author: BLACK, Judge.

text:
    Judith PEARSON, as Personal Representative of the Estate of Donald Pearson, Deceased, Appellant/Cross-Appellee, v. PHILIP MORRIS USA INC., Appellee/Cross-Appellee.
    Case No. 2D17-3636
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019 Rehearing Denied May 08, 2019
    Thomas J. Seider, Celene H. Humphries, and Maegen P. Luka of Brannock & Humphries, Tampa; Eric D. Roslansky of The Ruth Law Team, St. Petersburg; and Lee D. Gunn IV of Gunn Law Group, P.A., Tampa, for Appellant/Cross-Appellee.
    Cathy A. Kamm of Shook, Hardy & Bacon L.L.P., Tampa; and David M. Menichetti and Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, DC, for Appellee/Cross-Appellant.
   BLACK, Judge.

Judith Pearson, as personal representative of the Estate of Donald Pearson, appeals the judgment entered in favor of Philip Morris USA Inc. in this Engle progeny case. Mrs. Pearson raises three issues on appeal, only two of which we address: the court's improper denial of a challenge to a prospective juror for cause, requiring the Estate to use a peremptory challenge to excuse him; and the court's ruling allowing Philip Morris to exercise an out-of-turn peremptory strike. We reverse and remand for a new trial. Our reversal for a new trial renders moot Philip Morris's cross-appeal.

During voir dire, counsel for both the Estate and Philip Morris questioned the venire in an effort to reveal any biases or prejudices. One of the initial questions posed by the Estate was, "When you heard this is a man who smoked cigarettes, smoked them till [sic] he got sick and ultimately he died from cigarette smoke and now his family is suing the tobacco company that sold those cigarettes, how many of you said, What? What? Why?" A number of prospective jurors responded affirmatively to the question, one of whom was Juror Ray. And when individually questioned about his response, Juror Ray expressed his opinion that the Estate would begin "in the red" and many questions would need to be answered for the Estate "to move." Juror Ray stated that he believed smoking to be a choice, "more something they just decide to do on their own rather than really being pushed into it one way or another." He also stated that while he believed he could keep an open mind and hear the evidence, the Estate "would have an uphill argument to make."

After further questioning of the venire, the Estate's counsel returned to Juror Ray and asked him to remind counsel what his thoughts were with regard to the Estate's lawsuit. Juror Ray responded that he felt the Estate would start "a little behind" because smoking is "a matter of personal choice" and "that's a large barrier on a situation like this." He also stated that his opinion would be measured against the evidence but would be difficult to set aside.

The court granted a number of cause challenges to prospective jurors, a few based on the their opinions with regard to smoking being a conscious choice and the Estate starting at a disadvantage or with a strike against it. The Estate sought to excuse Juror Ray for cause based on his statements that the Estate would begin "in the red" and that smoking was a personal choice. After hearing argument from both parties, the court denied the cause challenge.

The court then turned to peremptory challenges, allowing three per side which could only be used on the six jurors then on the panel. The court would not permit peremptory challenges on alternate jurors:

So if we get to alternates and you've got a peremptory, you've got to come back and use it against someone who will be in the six. And then you don't - can't use alternate picks back in the six. And then you have an alternate for - you have a strike for the first alternate and the second alternate.
Once we have the first alternate, if you didn't use a strike, you don't get to save it and use it on the second. So you don't end up with two on the second.

The Estate used one peremptory challenge initially; the panel was then agreed upon, subject to backstrikes. The record is somewhat confusing as to what exactly happened next, but what emerges is that although the Estate's counsel clearly exercised the first alternate challenge, he also sought to clarify the identity of the first alternate juror. Juror Padgett was the first alternate; however, counsel for the Estate appears to have mistakenly believed that someone other than Juror Padgett was the first alternate. While the Estate's counsel was attempting to resolve the identity of the first alternate, Philip Morris's attorney was permitted to backstrike a panel member, out of turn, which resulted in Juror Padgett being seated on the jury and negating the Estate's first alternate strike. The following exchange occurred between the Estate's counsel and the trial court:

Estate's counsel: All right. So just so I understand what happened. I was counting to see if I was on the correct alternate, and then I heard, "I'll exercise a peremptory."
The court: That's right.
Estate's counsel: You allowed him to interrupt the alternate challenge to use a peremptory.
The court: I did.
Estate's counsel: Okay. I guess I have to object to the interruption in my exercise of the alternate.
The court: All right. You can object.

Philip Morris used its three peremptory challenges on backstrikes, and the Estate used its final two peremptory challenges on backstrikes, including striking Juror Ray. Counsel for the Estate argued: "In light of your denial for cause, plaintiff renews for cause and/or requests an additional peremptory challenge.... We would have - we would have exercised on Padgett if cause for Ray had not been denied." The court denied the cause challenge and the request for an additional peremptory challenge. Juror Padgett ultimately served as the foreperson of the jury.

"We apply the abuse of discretion standard to a trial court's decision to deny a challenge for cause to a potential juror." Pelham v. Walker, 135 So.3d 1114, 1116 (Fla. 2d DCA 2013). A cause challenge "must be granted if there is any reasonable doubt regarding a potential juror's impartiality." Id."[C]lose cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving doubt as to impartiality." Four Wood Consulting, LLC v. Fyne, 981 So.2d 2, 5 (Fla. 4th DCA 2007). And although "a trial court generally has a 'unique vantage point' to assess the appropriateness of a challenge for cause," the court's assessment must be "fairly supported by the record." Embleton v. Senatus, 993 So.2d 593, 595 (Fla. 4th DCA 2008) (first quoting Weinstein Design Grp., Inc. v. Fielder, 884 So.2d 990, 994 (Fla. 4th DCA 2004) ; and then quoting Trotter v. State, 576 So.2d 691, 694 (Fla. 1990) ).

A trial court's determination of whether a juror can render a verdict based on the evidence presented involves an evaluation of "all of the questions and answers posed to or received from the juror." Although a juror's assurances of impartiality may suggest to a court that the denial of a challenge for cause may be appropriate, such assurances are neither determinative nor definitive. Assurances of impartiality after a proposed juror has announced prejudice [are] questionable at best.

Matarranz v. State, 133 So.3d 473, 484-85 (Fla. 2013) (citations omitted) (quoting Banks v. State, 46 So.3d 989, 995 (Fla. 2010) ). In this case, Juror Ray did not assure impartiality; he did not declare that he could "render an impartial verdict according to the evidence." Cf. § 913.03(10), Fla. Stat. (2017) ("[T]he formation of an opinion or impression regarding the guilt or innocence of the defendant shall not be a sufficient ground for challenge to a juror if he or she declares and the court determines that he or she can render an impartial verdict according to the evidence."). Rather, he declared that he would measure his opinion against the evidence; his opinion remained "a large barrier" in a case like this one. See Kochalka v. Bourgeois, 162 So.3d 1122, 1125 (Fla. 2d DCA 2015) ("[Juror's] acknowledgment of bias in favor of one party-regardless of which party it was-should have disqualified her from serving on the jury."); Pelham, 135 So.3d at 1117 (concluding juror should have been excused for cause where "[s]ome of [the juror's] answers were equivocal, but she was 'absolutely' certain when she stated that she was defense-oriented"); Embleton, 993 So.2d at 595 ("A juror should be excluded for cause when her statements confirm that she cannot set aside 'the edge' that she would give one party at the beginning of the case."). The court abused its discretion in denying the Estate's cause challenge to Juror Ray. See Weinstein Design Grp., 884 So.2d at 995 (concluding court abused its discretion in denying cause challenges to jurors who "confirmed that they could not set aside 'the edge' they would give" to a party); Jaffe v. Applebaum, 830 So.2d 136, 138 (Fla. 4th DCA 2002) (concluding court abused its discretion in denying challenge for cause where juror admitted that plaintiffs would be starting out with "a half strike" against them).

"[E]xpenditure of a peremptory challenge to cure the trial court's improper denial of a cause challenge constitutes reversible error if a [party] exhausts all remaining peremptory challenges and can show that an objectionable juror has served on the jury." Busby v. State, 894 So.2d 88, 96-97 (Fla. 2004). Here, had the court excluded Juror Ray for cause, the Estate would have exercised its last peremptory challenge on Juror Padgett. The court's error in failing to excuse Juror Ray for cause was compounded when the court failed to follow its own procedure which would have permitted the Estate to exercise its alternate strike on Juror Padgett. Instead, Philip Morris was permitted-out of turn-to backstrike a juror, placing Juror Padgett on the jury and otherwise requiring the use of a peremptory challenge to excuse her. See Trotter, 576 So.2d at 693 ("[The objectionable] juror must be an individual who actually sat on the jury and whom the [party] either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted."); Tedder v. Video Elecs., Inc., 491 So.2d 533, 535 (Fla. 1986) ("[T]he only fair scheme is to allow the parties to exercise their challenges singularly, alternately, and orally so that, before a party exercises a peremptory challenge, he has before him the full panel from which the challenge is to be made." (emphasis added) (quoting Ter Keurst v. Miami Elevator Co., 486 So.2d 547, 549 (Fla. 1986) ) ).

The trial court abused its discretion in failing to excuse Juror Ray for cause, wrongfully forcing the Estate to exhaust its peremptory challenges. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

VILLANTI and MORRIS, JJ., Concur.

      Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).

      The Estate moved for a mistrial based on the court's decision to negate its use of the alternate strike and to allow Philip Morris's backstrike to stand. Interestingly, the motion was denied despite the fact that Philip Morris did not oppose granting a mistrial, albeit for different reasons.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Norman D. REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-0351
    District Court of Appeal of Florida, First District.
    March 18, 2019 Rehearing Denied May 15, 2019
    Norman D. Reynolds, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Because the notice of appeal was not timely filed, this case is hereby dismissed for lack of jurisdiction. See Fla. R. App. P. 9.110(b) ; Peltz v. District Court of Appeal, Third Dist. , 605 So.2d 865, 866 (Fla. 1992).

Wetherell, Osterhaus, and Winokur, JJ., concur.


text:
    Brian M. CASEY, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D19-0616
    District Court of Appeal of Florida, First District.
    March 15, 2019 Rehearing Denied May 13, 2019
    Brian M. Casey, pro se, Petitioner.
    No appearance for Respondent.
   Per Curiam.

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

Roberts, Ray, and Jay, JJ., concur.


text:
    Rakesh VERMA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0514
    District Court of Appeal of Florida, First District.
    March 11, 2019 Rehearing Denied May 15, 2019
    Rakesh Verma, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Wetherell, Osterhaus, and Winokur, JJ., concur.


author: M.K. Thomas, J.

text:
    Ronald BROWN, Jr., Jill Brown, Gregory Burris, Lauri Burris, Howard F. Robbins, Richard Lehmkuhl, Jacksonville Management Concepts, Inc., J. Franklin Properties, LLC, Smokers Video I, Inc., Smokers Video III, Inc., Smokers Video IV, Inc., Appellants, v. Sheriff Mike WILLIAMS, Appellee.
    No. 1D17-1475
    District Court of Appeal of Florida, First District.
    March 28, 2019 Rehearing Denied May 13, 2019
    Steven G. Mason of Steven G. Mason, P.A., Altamonte Springs; and Mitchell A. Stone of Stone & Lockett, P.A., Jacksonville, for Appellants.
    Melissa Nelson, State Attorney, and Jeffrey Davenport, Assistant State Attorney, of the Office of the State Attorney, Fourth Judicial Circuit, Jacksonville, for Appellee.
   M.K. Thomas, J.

In this forfeiture proceeding, Appellants ("Smokers Video") challenge the trial court's finding of probable cause sufficient for Appellee's ("Sheriff") seizure of its property, currency and accounts exceeding $ 975,000.00, and a BMW. Because probable cause exists to sustain the seizure, we affirm.

I. Facts

Because of challenges arising from the creation, distribution, and sale of synthetic cannabinoids, which are marketed to provide a "legal high," law enforcement initiated an investigation focusing on the delivery and sale of these drugs. Smokers Video is in the business of selling various synthetic marijuana products. As part of a years-long investigation, law enforcement focused on three stores owned by Smokers Video. Detectives engaged in at least eighty undercover buys of "prepackaged envelopes of suspected synthetic cannabinoids intended for human consumption." As a result of the investigation, the Sheriff seized property of Smokers Video and initiated a forfeiture proceeding under the Florida Contraband Forfeiture Act ("the Act"), the Florida Racketeer Influenced and Corrupt Organizations Act ("RICO"), section 895.05, Florida Statutes. The property seized is alleged to have been obtained by Smokers Video through the illegal activity of selling synthetic marijuana, including: (1) violations of section 893.13, Florida Statutes, governing sale of a controlled substance; (2) violations of section 893.0356, Florida Statutes, governing sale of controlled substance, as analog; and (3) violations of section 499.0051(13), Florida Statutes, governing knowingly selling, delivering, or holding or offering for sale any drug that is adulterated or misbranded.

Following the seizure of its property, Smokers Video filed a Motion to Dismiss Forfeiture Action for Lack of Probable Cause and Motion to Return Assets. The parties agreed that the motions would be presented to the trial court for disposition without a hearing but in conjunction with and after consideration of the deposition and affidavit of Detective Hester, a narcotics officer involved in the investigation.

Finding probable cause to support the seizure, the trial court denied the motions. The trial court held "a Schedule I substance, which by definition is illegal, [is] capable of being 'misbranded' or 'adulterated' within the meaning of Chapter 499 of the Florida Statutes."

On appeal, Smokers Video argues that the trial court erred in holding that Schedule I substances are capable of being mislabeled under Chapter 499, the Florida Drug and Cosmetic Act. It concedes that virtually all of the substances it allegedly sold and possessed are Schedule I controlled substances. However, Smokers Video argues that because these substances are inherently illegal, it would defy logic to hold that inherently illegal drugs can become even more illegal if they are mislabeled.

II. Analysis

The standard to review a trial court's application of the probable cause standard to the facts is de novo . Hatcher v. State , 15 So.3d 929, 931 (Fla. 1st DCA 2009) ; See also In re Forfeiture of 1994 Ford Explorer , 203 So.3d 992, 994 (Fla. 2d DCA 2016) ;

City of Coral Springs v. Forfeiture of A 1997 Ford Ranger Pickup Truck , 803 So.2d 847, 849 (Fla. 4th DCA 2002). A trial court's interpretation of a statute is reviewed de novo . See Velez v. Miami-Dade Cty. Police Dep't , 934 So.2d 1162, 1164 (Fla. 2006).

Forfeiture proceedings move forward in two stages: a seizure stage and a forfeiture stage. See Gomez v. Vill. of Pinecrest, 41 So.3d 180, 184 (Fla. 2010). At the seizure stage, the trial court only determines whether the seizure is supported by probable cause to believe that the property has been used in violation of the Act. In re Forfeiture of: $221,898 in U.S. Currency, 106 So.3d 47, 49 (Fla. 2d DCA 2013) ; In re Forfeiture of 1994 Ford Explorer , 203 So.2d at 993-94. The required showing is something "less than a prima facie case, but more than a mere suspicion." In re Forfeiture of Seven Thousand Dollars U.S. Currency, 942 So.2d 1039, 1042 (Fla. 2d DCA 2006) (citing Dep't of Highway Safety & Motor Vehicles v. Jones , 780 So.2d 949, 951 (Fla. 4th DCA 2001) ).

Smokers Video contends the trial court, in determining illegal drugs were capable of being "misbranded" or "adulterated" in violation of Chapter 499, inappropriately made a forfeiture-stage determination in the seizure stage of the proceedings by making an improper finding of criminal guilt. We disagree.

The trial court determined only that such a violation could occur even if the drugs being sold were already illegal. The court answered only one question - "whether a Schedule I substance, which by definition is illegal, is capable of being 'misbranded' or 'adulterated' within the meaning of Chapter 499, Florida Statutes." This question is inherent in considering whether, under the facts, there is "sufficient probability to warrant a reasonable belief that the property was used or obtained in violation of the Act." In re Forfeiture of 1994 Ford Explorer , 203 So.2d at 993. The trial court did not determine if Smokers Video did, in fact, commit a violation.

In finding sufficient evidence to create a reasonable belief that illegal drugs are capable of "misbranding" or "adulteration," the trial court did not make specific findings of fact related to Smokers Video, but rather, relied on generalized hypotheticals:

For example, cocaine, for all its very real evils, does not always kill those who use it. If, however, cocaine is "cut with" rat poison, arsenic, and tiny shards of glass, it has most certainly been adulterated from its pure form. The harmful but not necessarily fatal illegal drug has been adulterated so that it will almost certainly be fatal. At the same time, it is virtually certain that the seller will misbrand the cocaine, as he or she is unlikely to label it as containing not only the illegal cocaine but also the deadly materials added to the cocaine.

In response, Smokers Video argues that for drugs to be governed by Chapter 499, those drugs must have a legitimate/medical use in the marketplace. In short, the drugs must be legal for Chapter 499 to apply. However, this argument is contradicted by the plain meaning of the Chapter 499. It governs a broad range of drugs, including illegal drugs. It defines "drug" as an article that is "[i]ntended to affect the structure or any function of the body of humans or other animals." § 499.003(18), Fla. Stat. (2015). Here, the deposition and affidavit submitted in support of the forfeiture complaint established that the synthetic marijuana sold by Smokers Video was marketed as a legal high, so it was intended to affect the structure or function of the human body. Thus, it is governed by Chapter 499.

More compelling is the even broader wording in section 499.0051(12), Florida Statutes (2015), which criminalizes the adulterating, misbranding, and false advertisement of "any drug" as follows:

[Violations include:]
(a) The manufacture, repackaging, sale, delivery, or holding or offering for sale of any drug that is adulterated or misbranded or has otherwise been rendered unfit for human or animal use.
(b) The adulteration or misbranding of any drug intended for further distribution .
[...]
(d) The dissemination of any false or misleading advertisement of a drug .
(e) The use, on the labeling of any drug or in any advertisement relating to such drug, of any representation or suggestion that an application of the drug is effective when it is not or that the drug complies with this part when it does not.

(Emphasis added.) The comprehensive terminology of "any drug" in the statute, on its face, belies any claim by Smokers Video that the Legislature intended for only legal drugs to be subject to Chapter 499.

Smokers Video contends that even if the plain meaning of the statute allows for any drug, whether legal or illegal, to be misbranded or adulterated, this Court should determine that the trial court's interpretation would lead to absurd results. See State v. Burris , 875 So.2d 408, 410 (Fla. 2004) (noting the statute's plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent). We find this argument meritless. The purpose of Chapter 499 includes protecting the public not only from physical harm but also from merchandising deceit: "[This part is intended to] [s]afeguard the public health and promote the public welfare by protecting the public from injury by product use and by merchandising deceit involving drugs, devices, and cosmetics." § 499.002(1)(a), Fla. Stat. (2015).

Below, Smokers Video consistently phrased the issue as whether illegal drugs like cocaine and heroin are subject to the branding and labeling requirements of Chapter 499 and continuously compared the current facts to a typical street corner cocaine sale. Yet, Smokers Video operated multiple businesses (video stores); within those stores, it sold the synthetic marijuana which, at least in the beginning, was marketed as a "legal high." In creating the synthetic marijuana, Smokers Video sent the drugs to a laboratory for testing to ensure specific banned substances were not present. Smokers Video's goal was to sell a product that people intended to use to get high or to obtain certain effects.

Smokers Video concedes the drugs it sold were illegal under Chapter 893. Chapter 499 was created, in part, to protect the public from "injury by product use" and by "merchandising deceit involving drugs." § 499.002, Fla. Stat. Because we agree with the trial court that probable cause existed to support the seizure, the order is affirmed.

AFFIRMED .

Roberts and Kelsey, JJ., concur.

      In the related criminal case, the defendants filed a writ of prohibition with this Court requesting charges be dismissed as their actions did not fall within the prescriptions of Chapter 499, Florida Statutes. The writ was denied as the defendants failed to show that the trial court was attempting to act in excess of its jurisdiction. See Burris v. State , 255 So.3d 996 (Fla. 1st DCA 2018).

      Smokers Video does not argue that probable cause is lacking with respect to the specific property seized. It challenges only the trial court's determination that probable cause exists that violations of Chapter 499 and section 893.0356, Florida Statutes, may have occurred.


text:
    Eva Electris CANNIE aka Ava Electris Cannie aka Eve Helene Cannie, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2534
    District Court of Appeal of Florida, First District.
    April 2, 2019 Rehearing Denied May 13, 2019
    Eva Electris Cannie, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Kelsey, and Winsor, JJ., concur.


author: Wetherell, J.

text:
    Michael Paul RODGERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4325
    District Court of Appeal of Florida, First District.
    April 3, 2019 Rehearing Denied May 14, 2019
    Andy Thomas, Public Defender, and David Alan Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Wetherell, J.

The appellant, Michael Paul Rodgers, was convicted of first-degree murder for killing a man on a sailboat. Rodgers argues on appeal that he was denied due process because he was not competent to stand trial. We reject this argument, finding no abuse of discretion in the trial court's determination that Rodgers was competent to proceed. Accordingly, we affirm Rodgers' conviction and his resulting life sentence.

FACTS

The victim was strangled to death on his sailboat while it was anchored near Fort McRee in Escambia County. His body was found buried on a nearby beach. Police traced activity on the victim's credit card to a hotel in Louisiana where Rodgers was staying under the victim's name. The victim's property-including his passport card, laptop computer, and cell phone-was in Rodgers' possession when he was arrested.

Rodgers confessed to killing the victim, but his explanation for the killing was delusional. Specifically, he claimed that after he got aboard the victim's sailboat, he discovered that the victim's laptop had coordinates that were associated with some sort of bomb plot against the United States and that he decided to kill the victim because he (Rodgers) is a "messianic Muslim" and he was "not too fond of somebody being an American here claiming that Islam was involved and Islam had nothing to do with it."

Shortly after Rodgers was indicted, the prosecutor requested the appointment of a mental health expert to evaluate Rodgers' competency because he "made several illogical, nonreality based statements, such as having a chip implanted in his head by a government entity, and having been hypnotized by the FBI." The trial court granted the request and appointed Dr. Scott Benson to evaluate whether Rodgers was competent to proceed.

Dr. Benson's report discussed Rodgers' history of mental illness and his bizarre statements in this case, but concluded that he was competent to proceed based on his appreciation of the charges against him; appreciation of the range and nature of possible penalties; understanding of the adversarial legal process; capacity to disclose to his attorney pertinent facts surrounding the offense; ability to relate to his attorney; ability to assist his attorney in planning a defense; capacity to realistically challenge prosecution witnesses; ability to manifest appropriate courtroom behavior; capacity to testify relevantly; motivation to help himself in the legal process; and capacity to cope with the stress of incarceration prior to trial. The report also noted that Rodgers claimed to have exaggerated his mental health condition in a previous case in order to get a diagnosis that was helpful to him in that case.

The trial court found Rodgers competent to proceed based on Dr. Benson's report. Shortly thereafter, in response to Rodgers' request to again represent himself, the trial court appointed another mental health expert, Dr. David Josephs, to evaluate whether Rodgers was competent to represent himself.

Dr. Josephs concluded that Rodgers was not competent to represent himself because, among other things, he was unable to communicate clearly and his decision-making ability was impaired. However, Dr. Josephs' report also explained that "[c]ertain competency related skills appear largely intact and did not appear to fluctuate to a disqualifying degree with his symptomatology," including Rodgers' "appreciation of the charges and allegations against him, the range and nature of possible penalties, understanding of the adversarial nature of the legal process, and his capacity to disclose pertinent facts surrounding the alleged offense."

The trial court denied Rodgers' request to represent himself based on Dr. Josephs' report, and the case proceeded to trial with Rodgers represented by appointed counsel. Rodgers' counsel informed the trial court at the outset of the trial that Rodgers attempted to fire him and that he "has not participated in his defense," but when the court asked whether counsel had any indication that Rodgers does not understand what is going on, counsel explained that "he [Rodgers] is clearly making a choice not to talk to me" and opined that "it doesn't indicate to me that he is incompetent any way."

Rodgers made numerous bizarre comments-including an assertion that his father is "a supreme leader of Iran" and a request for "diplomatic immunity"-and frequently acted out during trial, which led to his removal from the courtroom multiple times. The trial court did not view Rodgers' conduct as an indication of incompetency, but rather expressly found it to be a conscious and deliberate effort to disrupt the trial. Likewise, defense counsel expressed his opinion that Rodgers was attempting to "cause his own mistrial" through his disruptive behavior.

The jury found Rodgers guilty as charged. The trial court adjudicated Rodgers guilty and-after a sentencing hearing during which Rodgers went on an incoherent diatribe against the United States and asserted that, among other things, he was "an Islam Prophet," "an Iranian foreign national," "a Native American," and "a Messianic Muslim"-the court sentenced him to life in prison.

This appeal followed.

ANALYSIS

Rodgers challenges the trial court's initial determination that he was competent to stand trial as well as the court's failure to order another competency evaluation after he continued to make bizarre comments. We review both issues under the abuse of discretion standard of review. See Alston v. State , 894 So.2d 46, 54 (Fla. 2004) ("A trial court's decision regarding competency will stand absent a showing of abuse of discretion."); Lawrence v. State , 846 So.2d 440, 447 (Fla. 2003) ("A trial court's decision regarding whether to hold a competency hearing will be upheld absent an abuse of discretion."). A trial court's decision does not constitute an abuse of discretion "unless no reasonable person would take the view adopted by the trial court." Alston , 894 So.2d at 54 (quoting Scott v. State , 717 So.2d 908, 911 (Fla. 1998) ).

Not every defendant whose mental health problems manifest in bizarre or irrational behavior is legally incompetent to stand trial. See Sheheane v. State , 228 So.3d 1178, 1179 n.1 (Fla. 1st DCA 2017) ("A defendant can be mentally ill but still legally competent."). Rather, "[t]he test for whether a defendant is competent to stand trial is 'whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.' " Peede v. State , 955 So.2d 480, 488 (Fla. 2007) (quoting Dusky v. United States , 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) ).

Here, we find no abuse of discretion in the trial court's initial determination that Rodgers was competent to stand trial despite his delusional explanation for the killing and his history of mental illness because the court's determination was based on Dr. Benson's report, which was uncontradicted and included a thorough analysis of the required factors. See Fla. R. Crim. P. 3.211(a)(2) (listing the factors to be considered by the expert when evaluating the defendant's competency to proceed). We have no authority to substitute our judgment for that of the trial court-or Dr. Benson-on the question of Rodgers' competency to stand trial. See Alston , 894 So.2d at 54 ("Where there is sufficient evidence to support the conclusion of the lower court, [this Court] may not substitute [its] judgment for that of the trial judge.") (alterations in original) (quoting Mason v. State , 597 So.2d 776, 779 (Fla. 1992) ).

We also find no abuse of discretion in the trial court's failure to order another competency evaluation after Rodgers continued to make bizarre comments before and during trial because once Rodgers was found to be competent, a subsequent competency evaluation is only required "if a bona fide question as to the defendant's competency has been raised." Boyd v. State , 910 So.2d 167, 187 (Fla. 2005) ; see also Fla. R. Crim P. 3.210(b) (requiring the trial court to hold a hearing to determine the defendant's competency when the court "has reasonable ground to believe that the defendant is not mentally competent to proceed").

Here, there is ample record support for the trial court's implicit determination that there were no reasonable grounds to believe that Rodgers was not competent to stand trial. First, although Dr. Josephs determined that Rodgers was not competent to represent himself, that does not call into question his competency to stand trial because "there is a heightened competency standard for actually representing oneself at trial." Wall v. State , 238 So.3d 127, 141 (Fla. 2018) (citing Indiana v. Edwards , 554 U.S. 164, 177-78, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) ). Second, consistent with Dr. Benson's determination that Rodgers was competent to stand trial, Dr. Josephs specifically noted in his report that Rodgers had "[c]ertain competency-related skills ... largely intact," including the ability to appreciate the charges against him and assist with his defense. Third, Rodgers told the trial court and Dr. Benson that he had previously exaggerated his mental condition in a prior proceeding. Finally, although Rodgers made bizarre comments and behaved inappropriately during trial, both the trial court and defense counsel viewed his actions as a conscious effort to disrupt the trial rather than an indication of incompetency.

CONCLUSION

For the reasons stated above, we reject Rodgers' due process claim concerning his competency to stand trial and affirm his first-degree murder conviction and resulting life sentence.

AFFIRMED .

Roberts and Makar, JJ., concur.

      It is unclear how Rodgers got aboard the sailboat. He told investigators that he did not know the victim beforehand and that the victim was just in "[t]he wrong place at the wrong time."

      Rodgers similarly told the trial court that he "played that role" in a prior case in which he was found not guilty by reason of insanity. Additionally, at trial, Rodgers told the court that "[w]hoever is ... trying to make it out like I'm mentally incompetent, they can stick it up their ass."

      Rodgers was permitted to represent himself after a Faretta hearing held in connection with his first appearance, but he was subsequently appointed counsel when, during another Faretta hearing, he told the trial court that he has a "chip implanted in the frontal lobe of my brain that allows somebody to see and hear through my ears."

      Early in the trial, the court stated:
      [F]or the record, I've observed Mr. Rodgers several times. When he wants to behave, he's certainly able to behave. [He] [s]at for over an hour, approximately, yesterday for jury selection, acted basically appropriate, spoke in appropriate volume with his attorney when he needed to. And then, when he decided he didn't want to behave, he acted out, so he was removed, and is fully within his control.
      Later in the trial, the court stated:
      For the record, I just wanted to make it clear that Mr. Rodgers was able to maintain his decorum for an extended period of time, was acting rationally, except when he decided, in the opinion of the Court, to make a conscious decision to disobey the Court's direction. It all seemed to be very conscious and very deliberate and something that was within his control to do or not do as he chose.

      Rodgers argues that the de novo standard of review applies because it is a violation of due process to try and convict an incompetent defendant, but that argument is premised on the assumption that the trial court should have found Rodgers to be incompetent to stand trial. Thus, Rodgers is really challenging the propriety of the trial court's competency determination, which is subject to the abuse of discretion standard of review.


text:
    Eva Electris CANNIE aka Ava Electris Cannie aka Eve Helene Cannie, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2531
    District Court of Appeal of Florida, First District.
    April 2, 2019 Rehearing Denied May 13, 2019
    Eva Electris Cannie, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Kelsey, and Winsor, JJ., concur.


author: Lewis, J.

text:
    Gerial Martell DELOACH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1944
    District Court of Appeal of Florida, First District.
    April 3, 2019 Rehearing Denied May 15, 2019
    David J. Joffe of Joffe Law, P.A., Fort Lauderdale, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Lewis, J.

Appellant, Gerial Martell Deloach, appeals his conviction and sentence for first-degree premeditated murder, arguing that the trial court erred in denying his motion to suppress and his motion for judgment of acquittal and in making various evidentiary rulings. Finding no merit in Appellant's arguments, we affirm and write only to address the denial of Appellant's motions.

After being indicted on the offense of first-degree premeditated murder with a firearm, Appellant filed a motion to suppress his statements made to law enforcement, asserting that he did not freely, knowingly, and intelligently waive his Miranda rights because of the "several different mood and mind altering drugs" he had taken. During the hearing on the motion, Appellant testified that he had been in a car accident about a month before the police interview at issue, suffered a head injury, and began taking drugs such as "Xanax, Molly and weed," which he allegedly took prior to being interviewed by law enforcement. Appellant testified that he did not understand the rights waiver form that he signed. On cross-examination, he testified that he voluntarily went to the sheriff's office to speak to authorities. When asked if he knew that he was going to have to speak to them about the victim's murder, he affirmatively responded. When asked if any law enforcement officers twisted his arm or forced or threatened him, he replied, "No, sir." When asked if he told investigators that he was on drugs, he replied, "He never asked."

Investigator Michelle Wert testified that she had spoken with Appellant three times before the interview at issue. She did not see any signs of impairment from Appellant on the day of the interview. Appellant was attentive and appeared to understand what was being asked of him. There was never a point where Wert was concerned that Appellant did not understand what was going on. Wert testified, "In all three, four interviews I had with him, he was pretty consistent. His demeanor was the same. Speech was the same. I didn't detect any slurring, any slouching, any sleepiness, any hyperactivity."

In denying the motion to suppress, the trial court set forth in part:

[T]he Court had the opportunity to review the - I guess it's about a four and a half hour recorded interview. So the Court has the benefit of that.
The Court's heard the testimony today of the officer and [Appellant]. Based on what the Court has observed and the testimony taken, the Court's going to deny the defendant's motion to suppress.
The Court finds that [Appellant] waived his right to counsel. He understood his rights. He voluntarily waived those rights. In the video, [Appellant's] speech was coherent. He answered questions appropriately and coherently. His answers to the questions were in response to those questions.
Also, the Court finds that he engaged in intelligent conversation with both deputies. Sometimes one deputy was in the room and one was out. And both deputies, he engaged in intelligent conversation and understood the questions that were asked and, again, gave answers that - appropriate answers responsive to that questions [sic].
Also, the case law is that as a general rule intoxicants or drugs really go to the credibility rather than the admissibility of a confession. It's only in very extreme circumstances that the admissibility of a confession can be suppressed based on someone being under the influence. In this case there's absolutely no evidence of any extreme influence.
Frankly, the Court doesn't find that there's much evidence of any influence of drugs based on the Court's observation of the recorded interview and the testimony given today. So for all those reasons, I'm going to deny the defendant's motion to suppress.

During trial, Investigator Wert testified that Appellant admitted to driving the vehicle that was involved in the offense. One of the State's witnesses who heard gunshots looked at one suspect in the eye and saw the other man who fired "one last shot" get in the driver's side of the vehicle. Another witness testified that Appellant's codefendant told her to go inside her home because something was "fixing to happen" and pulled up his shirt to show the witness a gun. Three seconds later, the witness heard gunshots. A third witness who had seen three people outside of the vehicle Appellant admitted to driving later saw the victim being followed by one of the other two men prior to his murder. A fourth witness saw the victim exit the vehicle before one of the other two men waved the victim back their way. A hat that was found near the victim belonged to Appellant.

The medical examiner testified that the victim suffered nine gunshot wounds and that some of the exit wounds were much larger than other exit wounds, which made her "think that it was probably two different weapons" that were used.

Appellant's counsel moved for a judgment of acquittal, arguing in part that the State could not exclude the reasonable hypothesis that it was Appellant's codefendant who fired both weapons. As for the principal theory, counsel argued that there was no evidence that Appellant knew his codefendant intended to kill the victim. The prosecutor argued in response:

In this case, the two men are alone with the victim, armed mere minutes before the killing. The evidence is they drop him off. They then circle back around. [Appellant] is driving the car. They circle back around in the same spot back in by the gate. The victim is then shot with two different weapons. There's been testimony that the driver fired at least one shot.
[Appellant] drove the car. His hat is right by the victim. His prints are on the car. The victim's blood is there. He's then driving away from the scene and ends up ditching the car and then denies ever being there to all 20 police.

The trial court denied the motion, finding that the State presented a prima facie case. The jury found Appellant guilty as charged. The trial court adjudicated Appellant guilty and sentenced him to life imprisonment. This appeal followed.

Appellant first argues that the trial court erred in denying his motion to suppress evidence. No evidence can be used against a defendant unless Miranda warnings were given and waiver of the defendant's rights is established. Ramirez v. State , 739 So.2d 568, 573 (Fla. 1999). Whether the waiver of Miranda rights is valid is determined through two separate inquiries:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Id. at 575 (citation omitted). The State bears the burden of proving by a preponderance of the evidence that a defendant's waiver of Miranda rights was knowing, intelligent, and voluntary, especially where a confession is obtained after the administration of Miranda warnings. Id. The ultimate issue of voluntariness is a legal, rather than a factual, question. Id.

A trial court's ruling on a motion to suppress is presumed correct, and an appellate court must interpret the evidence and reasonable inferences derived therefrom in a manner most favorable to sustaining the trial court's ruling. State v. Dickey , 203 So.3d 958, 961 (Fla. 1st DCA 2016). It is for the trial court to make credibility determinations and to weigh the evidence. Id. An appellate court defers to the trial court's findings of fact if supported by competent, substantial evidence, but reviews de novo the application of the law to those facts. Id.

Appellant argues that there was evidence to support a finding that he did not waive his rights knowingly, intelligently, and voluntarily, such as his head injury, emotional problems, and drug use. What Appellant fails to recognize, however, is that there was also evidence to support the trial court's ruling. See Hollinger v. State , 620 So.2d 1242, 1243 (Fla. 1993) ("While the evidence might also support a contrary view, we believe there is sufficient evidence to support [the trial court's] finding."). Appellant testified on cross-examination during the suppression hearing that he voluntarily went to the sheriff's office and knew that he would be talking to investigators. Investigator Wert, who had spoken to Appellant on a number of occasions before the interview at issue, saw no signs of impairment from Appellant on the day of the interview. Appellant was attentive and appeared to understand what was being asked of him. Wert testified, "In all three, four interviews I had with him, he was pretty consistent. His demeanor was the same. Speech was the same. I didn't detect any slurring, any slouching, any sleepiness, any hyperactivity." The trial court, which viewed the interview video, found that Appellant's speech was coherent and that he appropriately answered questions. The court also found that Appellant engaged in intelligent conversations and that there was "absolutely" no evidence that he was under the influence of intoxicants or drugs. Thus, Appellant has failed to show that the trial court erred in denying his motion to suppress. See Rigterink v. State , 193 So.3d 846, 864 (Fla. 2016) (holding that the trial court's finding that the appellant failed to establish that his drug use demonstrated that his statement was not freely, knowingly, and voluntarily made was supported by competent, substantial evidence); Orme v. State , 677 So.2d 258, 262-63 (Fla. 1996) (acknowledging that there was conflicting evidence in the record as to whether the appellant was too intoxicated with drugs to knowingly and voluntarily waive his right to silence but setting forth "[h]owever the officers who actually took Orme's statements testified that he was coherent and responsive" and "the statements were taped, and the trial court after reviewing these tapes, concluded that the evidence supported the state's theory").

Appellant next argues that the trial court erred in denying his motion for judgment of acquittal. An appellate court reviews a trial court's denial of such a motion de novo to determine whether the evidence is legally sufficient to sustain a conviction; in doing so, the court must consider the evidence and all reasonable inferences therefrom in a light most favorable to the State. Kemp v. State , 166 So.3d 213, 216 (Fla. 1st DCA 2015). In a case where the State submitted some direct evidence, the denial of a motion for judgment of acquittal will be affirmed if it is supported by competent, substantial evidence. McWatters v. State , 36 So.3d 613, 631 (Fla. 2010). In a wholly circumstantial evidence case, however, a special standard applies whereby a conviction cannot be sustained unless there is competent, substantial evidence inconsistent with any reasonable hypothesis of innocence. Id. ; see also Knight v. State , 186 So.3d 1005, 1010 (Fla. 2016) (explaining that the circumstantial evidence standard applies when all of the evidence of the defendant's guilt is circumstantial, not when any element is supported only by circumstantial evidence); Kocaker v. State , 119 So.3d 1214, 1225 (Fla. 2013) (explaining that the State is only required to introduce competent evidence inconsistent with the defendant's theory of events and need not conclusively rebut every possible variation of events that may be inferred).

According to Appellant, the State's evidence was not sufficient to establish the offense of first-degree murder because the testimony that he was the actual shooter was questionable. However, we agree with the State that a rational factfinder could have determined that Appellant shot the victim. As we explained, Appellant told law enforcement that he drove the vehicle involved in the offense. One of the State's witnesses testified that the man she saw fire a shot got into the driver's side of the vehicle. Moreover, the medical examiner testified that the victim was probably shot by two different weapons given the bullets' exit wounds. The State is also correct that a rational factfinder could have determined that Appellant acted as a principal to the offense by driving the vehicle. See Ferrell v. State , 686 So.2d 1324, 1329 (Fla. 1996) (holding that while the appellant may not have actually pulled the trigger, the evidence established that he played an integral part in the crimes and in luring the victim to his death); Hall v. State , 403 So.2d 1321, 1323 (Fla. 1981) (holding that the appellant drove the victim's car to the wooded area while "Ruffin" followed in his own car and the two were together at the site of the victim's assault and death and holding that the facts supported the jury's conclusion that even if the appellant did not pull the trigger, he was a principal to the crime of murder). Based upon the evidence, the trial court did not err in denying Appellant's motion for judgment of acquittal.

Accordingly, we affirm Appellant's conviction and sentence.

AFFIRMED .

Wetherell and Winokur, JJ., concur.

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


text:
    Eddie DORSEY, a/k/a Eddie Dorsey, Jr., Audrey Dorsey, Cynthia Riggins, Johnnie Mae Dorsey, James Dorsey, Lillie Dorsey a/k/a Lillie Ruth Dorsey, Jocelyn Hightower, Lorenzo McCray, and Dolors McCray, Appellants, v. Franklin ROBINSON, Josephine Robinson, and Mary Thompson, Appellees.
    No. 1D18-1297
    District Court of Appeal of Florida, First District.
    April 5, 2019 Rehearing Denied May 15, 2019
    Wendy S. Loquasto of Fox & Loquasto, LLC, Tallahassee, for Appellants.
    Joseph R. Boyd and James M. Durant, Jr., of Boyd & Durant, P.L., Tallahassee, for Appellees.
   Per Curiam.

Eddie Dorsey, Audrey Dorsey, Cynthia Riggins, Johnnie Mae Dorsey, James Dorsey, Lillie Dorsey, Jocelyn Hightower, Lorenzo McCray, and Dolors McCray (Appellants) appeal a final judgment quieting title to property in favor of Franklin Robinson, Josephine Robinson, and Mary Thompson (Appellees). Appellants raise four issues on appeal, only the first of which merits discussion. Appellants argue that the trial court erred by extinguishing the fee simple interests of Eddie, Johnnie Mae, James, and Lillie. For the reasons that follow, we disagree with Appellants and affirm the final judgment.

BACKGROUND

In 1911, Lizzie McClary and Ella McCollough, two sisters, obtained a forty-acre property by a recorded deed. In 1985, a recorded deed vested the southern twenty acres of the forty-acre property in Lillie Dorsey, Mary Thompson, and Josephine Robinson, who are sisters and some of the grandchildren of Ella. In fact, all the parties are descendants of Ella. In 2005, the three sisters signed two deeds-one deed vested in Lillie two acres of the southern twenty-acre parcel, which included a house, and the other deed vested in Mary and Josephine the remaining eighteen acres of the southern twenty-acre parcel. In 2007, Mary and Josephine deeded the eighteen acres to themselves and to Josephine's son Franklin Robinson.

In 2016, Appellees brought an action against Appellants for quieting title, ejectment, trespass (which was later dismissed), and declaratory judgment. Appellants filed a counter-complaint for quieting title and partition. The parties disputed in part what interests, if any, Appellants have in the eighteen acres of the southern twenty-acre parcel. Appellants claimed they are fee simple owners, whereas Appellees contended that they have at most a possessory interest. Appellees stipulated that Eddie Dorsey, Audrey Dorsey, Lorenzo McCray, Dolors McCray, Johnnie Mae Dorsey, and Jocelyn Hightower satisfy the possession exception of section 712.03(3), Florida Statutes, to the Marketable Record Title Act ("MRTA") and, thus, have a right of possession with regard to the property they currently possess.

Following a non-jury trial, the trial court entered a final judgment, finding that the evidence supported Appellees' concession that the six Appellants meet the possession exception of section 712.03(3), as well as their claim that Lillie Dorsey and James Dorsey do not meet that exception as to the eighteen acres. The court further found that Appellants have no legal interest of record and did not demonstrate that they have a fee simple or other ownership interest in the land. The court concluded that the 1985 deed is a valid root of title under the MRTA and that except for the Appellants who are in possession of certain areas of the eighteen acres pursuant to section 712.03(3), the rest of the Appellants have no rights to ownership or possession in the eighteen acres. Accordingly, the court quieted all rights, title, and interest to the eighteen acres in Appellees, except for the Appellants who have a possessory interest under section 712.03(3). This appeal followed.

ANALYSIS

Questions of statutory construction are reviewed de novo . W. Fla. Reg'l Med. Ctr., Inc. v. See , 79 So.3d 1, 8 (Fla. 2012). The polestar of statutory construction is legislative intent, and to discern legislative intent, the court must first look to the plain and obvious meaning of the statute's text, which may be discerned from a dictionary. Id. at 9. If the statutory language is clear and unambiguous, the court must apply that unequivocal meaning and may not resort to the rules of statutory construction. Id.

The MRTA was enacted in 1963 and provides that:

Any person having the legal capacity to own land in this state, who, alone or together with her or his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03. A person shall have a marketable record title when the public records disclosed a record title transaction affecting the title to the land which has been of record for not less than 30 years purporting to create such estate either in:
(1) The person claiming such estate; or
(2) Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.

§ 712.02, Fla. Stat. (2016). Subject to section 712.03, "a marketable record title is free and clear of all estates, interests, claims, or charges, the existence of which depends upon any act, title transaction, event, or omission that occurred before the effective date of the root of title"; except as provided in section 712.03, "all such estates, interests, claims, or charges ... are declared to be null and void." § 712.04, Fla. Stat. (2016).

The legislative intent is for the MRTA to "be liberally construed" to effectuate its "purpose of simplifying and facilitating land title transactions." § 712.10, Fla. Stat. (2016). The MRTA accomplishes that purpose in two ways: "First, it gives to a person marketable title when public records disclose a title transaction, of record for at least thirty years, which purports to create the estate either in that person or in someone else from whom the estate has passed to that person." ITT Rayonier, Inc. v. Wadsworth , 346 So.2d 1004, 1008-09 (Fla. 1977). Second, subject to enumerated exceptions, "it extinguishes all interests in the estate which predate the root of title.' " Id. ; see also § 712.10, Fla. Stat. (stating that the MRTA accomplishes its purpose "by allowing persons to rely on a record title as described in s. 712.02 subject only to such limitations as appear in s. 712.03"). As such, "[t]he chief purpose of the act is to extinguish stale claims and ancient defects against the title to real property, and, accordingly, limit the period of [title] search." Cirelli v. Ent , 885 So.2d 423, 433 (Fla. 5th DCA 2004) (quoting City of Miami v. St. Joe Paper Co. , 364 So.2d 439 (Fla. 1978) ); see also Fla. Dep't of Transp. v. Clipper Bay Investments, LLC , 160 So.3d 858, 863-65 (Fla. 2015) (noting that the MRTA is a curative act and eliminates stale claims to real property, with certain enumerated exceptions, and that the burden of demonstrating the applicability of an exception to marketability rests with the party claiming the exception).

Here, there is no dispute that the 1985 deed is a valid root of title and Appellees have had an unbroken chain of title for at least thirty years since the deed was recorded. The question is whether some of the Appellants meet an exception to marketability.

There are nine exceptions to marketability under section 712.03, which provides in part:

Such marketable record title shall not affect or extinguish the following rights:
....
(3) Rights of any person in possession of the lands, so long as such person is in such possession.
(4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.

§ 712.03, Fla. Stat. (2016).

The parties disagree on what constitutes "possession" under section 712.03(3), which is the only exception at issue. The MRTA does not define the term "possession"; thus, we look to the dictionary definition to discern the plain meaning of the statute's text. See Boatman v. Hardee , 254 So.3d 604, 608 (Fla. 1st DCA 2018) (" 'When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary.' " (quoting Reform Party of Florida v. Black , 885 So.2d 303, 312 (Fla. 2004) ). "Possession" is defined as occupancy or control. See BLACK'S LAW DICTIONARY (10th ed. 2014) (defining "possession" as "[t]he fact of having or holding property in one's power; the exercise of dominion over property," "[t]he right under which one may exercise control over something to the exclusion of all others," "[s]omething that a person owns or controls"); MERRIAM-WEBSTER DICTIONARY (defining "possession" as "control or occupancy of property without regard to ownership," "ownership," "something owned, occupied, or controlled"); OXFORD DICTIONARIES (defining "possession" in law as "[v]isible power or control over something, as distinct from lawful ownership; holding or occupancy as distinct from ownership"); see also Dep't of Transp. v. Mid-Peninsula Realty Inv. Grp., LLC , 171 So.3d 771, 772 (Fla. 2d DCA 2015) (finding that the trial court properly resorted to the dictionaries to define "possession" under section 712.03(3) as "visible power or control over something, as distinct from lawful ownership; holding or occupancy; control or occupancy," and concluding that the evidence of the appellant's employees periodically traversing the land to access a canal and its actions in asking a company to move sheds and vehicles from the land was insufficient to satisfy the definition of possession).

Appellants argue that the trial court erred by finding that they failed to establish possession for purposes of section 712.03(3) as to James and Lillie Dorsey. The evidence shows that James owns a mobile home on the southern twenty-acre parcel, but he moved off the property in 1982. Upon moving, he allowed his ex-wife to continue living in the home until her death in 2014. The home has been unoccupied since then, though he continues to pay the yearly mobile home tag, otherwise maintains the home, and cuts the grass. He testified that he has absolute control over the mobile home and would not need Appellees' permission to lease it. As such, it is undisputed that James does not occupy the property, and the question becomes whether he has sufficient control to satisfy section 712.03(3). While James has control over the mobile home, we conclude that the evidence is insufficient to establish his control of the lands to prove the applicability of the exception. See § 712.03(3), Fla. Stat. (requiring "possession of the lands"). We find significant the evidence that at least part of James's mobile home is located on the two acres Lillie owns, not on the eighteen acres at issue.

As for Lillie, while the evidence demonstrates that she has been residing on the southern twenty-acre parcel, it likewise establishes that she relinquished her interest in the eighteen acres at issue in exchange for the remaining two acres through the 2005 deed so she could build a home on her lot. Appellants claim on appeal that Lillie's home is actually located on the eighteen acres, not on her two acres as found by the trial court, but there is no competent, substantial evidence in the record to support that assertion. Therefore, we agree with the trial court's conclusion that James and Lillie Dorsey do not satisfy the section 712.03(3) exception to marketability and, thus, have no interest in the eighteen acres at issue.

Appellants further argue that the trial court erred by reducing the inherited fee simple interests of Johnnie Mae and Eddie Dorsey to possessory interests. Appellants base their ownership claim on two 1970s probate orders that determined the heirs of Ella McCollough and Lizzie McClary and the shares of those heirs' interest in the sisters' estates, and they point to the laws of intestate succession. However, as the trial court found, Appellants presented no evidence of a legal interest of record in the eighteen acres. Nor did they present competent, substantial evidence about when various family members died, whether they died intestate, and who survived them. See § 732.101, Fla. Stat. (2016) (providing that any part of an estate not disposed of by will passes to the decedent's heirs as prescribed in the probate code and the decedent's death is the event that vests the heirs' right to the intestate property); § 732.102, Fla. Stat. (2016) (setting forth the intestate share of the surviving spouse depending on whether the decedent and/or surviving spouse have any surviving descendants); § 732.103, Fla. Stat. (2016) (setting forth the share of the other heirs). Therefore, we agree with the trial court's finding that Appellants failed to establish a fee simple interest in the subject property.

Accordingly, we affirm the final judgment.

AFFIRMED .

Lewis, Rowe, and Makar, JJ., concur.


text:
    Jeffrey Allen WEDDINGTON, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-501
    District Court of Appeal of Florida, First District.
    April 9, 2019 Rehearing Denied May 15, 2019
    Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Wetherell, J.

Appellant was convicted of sexual battery, battery, and false imprisonment and sentenced to 25 years in prison followed by 10 years of sex offender probation. Appellant raises two issues on appeal: (1) whether comments made by the trial judge after the jury was selected amount to fundamental error, and (2) whether Appellant's dual convictions for battery and sexual battery are barred by double jeopardy. We affirm the second issue without discussion, and we affirm the first issue for the reasons that follow.

Facts

Appellant was charged with sexual battery, battery, and false imprisonment for an incident during which he beat his girlfriend and forced her to perform oral sex on him. The incident lasted for 2 ½ to 3 hours and took place in multiple locations in the mobile home that Appellant and the victim shared.

During jury selection, the prosecutor asked the prospective jurors whether any of them would require more than witness testimony in order to convict Appellant. "[A] lot of people" answered yes to this question, and over defense counsel's objection, the trial judge struck five of the prospective jurors for cause because their affirmative responses to the prosecutor's question showed that they would not be able to follow the law.

After the jury was selected, the trial judge made the following comments:

Our jury system only works if it is supported and honored by our citizens. For those of you who came in this morning, some of whom I believe had a determination not to serve, shame on you. Other than taking our money for taxes, the government does not require much of us. We don't even require military service anymore. We don't even require you to vote. But, as I mentioned to you on Friday, service on a jury is both a civic and patriotic obligation which all good citizens should perform, so I'm always puzzled by prospective jurors who quickly announce, I can't do the job, I can't be fair and impartial. I'm troubled by prospective jurors who announce the defendant is guilty. You've heard no evidence whatsoever, so the mere fact that the State charges someone with a crime and seats him at the defense table is enough for you to declare he's guilty without a trial, the State has to prove absolutely nothing.
I don't believe any of us think that we will be seated at the defendant's chair, but you should stop and reflect on what you would want to happen should you be seated there. Would you want citizens who believe in this system who are required to uphold the law to sit in judgment on you?
And for those of you who demand more than what the State requires, that is that testimony of a witness is insufficient to convict someone, imagine yourself alone with me in this courtroom and I walk over and pick up my gavel, which is a hefty little thing, and I knock you on the head. I'm innocent, because your only case is your own testimony, and for many, many, many of you who responded today, that is insufficient for the State to bring its case against the defendant.
If you're not seated to my right, you are excused from your jury summons. I appreciate you coming down Friday for jury qualifications. You are excused today, but I would encourage you to stop and think a moment about what our form of government means, what your obligations are to support it, and how you responded today. Thank you. You are excused.

Although these comments were directed to the prospective jurors who were being excused, they were made in the presence of the jurors who had been selected to serve on the jury. Defense counsel did not object to the comments, nor did counsel object to the jury before it was sworn.

The case proceeded to trial at which the jury found Appellant guilty as charged. The trial judge adjudicated Appellant guilty and imposed his sentence. This appeal followed.

Analysis

Because Appellant did not object to the comments made by the trial judge at the conclusion of jury selection, we review the comments for fundamental error. Grigg v. State , 230 So.3d 943, 945 (Fla. 1st DCA 2017). Fundamental error is error which goes to the essence of a fair and impartial trial and is so fundamentally unfair as to amount to a denial of due process. Id. A trial judge's improper participation in jury selection can render a trial unfair and result in fundamental error. Id.

Appellant argues that this case is "virtually indistinguishable" from Grigg in which we held that comments made by the trial judge during jury selection amounted to fundamental error. We disagree because although the same trial judge was involved in both cases, the judge's comments in this case are materially different from those in Grigg .

In Grigg , after several prospective jurors indicated that they could not convict the defendant without physical evidence, the trial judge asked the venire to consider a hypothetical set of facts that mirrored the facts of the defendant's case. Id. The judge told the prospective jurors to consider the circumstances as though they were victims of the crimes, and the judge's comments made clear his view that the defendant in his hypothetical should not go free. Id. at 946. Then, before dismissing the unselected members of the venire, the judge reiterated that it was incorrect to think that the state could not bring a case without physical evidence because the absence of physical evidence did not prove that no crime had been committed. Id. at 947.

On appeal, we identified two "fairness problems" arising from the trial judge's comments: (1) by stating his views on how the hypothetical case that mirrored the defendant's case should be decided, the judge lent his position's weight and influence to the prosecution and jeopardized the jury's ability to impartially hear and decide the defendant's case; and (2) the judge's hypothetical was essentially an improper "golden rule" argument that invited the jurors to place themselves in the victim's position during the crime and imagine the victim's suffering. Id. at 946. Additionally, we noted that the judge's chastising comments before dismissing unselected members of the venire compounded these problems by reinforcing a prosecution-friendly view of the defendant's case. Id. at 947.

Those "fairness problems" are not present in this case. First, the trial judge's gavel hypothetical in this case bears no resemblance to the sexual battery and battery charges against Appellant, and the judge's comments about the hypothetical did not express his view on the weight of the evidence, the credibility of a witness, or the guilt of Appellant. Second, the judge did not express a prosecution-friendly view of the Appellant's case and his comments simply emphasized the importance of jury service and the rule of law, including the presumption of innocence and the state's burden of proof. Accordingly, under these circumstances, the trial judge's comments do not amount to fundamental error.

That said, if the trial judge felt compelled to deliver a message about the importance of jury service and the rule of law to the excused prospective jurors, the better practice would have been for the trial judge to deliver this message outside of the presence of the selected jurors. The message was intended for the excused prospective jurors, not the selected jurors who would soon be performing their civic duty by serving on Appellant's jury. Additionally, there was no need to lecture the selected jurors about the importance of the presumption of innocence and the burden of proof because they would be instructed on those issues at trial.

Conclusion

For the reasons stated above, we affirm Appellant's convictions and his resulting sentences.

AFFIRMED .

Lewis and Winokur, JJ., concur.

      The judge rejected the prosecutor's for-cause challenge to a sixth prospective juror who was "in the same category."

      This ruling was not challenged on appeal.


author: PER CURIAM.

text:
    Xavier YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5245
    District Court of Appeal of Florida, First District.
    April 9, 2019 Rehearing Denied May 16, 2019
    Andy Thomas, Public Defender, and Colleen Mullen, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Jennifer Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Xavier Young, appeals his convictions and sentences for multiple offenses, challenging the trial court's denial of his motion to suppress statements he made to law enforcement. Appellant argues that his statements were unlawfully obtained in violation of Miranda. For the reasons that follow, we affirm.

BACKGROUND

Appellant was charged with felony fleeing or attempting to elude an officer (Count 1), driving without a valid driver's license (Count 2), possession of cannabis (Count 3), and possession of paraphernalia (Count 4). He sought the suppression of his alleged statements in response to the deputy's questions of "what happened" and "is there anyone else in the car" on the ground that he was subjected to custodial interrogation and had not been read his Miranda rights. The State, on the other hand, contended that Appellant was not subjected to custodial interrogation and the deputy asked the questions for officer safety reasons.

At the suppression hearing, as well as at trial, Deputy Heath Cutshaw testified as follows. Around 2 a.m. on October 26, 2016, while on patrol in his marked agency vehicle in a rural area with "no lighting around," he attempted to conduct a traffic stop on a Chevy for a faulty headlight. When the Chevy did not stop, Cutshaw activated his emergency siren and overhead lights. Instead of stopping, the Chevy accelerated to over 100 miles per hour, turned off its headlights, and swerved back and forth before eventually crashing into a tree. When Cutshaw arrived at the crash scene and exited his patrol vehicle, he saw Appellant "walk out from the vehicle" and walk towards him. At that point, Cutshaw drew his service weapon and ordered Appellant to the ground while he remained behind his vehicle. As soon as Appellant complied, Cutshaw asked him, without Miranda warnings, whether there was anybody else in the car and what happened. Cutshaw explained that he ordered Appellant to the ground at gunpoint and posed those questions to him for officer safety reasons because he was the only officer at the scene, he did not know why Appellant was walking towards him and whether there were other occupants in the car, and he could not see everything in the dark. Appellant responded that no one was inside the vehicle and that he had fled because he did not have a driver's license and there was marijuana in the center console. Cutshaw did not ask further questions. When backup arrived about thirty minutes later, Appellant was handcuffed, and inside the vehicle the deputies found a marijuana grinder with residue and some marijuana buds. Appellant was then arrested.

The trial court denied the motion, ruling, "I don't find him in custody. I think the officer did what he needed to do to protect himself on the street. I mean, you've got a shadow coming towards you after a high speed chase, he's lucky he didn't have a bullet in his head."

At trial, Appellant testified in part that he was merely a backseat passenger in the Chevy and that he did not answer the deputy's questions while held at gunpoint because he was not advised about his Miranda rights. The jury found Appellant guilty as charged, and the trial court adjudicated him guilty on each count and sentenced him to eighteen months of imprisonment on Count 1 and to time served on Counts 2 through 4. This appeal followed.

ANALYSIS

A trial court's ruling on a motion to suppress is presumed correct, and we must interpret the evidence and the reasonable inferences that can be derived from it in a manner most favorable to sustaining the trial court's ruling. State v. Dickey , 203 So.3d 958, 961 (Fla. 1st DCA 2016) (noting that it is the trial court's function to make credibility determinations and to weigh the evidence). We defer to the trial court's findings of fact if supported by competent, substantial evidence, but review de novo the application of the law to those facts. Id.

For Miranda warnings to be required, the suspect must be subject to in-custody interrogation. Ross v. State , 45 So.3d 403, 414 (Fla. 2010). The determination of whether a defendant was in custody involves a mixed question of law and fact and the following inquiries:

[F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

Id. at 414-15 (quoting Yarborough v. Alvarado , 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ). Courts are to consider the following four factors in making that determination:

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

Id. (quoting Ramirez v. State , 739 So.2d 568, 574 (Fla. 1999) ).

However, a person who is detained based on reasonable suspicion pursuant to Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is not necessarily in custody for purposes of Miranda . Johnson v. State , 800 So.2d 275, 279 (Fla. 1st DCA 2001) (citing Berkemer v. McCarty , 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), where the Supreme Court held that "persons temporarily detained pursuant to [routine traffic] stops are not 'in custody' for the purposes of Miranda "). Nor is an investigatory stop automatically converted into an arrest when an officer draws a weapon and directs the suspect to lie on the ground; instead, "the police are entitled to take such action as is reasonable under the circumstances." Carroll v. State , 636 So.2d 1316, 1318 (Fla. 1994) ; see also State v. K.N. , 66 So.3d 380, 385 (Fla. 5th DCA 2011) ; Saturnino-Boudet v. State , 682 So.2d 188, 191 (Fla. 3d DCA 1996). Further, a traffic stop or investigatory stop is not transformed into a custodial interrogation or formal arrest when police ask the person if he or she has any weapons or drugs-such inquiry is permissible. See State v. Hinman , 100 So.3d 220, 221 (Fla. 3d DCA 2012) ; State v. Martissa , 18 So.3d 49, 52 (Fla. 2d DCA 2009) ; State v. Olave , 948 So.2d 995, 996-97 (Fla. 4th DCA 2007) ; Hewitt v. State , 920 So.2d 802, 805 (Fla. 5th DCA 2006) ; see also Johnson , 800 So.2d at 279 (concluding that the appellant was not in custody for Miranda purposes where he was briefly detained and, without Miranda warnings, asked the open-ended question, "what happened?").

Here, the parties disagree about whether Appellant was in custody at the time Deputy Cutshaw inquired of him so as to trigger the Miranda warning requirement. Although Appellant is correct in arguing that a reasonable person in his position would not have felt free to leave, he overlooks the fact that he was detained during an undisputedly lawful investigatory stop. It is uncontested that the deputy attempted to conduct a lawful traffic stop and turned on his blue lights and siren. Instead of stopping, the suspect vehicle sped up to speeds in excess of 100 miles per hour, turned off its headlights, and swerved back and forth before crashing into a tree. When the deputy caught up with the vehicle, Appellant approached him from the crashed vehicle. The deputy testified that he was the only officer at the scene, it was dark in the area, he did not see how many occupants the car had, and he could not clearly see the area. As such, for officer safety reasons, he drew his weapon as Appellant was approaching him and ordered him to the ground. Under these circumstances, the deputy's actions of drawing his weapon and ordering Appellant to the ground were reasonable and did not transform the lawful investigatory stop into a formal arrest. The deputy then immediately asked Appellant, "was there anybody else in the vehicle" and "what happened." Those questions were proper for officer safety reasons and did not convert the investigatory stop into custodial interrogation requiring Miranda warnings.

Turning to the factors we must consider in determining whether Appellant was in custody, he was not summoned for interrogation; the questioning took place during an investigatory stop that followed a high-speed chase, the vehicle crashing, and Appellant approaching the deputy; at the time, the deputy did not know what, if any, involvement Appellant had and whether there were others around for it was dark outside; the deputy was the only officer at the scene and was concerned for his safety; the deputy's actions and questions were limited to ensuring his safety and he asked no further questions; and Appellant was not confronted with any evidence of his guilt. For the foregoing reasons, we agree with the trial court that Appellant was not in custody for the purposes of Miranda ; as such, Deputy Cutshaw was not required to advise him of his constitutional rights.

CONCLUSION

Accordingly, we hold that the trial court properly denied the motion to suppress and affirm Appellant's convictions and sentences.

AFFIRMED.

Lewis, Wetherell, and Winokur, JJ., concur.

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

      The fact that Appellant was held at gunpoint on the ground for nearly thirty minutes while the deputy waited for backup is irrelevant to the determination of whether he was in custody for purposes of Miranda because it is undisputed that the deputy made his inquiries immediately upon ordering him to the ground.


author: Wolf, J.

text:
    Gerard KRUSE, Petitioner, v. State of Florida, DEPARTMENT OF HEALTH In re: the Emergency Restriction of the License of Gerard Kruse, L.C.S.W., Respondent.
    No. 1D17-4174
    District Court of Appeal of Florida, First District.
    April 16, 2019
    Cynthia A. Mikos and Jamie A. Klapholz of Johnson, Pope, Bokor, Ruppel, & Burns, LLP, Tampa, for Petitioner.
    Christine E. Lamia, Chief Appellate Counsel, and Katelyn R. Levine, Assistant General Counsel, Florida Department of Health, Prosecution Services Unit, Tallahassee, for Respondent.
   Wolf, J.

The issue before this court is whether an act of sexual misconduct by a psychotherapist against a patient during a session may support an emergency restriction on his license that prevents him from treating patients of the opposite sex. Petitioner argues there are insufficient allegations that the conduct would recur. We disagree. The allegations contained in the emergency order are sufficient. The egregious, forceful, and intentional course of sexual misconduct in this case and the potential danger to the public that it presents supports the restrictions placed on petitioner's license.

EMERGENCY ORDER

Petitioner, Gerald Kruse, attempts to argue that this was a single act of insufficient seriousness to support the restriction on his license. The facts and conclusions laid out in the Order of Emergency Restriction of License issued by the Department of Health belie this assertion. In pertinent part the order states:

3. At all times material to this order, Mr. Kruse worked as a clinical social worker ....
4. On June 23, 2017, Patient L.P., a 27-year-old female, presented to Mr. Kruse for psychotherapy services.
5. Mr. Kruse introduced himself to Patient L.P. as "Dr. G." Patient L.P. assumed that Mr. Kruse was a doctor and believed that she could trust him based on his credentials.
6. During the June 23, 2017, appointment Patient L.P. informed Mr. Kruse that she had a history of anxiety and post-traumatic stress. Patient L.P. informed Mr. Kruse that her post-traumatic stress was caused by her history of being sexually abused and a recent violent sexual attack.
7. Mr. Kruse knew that Patient L.P. was especially vulnerable.
8. Patient L.P. observed that Mr. Kruse was flirtatious with her during the June 23, 2017, appointment.
9. Patient L.P. continued to go to Mr. Kruse for psychotherapy services on July 6, 2017, and July 19, 2017.
10. During these appointments, Mr. Kruse shared personal stories with Patient L.P. that were sexual in nature. Mr. Kruse told Patient L.P. about his current life stressors and occasionally cried while he shared his stories with Patient L.P.
11. During their appointments, Mr. Kruse asked to see pictures of Patient L.P. When Patient L.P. showed Mr. Kruse pictures of herself, Mr. Kruse told Patient L.P. that he thought she was attractive.
12. On July 19, 2017, Patient L.P. informed Mr. Kruse that she was going to begin therapy sessions with another therapist.
13. Mr. Kruse repeatedly told Patient L.P. that he was going to miss her.
14. When Patient L.P. attempted to open the door to leave, Mr. Kruse grabbed Patient L.P.'s buttocks.
15. Patient L.P. slapped Mr. Kruse's hand and said "what the f[---], I'm married."
16. Mr. Kruse apologized and told Patient L.P. that he just found her "really attractive."
17. Patient L.P. attempted to open the door to leave again and Mr. Kruse grabbed Patient L.P.'s arm, pulled her close to him, and attempted to kiss her.
18. Patient L.P. rebuffed his advance and pushed him away. Patient L.P. reiterated that she was married.
19. Mr. Kruse told Patient L.P. that he thought she was attractive.

The order then makes the following important observations:

20. Clinical social workers hold a position of power in the psychotherapist-patient relationship. Society entrusts clinical social workers to help vulnerable people in need of guidance. Mr. Kruse violated the psychotherapist-patient relationship when he discussed his personal life with Patient L.P. and then attempted to engage Patient L.P. in sexual activity. Mr. Kruse knew that Patient L.P. was vulnerable, suffered from post-traumatic stress caused by sexual violence, and was in need of guidance and support, and still violated the psychotherapist-patient relationship by attempting to engage Patient L.P. in sexual activity.
21. Mr. Kruse's actions and disregard for the health of Patient L.P. show that he does not have the judgment or moral character to hold a position of power and trust. Mr. Kruse's blatant disregard for the laws and rules regulating his profession indicates that this behavior is likely to continue . Because of this risk, Mr. Kruse's continued unrestricted practice represents an immediate, serious danger to the public health and to patients under his care. Therefore, there are no less restrictive means than the terms outlined in this Order that will adequately protect the public.

(Emphasis added).

In its conclusions of law, the Department recognized the seriousness with which the Legislature and the Department view this type of misconduct:

2. Section 491.009(1)(k), Florida Statutes (2016-2017), subjects a clinical social worker to discipline, including restriction, for committing any act upon a patient or client which would constitute sexual battery or which would constitute sexual misconduct as defined pursuant to Section 491.0111, Florida Statutes (2016-2017).
3. Section 491.0111, Florida Statutes (2015-2017) provides that sexual misconduct shall be defined by board rule.
4. Rule 64B4-10.002(1), Florida Administrative Code, provides that it is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior, or any behavior, whether verbal or physical, which is intended to be sexually arousing, including kissing; sexual intercourse, either genital or anal; cunnilingus; fellatio; or the touching by either the psychotherapist or the client or the other's breasts, genital areas, buttocks , or thighs, whether clothed or unclothed.
5. Mr. Kruse violated Section 491.0111, Florida Statutes (2016-2017), and Rule 64B4-10.002(1), Florida Administrative Code, by engaging, attempting to engage, or offering to engage, Patient L.P. in sexual misconduct by:
a. Touching Patient L.P.'s buttocks;
b. Attempting to kiss Patient L.P.; and
c. Telling Patient L.P. that she was attractive.
6. Section 120.60(6), Florida Statutes (2017), authorizes the State Surgeon General to restrict a clinical social worker's license upon a finding that the clinical social worker presents an immediate, serious danger to the public health, safety, or welfare.

(Emphasis added).

ANALYSIS

Section 120.60(6) authorizes a state agency to take emergency disciplinary action against a state licensee under the following circumstances:

If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, the agency may take such action by any procedure that is fair under the circumstances if:
(a) The procedure provides at least the same procedural protection as is given by other statutes, the State Constitution, or the United States Constitution;
(b) The agency takes only that action necessary to protect the public interest under the emergency procedure; and
(c) The agency states in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. The agency's findings of immediate danger, necessity, and procedural fairness are judicially reviewable.

A number of cases have discussed the application of these standards in terms of sexual misconduct by a licensee. In Field v. State Department of Health , 902 So.2d 893 (Fla. 1st DCA 2005), we held an emergency order suspending a doctor's medical license based on a single allegation of sexual misconduct sufficiently demonstrated the doctor's continued medical practice would pose an immediate and serious danger to public health, safety, and welfare.

Field cited with approval the following language from the emergency order in that case, which similar to the order here, emphasized the vulnerability of patients during treatment:

As exemplified by the facts of this case, physicians often care for vulnerable patients in settings where they can easily abuse these patients. Due to the potential for abuse that is inherent under these circumstances, doctors must possess good judgment and good moral character in order to safely practice medicine. Dr. Field's willingness to engage in sexual misconduct toward his patient demonstrates a serious defect in Dr. Field's judgment and moral character.

Id. at 896.

We specifically recognized the necessity to provide heightened protection for vulnerable patients from sexual misconduct. The need for heightened scrutiny over caregivers in incidents involving vulnerable patients is paramount.

Petitioner attempts to distinguish Field on two grounds: (1) that the conduct involved in Field was more serious; and (2) Dr. Field admitted the sexual conduct, although he claimed it was consensual. These distinctions are unavailing.

The Legislature specifically authorized action against a social worker's conduct not only for sexual battery but also for sexual misconduct. § 491.009(1)(k), Fla. Stat. By rule, the conduct involved in this case meets the definition of sexual misconduct. Fla. Admin. Code R. 64B4-10.002(1).

Further, conduct of this type is egregious, especially with a victim who had previously been assaulted and was vulnerable. We refuse to distinguish Field based on the level of seriousness.

The fact that Dr. Field admitted his conduct is also not an important distinction. In ruling on the legitimacy of an emergency order, it is not our job to determine the credibility of witnesses but to determine the sufficiency of the facts as alleged in the emergency order. Sanchez v. Dep't of Health, 225 So.3d 964, 966 (Fla. 1st DCA 2017). When evaluating the sufficiency of an emergency suspension order, an appellate court is limited to examining the face of the order itself to determine if the elements were alleged with sufficient detail. See Mendelsohn v. Dep't of Health, 68 So.3d 965, 967 (Fla. 1st DCA 2011) ; Kaplan v. State, Dep't of Health, 45 So.3d 19, 20 (Fla. 1st DCA 2010).

Petitioner's attempt to distinguish this case from Field must fail, because his dispute of the allegations requires a credibility determination. This need for a credibility determination is particularly applicable in cases of alleged sexual misconduct, which often involve a one-on-one encounter. Credibility determinations must be made during a full expedited evidentiary administrative proceeding.

In the instant case, there are detailed facts set out in the emergency suspension order based on the testimony of the person making the allegations of sexual misconduct, which occurred over the course of several appointments. These allegations are clearly sufficient.

Further, the emergency order here is narrowly tailored by restricting only petitioner's ability to see female patients. In a similar case, Sanchez , 225 So.3d at 966-67, we denied a challenge to an emergency order restricting a dental hygienist's ability to see female patients after allegations he committed sexual conduct against female patients, explaining:

Because his alleged misconduct is readily concealable in the course of carrying out his duties, we cannot fault the Department's tailored, gender-specific restriction and conclusion that "[n]othing short of the immediate restriction of Mr. Sanchez's license to practice as a dental hygienist in the State of Florida will protect the public from the dangers created by Mr. Sanchez's continued practice of dental hygiene on female patients."

Cf. Nath v. Dep't of Health , 100 So.3d 1273 (Fla. 1st DCA 2012) (holding emergency order suspending an acupuncturist's license after allegations of sexual misconduct against female patients sufficiently alleged an immediate serious danger to the public that was likely to recur absent an emergency order, but the order could have been more narrowly tailored by only restricting the treatment of female patients).

Similarly here, petitioner's misconduct is readily concealable, as evidenced by allegations that he forcibly grabbed and kissed the patient while alone with her during treatment after she tried to leave. As in Sanchez , the Department's narrowly tailored order restricting his ability to see female patients is necessary to protect the public.

We therefore DENY the petition to review non-final agency action.

Osterhaus and Winsor, JJ., concur.

      Petitioner raises a second issue. We deny relief on this issue without further comment.


text:
    Joshua ZELAYA, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2272
    District Court of Appeal of Florida, Fourth District.
    April 24, 2019
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . See Chavis v. State , 247 So.3d 9 (Fla. 4th DCA 2018) ; State v. Wilson , 203 So.3d 192 (Fla. 4th DCA 2016) ; Louima v. State , 175 So.3d 893 (Fla. 4th DCA 2015) ;

Chapa v. State , 159 So.3d 361 (Fla. 4th DCA 2015).

Warner, Gross and Forst, JJ., concur.


text:
    IDEAL PROFESSIONAL INSTITUTE INC., Appellant, v. BOARD OF NURSING, Appellee.
    No. 1D19-580
    District Court of Appeal of Florida, First District.
    April 22, 2019 Rehearing Denied May 15, 2019
    Gregory Ochalek, Miami, for Appellant.
    Ashley Moody, Attorney General, and Marlene K. Stern, Senior Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Because the notice of appeal was untimely filed, this cause is hereby dismissed. This disposition is without prejudice to Appellant's right, if any it has, to seek relief by motion in the lower tribunal.

Wolf, Winsor, and M.K. Thomas, JJ., concur.