text:
    Bruce HOWARD, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-519
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019 Rehearing Denied May 15, 2019
    Bruce Howard, Florida City, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Petitioner, Bruce Howard, seeks habeas corpus relief regarding his 1987 upward departure sentence for second-degree murder. We deny the petition on the merits because the record before us shows beyond a reasonable doubt that the trial judge would have imposed the same upward departure sentence based on the valid reasons previously given, even without consideration of the one arguably invalid factor first determined when Howard was sentenced. See Albritton v. State , 476 So.2d 158, 160 (Fla. 1985). Further, we conclude that the trial judge did not abuse his discretion by the extent of the departure. See id.

Petitioner has repeatedly challenged his upward departure sentence in this court. He is therefore cautioned that any further pro se filings in this court asserting claims stemming from his conviction and sentence in case number 84-3221-BB, Circuit Court, Seventh Judicial Circuit, Volusia County, Florida, may result in sanctions such as a bar on pro se filings in this court and referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See State v. Spencer , 751 So.2d 47, 48-49 (Fla. 1999) ; § 944.279(1), Fla. Stat. (2018).

PETITION FOR WRIT OF HABEAS CORPUS DENIED.

BERGER, LAMBERT, and EISNAUGLE, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Edward A. MARSHALL-BYRD, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0489
    District Court of Appeal of Florida, First District.
    March 15, 2019 Rehearing Denied May 28, 2019
    Edward A. Marshall-Byrd, Jr., pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The amended petition for belated appeal is denied on the merits.

Roberts, Ray, and Winsor, JJ., concur.


text:
    FLORIDA DEPARTMENT OF HEALTH, Appellant, v. Joseph REDNER, an Individual, Appellee.
    No. 1D18-1505
    District Court of Appeal of Florida, First District.
    April 3, 2019 Rehearing Denied May 28, 2019
    Jason B. Gonzalez, Rachel E. Nordby, and Amber Stoner Nunnally of Shutts & Bowen, LLP, Tallahassee, for Appellant.
    Luke Lirot of Luke Charles Lirot, P.A., Clearwater, and Amanda L. Derby-Carter of Werksman Jackson Hathaway & Quinn LLP, Los Angeles, CA, for Appellee.
   Per Curiam.

This appeal concerns whether Article X, section 29 of the Florida Constitution authorizes a qualified patient to cultivate and process marijuana for his own medical use under state law. Mr. Redner convinced the trial court that the Florida Constitution granted him this authority. We find no such authorization and reverse.

Because this Court has been asked to interpret a constitutional provision, our review is de novo . Lewis v. Leon Cty. , 73 So.3d 151, 153 (Fla. 2011). When we interpret constitutional provisions, we generally follow the same rules that govern statutory interpretation. Brinkmann v. Francois , 184 So.3d 504, 509 (Fla. 2016). We begin our interpretation by examining the language used in the constitution, and if that language is clear, unambiguous, and addresses the question at issue, we must enforce the provision as written. Graham v. Haridopolos , 108 So.3d 597, 603 (Fla. 2013). When "construing multiple constitutional provisions addressing a similar subject, the provisions must be read in pari materia to ensure a consistent and logical meaning that gives effect to each provision." Zingale v. Powell , 885 So.2d 277, 283 (Fla. 2004) (internal quotations omitted).

Both parties argue that the plain language of the constitution supports their position. Article X, section 29 of the Florida Constitution states in relevant part:

(a) PUBLIC POLICY.
(1) The medical use of marijuana by a qualifying patient or caregiver in compliance with this section is not subject to criminal or civil liability or sanctions under Florida law.
....
(3) Actions and conduct by a Medical Marijuana Treatment Center registered with the Department, or its agents or employees, and in compliance with this section and Department regulations, shall not be subject to criminal or civil liability or sanctions under Florida law.
(b) DEFINITIONS. For purposes of this section, the following words and terms shall have the following meanings:
....
(2) "Department" means the Department of Health or its successor agency.
....
(4) "Marijuana" has the meaning given cannabis in Section 893.02(3), Florida Statutes (2014), and, in addition, "Low-THC cannabis" as defined in Section 381.986(1)(b), Florida Statutes (2014), shall also be included in the meaning of the term "marijuana."
(5) "Medical Marijuana Treatment Center" (MMTC) means an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the Department.
(6) "Medical use" means the acquisition, possession, use, delivery, transfer, or administration of an amount of marijuana not in conflict with Department rules, or of related supplies by a qualifying patient or caregiver for use by the caregiver's designated qualifying patient for the treatment of a debilitating medical condition.

In 2014, section 893.02(3) stated:

(3) "Cannabis" means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. The term does not include "low-THC cannabis," as defined in s. 381.986, if manufactured, possessed, sold, purchased, delivered, distributed, or dispensed, in conformance with s. 381.986.

Mr. Redner argues, and the trial court held, that because Mr. Redner was a qualified patient, he had the right to possess and use marijuana, which included the whole growing plant and seeds. He argues the right to possess and use the whole growing plant and seeds includes the right to cultivate and process his own marijuana. This interpretation of section 29 is not supported by the plain language of the constitution and renders portions of the constitution meaningless. In addition, this interpretation ignores the detailed framework set forth by the drafters to establish the role that MMTCs play in producing and distributing medical marijuana and to provide for the regulation of those MMTCs.

Mr. Redner's argument is not supported by the plain language of section 29, which provides qualified users (like Mr. Redner) with immunity from criminal or civil liability under Florida law for the "medical use of marijuana" that is "in compliance " with the amendment (emphasis added). Qualified users are permitted to acquire, possess, use, deliver, transfer, and administer marijuana in amounts that do not conflict with the Department's rules. Mr. Redner argues that the term "use" contained in the medical use definition permits him to cultivate and process marijuana. The term "use" is not defined by the amendment. However, it is clear, when one examines the entire amendment, that "use" does not mean "grow" or "process," as Mr. Redner argues.

In examining section 29 as a whole, we must recognize the distinctions made by the drafters between the activities permitted to be performed by MMTCs and the activities permitted to be performed by qualified patients. We must also recognize the role the drafters gave to MMTCs to play in the production and distribution of medical marijuana. The framers explicitly authorized MMTCs to cultivate, process, and distribute medical marijuana. Art. X, § 29(b)(5), Fla. Const. Unlike the express language concerning MMTCs, there is no explicit language authorizing qualified patients to grow, cultivate, or process marijuana. Had the drafters intended for qualified patients to be able to cultivate or process medical marijuana, that language would have been included in the definition of medical use; it was not.

When we read the constitutional provisions, as a whole, we find that the language of section 29 is clear, unambiguous, and addresses the issue on appeal. A qualified patient's ability to use and possess marijuana does not include authorization to grow, cultivate, and/or process marijuana. Article X, section 29 of the Florida Constitution only authorizes MMTCs to grow, cultivate, and process marijuana for qualified patients.

We are further convinced that our interpretation is correct based upon the duties conferred upon the Department in section 29, which states:

(d) DUTIES OF THE DEPARTMENT. The Department shall issue reasonable regulations necessary for the implementation and enforcement of this section. The purpose of the regulations is to ensure the availability and safe use of medical marijuana by qualifying patients. It is the duty of the Department to promulgate regulations in a timely fashion.
(1) Implementing Regulations. In order to allow the Department sufficient time after passage of this section, the following regulations shall be promulgated no later than six (6) months after the effective date of this section:
a. Procedures for the issuance and annual renewal of qualifying patient identification cards to people with physician certifications and standards for renewal of such identification cards. Before issuing an identification card to a minor, the Department must receive written consent from the minor's parent or legal guardian, in addition to the physician certification.
b. Procedures establishing qualifications and standards for caregivers, including conducting appropriate background checks, and procedures for the issuance and annual renewal of caregiver identification cards.
c. Procedures for the registration of MMTCs that include procedures for the issuance, renewal, suspension and revocation of registration, and standards to ensure proper security, record keeping, testing, labeling, inspection, and safety.
d. A regulation that defines the amount of marijuana that could reasonably be presumed to be an adequate supply for qualifying patients' medical use, based on the best available evidence. This presumption as to quantity may be overcome with evidence of a particular qualifying patient's appropriate medical use.
....
(e) LEGISLATION. Nothing in this section shall limit the legislature from enacting laws consistent with this section.

Subsection (d)(1)c. states that the Department shall set standards to ensure that MMTCs are providing safe marijuana, securing their marijuana, testing and inspecting their marijuana, and accounting for their marijuana. Subsection (d) does not confer this type of authority to the Department over qualified patients. At oral argument, Mr. Redner argued that the broad statement contained in subsection (d) about the purpose of the regulation conferred authority on the Department to ensure that qualified patients secured and accounted for their marijuana. Mr. Redner's interpretation would render the enumerated subparagraphs contained in subsection (d)(1)d. containing the regulations the Department was tasked with developing superfluous. Because we are forbidden from interpreting constitutional provisions in such a manner, we find Mr. Redner's argument unpersuasive.

Even if we found the language contained in section 29 unclear and/or ambiguous, we would still hold that the constitution does not allow a qualified patient to grow, cultivate, and process marijuana. If a constitutional provision is ambiguous or does not address the issue raised, a court must construe the constitutional provision in a manner that is consistent with the intent of the framers and voters. W. Fla. Reg'l Med. Ctr., Inc. v. See , 79 So.3d 1, 9 (Fla. 2012). If an ambiguity exists, courts should look to the rules of statutory construction, which may include the purpose and legislative history in order to construe the provision in a manner consistent with the intent of the framers and voters. Id.

With this framework in mind, we first look at the purpose of section 29. The only purpose stated in section 29 is the implementation of regulations that ensure the availability and safe use of medical marijuana. The amendment provides the Department with the duty (and ability) to regulate the cultivation practices of MMTCs. The amendment does not provide the same authority to the Department concerning qualified patients. Without the ability to regulate the cultivation practices of qualified patients, the Department would not be able to ensure that qualified patients are safely using marijuana.

We also look to the ballot summary to determine the purpose of the amendment and the will of the voters because a ballot summary provides the purpose of the amendment and has to present the scope of an amendment in order to be valid. See Advisory Op. to Att'y Gen. re Term Limits Pledge , 718 So.2d 798, 804 (Fla. 1998) (if a ballot summary does not accurately describe the scope of the amendment, then it fails to accurately describe the purpose of the amendment). The Florida Supreme Court found the ballot summary for Article X, section 29 of the Florida Constitution fairly informed the voters of the purpose of the proposed amendment. In re Advisory Op. to Att'y Gen. re Use of Marijuana for Debilitating Med. Conditions , 181 So.3d 471, 478-79 (Fla. 2015). The ballot summary read as follows:

Allows medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician. Allows caregivers to assist patients' medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not immunize violations of federal law or any non-medical use, possession or production of marijuana.

Id. at 476. There is no language contained in the ballot summary that would have allowed the voters to surmise that the passing of this amendment would permit qualified patients to cultivate and process their own medical marijuana. Therefore, Mr. Redner's position is not consistent with the purpose of the amendment or the will of the voters.

Based on the foregoing, we find that the Florida Constitution does not allow qualified patients and caregivers to grow, cultivate, and/or process their own marijuana. Accordingly, we REVERSE and REMAND this cause to the trial court to enter judgment for the Department.

Wetherell and Makar, JJ., and Brasington, Monica J., Associate Judge, concur.


author: PER CURIAM.

text:
    Jerry Lewis JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3645
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019
    Jerry Lewis Jones, pro se.
   PER CURIAM.

Affirmed. See Jones v. State, 60 So.3d 396 (Fla. 2d DCA 2011) (table decision); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009) ; Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007) ; Jones v. State, 901 So.2d 126 (Fla. 2d DCA 2005) (table decision); Anderson v. State, 779 So.2d 345 (Fla. 2d DCA 2000) ; Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000) ; Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

MORRIS, BLACK, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: Jay, J.

text:
    Rabia Ardan MORRIS, Appellant, v. WINBAR LLC, Appellee.
    No. 1D18-2958
    District Court of Appeal of Florida, First District.
    April 9, 2019 Rehearing Denied Date May 21, 2019
    Susan S. Thompson and Andrew J. Power of Smith, Thompson, Shaw, Minacci, Colón & Power, P.A., Tallahassee, for Appellant.
    Kimberly L. King, Edward W. Wood, and Raymond G. Mazzie of King & Wood, P.A., Tallahassee, for Appellee.
   Jay, J.

For over forty years, Appellant and, occasionally, her customers, utilized a narrow alley to park behind her hair salon. The alley was property owned by Appellee's predecessor in title, whose own buildings also bordered it. When Appellee purchased the previous owner's property, the alley was included. Straightaway, Appellee installed bollards across the entrance to the alley, blocking all access to it.

In response, Appellant filed a complaint for a prescriptive easement across the alley. Following a jury trial, the trial court entered a "Final Judgment Awarding Prescriptive Easement to Plaintiff," finding Appellant was entitled "to a prescriptive easement for ingress and egress for the purpose of vehicular access over and across the Defendant's property." In paragraph 2 of the judgment, the trial court ruled that "[t]he prescriptive easement awarded herein is for the benefit of the Plaintiff for the properties described in the deeds ...." (Emphasis added.) But in paragraph 3, the trial court further ruled that "[t]he prescriptive easement is personal to the Plaintiff ," citing Stackman v. Pope , 28 So.3d 131 (Fla. 5th DCA 2010). (Emphasis added.) It ordered Appellee to provide Appellant access to the property described in the prescriptive easement and to "not block the use by the Plaintiff of said easement." This Court per curiam affirmed the final judgment without a written opinion. See Winbar LLC v. Morris , 242 So.3d 337 (Fla. 1st DCA 2018) (table).

Post-judgment, Appellee removed only those bollards that were placed directly across the entrance to its alley. In their place, Appellee installed an electric gate, offering Appellant a remote control with which she could open the gate and enter the alley. Appellant refused to accept the remote control. Instead, under the same case number as her original action, she filed a Motion to Enforce Final Judgment alleging that Appellee had taken steps to unreasonably interfere with the use of her prescriptive easement. At the hearing on her motion, Appellant maintained that the easement awarded to her in the original final judgment was not just a prescriptive easement; it was, in fact, an "appurtenant" prescriptive easement. Therefore, the easement ran not only to her, but to her customers, and to her assigns and successors in interest. Appellee, on the other hand, relying on the limiting language emphasized above in paragraph 3, urged that the easement was personal to Appellant and, accordingly, was an easement "in gross."

On May 30, 2018, the trial court entered its "Order on Plaintiff's Motion to Enforce." It considered the fact that "the appellate court affirmed the final judgment in resolving the issues on appeal[.]" Consequently, it found that Appellant's "motion to enforce the final judgment must be denied, as the motion cannot be granted without modifying the final judgment that is already final, as the law of the case."

For the reasons expressed below, we conclude that the order on review must be reversed.

"[T]he law-of-the-case doctrine 'bars consideration only of those legal issues that were actually considered and decided in a former appeal.' " Delta Prop. Mgmt. v. Profile Invs., Inc. , 87 So.3d 765, 767 (Fla. 2012) (quoting Fla. Dep't of Transp. v. Juliano , 801 So.2d 101, 107 (Fla. 2001) ). As one commentator has explained:

When an appellate court has decided a question of law, the decision of the court is said to become the law of the case. As a general rule, once an issue has been settled as the law of the case, it may not be relitigated in the lower tribunal or in a subsequent appeal in the same case. An exception to the rule allows the appellate court to reconsider an earlier appellate decision in the same case if that is necessary to prevent a manifest injustice.
....
The preclusive effect of the law of the case doctrine applies only to points that were decided in a previous appellate proceeding....
....
It is the decision of the appellate court, and not its opinion, that becomes the law of the case. Therefore, a per curiam decision without an opinion becomes the law of the case as to all issues concluded in the appellate proceeding in which it was entered, in the same manner as a decision supported by an opinion....

Philip J. Padovano, 2 West's Fla. Prac., Appellate Practice § 20:12 (2018 ed.) (emphasis added) (footnotes omitted).

Accordingly, this Court's per curiam opinion affirming the trial court's final judgment became the law of the case, but only to the extent of the granting of the prescriptive easement.

"A corollary of the law of the case doctrine is that a lower court is not precluded from passing on issues that 'have not necessarily been determined and become law of the case.' " Juliano , 801 So.2d at 106 (citation omitted). We conclude that what arose at the hearing on the motion to enforce was a new issue pertaining to the nature of the prescriptive easement.

Easements-including prescriptive easements-may be either appurtenant or in gross. "An easement is in gross and personal to the holder when it is not appurtenant to other lands or premises. An easement is appurtenant when the right which it represents is attached to and belongs with some greater or superior right as a dominant estate." N. Dade Water Co. v. Fla. State Turnpike Auth. , 114 So.2d 458, 461 (Fla. 3d DCA 1959) (citing Burdine v. Sewell , 92 Fla. 375, 109 So. 648 (1926) ). Significantly, an appurtenant easement is a permanent easement running with the land and passes as an incident to it. McCorquodale v. Keyton , 63 So.2d 906 (Fla. 1953) ; Esbin v. Erickson , 987 So.2d 198 (Fla. 3d DCA 2008). The holder of an appurtenant easement "possesses the 'dominant tenement' while the owner of the land against which the easement exists possesses the 'servient tenement.' A 'dominant estate' is the estate that receives the benefit of an easement." 20 Fla. Jur. 2d Easements § 7 (March 2019) (footnotes omitted). In contrast, an easement "in gross" is a mere personal interest in the real estate of another; it is not supported by a dominant estate. N. Dade Water Co. , 114 So.2d at 461.

Whether Appellant's prescriptive easement is "appurtenant" or "in gross" was not decided in the original judgment as affirmed by this Court. That question, therefore, is not subject to the law of the case, and the trial court could have considered it in deciding Appellant's motion to enforce without "modifying" the final judgment.

Even so, the new issue also sheds light on an ambiguity appearing on the face of the final judgment. The ambiguity compels us to reconsider the final judgment to prevent a manifest injustice.

"The legal operation and effect of a judgment must be ascertained by a construction and interpretation of its terms, and this presents a question of law for the Court." Boynton v. Canal Auth. , 311 So.2d 412, 415 (Fla. 1st DCA 1975) (footnote omitted). "If the language used in a judgment is ambiguous then it may be construed[.]" Id. Our review is de novo. McCann v. Walker , 852 So.2d 366, 367-68 (Fla. 5th DCA 2003) (citations omitted) ("[T]he legal operation and effect of a judgment must be ascertained by construction and interpretation of its terms, and this presents a question of law." ... Questions of law are subject to de novo review.").

As noted above, paragraph 2 of the final judgment awarding the prescriptive easement expressly provides that the easement is for "the benefit of [Appellant] for the properties described in the deeds ...," namely Appellant's properties. Therefore, by the definition just expressed, that description would suggest an appurtenant easement with a dominant tenement in Appellant and a corresponding servient tenement in Appellee.

Conversely, paragraph 3 states that "[t]he prescriptive easement is personal to [Appellant]." That language would propose an easement in gross. The trial court's decision to deny Appellant's motion to enforce the final judgment on the basis that it could not be enforced without modifying its terms effectively imposed an easement in gross-foreclosing the issue in favor of Appellee, without affording Appellant the due process necessary to prove otherwise.

Therefore, because the nature of the prescriptive easement was not decided by our affirmance of the final judgment, and to prevent a manifest injustice to Appellant while protecting both parties' rights to due process, we hold the law of the case does not preclude the trial court from determining whether the prescriptive easement is appurtenant or in gross. To that end, we reverse the Order on Plaintiff's Motion to Enforce and remand the cause to the trial court for further proceedings consistent with this opinion. On remand, the trial court may take additional evidence, including parole evidence, "to explain, clarify or elucidate" the nature of the permanent easement-either appurtenant or in gross-as granted in the final judgment. See, e.g. , Quillen v. Quillen , 247 So.3d 40, 48 (Fla. 1st DCA 2018).

REVERSED and REMANDED with instructions.

Wolf and Osterhaus, JJ., concur.

      The citation to Stackman v. Pope , 28 So.3d 131 (Fla. 5th DCA 2010), in that same paragraph adds to the incongruity, as Stackman stands primarily for the proposition that "[a] party seeking to establish a private prescriptive easement may not 'bootstrap' onto" another's claim for the same easement, but must present his or her own evidence to prove the easement. Id. at 134. That was not the case here.


text:
    Don W. REINARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-6
    District Court of Appeal of Florida, First District.
    April 16, 2019 Rehearing Denied June 24, 2019
    Andy Thomas, Public Defender, Steven L. Seliger, Assistant Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant, and Don W. Reinard, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Months before Don Reinard's probation was set to expire, the state alleged that he violated it by committing a new law offense of aggravated child abuse. The trial court found that the state proved the offense, revoked Reinard's probation, and sentenced him to prison on the original conviction. Reinard argues on appeal that a finding of aggravated child abuse is unsupported where there is no evidence that the child suffered any physical injury. We disagree and affirm.

Reinard was in a romantic relationship with the mother of a three-year old boy (the victim) who was being toilet-trained. Reinard, as punishment for the victim defecating in his pants, made him eat his own feces. The older children reported this incident to the mother, who confirmed it with the victim (who stated, "he made me eat poop, Mommy") and confronted Reinard, who admitted doing so. The mother failed to intervene and, later that day, allowed Reinard to change the victim after he again soiled his pants. The mother walked into the bathroom after hearing her son crying and saw him covered with feces on his face, arms, and chest; she then witnessed Reinard pick up feces, move it to the victim's face, and tell him to take a bite. After the victim was removed from the care of Reinard and the mother (who failed to report his actions), he was placed with his grandfather, who testified that the victim was withdrawn, afraid of men, and scared to go to the bathroom. The child also once asked his grandfather, who was about to change his diaper, not to hurt him and stated that he did not like eating feces.

Reinard argues that this evidence does not support a finding of aggravated child abuse because there was no evidence of "great bodily harm, permanent disability, or permanent disfigurement." While this finding is necessary under section 827.03(1)(a)3., Florida Statutes, aggravated child abuse may also be committed by one who "[w]illfully tortures, maliciously punishes, or willfully and unlawfully cages a child" under section 827.03(1)(a)2. The statute provides the following definition:

"Maliciously" means wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury.

§ 827.03(1)(c), Fla. Stat. Like the trial court, we have no difficulty finding that Reinard's punishment-repeatedly making a three-year-old child eat his own feces-was malicious.

Reinard asserts that Wheeler v. State , 203 So.3d 1007 (Fla. 4th DCA 2016), requires great bodily harm, permanent, disabilities, or permanent disfigurements to support a finding of malicious punishment. In Wheeler , where an eighteen-year-old was charged with aggravated child abuse after engaging in a fistfight with a sixteen-year-old victim, the Fourth District noted that some form of "relationship where the actor stands in loco parentis to a child" is required. Id. at 1008-09. The court further found that aggravated child abuse "committed through malicious punishment 'is reserved for cases involving parental discipline that results in great bodily harm or permanent disabilities and disfigurements or that demonstrates actual malice on the part of the parent and not merely a momentary anger or frustration.' " Id. at 1009 (quoting Cox v. State , 1 So.3d 1220, 1223 (Fla. 2d DCA 2009) ). Contrary to Reinard's argument, "parental discipline that ... demonstrates actual malice" is sufficient to support aggravated child abuse. Id.

We reject Reinard's argument that aggravated child abuse by malicious punishment necessitates a finding of physical injury. Therefore, we AFFIRM the trial court's order revoking probation and imposing a sentence on Reinard's original conviction.

Wolf, Winokur, and Jay, JJ., concur.

      We affirm as to Reinard's other two arguments without further comment.


author: Roberts, J.

text:
    William THOMASON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2828
    District Court of Appeal of Florida, First District.
    April 29, 2019 Rehearing Denied June 24, 2019
    Andy Thomas, Public Defender, Tallahassee; Terry P. Roberts, Special Assistant Public Defender, Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Roberts, J.

Following his conviction and life sentence for the murder of his infant daughter, the appellant raises two issues on appeal. First, he argues the trial court erred in denying his motion to suppress statements he made to law enforcement before and after his arrest. Second, he argues the trial court erred in denying his motion for mistrial. We find no reversible error and affirm.

Facts

Around noon on September 13, 2013, the appellant's girlfriend left their almost two-month-old daughter alone in the appellant's care. According to the girlfriend, the child was in good health when she left. When she returned around four p.m., the child was limp and unresponsive with signs of seizure activity. The child was rushed to the hospital where she was eventually diagnosed with a subdural hemorrhage hematoma - a severe brain injury - caused by non-accidental trauma. The child was declared brain dead and died three days later.

At around seven p.m. on September 13, law enforcement arrived at the appellant's residence to question him. The appellant consented to a search of the home and told law enforcement that he did not know what happened to the child. The appellant agreed to go to the Sheriff's Criminal Investigations Division Office (the CID) for further questioning. He opted to ride with the investigators instead of following in his own car. At around ten p.m., an investigator and a sergeant conducted a recorded interview with the appellant. They began by telling the appellant he was not under arrest, he was free to leave at any time, and he could end the interview any time he felt uncomfortable. The appellant stated he was "absolutely" there of his own free will. The investigator reiterated that the appellant could end the interview at any time, and the appellant said, "Okay." The appellant hypothesized that the child's injuries could have been caused by his dog. The sergeant debunked this theory and hypothesized how the child could have been unintentionally injured by the appellant. The appellant said it seemed like he was being accused and, if he was, he would rather have a lawyer present. The investigator denied the appellant was being accused. The appellant said he would rather be with his daughter and had told them all he knew. The investigator and sergeant continued to theorize how the child could have been injured. The appellant stated he had "been through the system" and had the "vibe" as to where the interview was going. The investigator reiterated that the appellant was not under arrest and that the only reason he was being interviewed was because he was alone with the child. The appellant said, "Man, I got to get out of here. I can't do this." The investigator asked if the appellant wanted a drink, to which the appellant replied it was eleven p.m., he was done "just for right now," and he could not talk anymore. The interview was concluded.

Department of Children and Families (DCF) investigators then came in to conduct an additional interview with the appellant. Around midnight, the investigator drove the appellant home.

The next day, the appellant was arrested for the murder of his daughter. The same investigator conducted another recorded interview with the appellant at the jail. The investigator read the appellant his Miranda rights, which he indicated he understood and continued talking.

Motion to Suppress

The appellant moved to suppress his statements made on September 13 and 14. A hearing on the motion was held, during which the investigator testified that on September 13, the appellant was free to leave, voluntarily rode with them to the CID, and was free to use his cellphone during the entire interview. The sergeant testified the CID interview room door was locked because it was after-hours. It could be opened from the inside by pushing a button. The investigator testified he did not read the appellant his Miranda rights because the appellant was free to leave. The investigator acknowledged the appellant's statement about a lawyer, but stated the appellant did not ask to terminate the interview at that time and kept talking voluntarily. While he did accompany the appellant to the restroom, he only did so to show him where it was. When the appellant said he was done talking, the investigator ended the interview. The investigator testified he gave the appellant a ride home, which was recorded. He seized the appellant's cellphone, but kept it in evidence storage and did not search it until obtaining a search warrant on September 19.

The appellant's motion to suppress was denied in relevant part. The trial court also granted the appellant's motion in limine to prohibit any reference to the appellant's potential drug use during trial.

Jury Trial

The appellant proceeded to a jury trial wherein the recorded September 13 interviews from the appellant's home and the CID and the September 14 jail interview were admitted into evidence during the investigator's testimony.

During the September 14 interview, the appellant was talking about the DCF interview and stated, "I was just straight up with them. I told them I wasn't going to take a drug test[.]" Defense counsel objected that that statement should have been redacted and moved for a mistrial. Defense counsel argued there was no way to cure the error particularly because the appellant had previously stated he did not "black out" when caring for the child. Regardless of whether the State had a theory of drug use or not, defense counsel argued the statement made any defense unbelievable because the jury could believe the appellant was under the influence of drugs and hurt the child. Counsel rejected a curative instruction because it would be inadequate and only highlight the error. The State responded that the error was not so prejudicial so as to vitiate the entire trial because its theory was that the appellant planned to harm the child, which it later attempted to prove by evidence of internet searches on shaken baby syndrome that the appellant had conducted before the child's death. The trial court denied the motion for mistrial and ordered the statement redacted in the transcript.

The jury found the appellant guilty of first-degree felony murder, and he was sentenced to life in prison without the possibility of parole.

Motion to Suppress

The appellant first challenges the denial of his motion to suppress statements made during the September 13 CID interview and the September 14 jail interview. We review the trial court's denial of the motion to suppress under a mixed standard with the ultimate ruling reviewed de novo , but the factual findings on which the ruling is based are reviewed for competent, substantial evidence. Duke v. State , 255 So.3d 478, 481 (Fla. 1st DCA 2018).

September 13 CID Interview

The appellant argues the trial court erred in not suppressing this interview because he was not Mirandized and the interview was clearly custodial in nature. Generally, law enforcement officers must administer Miranda warnings before conducting a "custodial interrogation." Pierce v. State , 221 So.3d 1218, 1220-21 (Fla. 1st DCA 2017). What took place at the CID was an interrogation. See State v. McAdams , 193 So.3d 824, 833 (Fla. 2016) (defining interrogation as "when a state agent asks questions or engages in actions that a reasonable person would conclude are intended to lead to an incriminating response"). Thus, for the appellant's pre- Miranda statements to be admissible in this context, the appellant must not have been "in custody." The trial court determined the appellant was not in custody at the CID. As pointed out in McAdams , "while precedent remains a guide, custody determinations are heavily fact dependent." 193 So.3d at 833 (citing Rigterink v. State , 2 So.3d 221, 246 (Fla. 2009) ).

The test for whether a suspect is in custody is whether "based on the totality of the circumstances, a reasonable person would feel that his freedom of movement has been restricted to a degree associated with actual arrest." Myers v. State , 211 So.3d 962, 972 (Fla. 2017) (citing Caldwell v. State , 41 So.3d 188 (Fla. 2010) ). In applying the test, courts have relied on the four factors articulated in Ramirez v. State , 739 So.2d 568, 574 (Fla. 1999) :

(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; [and] (4) whether the suspect is informed that he or she is free to leave the place of questioning.

"This is a conjunctive test, so no factor is solely determinative of whether [a defendant] was in custody for Miranda purposes." Myers , 211 So.3d at 974. Myers elaborated on the proper analysis, stating;

Although the four Ramirez factors frame our analysis, "the ultimate inquiry is twofold: (1) the 'circumstances surrounding the interrogation;' and (2) 'given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.' " [ Ross v. State , 45 So.3d 403, 415 (Fla. 2010) ] (quoting Yarborough v. Alvarado , 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ).

Myers , 211 So.3d at 973.

1. The Manner in which Law Enforcement Summoned the Appellant for Questioning

The investigator's testimony established the appellant agreed to go to the CID for further questioning and voluntarily accepted a ride with the investigator. Factor one does not support a conclusion that the appellant was in custody.

2. The Purpose, Place, and Manner of the Interrogation

The appellant voluntarily walked through the security doors at the CID. As it was after hours, the CID door was locked. However, the sergeant testified the door could be opened by pressing a button inside the room. While questioning occurred at the CID, that factor alone is not determinative that the appellant was in custody. See Wilson v. State , 242 So.3d 484, 493 (Fla. 2d DCA 2018).

At the outset of the interview, the appellant was repeatedly told he was free to leave and could end questioning at any time he felt uncomfortable. The appellant acknowledged he was there of his own free will. The appellant was also able to use his cellphone freely.

Investigators did emphasize that they needed to speak to the appellant, but they characterized it as needing to find out what happened to the child, so the doctors could provide the correct medical care. While the investigators rejected the appellant's hypothesis that his dog could have harmed the child, they did not outright claim the appellant was the one who harmed the child. Cf. Myers , 211 So.3d at 976 (finding factor two supported a custody determination where investigators used language like, "I need to know why you felt the necessity to plot and plan to have your husband being murdered at your son's hands," and told the appellant she was lying before she could respond). The investigators couched their questioning in terms of needing to find out what happened to the child so that the child could get appropriate medical care. The appellant asked if they wanted him to just admit that he "football kicked" the child to get the interview over with, to which the investigator said he did not want him to say that, he just wanted the truth.

While the questioning could be interpreted otherwise, the trial court reviewed the recorded interviews as part of ruling on the motion to suppress. The trial court's ruling is reviewed with deference on appeal. Schoenwetter v. State , 931 So.2d 857, 866 (Fla. 2006) ("A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.") (citation omitted). See also Myers , 211 So.3d at 966 (noting the Fifth District did not afford the proper deference to the trial court's findings). Factor two does not support a conclusion that the appellant was in custody.

3. The Extent to which the Appellant was Confronted with Evidence of his Guilt

The investigators kept pressing the appellant to tell the truth to help the child. The investigators did confront the appellant with pictures of the child and told the appellant she was in serious condition. Again, they couched this in terms of needing to know what happened so that they could make the child better. At one point, the sergeant told the appellant someone had grabbed the child by the leg and it was the appellant. The appellant said he could have grabbed the child's leg, and the investigator asked if he could have been trying to prevent her from falling. While this line of questioning is suggestive of the appellant's guilt, it was not so confrontational as to outright accuse the appellant of harming the child to the extent of causing brain damage. The appellant then stated he felt like he was being accused. The investigators denied that he was and attempted to rescue the interview. From that point forward, the appellant was less forthcoming, but he did continue to speak freely to the investigators. Factor three does not support the conclusion that the appellant was in custody.

4. Whether the Appellant was Free to Leave

The appellant was repeatedly told he was not under arrest and was free to leave. The appellant was never handcuffed. The appellant stated he agreed that he wanted to find out what happened to the child and that he was "on the team." Eventually he stated could not continue the interview. After that point, the interview concluded, and the investigator drove the appellant home. Unlike Myers , the appellant was not perfunctorily told he was "free to leave" and then aggressively confronted with his guilt. 211 So.3d at 980. The investigators questioned the appellant with the stated intent of finding out what happened, not to immediately pressure the appellant to incriminate himself. Factor four does not support the conclusion that the appellant was in custody.

Under the totality of the circumstances, the trial court properly concluded the appellant was not in custody at the time of his pre- Miranda statements; therefore, those statements were admissible, and suppression of his September 13 CID interview was properly denied.

September 14 Jail Interview

The appellant argues that his September 14 jail interview should have been suppressed because his invocation of the right to an attorney on September 13 cut off the investigators' right to reinitiate questioning. He argues any waiver of his Miranda rights at the outset of the September 14 interview was ineffective.

Toward the end of his September 13 CID interview, the appellant stated, "If I'm being accused of something, I'd rather have a lawyer present with me ... if you're going to ask me anything else." The trial court found, and the appellant concedes, that this was an equivocal request for a lawyer. The appellant argues, however, because he had not waived his Miranda rights when he made the equivocal request on September 13, questioning should have been terminated, and the fact that the appellant waived Miranda on September 14 is irrelevant.

As aforementioned, the investigators were not required to Mirandize the appellant on September 13 because he was not in custody. See Caldwell , 41 So.3d at 198-99 ("We emphasize that Miranda warnings are not required in any police encounter in which the suspect is not placed under arrest or otherwise in custody under Ramirez. "). As the appellant was not in custody, the investigators could have continued questioning him even if he requested a lawyer. Id. at 198 ("In a noncustodial setting, officers are not required to discontinue questioning when a suspect indicates that he wishes to exercise his right to remain silent, nor are they required to provide a lawyer on the suspect's request."). Nonetheless, the appellant requested to end the interview, and the interview was concluded on September 13.

When the investigator questioned the appellant again the next day, he was not reinitiating prohibited questioning because the appellant had not had his Miranda rights violated the day before. The appellant relies on Traylor v. State , to argue his equivocal request for an attorney when he was not Mirandized cut off the right to reinitiate questioning. 596 So.2d 957, 966 (Fla. 1992). However, Traylor is not applicable here because the appellant was not in custody on September 13; therefore, he did not have any Miranda rights to invoke. The appellant's equivocal request for a lawyer on September 13 did not trigger any rights because it had no legal significance as he was not in custody.

The appellant was clearly in custody on September 14. He was properly Mirandized at the outset of the interrogation, and he waived his Miranda rights. Nothing that transpired during the September 13 interview had a bearing on this waiver. Suppression of his September 14 statements was properly denied.

Motion for Mistrial

The appellant's second argument on appeal is that the trial court erred in denying his motion for mistrial. This Court reviews a trial court's ruling on a motion for mistrial under the abuse of discretion standard. Morris v. State , 219 So.3d 33, 44 (Fla. 2017) (citing Salazar v. State , 991 So.2d 364, 371 (Fla. 2008) ). A motion for mistrial should only be granted when the error is so prejudicial as to vitiate the entire trial. Morris , 219 So.3d at 44 (citing England v. State , 940 So.2d 389, 401-02 (Fla. 2006) ).

The statement about the drug test was very brief in the context of a long interview. The State's case was not that the appellant killed the child while under the influence of drugs. Rather, the State claimed that the appellant, based on his internet searches, planned to harm the child. Given that the case was not about drug use, it is unlikely that the statement had much effect on the jury's verdict. While the statement could implicate the appellant's character, the trial did not turn on the appellant's character. There was medical evidence of the child's injuries, the undisputed fact that the child was fine before she was left alone in the appellant's care, and evidence of the appellant's internet searches related to shaken baby syndrome as well as the appellant's own statements. Given this evidence, it is unlikely that the brief statement about refusing to take a drug test was so prejudicial as to vitiate the entire trial. We find the trial court did not abuse its discretion in denying the motion for mistrial.

Conclusion

For the reasons stated above, the appellant's judgment and sentence are AFFIRMED .

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

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      The trial court's denial of the portion of the motion seeking to suppress evidence collected from the appellant's cellphone is not challenged on appeal. The appellant's motion also sought to suppress statements made during the DCF interview. The trial court granted that portion of the motion.


text:
    THOMAS MACHINERY, INC., Petitioner, v. AINSWORTH INTERNATIONAL, LLC, Respondent.
    No. 3D19-0013
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019
    Zebersky Payne Shaw Lewenz, LLP, and Jordan A. Shaw and Kimberly A. Slaven (Fort Lauderdale), for petitioner.
    Joseph E. Altschul, LLC, and Joseph E. Altschul and Alexandria L. Beaton (Pembroke Pines), for respondent.
    Before LOGUE, SCALES and HENDON, JJ.
    ON MOTION TO DISMISS
   PER CURIAM.

Petitioner, defendant below, Thomas Machinery, Inc., seeks certiorari review of a non-final order of the trial court denying Petitioner's motion for leave to file an amended answer and affirmative defenses. We grant Respondent's motion to dismiss the petition because we lack certiorari jurisdiction to review the subject order; any error in denying Petitioner's leave to amend its pleadings is reviewable on plenary appeal. Harry Pepper & Assocs., Inc. v. City of Cape Coral, 369 So.2d 969, 970 (Fla. 2d DCA 1979).

Petition dismissed.


author: LAMBERT, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR the CERTIFICATEHOLDERS OF STRUCTURED ASSET MORTGAGE INVESTMENTS II, INC., BEAR STEARNS ARM TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-2, Petitioner, v. Paul A. WILLIAMSON, Individually and as Trustee of the Paul A. Williamson Family Trust Dated April 15, 2004, Kristi Williamson and Suntrust Bank, Respondents.
    Case No. 5D18-3992
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    J. K. McDonough, of Spencer Fane, LLP, Tampa, for Petitioner.
    Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford, and Anthony N. Legendre, II, of Law Offices of Legendre & Legendre, PLLC, Maitland, for Respondents.
   LAMBERT, J.

U.S. Bank National Association, as Trustee for the Certificateholders of Structured Asset Mortgage Investments, II, Inc., Bear Stearns Arm Trust, Mortgage Pass-Through Certificates, Series 2006-2 ("Bank"), seeks certiorari review of a nonfinal order that requires an individual who resides and works in Colorado to be deposed in Orange County, Florida. For the following reasons, we grant the petition and quash the order.

In 2011, Bank filed a verified complaint in Orange County to foreclose a mortgage against Paul Williamson and Kristi Williamson, among others. Five years later, Bank filed its first amended mortgage foreclosure complaint, which was verified by Nicholas Raab, an employee of Bank's loan servicer, Specialized Loan Servicing, LLC. See Wells Fargo Del. Tr. Co., N.A. v. Petrov , 230 So. 3d 575, 578 (Fla. 2d DCA 2017) (recognizing that "[s]ervicing agents routinely verify complaints filed by noteholder-plaintiffs"). Raab lives and works in Colorado.

Kristi Williamson responded to the amended complaint by moving to dismiss or for a more definite statement. In that same motion, Williamson alternatively moved to have Raab treated as Bank's "corporate officer" and that he be required to be deposed in Orange County "by mere notice alone." Bank objected, arguing that Raab was not its designated corporate representative and, thus, could not be compelled to appear in that capacity in Florida for his deposition. Following a non-evidentiary hearing, the trial court denied Williamson's motion to dismiss and for a more definite statement but granted her motion to compel Raab to be deposed in Orange County.

To obtain relief by certiorari, the petitioner must establish that the challenged order "depart[s] from the essential requirements of law and thus cause[s] material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal." CVS Caremark Corp. v. Latour , 109 So. 3d 1232, 1234 (Fla. 1st DCA 2013) (alterations in original) (quoting Martin-Johnson, Inc. v. Savage , 509 So. 2d 1097, 1099 (Fla. 1987) ). Certiorari review is available to review a trial court order requiring that a deposition be taken at an erroneous location, see Triple Fish Am., Inc. v. Triple Fish Int'l, L.C. , 839 So. 2d 913, 914 n.1 (Fla. 5th DCA 2003) (citing Donahoo v. Matthews , 660 So. 2d 391, 392 (Fla. 5th DCA 1995) ), because requiring an individual to appear at such a location "results in harm that cannot be remedied on appeal in that once the deposition is taken, it cannot be un-taken." CVS Caremark , 109 So. 3d at 1235 (citing Dep't of High. Saf. & Motor Veh. v. Marks , 898 So. 2d 1063, 1063 n.1 (Fla. 5th DCA 2005) ).

Preliminarily, we note that Raab is not a party to the underlying lawsuit. Generally, a person may only be required to attend a deposition in the county where he or she resides, is employed, or transacts business in person. See Fla. R. Civ. P. 1.410(e)(2). Raab also appears to be an employee of Bank's servicing agent, which is a separate corporate entity, and is not employed by Bank. Nevertheless, Williamson seeks to depose Raab in Florida as Bank's designated corporate representative under Florida Rule of Civil Procedure 1.310(b)(6), which allows a party to depose a private corporation or association and to set forth with reasonable particularity in its notice of taking deposition the matters on which the corporate examination is requested. Bank does not contest that under this rule, it will be required to produce one of its officers, directors, managing agents, or other persons as its corporate representative for deposition in Orange County, Florida. See Ormond Beach First Nat'l Bank v. J.M. Montgomery Roofing Co. , 189 So. 2d 239, 243 (Fla. 1st DCA 1966) (holding that a plaintiff who has selected the forum in which to institute the action must be prepared to appear in the forum to give a deposition if properly served with notice to do so by the defendant). Nor does it challenge Williamson's ability to depose Raab in Colorado. What Bank does object to, and for which it seeks certiorari relief here, is that the trial court's order improperly allows Williamson to determine unilaterally that Raab will be Bank's corporate representative at the deposition in Florida. See Carriage Hills Condo., Inc v. JBH Roofing & Constructors, Inc. , 109 So. 3d 329, 335 (Fla. 4th DCA 2013) ("When a Rule 1.310(b)(6) deposition is properly noticed and conducted, the testimony of the designee 'is deemed to be the testimony of the corporation itself.' ").

Bank is correct. Under the plain and unambiguous language of rule 1.310(b)(6), Bank, and not Williamson, has the authority to designate one or more of its officers, directors, managing agents, or other persons as its corporate representative to testify at deposition on its behalf. We conclude that, at this stage of the proceedings, the trial court departed from the essential requirements of law in allowing Williamson to designate Raab unilaterally to be Bank's corporate officer and to compel his attendance in Orange County for deposition in this representative capacity. The order under review is quashed.

PETITION GRANTED; ORDER QUASHED.

BERGER and EDWARDS, JJ., concur.

      In doing so, we do not preclude Williamson from separately deposing Raab in Colorado. Nor do we suggest that Williamson is limited to deposing only the rule 1.310(b)(6) witness. See Sybac Solar, GMBN v. 6th Street Solar Energy Park of Gainesville, LLC , 217 So. 3d 1068, 1071-72 (Fla. 2d DCA 2017).


text:
    Morgan G. SALBER, Petitioner, v. Diana Marie FRYE, Respondent.
    Case No. 5D18-2917
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    C. David Durkee and Dale T. Gobel, of Gobel Flakes, LLC, Orlando, for Petitioner.
    Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A., Orlando, for Respondent.
   PER CURIAM.

In this certiorari proceeding, Petitioner, Morgan G. Salber, asks this Court to quash the trial court's discovery order compelling him to provide documents concerning the financial arrangements between his attorney, his insurance company, and his retained expert witness. Because there has been no departure from the essential requirements of law, we deny Petitioner's request.

We recently addressed this identical issue. See Younkin v. Blackwelder, 44 Fla. L. Weekly D549, D549-50, --- So.3d ----, ----, 2019 WL 847548 (Fla. 5th DCA Feb. 22, 2019) ("In Vazquez v. Martinez, 175 So. 3d 372, 373-74 (Fla. 5th DCA 2015), we acknowledged that the discovery of the type of financial information requested in this case is permissible 'to assist counsel in impeaching examining physicians and other experts by demonstrating that the expert has economic ties to the insurance company or defense law firm.' "). As in Younkin, because Petitioner raised a compelling argument that the law in this area is not being applied in an even-handed manner to all litigants, we certify the following question to the Florida Supreme Court as one of great public importance:

WHETHER THE ANALYSIS AND DECISION IN WORLEY v. CENTRAL FLORIDA YOUNG MEN'S CHRISTIAN ASS'N, 228 SO. 3D 18 (FLA. 2017), SHOULD ALSO APPLY TO PRECLUDE A DEFENSE LAW FIRM OR INSURANCE COMPANY THAT IS NOT A PARTY TO THE LITIGATION FROM HAVING TO DISCLOSE ITS FINANCIAL RELATIONSHIP WITH EXPERTS THAT IT RETAINS OR COMPENSATES FOR PURPOSES OF LITIGATION INCLUDING THOSE THAT PERFORM COMPREHENSIVE MEDICAL EXAMINATIONS UNDER FLORIDA RULE OF CIVIL PROCEDURE 1.360.

PETITION FOR WRIT OF CERTIORARI DENIED; QUESTION CERTIFIED.

ORFINGER, GROSSHANS and SASSO, JJ., concur.


text:
    John Owen KILEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3314
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

John Owen Kiley timely appeals his judgment and ten-year prison sentence for vehicular homicide. He argues that the trial court erred in denying his request for a downward departure sentence. Having carefully reviewed the record, we conclude that the trial court did not err in its analysis as to whether or not it had the ability or authority to impose a downward departure sentence in this case. We also hold that the trial court did not abuse its discretion in declining to impose a departure sentence. See Banks v. State , 732 So. 2d 1065, 1067-68 (Fla. 1999) (holding that the aspect of a trial court's decision as to whether it should impose a downward departure sentence "is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion"); accord Fogarty v. State , 158 So. 3d 669, 670-71 (Fla. 4th DCA 2014) ; Barnhill v. State , 140 So. 3d 1055, 1060 (Fla. 2d DCA 2014).

AFFIRMED.

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

      Kiley's lowest permissible sentence on his Criminal Punishment Code Scoresheet was 111 months' incarceration (nine years and three months).

      We acknowledge that previously, in Little v. State , 152 So. 3d 770, 771-72 (Fla. 5th DCA 2014), we had stated that an appellate court lacks the authority to review a trial court's discretionary decision to deny a requested downward departure sentence. This statement, however, was not essential to the decision in that case and, being mere dicta, was of no precedential value. See State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation , 276 So. 2d 823, 826 (Fla. 1973) (recognizing that a statement in a district court of appeal opinion that was not essential to the decision of the court is obiter dictum and without force as precedent).


text:
    Christopher Uria SAMUELS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-702
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    Christopher Uria Samuels, Okeechobee, 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 October 23, 2017 order on clarification filed in Case No. 05-2006-CF-068788-A, Eighteenth Judicial Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, BERGER and EISNAUGLE, JJ., concur.


text:
    Frank L. ADAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2424
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    Frank L. Adams, Jr., Miami, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Frank L. Adams, Jr. appeals the denial of his motion for return of personal property seized during his criminal prosecution. We reverse.

The State charged Adams with one count of possession of sexual performance by a child, one count of tampering with physical evidence, four counts of video voyeurism, and one count of interception of oral communications. During the course of its investigation, Putnam County law enforcement seized Adams's personal property pursuant to multiple search warrants. A jury acquitted Adams on the charge of possession of sexual performance by a child but found him guilty on the remaining charges. This Court affirmed Adams's conviction and issued a mandate on September 20, 2013. See Adams v. State, 120 So. 3d 570 (Fla. 5th DCA 2013) (per curiam).

On October 17, 2016, more than three years after this Court issued its mandate, Adams filed a motion for return of personal property based on section 95.11(3)(i), Florida Statutes (2010). In his motion, Adams identified seventeen items that law enforcement seized pursuant to the search warrants as well as one additional item. He alleged that the seized property was his personal property, was not the fruit of criminal activity, and that the State was not holding the items as evidence. The trial court summarily denied Adams's motion.

On appeal, Adams argues that the trial court reversibly erred by entering the order "without first ordering a response by the State, attaching portions of the record conclusively refuting [his] claim, or conducting an evidentiary hearing in the matter." The State responds that Adams's motion is governed by section 705.105(1), Florida Statutes (2010), and that the trial court properly denied it because it was untimely.

This Court reviews an order summarily denying a motion for return of seized property de novo. Peterson v. State, 249 So. 3d 1264, 1265 (Fla. 5th DCA 2018).

Section 95.11(3)(i), under which Adams moved, governs actions to recover specific personal property and imposes a four-year statute of limitations for such actions. Section 705.105, which the State relies upon, governs the disposition of "unclaimed evidence" and requires a defendant to move within sixty days of the conclusion of the proceeding, i.e., when "the mandate issues from the appellate court on a direct appeal of a defendant's judgment and sentence." Davis v. State, 198 So. 3d 1070, 1072 (Fla. 5th DCA 2016) (citations omitted).

Section 705.105 applies where the seized property is "intended for use in a criminal or quasi-criminal proceeding ." § 705.101(6), Fla. Stat. (2010) (emphasis added). Section 95.11(3)(i) applies where law enforcement did not seize the property as evidence or pursuant to a lawful investigation, such as where a defendant's property is held for safekeeping upon arrest. See Stevenson v. State, 688 So. 2d 962, 963 (Fla. 5th DCA 1997) (emphasis added) (finding that 60-day limitations period in section 705.105(1) did not apply where there was no connection between cash allegedly taken and defendant's arrest for probation violation). If applicable, the trial court may summarily deny an untimely motion for return of personal property pursuant to either section 705.105(1) or 95.11(3)(i).

When summarily denying a motion pursuant to section 705.105(1), the trial court must determine the statute's applicability and "is obliged to attach portions of the record showing that the property was seized pursuant to a lawful investigation or held as evidence ." White v. State, 926 So. 2d 473, 474 (Fla. 2d DCA 2006) (emphasis in original) (citations omitted); see also Bonia v. State, 197 So. 3d 1280 (Fla. 5th DCA 2016) (reversing denial of defendant's motion for return of property because trial court failed to address the applicability of section 705.105 ); Davis v. State, 63 So. 3d 888, 889 (Fla. 5th DCA 2011) ("The lower court's failure to attach portions of the record supporting its findings [that the property was seized pursuant to a lawful investigation or held as evidence] requires reversal and remand." (citing Monserrate v. State, 25 So. 3d 1292 (Fla. 2d DCA 2010) )).

Where a defendant untimely moves under section 95.11(3)(i), the trial court may summarily deny the motion and is not required to attach records to its order. E.g., Poux v. State, 985 So. 2d 1191, 1192 (Fla. 4th DCA 2008) (affirming summary denial of motion for return of property filed ten years after transfer of funds following defendant's conviction, notwithstanding the court's failure to attach portions of the record refuting defendant's claim).

Here, because Adams filed a facially sufficient motion for return of seized property, the trial court had inherent authority and jurisdiction to effectuate its return. E.g., Scott v. State, 922 So. 2d 1024, 1026 (Fla. 5th DCA 2006) (holding that "the trial court was laden with the responsibility to determine whether a proper basis existed to return property" upon the filing of defendant's facially sufficient motion for return of seized property (citations omitted)). However, neither the trial court's order nor the record on appeal demonstrate the applicability of section 705.105(1) or 95.11(3)(i). See Helmy v. Swigert, 662 So. 2d 395, 397 (Fla. 5th DCA 1995) ("Upon receipt of a facially sufficient motion, the trial court is obligated to exercise its jurisdiction and resolve the questions of whether the property was in fact seized by the state, and whether there exists a valid basis to retain the property."). Thus, this Court cannot determine which statute and time limitation applied to Adams's motion. Accordingly, we reverse and remand for further proceedings on that matter.

On remand, the court must determine which statute applies. See White, 926 So. 2d at 474. If the court determines that Adams's property is subject to section 705.105(1) because it was "unclaimed evidence or unclaimed tangible personal property, " then Adams cannot recover his seized property because he filed his motion well after sixty days of the mandate affirming his direct appeal. § 705.105(1), Fla. Stat. (2010) ; see also Davis, 198 So. 3d at 1072. However, because Adams filed his motion within the four-year statute of limitations period in section 95.11(3)(i), the court "is obliged to attach [to its denial order] portions of the record showing that the property was seized pursuant to a lawful investigation or held as evidence ." White, 926 So. 2d at 474 (emphasis in original) (citations omitted).

If the court determines that Adams's property is not subject to section 705.105(1), then section 95.11(3)(i) applies. In that case, because Adams filed his motion before the expiration of the applicable four-year limitations period, his property should be returned so long as the State is "unable to connect the items to specific criminal activity, and no one else can be identified who can demonstrate a superior possessory interest in the property." Clinton v. State, 108 So. 3d 1134, 1136 (Fla. 5th DCA 2013).

REVERSED and REMANDED with instructions.

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

      If Adams filed his motion outside of the four-year limitations period in section 95.11(3)(i), such attachments would not be required. See Poux, 985 So. 2d at 1192.