant" to "separate third parties who are not engaged in the dissemination of news and information through the news and broadcast media from those who are so engaged." Id. at 1380.

Because section 770.01 is meant to protect the free press, it only applies to media that publish news relatively quickly:

In the free dissemination of news, then, and fair comment thereon, hundreds and thousands of news items and articles are published daily and weekly in our newspapers and periodicals. This court judicially knows that it frequently takes a legal tribunal months of diligent searching to determine the facts of a controversial situation. When it is recalled that a reporter is expected to determine such facts in a matter of hours or minutes, it is only reasonable to expect that occasional errors will be made . Yet, since the preservation of our American democracy depends upon the public's receiving information speedily-particularly upon getting news of pending matters while there still is time for public opinion to form and be felt-it is vital that no unreasonable restraints be placed upon the working news reporter or the editorial writer .

Mancini, 702 So. 2d at 1378-79 (quoting Ross, 48 So. 2d at 415 ). Media defendants that publish news quickly can also issue retractions or corrections quickly, as provided for in section 770.02:

770.02. Correction, apology, or retraction by newspaper or broadcast station
(1) If it appears upon the trial that said article or broadcast was published in good faith; that its falsity was due to an honest mistake of the facts; that there were reasonable grounds for believing that the statements in said article or broadcast were true; and that, within the period of time specified in subsection (2), a full and fair correction, apology, or retraction was, in the case of a newspaper or periodical, published in the same editions or corresponding issues of the newspaper or periodical in which said article appeared and in as conspicuous place and type as said original article or, in the case of a broadcast, the correction, apology, or retraction was broadcast at a comparable time, then the plaintiff in such case shall recover only actual damages.
(2) Full and fair correction, apology, or retraction shall be made:
(a) In the case of a broadcast or a daily or weekly newspaper or periodical, within 10 days after service of notice;
(b) In the case of a newspaper or periodical published semimonthly, within 20 days after service of notice;
(c) In the case of a newspaper or periodical published monthly, within 45 days after service of notice; and
(d) In the case of a newspaper or periodical published less frequently than monthly, in the next issue, provided notice is served no later than 45 days prior to such publication.

Sections 770.01 and 770.02 work together "to afford newspapers and periodicals an opportunity to make full retraction in order to correct inadvertent errors and mitigate damages, as well as to save them the expense of answering to an unfounded suit for libel." Bridges, 449 So. 2d at 401 (citing Ross, 48 So. 2d 412 ).

Considering that the purpose behind section 770.01 is to protect the free press, Florida courts have interpreted the statute's "other medium" language to be limited to news media defendants who publish statements via an "other medium." To determine whether a defendant's publication falls "within the purview of the prescribed 'other medium' entitled to presuit notice, we look to the Ross decision to determine whether the [defendant's publication] is operated to further the free dissemination of information or disinterested and neutral commentary or editorializing as to matters of public interest." Comins v. Vanvoorhis, 135 So. 3d 545, 557 (Fla. 5th DCA 2014). "In defining the term 'media defendant,' courts have considered whether the defendant engages in the traditional function of the news media, which is 'to initiate uninhibited, robust, and wide-open debate on public issues.' " Tobinick v. Novella, No. 9:14-CV-80781, 2015 WL 1191267, at *8 (S.D. Fla. March 16, 2015) (quoting Ortega Trujillo v. Banco Cent. Del Ecuador, 17 F. Supp.2d 1334, 1338 (S.D. Fla. 1998) ). So even though the "other medium" language expanded section 770.01 to cover new technologies used to disseminate the news, such as internet publishers and blogs, it did not expand the reach of the statute beyond the news media. See, e.g., Plant Food Sys., Inc. v. Irey, 165 So. 3d 859, 861 (Fla. 5th DCA 2015) (holding that "an internet publisher of various purportedly scientific, technical, and medical journals and information" was covered by section 770.01 ); Comins, 135 So. 3d at 559 (holding that a blog was covered by section 770.01 and noting that "many blogs and bloggers will fall within the broad reach of 'media' " because many blogs have "primarily an informational purpose" and "usually provide[ ] for public impact or feedback").

This interpretation is confirmed by applying canons of statutory construction to the language of section 770.01. The canon of ejusdem generis "states that when a general phrase follows a list of specifics, the general phrase will be interpreted to include only items of the same type as those listed." State v. Weeks, 202 So. 3d 1, 8 (Fla. 2016) (quoting State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007) ). In other words, "where general words follow an enumeration of specific words, the general words are construed as applying to the same kind or class as those that are specifically mentioned." Id. (quoting Fayad v. Clarendon Nat'l Ins. Co., 899 So. 2d 1082, 1088-89 (Fla. 2005) ). Applying this canon to section 770.01, it becomes clear that the general term "other medium" is limited by the specific terms that precede it: "publication or broadcast, in a newspaper, periodical ...."

Moreover, the doctrine of in pari materia "requires courts to construe statutes that relate to the same subject matter together to harmonize those statutes and give effect to legislative intent." Anderson v. State, 87 So. 3d 774, 777 (Fla. 2012). As explained in Ross, the notice provided for in section 770.01 and the opportunity to retract the offending statement provided for in section 770.02 go hand in hand. See 48 So. 2d at 415. Section 770.02 explicitly applies only to newspapers, periodicals, and broadcasts-the same types of publications specifically mentioned in section 770.01. Reading sections 770.01 and 770.02 in harmony, it becomes clear that the "other medium" language is not meant to expand the scope of section 770.01 beyond the news media. Indeed, the "other medium" language is not found anywhere else in chapter 770. "Since no other section of [c]hapter 770 uses the language 'other medium' as found in [s]ection 770.01, we can infer reasonably that the legislature intended that term to include television and radio broadcasting stations." Davies, 449 So. 2d at 420. Interestingly, section 770.05, which addresses limitation of choice of venue, does specifically include books and motion pictures within its ambit, further showing that the legislature could have used similarly specific language in section 770.01 but chose not to do so. See Cason v. Fla. Dep't of Mgmt. Servs., 944 So. 2d 306, 315 (Fla. 2006) ("In the past, we have pointed to language in other statutes to show that the [l]egislature 'knows how to' accomplish what it has omitted in the statute in question."); Mesen v. State, 271 So.3d 164, 169 (Fla. 2d DCA 2019) ("When the legislature has included a provision in one statute but omitted it in an analogous statute, courts should not read it into the statute from which it has been excluded."); see also Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995) ("When the legislature has used a term ... in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded.").

Although books and movies may address topics of public interest, they are not part of the traditional news media or press, and therefore the Petitioners/Defendants in this case are not "media defendants" for purposes of section 770.01. See Schiller v. Viacom, Inc., 2016 WL 9280239, at *11 (S.D. Fla. 2016) (holding that "actors, film producers and screenplay writers" were non-media defendants because they were "not engaged in the dissemination of news and information through the news and broadcast media" (quoting Zelinka, 763 So. 2d at 1175 )). The Petitioners/Defendants do not speedily disseminate fact reporting or editorial content to the public. Books and movies are typically created over an extended period of time and are not susceptible to the same inevitable errors that arise when rapidly reporting on the news. Moreover, the frequency and wide distribution of news media allows for speedy and effective retractions when errors do happen. Books and movies have no similar mechanism for quickly and effectively issuing retractions. Accordingly, Petitioners/Defendants in this case are non-media defendants for purposes of section 770.01, and they are not entitled to presuit notice pursuant to the statute.

Because the circuit court was bound to follow the existing case law interpreting section 770.01, including Ross from the Florida Supreme Court and Bridges from this court, the Petitioners/Defendants cannot show a departure from the essential requirements of the law and we must deny the petitions for writ of certiorari. However, we note that books and movies-especially nonfiction books and documentaries-do address newsworthy issues as well as serve the public interest by offering commentary on those issues. Especially as technology develops and society's media consumption changes, becoming increasingly geared toward instantaneous access, the line between traditional news media and other forms of media may become blurred. Many people get their news via Facebook, YouTube, Twitter, Instagram, LinkedIn, or Reddit. Podcasts have boomed in popularity, and many cover current events. Shows and movies-many of which are documentaries, docuseries, or based on true stories-can be streamed on services such as Netflix, Amazon Prime Video, and Hulu. These technological developments may also make it easier to issue corrections and retractions that actually reach the intended audience. Apps can send push notifications with corrections or retractions straight to users' smart phones. Corrections and retractions can be posted to and shared widely on social media. Even in this case, the record indicates that in response to Baraya's cease and desist letter the Book Defendants did in fact revise the original 2009 edition of the book and stop selling it in both physical and ebook formats. Whether the presuit notice protection under section 770.01 should have a wider reach in light of recent technological developments is a matter for the Florida Legislature to decide.

Denied.

LaROSE and SMITH, JJ., Concur.

      As Mazur wrote the book and was also involved in the making of the movie, he and his company are included with both the Book Defendants and Movie Defendants. In this opinion, the Book Defendants and the Movie Defendants will be collectively referred to as the Petitioners/Defendants.

      Katerina Eva Matsa & Elisa Shearer, News Use Across Social Media, Pew Research Center, Sept. 10, 2018, https://www.journalism.org/2018/09/10/news-use-across-social-media-platforms-2018/

      Jaclyn Peiser, "Podcasts Are Getting Newsier. Here Are 8 New Ones Worth a Listen." The New York Times, Dec. 9, 2018, https://www.nytimes.com/2018/12/09/business/media/podcasts-daily-newsier-washington-post-npr.html; Amol Mhatre, "The Golden Age of Podcasts," CBS News, Jan. 20, 2019, https://www.cbsnews.com/news/the-golden-age-of-podcasts/

      H. Alan Scott, "50 Must-Watch Amazon Prime Documentaries to Stream Right Now," Newsweek, May 26, 2018, https://www.newsweek.com/amazon-prime-video-documentaries-must-watch-stream-right-now-50-list-slideshow-945709; "The Absolute Best Documentaries on Netflix," Thrillist Entertainment, April 29, 2019, https://www.thrillist.com/entertainment/nation/best-documentaries-on-netflix-streaming

      See Melina Delkic, "How to Push a Story," The New York Times, April 1, 2018, https://www.nytimes.com/2018/04/01/insider/how-to-push-a-story.html; "The Year in Push Alerts," Slate, Nov. 6, 2017, http://www.slate.com/articles/news_and_politics/politics/2017/11/the_year_in_push_alerts_how_breaking_news_became_our_lives.html

      See, e.g., Dan Gillmor, "Can our corrections catch up to our mistakes as they spread across social media?" Nieman Lab, March 15, 2019, https://www.niemanlab.org/2019/03/can-our-corrections-catch-up-to-our-mistakes-as-they-spread-across-social-media/; Billy Perrigo, "How This Radical New Proposal Could Curb Fake News on Social Media," TIME, Feb. 28, 2019, http://time.com/5540995/correct-the-record-polling-fake-news/


author: BADALAMENTI, Judge.

text:
    A.L., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4572
    District Court of Appeal of Florida, Second District.
    Opinion filed July 10, 2019
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

A.L. appeals a disposition order adjudicating him delinquent on four counts of petit theft and one count of criminal mischief. He contends that the trial court erred in denying his motion for judgment of dismissal. We agree and reverse the disposition order.

The State charged A.L. with five counts of burglary of an unoccupied conveyance, one count of grand theft in the third degree, three counts of petit theft, and one count of criminal mischief. At the adjudicatory hearing, several witnesses testified that on or about June 7, 2017, several items were stolen from their vehicles while the vehicles were parked overnight in the driveway of their homes in Brandon. Another resident of the Brandon neighborhood testified that his vehicle was entered into and that a security box that was underneath the driver's seat of the vehicle had been damaged. Two other residents testified that they each had surveillance footage taken on June 7, 2017, from cameras mounted directly above the driveway of their homes. The videos were introduced into evidence and played at the adjudicatory hearing.

The first video showed a person wearing a hoodie attempting to open a vehicle's passenger door and then walking away. The second video was recorded from a home located at the end of a cul-de-sac. The video showed that around 2:00 a.m., two individuals walked around a street checking car doors and entering unlocked vehicles. The video also showed that around 4:00 a.m., the two individuals entered a white vehicle parked outside a home and drove away from the neighborhood. None of the witnesses at the adjudicatory hearing positively identified the individuals in the surveillance videos.

A deputy testified that on June 8, 2017, he and the investigating detective responded to the home where the white vehicle had been parked to obtain information related to the vehicle burglaries. As part of that investigation, the officers came into contact with A.L.'s uncle, who lived in the home. The uncle testified that he gave consent to the officers to search a bedroom that A.L. shared with his brother. It is undisputed that the bedroom was a jointly occupied bedroom. The officers testified that they searched the bedroom and observed that several items in the bedroom were similar to the items that had been reported stolen. The victims, with the exception of one, verified that the items they had reported stolen were the same items the officers found in the jointly occupied bedroom.

A.L. moved for judgment of dismissal as to all counts at the close of the State's case-in-chief, arguing that the State's case was based wholly on insufficient circumstantial evidence. Defense counsel contended that someone other than A.L. must have placed the recently stolen property in the bedroom A.L. shared with his brother. Defense counsel also specifically argued that the State was not entitled to use of the statutory inference provided by section 812.022(2), Florida Statutes (2017), because A.L. did not have the requisite exclusive possession of the stolen property. The trial court denied the motion. In so denying the motion, the trial court determined that the State was entitled to use of the statutory inference. It explained that A.L. had exclusive possession of the recently stolen property because the video surveillance footage established that two people were acting in concert. At the conclusion of the adjudicatory hearing, the trial court ruled that it could not find A.L. delinquent of the five counts of burglary of an unoccupied conveyance or the count of third-degree grand theft because there was "no objective proof tying the accused to the scene of those five places." The trial court reduced the count of third-degree grand theft to first-degree petit theft. It also adjudicated A.L. delinquent of one count of criminal mischief and the remaining three petit theft counts.

We review the denial of a motion for judgment of dismissal de novo, and we consider the evidence in the light most favorable to the State. T.A.K. v. State, 258 So. 3d 559, 561 (Fla. 2d DCA 2018). "A judgment of dismissal is proper if the State fails to present sufficient evidence to establish a prima facie case." Id. (first citing Fla. R. Juv. P. 8.110(k) ; then citing E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d DCA 2003) ). "Sufficient evidence to support an adjudication exists when a 'rational trier of fact could find that the elements of the crime have been established beyond a reasonable doubt.' " Id. (quoting K.W. v. State, 983 So. 2d 713, 715 (Fla. 2d DCA 2008) ). "In circumstantial evidence cases, the State must present evidence that is inconsistent with any reasonable hypothesis of innocence." M.F. v. State, 35 So. 3d 998, 1000 (Fla. 2d DCA 2010). This special standard of review applies "no matter how strongly the evidence may suggest guilt." Bronson v. State, 926 So. 2d 480, 482 (Fla. 2d DCA 2006) (quoting State v. Law, 559 So. 2d 187, 188 (Fla. 1989) ).

Here, the State was required to prove the delinquent acts of petit theft and criminal mischief beyond a reasonable doubt. To prove petit theft, a second-degree misdemeanor, the State had to establish that (1) A.L. knowingly obtained or used, (2) the property of another, (3) with intent to either temporarily or permanently (a) deprive the other person of a right to or a benefit from the property, or (b) appropriate the property to his or her own use. See § 812.014(1), (3)(a). To prove criminal mischief, also a second-degree misdemeanor, the State had to establish that A.L. willfully and maliciously injured or damaged any real or personal property belonging to another person. See § 806.13(1)(a), (1)(b)(1), Fla. Stat. (2017). Moreover, given that this was a wholly circumstantial evidence case, a determination that the State does not dispute, the State was also required to present evidence inconsistent with any reasonable hypothesis of innocence. See M.F., 35 So. 3d at 1000 ; Bronson, 926 So. 2d at 482.

To prove that A.L. committed petit theft, the State relied on the statutory inference set forth in section 812.022(2). Section 812.022(2) provides that "proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen." Indeed, "unexplained possession of stolen property is sufficient to support a burglary conviction when it occurs as an adjunct to a theft." Bronson, 926 So. 2d at 483 (citing Francis v. State, 808 So. 2d 110, 134 (Fla. 2001) ).

When the State's case is based entirely upon the statutory inference set forth in section 812.022(2), the trial court must direct a judgment of dismissal for the defendant where a reasonable explanation for possession of recently stolen property is totally unrefuted and there is no other evidence of guilt. See Smith v. State, 742 So. 2d 352, 355 (Fla. 5th DCA 1999) (citing Coleman v. State, 466 So. 2d 395, 397 (Fla. 2d DCA 1985) ). The reasonableness of a defendant's explanation for possession of a stolen item is a question of fact for the judge in a nonjury trial to determine, together with all the other facts and circumstances in the case. C.T. v. State, 238 So. 3d 857, 860 (Fla. 3d DCA 2017).

We first consider whether the State met the requisite two-part evidentiary predicate to warrant use of the statutory inference. To receive the benefit of the statutory inference, the State must have established "pursuant to section 812.022(2), that a defendant had 'possession of property recently stolen.' " Bronson, 926 So. 2d at 483. Here, the State had to prove that (1) the property at issue was recently stolen and that (2) A.L. had possession of the property. The State established the first predicate element given that it presented evidence establishing that several items stolen from various vehicles on June 7, 2017, were found the next day in a bedroom jointly occupied by A.L. and his brother.

Whether the State established the second predicate element is at issue in this case. To establish the second predicate element, the State must have shown that "the possession of the defendant was exclusive, recent, and involved a distinct and conscious assertion of property." Id. at 484 (quoting Scobee v. State, 488 So. 2d 595, 598 (Fla. 1st DCA 1986) ). That the defendant's possession must be exclusive "does not mean the possession must be separate from all other persons." Id. "The joint possession of two or more persons acting in concert is 'exclusive' as to any one of them." Id. (quoting Walker v. State, 896 So. 2d 712, 720 n.5 (Fla. 2005) ).

As to the charge of petit theft in count eight, A.L. argues, and the State concedes, that there was insufficient evidence that A.L. was in exclusive possession of the recently stolen item charged in count eight because the victim did not identify the item found in the jointly occupied bedroom as the item missing from her vehicle. We accept the State's concession. In sum, because there is no record evidence that the property underpinning count eight was found in the bedroom, the statutory inference set forth in section 812.022(2) could not have supported the petit theft charge in count eight. See Smith v. State, 15 So. 3d 849, 850 (Fla. 1st DCA 2009) (concluding that the statutory inference set forth in section 812.022(2) could not have supported burglary conviction where no evidence in the record established that the defendant possessed the stolen DVD player, either constructively or actually).

As to the remaining charges of petit theft, the State contends that the evidence was sufficient to show that A.L. was in exclusive possession of the recently stolen property. We disagree. Because the items were found in a bedroom that A.L. shared with his brother and there was no other evidence linking A.L. to the thefts, we cannot conclude that his possession of the items was exclusive, recent, and involved a distinct and conscious assertion of possession. See Chamberland v. State, 429 So. 2d 842, 843 (Fla. 4th DCA 1983) ; Walton v. State, 404 So. 2d 776, 777 (Fla. 1st DCA 1981).

In Chamberland, the Fourth District reversed a conviction for possession of a stolen air conditioner where the State's case was based on the statutory inference set forth in section 812.022. 429 So. 2d at 843. The Chamberland court reasoned that the State did not establish that the defendant was in exclusive possession of the stolen air conditioner because it was found in an apartment that he occupied jointly with his brother and two others. Id. In Walton, the defendant was charged with and convicted of grand and petit theft after recently stolen items were found in a duplex where he lived and inside a shed located outside the duplex. 404 So. 2d at 777. To establish theft, the State relied on "the rule that possession of recently stolen goods carries with it the inference that the possessor is the guilty taker." Id. The First District reversed the conviction, concluding that the State had not established that the defendant was in exclusive possession of the items given that the defendant shared the duplex with two other occupants and that he shared the shed with his landlord. Id. Just as in Chamberland and Walton, the State here did not establish that A.L was in exclusive possession of the recently stolen items because the items were found in a bedroom that A.L. occupied jointly with his brother and within a home they shared with their uncle. Because the State did not establish that A.L. exclusively possessed the recently stolen property, the trial court should not have relied on the statutory inference.

Even though the stolen property was found in a bedroom A.L. shared with his brother, the trial court determined that A.L. exclusively possessed the property. This is because, the trial court concluded, A.L. acted in concert with another person. See Bozeman v. State, 931 So. 2d 1006, 1007 (Fla. 4th DCA 2006) (affirming defendant's conviction of grand theft of a motor vehicle and concluding that the defendant and another man acted in concert where law enforcement officers observed the defendant pushing the vehicle while the other man controlled the car's steering and breaking). To support its determination, the trial court explained that one of the surveillance videos demonstrated two people acting in concert. But the flaw in that determination is that the trial court did not make any finding that A.L. was one of the two individuals in the surveillance video. Indeed, the court could not have made that finding because no witnesses were able to identify A.L. as one of the two individuals in the surveillance video. In fact, there was no other evidence connecting A.L. to the thefts and criminal mischief aside from evidence that he lived on the same street where the offenses took place. As such, the State could not have established that A.L. had exclusive possession by acting in concert with another person. Given that the State's evidence did not establish that A.L. had actual or constructive, exclusive possession of the recently stolen property, it was error to rely on the statutory inference set forth in section 812.022(2).

Without the benefit of the statutory inference, we cannot conclude that there is no reasonable probability that the error contributed to the adjudication of delinquency in this case. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Stripped of this inference, the State's sole proof was confined to evidence that recently stolen property was found in a bedroom that A.L. shared with his brother. The State does not dispute that the evidence against A.L. was purely circumstantial. The circumstantial evidence included surveillance videos depicting two unidentified individuals walking around a Brandon neighborhood, checking car doors, entering vehicles, and later driving away from the neighborhood in a white vehicle. The evidence also established that A.L. lived in the Brandon neighborhood and that A.L.'s uncle, whom A.L. lived with, owned a white Honda he regularly parked outside the home.

While the crime of theft may be proved by circumstantial evidence, such evidence must be of sufficient probative force to support a legal inference of guilt beyond a reasonable doubt. The proof must not only be consistent with guilt, but also inconsistent with a reasonable hypothesis of innocence.

Walton, 404 So. 2d at 777-78. Just as in Walton, the State's proof in this case does not rise to that level.

Turning to the charge of criminal mischief, the State's evidence did not establish that A.L. was identified as an individual who damaged the victim's security box located inside the victim's vehicle, let alone that A.L. willfully and maliciously did so. See L.J.S. v. State, 909 So. 2d 951, 952 (Fla. 2d DCA 2005) (reversing a juvenile probation order withholding adjudication because the evidence was insufficient to show that L.J.S. committed a burglary of a vehicle or that he damaged the vehicle).

In conclusion, the State was not entitled to the statutory inference set forth in section 812.022(2) because it failed to establish that A.L. had exclusive possession of the recently stolen property. The trial court's reliance on the statutory inference was not a harmless error because without the benefit of the statutory inference, the State's evidence did not prove beyond a reasonable doubt that A.L. committed the delinquent act of petit theft. Moreover, the State neglected to prove criminal mischief. Therefore, we reverse the disposition order adjudicating A.L. delinquent on charges of petit theft and criminal mischief and remand for an order granting his motion for judgment of dismissal.

Reversed and remanded.

SILBERMAN and SALARIO, JJ., Concur.


text:
    SKYDIVE SPACE CENTER, INC. and Cristofer Parente, Appellants, v. Henri POHJOLAINEN, David Strobel and Tandem Solutions, Inc. d/b/a Wings Tandem, Appellees.
    Case No. 5D18-537
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 12, 2019
    Frederick C. Morello, of Frederick C. Morello, P.A., Daytona Beach, for Appellants.
    Bruce A. Hanna, of Wright & Casey, P.A., New Smyrna Beach, for Appellees, Henri Pohjolainen and Tandem Solutions, Inc. d/b/a Wings Tandem.
    Joelle Schultz, of Law Office of Joelle Schultz, PLLC, Clearwater, for Appellee, David Strobel.
   PER CURIAM.

Appellants, Skydive Space Center, Inc. (SSC) and Cristofer Parente, appeal the final summary judgment entered by the trial court in favor of Appellee, Henri Pohjolainen. We reverse and remand, holding that the trial court committed error by granting final summary judgment prior to the completion of relevant ongoing discovery.

SSC purchased four skydiving tandem rigs from Tandem Solutions d/b/a Wings Tandem, a company which Pohjolainen owned. Following the sale, the SSC instructors met to discuss an issue concerning the certification training provided by a Wings Tandem examiner. During that private meeting, someone recorded statements made by Parente, SSC's head instructor. Ultimately, Appellants sued Pohjolainen, David Strobel (a Wings Tandem examiner), and Tandem Solutions, alleging that the recording had been obtained and used in violation of the Florida wiretap statute.

After his deposition, Pohjolainen filed a motion for summary judgement, arguing that there was no evidence suggesting that he violated the wiretap statute. Within a month of this motion, Appellants filed a motion to compel production of emails between Pohjolainen and other parties involved in the dispute. Additionally, the court ordered that the cloned hard drive from Strobel's work laptop be provided to Appellants.

Prior to the scheduled hearing, Appellants filed a response in opposition to the motion for summary judgment. Appellants argued that relevant and material discovery had yet to be produced. At the time of the hearing, the court had not ruled on the motion to compel the requested emails nor had the cloned hard drive been provided to Appellants for forensic examination.

Following the hearing, the trial court granted Pohjolainen's motion for summary judgment over Appellants' objections regarding the outstanding discovery. The court noted, "If subsequent discovery [as to the remaining litigants] shows that this Court is in error, Plaintiff[s] will be entitled to amend the complaint. The amendments will relate back to the original complaint. Mr. Pohjolainen will be added back in ...." This appeal timely followed.

"An order granting summary judgment is reviewed de novo." Roussell v. Bank of N.Y. Mellon, 263 So. 3d 100, 102 (Fla. 4th DCA 2019) (citing Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) ). Appellants argue that the trial court prematurely granted summary judgment as their motion to compel was outstanding and they had not yet received the cloned hard drive as previously ordered by the court. We agree with Appellants' contention.

"Where the information contained in outstanding discovery could create genuine issues of material fact, summary judgment [is] not ... proper." Osorto v. Deutsche Bank Nat'l. Tr. Co., 88 So. 3d 261, 263 (Fla. 4th DCA 2012) ; see also Colby v. Ellis, 562 So. 2d 356, 357 (Fla. 2d DCA 1990). The emails subject to the motion to compel as well as the cloned hard drive could contain evidence leading to a genuine issue of material fact. Therefore, as relevant discovery had yet to be completed and there was no finding that the discovery requests were intended to cause delay, it was error for the trial court to enter summary judgement. See Arguelles v. City of Orlando, 855 So. 2d 1202, 1203 (Fla. 5th DCA 2003). Accordingly, we reverse the final summary judgment and remand for further proceedings.

REVERSED and REMANDED.

ORFINGER, LAMBERT and GROSSHANS, JJ., concur.

      See § 934.03(1), Fla. Stat. (2015) (forbidding the intentional interception of oral communications, the intentional use of certain devices to intercept oral communications, and the subsequent use or disclosure of intercepted oral communications); § 934.10, Fla. Stat. (2015) (providing a cause of action based on violations of the wiretap statute).


text:
    Curtis Lee MACK, Jr., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-1880
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 12, 2019
    Michael Graves, Public Defender, and Joshua Woodard, Assistant Public Defender, Ocala, for Petitioner.
    No appearance 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 March 11, 2019 judgment and sentence rendered in Case No. 2018-CF-1487, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WALLIS, EISNAUGLE and GROSSHANS, JJ., concur.


text:
    Juan LEON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-1429
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 12, 2019
    Rachael E. Reese, O'Brien Hatfield, P.A., Tampa, for Petitioner.
    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 July 13, 2017 judgment and sentence rendered in Case No. 2016-CF-1054, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    STATE of Florida, Appellant, v. Joronjaye Leprino TEAGUE, Appellee.
    Case No. 5D18-904
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 12, 2019
    Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
    Nicole B. Dickerson, of The Law Office of Nicole B Dickerson, PLLC, Orlando, for Appellee.
   PER CURIAM.

The State appeals the trial court's decision to withhold adjudication of guilt following a jury trial that found Joronjaye Leprino Teague guilty of fleeing and eluding a law enforcement officer in violation of section 316.1935(1), Florida Statutes (2017), and of possession of twenty grams of cannabis in violation of section 893.13(6)(a), Florida Statutes (2017).

" Section 316.1935(6) expressly prohibits the court from withholding adjudication of guilt for any violation of section 316.1935." State v. Culver, 63 So. 3d 891 (Fla. 5th DCA 2011) (citing State v. Warner, 50 So. 3d 99 (Fla. 4th DCA 2010) ; State v. Scriber, 991 So. 2d 969 (Fla. 4th DCA 2008) ). Consequently, we reverse the portion of the sentencing order withholding adjudication for fleeing and eluding a law enforcement officer and remand this matter to the circuit court to enter an adjudication of guilt. We affirm the sentence in all other respects.

AFFIRMED in Part, REVERSED in Part, and REMANDED.

EVANDER, C.J., WALLIS, and EISNAUGLE, JJ., concur.

      We have considered and rejected Teague's argument regarding the constitutionality of section 316.1935(6).


text:
    Tarrell Anton BOYNTON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-0949
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 12, 2019
    Tarrell Anton Boynton, Lawty, 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 15, 2018 judgment and sentence rendered in Case No. 2017-CF-1228-A, in the Circuit Court in and for St. Johns County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

HARRIS, GROSSHANS, and SASSO, JJ., concur.


author: EDWARDS, J.

text:
    Wayne NORRIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-326
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 12, 2019
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

Wayne Norris appeals the order denying his postconviction motion, in which he sought additional credit against his prison sentence for the period of time he had been at liberty after being erroneously released from prison. We agree with the postconviction court's finding that under the present circumstances, Norris appears to be entitled to credit against his sentence for time spent at liberty when he was prematurely released from prison through no fault of his own. See Drumwright v. State , 572 So. 2d 1029, 1031 (Fla. 5th DCA 1991) (holding the sentence of a prisoner who is discharged without contributing fault continues to run while he is at liberty).

However, we also agree with the postconviction court that it is up to the Department of Corrections to afford Norris that credit. See State v. Mendiola , 919 So. 2d 471, 472 (Fla. 3d DCA 2005) (holding the trial court's order awarding defendant credit for time spent at liberty when he was prematurely released from prison violated separation of powers doctrine).

Accordingly, we affirm the postconviction court's order denying Norris' postconviction motion without prejudice to Norris to pursue administrative remedies by appropriate application to the DOC. Should Norris not obtain the relief he believes he is entitled to, after exhausting his administrative remedies, he may seek judicial relief. See Bostrom v. State , 732 So. 2d 1228, 1229 (Fla. 5th DCA 1999) (holding defendant seeking post-sentence credit must exhaust administrative remedies available to him before he seeks relief from the courts).

AFFIRMED.

WALLIS, J., concurs.

EISNAUGLE, J., concurs specially, with opinion.

EISNAUGLE, J., concurring specially.

I concur that the trial court did not err because Appellant has not exhausted his administrative remedies. However, I would not reach the merits of Appellant's entitlement to credit.


text:
    Jahmar Philip DUNN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3423
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 12, 2019
    James S. Purdy, Public Defender, and Teresa D. Sutton, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jahmar Philip Dunn appeals the trial court's order revoking his probation following an open plea and imposing a sixty-month prison sentence. We affirm the revocation of probation and Dunn's sentence without further discussion. We do, however, agree with Dunn that the trial court erred in failing to enter a written order, consistent with its oral pronouncement at the conclusion of the sentencing hearing, that Dunn, a violent felony offender of special concern, would pose a danger to the community. See § 948.06(8)(e)1., Fla. Stat. (2018) ("If the court, after conducting the hearing required by paragraph (d), determines that a violent felony offender of special concern has committed a violation of probation or community control other than a failure to pay costs, fines, or restitution, [it] shall [m]ake written findings as to whether or not the violent felony offender of special concern poses a danger to the community ....").

Accordingly, we remand for the trial court to enter an appropriate order consistent with its earlier oral pronouncement. See Arnone v. State , 204 So. 3d 556, 557 (Fla. 4th DCA 2016) ("[W]here a court orally pronounces a reason, consistent with one or more of the factors listed under section 948.06(8)(e)1[.] for its finding that the defendant, as a violent felony offender of special concern, poses a danger to the community, but fails to provide written reasons for its finding, the proper remedy is to affirm the revocation of the defendant's probation, but remand for entry of a written order conforming to the court's oral pronouncement." (citing Bell v. State , 150 So. 3d 1214, 1214 (Fla. 5th DCA 2014) ; Martin v. State , 87 So. 3d 813, 813 (Fla. 2d DCA 2012) )).

AFFIRMED; REMANDED with directions.

LAMBERT, EDWARDS and EISNAUGLE, JJ., concur.