author: Taylor, J.

text:
    Donte Ahmad MCCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2006
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Donte McCray appeals his conviction and sentence for possession of heroin. Because appellant was not in actual possession of the heroin and the state failed to prove constructive possession, we reverse appellant's conviction and sentence for possession of heroin and remand for entry of a judgment of acquittal on this charge.

On August 2, 2016, a Boynton Beach Police officer conducted a traffic stop of the vehicle appellant was driving. As the officer exited his marked police car, appellant got out of his vehicle. Instead of following the officer's instructions to get back in his vehicle, appellant started running, and the officer chased him on foot. While appellant was running, the officer observed appellant "aggressively reaching in his waistband" and looking over his shoulder at the officer. The officer thought appellant was reaching for a weapon, so he drew his firearm and told appellant to stop running, remove his hands from his waistband, and show his hands. Appellant continued running but ended up falling to the ground. He appeared to have lost his balance.

The officer moved in and jumped on top of appellant, holding him down until backup officers arrived. When the officer searched appellant's waistband area, he did not find anything. The officer believed that whatever appellant had been reaching for inside his waistband had fallen, but he testified that he did not see appellant drop or throw anything.

After appellant was handcuffed, officers searched him but did not find a firearm or weapon. Appellant did not have a driver's license on his person or in his vehicle. Later, a driver's record search revealed that appellant's license was revoked and appellant was notified of the revocation. Over objection, the trial court allowed testimony that the police found $880 cash on appellant's person.

An officer who arrived on the scene when appellant was handcuffed and lying on the ground testified that she did not see appellant holding anything, but the officer who conducted the traffic stop told her something may have been thrown. She followed in the direction where the officer pointed, and within thirty seconds she found a clear plastic bag about ten feet from where appellant had been stopped. The bag was filled with clear capsules that contained a brown substance later identified as heroin. The police did not test the bag or capsules for fingerprints.

The state charged appellant with possession of heroin, resisting an officer without violence, and driving while his license was canceled, suspended, or revoked. The trial court denied appellant's motion for judgment of acquittal on the drug possession charge. The jury found appellant guilty on all counts as charged.

At sentencing, appellant moved for a downward departure sentence, based on his need for specialized treatment for a mental disorder (unrelated to substance abuse or addiction) and his amenability to treatment, pursuant to section 921.0026(2)(d), Florida Statutes. The state responded that it did not oppose appellant's request for mental health and drug treatment, but argued that such treatment could be provided while appellant is in the custody of the Department of Corrections ("DOC"). The trial court declined to impose a downward departure sentence, finding that all the services about which appellant's witnesses testified were available in the DOC, if appellant chose to avail himself of them. The court then sentenced appellant to sixty months in prison for possession of heroin, one year for resisting an officer without violence, and sixty days for driving while his license was canceled, suspended or revoked. Appellant received credit for 105 days served.

Appellant argues on appeal that the trial court erred by: (1) allowing the state to elicit testimony about common drug practices and that appellant had a significant sum of cash on his person; (2) reading an inapplicable, incomplete, and confusing jury instruction regarding the presumption of knowledge of the illicit nature of the substance; (3) denying appellant's motion for judgment of acquittal; and (4) finding no reason to depart from the sentencing guidelines because the Department of Corrections could provide the necessary treatment for appellant's condition. Because we are reversing appellant's conviction for possession of heroin and remanding for entry of a judgment of acquittal on this charge, we need address only the judgment of acquittal issue.

The denial of a motion for judgment of acquittal is reviewed de novo. R.H. v. State , 56 So.3d 156, 157 (Fla. 4th DCA 2011). A judgment of acquittal should not be granted unless no reasonable view favorable to the state exists. Santiago v. State , 70 So.3d 720, 723 (Fla. 4th DCA 2011). An appellate court ordinarily will not reverse a conviction that is supported by competent, substantial evidence. Harris v. State , 72 So.3d 804, 806 (Fla. 4th DCA 2011).

To prove constructive possession, "the state must show that the defendant had knowledge of the contraband's presence and the ability to exercise dominion and control over it." Duncan v. State , 986 So.2d 653, 655 (Fla. 4th DCA 2008) (citing Edmond v. State , 963 So.2d 344, 345-46 (Fla. 4th DCA 2007) ). Moreover:

[i]f the premises on which the contraband is found is in joint, rather than exclusive, possession of a defendant, knowledge of the presence of the contraband on the premises and the accused's ability to maintain control over it will not be inferred, but must be established by independent proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises. Mere proximity to contraband is not sufficient to establish constructive possession.

J.M. v. State , 839 So.2d 832, 834 (Fla. 4th DCA 2003) (quoting Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA 1998) ).

Here, the state failed to carry its burden of proving constructive possession. The state's evidence consisted almost entirely of testimony about appellant's flight and proximity to the contraband. No witnesses testified that they saw drugs on appellant's person or saw him drop or toss the drugs to the ground while he fled or was detained. No evidence was presented that appellant's fingerprints were found on the contraband. Moreover, the area where the heroin was found was a public area with heavy foot traffic and thus was not in appellant's exclusive control. The state needed to present independent proof of knowledge and control. See Duncan , 986 So.2d at 655 ("Where the premises are in joint possession, knowledge of the contraband's presence and the defendant's ability to control the same will not be inferred and must be established by independent evidence.").

This case is factually similar to Agee v. State , 522 So.2d 1044, 1045 (Fla. 2d DCA 1988). There, the Second District held that evidence of mere proximity to a match box containing heroin and flight from the police was insufficient to prove constructive possession of the heroin. Id. at 1045-46. The defendant in Agee had walked hurriedly away from police and was crouched behind a large oak tree. Id. at 1045. An officer approached the defendant, told him to stand up, and looked down to see a match box containing heroin on the grass about one foot from where the defendant had been crouching. Id. The court noted that the heroin was found in a public place where others were on the premises and that there was no evidence that the defendant ever touched the match box containing the heroin. The appellate court held that the trial court erred in denying Agee's motion for judgment of acquittal. Id. at 1046.

We similarly conclude that the trial court erred in denying appellant's motion for judgment of acquittal, because the state failed to prove by competent, substantial evidence that appellant was in constructive possession of heroin. Accordingly, we reverse appellant's conviction for possession of heroin and remand for entry of a judgment of acquittal on that charge.

Reversed and Remanded for Entry of Judgment of Acquittal on the charge of possession of heroin.

Levine and Forst, JJ., concur.


source: Caselaw Access Project

author: Artau, Edward L., Associate Judge.

license: Public Domain

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee, in Trust FOR REGISTERED HOLDERS OF FIRST FRANKLIN MORTGAGE LOAN TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-FF1, Appellant, v. Gabino RODRIGUEZ, Maria Rodriguez a/k/a Maria T. Rodriguez, Diana Elizabeth Rodriguez a/k/a Diana E. Rodriguez, Unknown Tenant 1, Unknown Tenant II, Dania Beach Homes Homeowners Association, Inc., Enterprises Leasing Company d/b/a Enterprise Rent A Car, Carmel Financial Corp., and any unknown Heirs, Devises, Grantees, Creditors, and other Unknown Persons or Unknown Spouses claiming by, through and under any of the Above-Named Defendants, Appellees.
    No. 4D17-3391
    District Court of Appeal of Florida, Fourth District.
    [September 20, 2018]
    Allison Morat of Pearson Bitman LLP, Maitland, for appellant.
    Samuel D. Lopez of Samuel D. Lopez, P.A., Pembroke Pines, for appellee Gabino Rodriguez.
   Artau, Edward L., Associate Judge.

Appellant, U.S. Bank National Association ("U.S. Bank"), challenges the trial court's order denying its motion requesting the return of the original promissory note and mortgage from the court file after the underlying foreclosure action was dismissed for lack of prosecution. We conclude that the trial court improperly interpreted an agreed order as requiring the original documents to remain in the court file in perpetuity. Accordingly, we reverse the trial court's order and remand for proceedings consistent with this opinion.

In February 2009, LaSalle Bank brought a foreclosure complaint against appellee, Gabino Rodriguez. In furtherance of its foreclosure complaint, LaSalle submitted the original note and mortgage to the court. After LaSalle's suit was dismissed in May 2011 for lack of prosecution, LaSalle sought to retrieve the note and mortgage from the court. The trial court granted the motion but the borrower filed an emergency motion to set aside the order, arguing that LaSalle's counsel misrepresented facts and failed to give notice to the borrower.

On May 1, 2015, the trial court entered an agreed order vacating the prior order releasing the documents to LaSalle. The agreed order required the original note and mortgage to remain in the court file. In the event that the documents had already been mailed to LaSalle, the order required LaSalle to return the documents to the clerk to be placed back in the court file in their original untampered condition. LaSalle filed another motion to return the original documents, but the court denied the motion.

In October 2016, U.S. Bank was substituted into the case as the party plaintiff. U.S. Bank subsequently sought to retrieve the original loan documents from the court. The borrower argued that the agreed order vacating the prior order granting release of the documents to LaSalle was an agreement between the parties "that the note shall remain in the court file, period, and nothing else," and thus, the court could not rescind the parties' agreement. U.S. Bank countered that the agreed order was not an agreement to keep the original note and mortgage in the court file forever. The trial court agreed with the borrower and denied U.S. Bank's motion.

On appeal, U.S. Bank argues that the agreed order on which the court relied does not qualify as a stipulation or contract for the original note and mortgage to remain in the court file in perpetuity, and that it is unreasonable to conclude that LaSalle contractually obligated itself to leave its valuable commercial paper with the court forever. The borrower maintains that U.S. Bank's right to retrieve the note was contracted away by its predecessor in interest, LaSalle, via the agreed order. We agree with U.S. Bank's argument and disagree with the borrower's argument.

A trial court's interpretation of a contract is reviewed de novo. Gossett & Gossett, P.A. v. Mervolion , 941 So.2d 1207, 1210 (Fla. 4th DCA 2006). "In construing a contract, the intention of the parties is ascertained from the language used in the instrument ...." Id. (citing Rylander v. Sears Roebuck & Co. , 302 So.2d 478, 479 (Fla. 3d DCA 1974) ).

The parties do not dispute that U.S. Bank had a right to retrieve the original documents from the court, but disagree about whether that right was contracted away in the agreed order. We find that the only reasonable construction of the language used in the agreed order is that it set aside a prior order granting the release of the documents until further order of the court. Nowhere on the face of the agreed order does it convey that the parties had entered into an agreement to leave the documents with the court in perpetuity.

Notably, this case had been dismissed for lack of prosecution approximately four years prior to the agreed order. No final judgment of foreclosure was ever entered. The agreed order was an interlocutory order addressing an objection based on lack of notice over the post-dismissal retrieval of LaSalle's original documents. Undoubtedly, the court had the inherent authority to revisit this type of interlocutory order at any time prior to final judgment. See Nationsbank, N.A. v. Ziner , 726 So.2d 364, 366 n.1 (Fla. 4th DCA 1999) (interlocutory orders are within the inherent power of the court to set aside or modify).

As this court has previously explained,

[O]riginal mortgages and promissory notes ... are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated. The judgment cancels the note. The clerk cannot return these instruments to the parties.

Johnston v. Hudlett, 32 So.3d 700, 704 (Fla. 4th DCA 2010) (citation omitted) (emphasis included). Requiring the surrender of the note takes it out of "the stream of commerce, preventing someone else from trying to enforce it against the defendant a second time" after entry of judgment. Deutsche Bank Nat'l Trust Co. v. Clarke, 87 So.3d 58, 62 (Fla. 4th DCA 2012).

Here, no judgment was ever entered cancelling the note and taking it out of the stream of commerce. And although the clerk cannot return these type of instruments once judgment is entered, there is no legal basis to prevent the clerk from returning an original note if it was not cancelled by entry of a judgment. Indeed, it should be returned to the stream of commerce if judgment is not entered in a foreclosure case, as it does not belong to the court and it remains negotiable and valuable to its holder. See Fla. R. Jud. Admin. 2.430(f)-(h) (recognizing "power of the court to release exhibits or other parts of court records that are the property of the person or party initially placing the items in the court records," and establishing procedures for return and disposal of original exhibits and other such records).

Moreover, Rule 2.430(c) sets a five-year retention schedule for civil proceedings in circuit court, after which the clerk may destroy or dispose of those court records. Fla. R. Jud. Admin. 2.430(c). In addition, Rule 2.430(f)(2) allows the clerk to destroy or dispose of exhibits in a civil case after 90 days if the parties or attorneys of record do not retrieve them upon 30 days' notice. Fla. R. Jud. Admin. 2.430(f)(2). Under either rule, any party could "apply to the court for an order requiring the clerk to deliver to the applicant the court records" any time before their destruction or disposal, whether or not there had been a prior interlocutory court order or stipulation. Fla. R. Jud. Admin. 2.430(g).

Therefore, the agreed order did not bind the court or its clerk to a perpetual obligation to maintain the original negotiable instruments in the court file after the foreclosure case was disposed of without entry of final judgment. Instead, the agreed order only required the court to hold the original documents until further order of the court could be entered consistent with due process and Florida Rule of Judicial Administration 2.430.

Because we find that the trial court's interpretation of the agreed order was in error and contrary to Rule 2.430, we reverse the order denying U.S. Bank's motion to return the original documents, and remand to the trial court for proceedings consistent with this opinion.

Reversed and Remanded.

Levine and Forst, JJ., concur.


author: Conner, J.

text:
    Jeromy RODGERS, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, FOR THE WAMU MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR12, Appellee.
    No. 4D18-82
    District Court of Appeal of Florida, Fourth District.
    [September 26, 2018]
    Rashida M. Overby, Tamarac, for appellant.
    Allison Morat of Pearson Bitman LLP, Maitland, for appellee.
   Conner, J.

In this appeal of a post-judgment non-final order, the issue is whether the trial court erred in not vacating a final judgment of foreclosure after it was established that there was an error in the legal description of the property in the final judgment. Because the appellant has not demonstrated an abuse of discretion, we affirm the trial court's order denying the motion to vacate the final judgment.

Background

Deutsche Bank filed suit to foreclose a mortgage on real property owned by the appellant. The real property, which is the subject of the foreclosure proceeding, is described by a metes and bounds legal description. There is no dispute that the mortgage and foreclosure complaint properly described the real property. Following a nonjury trial, a final judgment of foreclosure was entered, containing scrivener's errors in the legal description of the property. In two instances capital "O"s were used in degree calls, instead of zeros. Additionally, one of the description calls in the final judgment erroneously states "8.1°," rather than "81°."

The errors in the legal description contained in the final judgment were carried forward in the advertising for the foreclosure sale, as well as the certificate of title issued subsequent to the sale. Deutsche Bank was the highest bidder at the sale. Within a few days after the sale and prior to the issuance of the certificate of title, Deutsche Bank moved to amend the final judgment to correct the scrivener's errors, but the motion was never set for hearing. The scrivener's errors were carried forward into the certificate of title issued to and recorded by Deutsche Bank. A few months later, the appellant moved to vacate the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b), contending that in addition to vacating the final judgment, the case should be dismissed once the judgment was vacated. The appellant alleged three grounds in support of the motion: (1) the case was not at issue when it proceeded to a final hearing; (2) the plaintiff was an unregistered trust doing business in Florida; and (3) the error in the legal description in the final judgment required that the final judgment be vacated and the foreclosure process "must begin anew."

The trial court denied the appellant's motion, without elaboration. The appellant gave notice of appeal.

Appellate Analysis

On appeal, the sole issue the appellant raises is error in not vacating the final judgment. The appellant does not contend on appeal that the trial court erred in denying his request that the case be dismissed or failing to grant his motion on the other two grounds asserted below. Thus, those issues raised below are abandoned. Polyglycoat Corp. v. Hirsch Distribs., Inc. , 442 So.2d 958, 960 (Fla. 4th DCA 1983) ("When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed ... to be unworthy.").

An order denying a motion to set aside a judgment filed pursuant to rule 1.540(b) is generally reviewed for abuse of discretion. Adams v. Estate of Henderson , 155 So.3d 485, 487 (Fla. 4th DCA 2015). However, if the facts are not in dispute, and the trial court's decision is based on a pure question of law, then review is de novo . Cornelius v. Holzman , 193 So.3d 1029, 1031 (Fla. 4th DCA 2016).

A final judgment of foreclosure which contains an inaccurate legal description for the subject property can be vacated pursuant to rule 1.540(b). Id. at 1032. As the inaccurate legal description renders the judgment voidable, as opposed to void, relief must be sought within one year after the final judgment is entered. Id. In this case, the motion was timely filed.

On appeal, the appellant argues the trial court erred in denying his motion to vacate because the scrivener's errors were substantive and rendered the final judgment voidable.

In Caddy v. Wells Fargo Bank, N.A. , 198 So.3d 1149 (Fla. 4th DCA 2016), we determined that the trial court erred in denying the mortgagor's motion to vacate the final judgment which contained a single numerical error in the deed description that was carried into the amended complaint and consent judgment, even though the correct legal description was used in the advertisement for the sale. Id. at 1150. We concluded that, "[b]ecause the erroneous legal description was discovered after the final judgment and foreclosure sale, the court could not simply correct the legal description in the judgment and certificate of title. 'Rather, reformation required vacating the final judgment, judicial sale, and issuance of title.' " Id. (quoting Fed. Nat'l Mortg. Ass'n v. Sanchez , 187 So.3d 341, 343 (Fla. 4th DCA 2016) ).

Unlike the situation in Caddy , here, the error did not occur prior to the entry of the final judgment; instead the error first occurred upon the entry of the judgment itself . This factual distinction makes principles of law discussed in Caddy and the cases cited therein inapplicable. The situation in this case is arguably more in line with the case law discussing errors covered by Florida Rule of Civil Procedure 1.540(a), rather than rule 1.540(b).

Rule 1.540(a) provides:

(a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

(emphasis added). Florida courts have construed "clerical mistakes" to include "only errors or mistakes arising from an accidental slip or omission, and not errors or mistakes in the substance of what is decided by the judgment or order, the latter of which must be corrected pursuant to Rule 1.540(b)." Lorant v. Whitney Nat'l Bank , 162 So.3d 244, 245 (Fla. 1st DCA 2015) (quoting Freeman v. Sanders , 562 So.2d 834, 835 (Fla. 1st DCA 1990) ); see Town of Hialeah Gardens v. Hendry , 376 So.2d 1162, 1164 (Fla. 1979) (quoting Keller v. Belcher , 256 So.2d 561, 563 (Fla. 3d DCA 1971) ). As we have said, "Rule [1.540(a) ] limits relief to those seeking to correct errors or misprisions that result from an accidental slip or omission." McKibbin v. Fujarek , 385 So.2d 724, 725 (Fla. 4th DCA 1980).

In this case, the appellant has not furnished us with a transcript of the hearing on his rule 1.540(b) motion. "An appellant has the burden to present a record that will overcome the presumption of the correctness of the trial court's findings." Zarate v. Deutsche Bank Nat'l Tr. Co. , 81 So.3d 556, 557 (Fla. 3d DCA 2012). As noted above, Deutsche Bank filed a motion to amend the final judgment due to scrivener's errors. That motion does not cite any authority and has not been ruled upon by the trial court. However, it appears likely that the trial court denied the appellant's motion out of concern that the more proper remedy for the situation is an amendment of the final judgment. Thus, on this record, we cannot conclude that the trial court abused its discretion in denying the appellant's rule 1.540(b) motion. We take no position on whether rule 1.540(a) relief is appropriate.

Affirmed.

Warner and Gross, JJ., concur.


author: Gross, J.

text:
    Michael PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3064
    District Court of Appeal of Florida, Fourth District.
    [September 26, 2018]
    Carey Haughwout, Public Defender, and Marcy Karr Allen, Special Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Michael Lee Perry was convicted of seven felonies, all arising from a crime spree, for which he received various sentences, including life in prison. We write to address two issues-the giving of Florida Standard Jury Instruction (Criminal) 3.6(p) and the State's bolstering of an important witness. We hold that giving instruction 3.6(p) under the facts of this case and the State's bolstering of a police officer's testimony require a new trial.

The Defendant's History of Mental Illness

Because standard instruction 3.6(p) deals with "Abnormal Mental Conditions," we first focus on the defendant's history of mental illness as a background for the evidence at trial. The jury heard no expert testimony about the defendant's mental condition, but the defendant's history of mental illness may have influenced the judge's decision to include instruction 3.6(p) at the end of the case.

At the age of 16, Perry was in a juvenile detention facility and was placed in protective custody. While in isolation, he started hearing voices. Perry called the voices "spirits," and he said the spirits tell him what people are thinking. He was diagnosed with schizophrenia.

In January, 2014, at the age of 20, Perry was Baker Acted. The incidents in this case occurred two months after his release.

Perry's attorney first raised his mental condition as an issue in this case by moving for an examination to determine his competency because when she met with him she "could not have even a semblance of a rational conversation with him." A doctor examined the defendant and found him competent to proceed.

Perry's mental condition was raised a second time by a different court-appointed attorney, who filed a notice of intent to rely on the defense of insanity.

The case first proceeded to trial on June 26, 2017. The insanity defense was withdrawn. Before any jury was sworn, the judge called the defendant to the stand. He testified that he was on Cogentin for depression, schizophrenia, bipolar, ADHD, "and one other I believe." He stated that he had a history of hearing voices, and that the voices were talking to him that morning. When asked what the voices were telling him, he answered "the voices aren't telling me anything. They're just telling me what's in y'all head." When the prosecutor asked what was in his head, the defendant answered, "Your mind said 'B you crazy' - like bitch, you crazy." The defendant told the court that he could not focus on the jurors because of the voices that day.

The circuit judge declared a mistrial. Defense counsel moved for an examination to determine Perry's competency to proceed, among other things. The court appointed a doctor to examine Perry. The doctor's report found him competent to proceed to trial. The court entered an order adopting that finding and the case proceeded to a jury trial.

The Evidence at Trial

1. Robbery of the carpet installer, Attempted Robbery of the landlord, and Burglary of a Dwelling with Assault and Battery (2 counts).

On March 10, 2014, the landlord was inside his rental home doing minor repairs while supervising the installation of new carpet.

The carpet installer was sweeping a bedroom in the home when he was pushed from behind. He testified that he "felt a hand behind my back just push me against the wall." He thought it was a co-worker playing a joke until he realized his wallet had been removed from his back pocket. The carpet installer snatched his wallet out of the thief's hand, and the thief ran from the room.

The landlord saw the thief coming out of the bedroom where the carpet installer was working. The thief patted the landlord down "mainly around my waist to try to get my wallet I assume." The landlord pushed him away and the thief grabbed a broom and hit the landlord once on the back. The thief ran out, got on his bike and was "gone in a flash."

Later that day, the landlord and the carpet installer were shown photo arrays. The carpet installer was not able to identify the thief, but the landlord selected Perry's photograph. The landlord testified that he was 100 percent sure it was Perry who tried to rob him.

2. Robbery of the home health aide.

A couple of blocks away from the landlord's home, a home health aide (the "HHA") arrived at a client's house. As he knocked on his client's door, he was approached by a man who asked for change. The HHA told him that he did not have any change. The man's demeanor and facial expression changed. He said: "you know, I need some cash," and the HHA told him he did not have any to spare.

The man noticed the HHA's wallet attached to a chain. He said: "Well, I'll just take your f'ing wallet." The man punched the HHA in the face, and he fell to the ground. The man kicked and punched the HHA and ripped his wallet off of the chain which was attached to his pants. The thief left on a bicycle, turned back and smiled at the HHA, and gave him the middle finger.

The HHA called 911 and Officer Jacob Blaszyk arrived in 1-2 minutes. The HHA told the officer which way the thief was traveling and described him as a black male, 5'9?, weighing 170 pounds. He described his clothing as a green Dickies outfit with matching pants and a green hat.

The HHA was later driven to a show-up identification. He testified that he was able to identify the suspect at the show-up, even though he was not wearing the hat. At trial, the HHA testified that he was 100 percent sure that Perry was the man who robbed him.

3. The BOLO and Resisting Arrest Without Violence.

Officer Blaszyk radioed in a BOLO for a black male, approximately 5'8? wearing a green mechanic's outfit with matching pants and a white hat. A police sergeant saw a man matching the BOLO walking across a street toward a convenience store northwest of where the HHA was attacked.

The sergeant drove his marked car into a space behind the store so the car was concealed from the suspect as he approached. He waited around the corner, and when the suspect got close, he stepped out from behind the shop.

The sergeant described the stop: "I put my hand out and I says, hey, can I speak to you for a second?" The suspect stopped and "within a second, he just turned around and took off running." The sergeant pursued on foot and "ordered [the suspect] a couple of times to stop-"

4. Burglary of a Conveyance with Assault and Battery, Resisting with Violence, and Battery on a Law Enforcement Officer.

Perry was found hiding in the back of an SUV. The owner of the SUV testified that he did not give Perry permission to enter his vehicle.

After locating Perry, the sergeant and Officer Blaszyk opened the rear doors of the SUV. Officer Blaszyk gave an oral command for Perry to come out.

Officer Blaszyk said he acted quickly before Perry could come up with a plan; he jumped into the SUV and tried to pull Perry out, at which point the suspect started, "to actively resist by throwing punches and kicks." Another officer testified that Perry was actively and physically resisting and that Perry and Officer Blaszyk "just started going at it with each other ... in that close quarter ... compartment."

Officer Blaszyk testified that Perry started punching and kicking the minute he grabbed him. He stated: "One of his punches hit me in the eye. Just a flailing punch." Officer Blaszyk later testified that even though the punch was "just part of his flailing about," Perry intended to strike him "because he was striking me in the face."

As a result of the altercation, Perry sustained injuries to his face. Photographs placed in evidence showed Perry's beaten face which was scratched, bruised, and swollen.

5. Perry's statements

After Perry was arrested, Officer Blaszyk took him to the hospital. Officer Blaszyk testified that he read Perry his Miranda rights and then began to question him about robbing the HHA. Officer Blaszyk did not record the interaction. According to the officer, Perry "kinda told me that he was going through rough times in his life and that ... the guy on 22nd was in the wrong place at the wrong time, uh, he did what he had to do and he decided to punch him and take his wallet and that's what he did." The officer testified that Perry told him that he threw the wallet into a dumpster.

After he was released from the hospital, the police transported Perry to the police station. There, another officer took a second statement, which was recorded. The State played the DVD for the jury.

Perry's affect during the recorded interview does not present as someone with a serious mental condition. He leans forward, fails to make eye contact, sways, rambles, mumbles, gives inconsistent and contradictory responses, and repeats the phrase "yuh feh meh" at random.

During the recorded statement, Perry says he "ain't do nothing, man." When asked why he told Officer Blaszyk where he threw the wallet out, he says he was just telling him what he wanted to hear, "so he don't beat me." When asked why he ran, he said, "I don't know man I just lost it, I went psych."

He said he was having a "bad day" and throwing a "temper tantrum." He offered to plead no contest and said he will be straight. He reiterated: "I'm straight ... I mean I'm good ... I just ran from y'all you know what I'm sayin', cause I psyched out - spazzed out, yuh feh meh?"

6. Perry's defense at trial and convictions

Perry's defense to the robberies was misidentification. His defense to the resisting without violence charge was that the sergeant did not have grounds to stop him. His defense to the battery on a law enforcement officer charge was that he struck the officer without intent while he was being beaten and flailing. His response to the "rough times confession" was that Officer Blaszyk could not be believed because he did not tape the first interview.

The jury found that Perry was guilty on all counts. He was adjudicated and sentenced for: (1) burglary of a dwelling with assault or battery (two counts); (2) robbery of the carpet installer; (3) attempted robbery of the landlord; (4) robbery of the HHA; (5) resisting officer without violence; (6) burglary of a conveyance with assault or battery; (7) resisting officer with violence; and (8) battery on a law enforcement officer.

Giving The Abnormal Mental Condition Instruction Was Error

Over objection, the trial judge gave Criminal Standard Jury Instruction 3.6(p), which reads:

Mental illness, an abnormal mental condition, or diminished mental capacity is not a defense to any crime in this case. Any such evidence may not be taken into consideration to show that the defendant lacked the specific intent or did not have the state of mind essential to proving that [he][she] committed the crime[s] charged [or any lesser crime].

Perry argues that the instruction was erroneously given in this case because it was unsupported by the evidence and served only to mislead the jury. Perry argues that "absent an evidentiary basis, the instruction plays upon the stigma, fear and prejudice associated with the mentally ill."

We hold that it was error to have used the instruction under the facts of this case. When given, instruction 3.6(p) should be anchored to evidence in the case. Absent such evidence here, the instruction morphed into the judge's comment on the defendant and his recorded statement that interfered with the jury's determination of specific intent based on its evaluation of all the evidence in the case.

Our standard of review is abuse of discretion. Krause v. State , 98 So.3d 71, 73 (Fla. 4th DCA 2012). "Under the abuse of discretion standard of review, the party defending the jury instructions on appeal must show that the requested instruction accurately stated the applicable law, the facts supported giving the instruction, and the instruction was necessary in order to allow the jury to properly resolve all the issues in the case." Stokes v. Wynn , 219 So.3d 891, 894 (Fla. 4th DCA 2017). Here, the facts did not support giving the instruction.

Instruction 3.6(p) was added to the standard criminal instructions in 2017. In re Standard Jury Instructions in Criminal Cases-Report 2016-01 , 213 So.3d 680, 685 (Fla. 2017). The Comment to Instruction 3.6(p) provides scant guidance. It begins: "This instruction should be given only where it is applicable and appropriate under the facts of the case." This is little help; we doubt Florida judges are in the habit of reading jury instructions that are not applicable and appropriate under the facts of the case. The Comment continues:

"[D]iminished capacity is not a viable defense in Florida." Evans v. State , 946 So.2d 1,11 (Fla. 2006) ; Lukehart v. State , 70 So.3d 503, 515 (Fla. 2011). Evidence of an abnormal mental condition not constituting legal insanity is inadmissible "for the purpose of proving either that the accused could not or did not entertain the specific intent or state of mind essential to proof of the offense in order to determine whether the crime charged, or a lesser degree thereof, was in fact committed." Chestnut v. State , 538 So.2d 820 (Fla. 1989). In some cases, however, such evidence, or something that jurors might interpret as such evidence, might be admitted presumably for another purpose or might simply be obvious or apparent from the facts of the case. In such cases, it could be appropriate in the court's discretion to give this instruction to avoid the possibility of juror confusion.

Both the instruction and the Comment refer to "evidence." The three cases cited in the Comment all involved a specific type of evidence-expert testimony regarding an abnormal medical condition. See Evans , 946 So.2d at 11 (discussing "mental health experts' testimony"); Lukehart , 70 So.3d at 515 (involving expert testimony of a "Dr. Krop"); Chestnut , 538 So.2d at 821 (involving a proffer of "expert testimony seeking to establish" that the defendant "did not have the mental state required" for premeditated murder). The Comment also suggests that the "[e]vidence of an abnormal mental condition" might be "obvious or apparent from the facts of the case."

While the Comment does not give any scenarios where giving the instruction would be appropriate, there are situations where expert evidence of a defendant's state of mind is admissible to establish a defense other than insanity, and in such cases Instruction 3.6(p) might be proper. For example, in Filomeno v. State , 930 So.2d 821, 822-23 (Fla. 5th DCA 2006), the court found that it was error to exclude a psychologist's testimony about the characteristics of the "fight or flight" response where the defendant's state-of-mind was relevant to establish "the reasonableness of the use of force in self-defense." In State v. Mizell , 773 So.2d 618, 621 (Fla. 1st DCA 2000), the court found that evidence of the defendant's post-traumatic stress disorder was "relevant on the question of self-defense." In State v. Hickson , 630 So.2d 172 (Fla. 1993), the supreme court found that expert testimony on battered spouse syndrome was admissible to support the defendant's self-defense claim. Finally, in Delice v. State , 878 So.2d 465, 468 (Fla. 4th DCA 2004), this court held it was error to exclude the testimony of the defendant's psychiatrist because evidence of her depression was relevant to support her entrapment defense. In each of these cases, the jury could be given a limiting instruction that the expert testimony does not tend to prove lack of specific intent but rather is relevant to establish a particular defense. Id. at 468.

There are narrow exceptions to the general bar to testimony on mental conditions that undermine specific intent. The supreme court has observed that "evidence of voluntary intoxication and of other commonly understood conditions that are beyond one's control, such as epilepsy, are admissible in cases involving specific intent." Spencer v. State , 842 So.2d 52, 63 (Fla. 2003). "Unlike the notion of partial or relative insanity, conditions such as intoxication, medication, epilepsy, infancy, or senility are, in varying degrees, susceptible to quantification or objective demonstration, and to lay understanding." Chestnut , 538 So.2d at 823.

A jury's evaluation of a defendant's demeanor, recorded statement or testimony, is akin to those matters which a jury is allowed to consider in cases involving specific intent, because it is "susceptible ... to lay understanding." Id. Evaluating testimony is what a jury does at trial.

We have reviewed the recorded statement. Neither the defendant's behavior nor his references to "spazzing out" or "psyching out" constituted sufficient evidence of an abnormal mental condition to trigger the need for the instruction. Perry did not raise insanity as a defense. Unlike the defendants in Filomeno and Delice , Perry called no experts to testify about his mental condition. He did not seek to argue that his schizophrenia excused his conduct. He did not offer any "evidence" of mental illness, an abnormal mental condition, or diminished mental capacity within the meaning of the instruction or the comment.

"It could be said that many, if not most, crimes are committed by persons with mental aberrations." Chestnut , 538 So.2d at 825. Juries have traditionally listened to defendants' statements or evaluated their testimony in light of all the evidence in a case to decide whether a defendant had the requisite specific intent to be found guilty of a crime.

The trouble with Instruction 3.6(p) here is that it was tantamount to a comment on the evidence, a suggestion that Perry suffered from "mental illness or an abnormal mental condition or diminished mental capacity." Were the jurors supposed to make the diagnosis themselves from the recorded statement? If they decided that Perry suffered from an abnormal mental condition, did the instruction mean that they had to find Perry guilty as charged? Here, the instruction crossed the line and invaded the province of the jury to decide the issue of specific intent based on the evidence, unencumbered by expert testimony, as juries have done since the dawn of the republic.

Admission Of Irrelevant Testimony That Perry Did Not File An Administrative Complaint Or Lawsuit

We also conclude that the trial court erroneously admitted irrelevant evidence when it allowed Officer Blaszyk to testify that Perry had not commenced any internal affairs investigations or filed any lawsuits or complaints of police brutality against him. Specifically, the testimony that was elicited is:

Q. Now, uh, have you had any internal affairs filed against you from this Defendant?
A. No, I have not.
Q. Okay. Uh, any lawsuits or complaints of anything of police brutality or anything like that?
A. No, I have not.
* * *
Q. Okay. I was asking you, yeah, no Internal Affairs -
A. No Internal Affairs.
Q. Complaint from him? Any lawsuits of police brutality or -
A. No.
Q. Any allegations -
A. No.
Q. Or anything like that?
A. No.

At trial, counsel for Perry timely objected to the line of questioning. The State argued that the testimony was relevant because counsel for Perry had elicited testimony about Perry's injuries that resulted from the scuffle with Officer Blaszyk. Ultimately, the court found the lawsuit evidence was "marginally relevant given the potential defense."

"Relevant evidence is evidence tending to prove or disprove a material fact." § 90.401, Fla. Stat. (2017). "All relevant evidence is admissible, except as provided by law." § 90.402, Fla. Stat. (2017).

Perry's failure to bring a lawsuit or file an administrative complaint was irrelevant because it did not tend to prove or disprove whether Officer Blaszyk behaved appropriately when he forcibly arrested the defendant. Officer Blaszyk's motive for testifying and possible biases and prejudices were relevant, and these were areas the defendant was entitled to explore on cross-examination. Where a defendant has filed a complaint or lawsuit concerning an officer, such evidence is proper and relevant on cross-examination of the officer to expose biases and prejudices. See Lutherman v. State , 348 So.2d 624, 625 (Fla. 3d DCA 1977) (reversing conviction where defendant was not permitted to question two police officers about his pending police brutality complaints against them arising from the subject arrest); see also Breedlove v. State , 580 So.2d 605, 608 (Fla. 1991) (evidence of internal affairs investigation was relevant to the witness's bias or prejudice).

However, while lawsuit evidence may have been relevant and therefore admissible on cross-examination, the State was not entitled to bring out the absence of any lawsuit on direct examination of the officer. The failure to pursue a civil suit or an internal affairs investigation can be due to a variety of reasons unrelated to the truth of a defendant's claim of police misconduct. Perry was not less likely to have been a victim of excessive force simply because he chose not to file a civil suit or commence an internal affairs investigation.

The erroneous admission of the testimony was magnified by the prosecutor's closing, where he essentially testified that if there had been police brutality in this case, he would have taken action:

Let me tell you all something, police brutality exists, just not in this case. There are cases of police brutality and it's disgusting, it's criminal and it's evil. Any police officer who wears that badge and uniform if they commit police brutality, if they use excessive force, then not only do they deserve to lose their job, but they deserve to be prosecuted to the fullest extent . I will be the first one to tell you that, I would demand that . This ain't the case of police brutality.

Given the bolstering of Officer Blasyzk's testimony in closing, the error in admitting the testimony is not harmless beyond a reasonable doubt. After the closing, the jury might well have concluded that the absence of a lawsuit or internal affairs investigation meant that the officer had been cleared of any wrongdoing in the case. An examination of the entire record reveals that Officer Blasyzk was the State's key witness.

• He responded to the HHA's 911 call;
• He received the description of the suspect and then used that description when he put out the BOLO;
• He ordered Perry out of the car and decided when to use force and the level of force that was appropriate;
• He inflicted injuries to Perry's face while attempting to extract him from the car;
• He was the only witness to testify that Perry intentionally struck him in the face which may have resulted in Perry's conviction for battery on a law enforcement officer;
• He claimed to have read Perry his Miranda rights; and
• He claimed to have extracted an unrecorded post- Miranda , voluntary confession from Perry. Based on Officer Blaszyk's Miranda claims, the second officer did not read Perry his Miranda rights before the videotaped interrogation.

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

Conner and Klingensmith, JJ., concur.

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

      We interpret this to be the expression, "Do you feel me?", a slang phrase "used to see if someone understands what you are talking about." https://www.urbandictionary.com/define.php?term=Feel%20Me (last visited Aug. 27, 2018); see generally https://www.quora.com/What-does-the-phrase-Do-you-feel-me-mean (last visited Aug. 22, 2018) ("Sometimes the person asking the question wants to know if the people [he's] talking to can sympathize or empathize with what [he] is saying, that is [he] is asking do you feel the same way I feel about this. ").

      The State concedes that Perry's dual convictions for burglary of a dwelling constitute double jeopardy because they are based on a single entry. Gorham v. State , 968 So.2d 717, 718-19 (Fla. 4th DCA 2007). On remand, Counts 5 and 9 should be dismissed.

      In authorizing the instructions, the Court expressed "no opinion on their correctness and remind[ed] all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions." Id. at 681.


author: Mirman, Lawrence, Associate Judge.

text:
    Felix Josue MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2321
    District Court of Appeal of Florida, Fourth District.
    [October 10, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Mirman, Lawrence, Associate Judge.

At the age of seventeen, Appellant, Felix Martinez, shot two people who were seated in a car during the course of a drug transaction. One lived, the other perished. A jury convicted Appellant of second degree murder with a firearm, attempted second degree murder with a firearm, and shooting into an occupied vehicle. The trial court originally sentenced Appellant to life in prison without the possibility of parole on the second degree murder with a firearm count and to thirty years in prison with a minimum mandatory of twenty-five years under Florida's 10-20-Life statute.

However, following the Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and the subsequent codification of section 921.1401 of the Florida Statutes, Appellant was resentenced to fifty years on the second degree murder with a firearm count and to thirty years on the attempted second degree murder with a firearm count. These terms were imposed concurrent and each carried a twenty-five year minimum mandatory under the 10-20-Life statute. Appellant appeals the constitutionality of his new sentence, arguing that Miller prohibits imposition of statutory minimum mandatories, such as those contained in the 10-20-Life statute, to juvenile offenders. We reject Appellant's argument and affirm his sentence.

The starting point for analyzing Appellant's claim on appeal are two United States Supreme Court decisions: Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) and Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In Graham , the court provided that any sentence imposed on a juvenile offender for a non-homicide offense must provide a "meaningful opportunity [for the offender] to obtain release based on demonstrated maturity and rehabilitation." 560 U.S. at 75, 130 S.Ct. 2011. Following Graham , the Miller court held that before imposing a life sentence on a juvenile for a homicide offense, the sentencing court must first "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." 567 U.S. at 480, 132 S.Ct. 2455.

In response to Graham and Miller , the Florida Legislature adopted chapter 2014-220, Laws of Florida, which is primarily codified in sections 921.1401 and 921.1402 of the Florida Statutes. These laws outline the factors a court must take into account when considering whether a juvenile offender should be sentenced to life and provide a review mechanism for certain sentences imposed upon juveniles who commit capital, life, or first degree felonies. §§ 921.1401 -.1402, Fla. Stat. (2014). The Florida Supreme Court has since provided that all juvenile offenders who were given life sentences (whether discretionary or mandatory, homicide or not) without consideration of the factors enumerated in Graham and Miller are entitled to be resentenced pursuant to sections 921.1401-.1402 of the Florida Statutes. Kelsey v. State , 206 So.3d 5, 11 (Fla. 2016) ; Landrum v. State , 192 So.3d 459, 460-61 (Fla. 2016).

Appellant now argues that although he was resentenced as required by Miller and Landrum , the trial court's imposition of minimum mandatories under Florida's 10-20-Life statute nonetheless rendered his sentences unconstitutional. Reducing his argument to its simplest form, Appellant argues that any mandatory minimum sentence as applied to a juvenile offender divests the trial court of the authority to consider the juvenile offender's "youth and its attendant circumstances," and, therefore, violates the mandates of Miller and Landrum . We disagree.

This Court's decision in St. Val v. State , 174 So.3d 447 (Fla. 4th DCA 2015), is instructive. There, we affirmed a juvenile offender's twenty-five year minimum mandatory sentence for the crime of attempted first degree murder and, in doing so, held that minimum mandatory sentencing schemes not resulting in sentences of life without parole do not violate the principles espoused in Graham and Miller as applied to juvenile offenders. Id. at 448-49. We concluded that "unlike a life without parole sentence," a twenty-five year mandatory sentence as imposed on a juvenile offender allows for a "meaningful opportunity" for release and does "not result in a juvenile being classified as 'forever [ ] a danger to society' " Id. at 449-50 (quoting Miller , 567 U.S. at 472, 132 S.Ct. 2455 ).

Despite the parallels between the holding in St. Val and the instant case, Appellant argues that St. Val is not controlling because the St. Val court based its decision on the possibility for release and did not consider the specific argument raised by Appellant, which is that minimum mandatory sentences are unconstitutional because they prevent a juvenile offender from receiving individualized sentencing. Although the St. Val court did not specifically address the "individualized sentencing" concerns espoused by Miller , its holding was clear: non-life minimum mandatories imposed on juvenile offenders are not unconstitutional under Graham or Miller . Id. This holding does not leave any room for Appellant's nuanced argument.

Alternatively, Appellant suggests that St. Val was incorrectly decided in light of the Florida Supreme Court's subsequent decision in Landrum . Specifically, Appellant argues that the St. Val court narrowly viewed Miller as limiting its disapproval to mandatory sentencing schemes resulting in life without parole. However, in Landrum , the Florida Supreme Court noted "that the Miller court had no intention of limiting its rule of requiring individualized sentencing for juvenile offenders only to mandatorily-imposed sentences of life without parole, when a sentencing court's exercise of discretion was not informed by Miller's considerations." 192 So.3d at 467. Thus, Appellant maintains that St. Val's interpretation of Miller is at odds with Landrum .

Appellant's argument on this point also misses the mark. While Landrum does clarify that the holding of Miller applies to more than just mandatory life sentences without the possibility of parole imposed on a juvenile offender, it does not expand Miller to the bounds advocated by Appellant-that is-to all sentences imposed on a juvenile offender. Rather, the Landrum court clarified that any life sentence imposed on a juvenile offender, whether mandatory or discretionary, must be informed by the individualized considerations outlined in Miller . 192 So.3d at 469. As explained by the St. Val court, a twenty-five year minimum mandatory sentence as imposed on a juvenile offender is not the same as a life sentence. 174 So.3d at 449 -50. Thus, Landrum did not alter the holding of St. Val and, therefore, it remains that a twenty-five year minimum mandatory sentence "does not violate the stricture of Graham or Miller ." Id. at 449.

Additional support for this conclusion can be found in our sister court's decision in Young v. State , 219 So.3d 206 (Fla. 5th DCA 2017). The Young court held that a ten-year minimum mandatory sentence imposed on a juvenile offender under the 10-20-Life statute did not violate Miller or Graham . 219 So.3d at 209. In line with St. Val , the court reasoned that although the minimum mandatory "does limit, to some extent, the discretion of a trial court in sentencing a juvenile offender," such a limitation did not constitute cruel and unusual punishment when the sentence still allowed for " 'meaningful opportunity' for early release at a young age." Id. at 209-10. The court also rejected the same "individual considerations" argument raised by Appellant here, holding that it was without merit because the juvenile received an individualized sentencing hearing pursuant to section 921.1401(1) wherein the court considered whether a "term of life imprisonment"

was an appropriate sentence. Id. at 209.

Together, St. Val and Young establish that a sentence with a non-life minimum mandatory imposed against a juvenile offender facing a potential life sentence does not violate Graham or Miller so long as the juvenile was afforded an individualized sentencing hearing pursuant to section 921.1401 and is later afforded periodic judicial review of his or her sentence as provided in section 921.1402. Simply put, there is nothing about the 10-20-Life statute's minimum mandatory scheme that divests the court of the authority to consider whether a life sentence is appropriate for a juvenile offender. While it does prevent courts from fashioning sentences less than the applicable minimum mandatory, nothing in Miller or Landrum require a sentencing court to have absolute discretion in fashioning an unrestricted term of years sentence for a juvenile offender subject to a life sentence. Rather, the law merely requires the sentencing court to consider the offender's individual circumstances when determining "whether life imprisonment or a term of years equal to life imprisonment is an appropriate sentence." § 921.1401(2), Fla. Stat. (2016).

Here, the trial court considered the propriety of imposing a life sentence against Appellant at a section 921.1401 hearing wherein Appellant presented individualized evidence "relevant to the offense and the defendant's youth and attendant circumstances." Based on its consideration of this evidence and the relevant factors, the trial court determined that life was not an appropriate sentence for Appellant's homicide offense and instead sentenced him to fifty years in prison. We hold that this inquiry satisfied Miller's and Landrum's "individualized circumstances" mandates regardless of the minimum mandatory imposed under the 10-20-Life statute and, therefore, affirm Appellant's sentence.

Appellant also argues that section 921.1401 supersedes the 10-20-Life statute as applied to juveniles. We also reject this argument as, by its terms, section 921.1401 does not supersede the 10-20-Life statute. See Young , 219 So.3d at 210-11 (holding that "there is no clear indication that when it enacted the juvenile sentencing laws in 2014, the Florida Legislature intended to affect the [mandatory minimums outlined in the 10-20-Life statute]").

Affirmed.

Ciklin and Conner, JJ., concur.

      The 10-20-Life statute, which is codified in section 775.087 of the Florida Statutes, provides for mandatory minimum sentences for certain offenses when a defendant possesses a firearm (minimum of either three years or ten years depending on the offense), discharges a firearm (minimum of twenty years), or discharges a firearm and as the result of the discharge, inflicts death or great bodily harm (minimum of twenty-five years).


author: Per Curiam.

text:
    Nesrien AZURIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2861
    District Court of Appeal of Florida, Fourth District.
    [October 17, 2018]
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed.

Gerber, C.J. and May, J., concur.

Ciklin, J., concurs with opinion.

I concur in the decision to affirm. I write to draw attention to a problem presented somewhat regularly in the cases that come before this court: trial counsel's failure to preserve error. In this case, the lack of preservation was harmless beyond a reasonable doubt. This is not always the case.

Non-specific and non-articulated evidentiary objections by any party to a proceeding are categorically unacceptable and the profession should be alarmed at the frequency with which this lack of basic legal acumen takes place.


author: Klingensmith, J.

text:
    Joshua Daniel BROWN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-2510 4D17-2512
    District Court of Appeal of Florida, Fourth District.
    [October 24, 2018]
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant Joshua Brown appeals his convictions and sentences for the fraudulent use of personal identification information and grand theft, as well as the amended order revoking his probation. We affirm those convictions and sentences without comment, but write to address the trial court's amended order revoking probation.

Brown first challenged the revocation order under Florida Rule of Criminal Procedure 3.800(b)(2) because the order included a violation that had not been proven by any evidence and incorrectly listed December 24, 2016, as the violation date, when the violation of probation affidavit and testimony established that the violations occurred on December 23, 2016. The trial court granted the motion; however, the amended order failed to correct the violation date.

A review of the record shows the trial court intended to correct the scrivener's errors but failed to do so, and such written errors remained in the amended order. Accordingly, we affirm Brown's convictions and sentences, but remand with instructions for the trial court to correct the violation dates. See Obas v. State , 238 So.3d 853, 854 (Fla. 4th DCA 2018) ; Ali v. State , 215 So.3d 1250, 1251 (Fla. 4th DCA 2017) ; see also Sweeney v. State , 138 So.3d 1095, 1095 (Fla. 4th DCA 2014) (remanding for trial court to correct statute number on appellant's sentence). Brown's presence is not required for this ministerial action. See Obas , 238 So.3d at 854.

Affirmed, but remanded for correction of scrivener's errors.

Taylor AND Kuntz, JJ., concur.


text:
    Dominic Nathaniel DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2500
    District Court of Appeal of Florida, Fourth District.
    [October 31, 2018]
    Carey Haughwout, Public Defender, and Brad R. Schlesinger, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
    CONFESSION OF ERROR
   Per Curiam.

Dominic Davis appeals his conviction and sentence for felony battery with a weapon. Davis argues the written jury instructions were defective for failing to include "and" between the two numbered elements constituting felony battery. We affirm that issue without comment. However, Davis also appeals the amended portion of his sentence imposing a public defender fee in excess of $100, which the State correctly concedes was improper. We agree, and reverse and remand on that point.

The trial court sentenced Davis to twenty years in prison and imposed a $400 public defender fee. Davis moved to correct the public defender fee amount under Florida Rule of Criminal Procedure 3.800(b)(2), and asked the trial court to strike the $400 fee and impose the $100 fee required under section 938.29(1)(a), Florida Statutes (2018), or hold a hearing to determine the proper fee amount. The trial court granted Davis's motion, struck the $400 fee, and imposed a $300 fee. On appeal, Davis asks this court to require the trial court to strike the public defender fee, and either impose the $100 fee or hold a hearing. We agree.

"[T]he imposition of a public defender fee that exceeds the statutory minimum can only occur 'upon a showing of sufficient proof of higher fees or costs incurred.' " Alexis v. State , 211 So.3d 81, 82 (Fla. 4th DCA 2017) (quoting § 938.29(1)(a) ). From this evidence, the trial court is required to make factual findings that such higher fees or costs were actually incurred. See id. at 82-83. Additionally, when a trial court exercises its discretion to impose a public defender fee exceeding the statutory minimum, the fee "must be orally pronounced at sentencing because such costs may not be imposed without affording the defendant notice and an opportunity to be heard." Id. at 83 (quoting Mills v. State , 177 So.3d 984, 985 (Fla. 4th DCA 2010) ).

Accordingly, we reverse the amended public defender fee in the amount of $300 because the trial court failed to make any factual findings as to the fee amount. Moreover, the trial court failed to provide Davis with notice or an opportunity to contest the amount. We remand to correct those errors. See id.

Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion.

Gerber, C.J., Levine and Klingensmith, JJ., concur

      Davis does not dispute the $50 public defender application fee. § 938.29(1)(a), Fla. Stat. (2018).


author: Forst, J.

text:
    Samuel TORRES and Melissa Renaldo, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee.
    No. 4D17-2727
    District Court of Appeal of Florida, Fourth District.
    [October 31, 2018]
    Mark L. Pomeranz of Pomeranz & Associates, P.A., Hallandale, for appellants.
    James H. Wyman of Hinshaw & Culbertson LLP, Coral Gables, for appellee.
   Forst, J.

Appellants Samuel Torres and Melissa Renaldo ("Borrowers") appeal the final judgment of foreclosure entered in favor of Appellee Deutsche Bank National Trust Company ("the Bank"). Borrowers argue the Bank lacked standing to bring the foreclosure action and failed to comply with conditions precedent to foreclose. We affirm without comment on the standing issue. However, we find that the Bank failed to prove compliance with the condition precedent of mailing Borrowers a default notice as required by paragraph 22 of the mortgage. Thus, we reverse and remand for the trial court to enter an order of involuntary dismissal.

Background

Borrowers executed a note and mortgage with Novastar Mortgage, Inc. ("Novastar"). Paragraph 22 of the mortgage provided that, prior to acceleration, the lender must give the borrower notice and an opportunity to cure the default. Paragraph 15 provided that such notice must be written and "shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means."

The mortgage was assigned to the Bank. Shortly thereafter, the Bank filed a foreclosure complaint against Borrowers, alleging a default under the note and mortgage. The complaint also maintained that all conditions precedent to foreclosure had been fulfilled. In Borrowers' answer, they asserted as an affirmative defense that the Bank failed to comply with the condition precedent of mailing a default notice to Borrowers.

At trial, Bank introduced a default letter addressed to Borrowers from Novastar's servicer, Saxon, through the testimony of a senior loan analyst for the Bank's servicer, Ocwen Financial ("Ocwen"). The loan analyst's testimony laid the necessary foundation for admission of the notice letter, and admissibility of the letter is not at issue on appeal.

The loan analyst testified that, based upon the words "CERTIFIED MAIL" and "Return Receipt Requested" typed on the letter, and the barcode on the letterhead, she believed the letter had been sent to Borrowers. She admitted the file did not contain a copy of a return receipt. When asked if it was possible that the letter was created but never actually mailed, the loan analyst stated, "I don't see what would be the point of the servicer taking the time, money, and energy to generate a letter and not mail it out." The loan analyst further testified that although she was "not sure exactly how Saxon does it," she knew that once a borrower is in default, a letter is generated and verified before it is sent out. When asked if the Saxon payment history might reflect the certified mail cost of sending the letter, the loan analyst identified an entry for $7.00 dated one day after the date on the letter and labelled "breach fee." She stated that Ocwen's certified mail cost was $6.53, "[s]o it is similar."

The trial court denied Borrowers' motion for involuntary dismissal, and subsequently entered a final judgment of foreclosure in favor of the Bank.

Analysis

We review the denial of a motion for involuntary dismissal de novo. Deutsche Bank Nat'l Trust Co. v. Huber , 137 So.3d 562, 563 (Fla. 4th DCA 2014). An involuntary dismissal is proper when the evidence, viewed in the light most favorable to the non-moving party, fails to establish a prima facie case. Wells Fargo Bank, N.A. v. Balkissoon, 183 So.3d 1272, 1275 (Fla. 4th DCA 2016).

Where there are conditions precedent to filing the foreclosure suit, a bank must prove that it has substantially complied with them. Ortiz v. PNC Bank, Nat'l Ass'n, 188 So.3d 923, 925 (Fla. 4th DCA 2016). Along with the note, mortgage, and evidence regarding the outstanding debt on the loan, the default or acceleration letter must be introduced to demonstrate entitlement to foreclosure. Liberty Home Equity Sols., Inc. v. Raulston , 206 So.3d 58, 60 (Fla. 4th DCA 2016). In addition to introducing the letter, the bank must also present competent, substantial evidence that the letter was actually mailed. Ensler v. Aurora Loan Servs., LLC , 178 So.3d 95, 97 (Fla. 4th DCA 2015).

Evidence that a document was drafted is insufficient, standing alone, to establish that it was in fact mailed. See Burt v. Hudson & Keyse, LLC , 138 So.3d 1193, 1195 (Fla. 5th DCA 2014). Rather, the "mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt." CitiBank, N.A. for WAMU Series 2007-HE2 Tr. v. Manning , 221 So.3d 677, 681 (Fla. 4th DCA 2017) (quoting Allen v. Wilmington Tr., N.A. , 216 So.3d 685, 688 (Fla. 2d DCA 2017) ).

If the evidence comes by way of witness testimony, "the witness must have personal knowledge of the company's general practice in mailing letters." Allen , 216 So.3d at 688 (citing CitiMortgage, Inc. v. Hoskinson , 200 So.3d 191, 192 (Fla. 5th DCA 2016) ); accord Spencer v. Ditech Fin., LLC , 242 So.3d 1189, 1191 (Fla. 2d DCA 2018). Mere reliance on the boarding process to prove that the notice letter was mailed is insufficient. See Allen , 216 So.3d at 687.

Without personal knowledge on the part of the witness, her testimony was insufficient to establish the letter was mailed. Here, there was no return receipt and no affidavit swearing that the letter was mailed. The loan analyst's testimony was the Bank's only evidence that the letter had been mailed to Borrowers. The loan analyst testified that she did not have personal knowledge of Saxon's regular business practices of mailing default letters, and merely opined that it did not make sense "to generate the letter and not mail it out." See id. at 688 (finding witness's testimony that "she knew the letter was mailed because it had been created, the account did not contain anything indicating that it was returned as undeliverable, and 'servicers aren't in the habit of generating letters that they don't send' " was insufficient to establish mailing).

The loan analyst also speculated that the $7.00 "breach fee" likely reflected the cost to mail the letter because it was dated the day after the date on the letter, and because the amount was similar to the amount Ocwen pays for certified mail costs. This, too, was insufficient evidence of Saxon's business practices. See Spencer , 242 So.3d at 1190 (finding the testimony insufficient when the witness merely speculated as to the procedures and policies of the prior servicer based on informal discussions with co-workers who previously worked for the prior servicer).

Finally, we note that the request for a return receipt was typed on the letter, and the barcode on top of the letter was generated at the time of printing the letter. However, this establishes only that the letter was created and printed. Without more, that is insufficient to prove mailing. See Allen , 216 So.3d at 687 ; Burt , 138 So.3d at 1195.

Conclusion

While the record contains sufficient evidence that the default letter was produced, neither the letter nor the witness's testimony established mailing. Thus, the Bank failed to prove that it complied with its contractual requirement to mail a notice of default to Borrowers as a condition precedent to foreclosure. Accordingly, we reverse and remand for involuntary dismissal of the action. See Blum v. Deutsche Bank Tr. Co. , 159 So.3d 920, 920-21 (Fla. 4th DCA 2015) (reversing a final judgment of foreclosure and remanding for dismissal based on the bank's failure to prove it complied with the notice requirement by mailing the notice to the defendant).

Reversed and Remanded for entry of an involuntary dismissal of the action.

May, J. and Hilal, Jennifer W., Associate Judge, concur.