text:
    Ben E. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1327
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019. Rehearing Denied February 18, 2019
    Ben E. Smith, in proper person.
    Ashley Brooke Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before LINDSEY and HENDON, JJ., and LUCK, Associate Judge.
   PER CURIAM.

Affirmed. See Connolly v. State, 172 So.3d 893, 904 (Fla. 3d DCA 2015) (en banc) ("Use or possession of a firearm, however, is not an essential element of second degree murder, but rather, it may serve to allow for a reclassification of the second degree murder from a first degree felony to a life felony or as an enhancement of the sentence imposed." (footnote omitted) ).


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    Juan Carlos MUSI, Appellant, v. CREDO, LLC, etc., Appellee.
    No. 3D18-583
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019 Rehearing Denied February 13, 2019
    Geoffrey D. Ittleman (Fort Lauderdale), for appellant.
    Roniel Rodriguez, IV, Aventura, for appellee.
    Before SALTER and LINDSEY, JJ., and LUCK, Associate Judge.
   SALTER, J.

Juan Carlos Musi appeals from a final judgment, entered after a non-jury trial, in favor of Credo, LLC ("Credo"), awarding $204,500.00 in damages for Credo's loss of use of a residential property. For the following reasons, we reverse and remand for entry of final judgment consistent with this opinion.

Facts

Musi and his wife, the defendants below, entered into a residential lease agreement with Sally Sawh (the "former owner"), who, at the time of the agreement, was the owner of the residential real estate (the "property") located on 4575 Sabal Palm Road, Miami, Florida. The lease agreement was executed on June 22, 2012, and was "for a term, not to exceed twelve months, beginning on June 26, 2012, and ending June 25, 2013." Under the lease, Musi agreed to pay the former owner rent in the amount of $180,000.00 for the entire lease term and a security deposit in the amount of $30,000.00. Both amounts were due at the beginning of the rental period-June 26, 2012. Neither Musi nor the former owner recorded the lease agreement.

At the time the lease agreement was executed, the property was subject to a sheriff's levy, recorded on June 6, 2012, and a scheduled sheriff's sale. On August 15, 2012, while Musi and his wife were tenants, Credo acquired title to the property by virtue of a sheriff's deed. Credo recorded the sheriff's deed the same day.

With title to the property, on September 5, 2012, Credo issued a three-day notice letter to Musi, wherein it advised that "pursuant to Florida Statutes Chapter 83[,] [Musi was] indebted to [Credo] in the sum of $15,000.00 for rent and use of the premises." (Original emphasis). Shortly thereafter, on September 12, 2012, Credo filed an eviction action against Musi, seeking possession of the property. A year later, the county court ordered Musi to deposit rent of $16,000.00 per month into the registry of the court. Due to Musi's subsequent failure to deposit rent into the registry as ordered, the county court entered a final default judgment for possession in favor of Credo on October 4, 2013. Musi vacated the property at or shortly before that date.

In May 2015, nearly two years after the final default judgment for possession, and one year after it sold the property, Credo initiated the underlying action against Musi and his wife. The complaint alleged the Musis "owe[d] [Credo] rental for the period from September 1, 2012 through June 30, 2013 in the amount of $160,000.00 and holdover rent for the period from July 1, 2013 through October 2013 in the amount of 128,000.00." Credo's allegations primarily focused on "rent[ ] of the subject premises." Credo sought $16,000.00 as the fair market value of monthly rent; it did not allege that rent should be $15,000.00 per month as prepaid by Musi to Sawh. Credo also alleged the Musis caused damage to the property and demanded "attorney's fees pursuant to Chapter 83, Florida Statutes." Credo did not attach the Sawh-Musi written lease to its complaint, and Credo had not assumed that lease or been granted an assignment of rights under it.

The case proceeded to a non-jury trial, to which the parties submitted a joint pretrial stipulation. Per the stipulation, Credo agreed to abandon its claim for holdover rent; and stipulated that it was not seeking damages related to the condition of the premises, as summary judgment was previously granted in favor of the Musis. With these stipulations, the only issue, according to the trial court, was "Credo's claim for special damages suffered in conjunction with loss of use of the property."

Following the non-jury trial, the trial court held Credo was entitled to an award of $204,500.00 in damages, reflecting its loss of use of the property from August 15, 2012, when Credo acquired title, to October 4, 2013, when the final default judgment for possession was entered in favor of Credo. The trial court assigned a value of rent of $15,000.00 per month. The trial court's conclusion was primarily based on Musi's "failure to execute or record the lease until after Credo's interest attached to the property"; therefore, according to the trial court, "[a]ny prepayment of rent to [the former owner] d[id] not extinguish Credo's right to receive compensation for the use of the property." The trial court did not award damages pursuant to the Act; nor did it address the Act in its discussion of rent owed. Following these conclusions, a final judgment was entered in favor of Credo.

Musi's appeal followed.

Standard of Review

This Court "review[s] a judgment rendered after a bench trial to ensure that the trial court's findings of fact are supported by competent, substantial evidence."

Haas Automation, Inc. v. Fox, 243 So.3d 1017, 1023 (Fla. 3d DCA 2018). The trial court's legal conclusions, however, are subject to de novo review. See id. The de novo standard also applies to the interpretation of a statute. See Magdalena v. Toyota Motor Corp., 253 So.3d 24, 25 (Fla. 3d DCA 2017).

Discussion

Musi contends the trial court erred in awarding rent to Credo because, pursuant to the Act, Musi and Credo were not in a landlord-tenant relationship and therefore, Musi cannot be responsible for rent to Credo. In response, Credo claims that when it purchased the property by sheriff's deed, it was entitled, by virtue of its recorded interest in the property, to be compensated by Musi from the time it took title to the property to the time Musi vacated. We disagree with Credo, however, as it sought-and was ultimately awarded-damages based on claims it failed to allege in its pleadings. We, therefore, reverse.

Our review of the single count complaint indicates Credo primarily-if not entirely-sought "rent[ ] of the subject premises," pursuant to the Act, and not damages premised upon any other theory. Specifically, Credo alleged Musi "owe[d] [Credo] rental for the period from September 1, 2012 through June 30, 2013 in the amount of $160,000.00 and holdover rent for the period from July 1, 2013 through October 2013 in the amount of $128,000.00." Credo also made a "[d]emand for attorney's fees ... pursuant to Chapter 83, Florida Statutes [the Act]." It is clear the basis for Credo's single claim for damages, as pled in the complaint, was rent allegedly owed pursuant to the Act.

In its final judgment, however, the trial court awarded Credo special damages suffered in conjunction with the loss of use of the property; it found persuasive Musi's failure to record the lease agreement before Credo's perfected interest attached to the property. On this record, however, Credo neither alleged a claim for special damages for the loss of use of the property, nor alleged its entitlement to rent because of its purchase, by sheriff's deed, of "all the estate, right, title, and interest" to the property, as it argues on appeal.

As noted, Credo's claim was specifically for "rent[ ] of the subject premises" pursuant to the Act. It is well established that a trial court cannot award relief where it has not been pled. See Lopez v. Regalado, 257 So.3d 550, 557 (Fla. 3d DCA 2018) ("In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings.") (citations omitted); Jahnke v. Jahnke, 804 So.2d 513, 516 (Fla. 3d DCA 2001) ("We agree ... that a court cannot award relief that was not requested in the pleadings."); see also Martin v. Lee, 219 So.3d 1024, 1025 (Fla. 1st DCA 2017) ("It is well settled that courts are not authorized to grant relief not requested in the pleadings.").

While it was error for the trial court to award relief not pled, a trial court may adjudicate a claim that was not pled if it was tried with Musi's implied or express consent. See S. Fla. Coastal Elec., Inc. v. Treasures on Bay II Condo Ass'n, 89 So.3d 264, 266 (Fla. 3d DCA 2012) ("A judgment must be based upon a claim or defense that was either properly pled or tried by consent of the parties."). Here, neither implied consent nor express consent is demonstrated. As emphasized earlier, Credo's single claim against Musi was for damages pursuant to the Act; nowhere in the complaint did Credo reference entitlement to special damages for the loss of use of the property, nor reference its entitlement based upon its superior property interest. Similarly, Credo did not amend-nor request to amend-its complaint to conform to the evidence or arguments presented at the non-jury trial. See Troyts Auto Serv. v. Vitelli, 173 So.3d 1145, 1146 (Fla. 2d DCA 2015) (reversing final judgment for conversion where the complaint did not include conversion claim, was not amended to include conversion claim, and the record did not demonstrate the issue was tried by consent); Raimi v. Furlong, 702 So.2d 1273, 1285 (Fla. 3d DCA 1997) (holding the trial court erred when it found a defendant negligent for hiring, retention, and supervision because the theory was neither pled nor tried by consent).

Accordingly, we reverse the final judgment awarding Credo damages based on relief neither requested nor raised by its pleadings, and remand for entry of final judgment in Musi's favor.

Reversed and remanded.

      The trial court entered a final judgment solely against Musi, as Musi's wife was dismissed from the proceedings. The trial court dismissed Musi's wife after concluding she was a non-signatory to the lease, was not named in the eviction proceedings, and was never shown to have been in possession of the property after Credo acquired title.

      Chapter 83, Part II, Florida Statutes, is known as the Florida Residential Landlord and Tenant Act (the "Act"). See § 83.40, Fla. Stat. (2018).


author: SCALES, J.

text:
    BISCAYNE MARINE PARTNERS LLC, Petitioner, v. CITY OF MIAMI, Florida and Virginia Key, LLC, Respondents.
    No. 3D18-2061
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Holland & Knight LLP, and Rodolfo Sorondo, Jr., Ilene L. Pabian and Daniel P. Hanlon, Miami, for petitioner.
    Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney; Bilzin Sumberg Baena Price & Axelrod LLP, and Albert E. Dotson, Jr., Eileen Ball Mehta, Eric Singer and Elise Holtzman Gerson, Miami, for respondents.
    Before LOGUE, SCALES and LINDSEY, JJ.
   SCALES, J.

Petitioner Biscayne Marine Partners LLC ("Biscayne Marine") bid unsuccessfully on a solicitation issued by Respondent City of Miami (the "City"). The City had sought proposals for the redevelopment and lease of waterfront property at Virginia Key. When the City Manager recommended that the City Commission award a competing bid, Biscayne Marine filed a timely bid protest. An administrative hearing officer affirmed the recommendation to award the bid to Biscayne Marine's competitor, Virginia Key, LLC ("VKLLC"). Biscayne Marine filed a petition for a writ of certiorari in the appellate division of the Miami-Dade County Circuit Court. After the Circuit Court denied Biscayne Marine's petition, Biscayne Marine sought second-tier certiorari review in this Court. For the reasons stated below, we deny Biscayne Marine's petition.

I. History

A. City's Request For Proposals ("RFP")

On February 17, 2017, the City issued RFP No. 16-17-011 seeking proposals for the redevelopment and long-term lease of approximately 26.65 acres of waterfront property (the "Property") at Virginia Key, which is located in Miami, Florida. During the bidding process, the City issued five addenda to the RFP. The City anticipated that the winning bidder would redevelop and lease the Property, and then operate a marina, a boatyard, wet slips, a dry storage facility and a restaurant on the site.

The RFP described the Property as consisting of three parcels. On a boundary survey contained as an exhibit to the RFP, and as appended to this opinion as an exhibit, a rectangular portion of Parcel 3 is labeled "NOT A PART." This rectangular portion has dimensions of approximately 51 feet by 441 feet. It is owned by the City. Abutting it to the south and located within the right-of-way of the Rickenbacker Causeway is a second, separate rectangular parcel owned by Miami-Dade County (the "County Land"). At the time of the issuance of the RFP, the County Land had been deeded by the County to the City for the purpose of constructing a parking garage. Initially, bidders had the option to use this County Land in order to provide required parking. On May 5, 2017, however, during the RFP process, the County advised the City that it would exercise a right of reverter for the County Land in order to expand the Rickenbacker Causeway. Accordingly, the City issued Addendum 5 to the RFP in which the City removed the County Land from the portion of the Property anticipated for parking use.

On May 24, 2017, the City received the proposals of three bidders, Biscayne Marine, VKLLC and GCM Contracting Solutions, Inc. All three bidders made some degree of use of the NOT A PART rectangle. VKLLC used the NOT A PART rectangle to propose 111 dry storage slips. Biscayne Marine used the NOT A PART rectangle for vehicular access and circulation (and, apparently, to take advantage of existing parking). GCM used it partially for boat storage and partially for parking. Clearly, of the three bids, VKLLC's proposed use would make the most significant impact on the NOT A PART rectangle.

On June 15, 2017, the City Manager, based on rankings of the City's Evaluation Committee, issued a recommendation to the City Commission to award the bid to top-ranked VKLLC. On June 27, 2017, Biscayne Marine filed a formal bid protest with the City. In pertinent part, Biscayne Marine's bid protest maintained that VKLLC's bid was non-responsive because, in proposing to use the NOT A PART rectangle for dry storage slips, VKLLC proposed a commercial development purpose that was outside of the project's defined boundaries, and thus, constituted a material deviation from the RFP.

B. The Decision of the Hearing Officer

On July 20, 2017, a City-appointed hearing officer heard Biscayne Marine's bid protest and, on August 8, 2017, entered an order denying the bid protest and affirming the recommendation of the City Manager to award the bid to VKLLC.

Finding that all three bidders had proposed a use for the NOT A PART rectangle in their bids, the hearing officer declined to weigh the relative merits of the different types of proposed uses. He accepted the City's view that the RFP had not prohibited the use of the NOT A PART rectangle. The Hearing Officer noted that Addendum 5, which the City issued after the County removed the County Land from the RFP process, did not clarify the meaning of the NOT A PART label. After Addendum 5, which altered the development area of the RFP to exclude the County Land, the NOT A PART rectangle remained subject to different interpretations. Nevertheless, the Hearing Officer deferred to the City's "reasonable" interpretation of a surveyor's notation. The Hearing Officer went on to find, as follows:

Giving the argument of counsel for Biscayne Marine as much deference, latitude and credibility that can be given, but I must still, as a matter of law defer to the judgment of the City in determining certain crucial factors. One of these factors relates to materiality. If the use of the NOT A PART parcel was not allowed, then the City had the ability to determine whether that made a difference to the outcome and whether the deviation was material.

C. The Circuit Court's First-Tier Certiorari Review

Biscayne Marine challenged the Hearing Officer's order by timely filing a petition for a writ of certiorari with the Miami-Dade County Circuit Court's Appellate Division. On September 11, 2018, the Circuit Court rendered a detailed, fourteen-page opinion denying Biscayne Marine's petition. The Circuit Court found that the Hearing Officer afforded the parties due process, did not depart from the essential requirements of law, and based his factual findings on competent substantial evidence.

Specifically, the Circuit Court observed, as the Hearing Officer had done, that the NOT A PART parcel meant different things to the City, Biscayne Marine and VKLLC. It held that the Hearing Officer was correct in deferring to the City's interpretation of the NOT A PART label appearing on the RFP's survey. It held that "[s]uch deference to the City's interpretation of the [NOT A PART] parcel does not constitute a departure from the essential requirements of law." In support of its deference to the City's interpretation, the Circuit Court found that the City's "interpretation does not demonstrate discrimination between bidders, nor does it present a fatal lack of specificity or an impermissible alteration of a material provision required by the RFP."

The Circuit Court also affirmed the Hearing Officer's deference to the City's analysis of the competing proposals and the resulting determination (via the City's Evaluation Committee) that both Biscayne Marine and VKLLC's proposals were responsive in that each used the NOT A PART parcel in their respective bids. To support its conclusions in this regard, the Circuit Court cited to Florida's policy of deferring to governmental decisions in competitive bidding situations when, as here, there is no "finding of illegality, fraud, oppression, or misconduct," citing to Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912, 913 (Fla. 1988).

D. Biscayne Marine's Argument on Second-Tier Certiorari Review

Biscayne Marine then filed its petition with this Court seeking second-tier certiorari review of the Circuit Court's decision. Biscayne Marine's petition presents a narrow issue regarding the deference that both the Hearing Officer and the Circuit Court afforded to the City. Essentially Biscayne Marine asserts that, rather than deferring to the City as to whether VKLLC's bid constituted a material deviation from the RFP, the Hearing Officer and the Circuit Court should have made their own, independent determinations on this issue, and their failure to conduct such an independent inquiry resulted in a departure from the essential requirements of law.

II. Analysis

Our review on second-tier certiorari is extremely limited. We address only whether the decision of the Circuit Court departed from the essential requirements of law resulting in a miscarriage of justice; and specifically, whether the Circuit Court applied the correct law and afforded the parties procedural due process. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010) ("[A] district court should exercise its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice."); DMB Inv. Tr. v. Islamorada Vill. Of Islands, 225 So.3d 312, 316 (Fla. 3d DCA 2017).

Hence, we restrict our inquiry to precisely what "clearly established principle of law" the Circuit Court allegedly violated. Biscayne Marine asserts that the Hearing Officer and the Circuit Court were required to undertake an independent review of whether, in its bid response, VKLLC's proposed commercial use of the NOT A PART rectangle constituted a material deviation from the City's bid specifications. Therefore, Biscayne Marine asserts, the "clearly established principle of law" is that, for a bid protest, either a court or a hearing officer must perform an analysis - independent of the public procuring agency - of whether a material deviation from bid specifications has occurred.

To support this assertion, Biscayne Marine cites several cases that, Biscayne Marine argues, articulate a principle of law forbidding courts or hearing officers from deferring to the procuring agency the question of whether a bid response materially varies from the procurement document.

Our reading of these cases, however, reveals no such holding, much less the articulation of such a deference prohibition as an established principle of law. Indeed, in one of the cases cited by Biscayne Marine, our Florida Supreme Court describes a public agency's discretion - as well as a court's role - in awarding public bids: "In Florida ... a public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree." Liberty Cty., 421 So.2d at 507.

The holding of the Liberty County case - as with the other four cases cited by Biscayne Marine, see supra - does not focus on the role of the trial court in reviewing the bid. Consequently, no principle of law is clearly established in these cases as to any obligation of the trial court (and, by analogy, an administrative hearing officer) to decide or to defer. If anything, the existing and clearly established principle of law inclines toward judicial deference in public agency competitive bidding disputes when the agency has exercised it discretion absent illegality, fraud, oppression or misconduct. Groves-Watkins Constructors, 530 So.2d at 913.

Because Biscayne Marine has failed to show that the Circuit Court departed from the essential requirements of law, we deny Biscayne Marine's petition for second-tier certiorari.

Petition denied.

EXHIBIT

?

      There appears to be confusion whether the County Land was included within the portion of Parcel 3 labeled "NOT A PART." The City emphatically maintains that the County Land is separate from the City's NOT A PART rectangle. Both the opinion of the Circuit Court and the certiorari petition to this Court identify the County Land as included in the NOT A PART rectangle. Paragraph 11 of the RFP also suggests the same: "A municipal parking garage is intended to be built outside the Property in the area labeled on the survey as 'NOT A PART.' " The City subsequently deleted this sentence in Addendum 5, and specified that the winning bidder would have to provide parking within the footprint of the Property. The precise location of the County Land is not particularly relevant to our decision.

      Biscayne Marine's bid protest also raised several issues related to the financial viability of VKLLC's bid. The record discloses that VKLLC intervened in the bid protest proceedings and alleged that Biscayne Marine's bid was non-responsive, and therefore, that Biscayne Marine lacked standing to prosecute its bid protest. None of these issues is before us in the instant petition for writ of certiorari.

      The City employee who managed the RFP process testified that "NOT A PART" was a surveyor's notation that meant the rectangle was not a part of the survey. Accordingly, she testified, the NOT A PART rectangle was available for use in an RFP response. Indeed, all bidders proposed using the NOT A PART rectangle, and the City deemed none of the RFP responses to be non-responsive. The Hearing Officer found that each bidder benefited from its own interpretation and each was treated equally by the City.

      A public agency may not accept a bid that materially deviates from the agency's RFP specifications. Air Support Servs. Int'l, Inc. v. Metro. Dade Cty., 614 So.2d 583, 584 (Fla. 3d DCA 1993).

      Liberty Cty. v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982) ; Air Support Servs. Int'l, Inc. v. Metro. Dade Cty., 614 So.2d 583, 584 (Fla. 3d DCA 1993) ; Robinson Elec. Co., Inc. v. Dade Cty., 417 So.2d 1032, 1034 (Fla. 3d DCA 1982) ; Glatstein v. City of Miami, 399 So.2d 1005, 1008 (Fla. 3d DCA 1981) ; and Harry Pepper & Assocs. v. City of Cape Coral, 352 So.2d 1190, 1192-93 (Fla. 2d DCA 1977).


author: PER CURIAM.

text:
    Tauron EADY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2013
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019. Rehearing Denied February 18, 2019
    Tauron Eady, in proper person.
    Ashley Brooke Moody, Attorney General, for appellee.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Cox v. State, 221 So.3d 723, 725 (Fla. 3d DCA 2017) (holding: "Unlike a motion for postconviction relief pursuant to rule 3.850, a motion to correct illegal sentence pursuant to rule 3.800(a) places the burden upon the defendant ... to affirmatively identify court records which, on their face, demonstrate the existence of an illegal sentence or an entitlement to relief under rule 3.800(a)"); Llerena v. State, 953 So.2d 31, 33 (Fla. 3d DCA 2007) (noting: "Concurrent sentences do not necessarily begin at the same time, and unless they are ordered to be coterminous, they will expire on different dates"); Knight v. State, 832 So.2d 172, 172 (Fla. 3d DCA 2002) (affirming order denying motion for postconviction relief where the "plea colloquy contain[ed] no indication that the sentence was to be coterminous with any other sentence").


text:
    AIR SHUNT INSTRUMENT, INC., Appellant, v. AIRFOIL INTERNATIONAL AIRCRAFT SPACE PARTS CO. WLL, Appellee.
    No. 3D18-1350
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Allison L. Friedman, Aventura, for appellant.
    MG Legal Group and Juliana Gonzalez, Miami, for appellee.
    Before EMAS, C.J., and SALTER and LINDSEY, JJ.
   SALTER, J.

Air Shunt Instrument, Inc. ("Air Shunt"), appeals a trial court order denying its motion to dismiss for lack of personal jurisdiction. Air Shunt was sued by the appellee, Airfoil International Aircraft Spare Parts Co. WLL ("Airfoil"), for breach of contract relating to a group of aircraft parts in Air Shunt's repair facility in California. We reverse the order and remand the case for dismissal for lack of personal jurisdiction, as Airfoil failed (1) to include legally sufficient jurisdictional allegations in its complaint, and (2) to "prove by affidavit the basis upon which jurisdiction may be obtained," following Air Shunt's filing and service of a comprehensive affidavit by its Chief Executive Officer that was fact-based and legally sufficient to defeat Airfoil's insufficient jurisdictional allegations.

Airfoil's Complaint

The complaint alleges two claims, one of which (replevin-a problem, given that the six aircraft components under repair concededly remained at Air Shunt's premises in California) was voluntarily dropped by Airfoil. The remaining claim alleges that Air Shunt is a foreign corporation "doing business" in Miami-Dade County and throughout the United States.

The complaint further alleges that Air Shunt's business is the repair of aircraft parts, but there is no allegation that such repairs are undertaken anywhere in Florida. Airfoil alleged that it was promised a credit for "certain work orders that could not be performed in the amount of $ 31,000.00." The attachment lists six work orders and information regarding the parts to be repaired, but there are no work orders actually attached, no contracts, and no allegations that Air Shunt picked up parts, worked on parts, or contracted to work on parts, in Florida.

Air Shunt's Motion to Dismiss and Jurisdictional Affidavit

Air Shunt moved to dismiss the complaint for lack of personal jurisdiction. Unrebutted allegations in the sworn affidavit of its Chief Executive Officer attached to its motion included these:

• It is a California corporation with its principal place of business in Chatsworth, California.
• It does not operate, conduct, engage in, or carry on a business or business venture in the State of Florida.
• It has not contracted to insure any person, property, or risk located within Florida.
• It does not own, use, possess, or hold a mortgage or other lien on any real property within Florida.
• It has not engaged in substantial or significant solicitation or service activities within Florida.
• It has not manufactured any products, materials, or things within the State of Florida in the ordinary and foreseeable course of commerce, trade, or use.
• It has not entered into any contract to be performed in Florida.
• It does not transact business in Florida or otherwise engage in any substantial business activity that targets Florida such that it has availed itself of the laws of Florida.
• It has not engaged in substantial and not isolated activity within Florida, either interstate or intrastate.
• The [aircraft] parts described in Airfoil's complaint are located in California.

Airfoil's Counter-Affidavit

In response, and as contemplated by the oft-cited case of Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989), Airfoil filed a counter-affidavit and five emails. Airfoil's affiant, Milton Robinson, alleges that he is secretary, registered agent, and records custodian for Airfoil. The attachments to his affidavit are emails indicating:

• The COO of Airfoil, Khalifa Alsada, sent an email from Airfoil in the Kingdom of Bahrain to addressees including Nick Crawford, Air Shunt's quality assurance manager in Chatsworth, California. The email asked that financial communications from Air Shunt be directed to Mr. Hameed or Mr. Ayman at Airfoil.
• Mr. Ayman Alobaidli, Chairman of the Board of "Airfoil International W.L.L." (which may or may not be a different entity than "Airfoil International Aircraft Spare Parts Co. WLL," the plaintiff identified as "Airfoil" in the complaint and this opinion), sent an email to "Paul" at Air Shunt, appointing Mr. Robinson and his company (MBR Development, LLC, in Miami) to reconcile past due invoices and expedite payment. The email does not in any way indicate that the audit would take place in Florida, or that any such invoices had or have anything to do with the aircraft parts involved in the complaint.
• Another email from "Paul" asks Mr. Robinson to forward financial questions to "Elen Perez at accounting@airshunt.com." This followed an email from Mr. Robinson to Mr. Alobaidli (the Chairman in Bahrain) and "Paul" asking them to please send the most recent statement to Mr. Robinson so that Airfoil payables could be matched to accounts receivable.
• Another email from Mr. Robinson to Nick Crawford at Air Shunt asks for a copy of "the contract with Airfoil Bahrain," and states that "we have established the Airfoil US entity Airfoil USA, LLC" (yet another entity unidentified in Airfoil's complaint, and apparently indicating that the repair contract in question is with "Airfoil Bahrain").
• These emails contradict, rather than support, Mr. Robinson's affidavit that "[a]s early as 2012, Air Shunt has been doing business with entities in the State of Florida as evidenced by the attached [emails]."

Notice of Evidentiary Hearing

The allegations in the complaint and in Mr. Robinson's affidavit are woefully inadequate to establish: specific jurisdiction, section 48.193(1)(a), Florida Statutes (2018) ; general jurisdiction, section 48.193(2) ; or minimum contacts under the applicable and well-established case law. As to the threshold review of a complaint for long-arm jurisdictional sufficiency, see Wadley v. Nazelli, 223 So.3d 1118, 1121 (Fla. 3d DCA 2017). In the present case, Airfoil alleges the breach of an agreement to provide a monetary credit and to return six aircraft components from California, but the complaint attaches no contract, work order (though work orders are referenced by number on an attachment), or basis for a credit.

As to the complaint's allegations regarding minimum contacts, see Daimler AG v. Bauman, 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) (exercise of general jurisdiction by a State requires affiliations that are so continuous and systematic as to render the defendant essentially "at home" in the forum State).

Despite these shortcomings, Airfoil noticed an "evidentiary hearing," at which Mr. Robinson testified. Neither party arranged for a court reporter to attend, so the record contains no transcript. Airfoil thus invokes Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979), for the proposition that without a transcript this appeal must fail.

In many cases, that argument would prevail. In the present case, it fails. An evidentiary hearing is only appropriate when a preliminary prerequisite-a legally sufficient set of allegations regarding jurisdiction over the non-resident defendant corporation-has been satisfied. Here it was not.

If the threshold jurisdictional allegations suffice, the burden shifts to the defendant, by affidavit, to counter the jurisdictional allegations under oath. If that requirement is satisfied by the defendant, the plaintiff must file a counter-affidavit under oath placing a key jurisdictional fact or facts in dispute, such that an evidentiary hearing becomes necessary to resolve the dispute. Airfoil did not satisfy that requirement either. As to this sequence of steps, see Borden v. East-European Insurance Co., 921 So.2d 587, 592 (Fla. 2006), and Rollet v. de Bizemont, 159 So.3d 351, 355 (Fla. 3d DCA 2015).

For these reasons, we reverse the order denying Air Shunt's motion to dismiss the amended complaint for lack of jurisdiction. We remand for the entry of an order granting the motion and dismissing the amended complaint with leave to further amend, if Airfoil chooses, to remedy the jurisdictional pleading deficiencies detailed in this opinion.

Reversed and remanded for further proceedings.

      Tobacco Merchants Ass'n of U.S. v. Broin, 657 So.2d 939, 941 (Fla. 3d DCA 1995), quoted in Rollet v. de Bizemont, 159 So.3d 351, 356 (Fla. 3d DCA 2015).


text:
    The STATE of Florida, Appellant, v. Danny TRIANA, Appellee.
    No. 3D18-0977
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellee.
    Before FERNANDEZ, LOGUE, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See State v. Aguilar, 775 So.2d 994 (Fla. 3d DCA 2000).


text:
    BENZRENT 1, LLC, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., Appellee.
    No. 3D18-817
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    The Bravo Law Firm, PLLC, and Jason Bravo, Miami, for appellant.
    Margaret E. Kozan, P.A., and Margaret E. Kozan (Winter Park); Lender Legal Services, LLC, and Joseph Towne and Nicholas Geraci (Orlando), for appellee.
    Before SALTER, SCALES and HENDON, JJ.
   SCALES, J.

In this foreclosure case, Benzrent 1, LLC ("Benzrent"), the defendant below, appeals an order granting final summary judgment of foreclosure in favor of the plaintiff below, Wilmington Savings Fund Society, FSB, as trustee for Stanwich Mortgage Loan Trust, Series 2-14-4 ("Wilmington"). We conclude that the trial court erred, as a matter of law, in striking Benzrent's pleading for lack of standing and then entering judicial default against Benzrent.

I. FACTS AND RELEVANT PROCEDURAL BACKGROUND

In November 2014, Benzrent became the owner in fee simple of a condominium unit located in Miami-Dade County. Benzrent purchased the property subject to a mortgage securing a promissory note. Benzrent was not a party to either the promissory note or the mortgage securing the note, and Benzrent did not assume the obligations of either the note or mortgage at the time it purchased the property.

In December 2016, Wilmington filed the instant action to foreclose on the mortgage, naming Benzrent as a defendant because Benzrent then held title to the subject property. Benzrent filed an answer and affirmative defenses, alleging, among other affirmative defenses, that Wilmington lacked standing to foreclose on the subject mortgage.

In April 2017, Wilmington moved, pursuant to Florida Rule of Civil Procedure 1.140, to strike Benzrent's answer and affirmative defenses. Relying upon Judge Sleet's special concurrence in Pealer v. Wilmington Trust National Ass'n, 212 So.3d 1137 (Fla. 2d DCA 2017), Wilmington argued that Benzrent lacked standing both to raise Wilmington's lack of standing to foreclose as an affirmative defense, and to challenge Wilmington's admission of evidence at trial. The trial court granted Wilmington's motion and struck Benzrent's pleading.

In July 2017, Benzrent filed a first amended answer and affirmative defenses. Therein, Benzrent again raised, as one of several affirmative defenses, Wilmington's lack of standing to foreclose. Wilmington filed another rule 1.140 motion to strike Benzrent's first amended answer and affirmative defenses, again claiming that Benzrent - a non-party to the note and mortgage - lacked standing both to raise Wilmington's lack of standing to foreclose as an affirmative defense, and to challenge Wilmington's admission of evidence at trial.

On September 26, 2017, the trial court conducted a hearing on Wilmington's motion to strike. At the hearing, Benzrent's counsel argued that Benzrent had, at the very least, standing to raise Wilmington's lack of standing to foreclose as an affirmative defense, citing the Fourth District's then recently issued opinion in 3709 N. Flagler Drive Prodigy Land Trust v. Bank of America, N.A., 226 So.3d 1040 (Fla. 4th DCA 2017) (determining that a subsequent title owner may challenge a foreclosing plaintiff's lack of standing to foreclose on a mortgage). Relying upon Judge Sleet's special concurrence in Pealer, the trial court rejected Benzrent's argument stating, "I think the 2nd [District] is correct; there's a conflict. So [Wilmington's] motion is granted." The trial court entered an order striking Benzrent's pleading.

With Benzrent's pleading struck for a second time, Wilmington moved for and obtained a judicial default. Wilmington then moved for summary judgment. In February 2018, at a summary judgment hearing before a successor judge, Benzrent's counsel made an ore tenus motion to vacate the judicial default, arguing that Benzrent's amended answer and affirmative defenses had been improperly struck. Stating that the predecessor judge's rulings were "law of the case," the trial court denied the motion to vacate the judicial default and, later that same day, entered a final summary judgment of foreclosure in favor of Wilmington. We reverse the final summary judgment for the following reasons.

II. ANALYSIS

First, we conclude that the predecessor judge erred in striking Benzrent's pleading. Though it is somewhat unclear from the September 26, 2017 hearing transcript, when the predecessor judge struck Benzrent's pleading, it appears that the court was under the mistaken impression that Pealer was a majority opinion of the Second District; it was not.

Pealer was a per curiam affirmance with a special concurring opinion that was not joined by the other panel members. Concurring opinions, of course, have no precedential value. See Miller v. State, 980 So.2d 1092, 1094 (Fla. 2d DCA 2008). Absent a conflict, and because this Court had no binding precedent on this issue, the predecessor judge was duty bound to follow the Fourth District's decision in 3709 N. Flagler. See Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) ("[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts."); Miller, 980 So.2d at 1094. The trial court's failure to follow 3709 N. Flagler resulted in the erroneous striking of Benzrent's responsive pleading.

Second, we conclude that the successor judge erred in denying Benzrent's ore tenus motion to vacate the judicial default on the basis that the predecessor judge's rulings were somehow "law of the case." Rather than constituting "law of the case," the challenged judicial default was clearly an interlocutory order. See Aventura Beach Club Condo. Ass'n, Inc. v. Blaustein, 997 So.2d 1185, 1186 (Fla. 3d DCA 2008). As such, it could "be revisited by the trial court at any time prior to final judgment." Id.; see also Dawkins, Inc. v. Huff, 836 So.2d 1062, 1065 (Fla. 5th DCA 2003) ("[A] court always has jurisdiction during the progress of a case to set aside or modify an interlocutory order before final judgment."). This holds true even where, as here, a predecessor judge entered an interlocutory order and the litigant moved to vacate the order before a successor judge. See Tingle v. Dade Cty. Bd. of Cty. Comm'rs, 245 So.2d 76, 78 (Fla. 1971) ("While a judge should hesitate to undo his own work, and should hesitate still more to undo the work of another judge, he does have, until final judgment, the power to do so and may therefore vacate or modify the Interlocutory rulings or orders of his predecessor in the case.").

III. CONCLUSION

For these reasons, we reverse the final summary judgment and remand this cause to the lower court with directions to vacate the judicial default, and to give leave to Benzrent to file a second amended pleading to respond to Wilmington's complaint and to raise any and all available affirmative defenses.

Reversed and remanded.

      We review a rule 1.140 order striking an affirmative defense for an abuse of discretion. See Roach v. Totalbank, 85 So.3d 574, 577 (Fla. 4th DCA 2012). "Whether a ruling is the law of the case is a question of law, which this court reviews de novo." TRW Auto. U.S. LLC v. Papandopoles, 949 So.2d 297, 300 (Fla. 4th DCA 2007).

      While this Court has not directly addressed the standing issue decided in 3709 N. Flagler, in Wilmington Trust, N.A. v. Alvarez, 239 So.3d 1265, 1266 n.1 (Fla. 3d DCA 2018), this Court cited 3709 N. Flagler with approval with respect to a defendant, who is not a party to the mortgage, being able to raise the affirmative defense that the underlying foreclosure action was barred by the statute of limitations.

      We decline Wilmington's invitation to adjudicate in the first instance whether the affirmative defenses set forth by Benzrent in the lower proceeding were either legally sufficient or factually refuted by the record.


text:
    Gisselle MANZZO, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D18-612
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Arthur J. Morburger, Miami, for appellant.
    Holland & Knight LLP, and Brian K. Hole and Katherine M. Joffe (Fort Lauderdale), for appellee.
    Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Gisselle Manzzo appeals the trial court's entry of Final Judgment, granting Deutsche Bank National Trust Company's motion for a directed verdict and dismissing her action for declaratory relief and to quiet title with prejudice. Based on the record before us, we find no reversible error in the trial court's rulings below. See, e.g., Barclay v. Rivero, 388 So.2d 321, 321-22 (Fla. 3d DCA 1980) ; Fuller v. Palm Auto Plaza, Inc., 683 So.2d 654, 655 (Fla. 4th DCA 1996) ; Horacio O. Ferrea N. Am. Div., Inc. v. Moroso Performance Prods., Inc., 553 So.2d 336, 337 (Fla. 4th DCA 1989).

Affirmed.


text:
    Fanny CASARETTO, Appellant, v. PRESIDENT SUPERMARKET NO. 25, INC. d/b/a Presidente Supermarket No. 25, Appellee.
    No. 3D18-507
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Eaton & Wolk, PL, and Douglas F. Eaton, Miami, for appellant.
    Hinshaw & Culbertson, LLP, and Maureen G. Pearcy, Coral Gables, for appellee.
    Before SALTER, LINDSEY and HENDON, JJ.
   PER CURIAM.

Affirmed. Lago v. Costco Wholesale Corp., 233 So.3d 1248 (Fla. 3d DCA 2017) ; Encarnacion v. Lifemark Hosps. of Fla., 211 So.3d 275 (Fla. 3d DCA 2017) ; Wilson-Greene v. City of Miami, 208 So.3d 1271 (Fla. 3d DCA 2017).


author: MILLER, J.

text:
    J.R., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-494
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019.
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.
   MILLER, J.

Appellant, J.R., a juvenile, appeals from an order withholding adjudication of delinquency and placing him on probation for possession of cocaine, in violation of section 893.13, Florida Statutes (2016). Because the trial court erred in expressly admitting prejudicial evidence immaterial to the charged offense, over objection, and failed to expressly disavow reliance upon the evidence in rendering a decision, we cannot conclude under the facts presented that any associated error was harmless. Accordingly, we reverse and remand for a new trial.

FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS

J.R. was charged with one count of cocaine possession. At the adjudicatory hearing, the State called several witnesses, beginning with Officer Nestor Amoris of the City of Miami Police Department Homicide Unit. Officer Amoris testified that on May 4, 2016, he was patrolling Little Havana with a patrol trainee, Officer Earl Simington. In the early morning hours, Officer Amoris approached a closed grocery store. There, he noticed J.R. pacing up and down on the sidewalk in front of the store. As Officer Amoris drew nearer to the storefront, J.R. promptly seated himself on the ground. According to his testimony, he then observed J.R. discarding an item known as a "Dutch cigar wrapper." Officer Amoris immediately retrieved the item and discovered crack cocaine partially concealed within plastic wrap. He impounded the narcotics and took J.R. into custody.

The transcript reveals the following exchange during direct examination:

State: Can you tell us a little about the area that you were patrolling?
Officer: Yes. They had us concentrate in particular areas that we were having trouble with. We had a lot of shootings, stabbings-
Defense: Objection, relevance.
Officer: -narcotics sales.
Judge: Overruled.

During cross-examination, the transcript reflects the following:

Defense: And people hang around this area, right?
Officer: People hang around and use narcotics in that area. And buy narcotics, and sell narcotics.

The State then called a criminalist and Officer Simington as witnesses. Officer Simington testified that, on the evening in question, he observed J.R. sitting on steps in front of the store beside a plate of food. There was insufficient lighting to see clearly. He approached J.R., walking slightly behind Officer Amoris. Officer Simington did not see anything in J.R.'s hands and he did not see J.R. discard the narcotics. However, he did witness Officer Amoris retrieving the narcotics.

After the State's presentation of evidence, J.R. testified in his own defense. He stated that his mother was in the hospital on the evening of his arrest. He was waiting for his brother to return from work, and did not wish to remain home alone, thus he purchased food from a nearby café. After selecting a location to consume his meal, he was approached by the law enforcement officers. J.R. denied possessing or discarding any narcotics, but conceded that he observed Officer Amoris recover plastic-wrapped cocaine approximately five feet from his location.

During the State's closing, the prosecutor argued, without further objection, that the neighborhood where J.R. was arrested was "known for its issues." At the conclusion of the hearing, the trial court found J.R. to have committed a delinquent act, and, in so ruling, stated the following:

After listening to the testimony of the witnesses, and hearing argument of counsel, the sole count of the Petition is possession of a controlled substance, possession of cocaine, it comes down to a credibility determination.
Because the testimony adduced in the State's case in chief was sufficient to withstand a Judgment of Dismissal that there was a prima facie case established.
Then the Respondent took the stand. And he denied that he was in possession of anything. He said it was found approximately five feet away from him.
He didn't know it was there. The police picked it up, and it was approximately five feet away from him.
After listening to the testimony of the witnesses, and making credibility determinations, the Court will find the Respondent delinquent.

The court withheld adjudication of delinquency and placed J.R. on supervision. This appeal followed.

LEGAL ANALYSIS

J.R. contends that the admission of testimony characterizing the area as known for narcotics sales was improper. We agree. "In Florida, evidence that a criminal defendant was arrested in a high crime area is generally inadmissible." Latimore v. State, 819 So.2d 956, 958 (Fla. 4th DCA 2002). "Such evidence is usually considered irrelevant to the issue of guilt and unduly prejudicial because of its tendency to establish guilt by association." Id.; see also Fleurimond v. State, 10 So.3d 1140, 1146 (Fla. 3d DCA 2009) ("Florida law disapproves references to the area in which a defendant is observed as a location known to be a place where drugs are sold because such evidence is irrelevant to the issue of guilt.").

In E.M. v. State, 61 So.3d 1255, 1256 (Fla. 3d DCA 2011), an appeal of a juvenile delinquency proceeding, we considered the propriety of admitting testimony that the area where E.M. was observed was "what we call a hot area, a hot spots for narcotics," that had been checked "the prior week for narcotics." We found error, reiterating the principle that "Florida law disapproves references to the area in which a defendant is observed as a location known to be a place where drugs are sold because the evidence is irrelevant to the issue of guilt." Id. at 1256-57, citing State v. Johnson, 575 So.2d 1292 (Fla. 1991) and Gillion v. State, 573 So.2d 810, 811 (Fla. 1991).

Likewise, in Lowder v. State, 589 So.2d 933 (Fla. 3d DCA 1991), we considered a detective's comments characterizing the location of a crime as a "narcotics area." There we found that "[i]t is well settled that reference to the area in which a defendant is arrested as a location known to be inhabited by drug dealers is prohibited because such reference is irrelevant to the issue of guilt." Id. at 935, citing Beneby v. State, 354 So.2d 98 (Fla. 4th DCA 1978), cert. denied, 359 So.2d 1220 (Fla. 1978).

Here, law enforcement testimony regarding shootings, stabbings, and using, buying, and selling narcotics, in the neighborhood in which J.M. was apprehended, was irrelevant to a determination of delinquency. Thus, the trial court erred in admitting the testimony.

In Petion v. State, 48 So.3d 726 (Fla. 2010), the Florida Supreme Court considered the effect of improperly admitted evidence in the context of a bench trial. Noting the well-established legal proposition that a trial court is presumed to have disregarded inadmissible evidence, the court announced an exception to the general rule. Id. at 730. Specifically, the court found: "It is logical and practical that the presumption must be overcome where a trial court judge admits evidence over objection, because the judge would understandably believe that the evidence is properly before the court for consideration." Id. at 737. Thus, the court expressly rejected the initial presumption in this scenario, concluding:

When an appellate court is reviewing a bench trial, it should presume that the trial court judge rested its judgment on admissible evidence and disregarded inadmissible evidence, unless the record demonstrates that the presumption is rebutted through a specific finding of admissibility or another statement that demonstrates the trial court relied on the inadmissible evidence. When improper evidence is admitted over objection in this context, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume the trial court disregarded evidence that was specifically admitted as proper. In addition, the appellate court still must conduct a harmless error analysis to determine whether there is a reasonable possibility that the challenged error affected the final judgment. This harmless error analysis is necessary to prevent reversals based on the admission of inconsequential or immaterial evidence, which can sometimes occur during a bench trial for the purposes of expediency and conservation of judicial resources.

Id. at 737-38.

Here, although the trial court did not include the erroneously admitted evidence in its oral findings, it did not make an express statement on the record that the evidence did not contribute to its final determination. Thus, we cannot presume that the evidence was disregarded. Nonetheless, pursuant to Petion, we are directed to perform a harmless error analysis.

"[T]he mere identification of an area as a high crime area does not per se constitute prejudicial error." Dorsey v. State, 639 So.2d 158, 159 (Fla. 1st DCA 1994), citing Gillion, 573 So.2d 810. "Whether such testimony is unduly prejudicial depends upon the facts of each case." Id., citing Gillion, 573 So.2d at 812. "Where the proof of guilt is so convincing that a person would clearly have been found guilty even without collateral evidence introduced in violation of the evidence code, the violation of the code may be considered harmless." Petion, 48 So.3d at 735.

As aptly characterized by the trial judge, the case below hinged on a "credibility determination." Officer Simington never saw J.R. in possession of the narcotics. Thus, the case rested upon whether the trial court believed Officer Amaris observed J.R. throw the same plastic wrapper that was recovered containing narcotics or whether the trial court believed J.R.'s diametrically opposed version of events. The reference to the inadmissible testimony was not isolated, as the record contains two testimonial references to variations on the "high crime" nature of J.R.'s neighborhood. This error in admission was compounded by the prosecutor's prejudicial inference in closing argument.

Under these circumstances, and applying the holding of Petion, we are unable to conclude that the introduction of the inadmissible collateral evidence did not contribute to the finding of delinquency, thus, the error may not be considered harmless. 48 So.3d 726.

For the foregoing reasons, we reverse and remand for a new trial.

Reversed and remanded.


text:
    Alberto SILVA, Appellant, v. Mary H. SILVA, et al., Appellees.
    No. 3D17-2008
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Andrew M. Kassier, for appellant.
    Ashley Moody, Attorney General, and Toni C. Bernstein (Tallahassee), Senior Assistant Attorney General, for appellee, Department of Revenue.
    Before FERNANDEZ, LOGUE and MILLER, JJ.
   PER CURIAM.

On the record before us, we conclude that the trial court did not commit reversible error when it denied the Former Husband's Motion to Vacate. There was no basis upon which to impute income to the mother, see § 61.30, Fla. Stat., and the Department of Revenue established a substantial change in circumstances requiring an increase in the father's child support obligation, see § 61.14, Fla. Stat.

Affirmed.


author: EMAS, C.J.

text:
    Cendino TEME, Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. 3D17-1200
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Lauriston Law Firm, and Cynthia Lauriston (Fort Lauderdale), for appellant.
    Ashley Moody, Attorney General, and Toni C. Bernstein (Tallahassee), Senior Assistant Attorney General, for appellee Department of Revenue.
    Before EMAS, C.J., and SALTER and LINDSEY, JJ.
   EMAS, C.J.

Affirmed. See § 409.2563(2)(d), Fla. Stat. (2017) ; Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).


author: SUAREZ, Senior Judge.

text:
    Mister SIMMONS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-832
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.
   SUAREZ, Senior Judge.

Mister Simmons ("Simmons") appeals from a fifty year upward departure sentence imposed upon resentencing pursuant to State v. Thompson, 750 So.2d 643 (Fla. 1999). For the following reasons, we affirm the trial court's imposition of a departure sentence but remand for the trial court to reduce Simmons's sentence from fifty years to forty years.

I. FACTUAL AND PROCEDURAL HISTORY

Simmons was convicted of second degree murder with a firearm and possession of a firearm with a removed serial number. The crimes were committed on January 30, 1997. On April 26, 2000, the trial court sentenced Simmons to a term of natural life in prison as a habitual felony offender.

In December 2014, Simmons filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that his habitual offender sentence for second degree murder, which is a life felony, was invalid under State v. Thompson, 750 So.2d 643 (Fla. 1999). The trial court denied the motion, and Simmons appealed. This Court reversed and remanded for further proceedings, as the postconviction record failed to show conclusively that Simmons was entitled to no relief. Simmons v. State, 180 So.3d 244, 245 (Fla. 3d DCA 2015). This Court noted that Simmons's motion "may be well-taken" if he committed the offense on January 30, 1997, within the "window" for a Thompson error. Id.

On remand, the trial court resentenced Simmons under the 1994 version of the sentencing guidelines. The guidelines scoresheet indicated a permissible range of between 191 months and 318.875 months. The trial court sentenced Simmons to an upward departure sentence of fifty years, finding that Simmons engaged in an escalating pattern of criminal conduct. The trial court entered a written order, finding "that there is a reasonable justification for upward departure from the sentencing guidelines." Specifically, the trial court stated as follows:

In accordance with Florida Statutes section 921.001(1), the Court finds beyond a reasonable doubt that the defendant's prior convictions justify an upward departure from the sentencing guidelines. Specifically, this Court finds that the Defendant's prior convictions prove beyond and to the exclusion of every reasonable doubt that the Defendant engaged in an escalating course of conduct as described in 921.001(8),[ ] and that he is not amenable to rehabilitation or supervision.

The trial court relied upon the fact that Simmons committed five armed robberies in the two months prior to the second degree murder at issue in the instant case, as well as 1995 convictions for two counts of unoccupied burglary, one count of petit theft, one count of criminal mischief, and one count of extortion. Simmons's appeal from the fifty-year sentence follows.

II. STANDARD OF REVIEW

"The legality of a sentence is a question of law, and thus, subject to de novo review. Similarly, our review of the constitutionality of a sentence is de novo." Montgomery v. State, 230 So.3d 1256, 1258 (Fla. 5th DCA 2017), review denied, No. SC18-102, 2018 WL 6434797 (Fla. Dec. 7, 2018) (citations omitted).

III. ANALYSIS

Simmons raises three arguments on appeal. First, Simmons asserts that the trial court's imposition of an upward departure sentence without a jury determination that he engaged in an escalating pattern of criminal conduct violates the dictates of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Second, Simmons argues that he is entitled to relief claiming the trial court failed to specifically find that he was not amenable to rehabilitation or supervision and that such a specific finding is required by section 921.0016(3)(p), Florida Statutes (1993), before a departure sentence may be imposed. Third, Simmons argues that his fifty-year sentence is illegal. We address each argument in turn.

A. Apprendi and Blakely error

In Apprendi, the Supreme Court held "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. Subsequently, in Blakely, the Supreme Court held:

Our precedents make clear ... that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant . In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," and the judge exceeds his proper authority.

542 U.S. at 303-04, 124 S.Ct. 2531 (citations omitted).

It is well established that a violation of the principles set forth in Apprendi and Blakely is subject to harmless error review. Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (holding that Blakely violations are subject to harmless error review); Galindez v. State, 955 So.2d 517, 522-23 (Fla. 2007) (holding that harmless error analysis applies to Apprendi and Blakely error and explaining that "to the extent some of our pre- Apprendi decisions may suggest that the failure to submit factual issues to the jury is not subject to harmless error analysis, Recuenco has superseded them"); see also Williams v. State, 242 So.3d 280, 289-90 (Fla. 2018) (noting that in Galindez the court concluded that Apprendi violations are subject to harmless error review); Plott v. State, 148 So.3d 90, 94 (Fla. 2104) ("A claim of error under Apprendi and Blakely is subject to harmless error analysis."). For that reason, when "the record demonstrates beyond a reasonable doubt that a rational jury would have found" a fact that exposes the defendant to a sentence exceeding the statutory maximum, harmless error is shown. Galindez, 955 So.2d at 523, 524 (finding harmless error in the trial court's failure to have the jury make a finding of victim injury where there was "clear and uncontested record evidence" of victim injury).

Given these principles, we find that the trial court improperly enhanced Simmons's sentence in violation of Apprendi and Blakely when it imposed an upward departure sentence based upon its own, rather than the jury's, factual finding that Simmons engaged in an escalating course of criminal conduct pursuant to section 921.001(8). In other words, because the trial court could not have departed from the guidelines sentence under section 921.001(8) based only on the jury's finding that Simmons was guilty of second degree murder with a firearm and possession of a firearm with a removed serial number, a violation of Blakely and Apprendi occurred. See e.g., Plott, 148 So.3d at 95 (finding that upward departure sentences based on trial court's finding that the crimes were committed in an extraordinary cruel, egregious, vicious, and wicked manner were an unconstitutional enhancement under Apprendi and Blakely ); Plasencia v. State, 170 So.3d 865, 871 (Fla. 2d DCA 2015) ("Accordingly, under the holding in Blakely, the trial court improperly imposed a sentence in excess of Mr. Plasencia's guideline sentence based upon its findings that the murder was heinous, atrocious, or cruel and that the victim suffered extraordinary physical and emotional trauma in the absence of jury findings about those facts or Mr. Plasencia's admission to those facts."); Donohue v. State, 925 So.2d 1163 (Fla. 4th DCA 2006) (reversing trial court's upward departure from defendant's guideline sentence on the basis of victim's vulnerability pursuant to section 921.0016(3)(j), Florida Statutes, because the facts supporting vulnerability of the victim were neither found by the jury or admitted by defendant as required by Blakely and Apprendi ); cf. Brown v. State, 260 So.3d 147 (Fla. 2018) (holding that section 775.082(10), Florida Statutes (2015), violates Apprendi and Blakely because it requires the court, rather than the jury, to make the finding of dangerousness to the public necessary to increase the statutory maximum nonstate prison sanction).

As explained above, however, Blakely and Apprendi errors are subject to a harmless error analysis. We conclude, based on the record, that the trial court's violation of the principles set forth in Apprendi and Blakely was harmless beyond a reasonable doubt. In this case, Simmons was convicted in June 1995 of two counts of unoccupied burglary, one count of petit theft, one count of criminal mischief, and one count of extortion. Less than two years later, in December 1996, Simmons committed two armed robberies. The next month, January 1997, Simmons committed three armed robberies. That same month, on January 30, Simmons's crimes culminated with the second degree murder with a firearm committed in the instant case. Simmons's criminal activity, therefore, escalated over the course of two months from armed robbery to second degree murder, having begun less than two years earlier with non-violent crimes. Given this, a rational jury would have found that Simmons's prior record indicated an escalating pattern of criminal conduct, and any Apprendi and Blakely error is harmless. See Isaac v. State, 989 So.2d 1217, 1219 (Fla. 1st DCA 2008) (holding that any potential Apprendi or Blakely error in the trial court's failure to have the jury determine whether defendant's convictions indicated an escalating pattern of criminal conduct under section 921.001(8), Florida Statutes, was harmless where defendant's "convictions began with misdemeanors and, over the course of two to three years, escalated to a considerable number of first-degree felonies involving violent crimes and, notably, the use of firearms"); Dirk v. State, 114 So.3d 1024, 1025 (Fla. 5th DCA 2012) ("We affirm Dirk's upward departure sentence, finding that any error in the trial court's failure to apply Apprendi and Blakely, at Dirk's resentencing was harmless error. The record demonstrates beyond a reasonable doubt that a rational jury would have found that Dirk had engaged in an escalating pattern of criminal conduct." (citations omitted) ); see also, e.g., Donohue v. State, 979 So.2d 1058, 1060 (Fla. 4th DCA 2008).

B. Section 921.0016(3)(p), Florida Statutes

Simmons next argues that even if it was harmless error for the trial court to sentence him to a departure sentence in the absence of a jury's finding that he participated in an escalating pattern of criminal activity, he is still entitled to relief because under section 921.0016(3), the trial court was required and failed to specifically find that he was not amenable to rehabilitation. We disagree.

Section 921.0016(3)(p) does not require the trial court to find both that the defendant participated in an escalating pattern of criminal conduct and also that the defendant is not amenable to rehabilitation. The pertinent part of the statute states:

(3) Aggravating circumstances under which a departure from the sentencing guidelines is reasonably justified include, but are not limited to:
...
(p) The defendant is not amenable to rehabilitation or supervision, as evidenced by an escalating pattern of criminal conduct as described in s. 921.001(8).

§ 921.0016(3)(p), Fla. Stat. (1993).

Pursuant to section 921.0016(3)(p) the trial court is not required to find both that there was an escalating pattern of criminal conduct and that the defendant was not amenable to rehabilitation or supervision. The latter part of section 921.0016(3)(p) defines the first part. In other words, the fact that the defendant may not be amenable to rehabilitation is evidenced by-clearly shown by-the finding of an escalating pattern of criminal conduct. By finding that Simmons engaged in an escalating course of criminal conduct, the trial court established that he was not amenable to rehabilitation.

C. Simmons's fifty year sentence exceeds the legal maximum

Simmons argues that even if he is not entitled to relief under Apprendi and Blakely, his fifty year sentence must still be reduced to a forty year sentence. The State concedes that Simmons is correct on this point.

The offense at issue occurred on January 30, 1997, within the window period established in Trapp v. State, 760 So.2d 924, 928 (Fla. 2000), to challenge a guideline sentence under Heggs v. State, 759 So.2d 620 (Fla. 2000). As a result, Simmons was entitled to be resentenced under the 1994 version of the sentencing guidelines. See Kinsey v. State, 831 So.2d 1253, 1254 (Fla. 2d DCA 2002) ; Ned v. State, 758 So.2d 1286 (Fla. 3d DCA 2000). Under the 1994 version of the sentencing guidelines, the legal maximum for the offense of second degree murder was a term not exceeding forty years. § 772.082(3)(a), Fla. Stat. (1993); see also Miranda v. State, 832 So.2d 937, 941 (Fla. 3d DCA 2002). For that reason, Simmons's fifty year sentence is illegal. The parties also agree that pursuant to Miranda, the proper remedy is for Simmons's fifty year sentence to be reduced to forty years. Id. at 941.

IV. CONCLUSION

Because a rational jury would have found that Simmons's prior record indicated an escalating pattern of criminal conduct, the trial court's error in failing to follow the principles set forth in Apprendi and Blakely is harmless and we affirm the trial court's imposition of an upward departure sentence. Nonetheless, Simmons's fifty year sentence must be reduced as it exceeds the statutory maximum under the applicable 1994 penalty for a life felony. On remand, Simmons's fifty year sentence must be reduced to a forty year prison term. Miranda, 832 So.2d at 941. Simmons need not be present for the sentence reduction. Id.

Affirmed in part, reversed in part, and remanded for reduction of sentence.

      Section 921.001(8), Florida Statutes (1993), provides as follows:
      (8) A sentence may be imposed outside the guidelines based on credible facts, proven by a preponderance of the evidence, which demonstrate that the defendant's prior record, including offenses for which adjudication was withheld and the current criminal offense for which the defendant is being sentenced, indicate an escalating pattern of criminal conduct. The escalating pattern of criminal conduct may be evidenced by a progression from nonviolent to violent crimes, a progression of increasingly violent crimes, or a pattern of increasingly serious criminal activity.
      § 921.001(8), Fla. Stat. (1993).


author: LAGOA, Associate Judge.

text:
    Rhody CANCINO, Appellant, v. Fernando CANCINO, Appellee.
    No. 3D17-601
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Alvarez | Gonzalez | Menezes, LLP, and Ignacio M. Alvarez and Carlos F. Gonzalez, for appellant.
    Lourdes M. Fernandez, P.A., and Lourdes M. Fernandez, for appellee.
    Before SALTER and FERNANDEZ, JJ., and LAGOA, Associate Judge.
   LAGOA, Associate Judge.

Rhody Cancino (the "wife") appeals from an Order of Probation for Respondent/Former Wife Rhody Cancino for Intentional Violations of the Court's Final Judgment of Dissolution of Marriage and Final Order Ratifying Post Judgment Mediation Agreement (the "Probation Order"). The Probation Order finds the wife guilty of indirect criminal contempt for refusing to exercise shared parental responsibility. We reverse the Probation Order in its entirety.

I. FACTUAL AND PROCEDURAL HISTORY

The wife and Fernando Cancino (the "husband") were married in 2002. The husband and wife have three minor children from the marriage. On May 6, 2013, the husband filed his petition for dissolution of marriage and other relief. On October 3, 2013, the husband and wife entered into a Mediated Marital Settlement Agreement (the "MSA"). The MSA included the following provision:

1. PARENTING PLAN, TIME SHARING AND SHARED PARENTAL RESPONSIBILITY OF MINOR CHILDREN : The parties shall have time sharing with the minor children as set forth in Schedule "A" which is attached hereto, incorporated herein, and captioned "Schedule A". Both parties shall share parental responsibility for the children consistent with Florida Statute .

(emphasis added). On October 21, 2013, the trial court entered a Final Judgment of Dissolution of Marriage (the "Final Judgment"), which approved and incorporated the MSA into the Final Judgment.

The parties subsequently engaged in post-judgment mediation proceedings and on December 14, 2015, entered into a Second Post Judgment Mediation Agreement, which provided that any provision of the MSA not in conflict with the Second Post Judgment Mediation Agreement shall remain in full force and effect. On December 28, 2015, the trial court entered an Order Ratifying Second Post Judgment Mediation Agreement Dated December 14, 2015.

On May 5, 2016, the husband filed his Amended Verified Motion/Affidavit for Sanctions and for Order to Show Cause for Indirect Criminal Contempt Against Respondent/Wife Rhody Cancino for Intentional Violations of the Court's Final Judgment of Dissolution of Marriage and Final Order Ratifying Post Judgment Mediation Agreement. The husband asserted that the wife acted in contravention of the Final Judgment and MSA by exercising unilateral decision-making with regard to the healthcare and general welfare of their children. Specifically, the husband alleged that the wife obtained a diagnosis of attention deficit disorder for one of the parties' children from their pediatrician on February 5, 2015, without telling him prior to the appointment, and that she did not notify him of the diagnosis. The husband also alleged that the child had been screened for an accommodation plan at school based upon a consent form signed by the wife. The husband stated the wife failed to provide him with prior notification of non-emergency medical and dental appointments for the children. Finally, the husband alleged that "in October of 2015, [wife] made an appointment for [the parties' child] to enroll in a visual therapy program, and only gave [the husband] an approximately 45-minute notice of the appointment. [The husband] objected to the making of the appointment, and, after conducting thorough independent research, also objected to the visual therapy program."

Based upon the husband's allegations, on September 7, 2016, the trial court entered an Order to Show Cause for Indirect Criminal Contempt Against Respondent/Former Wife Rhody Cancino for Intentional Violations of the Court's Final Judgment of Dissolution of Marriage and Final Order Ratifying Post Judgment Mediation Agreement (the "Order to Show Cause"). The trial court conducted a hearing on the Order to Show Cause on December 5, 2016, and made the following findings:

I find that the [husband] has proven beyond a reasonable doubt that the [wife] has on at least 3 occasions intentionally violated the father's shared parental responsibility.
I find that you're guilty of indirect criminal contempt with respect to taking your child to the doctor for a fever. He gets to know before you do it.
The eyeglass incident, he gets to know, participate in the decision, before you do it.
The consent that you signed at the school for the screening and the assessment, you did it without his knowledge, without his consent. He didn't find out for months, so I find that you're guilty of indirect criminal contempt.

After finding the wife guilty of indirect criminal contempt, the trial court permitted the wife to present evidence of mitigating circumstance before sentencing. The following day, December 6, 2016, the trial court held a sentencing hearing, and found the wife guilty of indirect criminal contempt, withheld adjudication of guilt, and placed the wife on six months of non-reporting probation. The trial court also orally pronounced special conditions of probation.

On February 17, 2017, the trial court entered the Probation Order. The trial court found that the wife "has willfully refused to exercise shared parental responsibility by exercising unilateral decision-making with regards to the non-emergency healthcare of the minor children in direct contravention to the Final Judgment and MSA beyond a reasonable doubt on at least three (3) separate occasions." The Probation Order further stated:

8. Specifically, on February 5, 2015, [the child's pediatrician] diagnosed one of the minor children ... with Attention Deficit Disorder ("ADD"); at no time prior did Former Wife notify Former Husband that an appointment was scheduled on February 5, 2015, nor did Former Wife inform Former Husband of said diagnosis. Instead, Former Wife took or transmitted the diagnosis to the minor child's school, which caused a process toward the creation and implementation a Section 504 Accommodation Plan to begin.... Additionally, Former Husband learned the minor child had been screen[ed] based on a form signed unilaterally by Former Wife when the Former Husband and Former Wife attended a meeting regarding the diagnosis on April 23, 2015. Former Wife deliberately concealed both the screening and the diagnosis from the Former Husband thereby depriving Former Husband of exercising shared parental responsibility and being involved in the health care decisions relative to the minor child in a meaningful and integral way.
9. Former Wife violated shared parental responsibility beyond a reasonable doubt by failing to notify Former Husband of the minor children's medical appointments, in advance, on at least three (3) non-emergency occasions, inclusive of the ADD diagnosis as set forth above. Former Wife did not provide Former Husband with prior notification of a January 10, 2015, non-emergency appointment for [the child] at the pediatrician for a fever and a sore throat and further failed to timely inform Former Husband of an experimental visual therapy program appointment for [the child] by providing Former Husband with only a couple hours' notice for the appointment in Fort Lauderdale.

The wife's appeal from the Probation Order ensued.

II. STANDARD OF REVIEW

Generally, "[a] judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error." DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005). However, "[w]hen a trial court holds a party in contempt based on that party's failure to follow an order that does not 'clearly and definitely' make the party aware of what the party must do, the standard of review is legal error." Kane v. Sanders, 232 So.3d 1107, 1111 (Fla. 3d DCA 2017) (quoting Rojo v. Rojo, 84 So.3d 1259, 1261 (Fla. 3d DCA 2012) ); see also Ford v. Ford, 153 So.3d 315, 318 (Fla. 4th DCA 2014) ("[W]here the trial court bases contempt upon noncompliance with something an order does not say, 'the standard of review is legal error, not abuse of discretion.' " (quoting Harris v. Hampton, 70 So.3d 747, 749 (Fla. 4th DCA 2011) ) ); Wilcoxon v. Moller, 132 So.3d 281, 286 (Fla. 4th DCA 2014).

III. ANALYSIS

We begin our analysis by addressing the written Probation Order's failure to conform to the trial court's oral pronouncement of the factual basis for the finding of contempt. To the extent a written contempt order fails to conform to the trial court's oral pronouncements, the contempt order must be reversed. Romero v. Romero, 916 So.2d 952, 954 (Fla. 3d DCA 2005) ; see also Glick v. Glick, 874 So.2d 1238, 1241 (Fla. 4th DCA 2004). This is so because of the well-established principle that a trial court's oral pronouncement controls over its written order. Cajuste v. Herlitschek, 204 So.3d 80, 83 (Fla. 4th DCA 2016) ; Hampton Manor, Inc. v. Fortner, 141 So.3d 1260, 1262 (Fla. 5th DCA 2014) ; Glick, 874 So.2d at 1241 ; see also Shacker v. State, 106 So.3d 36, 36 (Fla. 3d DCA 2013) (reversing order revoking probation to the extent the order did not "correctly reflect the oral pronouncement" regarding commission of violations of probation); Ulano v. Anderson, 626 So.2d 1112, 1112 (Fla. 3d DCA 1993) ("Reversal is required where a final judgment is inconsistent with a trial court's oral pronouncements.").

Here, the trial court's oral ruling that the wife was guilty of indirect criminal contempt was based upon three specific incidences: (1) "taking your child to the doctor for a fever" without the husband knowing before she did so; (2) "the eyeglass incident, he gets to know, participate in the decision, before you do it"; and (3) signing the consent form permitting the school to institute a screening/assessment of the parties' child. With regard to the "eyeglass incident," however, the Probation Order does not conform to the trial court's oral pronouncement. Specifically, the Probation Order finds the wife in contempt for failing to timely notify the husband of the appointment "by providing Former Husband with only a couple hours' notice for the appointment in Fort Lauderdale," whereas the trial court's oral pronouncement found the wife guilty of indirect criminal contempt for not permitting the husband to "participate in the decision, before you do it." Given this conflict, the oral pronouncement controls.

Additionally, the Probation Order significantly expands upon the trial court's oral pronouncement by finding the wife in contempt for failing to notify the husband prior to a February 5, 2015, pediatrician appointment at which the wife obtained a diagnosis of attention deficit disorder for one of the parties' children, and for failing to inform the husband of the attention deficient disorder diagnosis. The trial court's oral ruling, however, did not contain a finding of guilt on these bases, and was instead limited only to the wife's signing of the consent form for screening/assessment of the parties' child. We therefore confine our analysis to the remaining oral pronouncements-taking the child to a doctor because of a fever, the "eyeglass incident," and the wife's signing of the consent form. See, e.g., Cajuste, 204 So.3d at 83-84 (conducting analysis based on trial court's oral pronouncement where conflict existed between oral pronouncement and written orders).

Turning to the issue on appeal, the wife argues that the Probation Order must be reversed because the evidence failed to establish that she intentionally violated a clear and precise court order. We agree.

Unlike civil contempt, which is used to "obtain compliance on the part of a person subject to an order of the court[,] ... [t]he purpose of criminal contempt ... is to punish . Criminal contempt proceedings are utilized to vindicate the authority of the court or to punish for an intentional violation of an order of the court."

Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla. 1985) (emphasis in original). "Criminal contempt proceedings are either direct or indirect. Conduct committed outside the presence of the court is indirect criminal contempt." Plank v. State, 190 So.3d 594, 606 (Fla. 2016) (citation omitted); accord Pugliese v. Pugliese, 347 So.2d 422, 425 (Fla. 1977) ("Where an act is committed out of the presence of the court, the proceeding to punish is for indirect (sometimes called constructive) contempt.").

Where a charge of criminal contempt "is based upon the violation of a court order, the contemnor's intent to violate the order is a necessary element of the offense." Haas v. State, 196 So.3d 515, 523 (Fla. 2d DCA 2016). Intentional violation of court's order must be proven beyond a reasonable doubt. Id. Furthermore, "[b]ecause criminal contempt is 'a crime in the ordinary sense,' imposition of criminal contempt sanctions requires that a contemnor be afforded the same constitutional due process protections afforded to criminal defendants." Parisi v. Broward County, 769 So.2d 359, 364 (Fla. 2000) (quoting Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) ). To that end, Florida Rule of Criminal Procedure 3.840, which governs a prosecution for indirect criminal contempt, "requires that the court issue an order to show cause with reasonable time allowed for preparation of the defense and further provides that the defendant is 'entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and testify in his or her own defense.' " Plank, 190 So.3d at 607 (quoting Fla. R. Crim. P. 3.840(d) ).

"It is well established that a party cannot be sanctioned for contempt for violating a court directive or order which is not clear and definite as to how a party is to comply with the court's command." Ross Dress for Less Va., Inc. v. Castro, 134 So.3d 511, 523 (Fla. 3d DCA 2014) ; accord Smith v. State, 954 So.2d 1191, 1194 (Fla. 3d DCA 2007) ("When a finding of contempt is based upon a violation of a court order, that order must be one which clearly and definitely makes the person aware of its command."); Kranis v. Kranis, 313 So.2d 135, 139 (Fla. 3d DCA 1975). For that reason, "when a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order." Keitel v. Keitel, 716 So.2d 842, 844 (Fla. 4th DCA 1998).

Moreover, because a finding of contempt must be based upon a violation of the clear terms of a court order, a provision which is merely inherent in the trial court's order will not support a finding of contempt. Id. at 844 ("[I]mplied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt."); see Wilcoxon, 132 So.3d at 287 ("A court cannot base contempt upon noncompliance with something an order does not say, and we will not read implications into an order to justify contempt."); Reder v. Miller, 102 So.3d 742, 744 (Fla. 2d DCA 2012) ("While [appellant's] acts may have violated the 'spirit' or 'intent' of the trial court's orders, a finding of contempt requires the violation of the letter of an order-not its spirit.").

Relevant for our purposes, an order entered within the context of dissolution proceedings which is not sufficiently explicit and precise as to a party's obligations will not support a finding of contempt. For example, in Kane v. Sanders, 232 So.3d 1107 (Fla. 3d DCA 2017), the parenting plan contained a "right of first refusal" clause, which stated: " 'To the extent the party entitled to access with the child is unable to enjoy access to the child for whatever reason, then the other parent shall be entitled to the right of first refusal to care for the child over any other third party.' " Id. at 1109 n.1. The father filed a motion for contempt, alleging that he was deprived of his right of first refusal on five occasions when the mother left "the children at home with child care for a matter of hours." Id. at 1109. The trial court granted the father's motion for contempt. Id. at 1110. In reversing and vacating the trial court's order finding the mother in contempt, this Court concluded that "the challenged order fails to contain a 'clear and definite command' sufficient to notify a party of his or her required conduct and is not enforceable via contempt." Id. at 1111 (quoting Miranda v. Miranda, 566 So.2d 16, 18 (Fla. 4th DCA 1990) ); see also Wilcoxon, 132 So.3d at 287 (finding that trial court erred in holding wife in contempt of order which "instructed that '[t]he Former Wife's current husband shall not be present anywhere that the Former Husband is' " because the order "was not specific enough as to what Former Wife's duties were in regard to her current husband"); Marcus v. Marcus, 902 So.2d 259, 263 (Fla. 4th DCA 2005) (reversing order finding wife in contempt and concluding that the "temporary relief order was not specific enough to put the wife on notice of the conduct expected of her when one of the children simply refuses to stay with the husband and runs away when he is sent there"); Cooley v. Moody, 884 So.2d 143, 145 (Fla. 2d DCA 2004) (reversing finding of contempt for mother's failure to effectuate a transfer of custody where "there is no language in the trial court's temporary custody order that directs the Mother to do so" even though "[i]t may have been the trial court's intent" to so order); Keitel, 716 So. 2d at 844 (holding that trial court erred in finding wife in contempt for violating provision that gave husband "reasonable visitation" when she relocated out of state and stating that "[a]lthough [husband's] visitation rights are implicitly obstructed, implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt"); Lawrence v. Lawrence, 384 So.2d 279, 280 (Fla. 4th DCA 1980) ("We find that the trial court's order was not sufficiently explicit and precise with reference to the time for payment of arrearages to support a conclusion that appellant willfully or wantonly violated that order."); Kranis, 313 So.2d at 139 (holding that the trial court abused its discretion in denying the wife's motion to vacate contempt order because the final judgement's provision for the husband's "reasonable rights of visitation" was not " 'explicit and precise', as a command or judicial direction to the wife").

Given these principles, we find that the Final Judgment, which incorporated the terms of the MSA, was not sufficiently explicit and precise with regard to the wife's obligations to exercise shared parental responsibility concerning the non-emergency health care of the parties' children to support a finding of indirect criminal contempt. Shared parental responsibility, as defined in section 61.046(17), Florida Statutes (2012), "means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly." Here, the trial court found that the wife intentionally violated the father's shared parental responsibility by taking the parties' child to the doctor for a fever, taking the parties' child to an eyeglass appointment where the husband did not "participate in the decision, before you do it," and signing a consent form permitting the school to institute a screening/assessment of the parties' child.

The Final Judgment, however, provides only that "[b]oth parties shall share parental responsibility for the children consistent with Florida Statute." This provision is not so clear and definite as to instruct the wife regarding her obligation to confer with the husband concerning non-emergency medical treatment of the parties' children. Indeed, the provision fails to explicitly set forth the parties' obligation under the Florida Statutes-to "confer with each other so that major decisions affecting the welfare" of the children will be determined jointly. § 61.046(17), Fla. Stat. (2012). And although the provision references the "Florida Statute," the provision does not direct the parties to the specific section at issue, section 61.046(17). Moreover, any contention that the statutory obligation of "shared parental responsibility" is inherent in the final judgment because it references the Florida Statutes in general must fail because "implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt." Keitel, 716 So.2d at 844. In sum, there is nothing in the Final Judgment to put the wife on notice as to what she is required to do in order to comply with the trial court's command to "share parental responsibility for the children consistent with Florida Statute." The Probation Order finding the wife guilty of indirect criminal contempt therefore must be reversed.

Our sister court's opinion in Sabatini v. Wigh, 98 So.3d 244 (Fla. 1st DCA 2012), serves as a useful comparison. In Sabatini, the wife was held in contempt for her failure to comply with the shared parental responsibility requirements in the parties' final judgment of dissolution. Id. at 244-45. Specifically, the final judgment

directed the parties to share parental responsibility and jointly determine major decisions affecting the welfare of the child, such as her education . The judgment required the parties to work cooperatively to resolve any disputes, and if they were unable to do so on their own, they were required to consult with a reasonably qualified third party in an effort to resolve the dispute.

Id. at 245 (emphasis added). The parties agreed to enroll their child in a school near the husband's home in Jacksonville. Id. When the wife enrolled the child in a different school located in Palm Coast without consulting with the husband, the husband sought an order finding the wife in contempt. Id. The trial court found that the wife "failed to comply with the shared parental responsibility requirements of the dissolution judgment by unilaterally enrolling the child in the Palm Coast school in contravention of the parties' agreement that the child would be enrolled in the Jacksonville school near the former husband's home." Id. at 245-46. In affirming the trial court's finding of contempt, the First District stated that the final judgment contained a "clear directive," and held that the trial court did not abuse its discretion in finding that the wife "willfully failed to comply with the requirement in the dissolution judgment that she jointly decide issues related to the child's education with the former husband." Id. at 246. Unlike the circumstances in Sabatini, the Final Judgment in this case does not state that the parties shall "jointly determine major decisions affecting the welfare of the child[ren]," and we are unable to conclude that it sets forth a "clear directive" as to the wife's requirements in exercising shared parental responsibility regarding nonemergency medical treatment of the children. Cf. Ford, 153 So.3d at 318 (concluding that parenting plan included "sufficiently precise commands" such that the wife could be held in contempt for violating specific provisions).

IV. CONCLUSION

Shared parental responsibility is a "court-ordered relationship," § 61.046(17), Fla. Stat., and the requirements of that relationship must be stated explicitly in order to support a finding of contempt on the basis of a party's willful refusal to follow its dictates. See Cooley, 884 So.2d at 145 ("[T]he law also imposes upon the court the requirement to be explicit and precise in its commands if strict compliance is to be exacted in the form of a contempt sanction."). Here, the provision that the parties "shall share parental responsibility for the children consistent with Florida Statute" fails to set forth a sufficiently precise command so as to "put the [wife] on notice of what the [wife] may or may not do." Keitel, 716 So.2d at 844.

As a result, the Probation Order finding the wife in indirect criminal contempt for intentionally refusing to exercise shared parental responsibility cannot stand. Accordingly, we reverse the Probation Order in its entirety.

Reversed.

      The Probation Order was stayed pending the wife's appeal in this Court.

      Although not relevant here because the trial court withheld adjudication, we note that a judgment of indirect criminal contempt need not contain written findings of fact where oral findings are made on the record. Gidden v. State, 613 So.2d 457, 460 (Fla. 1993) ; Sandelier v. State, 238 So.3d 831, 835 n.1 (Fla. 4th DCA 2018).

      During the wife's testimony in support of mitigating circumstances subsequent to the trial court's finding of guilt, the trial court reiterated that its finding of indirect criminal contempt was based upon "[e]yeglasses, fever, consent at school."

      Because we are reversing on this basis, we do not address the remaining issues raised by the wife.

      This principle applies within the context of both civil contempt and criminal contempt. See Wilcoxon, 132 So.3d at 286.