author: Rowe, J.

text:
    Ruben MCCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4167
    District Court of Appeal of Florida, First District.
    June 8, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

Ruben McCloud appeals the trial court's order revoking his probation based on a new law violation, specifically McCloud's convictions for two counts of attempted manslaughter by act. Because the trial court did not err in revoking probation, we affirm.

Background

On October 14, 2008, McCloud was charged in Leon County with engaging in an organized scheme to defraud. He pleaded no contest on January 15, 2009, and was sentenced to 210 days in jail followed by 12 months of community control and 2 years of probation.

On April 6, 2010, and while still on probation, McCloud was arrested and charged in Duval County with two counts of attempted murder, one count of shooting or throwing deadly missiles into a dwelling or building, and one count of possession of a firearm by a convicted felon. The Department of Corrections filed a violation of probation affidavit in Leon County the next day, alleging McCloud violated condition five of his probation by failing to live and remain at liberty without violating any law and condition ten by failing to make payments to the probation officer as directed. The affidavit listed as new law violations the same offenses that formed the basis of the Duval County charges.

McCloud went to trial on the Duval County charges. The jury found him guilty of two counts of attempted second-degree murder and one count of shooting or throwing deadly missiles. McCloud appealed the judgment and sentence.

While his appeal was pending, the Leon County court held a violation of probation hearing. The State presented a certified copy of McCloud's Duval County judgment and sentence, and the court revoked McCloud's probation. He was sentenced to 15 years' imprisonment on the original charge of engaging in an organized scheme to defraud.

On October 9, 2014, McCloud's Duval County convictions were reversed and the case was remanded for a new trial. McCloud v. State , 150 So.3d 822 (Fla. 1st DCA 2014). Because the Leon County court revoked probation solely on grounds of the overturned convictions, we granted McCloud a belated appeal and reversed the revocation order. McCloud v. State , 213 So.3d 971 (Fla. 1st DCA 2016). We remanded for the Leon County court to hold a new violation of probation hearing.

Before the violation of probation hearing, McCloud was retried in the Duval County case. The jury found him guilty of two counts of "attempted manslaughter by act, a lesser[-]included offense." At the remanded violation hearing, the State proceeded only on the claim that McCloud committed a new law violation and presented a certified copy of McCloud's Duval County judgment and sentence for attempted manslaughter by act. The court determined the certified conviction constituted evidence of a willful violation, revoked McCloud's probation, and sentenced him to 15 years' imprisonment.

McCloud appeals the revocation order arguing that the trial court erred by revoking probation on the basis of violations not alleged in the probation affidavit. Citing our recent decision in Bonner v. State , 138 So.3d 1101 (Fla. 1st DCA 2014), McCloud argues that because the offense of attempted manslaughter by act was not one of the new law violations listed in the violation of probation affidavit, the trial court committed fundamental error by revoking probation. We disagree.

A trial court fundamentally errs by revoking probation on grounds not alleged in the violation of probation affidavit. Perkins v. State , 842 So.2d 275, 277 (Fla. 1st DCA 2003) ; Smith v. State , 738 So.2d 433, 435 (Fla. 1st DCA 1999). As a matter of due process, probationers are entitled to notice of which laws the probationer is alleged to have violated and "an opportunity to present a defense to them." Hines v. State , 358 So.2d 183, 185 (Fla. 1978) ; see also N.L. v. State , 825 So.2d 509, 509-10 (Fla. 1st DCA 2002). However, the violation of probation affidavit need only "allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence." Hines , 358 So.2d at 185.

The violation of probation affidavit in this case provided McCloud with notice that his probation was subject to permanent revocation based on his Duval County charges for two counts of attempted murder. Although he was ultimately convicted of two counts of attempted manslaughter by act, attempted manslaughter by act is a necessarily lesser-included offense of attempted murder. State v. Montgomery , 39 So.3d 252, 255-56 (Fla. 2010) ; Hill v. State , 124 So.3d 296, 297 (Fla. 2d DCA 2013). Probation is properly revoked where a probationer is convicted of a necessarily lesser-included offense of the crime identified in the violation of probation affidavit. See Ray v. State, 855 So.2d 1260, 1261 (Fla. 4th DCA 2003) (reversing where revocation was based on "a charge altogether different from that which the trial court relied upon as a factual basis for the revocation" and noting that "[t]his case is dissimilar from the situation where an affidavit alleges a particular offense, but the probationer is actually convicted of a lesser[-]included offense"); Thomas v. State , 634 So.2d 276, 277 (Fla 4th DCA 1994) (finding probationer had sufficient notice of the nature of the charges where affidavit alleged new law violation of resisting arrest with violence, but probationer was actually convicted of resisting arrest without violence). A revocation based on a necessarily lesser-included offense of the one alleged in the violation of probation affidavit does not violate a probationer's due process rights because a necessarily lesser-included offense is one "in which the statutory elements are always subsumed within those of the charged offense." See Sanders v. State , 944 So.2d 203, 206 (Fla. 2006). Because the State presented evidence of McCloud's convictions for a necessarily lesser-included offense of the one alleged in the violation of probation affidavit, the trial court did not err in revoking probation, and we affirm McCloud's judgment and sentence.

We note, however, that the trial court's revocation order does not conform to the oral pronouncement because it also includes a finding that McCloud violated condition ten (failure to make payments). The State abandoned this allegation at the start of the violation of probation hearing and the parties never addressed it. Accordingly, we affirm the order revoking McCloud's probation, but remand for entry of a corrected order reflecting only a violation of condition five (new law violations). See Lee v. State , 826 So.2d 457 (Fla. 1st DCA 2002). McCloud need not be present.

AFFIRMED .

Ray and Makar, JJ., concur.

      Our decision in Bonner does not compel a different result. There, the crime alleged was nonexistent and by definition could not have any lesser-included offense. 138 So.3d at 1102.


source: Caselaw Access Project

author: Roberts, J. Winokur, J., dissenting.

license: Public Domain

text:
    James William MOCK, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2038 1D16-2039 1D16-2040 1D16-2041 1D16-2042 (Consolidated for disposition)
    District Court of Appeal of Florida, First District.
    June 8, 2018 Rehearing Denied July 2, 2018
    Andy Thomas, Public Defender, and Steven Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee
   Roberts, J.

The appellant, James William Mock, III, argues that the trial court violated the principles of double jeopardy when it resentenced him on three counts to fifteen years in prison when it previously sentenced him to ten years in prison on those counts. Based on the written terms of the plea agreement, the representations made by the State and defense during the presentation of the plea agreement, and evidence that the trial court had the plea agreement before it prior to accepting the plea, we find that the appellant had an expectation in the finality of his sentences.

When the appellant's case came before the trial court, defense counsel told the trial court that the parties had entered into a plea agreement to resolve all of the appellant's pending cases. Defense counsel stated that the State agreed to drop some of the charges in four of the appellant's six cases and to run his sentences concurrently. Upon the State announcing that it had agreed to run the three minimum mandatory sentences concurrently rather than consecutively, the trial court asked for the cases numbers for those minimum mandatory sentences. After the State provided the case numbers, the State said "[a]nd all sentences for all cases will be run concurrent as well." Defense counsel then explained the terms of the plea agreement, which included a reiteration that all of the appellant's remaining eight counts would run concurrently, with the sentences being up to the trial court.

During the plea colloquy, the trial court went over the minimum and maximum sentences the appellant could receive for each felony degree. The appellant acknowledged that he understood each of the sentencing ranges. The trial court then stated that the State agreed to run the minimum mandatory sentences concurrently even though they were supposed to run consecutively and the minimum sentence he could receive was ten years in prison and the maximum sentence was life imprisonment. The appellant acknowledged that he understood. Later in the plea colloquy, the trial court acknowledged that it had plea agreement before it when it asked the appellant if he had thoroughly reviewed the terms of it. The written plea agreement stated that the State agreed that all of the sentences would run concurrently. The trial court ultimately accepted the appellant's plea and postponed sentencing.

In the interim, the appellant hired private counsel and filed a motion to withdraw his plea stating that his prior counsel had coerced him into accepting the plea and that he did not have sufficient time to fully evaluate his decision. Weeks later, he filed a notice withdrawing his motion to withdraw his plea. When the case came back before the trial court, the trial court conducted another colloquy with the appellant to ensure that he understood the terms of his prior plea deal and that he would be bound by those terms. In that colloquy, the trial court stated that the appellant was leaving sentencing up to the trial court and his mandatory minimum sentences would still run concurrently. The appellant stated that he understood the terms and still wanted to withdraw his motion to withdraw his plea.

When the parties reconvened months later for sentencing, the appellant was still represented by private counsel and there was a different prosecutor assigned to the appellant's case. The trial court ordered one of the appellant's sentences, from a case not before this Court on appeal, to run consecutively to his other sentences. Neither the State nor the defense brought it to the trial court's attention that the consecutive sentence violated the plea agreement.

The consecutive sentences prompted the appellant to file a motion to correct sentencing error pursuant the Florida Rules of Criminal Procedure 3.800. At the resentencing hearing, the trial court stated that it remembered the plea agreement being represented as an agreement to run only the minimum mandatory sentences concurrently, but the trial court noted that the written plea agreement did not limit the concurrent sentences. The defense argued that the plea form was a contract, and the appellant was entitled to have all his sentences run concurrently. The State argued that the trial court's interpretation of the parties' agreement was supported by the "spirit of the agreement" and the plea colloquy. The State further argued that the original prosecutor also confirmed that this was the understanding of the parties. The trial court stated that it always intended to sentence the appellant to fifteen years in prison and increased the sentences at issue by five years.

The legality of a sentence is a question of law and as such is reviewed de novo. Washington v. State , 199 So.3d 1110, 1111 (Fla. 1st DCA 2016). Courts perform a de novo review to determine if a double jeopardy violation has occurred. Graham v. State , 170 So.3d 141, 142 (Fla. 1st DCA 2015).

As [one's right to be free from double jeopardy] relates to barring multiple punishments for the same offense in the noncapital sentencing context, the application of the double jeopardy clause turns on the extent and legitimacy of a defendant's expectation of finality in that sentence. If a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited by the double jeopardy clause. If, however, there is some circumstance which undermines the legitimacy of that expectation, then a court may permissibly increase the sentence. In other words, the later imposition of more onerous terms violates the double jeopardy clause only when it disrupts the defendant's legitimate expectations of finality.

Dunbar v. State , 89 So.3d 901, 904-05 (Fla. 2012) (internal citations omitted) (internal quotations omitted).

In this case, the State argues that such circumstances exist. The State argues that the appellant waived his right to double jeopardy or had no expectation of finality in his sentences. Finding no waiver, we turn to whether the appellant had an expectation of finality. The only argument advanced by the State that the appellant did not have an expectation in the finality of his sentences is predicated on the appellant's affirmative misrepresentation of facts to the trial court. The State argues that the appellant knew the trial court was making an error and failed to correct the trial court's error concerning the terms of his plea agreement. The Florida Supreme Court has stated that a defendant who actively misrepresents facts to the trial court does not have an expectation in the finality of his sentences. Goene v. State , 577 So.2d 1306, 1309 (Fla. 1991). To support its position that the appellant did not have an expectation in the finality of his sentences based on a misrepresentation, the State cited to two cases.

The first case is Unger v. State , 492 So.2d 1168 (Fla. 4th DCA 1986). In Unger , the Fourth District Court of Appeal reviewed the original plea colloquy and found that the defendant did not deceive the trial court about her previous criminal history as alleged by the State, but merely answered her counsel's questions about the restitution in her previous case. The Fourth District Court held that the defendant did not waive her double jeopardy rights because the record was far from clear that the defendant either intended to misrepresent her criminal record or understood that her failure to furnish more information about her criminal record could result in a harsher sentence.

The State also cited to United States v. Jones , 722 F.2d 632 (11th Cir 1983). In Jones , the trial court structured the defendant's sentence in a way that allowed him to assist in the harvesting of his crops, so that the crops could be sold to help pay back the federal government the money the defendant owed it. Later that same week, the trial court realized that it had erroneously concluded that the yield from the crops could be used to pay back the government and increased the defendant's sentence. On appeal, the Eleventh Circuit said that one could argue that the defendant knew or should have known that the trial court misunderstood the situation, but it declined to create a process to explore a defendant's understanding of the process. The Eleventh Circuit reasoned that even though the defendant might have been aware that the government would have difficulties in obtaining any portion of the crop yields, it could not assume that the defendant knew that the trial court had not taken all the available information into account and would have sentenced him more harshly if it had. The Eleventh Circuit held that the defendant had an expectation in his initial sentence.

Based on Unger and Jones , there should be evidence contained in the record that the appellant withheld information from the trial court. The only possible information the appellant could have withheld from the trial court was his knowledge of the trial court's misunderstanding about the plea agreement. In order for this Court to find that the appellant withheld this knowledge, this Court has to know that the appellant possessed this knowledge. There are multiple instances in which the trial court stated that the State had agreed to run the minimum mandatory sentences concurrently. Those statements can be interpreted as containing the entirety of the trial court's understanding of the plea, or as the trial court emphasizing that specific portion of the plea agreement because that portion required the trial court to sentence the appellant to at least ten years in prison. Because the trial court's statements can be interpreted differently, this Court cannot assume that the appellant possessed the knowledge that the trial court was confused about the plea agreement.

The dissent argues that the appellant should have known that he was facing a maximum sentence of fifteen years in prison when he filed his motion to correct sentence. This argument assumes that the trial court had the ability to hold tight to a sentencing scheme even when only one sentence is challenged and no sentencing scheme was readily apparent. Unlike some federal courts, Florida courts have not adopted this procedure. Accordingly, we reverse and remand for reinstatement of the appellant's original sentences in each of the cases on appeal.

REVERSED and REMANDED with directions.

M.K. Thomas, J., concurs; Winokur, J., dissents with opinion.

Winokur, J., dissenting.

Mock initially received a sentence of ten years on these counts, followed by a consecutive sentence of five years, in spite of the fact that the plea agreement called for all counts to run concurrent. Mock later informed the court that the counts were supposed to run concurrent, so the court altered the sentences to fifteen years concurrent. Mock then claimed that the increase of sentences from ten to fifteen years violates double jeopardy because he had a "legitimate expectation of finality" in the ten-year sentences. I would affirm because I cannot conclude that a defendant has a legitimate expectation of finality in a sentence that violates the plea agreement on which it is based. See Dunbar v. State , 89 So.3d 901, 904-05 (Fla. 2012) (noting that "the later imposition of more onerous terms 'violates the double jeopardy clause only when it disrupts the defendant's legitimate expectations of finality' ") (quoting United States v. Young , 953 F.2d 1288, 1291 n. 3 (11th Cir. 1992) ). To the extent Mock did have a reasonable expectation of finality in the original sentence, it was that it called for a total of fifteen years imprisonment. This term remained unchanged by the second sentencing order.

Mock's claim is curious because it was he who actually moved the court to correct the sentencing order. The court did so, but in a manner that did not suit him. Mock then changed course and claimed that he had a reasonable expectation in the finality of the very sentence that he had moved to correct. Appellant reasonably expected finality in the entire original sentence, not just the part of it that benefits him.

The majority holds that a defendant has a reasonable expectation of finality in a sentence unless there is "evidence contained in the record that the appellant withheld information from the trial court." Maj. op. at 745. Reasoning that the record here discloses no evidence that Mock withheld knowledge of the court's misunderstanding of the plea agreement, the majority concludes that he had a reasonable expectation that the ten-year sentences were final.

Annatone v. State , 198 So.3d 1031 (Fla. 5th DCA 2016), belies this rule: the defendant there did not withhold information that resulted in an improper sentence. Instead, the parties simply failed to correct the sentencing court when it entered a sentence that was contrary to the plea agreement. Id. A "reasonable expectation" is not "any expectation that does not derive from deception." It is just one that is reasonable. Mock's expectation that he could only be sentenced to ten years was unreasonable. It was unreasonable not because he withheld the fact that the sentence violated the plea agreement, but because no reasonable person could rely on a sentence that violates the plea agreement. Nor would any person who reasonably expected finality in a sentence move to change it. Accordingly, I would affirm the challenged sentences and would not unduly restrict the meaning of "unreasonable" in this context.

      See Annatone v. State , 198 So.3d 1031, 1034 (Fla. 5th DCA 2016) (finding that a defendant has no legitimate expectation of finality in the pronouncement of restitution in an amount lower than that to which he agreed as part of a negotiated plea agreement that the court had accepted).See also State v. Rodrigues , 218 P.3d 610, 618-19 (Utah 2009) (holding that a defendant had no legitimate expectation of finality of a sentencing order "because it did not reflect what he had agreed to in the plea agreement").


author: Wetherell, J.

text:
    Edward WALLACE, Appellant, v. Tina KELDIE, Appellee.
    No. 1D17-2877
    District Court of Appeal of Florida, First District.
    June 13, 2018 Rehearing Denied July 16, 2018
    Woodburn S. Wesley, Jr., of Wesley, McGrail & Wesley, Fort Walton Beach, for Appellant.
    Samantha D. Costas and Linda H. Wade of Wade, Palmer & Shoemaker, P.A., Pensacola, for Appellee.
   Wetherell, J.

Appellant, the plaintiff below, appeals the order dismissing his personal injury suit against Appellee with prejudice for fraud on the court. We find no abuse of discretion in the dismissal of the suit because the record supports the trial court's finding that Appellant fraudulently concealed his history of chronic low back pain by falsely testifying about his medical history during his deposition. Accordingly, we affirm the dismissal order.

I

On two separate occasions in May 2014, Appellant was riding in a car owned by Appellee, his "fiancée," when the car was allegedly rammed by a white pickup truck. Both times, the pickup truck fled the scene after hitting Appellee's car.

In June 2016, Appellant filed a complaint alleging that Appellee was negligent with respect to the second accident and that he suffered permanent injuries to his neck and low back as a result of that accident. During discovery, Appellant disclosed that he injured his low back in the early 1980s, but he testified in his deposition that the injury "healed" and that he had not had any problems with his low back in the 30 years since. He also denied having been to see a doctor for low back pain since 2000.

Appellant's medical records told a different story. A record from an emergency room visit in October 2013-seven months before the accidents-states that Appellant reported that he hurt his low back by slipping off a stepladder, resulting in pain that he described as "aching and crushing" at a level of "10 out of 10" and radiating to his left leg. The record also states that Appellant reported having a "chronic" history of similar episodes and of a herniated disc. Additionally, a record from an emergency room visit in May 2014, nine days after the second accident, states that Appellant reported that his back pain started "a long time ago" but was made worse by the first accident.

Appellee filed a motion to dismiss based upon the discrepancies between Appellant's deposition testimony and his medical records. The trial court held an evidentiary hearing on the motion at which Appellant admitted his history of low back pain as reflected in the medical records, but he claimed that his contrary deposition testimony was not due to an intent to deceive but rather was attributable to his "poor memory" caused by mental health issues, heavy drinking, and his medications. The trial court granted the motion to dismiss, finding that Appellant's deposition testimony was "patently false" and that he had "fraudulently concealed ... his prior personal injuries."

This appeal followed.

II

A

Before addressing the merits of the appeal, we explain our resolution of a procedural issue that arose after Appellee died during the pendency of this appeal. Appellee's death did not render the appeal moot because it is well-established that personal injury actions survive the death of the alleged tortfeasor, but as discussed below, her death required us to cancel the scheduled oral argument and decide this appeal on the briefs.

In March 2018, after briefing was complete, counsel for Appellee filed a notice suggesting that Appellee had died on February 5, 2018. About a month later, Appellant filed a motion pursuant to Florida Rule of Appellate Procedure 9.360(c)(3) to appoint an "attorney/guardian ad litem" for Appellee. The motion asserted that "no [probate] estate has or will be opened [for Appellee] in Florida or in any other state" and requested that "T. David Mann, Esquire,[ ] be named as Attorney/Guardian Ad Litem and that he be substituted ... as the real party in interest for [Appellee]." In support of this request, Appellant relied on Schaeffler v. Deych in which the Fourth District stated that "[i]f no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted." 38 So.3d 796, 800 (Fla. 4th DCA 2010) (quoting Vera v. Adeland , 881 So.2d 707, 710 (Fla. 3d DCA 2004) ). The motion represented that although Appellee's counsel did not object to the appointment of Mr. Mann, she believed that Appellant had to petition to open a probate estate for Appellee at his expense.

We denied the motion in an unpublished order citing Judge Warner's concurring opinion in Gomez v. Fradin , 199 So.3d 554 (Fla. 4th DCA 2016). In that case, the Fourth District dismissed an appeal of a nonfinal order denying the plaintiffs' motion to appoint an administrator ad litem for a defendant who had died and for whom no probate estate had been opened. Id. at 555 (citing Fla. R. App. P. 9.130 ) ("The order merely denying substitution is a non-final, non-appealable order."). Judge Warner's concurring opinion cogently explained why the plaintiff would not have been entitled to relief even if the appeal had been treated as a petition for writ of certiorari. Id. Specifically, Judge Warner explained that the trial court did not depart from the essential requirements of law in denying the plaintiffs' motion to substitute because there is no statutory or rule authority for a court to appoint an administrator ad litem to represent a deceased defendant in a pending civil lawsuit. Id. at 555-56. Judge Warner further explained that the language from Schaeffler quoted above-and relied on by Appellant in this case-was dicta and that a plaintiff's remedy when a defendant dies and no probate estate is opened is to petition for administration of the estate as an unsecured creditor. Id. at 556 (citing Harrison-French v. Elmore , 684 So.2d 323 (Fla. 3d DCA 1996) ).

Although Gomez involved a motion to substitute filed pursuant to Florida Rule of Civil Procedure 1.260(a), the reasoning in Judge Warner's concurring opinion applies equally to motions to substitute filed pursuant to rule 9.360(c)(3) because the rules use nearly identical language-providing for substitution of the "proper" party without providing authority for determining whom that might be-and serve the same purpose. Accordingly, in addition to denying Appellant's motion to appoint an attorney/guardian ad litem for Appellee, the order directed Appellant to "show cause ... why this appeal should not be abated until a probate estate is opened for Appellee and the personal representative is appointed and substituted for Appellee in this appeal."

Appellant filed a response to the order to show cause in which he argued that the appeal should proceed with the current parties because briefing is complete. He also argued that requiring a probate case to be opened for Appellee would be an unnecessary burden on the court system if the dismissal order is ultimately affirmed, and he suggested that if we reversed the dismissal order, we could "remand ... for further adjudication after a 'proper' defendant is substituted for the deceased defendant/appellee." Finally, he argued that "the logic of ... Colucci v. Colucci , 309 So.2d 67 (Fla. 2d DCA 1975) is applicable here."

Although Appellant's suggested procedure seems practical, it ignores the fact that upon her death, Appellee could no longer be a party to this appeal, see Xtra Super Food Center. v. Carmona , 516 So.2d 300, 301 (Fla. 1st DCA 1987) ("[D]eceased persons cannot be parties to a judicial ... proceeding."), nor could her attorney represent her interests, see Rogers v. Concrete Sciences., Inc. , 394 So.2d 212, 213 (Fla. 1st DCA 1981) ("The death of a client terminates the relationship between the attorney and client and the attorney's authority to act by virtue thereof is extinguished."). Moreover, because Appellee's probate estate would be responsible for paying any resulting judgment if the dismissal order was reversed and Appellant's suit was allowed to proceed, the personal representative of the estate had a right to be represented, participate in oral argument, and file any necessary post-opinion motions as the real party in interest.

Moreover, the Colucci case cited by Appellant is distinguishable because the appeal in that case "was completely ready for decision" at the time of the party's death. 309 So.2d at 67. Here, by contrast, the appeal was not ready for decision when the suggestion of death was filed because oral argument had been scheduled but not yet held. Cf. Poling v. City Bank & Tr. Co. of St. Petersburg , 189 So.2d 176, 184-85 (Fla. 2d DCA 1966) (denying motion to substitute personal representative for party who died after oral argument because, at that point, the appeal was "completely ready for decision").

Thus, we were left with two options-either abate the appeal as described in the order to show cause or cancel oral argument and decide this appeal based on the briefs. We found the latter option to be more appropriate in this case because (1) the appeal was ready for decision aside from the pending oral argument, and (2) it was Appellant who requested oral argument in the first place, so his request for the appeal to proceed with the current parties and his reliance on Colucci 's logic was viewed as a waiver of oral argument. Accordingly, by unpublished order, we advised the parties that "oral argument ... is cancelled and this appeal will be submitted on the briefs."

B

Turning to the merits of the appeal, we review the dismissal order under a mixed standard of review: the factual findings on which the dismissal was based are reviewed for competent substantial evidence, see Tramel v. Bass , 672 So.2d 78, 79 (Fla. 1st DCA 1996), while the legal conclusion that a fraud upon the court has occurred and the trial court's decision to dismiss the case with prejudice are reviewed for an abuse of discretion, see Wells Fargo Bank, N.A. v. Reeves , 92 So.3d 249, 251 (Fla. 1st DCA 2012).

Appellant argues that reversal is warranted for essentially three reasons: (1) the dismissal order failed to include detailed factual findings; (2) the trial court's oral and written findings were insufficient to establish fraud; and (3) it was an abuse of discretion to dismiss the matter with prejudice. We reject each argument in turn.

First, we reject Appellant's argument that the dismissal order did not include sufficient written factual findings because this issue was not preserved. See Freiha v. Freiha , 197 So.3d 606, 608 (Fla. 1st DCA 2016) ("A motion for rehearing must be filed with the trial court to challenge a final judgment's lack of sufficient findings of fact to allow meaningful appellate review."). Even if the argument was preserved, it is without merit because the primary case on which Appellant relies in support of this argument- Chacha v. Transport USA, Inc. , 78 So.3d 727 (Fla. 4th DCA 2012) -is not binding on this Court and is readily distinguishable. In Chacha , the trial court did not hold an evidentiary hearing or make any relevant oral findings and issued a nonspecific written order that in no way demonstrated that the court "carefully balanced the policy favoring adjudication on the merits with the competing policy to maintain the integrity of the judicial system." Id. at 731. By contrast, the trial court in this case held an evidentiary hearing, made oral and written findings that clearly provided the basis for the dismissal, and made comments at the evidentiary hearing reflecting consideration of the competing policy interests. Specifically, on the latter point, the trial court stated that the applicable clear and convincing evidence standard is "very high" and that this was a "[t]ough case" and "very difficult" because dismissal is a "very harsh result." Then, after orally granting the motion to dismiss, the court stated that "[t]his is not done lightly, believe me."

Next, we reject Appellant's argument that there was insufficient evidence of fraud because the trial court's findings that Appellant provided false testimony both during his deposition and at the evidentiary hearing is supported by competent substantial evidence. During his deposition, Appellant was specifically asked whether he had prior back injuries and he responded by mentioning a 42-foot fall from a roof in the early 1980s, but he then immediately stated "but I mean, I was healed. You know, I didn't have any trouble." Appellant denied that the roof accident resulted in any broken bones or surgery and explained: "[I]t messed it up a little bit, made it sore for a while. I had healed since then. I mean, I was fine. Like I said, I'd been running heavy equipment 22 years. I didn't have no problems." This sworn testimony is in stark contrast with the medical records from Appellant's 2013 and 2014 emergency room visits, which provide that Appellant had a history of chronic low back pain that intensified after the first car accident in May 2014, which is not the subject of this suit. Moreover, during the October 2013 visit, Appellant presented to the emergency room complaining of excruciating low back pain, which he failed to make any mention of in his deposition. In fact, he denied having been to see any doctor regarding back pain since 2000.

The trial court had plenty of reason to discount Appellant's testimony at the evidentiary hearing that his deposition testimony was the result of "poor memory" rather an intent to deceive. For example, Appellant has an extensive criminal history, including numerous crimes of dishonesty. Additionally, despite the fact that Appellant continued to claim to have no recollection of the excruciating pain he experienced less than seven months prior to the car accidents or the associated emergency room visit, he admitted in his testimony at the evidentiary hearing that he had experienced low back pain since the 1980s roof incident, in accordance with the medical records and in direct conflict with his deposition testimony that he was completely "healed" and had "no problems" after that incident. Accordingly, we have no basis to set aside the trial court's finding that Appellant fraudulently concealed his medical history. See Ramey v. Haverty Furniture Co. , 993 So.2d 1014, 1019 (Fla. 2d DCA 2008) ("We recognized the trial court's assessment of the credibility of the plaintiff's testimony at the evidentiary hearing as a basis for the trial court's exercise of discretion.").

Finally, we reject Appellant's argument the trial court abused its discretion in concluding that Appellant's fraudulent concealment of his chronic low back pain warranted dismissal of his suit with prejudice. "A trial judge has the inherent authority to dismiss actions based on fraud."

Hutchinson v. Plantation Bay Apartments, LLC , 931 So.2d 957, 959-60 (Fla. 1st DCA 2006) (quoting Distefano v. State Farm Mut. Auto. Ins. Co. , 846 So.2d 572, 574 (Fla. 1st DCA 2003) ). Fraud on the court occurs when clear and convincing evidence demonstrates "a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense." Id. at 960 (quoting Cox v. Burke , 706 So.2d 43, 46 (Fla. 5th DCA 1998) ).

Here, Appellant's false testimony concerned his injury history, which is at the very heart of this case. See Distefano , 846 So.2d at 574 ("When a party lies about matters bearing directly on the issue of damages, dismissal is an appropriate sanction."); Baker v. Myers Tractor Servs., Inc. , 765 So.2d 149, 150-51 (Fla. 1st DCA 2000) ("[T]he false testimony of Baker did not concern a matter collateral to his claim, but was directly related to a central fact necessary to establish his claim."). Appellant's attempt to conceal information so pertinent and critical to his claim cannot be considered anything less than an "unconscionable scheme calculated to interfere" with the proper adjudication of the matter. Appellant asserts that if he intended to deceive the court, he would not have reported the 1980s injury at all. However, being truthful about some facts while denying or omitting others does not constitute the "truthful disclosure of facts" on which "[t]he integrity of the civil litigation process depends." Cox , 706 So.2d at 47 ; see also Distefano , 846 So.2d at 575 (quoting Morgan v. Campbell , 816 So.2d 251, 254 (Fla. 2d DCA 2002) ).

The trial court's decision to dismiss this case with prejudice is supported by "the need to maintain [the] institutional integrity [of the judicial system] and the desirability of deterring future misconduct." Ramey , 993 So.2d at 1020 (quoting Aoude v. Mobil Oil Corp. , 892 F.2d 1115, 1118 (1st Cir. 1989) ) (alteration supplied). It is immaterial that Appellant does not appear to have had (or concealed) any prior neck injury because "where a party lies about matters pertinent to his own claim, or a portion of it , and perpetrates a fraud that permeates the entire proceeding, dismissal of the whole case is proper." Cox , 706 So.2d at 47 (citing Savino v. Fla. Drive In Theatre Mgmt., Inc. , 697 So.2d 1011 (Fla. 4th DCA 1997) ) (emphasis added). Accordingly, the trial court did not abuse its discretion in dismissing Appellant's suit.

III

Based on the foregoing, we affirm the trial court's order dismissing this case with prejudice for fraud on the court.

AFFIRMED .

Ray and Osterhaus, JJ., concur.

      Although Appellant referred to Appellee as his fiancée, he explained that they are not actually engaged and were only living together as "boyfriend-girlfriend" because he was still married to-but "legally separated" from-another woman.

      The driver of the pickup truck in the first accident was eventually identified. It is unclear from the record whether the same pickup truck and driver were also involved in the second accident.

      The complaint did not assert any claims related to the first accident.

      The motion also asserted that Appellant misrepresented his substantial criminal history in his deposition testimony, but the trial court ruled that dismissal was not warranted on that basis.

      See § 46.021, Fla. Stat. ("No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law."); Waller v. First Sav. & Tr. Co. , 103 Fla. 1025, 138 So. 780, 789 (1931) ("A majority of the court have reached the conclusion that under the laws of Florida a right of action in tort for the recovery of purely compensatory damages for personal injuries caused by a tortfeasor in his lifetime does not die with the tort-feasor, but that such right of action, which has accrued against the tort-feasor in his lifetime, survives after his death, and that an action at law based thereon may be brought or maintained by the injured party against the personal representative of the estate of the deceased tortfeasor for the recovery of compensatory damages out of the tortfeasor's estate for the personal wrong and injury done.").

      The rule provides that "[i]f a party dies while a proceeding is pending and that party's rights survive, the court may order the substitution of the proper party on its own motion or that of any interested person."

      The motion did not provide any information about Mr. Mann's qualifications, experience, or relationship to the parties or their counsel; it simply stated that Mr. Mann agreed to serve as the attorney/guardian ad litem for Appellee and that "[t]here is no immediate action required of Mr. Mann."

      We recognize that an insurance company is likely providing the defense in this case and will be responsible for paying the judgment up to the policy limit, but Appellee's estate would be responsible for paying any excess judgment and would be an indispensable party if the suit had gone forward. See Nationwide Mut. Fire Ins. Co. v. Holmes , 352 So.2d 1233, 1234 (Fla. 4th DCA 1977) ("If a plaintiff is required to prove that the insured was negligent in order to recover from his insurer, the insured is an indispensable party and no action may proceed against the insurer without him, or his properly substituted party."); Cope v. Waugh , 627 So.2d 136, 136 (Fla. 1st DCA 1993) (citing Floyd v. Wallace , 339 So.2d 653 (Fla.1976) ) ("Upon the death of an indispensable party, the action abates until the deceased party's estate, or other appropriate legal representative, has been substituted pursuant to rule 1.260(a)(1).").

      This phrase appears to have come from former Florida Appellate Rule 3.11(e)(5), which provided: "If any party to the appeal shall die after the cause is completely ready for decision, but before decision rendered, a survivor of the suit against the deceased party shall not be necessary." Although this language is not contained in the current appellate rules, the permissive tone of rule 9.630(c)(3)-"the court may order the substitution of the proper party"-allows the court not to order substitution in circumstances such as those described in former rule 3.11(e)(5).


author: Per Curiam.

text:
    Ava ELECTRIS Cannie Eva Electris Cannie, Petitioner, v. WILMINGTON SAVINGS FUND SOCIETY FSB dba et al., Respondent.
    No. 1D17-5453
    District Court of Appeal of Florida, First District.
    June 12, 2018 Rehearing Denied July 25, 2018
    Ava Electris Cannie Eva Electris Cannie, pro se, Petitioner.
    David Rosenberg of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Respondent.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.100(c)(1).

Rowe, Kelsey, and Winokur, JJ., concur.


author: B.L. Thomas, C.J.

text:
    Brooke Larae NESS f/k/a Brooke Larae Martinez, Appellant, v. Robert Jason MARTINEZ, Appellee.
    No. 1D17-2742
    District Court of Appeal of Florida, First District.
    June 13, 2018
    David A. Carroll, Pensacola, for Appellant.
    Robert Jason Martinez, pro se, Appellee.
   B.L. Thomas, C.J.

Appellant raises several issues challenging the lower court's order denying her petition for relocation and granting Appellee's petition for modification of time-sharing. We address each of Appellant's arguments.

We reject Appellant's argument that the trial court violated the holding of Perlow v. Berg-Perlow , which states that while a proposed order "can serve as a starting point and reminder of the facts and issues that should be considered ... such submissions cannot substitute for a thoughtful and independent analysis ... by the trial judge." 875 So.2d 383, 389-90 (Fla. 2004). "But Berg-Perlow held only that a judge should announce findings when possible; it did not mandate that he or she do so[.]" In re: T.D. v. Department of Children and Family Servs. , 924 So.2d 827, 831 (Fla. 2d DCA 2005) (emphasis in original). Here, after actively participating in the trial, the court stated it would review the exhibits before reaching a decision, and neither party objected to the court's request for written closing arguments and proposed orders. See Empire World Towers, LLC v. CDR Creances, S.A.S. , 89 So.3d 1034, 1046 (Fla. 3d DCA 2012) (holding there was no impropriety where the trial court adopted one party's proposed order after submissions from both parties); Beharry v. Drake , 52 So.3d 790, 792 (Fla. 5th DCA 2010) (affirming order adopted verbatim from one party's proposed final judgment where both parties submitted proposals, the court did not enter judgment until six days after receiving the proposals, the record did not reveal any impropriety, and the findings were supported).

We also disagree with Appellant's contention that the trial court reversibly erred in denying her petition for relocation. An order on a petition for relocation is reviewed for an abuse of discretion, and the appellate court considers whether competent, substantial evidence supports the court's findings under section 61.13001(7), Florida Statutes. Muller v. Muller , 964 So.2d 732, 733 (Fla. 3d DCA 2007). While there is no presumption in favor of or against allowing relocation, the party seeking to relocate carries the burden to prove the move is in the child's best interest. See § 61.13001(7) - (8), Fla. Stat.

Appellant asserts there was evidence that relocation was in the child's best interest, as the child had always done well in her care, she had secured stable employment in Alabama with an increased salary and more job security, and her proposed relocation plan included more overnight time-sharing for Appellee than under the final judgment of dissolution. She further argues the court failed to consider the financial benefits to be gained by relocation.

The court's findings as to the benefits and detriments of the proposed relocation are supported by competent, substantial evidence. See Muller , 964 So.2d at 733. This evidence supports the court's conclusion that relocation would remove the child from the extended family, and that relocation would not increase the child's educational opportunities. Although our view may not be the same as that of the trial court, we can only review the record for supporting evidence, and cannot " 'engage in 'reweighing the evidence and making the value judgments that are appropriate for the trial judge.' " Botterbusch v. Botterbusch , 851 So.2d 903, 904-05 (Fla. 4th DCA 2003) (quoting Flint v. Fortson , 744 So.2d 1217, 1218 (Fla. 4th DCA 1999) ). The trial court did not ignore the evidence presented by Appellant, but found these benefits were outweighed by the negative impacts on the child that would result from the relocation.

We must disagree also with Appellant's argument that the trial court reversibly erred in its order modifying time-sharing. Appellate courts review orders modifying time-sharing for an abuse of discretion, although the discretion afforded to trial courts in modification is narrower than in initial time-sharing determinations. Ragle v. Ragle , 82 So.3d 109, 111 (Fla. 1st DCA 2011). A modification order must be supported by competent, substantial evidence showing there has been a substantial and material change in circumstances since the final judgment of dissolution, and that the modification will be in the best interests of the child. Lewandowski v. Langston , 969 So.2d 1165, 1169 (Fla. 5th DCA 2007) ; see also § 61.13(3), Fla. Stat.

Appellant asserts that the court's decision to grant modification was based solely on her relocation and on the parties' agreement to temporarily expand Appellee's time-sharing upon his return from deployment, arguing that neither of these are legally sufficient bases for modification. See, e.g. , Segarra v. Segarra , 947 So.2d 543, 547 (Fla. 3d DCA 2006) ("A desire to relocate alone, as a matter of law, is not a substantial change in circumstances sufficient to warrant modification of custody."); Smoak v. Smoak , 658 So.2d 568, 569 (Fla. 1st DCA 1995) (explaining that using the parties' mutual agreement to temporarily expand visitation as the basis for modification would discourage cooperation between parents).

Relocation alone is not necessarily sufficient to constitute a substantial change of circumstances warranting modification of the time-sharing arrangement. See, e.g. , Ragle , 82 So.3d at 112 ; Ogilvie v. Ogilvie , 954 So.2d 698, 701 (Fla. 1st DCA 2007) ; Segarra , 947 So.2d at 547. However, in Rossman v. Profera , the Fourth District affirmed an order denying relocation and granting modification under circumstances similar to those presented here. 67 So.3d 363 (Fla. 4th DCA 2011). In Rossman , the court recognized the general proposition that relocation alone cannot support modification, but observed:

A vital factor, however, distinguishes the instant case from the aforementioned cases: the mother had already relocated, despite a pending relocation request based upon the prior final judgment's explicit restriction on relocation, and the mother did not intend to move back to Florida. The trial court's denial of the relocation request, which we have already addressed and affirmed, properly denied the request to relocate with the minor child. This meant that the minor child would not be leaving Florida. However, the mother had already moved to Texas and was not returning. The end result was this: the minor child, who was not leaving Florida, lived in an entirely different state from the then-custodial parent, who was not moving back to Florida. Given this unique situation, the evidence clearly indicated that a substantial change in circumstances had occurred.

Id. at 367 (footnote omitted; emphasis in original).

Here, under the final judgment of dissolution, the parties were prohibited from moving more than fifty miles from their present residence without following the provisions of section 61.13001, Florida Statutes. While Appellant did notify Appellee of her intention to move a month before the relocation, she did not secure his written consent or file a formal petition, as required. § 61.13001(3), Fla. Stat. And there was no indication that Appellant planned to return to Florida if the relocation petition were denied. Cf. Rossman , 67 So.3d at 365 (noting testimony and closing argument indicating "that the mother was unwilling to return to Florida, no matter how the court ruled on her relocation request.").

We again caution trial courts, however, that it is not proper to use a parent's cooperation against that parent. As we have previously recognized, this " 'would have the deleterious effect of discouraging cooperation between parents when they agree to make temporary changes in their children's living arrangements to serve their children's best interests.' " Smoak , 658 So.2d at 569 (quoting Henderson v. Henderson , 537 So.2d 125, 127 (Fla. 1st DCA 1988) ); but see Pedersen v. Pedersen , 752 So.2d 89, 91 (Fla. 1st DCA 2000) (holding that the view that Smoak , Henderson , and similar cases precluded using voluntary relinquishment of custody as a basis for modification under any circumstances was "misleading and overly broad," and reversing dismissal of petition for modification where the mother voluntarily left the child with the father for an extended period, did not fully take advantage of visitation, and the child was thriving with the father and wanted to remain in his care). Here, the trial court did not commit reversible error in granting the modification, but we do acknowledge that Appellant did not demonstrate a disinterest in maintaining time-sharing by allowing Appellee additional time with the child, following Appellee's deployment. Such cooperation is to be commended.

Regarding the order on child support, we reverse and remand the lower court's award. We review an award of child support to determine whether it is based on competent, substantial evidence of the parties' net income. Vanzant v. Vanzant , 82 So.3d 991, 993 (Fla. 1st DCA 2011) ; see also § 61.30, Fla. Stat. (providing for calculation of child support based on the parties' net income, and explaining that net income is determined by subtracting allowable deductions from gross income). Here, the court did not make an express finding as to the parties' gross or net income, but ordered Appellant to pay $608 to Appellee in monthly child support, apparently based on the support guidelines worksheet submitted by Appellee. While the gross income amount used for calculating Appellant's net income matches the figure on her most recent financial affidavit, Appellee's worksheet fails to subtract some of the allowable deductions listed on Appellant's affidavit. This discrepancy is not explained by any testimony or other evidence in the record contesting these deductions. Thus, because the record lacks a basis supporting the net income used in calculating Appellant's child support obligation, the award must be reversed for reconsideration. Vanzant , 82 So.3d at 993. On remand, "the trial court shall make specific findings explaining how the award was calculated and justifying any material deviation from the guideline support amount." Id. (citing § 61.30(1)(a), Fla. Stat.).

Finally, with regard to Appellant's challenge to the court's ruling on attorney's fees and costs, an appellate court lacks jurisdiction to review an attorney's fees award "until both the issues of entitlement and amount are ruled upon." Allstate Ins. Co. v. Jenkins , 32 So.3d 163, 165 (Fla 5th DCA 2010) ; see also Magnolia Fla. Tax Certificates v. Alexa1 , 229 So.3d 1288 (Fla. 1st DCA 2017). Here, the lower court reserved jurisdiction to determine Appellee's request for attorney's fees, but did not rule on the amount. Accordingly, we decline to consider the arguments regarding fees and costs. See Salem v. Abram , 868 So.2d 1213, 1214 (Fla. 2d DCA 2004) (affirming the judgment in part, but dismissing the portion of the appeal challenging attorney's fees, where the trial court had not yet determined the amount to be awarded).

AFFIRMED in part, REVERSED in part, DISMISSED in part, and REMANDED .

Bilbrey and Jay, JJ., concur.


text:
    John MCKAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1753
    District Court of Appeal of Florida, First District.
    June 13, 2018 Rehearing Denied July 25, 2018
    John McKay, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.140(b)(3).

Rowe, Kelsey, and Winokur, JJ., concur.


text:
    Bonnie E. DANIELS, Appellant, v. Justin CAPARELLO, Appellee.
    No. 1D17-2718
    District Court of Appeal of Florida, First District.
    June 18, 2018
    Jerry L. Rumph, Jr. of Sweeting & Rumph, P.A., Tallahassee, for Appellant.
    Robert A. McNeely of Messer Caparello, P.A., Tallahassee, for Appellee.
    ON MOTION FOR CLARIFICATION, FOR REHEARING, FOR REHEARING EN BANC, AND FOR CERTIFICATION
   Wetherell, J.

Appellant's motions for rehearing, rehearing en banc, and certification are denied, but her motion for clarification is granted in part. The opinion issued on April 20, 2018, is withdrawn and the following opinion is substituted in its place.

Appellant, the mother, seeks review of a nonfinal order establishing the timesharing schedule for the parties' child. We affirm for the reasons that follow.

In 2015, the parties entered into a mediated settlement agreement to resolve the paternity action filed by Appellee, the father, concerning the parties' then two-year-old child. The agreement-which was "ratified, confirmed, and approved" in the final judgment entered by the court in the paternity action-provided for shared parental responsibility and established a timesharing schedule for the father that gradually increased to "50-50/equal time sharing ... beginning June 1, 2017, and thereafter." The agreement did not specify how the 50-50 timesharing would be structured, but rather provided that the parties would mediate that issue in early 2017 if they were unable to agree on a schedule.

In May 2017, after an unsuccessful mediation, the father filed a motion to enforce the 50-50 timesharing requirement in the mediated settlement agreement and to establish a schedule for the 50-50 timesharing.

At the hearing on the motion, the judge stated his intent to order a "default week-on, week-off" timesharing schedule, but before that ruling was memorialized in a written order, the parties stipulated to a different schedule. The order entered by the trial court adopted the schedule stipulated to by the parties.

In seeking to reverse the trial court's order, the mother essentially raises three arguments. We find each argument to be without merit.

First, we summarily reject the mother's argument that the trial court erred in ordering 50-50 timesharing effective June 1, 2017, because as the trial court found, the clear and unambiguous language of the mediated settlement agreement provides for 50-50 timesharing from that date forward. By its terms, the only issue the agreement left open for subsequent litigation was "how that 50-50 parenting time schedule should be structured."

Second, with respect to the specific timesharing schedule established by the trial court, we agree with the father that the mother invited any error and cannot challenge that schedule on appeal because she stipulated to it. See Mohammad v. Mohammad , 371 So.2d 1070, 1071 (Fla. 1st DCA 1979) ; Duffy v. Duffy , 247 So.2d 493, 493 (Fla. 2d DCA 1971) ; Shenk v. Shenk , 126 So.2d 286 (Fla. 3d DCA 1961).

Finally, we reject the mother's argument that the trial court erred by not expressly finding that the stipulated-to timesharing schedule was in the child's best interest. This argument was not preserved for appellate review because the mother never presented it to the trial court for a ruling. See Hentze v. Denys, 88 So.3d 307, 311 (Fla. 1st DCA 2012) ; LaCoste v. LaCoste, 58 So.3d 404, 405 (Fla. 1st DCA 2011) ; Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007). We recognize that the mother argued at the hearing that "[t]here's a plethora of potential 50/50 schedules out there [a]nd the Court has to determine which of those schedules is in the best interest of the child." However, after the trial court entered the order adopting the timesharing schedule stipulated to by the parties post-hearing, the mother did not file a motion for reconsideration or otherwise apprise the trial court that it still needed to find the stipulated-to schedule to be in the child's best interest. Moreover, because the mother does not argue on appeal that the specific schedule established by the trial court (which she agreed to) is not in the child's best interest, we decline to hold that the trial court's failure to make a best interest finding is fundamental error in this case.

Accordingly, we affirm the order establishing the 50-50 timesharing schedule for the parties' child.

AFFIRMED .

Wolf and Roberts, JJ., concur.

      We did not overlook the mother's argument that 50-50 timesharing in general is not in the child's best interest, but that argument is foreclosed in this proceeding by the finding in the final judgment in the paternity action that the mediated settlement agreement requiring 50-50 timesharing effective June 1, 2017, "promotes the minor child's best interests." Thus, any challenge to the 50-50 timesharing established by the mediated settlement agreement and implemented in the order affirmed in this appeal will need to be pursued in a separate modification proceeding.


author: PER CURIAM.

text:
    Brenda J. HOLMES, on Behalf of Herself and All Other Persons Similarly Situated, Appellant, v. CITY OF PALM BAY and Gatso USA, Inc., Appellees.
    Case No. 5D16-2993
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 15, 2018
    David M. Kerner and Jason D. Weisser, of Schuler, Halvorson, Weisser, Zoeller & Overbeck, P.A., and Andrew A. Harris, of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.
    Robert Alden Swift, Christina Bredahl Gierke and Christine A. Wasula, of Cole Scott & Kissane, P.A., Orlando, for Appellee Gatso USA, Inc.
    Erin J. O'Leary and Scott Danahy, of Garganese, Weiss & D'Agresta, P.A., Orlando, and Andrew P. Lannon, Patricia D. Smith, Peter J. Sweeney, Jr., Jill E. Jacobs, and Wendy L. Fisher, of Office of the City Attorney City of Palm Bay, Palm Bay, for Appellee City of Palm Bay.
   PER CURIAM.

Brenda Holmes appeals a non-final order denying her motion to certify the class. We affirm the trial court's order determining that Holmes failed to establish the typicality and predominance elements required under Florida Rule of Civil Procedure 1.220(a) and 1.220(b)(3), respectively. See Easter v. City of Orlando , 249 So.3d 723, 2018 WL 2746467 (Fla. 5th DCA June 8, 2018). We further conclude that there was no error in the trial court's determination that Holmes failed to establish that she would be an adequate class representative.

AFFIRMED.

EVANDER, BERGER and EDWARDS, JJ., concur.


author: SUAREZ, J.

text:
    Barbara STONE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-278
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018.
    Jacob M. Noble (Palm Beach Gardens), for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS, and LUCK, JJ.
   SUAREZ, J.

Barbara Stone appeals from a thirty-month state prison sentence imposed on violation of probation. We reverse and remand for a new sentencing hearing.

In 2014, Stone entered into a plea agreement to the charge of interference with custody, a third degree, non-forcible felony. She scored 22 sentencing points. The trial court found her guilty, withheld adjudication and placed her on three years of reporting probation with special conditions. The State subsequently filed several affidavits alleging Stone violated the terms of her probation. At the 2018 hearing on violation of probation, Stone admitted to the violation allegations and agreed to plead to the court. At that hearing, evidence was presented that Stone absconded from probation, committed violence against a police officer, and repeatedly violated probation by purposefully and maliciously contacting those persons she was ordered not to contact, including the original trial court judge. The trial court revoked Stone's probation and adjudicated her guilty of the underlying non-forcible third degree felony, and found her statements and behavior at the sentencing hearing indicated a lack of remorse that caused the court genuine concern for the safety of the community if non-state sanctions were once again imposed. The trial court sentenced Stone to thirty months in state prison with credit for time served.

Stone filed a timely motion in the trial court to correct an illegal sentence, which the trial court granted in part as to additional credit for time served. The trial court did not alter the sentence. On appeal, Stone argues that the trial court's sentence was an illegal upward departure based on a scoresheet that reflected only 22 total sentencing points. Further, Stone claims that the trial court based this upward departure sentence solely on the basis of Stone's apparent lack of remorse.

Because the trial court impermissibly relied on Stone's apparent lack of remorse at sentencing, we reverse and remand for a new sentencing hearing before a different judge. See, e.g., Dinkines v. State, 122 So.3d 477, 480 (Fla. 4th DCA 2013) (finding reversible error in trial court's consideration of defendant's perceived lack of meaningful remorse in imposing state prison sentence); Green v. State, 84 So.3d 1169, 1171 (Fla. 3d DCA 2012) (and cases cited therein, holding lack of remorse, the failure to accept responsibility, or the exercise of one's right to remain silent at sentencing may not be considered by the trial court in fashioning the appropriate sentence). As such, we decline to reach the remaining issue on appeal.

Reversed, and remanded with directions.


text:
    IN the INTEREST OF S.E., a child.
    J.W., Appellant, v. Department of Children and Families and Guardian ad Litem Program, Appellees.
    Case No. 2D17-5088
    District Court of Appeal of Florida, Second District.
    Opinion filed June 20, 2018.
    Ita M. Neymotin, Regional Counsel, Second District, Fort Myers, and Marisa L. Gonzalez, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Mary Soorus, Assistant Attorney General, Tampa, for Appellee Department of Children and Families.
    Thomasina F. Moore, Statewide Director of Appeals, and Laura J. Lee, Appellate Counsel, Sanford; and J. Logan Murphy of Hill Ward Henderson, Tampa, for Appellee Guardian ad Litem Program.
   PER CURIAM.

J.W., the father, appeals from the circuit court's amended order terminating protective services and jurisdiction, reunifying the child with the mother, and denying a motion for rehearing. He raises two issues on appeal. The Department of Children and Families (the Department) concedes error as to both issues, and the Guardian ad Litem Program (GALP) concedes error as to the first issue. We accept the Department's and the GALP's concessions of error to the extent they acknowledge that the circuit court failed to comply with the requirements of section 39.521(7), Florida Statutes (2017). We therefore reverse and remand the portion of the order that terminates the Department's supervision and the circuit court's jurisdiction.

Furthermore, in ordering reunification of the mother with the child, the circuit court failed to comply with the requirements of section 39.522. Thus, we also reverse the portion of the order granting reunification. We remind the circuit court that on remand it must comply with all the requirements of chapter 39.

Reversed and remanded for further proceedings.

KELLY, CRENSHAW, and BLACK, JJ., Concur.

      We note that the circuit court sua sponte ordered reunification of the mother with the child and that the issue of reunification was not before it at the time it did so. Because none of the parties have raised the issue of whether this was appropriate, we need not make that determination.


author: Winsor, J. Wolf, J., dissenting.

text:
    BECK AUTO SALES, INC., Appellant, v. ASBURY JAX FORD, LLC, and Lisa Marasco, Appellees.
    No. 1D17-2242
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Katherine E. Giddings and Kristen M. Fiore, Akerman LLP, Tallahassee, and Donald E. Holmes, Russell D. Castleberry, and George A. Young, Holmes & Young, P.A., Palatka, for Appellant.
    Christopher B. Lunny, M. Drew Parker, and Angela D. Miles, Radey Law Firm, Tallahassee, for Appellee Asbury Jax Ford, LLC. No appearance for Appellee Marasco.
   Winsor, J.

A car dealership sued its former employee and a competing dealership, alleging that the two conspired to steal business worth millions of dollars. Based on an arbitration agreement between the plaintiff dealership and the former employee (Lisa Marasco), the trial court sent claims against the employee to arbitration. The issue in this case is whether the trial court should have also sent the claims against the competing dealership-a nonparty to the arbitration agreement. The defendant dealership argued that under principles of equitable estoppel, all claims against both defendants should be arbitrated. The trial court disagreed, and we do too.

I.

In 2015, Asbury Jax Ford, LLC, doing business as Coggin Ford, acquired a car dealership in Jacksonville, Florida. The acquired dealership had a contract and longstanding relationship with the City of Tallahassee, to which it sold many vehicles. When Coggin acquired the other dealership, it acquired the Tallahassee contract as well, and it hoped to continue the related sales. But in 2016, the City decided not to renew the contract, instead opening the procurement process and publicly requesting proposals. The Coggin dealership submitted its proposal, but the contract ultimately went to a competing dealership, Beck Auto Sales, Inc., a dealership in Palatka, Florida, and the appellant here.

Two months after the Beck dealership won the new contract, the Coggin dealership sued the Beck dealership and Lisa Marasco. According to the complaint, Marasco, while still working for the Coggin dealership, had actively worked to sabotage Coggin's relationship with the City, hoping to prevent the contract's renewal. The complaint further alleged that Marasco and the Beck dealership acted in a "joint effort" to help the Beck dealership win the contract, which it ultimately did. After Beck took over the contract, it hired Marasco to come on board and manage the new relationship.

The Coggin dealership's complaint included the following seven claims: (1) breach of fiduciary duty (against Marasco); (2) aiding and abetting a breach of fiduciary duty (against Beck); (3) conversion (against Marasco); (4) civil conspiracy (against Marasco and Beck); (5) tortious interference (against Marasco and Beck); (6) unfair competition (against Marasco and Beck); and (7) a violation of the Florida Deceptive and Unfair Trade Practices Act (against Marasco and Beck).

In response to the complaint, Marasco moved to compel arbitration of all claims against her and the Beck dealership. She attached a written arbitration agreement she and the Coggin dealership had entered, in which the two agreed to arbitrate certain disputes relating to Marasco's employment. More specifically, the agreement provided that the "[d]isputes subject to arbitration" would be "all [d]isputes between the parties" as well as "disputes involving any person or entity whose liability or right of recovery derives from a [d]ispute" covered by the agreement. Although the Beck dealership was not a party to the agreement, Marasco argued that the Coggin dealership's claims alleged "substantially interdependent and concerted misconduct" against both defendants. And under the doctrine of equitable estoppel, Marasco argued, all claims should be arbitrated. The Beck dealership separately moved to compel arbitration, expressly adopting Marasco's arguments.

The Coggin dealership agreed to arbitrate its claims against Marasco, but it refused to arbitrate those against the Beck dealership. It argued, among other things, that equitable estoppel did not apply because the claims against the two defendants were not truly inextricably intertwined. After a hearing, the lower court denied the Beck dealership's motion to compel arbitration. The court found that Beck was not a party to the arbitration agreement and that the equitable-estoppel argument was insufficient to deprive the Coggin dealership of its right to a jury. Beck now appeals that nonfinal order. We have jurisdiction, see Fla. R. App. P. 9.130(a)(3)(C)(iv) , and our review is de novo, see Perdido Key Island Resort Dev., L.L.P. v. Regions Bank , 102 So.3d 1, 3 (Fla. 1st DCA 2012).

II.

Ordinarily, a party cannot compel arbitration under an arbitration agreement to which it was not a party. Koechli v. BIP Int'l, Inc. , 870 So.2d 940, 943 (Fla. 1st DCA 2004). But Florida and federal courts have recognized that principles of equitable estoppel sometimes allow a non-signatory to compel arbitration against someone who had signed an arbitration agreement. Perdido Key , 102 So.3d at 5 ; see also Bailey v. ERG Enters., LP , 705 F.3d 1311, 1320 (11th Cir. 2013). Courts have recognized that this can be appropriate (1) when the signatory's claims allege "substantially interdependent and concerted misconduct" by the signatory and the non-signatory or (2) when the claims relate directly to the contract and the signatory is relying on the contract to assert its claims against the non-signatory. Koechli , 870 So.2d at 944 (citations omitted); see also Bailey , 705 F.3d at 1320. Here, the Beck dealership relies exclusively on the first circumstance; it alleges that claims against it and Marasco allege "substantially interdependent and concerted misconduct." And indeed, the thrust of the complaint is that Marasco and the Beck dealership acted in concert to harm the Coggin dealership.

Assuming we agreed with the Beck dealership and concluded the claims were interdependent, our inquiry would not be over. Application of equitable estoppel could address the Beck dealership's non-signatory status-effectively counting it as a signatory-but it would not expand the scope of disputes subject to arbitration. Although Florida law, like federal law, favors arbitration, Perdido Key , 102 So.3d at 3 ; see also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), it is still true that "no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate," Perdido Key , 102 So.3d at 3 (quoting Seifert v. U.S. Home Corp. , 750 So.2d 633, 636 (Fla. 1999) ). Therefore, even when a non-signatory can rely on equitable estoppel "to access [the arbitration] clause," the non-signatory can compel arbitration only if the dispute at issue "falls within the scope of the arbitration clause." Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc. , 845 F.3d 1351, 1355 (11th Cir. 2017) (applying Florida law). And the "scope of the arbitration clause" is a pure matter of contractual interpretation.

The arbitration provision here covered a wide range of disputes, including those "arising before, during or after any employment relationship," and applying "whether or not arising out of or related to [Marasco's] ... employment." But as noted above, the arbitration provision generally limited its applicability to disputes "between the parties" to the arbitration agreement, meaning it would not reach disputes involving the Beck dealership (a nonparty). Unlike in Koechli , when we similarly recognized that the agreement's reach was limited to "any dispute between the [contracting] parties" but nonetheless concluded the non-signatory was effectively a "party," we can conceive of no basis to conclude the Beck dealership was a party to the agreement between Marasco and the Coggin dealership. See 870 So.2d at 945 (holding that based on unique facts of the case, "the word 'party' include[d] appellants, who received rights and were bound to obligations under the [applicable] agreement"). At bottom, the Beck dealership was not a party to the arbitration agreement, so disputes with it fall outside of the agreement's general scope.

Acknowledging this problem, the Beck dealership turns to another provision of the arbitration agreement, a provision that broadens the agreement's general scope: "Also subject to arbitration are disputes involving any person or entity whose liability or right of recovery derives from a Dispute that is covered by this Agreement (e.g., partner, agent, subsidiary of parent corporation, affiliate, shareholder, successor or assign of a party)." This provision expands the scope to include disputes involving others, but only to the extent the other parties' liability "derives from" a covered dispute. The Beck dealership therefore argues that its liability "derives from" the dispute between the Coggin dealership and Marasco.

"Derivative liability is similar to vicarious liability in that (1) there is no cause of action unless the directly liable tortfeasor commits a tort and (2) the derivatively liable party is liable for all of the harm that such a tortfeasor has caused." Peltz v. Tr. Hosp. Int'l, LLC , No. 3D17-428, 242 So.3d 518, 520 n.6, 2018 WL 1733924, *2 n.6 (Fla. 3d DCA Apr. 11, 2018) (quoting Grobman v. Posey , 863 So.2d 1230, 1236 (Fla. 4th DCA 2003) ); cf. also Derivative Liability, Black's Law Dictionary (10th ed. 2014) (defining term as "[l]iability for a wrong that a person other than the one wronged has a right to redress"); Grobman , 863 So.2d at 1235-36 (noting that cases of derivative liability "involve wrongful conduct both by the person who is derivatively liable and the actor whose wrongful conduct was the direct cause of injury to another" (citation omitted) ).

We conclude that the Beck dealership's liability (if any) does not "derive from" the remaining disputes as that phrase is used in the agreement. The claims are unquestionably related, and they may well ultimately rise or fall together. But we cannot ignore the fact that the arbitration provision used the specific phrase "derives from," rather than a more general term, like, say, "relates to." Cf . Kroma , 845 F.3d at 1356 ("If the parties had consented in the arbitration clause to arbitrate any disputes concerning the validity, interpretation, etc., of the contract, instead of consenting to arbitrate only 'disputes arising between them ' ..., the Kardashians may have been able to use equitable estoppel .... But, as the 'between them' language shows, that is not what the parties to the agreement consented to do in the arbitration provision."). Nor can we ignore the fact that the agreement includes specific examples of liability that could derive from other disputes: "(e.g., partner, agent, subsidiary of parent corporation, affiliate, shareholder, successor or assign of a party)." Had the parties sought a broader view of what it means for liability to "derive from" other disputes, they surely would have selected different examples. We cannot ignore the words the drafters chose.

III.

The Coggin dealership's claims against the Beck dealership are not claims based upon derivative liability; they are based on Beck's own alleged misconduct. That means the claims are not within the scope of the arbitration agreement. And that means the trial court correctly denied the motion to compel.

AFFIRMED.

Rowe, J., concurs; Wolf, J., dissents with opinion.

Wolf, J., dissenting.

Coggin Ford (Coggin) entered into a broad arbitration agreement with its employee, Lisa Marasco, which encompassed all disputes concerning the relationship between Ms. Marasco and Coggin as well as "disputes involving any person or entity whose liability or right of recovery derives from a Dispute that is covered by [the arbitration] Agreement." Coggin's complaint against Marasco and Beck Auto Sales, Inc. (Beck) is drafted so that the causes of action against both are inextricably intertwined. There is no allegation that Beck acted independently of Marasco. All of the allegations against Beck are derived from Coggin's dispute with Marasco, which is covered by the arbitration agreement. Under these circumstances, Coggin is estopped from asserting that the dispute with Beck in this case is not subject to the arbitration provisions of the agreement.

The majority correctly states the general law concerning application of estoppel to compel arbitration by a non-signatory to the agreement, which I will partially repeat here with emphasis added.

Florida and federal courts have recognized that principles of equitable estoppel sometimes allow a non-signatory to compel arbitration against an opposing party who was a signatory to an arbitration agreement. Perdido Key Island Resort Dev., L.L.P., v. Regions Bank , 102 So.3d 1, 5 (Fla. 1st DCA 2012). Courts have recognized that allowing a non-signatory to compel arbitration can be appropriate (1) "when the signatory's claims allege substantially interdependent and concerted misconduct by the signatory and the non-signatory"; or (2) "when the claims relate directly to the contract and the signatory is relying on the contract to assert its claims against the non-signatory." Koechli v. BIP Int'l, Inc. , 870 So.2d 940, 944 (Fla. 1st DCA 2004) (citations omitted) (emphasis added).

Florida law, like federal law, favors arbitration. Perdido Key , 102 So.3d at 3 ; see also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). However, it is still true that "no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate." Perdido Key, 102 So.3d at 3 (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999) ). Therefore, even when a non-signatory can rely on equitable estoppel "to access [the arbitration] clause," the non-signatory can compel arbitration only if the dispute at issue "falls within the scope of the arbitration clause ." Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc. , 845 F.3d 1351, 1355 (11th Cir. 2017) (emphasis added) (applying Florida law). The "scope of the arbitration clause" is a pure matter of contractual interpretation.

Thus, we must look at the specific words of the arbitration agreement in context and the specific allegations of the instant complaint to determine whether the dispute falls within the scope of the arbitration agreement. Hand v. Grow Constr., Inc., 983 So.2d 684 (Fla. 1st DCA 2008) (finding in order to give proper meaning to a specific contractual provision, courts must consider context of the entire contract).

The subject matter of the arbitration agreement is very broad, effectively covering any dispute between Coggin and Ms. Marasco. The specific language indicates the arbitration provision includes disputes "arising before, during or after any employment relationship," and applying "whether or not arising out of or related to [Marasco's] ... employment."

A review of the specific allegations of the complaint reveal each count arose out of and was substantially interdependent with Ms. Marasco's relationship with Coggin. It also reveals concerted misconduct between Marasco and Beck, thereby justifying enforcement of the arbitration agreement by the non-signator, Beck. See Koechli, 870 So.2d at 944.

The counts against Beck include: Count 2, aiding and abetting a breach of fiduciary duty (the person who was alleged to have been aided and abetted was Marasco);

Count 4, civil conspiracy (against both Marasco and Beck); Count 5, tortious interference (against both Marasco and Beck); Count 6, unfair competition (against both Marasco and Beck); and Count 7, a violation of the Florida Deceptive and Unfair Trade Practices Act (against both Marasco and Beck). While arguably Beck could have committed the alleged torts individually, that is not how Coggin chose to allege the tortious conduct in its complaint.

The introductory sentence of the complaint reads: "This action arises out of Defendants Marasco and Beck's joint effort to obtain a contract ... though a breach of fiduciary duty, conspiracy, unfair competition, and tortious interference." (Emphasis added). By its very language, the complaint alleges all the counts against Beck were based on interrelated efforts of Beck and Marasco. The complaint does not allege a single action on the part of Beck that was not done in concert with Marasco.

For instance, as to Count 2, aiding and abetting, the complaint alleges "Beck was fully aware of Marasco's breach and, in fact, provided substantial assistance and encouragement to Marasco ...." Count 4, civil conspiracy, specifically alleges Beck and Marasco "conspired to interfere with Coggin's relationship with its customers and to violate Marasco's fiduciary duties to Coggin." The gist of Count 5, tortious interference, is that Marasco was "secretly working for Beck" and "ensured Beck's [proposal] would prevail against Coggin." The gravamen of Count 6 is that Marasco provided Beck with Coggin's confidential information in order to help Beck unfairly compete against Coggin. Count 7 is repetitive of the other six counts. None of these counts alleged that Beck committed any act independent of Marasco. Thus, the test of "substantially interdependent and concerted misconduct" by the signatory and non-signatory has been met based on Coggin's own allegations. Koechli , 870 So.2d at 944. As such, the subject of the dispute falls within the scope of the arbitration clause.

The next issue is whether the agreement itself precludes application of the doctrine of estoppel because it reflects the intent of the parties to exclude non-signatories from invoking the arbitration agreement. We cannot consider a single term or sentence in isolation; instead, each provision "should be construed in connection with other provisions ... to arrive at a reasonable construction to accomplish the intent and purpose of the parties." Hand, 983 So.2d at 687 (quoting James v. Gulf Life Ins. Co. , 66 So.2d 62 (Fla. 1953) ).

The arbitration agreement contains the following provision: "Also subject to arbitration are disputes involving any person or entity whose liability or right of recovery derives from a Dispute that is covered by this Agreement (e.g., partner, agent, subsidiary or parent corporation, affiliate, shareholder, successor or assign of a party)." (Emphasis added).

Thus, the focus of our analysis should be whether the liability arose from a dispute covered by the agreement and not whether derivative liability exists or whether the right of recovery stems from a breach of the arbitration agreement.

The majority utilizes general law concerning the definition of the term "derivative liability" to determine that Beck could not be an intended subject of this contract because its liability is direct and is not derived from the conduct of another tortfeaser. That analysis ignores that, in context, the language requiring arbitration does not focus on liability derived from another person, but liability that is "derive[d] from a Dispute that is covered by this agreement." (Emphasis added). As previously discussed, the subject matter of the claim arises out of a dispute concerning the relationship between Coggin and Ms. Marasco, the central matter covered by the arbitration agreement. As the dispute is framed by Coggin's own complaint, the liability of Beck derives from this dispute.

Further, since the liability, if any, in this case arises from the joint actions of Marasco and Beck, any liability should be determined through the arbitration process rather than through two different types of forums.

Because of the broad language of the arbitration agreement and nature of the allegations in Coggin's complaint, Coggin should be estopped from arguing that Beck cannot assert rights under the arbitration agreement.

      Because she was a party below, Lisa Marasco is an appellee here. See Fla. R. App. P. 9.020(g)(2). But the parties all agree that claims against her are subject to arbitration, and she has not participated in this appeal.

      The Koechli decision is further distinguishable because it relied on the fact that the substantive claims at issue were based on the same agreement that included the arbitration provision. "Because the basis of BIP's claims arise out of or are intimately related to the refurbishment agreement, it would be inequitable to allow BIP both to rely upon the agreement in its action against non-signatories and selectively repudiate it when seeking to resist arbitration." Id. at 945. Here, the underlying substantive claims are not based on the arbitration agreement.

      As in Perdido Key , we note that this decision "will result in arbitrable causes of action as well as non-arbitrable causes of action." 102 So.3d at 6. This may yield " 'the possibly inefficient maintenance of separate proceedings in different forums,' " id. at 6-7 (quoting KPMG LLP v. Cocchi , 565 U.S. 18, 19, 132 S.Ct. 23, 181 L.Ed.2d 323 (2011) ), but it is the result precedent compels.


text:
    Sharon ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1253
    District Court of Appeal of Florida, First District.
    June 20, 2018 Rehearing Denied August 7, 2018
    Sharon Anderson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order denying her motion to correct illegal sentence rendered January 16, 2018. The notice of appeal failed to timely invoke the Court's jurisdiction. Fla. R. App. P. 9.110(b) ; Fla. R. App. P. 9.141(b)(1). Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    Ivan RUSSELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0835
    District Court of Appeal of Florida, First District.
    June 20, 2018 Rehearing Denied August 3, 2018
    Ivan Russell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Rowe, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Douglas RATCLIFFE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1452
    District Court of Appeal of Florida, First District.
    June 25, 2018 Rehearing Denied August 10, 2018
    Douglas Ratcliffe, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.141(d)(6)(C).

Lewis, Makar, and M.K. Thomas, JJ., concur.


text:
    Jerell D. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4162
    District Court of Appeal of Florida, First District.
    June 22, 2018 Rehearing Denied August 7, 2018
    Jerell D. White, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of April 30, 2018, the Court has determined that its jurisdiction was not invoked in a timely manner. See Tillman v. State , 180 So.3d 235 (Fla. 1st DCA 2015). Accordingly, the appeal is dismissed for lack of jurisdiction.

Wolf, Lewis, and Ray, JJ., concur.


text:
    Victor Jerome BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1742
    District Court of Appeal of Florida, First District.
    June 21, 2018 Rehearing Denied August 7, 2018
    Victor Jerome Bell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Lewis, Makar, and M.K. Thomas, JJ., concur.


text:
    Curtis H. KOON individually, and Curtis H. Koon as Trustee of the Curtis and Linda Koon Revocable Trust U/T/D July 26, 2005, Appellants, v. LAFAYETTE STATE BANK, a Florida banking corporation, Appellee.
    No. 1D18-0561
    District Court of Appeal of Florida, First District.
    June 28, 2018 Rehearing Denied August 3, 2018
    Stephen C. Bullock of Brannon, Brown, Haley & Bullock, P.A., Lake City, for Appellants.
    John J. Joyce of Robinson, Kennon & Kendron, P.A., Lake City, for Appellee.
   Per Curiam.

Upon consideration of Appellee's Motion to Dismiss and Appellants' Response, the Court has determined that the appeal must be dismissed because the orders on appeal do not constitute an end to a separate and distinct cause of action so as to be appealable as a partial final judgment. See Jensen v. Whetstine , 985 So.2d 1218, 1220 (Fla. 1st DCA 2008). Cf. Fla. R. App. P. 9.110(k). The Motion to Dismiss is granted. The appeal is hereby DISMISSED .

Rowe, Kelsey, and M.K. Thomas, JJ., concur.


author: Bilbrey, J.

text:
    Lyndell J. COOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0702
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Bilbrey, J.

Lyndell Cooks appeals his conviction for scheme to defraud arguing the trial court erred in denying his motion for a judgment of acquittal. We agree, reverse, and remand for entry of judgment and for resentencing on the lesser included offense of grand theft of property valued over $300 but less than $5,000.

Cooks was charged with engaging in a scheme to defraud in violation of section 817.034(4)(a), Florida Statutes. The charge was premised on a series of shoplifting incidents in a Live Oak Walmart. According to the State's evidence, Cooks would enter the store at various times on various days, would place items in a shopping cart, and then would dash from the store without paying for the goods. At the close of the State's case, Cooks moved for a judgment of acquittal arguing the prosecution had not established that he acted with an intent to defraud or otherwise made a misrepresentation to obtain the goods, an essential element of the charged offense. The prosecutor responded that every time Cooks left the store, he misrepresented that he was "a lawful paying customer" and so there was an "implied representation of ownership." In support of the State's position, the prosecutor cited Beamon v. State , 23 So.3d 209 (Fla. 4th DCA 2009), to the trial court. The trial court denied the motion for a judgment of acquittal. Cooks was found guilty of the charge and was sentenced to 36 months in prison followed by two years' probation.

In reviewing a motion for judgment of acquittal we apply a de novo standard of review. See Pagan v. State , 830 So.2d 792 (Fla. 2002). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. Id.

The Florida Supreme Court has described the elements of the offense of committing a scheme to defraud, also known as "organized fraud," proscribed by section 817.034(4)(a), as follows:

(1) Engaging in or furthering a systematic, ongoing course of conduct (2) with (a) intent to defraud, or (b) intent to obtain property by false or fraudulent pretenses, representations, or promises, or willful misrepresentations of a future act, (3) resulting in temporarily or permanently depriving any person of the right to property or a benefit therefrom, or appropriating the property to one's own use or to the use of another person not entitled thereto.

Pizzo v. State , 945 So.2d 1203, 1207 (Fla. 2006) (emphasis added) (quoting Donovan v. State , 572 So.2d 522, 526 (Fla. 5th DCA 1990) ).

Even viewing the evidence in a light favorable to the State, there is no basis in the record for concluding Cooks acted with an intent to defraud or that he made a fraudulent representation, promise, or willful misrepresentation of a future act. What the evidence did plainly establish is that Cooks committed theft, the elements of which are:

(1) knowingly (2) obtaining or using, or endeavoring to obtain or use, property of another (3) with intent to deprive the person of a right to the property or a benefit therefrom, or to appropriate the property to one's own use or to the use of any person not entitled thereto.

Pizzo , 945 So.2d at 1207 (quoting Donovan , 572 So.2d at 526 ).

As demonstrated by the case law, a conviction for violating section 817.034(4)(a) requires proof of more than mere theft. For instance, in Pizzo , the Supreme Court compared the elements of grand theft and scheme to defraud and found that convictions for both offenses constituted double jeopardy under the facts of the case. Those facts were that the defendant, through his window business, was making sales

based on misrepresentations that the windows being sold were "Reynolds" windows when they were actually Caradon Better Bilt windows distributed by Reynolds Building Products; misrepresentations regarding East Coast Exteriors' history and capacity to do the work; and misrepresentations and omissions that resulted in liens and mortgages being recorded against customers' properties without their knowledge.

Id. at 1205 (quoting Pizzo v. State , 916 So.2d 828, 830 (Fla. 2d DCA 2005) ). No similar type of misrepresentation occurred in this case.

Similarly, in Beamon , cited by the State at trial, the reviewing court affirmed a conviction for organized fraud where the defendant used a stolen credit card 28 times. The court explained, the "use of the card was necessarily accompanied by an implied representation that she was lawfully entitled to use the card for each transaction to obtain money or goods for herself." 23 So.3d at 210. The uses in Beamon included purchases at Walmart and other retailers as well as cash withdrawals. Likewise, in Sewall v. State , 783 So.2d 1171 (Fla. 5th DCA 2001), a conviction of organized fraud was affirmed after an insurance salesman solicited investments for office expansion when there was never any meaningful action undertaken to expand. Again, in both Beamon and Sewall , there was some perpetration of a falsehood. No evidence was offered below that Cooks acted with such guile-in fact he openly walked out the front door with the stolen goods each time. And no case has been cited to us that shoplifting, even repeatedly, is a scheme to defraud.

Grand theft (both second and third degrees) and petit theft (both first and second degrees) are necessarily lesser included offenses of scheme to defraud. See Fla. Std. Jury Instr. (Crim.) 20.19; Pizzo , 945 So.2d at 1207. The evidence at trial showed that the most Cooks ever stole was on March 4, 2016, when he walked out of the store with two televisions worth a total of $796. Therefore, pursuant to section 924.34, Florida Statutes, the cause should be remanded for entry of a judgment of conviction for the lesser offense of grand theft of property over $300 but less than $5,000, grand theft in the third degree, a third degree felony.

We find no basis to reverse as to the remaining issue presented on appeal. Accordingly, the judgment of conviction for scheme to defraud is reversed, and the corresponding sentence is vacated. The cause is remanded for preparation of a corrected scoresheet, entry of a corrected judgment, and resentencing.

REVERSED and REMANDED.

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

      Even if it could be argued that the six thefts spanning March 4 to April 30, 2016, should be treated as one incident, the aggregate value of the goods stolen was under $5,000.


text:
    Gregory PAPPAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1683
    District Court of Appeal of Florida, First District.
    June 28, 2018 Rehearing Denied August 3, 2018
    Gregory Pappas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Lewis, Makar, and M.K. Thomas, JJ., concur.