text:
    Donald Earl JAMES, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2825
    District Court of Appeal of Florida, Second District.
    September 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Stephen MIZNER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2007
    District Court of Appeal of Florida, Second District.
    September 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Beverly Henry ROBINSON-BEY, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3135
    District Court of Appeal of Florida, Second District.
    September 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Johnnie James WEST, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3137
    District Court of Appeal of Florida, Second District.
    September 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    AXIS SURPLUS INSURANCE COMPANY, Appellant/Petitioner(s), v. David James KADYK, Esq. & Kadyk & Delesie, P.A., Appellee/Respondent(s).
    CASE NO.: 2D18-1168
    District Court of Appeal of Florida, Second District.
    October 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Richard P. MIDDLETON, Appellant/Petitioner(s), v. Jazmin C. MIDDLETON, Appellee/Respondent(s).
    CASE NO.: 2D18-1783
    District Court of Appeal of Florida, Second District.
    September 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Writ of certiorari is denied. Denied.


text:
    Frank P. ROSSOTTO, Appellant/Petitioner(s), v. WACHOVIA BANK, NATIONAL ASSOC., as Trustee, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-3664
    District Court of Appeal of Florida, Second District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Edward GILES, Appellant/Petitioner(s), v. Crystal ROBINSON, Appellee/Respondent(s).
    CASE NO.: 2D18-3389
    District Court of Appeal of Florida, Second District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Neelam UPPAL, Appellant/Petitioner(s), v. Charlene RODRIGUEZ, Appellee/Respondent(s).
    CASE NO.: 2D18-2458
    District Court of Appeal of Florida, Second District.
    September 28, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Phillip Alan DANIEL, Appellant/Petitioner(s), v. Mike CARROLL, Secretary, Appellee/Respondent(s).
    CASE NO.: 2D18-2872
    District Court of Appeal of Florida, Second District.
    September 28, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Emma L. HALL, Appellant/Petitioner(s), v. In re: ESTATE OF William Lewshane HALL, Appellee/Respondent(s).
    CASE NO.: 2D18-0498
    District Court of Appeal of Florida, Second District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    H. Ray BADEN, et al., Appellant/Petitioner(s), v. Virginia BADEN, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-1981
    District Court of Appeal of Florida, Second District.
    September 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Riley STEWARD, Appellant/Petitioner(s), v. Mike CARROLL, Secretary, Appellee/Respondent(s).
    CASE NO.: 2D18-3761
    District Court of Appeal of Florida, Second District.
    October 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Teresa SERAFINE, Appellant/Petitioner(s), v. Dean SERAFINE, Appellee/Respondent(s).
    CASE NO.: 2D18-3891
    District Court of Appeal of Florida, Second District.
    October 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    K.C., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-3233
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Tristin Scott KNIGHTON, Appellant/Petitioner(s), v. DEPARTMENT OF REVENUE, Appellee/Respondent(s).
    CASE NO.: 2D18-0760
    District Court of Appeal of Florida, Second District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Marcus B. HARRIS, Appellant/Petitioner(s), v. William F. CRENSHAW, CEO of Publix Supermarkets, Inc., Appellee/Respondent(s).
    CASE NO.: 2D18-3044
    District Court of Appeal of Florida, Second District.
    October 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Thomas Brett KIERCE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2983
    District Court of Appeal of Florida, Second District.
    September 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Luis JUAREZ ALVARADO, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3039
    District Court of Appeal of Florida, Second District.
    September 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Frantz CHARITE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3298, 2D18-3296
    District Court of Appeal of Florida, Second District.
    September 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed as moot.


text:
    Brian JACOBSEN, Appellant/Petitioner(s), v. O S RESTAURANT SERVICES, L L C, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-3403
    District Court of Appeal of Florida, Second District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Leeann J. GALEA, Appellant/Petitioner(s), v. Matthew J. KROL, Appellee/Respondent(s).
    CASE NO.: 2D18-3021
    District Court of Appeal of Florida, Second District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied. Dismissed.


text:
    Michael COLLINS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1851
    District Court of Appeal of Florida, Second District.
    September 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Marco M. TORRES, Appellant/Petitioner(s), v. Robert DIETZ, A.A.G., Appellee/Respondent(s).
    CASE NO.: 2D18-2076
    District Court of Appeal of Florida, Second District.
    June 28, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Tremaine Latroy BAILEM, Appellant/Petitioner(s), v. Julie JONES, D.F.S, Appellee/Respondent(s).
    CASE NO.: 2D18-3652
    District Court of Appeal of Florida, Second District.
    October 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    William BECK, Appellant/Petitioner(s), v. Cassandra LEWIS, Appellee/Respondent(s).
    CASE NO.: 2D18-3073
    District Court of Appeal of Florida, Second District.
    September 28, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Liza Monica TEUTON, Appellant/Petitioner(s), v. Cristen Eric HANKINS, Appellee/Respondent(s).
    CASE NO.: 2D18-3093
    District Court of Appeal of Florida, Second District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Ronald HOWARTH, Appellant/Petitioner(s), v. Bettie BALL and Keith Howarth, Appellee/Respondent(s).
    CASE NO.: 2D17-3148
    District Court of Appeal of Florida, Second District.
    September 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Ben HUGHES, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3551
    District Court of Appeal of Florida, Second District.
    October 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Mandamus is transferred.


text:
    Luis HERNANDEZ, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1576
    District Court of Appeal of Florida, Third District.
    AUGUST 07, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Francisco LACOUTURE, Appellant(s)/Petitioner(s), v. Mayra LACOUTURE, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1559
    District Court of Appeal of Florida, Third District.
    AUGUST 01, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Gabriel ESPINOSA, Appellant(s)/Petitioner(s), v. D.H. GRIFFIN CONSTRUCTION COMPANY, LLC, Appellee(s)/Respondent(s).
    CASE NO.: 3D18-1301
    District Court of Appeal of Florida, Third District.
    JULY 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Luis HERNANDEZ, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1609
    District Court of Appeal of Florida, Third District.
    AUGUST 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Lamont PINK, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1515
    District Court of Appeal of Florida, Third District.
    JULY 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    LOFTS ON THE PARK USA, INC., et al., Appellant(s)/Petitioner(s), v. ELIZON DB TRANSFER AGENT, LLC, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0101
    District Court of Appeal of Florida, Third District.
    JULY 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Yoel PADRON-GARCIA, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s).
    CASE NO.: 3D17-2562
    District Court of Appeal of Florida, Third District.
    JULY 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Bruce L. SMALL, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1401
    District Court of Appeal of Florida, Third District.
    JULY 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Kenneth ADAMS, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0858
    District Court of Appeal of Florida, Third District.
    JULY 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Solomon David ROBERTS, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0207
    District Court of Appeal of Florida, Third District.
    JULY 02, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Pleadro J. SCOTT, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s).
    CASE NO.: 3D18-1169
    District Court of Appeal of Florida, Third District.
    JUNE 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Victor RODRIGUEZ, Appellant(s)/Petitioner(s), v. WACHOVIA MORTGAGE, FSB, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1750
    District Court of Appeal of Florida, Third District.
    JULY 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Leandre HOWARD, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s).
    CASE NO.: 3D18-1451
    District Court of Appeal of Florida, Third District.
    JULY 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Carlos Rubio CORRALES, Appellant(s)/Petitioner(s), v. The STATE of Florida, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0903
    District Court of Appeal of Florida, Third District.
    JULY 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Luis R. BOSCHETTI, et al., Appellant(s)/Petitioner(s), v. LB CAPITAL COLLECTIONS, LLC, etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2334
    District Court of Appeal of Florida, Third District.
    JULY 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Karen J. HAAS, Appellant(s)/Petitioner(s), v. Suleiman Habib YOUSEF, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1248
    District Court of Appeal of Florida, Third District.
    JULY 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Pauletta HIGGINS, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1293
    District Court of Appeal of Florida, Third District.
    JULY 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Eniel PLANAS, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1379
    District Court of Appeal of Florida, Third District.
    JULY 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    H. Wayne HAYES, Jr., etc., Appellant(s)/Petitioner(s), v. IMPELLA SERVICES LIMITED, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1137
    District Court of Appeal of Florida, Third District.
    JULY 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Alexander PRIETO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1523
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    LM FUNDING, LLC, Appellant(s)/Petitioner(s), v. SOLARIS AT BRICKELL BAY CONDOMINIUM ASSOCIATION, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1362
    District Court of Appeal of Florida, Third District.
    JULY 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Wesley JOHNSON, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s).
    CASE NO.: 3D18-1119
    District Court of Appeal of Florida, Third District.
    JULY 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Shane BURNETT, Appellant(s)/Petitioner(s), v. OFFICE DEPOT, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-1011
    District Court of Appeal of Florida, Third District.
    JUNE 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Demetrick Edward COOKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1484
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jefferson CORDOBA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1470
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jovanne MACK a/k/a Jovonne Mack, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1419
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ronald NEAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1034
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alexis HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-749
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Leroy David THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-70
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ifrain QUINTANA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1992
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ronal FARFAN, et al., Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D17-1433
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    PERNOD RICARD USA, LLC, f/k/a Austin, Nichols & Co., Inc., Appellant, v. Ana WATSON, as Personal Representative of the Estate of Maria de Posada, deceased, Appellee.
    No. 3D17-639
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kelvin HUDSON, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-277
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Linda GIORDANO, Appellant(s)/Petitioner(s), v. WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2596
    District Court of Appeal of Florida, Third District.
    September 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Amado ARGOTE and Georgina Argote, Appellant(s)/Petitioner(s), v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2813
    District Court of Appeal of Florida, Third District.
    AUGUST 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Anthony PARKS, Appellant(s)/Petitioner(s), v. PENNYMAC CORP., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0243
    District Court of Appeal of Florida, Third District.
    SEPTEMBER 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Mark David MILLS, Appellant(s)/Petitioner(s), v. Mary MILLS, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0404
    District Court of Appeal of Florida, Third District.
    SEPTEMBER 04, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    VILLITA, LLC, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0571
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    PENTHOUSE 68, LLC, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0573
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    LC GERACI, LLC, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0574
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    LOREMAR CORP., et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0576
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    David D. GEORG, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0577
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    IMPORTADORA INTERWHEELS SA, Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0579
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    Maria T. VELEZ, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0580
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Ivan MAHANA, Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0595
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Henryk KWIATKOWSKI, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0598
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    INTERNATIONAL CONSULTING CORP., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0599
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Miguel FAVA, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0605
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    ALFER INVESTMENT CORP., et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0584
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    Cecilia N. ZSILAVI, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0606
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    ASPIRE HIGHER, LLC, Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0607
    District Court of Appeal of Florida, Third District.
    July 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    TWO ISLANDS DEVELOPMENT CORP., et al., Appellant(s)/Petitioner(s), v. David L. CLARKE, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0636
    District Court of Appeal of Florida, Third District.
    SEPTEMBER 04, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    VALENTIN INVESTMENTS, LLC, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0586
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    PARIANO, LLC, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0587
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    Jose Luis VARELA, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0588
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018 Rehearing Denied August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Michael SWAYZE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1631
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Paul W. MERRITT, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1413
    District Court of Appeal of Florida, Fourth District.
    [August 16, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles B. RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1566
    District Court of Appeal of Florida, Fourth District.
    [August 16, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lydia APODACA, et al., Appellant(s)/Petitioner(s), v. SCHECHER GROUP, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0589
    District Court of Appeal of Florida, Third District.
    JULY 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Ervin EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1788
    District Court of Appeal of Florida, Fourth District.
    [September 13, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Elias R. ZENKICH, Appellant, v. Margaret ZENKICH, The Zenkich Family Limited Partnership, The Elias R. Zenkich Revocable Trust Dated November 16, 2010, and The Elias R. Zenkich Irrevocable Trust Dated November 16, 2010, Appellees.
    No. 4D18-1448
    District Court of Appeal of Florida, Fourth District.
    [September 13, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven OLIVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1457
    District Court of Appeal of Florida, Fourth District.
    August 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gerald TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1790
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Q.M., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian ad Litem Program, Appellees.
    No. 4D18-1653
    District Court of Appeal of Florida, Fourth District.
    [September 21, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Elijah ELLINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1865
    District Court of Appeal of Florida, Fourth District.
    [September 13, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Paul AARONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1550
    District Court of Appeal of Florida, Fourth District.
    [August 2, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Reji Tyre-Jamal SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1833
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018 Rehearing Denied October 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Luis M. AYALA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2253
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 28, 2018 Rehearing Denied October 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Shane MEAKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-701
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 21, 2018 Rehearing Denied October 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Johnny C. HAWKS, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1239
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 7, 2018 Rehearing Denied October 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert Mark GELLES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-20
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 7, 2018 Rehearing Denied October 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Arthur AVERY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2071
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 28, 2018 Rehearing Denied October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert A. WEST, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2056
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 28, 2018 Rehearing Denied October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Johnny R. ESTRADA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2013
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 28, 2018 Rehearing Denied October 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Stevie Dean SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1712
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 28, 2018 Rehearing Denied October 3, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Phillip Brooks TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 5D17-2236 5D17-2237
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 31, 2018 Rehearing Denied October 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Raymond V. ANTOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1473
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 28, 2018 Rehearing Denied October 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael MUNN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2675
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 28, 2018 Rehearing Denied October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Nancy A. PORFIDO LORENZ, Appellant, v. George LORENZ, Appellee.
    Case No. 5D18-689
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 28, 2018 Rehearing Denied October 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael David WEISER, Appellant, v. STATE of Florida and Department of Corrections, Appellees.
    Case No. 5D18-915
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jessica FRIEDEBORN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-693
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Z.M.G., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-409
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jeffery John Jean BAPTIST, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3983
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Sanswon T. EAST, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2226
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ernest BLACKWOOD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1826
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Billy K. LEWIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1559
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Terry NORRIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1556
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Allihondra MOODY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1422
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    D.J., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-947
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    K.M., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3908, 5D18-1376
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Steven Christopher HERRING, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3738
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Stephen Wayne Clifford DORSEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1600
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Alejandrino COLLAZO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2378
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Amos HOYT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2170
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Roberto C. JOHNSTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1930
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Richard J. HUDSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1482
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Antonio Irizarry RIVERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1265
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Alfredo SOLIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-549
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Terry ROBERTS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4088
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    C.B., Mother of J.C. and J.C., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-2368
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael HORTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4073
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Travis Jerome LANGLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3689
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Omar H. MUNROE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3327
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    D.C., Father of D.C., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-750
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    T.H., Father and T.J., Mother, of T.G., T.G., T.J., T.H., T.H., T.H, And T.H, Children. Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-1988
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 3, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    CVG STRATEGY, LLC, Appellant, v. GROWTH TECHNOLOGIES, INC., Appellee.
    Case No. 5D17-4000
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    BLUE RAY'Z HEATING AND AIR CONDITIONING, LLC, Appellant, v. DEPT. OF TRANSPORTATION and E.R. Reeves Corp., d/b/a All Seasons Air Conditioning, Appellees.
    Case No. 5D17-3374
    District Court of Appeal of Florida, Fifth District.
    Decision filed October 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Charles Anthony DESSUS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-505
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018 Rehearing Denied October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Levine, J.

text:
    Ronald HIGHT Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4261
    District Court of Appeal of Florida, Fourth District.
    [August 8, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Christopher Baum, Deputy Solicitor General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

In 2012, appellant was charged with second-degree murder. Appellant filed a motion to dismiss under section 776.032 of the Stand Your Ground law and a pre-trial immunity hearing took place in 2014. After the denial of his motion, appellant went to trial and was convicted of a lesser included offense, manslaughter, in 2016. Appellant appealed his conviction. During the pendency of his appeal, the legislature amended section 776.032 by adding subsection (4) which took effect upon the amendment becoming law on June 9, 2017. This amendment shifted the burden of persuasion from the defendant to the state and additionally changed the burden of proof utilized from preponderance of the evidence to clear and convincing evidence.

Thus, we are confronted with this dispositive issue: Are the changes in subsection (4) procedural or substantive? Should we apply the changes retroactively or prospectively from the date the changes became law? We find that the amendment adding subsection (4) is a substantive change to the law, and as such, applies only prospectively from the date of enactment. We therefore find that appellant is not entitled to a new Stand Your Ground hearing pursuant to the amendment, and as such, we affirm. We find the other issues raised by appellant to be without merit and we affirm on those grounds without discussion.

Appellant was charged with second-degree murder of the victim, Craig Rivera. Appellant filed a motion to dismiss based on immunity under section 776.032 of the Stand Your Ground law. The case subsequently proceeded to a pre-trial immunity hearing.

The victim was appellant's boss. The victim regularly drove appellant to and from work. On the day in question, appellant had a birthday party at appellant's house. The victim arrived at the party drunk. The partygoers were gathered outside around the fire pit when the victim became increasingly agitated and angry as the victim received repeated telephone calls from his children. Appellant testified that he retrieved his gun because the victim's behavior scared him. People began to leave due to the victim's behavior. Appellant and the victim remained outside.

According to appellant, he and the victim were talking when the victim said he was going to "f--k" appellant up. The victim ran towards him and appellant pulled out the gun. The victim said, "I'm not scared of that" and went to hit appellant so appellant shot him. On cross-examination, appellant admitted the victim had never been physically violent towards him.

Appellant's brother testified that he went outside just as the shooting occurred. According to the brother, appellant looked "petrified and scared," and the victim's arm was "in the process of reaching out" when appellant shot him.

In a videotaped statement to police, appellant described the victim as a father figure, his best friend, and someone he looked up to. Appellant also described the victim as violent. Appellant claimed that the victim regularly threatened him and that appellant remained friends with the victim only to keep his job.

During the police interview, appellant stated that he and the victim were talking when the victim told appellant that he was going to "f--k" him up. The victim then rushed towards appellant with his fists balled up to fight so appellant shot him. Appellant twice demonstrated to the police what transpired. In both instances, appellant demonstrated that the victim rushed towards him with his arms down by his sides. During the second instance, appellant demonstrated that the victim's shoulder bumped appellant's chest.

At one point in the interview, appellant stated that he had the gun in his pocket because the victim had threatened to hit him earlier in the day. At another point in the interview, appellant said that he went into the house and put the gun in his pocket after the victim told appellant he was going to "f--k" him up.

After the Stand Your Ground immunity hearing, the trial court entered an order denying the motion to dismiss. The trial court found that the evidence established that the victim was a "bully" and that appellant armed himself "because of on-going events with [the victim]." Based on appellant's videotaped statement, the court found that the contact between appellant and the victim was "the equivalent of a chest bump." "While [the victim] may have moved his hands forward, there was no evidence to support the conclusion that [the victim] was throwing a punch." The testimony of appellant's brother was "consistent with the shoulder bump described by [appellant]."

The trial court noted that the victim had never struck appellant before. The court found that "[t]he facts of the encounter support a machismo display by [the victim], but not a demonstrable attempt to physically harm the Defendant." After characterizing the case as a "close call," the court concluded that appellant had not met his burden of proving by a preponderance of the evidence that a reasonable person would conclude that deadly force was necessary to prevent imminent death or great bodily harm.

The case proceeded to a five-day trial. The jury found appellant guilty of the lesser included offense of manslaughter. Appellant appealed.

Appellant argues that this statutory amendment should apply since he claims the changes to the burden of proof were procedural in nature and thus should be applied retroactively. The state argues that the statute did not go into effect until June 9, 2017, which was after the commission of the crime, after the pre-trial Stand Your Ground immunity hearing, and even after the notice of appeal was filed in this case. The state further argues that the amendment imposed a new legal burden and thus is a substantive change that applies only prospectively from the date of enactment.

We review whether a statute applies retroactively under the de novo standard. Smiley v. State , 966 So.2d 330, 333 (Fla. 2007).

In 2005, the Florida Legislature enacted the Stand Your Ground law and by statute eliminated the common law duty of an individual to retreat before using force in self-defense. § 776.012(1), Fla. Stat.; Kumar v. Patel , 227 So.3d 557, 559 (Fla. 2017). The statute also provides immunity for those who lawfully use force in self-defense. § 776.032, Fla. Stat. The Florida Supreme Court subsequently determined in Bretherick v. State , 170 So.3d 766, 775 (Fla. 2015), that a defendant has the burden of proof in a pre-trial Stand Your Ground immunity hearing and that the defendant has to prove by a preponderance of evidence that the defendant's "use of force was justified, as specified by statute."

Following the issuance of Bretherick , and while this appeal was pending, the Florida Legislature amended section 776.032 and added subsection (4), which states:

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

The legislature provided that "[t]his act shall take effect upon becoming a law," which occurred when the governor signed the bill into law on June 9, 2017. Ch. 2017-72, § 1-2, Laws of Fla.

The amendment shifted the burden of persuasion from the defendant to the state. The amendment also changed the quantum of proof required from preponderance of the evidence previously required of the defendant to clear and convincing evidence now required of the state, after the defendant makes a prima facie claim of self-defense immunity.

We find that the amended subsection (4) of the Stand Your Ground statute does not apply in this case. The crime, the Stand Your Ground hearing, and the trial all occurred before the June 2017 subsection became effective. Thus, the amendment has no retroactive effect since it is a substantive, not a procedural, change in the law.

The Florida Supreme Court has given guidance when determining "whether the statute constitutes a procedural/remedial change or a substantive change in the law." Smiley , 966 So.2d at 334. The "presumption in favor of prospective application generally does not apply to 'remedial' legislation; rather, whenever possible, such legislation should be applied to pending cases in order to fully effectuate the legislation's intended purpose." Id. (quoting Arrow Air, Inc. v. Walsh , 645 So.2d 422, 424 (Fla. 1994) ). However, "a statute that achieves a 'remedial purpose by creating substantive new rights or imposing new legal burdens ' is treated as a substantive change in the law." Id. (emphasis added) (quoting Arrow Air , 645 So.2d at 424 ).

In this case, there can be no doubt that the imposition of new burdens of persuasion and proof upon the state under subsection (4) is a "substantive change in the law" due to the creation of "new legal burdens." See Smiley , 966 So.2d at 334. Requiring the state to go forward with clear and convincing evidence after the defendant's initial prima facie claim is clearly a "new legal burden." See id. "The amendment is thus treated as a substantive change in the law, and therefore does not apply retroactively." Love v. State , 247 So.3d 609, 613, 2018 WL 2169980 (Fla. 3d DCA May 11, 2018), review granted , SC18-747, 2018 WL 3147946 (Fla. June 26, 2018).

In Love , the trial court refused to apply the newly enacted subsection (4) even though the amendment took place before the defendant's Stand Your Ground immunity hearing. The trial court applied the burden of proof applicable before the amendment and found that the defendant did not meet her burden. Relying on Smiley , the Third District affirmed, finding that the amendment "did not apply to [the defendant's] case because the crime she committed occurred before the amendment's effective date, and the statute has no retroactive application." Id. at 612. In the case at bar, unlike in Love , the amendment occurred after both the immunity hearing and trial. Because the amendment did not apply in Love , then it certainly does not apply here where the amendment occurred after the end of all the trial court proceedings.

The Third District further relied on Article X, section 9 of the Florida Constitution, commonly known as the "Savings Clause," which provides that "[r]epeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed." A "criminal statute" is broadly defined as "an act of the Legislature as an organized body relating to crime or its punishment ... defining crime, treating of its nature, or providing for its punishment ... [or] deal[ing] in any way with crime or its punishment." Love , 247 So.3d at 613 (quoting Smiley , 966 So.2d at 337 ) (alterations in original).

The Third District concluded that

section 776.032(4) qualifies as a criminal statute because it affects whether the State can prosecute a defendant in the same manner as before subsection (4) was added. If the amended statute were to apply to [the defendant], she could not be prosecuted in the same manner as before because the burden of proof at the immunity hearing would now shift to the State and the burden would rise to clear and convincing evidence. Thus, article X, section 9 of the Florida Constitution does not allow section 776.032 to be applied retroactively. Smiley , 966 So.2d at 337 ("[The defense] has a direct impact on the prosecution of the offense ...").

Id. See also Bailey v. State , 43 Fla. L. Weekly D1153, D1153 (Fla. 3d DCA May 23, 2018) (following precedent in Love and holding that amendment did not apply retroactively and defendant was not entitled to new evidentiary hearing); but see Commander v. State , 246 So.3d 1303, 1303-04, 2018 WL 3351295 (Fla. 1st DCA July 9, 2018) (finding subsection (4) applied to a 2016 incident due to the state's concession of error on appeal based on the prosecutor's agreement at the Stand Your Ground immunity hearing that the state had the burden of proof); Martin v. State , 43 Fla. L. Weekly D1016, D1018, --- So.3d ----, ----, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018) (holding that the 2017 amendment to section 776.032 was procedural in nature and therefore applied retroactively to the defendant's case which was pending on appeal).

We agree with the Third District in Love in its reliance on the Savings Clause of the Florida Constitution. Under the Savings Clause, "retroactive application of an amended or repealed statute affecting prosecution or punishment is unconstitutional." State v. Pizarro , 383 So.2d 762, 763 (Fla. 4th DCA 1980). In contrast with "[t]he Ex Post Facto Clause, which bars retrospective application of a law that disadvantages a defendant, ... the Savings Clause ... bars retrospective application of a change in law that prejudices the State." McKendry v. State , 641 So.2d 45, 49 (Fla. 1994) (Shaw, J., dissenting). Thus, the Savings Clause differs from the Ex Post Facto Clause since the Savings Clause forbids retroactive application of legal changes whether beneficial or harmful to the defendant, as its purpose is to forbid the application of legal changes that would harm the state.

In addressing a prior version of the Savings Clause that is similar to the current version, the Florida Supreme Court stated:

The effect of this constitutional provision is to give to all criminal legislation a prospective effectiveness; that is to say, the repeal or amendment, by subsequent legislation, of a pre-existing criminal statute, does not become effective, either as a repeal or as an amendment of such pre-existing statute, in so far as offenses are concerned that have been already committed prior to the taking effect of such repealing or amending law.

Raines v. State , 42 Fla. 141, 28 So. 57, 58 (1900).

For example, under the Savings Clause, the statutory penalty in effect at the time a crime is committed controls the punishment at sentencing. Pizarro , 383 So.2d at 763. This is true even if retroactive application would be beneficial to the defendant. See Allen v. State , 383 So.2d 674, 675 (Fla. 5th DCA 1980) (noting that "if the Legislature, in enacting the Youthful Offender Act had purported to make its maximum punishment provisions apply retroactively to crimes committed prior to its effective date, it would have been unconstitutional" under the Savings Clause); Monsour v. State , 572 So.2d 18, 19 (Fla. 4th DCA 1990) (stating, in dicta, that ameliorative retroactive application of amended sentencing guidelines would violate the Savings Clause). Because the Savings Clause applies to both the prosecution of crimes as well as their subsequent punishment, those cases involving only punishment would apply with equal force to the instant case involving the burden of proof and persuasion required for a prosecution.

We are also guided by the governing principle of separation of powers which requires our deference to the legislature when the legislature clearly states in the text of the statute that "[t]his act shall take effect upon becoming law." As our supreme court has recognized, "the judiciary has an obligation, pursuant to the separation of powers contained in article II, section 3 of the Florida Constitution, to construe statutory pronouncements in strict accord with the legislative will." Sebring Airport Auth. v. McIntyre , 783 So.2d 238, 244 (Fla. 2001) (footnote omitted). "[C]ourts cannot judicially alter the wording of statutes .... A court's function is to interpret statutes as they are written and give effect to each word in the statute." Fla. Dep't of Revenue v. Fla. Mun. Power Agency , 789 So.2d 320, 324 (Fla. 2001).

The effective date of the statute has meaning and represents the will of the legislature. A statute that provides an unambiguous effective date is clear and controlling evidence of legislative intent. See State Farm Mut. Auto. Ins. Co. v. W. Gables Open MRI Servs., Inc. , 846 So.2d 538, 540 (Fla. 3d DCA 2003). In amending the statute, the legislature stated that "[t]his act shall take effect upon becoming a law," which occurred when the governor signed the bill into law on June 9, 2017. Ch. 2017-72, § 1-2, Laws of Fla. "[T]he Legislature's inclusion of an effective date for an amendment is considered to be evidence rebutting intent for retroactive application of a law." Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n , 67 So.3d 187, 196 (Fla. 2011) ; see also Walker & LaBerge, Inc. v. Halligan , 344 So.2d 239, 241 (Fla. 1977) ("It is a well-established rule of construction that in the absence of clear legislative expression to the contrary, a law is presumed to operate prospectively.").

In conclusion, we find that the amendment to the Stand Your Ground law, which occurred during the pending appeal and contained an effective date of June 9, 2017, created a new legal burden by changing both the burdens of persuasion and proof and therefore was substantive in nature and did not apply retroactively. As such, we affirm appellant's conviction and sentence and certify conflict with Martin and Commander .

Affirmed and conflict certified .

Damoorgian and Kuntz, JJ., concur.


author: Klingensmith, J.

text:
    Robert W. BAUCHMAN, Appellant, v. Berta BAUCHMAN, Appellee.
    Nos. 4D17-35 & 17-1471
    District Court of Appeal of Florida, Fourth District.
    [August 15, 2018]
    Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton, for appellant.
    Karen O'Brien Steger and Lori Steger of Steger & Steger, Stuart, for appellee.
   Klingensmith, J.

Robert W. Bauchman ("former husband") timely appeals a final judgment denying modification of alimony. He challenges the trial court's finding that former husband's impending retirement and the improved financial circumstances of Berta Bauchman ("former wife") did not constitute a substantial change of circumstances warranting modification. Additionally, he challenges the trial court's award of attorney's fees to former wife. We find merit as to former husband's claim that his voluntary retirement should have been considered by the trial court and his challenge to the trial court's award of attorney's fees. Therefore, we reverse.

In November of 2005, after twenty-seven years of marriage, the parties entered into an amended marital settlement agreement ("MSA"). The MSA required former husband to pay former wife $5,500 in monthly permanent periodic alimony. There was no provision in the MSA concerning the retirement of either spouse.

In 2015, former husband filed a supplemental petition for downward modification or termination of alimony. Former husband specifically alleged, among other things, that he was over the age of sixty-five and faced retirement in the near future. At trial, he testified that he continued to work for health insurance reasons due to his current wife's significant illness. Former husband also stated that he planned to retire in August 2017, when he reached sixty-eight years of age and both he and his current wife would be covered by Medicare. He recalled that his retirement was not contemplated at the time the MSA was entered. Former husband's forensic accountant, who participated in drafting the MSA, corroborated this testimony that was otherwise unrebutted.

Ultimately, the trial court denied former husband's petition for modification. In the order, the court correctly noted the three elements necessary to permit modification of alimony. See Koski v. Koski , 98 So.3d 93, 95 (Fla. 4th DCA 2012). However, the court cited Pimm v. Pimm , 601 So.2d 534 (Fla. 1992), for the purported proposition that "it must be proved that the change in circumstance was not anticipated by the parties at the time of the final judgement." (emphasis added). The court thus rejected former husband's argument, noting that former husband's income and net worth had substantially increased since 2005, and former husband would have the same ability to pay if he chose to retire. The order concluded, "As to the former husband's potential retirement, such a contingency was certainly no surprise to either party because of his age."

The trial court's order also found that former wife had a financial need for the alimony payments she was receiving, and former husband had the ability to pay. However, the record does not reflect any findings of fact as to former wife's continued "need" relating to her request that former husband pay her attorney's fees. The trial court addressed the skillfulness of the attorneys representing both parties, and after referencing Rosen v. Rosen , 696 So.2d 697 (Fla. 1997), and the factors to be considered for an award of attorney's fees, the order provided that the "continued payment [of fees] by Mr. Bauchman would appear not to have much of an impact on his lifestyle." The order further provided that former wife "does not have the cash assets to employ an attorney comparable to the firm retained by the former husband."

I. Former Husband's Voluntary Retirement

The trial court has broad discretion to modify a former spouse's alimony obligation "as equity requires, with due regard to the changed circumstances ...." § 61.14(1)(a), Fla. Stat. (2017). However, the appellate court's standard of review of an order modifying alimony is mixed. See Jarrard v. Jarrard , 157 So.3d 332, 337 (Fla. 2d DCA 2015). The trial court's legal conclusions are reviewed de novo. See id. at 337-38. The trial court's factual findings are reviewed for abuse of discretion and should be affirmed if supported by competent, substantial evidence. See id. at 337. However, if the facts are undisputed, the judgment is reviewed de novo. See id. at 337 n.5.

The difference between an error of law and an abuse of discretion is two-fold:

An award of alimony will usually not be reversed on appeal absent an abuse of discretion. Canakaris v. Canakaris , 382 So.2d 1197 (Fla. 1980) ; Green v. Green , 228 So.2d 112 (Fla. 3d DCA 1969). However, "[w]here a trial judge fails to apply the correct legal rule... the action is erroneous as a matter of law." Kennedy v. Kennedy , 622 So.2d 1033, 1034 (Fla. 5th DCA 1993).

Ondrejack v. Ondrejack , 839 So.2d 867, 870 (Fla. 4th DCA 2003).

"To warrant modification of alimony, the party seeking the change must prove '1) a substantial change in circumstances; 2) that was not contemplated at the time of final judgment of dissolution ; and 3) is sufficient, material, involuntary, and permanent in nature.' " Koski , 98 So.3d at 95 (emphasis added) (quoting Damiano v. Damiano , 855 So.2d 708, 710 (Fla. 4th DCA 2003) ).

Silence as to retirement within an original judgment or agreement "should not preclude consideration of a reasonable retirement as part of the total circumstances in determining if sufficient changed circumstances exist to warrant a modification of alimony." Pimm , 601 So.2d at 537. "Settlement agreements are to be interpreted in accordance with laws governing contracts. Thus, absent evidence of the parties' intent to the contrary, the unambiguous language of the agreement should be interpreted according to its plain meaning." Dogoda v. Dogoda , 233 So.3d 484, 487-88 (Fla. 2d DCA 2017) (quoting Johnson v. Johnson , 848 So.2d 1272, 1273 (Fla. 2d DCA 2003) ). "Consistent with notions of equity is the consideration of whether the parties contemplated the substantial change in circumstances and accounted for such change when they agreed on the terms of the support award." Dogoda , 233 So.3d at 487 (emphasis added).

"[I]t is well-established that an alimony award may not be modified because of a 'change' in the circumstances of the parties which was contemplated and considered when the original judgment or agreement was entered." Jaffee v. Jaffee , 394 So.2d 443, 445 (Fla. 3d DCA 1981). The reason for this doctrine is that "if the likelihood of a particular occurrence was one of the factors which the court or the parties considered in initially fixing the award in question, it would be grossly unfair subsequently to change the result simply because the anticipated event has come to pass." Id.

Over the years, however, courts have confused "anticipated" and "foreseeable" circumstances to mean that such circumstances were "contemplated and considered" at the time the original judgment was entered. See Gelber v. Brydger , 2018 WL 2715350 at *2 (Fla. 4th DCA June 6, 2018). "The word choice of 'anticipated' has been unfortunate because it has transformed a very different concept into something that it is not." Id.

In Gelber , the former husband sought a downward modification of alimony upon the former wife reaching fifty-nine-and-one-half years of age, thus allowing her to access her retirement accounts without penalty, which had appreciated significantly. Id. at *1. The trial court's amended final judgment found the former husband had demonstrated an "unanticipated" substantial change in the former wife's financial circumstances. Id. On appeal, the former wife argued the event was "foreseeable" and alimony may not be modified for "anticipated changes in circumstances." Id. at *2.

This court disagreed, holding that the second prong of the analysis "concerned matters that had been contemplated or considered in the past, in a judgment or agreement; it does not penalize a party for failing to raise a matter that had not yet happened." Id. at *3. Rather, "[i]n its refusal to reconsider something already 'contemplated and considered' by the parties or the court in a family case, the doctrine described by Jaffee is akin to the doctrines of res judicata or collateral estoppel." Id. at *2 (footnotes omitted).

Additionally, citing Pimm , this court noted that "the Florida Supreme Court did not employ an 'anticipated/foreseeability' analysis in deciding that a former spouse's retirement is a change of circumstances that may trigger a modification of alimony." Gelber , 2018 WL 2715350 at *3. This court concluded that "[r]etirement is certainly something that can be 'anticipated' during a divorce. Yet the Supreme Court [in Pimm ] focused not on what the parties should have anticipated but on what was actually considered in the property settlement agreement entered 13 years before the motion for modification." Id.

Here, the trial court employed the "anticipated/foreseeability" analysis to reason that retirement had been impliedly integrated into the MSA due to former husband's age at dissolution, and it cited Pimm to support this conclusion. But there is no discussion of "anticipated," "unanticipated," or "foreseeable" events in Pimm . Pimm focused on the reasonableness of a former spouse's voluntary retirement as a basis for modification and provided that while including a provision about retirement in an MSA or final judgement was preferable, it did not preclude a spouse from petitioning for modification for those reasons. See Pimm , 601 So.2d at 536-37. Thus, the trial court's conclusion that the contingency of former husband's potential retirement "was certainly no surprise to either party because of his age" directly conflicts with Pimm .

We find the trial court erred in failing to consider former husband's impending retirement as a substantial change in circumstances, as no evidence was presented to show the parties considered former husband's future retirement when the MSA was entered. We therefore reverse the final order and remand this matter to the trial court for further proceedings on this issue.

II. Award of Attorney's Fees to Former Wife

An award of attorney's fees stemming from a dissolution proceeding is reviewed for abuse of discretion. See Beckstrom v. Beckstrom , 183 So.3d 1067, 1068 (Fla. 4th DCA 2015).

A court's determination of an appropriate attorney's fee award is governed by section 61.16(1), Florida Statutes (2017), which requires the trial court to consider and evaluate each party's financial resources in deciding whether, and to what extent, to award attorney's fees. To accomplish this goal, the "trial court must look to each spouse's need for suit money versus each spouse's respective ability to pay." Rosen , 696 So.2d at 699. The respective financial resources of each party constitute "the primary factor to be considered." Id. at 700 ; accord Jacoby v. Jacoby , 763 So.2d 410, 417 (Fla. 2d DCA 2000). "The party seeking fees has the burden of proving the reasonableness and the necessity of the fee sought." Addie v. Coale , 120 So.3d 44, 48 (Fla. 4th DCA 2013).

"By the vague, general requirement that a court 'consider the financial resources of both parties,' the statute has vested broad discretion in the courts to develop a body of law shaping the considerations relevant to an award of Chapter 61 attorney's fees and costs." Von Baillou v. Von Baillou , 959 So.2d 821, 823 (Fla. 4th DCA 2007) (quoting § 61.16(1), Fla. Stat. (2006) ).

"[T]he party seeking relief must show some need; it is not enough to simply show that the adverse party's ability to pay the fees is greater than the party seeking relief or that an award is based on the relative financial strain of paying attorney's fees." Carlson v. Carlson , 719 So.2d 936, 936 (Fla. 4th DCA 1998) ; accord Zahringer v. Zahringer , 813 So.2d 181, 182 (Fla. 4th DCA 2002). " 'Need' is 'the necessity for some financial assistance to engage an attorney and pay attorney fees.' " Von Baillou , 959 So.2d at 823 (quoting Satter v. Satter , 709 So.2d 617, 618-19 (Fla. 4th DCA 1998) ). "If one party has no financial need for fees, the other party cannot be compelled to pay them solely because his or her sizeable assets minimize the financial strain of such a payment." Id. Moreover, "where the parties to a dissolution are equally able to pay attorney's fees, it is an abuse of the court's discretion to require one spouse to pay the other's attorney's fees." Vitalis v. Vitalis , 799 So.2d 1127, 1133 (Fla. 5th DCA 2001).

Here, the record shows that former wife had substantially the same ability to pay her attorney as did former husband. In rendering its decision, the trial court misconstrued former wife's "need" regarding attorney's fees, implying either that she was financially unable to pay her attorney's fees, or that she needed payment from former husband to retain an attorney of equal caliber to the one he retained. Neither was true. While former wife was fortunate to have found an attorney of the same caliber as former husband's attorney, this factor is not a basis for an award of attorney's fees. When considering a party's financial need for funds to secure competent legal counsel, neither the statute nor caselaw require that both parties have legal counsel of equal experience or ability; nor is an impecunious spouse entitled to retain legal counsel charging fees comparable to those of the attorney retained by the other spouse. The purpose of a fee award in a dissolution action is to "ensure that both parties ... have similar access to counsel and that neither has an unfair ability to obtain legal assistance because of the other's financial advantage." Young v. Young , 898 So.2d 1076, 1077 (Fla. 3d DCA 2005) (emphases added).

Because the parties' financial positions here were equalized through the original settlement agreement's award of alimony and equitable distribution of marital assets, and because former wife possessed substantial non-marital assets, we conclude that the award of attorney's fees to former wife was improper. The record does not indicate that she had any difficulty securing access to competent legal representation. Former wife currently receives $66,000 per year in alimony from her former husband, holds over $600,000 in cash assets and has a net worth of over $2.6 million. From these facts, there is nothing in the record to suggest that former wife could not afford to pay her own attorney's fees. Von Baillou , 959 So.2d at 824-25. The evidence revealed that she possessed an ability equal to that of former husband to pay her attorney's fees and costs. See Lopez v. Lopez , 780 So.2d 164, 166 (Fla. 2d DCA 2001). Having the former wife pay her own attorney's fees would only impose a limited degree of financial strain insufficient to rise to a level that satisfies the "need" requirement. See Von Baillou , 959 So.2d at 825. Absent any factual findings supporting former wife's need for attorney's fees, we can only conclude that the trial court committed error. Zahringer , 813 So.2d at 182.

We reverse the trial court's order awarding attorney's fees and costs to former wife, with directions that the trial court order that the parties pay their own attorney's fees and costs.

Reversed and remanded for further proceedings .

Damoorgian and Forst, JJ., concur.


author: Kuntz, J.

text:
    James AMELIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3325
    District Court of Appeal of Florida, Fourth District.
    [August 15, 2018]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The Defendant appeals his conviction for one count of sexual battery under specified circumstances under paragraphs (b) and (e) of section 794.011(4), Florida Statutes (2015). The Defendant raises several issues on appeal, and we affirm without comment on all but one. The Defendant argues the court erred when it instructed the jury on the victim's mental incapacity. We agree and reverse.

Florida Standard Jury Instruction (Criminal) 11.3, titled "Sexual Battery-Under Specified Circumstances," enumerates five elements that the State must prove beyond a reasonable doubt. The standard instruction also lists additional definitions and points of law that are read to the jury "if applicable."

During trial, the Defendant's counsel objected to the court giving one of the "if applicable" instructions. The challenged instruction references section 794.022(4), Florida Statutes, and states: "Evidence of (victim's) mental incapacity or defect, if any, may be considered in determining whether there was an intelligent, knowing, and voluntary consent." Id.

The court overruled the Defendant's objection and included the optional mental incapacity portion of the instruction. The court explained that "the case law is if there is an allegation of consent, [evidence of the Victim's mental incapacity] is applicable" and "[i]f you raise the issue of consent, mental incapacity becomes relevant."

But consent is an element of the crime. The third element of the charged crime, sexual battery-under specified circumstances, requires the State to prove beyond a reasonable doubt that the "[d]efendant's act was committed without the consent of the victim." Fla. Std. Jury Instr. (Crim.) 11.3. So consent is an issue in every sexual battery case, and one that the State bears the burden of proving beyond a reasonable doubt. If the mental incapacity portion of the instruction is read in every case when consent is an issue, then the mental incapacity instruction would always be read. And the "if applicable" instruction would be mandatory, not optional.

Turning to the appropriateness of reading the instruction, the language of the statute and instruction shows it was not applicable. The optional portion of the instruction applies when the victim was mentally incapacitated. A statutory definition for "mentally incapacitated" is another optional instruction. The definition directly follows the optional portion of the instruction at issue, and provides that mental incapacity includes intoxication without consent:

§ 794.011(1)(c), Fla. Stat.
"Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent.

Fla. Std. Jury Instr. (Crim.) 11.3. This definition unambiguously requires that the person's inability to appraise or control his or her conduct must be due to an act without his or her consent. It does not apply to voluntary intoxication.

The State's response to the Defendant's argument is simple. The State argues the court correctly read the instruction based on section 794.022(4), Florida Statutes (2015). That section provides that "[w]hen consent of the victim is a defense to prosecution under s. 787.06, s. 794.011, or s. 800.04, evidence of the victim's mental incapacity or defect is admissible to prove that the consent was not intelligent, knowing, or voluntary; and the court shall instruct the jury accordingly." Id. The State argues: "[b]ased on [ section 794.022(4) ] and the fact that consent was the defense asserted, the instruction at issue must be read. The trial judge correctly read the portion of the standard instruction."

Section 794.022 is an evidentiary statute. The statute allows the State to introduce "evidence of the victim's mental incapacity or defect" in order "to prove that the consent was not intelligent, knowing, or voluntary." Id. If the State does so, the statute provides that the court "shall instruct the jury accordingly." Id.

Here, the State did not do so. It was uncontroverted that the victim was voluntarily intoxicated. At trial, the victim testified that she drank multiple alcoholic drinks at different establishments. She did not state that she consumed any of the drinks against her will. The State did not introduce evidence of her mental incapacity as that term is defined in the statute. So the related instruction was not appropriate.

Even if we interpreted the statute as requiring the court to read the optional mental incapacity portion of the instruction in any case when consent (an element of the crime) was an issue, we would still be compelled to reverse. As noted above, immediately following the optional mental incapacity portion of the instruction is a statutory definition of mental incapacity. If the jury was entitled to hear the optional mental incapacity portion of the instruction, then the jury was also entitled to hear the statutory definition of mental incapacity.

In conclusion, the legislature defines mental incapacity in the sexual battery statute to include involuntary, and not voluntary, intoxication. § 794.011(1)(c), Fla. Stat.; see also Coley v. State , 616 So.2d 1017, 1022-23 (Fla. 3d DCA 1993) ("[T]he Florida sexual battery statute does not place voluntary drug or alcohol consumption on the same footing as involuntary consumption; if they were to be treated as equivalent, the statute would say so."). At trial, the State presented no evidence of involuntary intoxication. Thus, the State was not entitled to have the voluntary mental incapacity portion of the instruction read to the jury. We reverse the Defendant's conviction and remand for a new trial.

Reversed and remanded.

May and Ciklin, JJ., concur.


text:
    Marcus L. COLSTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1039
    District Court of Appeal of Florida, Fourth District.
    [August 15, 2018]
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Marcus Colston urges this court to find that his sentence upon conviction in the Fifteenth Judicial Circuit is unconstitutional under the dictates of Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and its progeny, as well as sections 775.082(3)(c) and 921.1402(2)(d), Florida Statutes (2016). For the reasons set forth below, we find it is premature to consider this issue and affirm Colston's sentence.

In September of 2003, the trial court in the Fifteenth Judicial Circuit, in and for Palm Beach County, sentenced Colston to sixty-five years in prison for multiple crimes he committed as a juvenile. Approximately four months later, another trial court, this one in the Seventeenth Judicial Circuit, in and for Broward County, sentenced Colston to an aggregate term of life in prison, to run consecutive to his Palm Beach sentence, for additional crimes he committed as a juvenile. In 2013, the Broward court resentenced him, pursuant to Graham , to seventy-five years in prison, to again run consecutive to his Palm Beach sentence.

In May of 2016, Colston filed a motion in Palm Beach County to correct his sixty-five-year sentence. Two months later, he filed a similar motion in his Broward case seeking to correct his seventy-five-year sentence. Rather than issue an immediate ruling, the Broward court stayed Colston's motion pending the Florida Supreme Court's review of the First District's decision in Kelsey v. State , 183 So.3d 439 (Fla. 1st DCA 2015), reversed 206 So.3d 5 (2016).

In February of 2017, after Kelsey was decided, the Palm Beach court held a de novo sentencing hearing on Colston's May 2016 motion. The judge resentenced him to fifty years in prison with periodic judicial review after twenty years. However, the order was silent as to whether the sentence would run consecutive or concurrent to the seventy-five-year sentence issued in Broward.

Thereafter, Colston filed a timely motion under Florida Rule of Criminal Procedure 3.800(b)(1) and requested that the Palm Beach court clarify whether the newly-imposed fifty-year sentence was to run consecutive to the Broward sentence. Colston noted that because the February 2017 Palm Beach sentencing order was silent on the issue, the law mandated that it must run consecutive to the Broward sentence, which resulted in an aggregate of 125-years' imprisonment. See § 921.16(1), Fla. Stat. (2016) ("Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that ... the sentences be served concurrently.") He argued below, and asserts on appeal, that such a sentence is contrary to the principles of Graham , its progeny, and sections 775.082(3)(c) and 921.1402(2)(d).

Given that Colston's motion to correct his seventy-five-year Broward sentence remains pending before that court, the issue presented on appeal is not yet ripe for our consideration. Because the Broward court stayed its consideration of Colston's motion until Kelsey was decided by the Florida Supreme Court, we anticipate that the trial court will now act on Colston's request. That court's decision will determine the relief to which Colston may be entitled, if any. Consequently, we affirm Colston's Palm Beach sentence, but do so without prejudice to seek post-conviction relief following the imposition of a new Broward sentence.

Affirmed .

Gross and Conner, JJ., concur.

      The trial court stated that the resentencing was nunc pro tunc to September 4, 2003, the original sentencing date.


author: May, J.

text:
    T.T.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2821
    District Court of Appeal of Florida, Fourth District.
    [August 15, 2018]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The sufficiency of evidence to support a grand theft charge is challenged in this appeal from a finding of guilt on charges of burglary of a dwelling, grand theft of a firearm, and third degree grand theft. The juvenile argues there was insufficient evidence of identity to support the burglary charge; and his attorney was ineffective in failing to move for a judgment of dismissal on the grand theft charge because there was insufficient evidence of value. We affirm the disposition and finding of guilt on the burglary and grand theft of a firearm charges, but reverse the disposition on the third degree grand theft charge. We remand to the trial court to reduce the charge to petit theft.

The Crime & Trial

The charges arose from an afternoon burglary of the victim's home. When the victim arrived home from work, she noticed her bedroom blind was up, her drawers pulled out, and everything pulled out of her closet. She also noticed other drawers opened and their contents removed.

She called the police. The crime scene investigator determined the victim's bedroom window was the point of entry. The soil around the window was disturbed with footprints; fingerprints were on the inside and outside of the window. The CSI was able to obtain three latent fingerprints of value.

Two of the fingerprints came from folders within the office. The third print was from the victim's son's room. The latent fingerprint examiner determined that of the three fingerprints of value, a left palm, right thumb, and right index finger belonged to the juvenile.

The victim knew the juvenile. He was a neighbor, and had purchased a sailboat from her in exchange for doing odd jobs. A few years after acquiring the boat, the juvenile helped the victim put up a Christmas tree in her home. Both the victim testified, and the juvenile admitted, he remained in the living room while helping her with the Christmas tree. In other words, he did not enter the areas of the house where the fingerprints were found.

The victim reported the following things stolen from her home: her wedding band, her late husband's wedding band, a locket, her mother's rosary, a loaded handgun in her husband's bureau, and a bottle of sleeping pills. The victim provided the following testimony concerning the value of the items stolen.

Q: ... If you had a garage sale and you sold all that jewelry, what could you get for it?
A: I don't know. Maybe a couple ....
Q: Okay. What about, what about your rings and the locket?
A: They just mean, you can't put a price on it for me.
....
Q: Were they gold --
A: Yeah --
....
Q: -- they were gold?
A: It was his wedding band also.
Q: Okay. Do you know, was it 14 karat gold? Or -
A: I think so. 14 or 24 karat back then. I don't know.
....
Q: And was it just a plain band?
A: Yes.
Q: Okay. So two gold bands.
A: And then a gold locket that my daughter had given me with our pictures in it.
Q: And that was a gold locket?
A: Yes.
Q: Okay. So there were three gold pieces.
A: Uh-huh.
Q: Sounds like a piece of costume jewelry. Any other jewelry?
A: Not that I can, know of. I'm not a jewelry person.
....
Q: Do you know what you could get if you, you know, went down, or you just had a garage sale for those three items --
.... [A]: I would, I would think a couple hundred dollars.
Q: Okay. Less than $300?
A: I would say around $300.

At the close of the State's case, defense counsel moved for a judgment of dismissal, arguing that the State failed to meet its burden of proving guilt beyond a reasonable doubt. Because the victim testified that the juvenile had been in her home before, defense counsel argued the State had to prove that the three latent fingerprints were made at the time of the crime. The latent fingerprint examiner was unable to pinpoint when the fingerprints were made. The prosecutor responded that the fingerprints were left in areas of the house where the juvenile had never been before.

The trial court denied the motion. The court took the matter under advisement and set a disposition hearing. The court subsequently found the juvenile guilty, withheld adjudication, placed him on probation, and reserved jurisdiction to impose restitution.

From his disposition order, the juvenile now appeals.

The Burglary Charge

We have de novo review of the trial court's ruling on the motion for judgment of dismissal. R.H. v. State , 56 So.3d 156, 157 (Fla. 4th DCA 2011).

This was a circumstantial evidence case, which required the State to present evidence from which the trier of fact can exclude every reasonable hypothesis of innocence. K.S. v. State , 814 So.2d 1190, 1193 (Fla. 5th DCA 2002). The State did just that. The juvenile's fingerprints were located in an area of the house where the juvenile admittedly had never been before the date of the crime. This sufficiently proved the juvenile's guilt. Sorey v. State , 419 So.2d 810, 813 (Fla. 3d DCA 1982). We therefore affirm the disposition order and finding of guilt on the burglary charge.

The Grand Theft Charge

In his second issue, the juvenile argues his counsel's ineffectiveness was evident on the face of the record when he failed to move for a judgment of dismissal on the grand theft charge because there was insufficient evidence of value. The State responds that an ineffective assistance of counsel claim is rarely appropriate in a direct appeal. Ellerbee v. State , 87 So.3d 730, 739 (Fla. 2012) (citing Blanco v. Wainwright , 507 So.2d 1377, 1384 (Fla. 1987) ). And, the victim was competent to testify as to value and presented sufficient testimony to prove a value of $300. We agree with the juvenile on this issue.

To determine the sufficiency of evidence on value, the court must determine " 'whether the person testifying is competent to testify to the value of the property,' and ... 'whether the evidence adduced at trial is sufficient to prove that the property was worth over $300 at the time of the theft.' " Bagnara v. State , 189 So.3d 167, 171 (Fla. 4th DCA 2016) (quoting Lucky v. State , 25 So.3d 691, 692 (Fla. 4th DCA 2010) ). "With regard to the first prong ... an owner is generally presumed as competent to testify to the value of his stolen property." Taylor v. State , 425 So.2d 1191, 1193 (Fla. 1st DCA 1983).

"Value means the market value of the property at the time and place of the offense[.]" § 812.012(10)(a)1., Fla. Stat. (2016). In the absence of direct testimony as to market value, "proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction." Lucky , 25 So.3d at 692 (quoting Gilbert v. State , 817 So.2d 980, 982 (Fla. 4th DCA 2002) ). "But a property owner's mere guess at, or uninformed estimate of, the value of his property is insufficient, without more, to establish its value beyond a reasonable doubt." Fritts v. State , 58 So.3d 430, 432 (Fla. 1st DCA 2011).

Here, the victim testified that:

1) three pieces of jewelry, some prescription drugs, and a handgun were taken;
2) the gold was fourteen karat or twenty four karat with no diamonds;
3) she received her wedding band as a promise ring in high school from her husband;
4) the locket was a gift from her daughter; and
5) the jewelry might receive 300 dollars at a garage sale.

A conviction for grand theft in the third degree requires competent and substantial evidence showing that the defendant stole property with a "value" of between $300 and $20,000. § 812.014(2)(c)1.-3., Fla. Stat. (2016). Here, the victim did not testify to the items' original price, their current condition, depreciation, nor the current market value. She did not know the quality of the gold in the rings or the locket. In fact, the State tried to lead her to the $300 figure, which caused the trial court to sustain a leading objection. She wavered on the value and only guessed at $300. While competent to testify to the value of the stolen items, the record reflects the victim could only guesstimate at their value.

Like Bagnara , this is a rare case where defense counsel's ineffectiveness in failing to move for a judgment of dismissal appears on the face of the record. For this reason, we reverse the disposition order and finding of guilt on the third degree grand theft charge.

Reversed and remanded to the trial court to reduce the third degree grand theft charge to petit theft.

Gerber, C.J., and Ciklin, J., concur.