author: LINDSEY, J.

text:
    Jose E. RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1336
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018.
    Jose E. Rivera, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SCALES, LUCK, and LINDSEY, JJ.
   LINDSEY, J.

Jose E. Rivera appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. For the reasons set forth below, we reverse the trial court's order denying Rivera's rule 3.800(a) post-conviction motion and remand for further proceedings.

Rivera was charged with attempted first-degree murder with a deadly weapon (count I), aggravated battery with a deadly weapon (count II), criminal mischief (count III), and petit theft (count IV). Rivera was found guilty of the lesser included offense of attempted second-degree murder with possession and discharge of a firearm and criminal mischief causing property damage of $1,000 or greater. On May 30, 2003, Rivera was sentenced to thirty-five years for attempted murder with a twenty-year minimum mandatory for the discharge of a firearm and five years for criminal mischief, concurrent. As part of his original sentencing, the trial court credited Rivera 992 days for jail time served prior to the imposition of his sentence. This Court affirmed Rivera's conviction and sentence on February 25, 2004. See Rivera v. State, 868 So.2d 530 (Fla. 3d DCA 2004).

On April 4, 2006, Rivera filed a motion to correct illegal sentence. The trial court subsequently granted in part and denied in part Rivera's April 4, 2006 post-conviction motion. On August 28, 2006, the trial court resentenced Rivera and credited him 122 days-in addition to the original 992 days-for a total jail credit of 1114 days. On May 21, 2008, this Court affirmed Rivera's resentencing. See Rivera v. State, 982 So.2d 699 (Fla. 3d DCA 2008).

On May 15, 2018, Rivera filed a rule 3.800(a) motion to correct illegal sentence. Rivera asserted that when he was resentenced and awarded 1114 days of jail credit on August 28, 2006, the trial court failed to include approximately three years of prison credit reflecting when Rivera was in Department of Corrections' custody between his original May 30, 2003 sentencing date and his August 28, 2006 resentencing date. On June 5, 2018, the trial court summarily denied Rivera's rule 3.800(a) motion, finding that Rivera failed to first exhaust his administrative remedies with the Department of Corrections. On June 21, 2018, Rivera timely appealed the trial court's summary denial order.

Citing this Court's decision in Dunbar v. State, 225 So.3d 971 (Fla. 3d DCA 2017), the trial court concluded that Rivera first needed to exhaust his administrative remedies within the Department of Corrections before seeking relief from a court. We disagree. In Dunbar, the defendant appealed a trial court's order denying his rule 3.800(a) motion to correct an illegal sentence or, alternatively, his Florida Rule of Criminal Procedure 3.801 motion for additional credit for time served. Id. at 972. Because the defendant in Dunbar only sought additional gain time from the Department of Corrections, this Court treated the matter as an appeal from an order denying a rule 3.801 motion to correct jail sentence and held that the defendant was first required to exhaust all administrative remedies within the Department of Corrections. Id.

When the trial court's sentencing order properly awards credit for time served but the defendant contends that the Department of Corrections has failed to properly credit the prisoner for the time served as reflected in that sentencing order, the defendant must first exhaust the available administrative remedies. See Wilson v. State, 9 So.3d 630 (Fla. 3d DCA 2009) ; see also Newman v. State, 866 So.2d 751, 752 (Fla. 5th DCA 2004) ("[W]hen the Department of Corrections fails to credit a prisoner with prison time awarded by the trial court, the prisoner must first exhaust the available administrative remedies and then, if necessary, file a petition for writ of mandamus in the circuit court.").

However, a defendant is under no obligation to first exhaust all administrative remedies within the Department of Corrections before pursuing judicial relief when the only claim is that the trial court's sentencing order failed to award adequate credit for pre-sentence prison time. See Joseph v. State, 16 So.3d 946, 948 (Fla. 3d DCA 2009) ("The trial court also erred by requiring the defendant to exhaust his administrative remedies within the Department of Corrections. The allegation here is that the court's sentencing order failed to give adequate credit for time served.").

Here, Rivera's claim is not that the Department of Corrections is failing to properly credit him for prison time awarded by the resentencing order. Rather, his only claim is that the trial court's order failed to properly award prison credit for the period of time he was in Department of Corrections' custody between his original May 30, 2003 sentencing and his resentencing on August 28, 2006. "Pre-sentence jail time is a matter which is within the purview of the circuit court and the failure of that court to make a proper award affects the validity of the sentence imposed." Knox v. State, 692 So.2d 296, 297 (Fla. 3d DCA 1997) (citing Henderson v. State, 632 So.2d 653 (Fla. 5th DCA 1994) ).

Accordingly, a trial court's failure to award a defendant pre-sentence prison credit pursuant to section 921.161(2), Florida Statutes, constitutes an illegal sentence that may be corrected at any time under rule 3.800. See Morgan v. State, 99 So.3d 999, 1000 n.1 (Fla. 1st DCA 2013) ("The trial court's failure to check the box for prison credit is a claim that is cognizable in a rule 3.800(a) motion."). Thus, as we concluded in Joseph, the trial court in the instant appeal erred in summarily denying Rivera's rule 3.800(a) motion to correct illegal sentence by requiring Rivera to first exhaust all available administrative remedies within the Department of Corrections. See Joseph, 16 So.3d at 948.

Because the trial court's reliance on Dunbar was misplaced and Rivera has established an entitlement to relief on his prison credit claim, we reverse the trial court's order denying Rivera's rule 3.800(a) post-conviction motion to correct illegal sentence. We further remand with directions for the trial court to enter an amended sentence awarding prison credit for time previously served in state prison from his initial sentence on May 30, 2003 to his resentencing on August 28, 2006.

Reversed and remanded with instructions.

      Florida Rule of Criminal Procedure 3.801 was adopted in 2013 and governs the correction of a sentence that fails to allow county jail time credit as provided in section 921.161(1), Florida Statutes. See In re Amendments to Florida Rules of Criminal Procedure & Florida Rules of Appellate Procedure, 132 So.3d 734, 737 (Fla. 2013) ; see also Curtis v. State, 197 So.3d 135, 136 (Fla. 2d DCA 2016) ("Rule 3.801... does not provide for the correction of prison credit. Instead, a claim for credit for prison time is properly raised in a motion filed pursuant to [Rule] 3.800(a).") (emphasis in original).

      "A Court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief ...." Fla. R. Crim. P. 3.800(a)(1).


source: Caselaw Access Project

author: LAMBERT, J.

license: Public Domain

text:
    Eric SANTIAGO, Petitioner, v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR BANC OF AMERICA FUNDING CORPORATION Mortgage Pass-Thru Certificates, Series 2007-B, Respondent.
    Case No. 5D18-2470
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 25, 2018
    Christopher M. Sprysenski, of The Florida Family Firm, Altamonte Springs, for Petitioner.
    David Rosenberg, of Robertson, Anschutz & Schneid, P.L., Boca Raton, and Sara F. Holladay-Tobias, Emily Y. Rottmann, and C.H. Houston, III, of McGuireWoods, LLP, Jacksonville, for Respondent.
   LAMBERT, J.

Eric Santiago petitions this court to issue a writ of prohibition to prevent the trial court from holding a hearing on Respondent's, U.S. Bank National Association as Trustee for Banc of America Funding Corporation Mortgage Pass-Thru Certificates, Series 2007-B ("U.S. Bank"), motion for release of the original promissory note and mortgage from the court file of the recently-dismissed foreclosure action involving these parties. Santiago asserts that the Notice of Voluntary Dismissal filed by U.S. Bank, pursuant to Florida Rule of Civil Procedure 1.420(a), divested the trial court of any further jurisdiction to consider the motion and that if U.S. Bank desires to recover these original documents from the court file, it must file a new and separate lawsuit for "declaratory relief." For the following reasons, we disagree and, therefore, deny the petition.

Santiago is the sole signator of the promissory note at issue. Bank of America was the original lender. In August 2009, Bank of America sued Santiago to foreclose on the mortgage that secured the indebtedness evidenced by this note. Four months later, Bank of America filed the original note and mortgage in the court file. The note, ironically, contained a sole, undated, specific indorsement to the present respondent, U.S. Bank. In September 2011, Santiago and Bank of America settled their litigation and the action was dismissed. The original note and mortgage remained in that court file.

In October 2017, U.S. Bank filed the underlying foreclosure action seeking to foreclose on the same note and mortgage that was the subject of the 2009 case. U.S. Bank alleged that it held the note and mortgage and that Santiago had defaulted on his payment obligations under this loan on December 1, 2012, and all subsequent payments. U.S. Bank attached a copy of the note, containing the same and sole indorsement, and a copy of the mortgage to its complaint. Additionally, U.S. Bank filed a certification pursuant to section 702.015(4), Florida Statutes (2017), that the original note was located "at the Orange County Courthouse [in the 2009 court file], on behalf of [U.S. Bank]." U.S. Bank thereafter filed a motion in this case to direct the clerk of court to transfer the original note and mortgage from the 2009 case file to the 2017 case file. The trial court granted the motion, and the clerk transferred these original documents.

On February 26, 2018, U.S. Bank filed a notice with the clerk of court that it was voluntarily dismissing the underlying foreclosure action without prejudice "due to a settlement" and cancelling the notice of lis pendens previously recorded on the subject mortgaged property. U.S. Bank then moved for a court order directing the clerk of court to release the original note and mortgage to it. Santiago objected, and the trial court scheduled a hearing on the motion. Santiago filed the instant petition to prohibit the trial court from conducting this hearing.

"Prohibition is an extraordinary writ, a prerogative writ, extremely narrow in scope and operation, by which a superior court, having appellate and supervisory jurisdiction over an inferior court or tribunal possessing judicial or quasi-judicial power, may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction." English v. McCrary , 348 So.2d 293, 296 (Fla. 1977). Santiago argues that pursuant to Pino v. Bank of New York , 121 So.3d 23 (Fla. 2013), and Randle-Eastern Ambulance Service, Inc. v. Vasta , 360 So.2d 68 (Fla. 1978), once U.S. Bank filed its Notice of Voluntary Dismissal, the trial court lost jurisdiction in that case to consider the motion for release of records. See also Katke v. Bersche , 161 So.3d 574, 576 (Fla. 5th DCA 2014) ("In a matter where the court loses 'case' jurisdiction, a writ of prohibition is the proper claim for relief.").

Santiago's reliance upon Pino and Randle-Eastern is misplaced because those decisions each addressed the trial court's authority to grant substantive relief in an action after a plaintiff files a voluntary dismissal. See Pino , 121 So.3d at 32 ("The voluntary dismissal serves to terminate the litigation, to instantaneously divest the court of its jurisdiction to enter or entertain further orders that would otherwise dispose of the case on the merits, and to preclude revival of the original action."); Randle-E. , 360 So.2d at 69 (holding that a voluntary dismissal divests the trial court of jurisdiction to "adjudicate the cause" and, therefore, to "reinstate a dismissed proceeding"). Here, U.S. Bank is not seeking to revive its foreclosure action, nor is it asking the trial court to grant it substantive relief.

Whether a party is entitled to foreclose the note and mortgage is not relevant to its right to have the note released from the court records. See Kajaine Estates, LLC, v. U.S. Bank Nat'l Ass'n , 198 So.3d 1010, 1011 (Fla. 5th DCA 2016) (reversing trial court's refusal to release original note to plaintiff who had previously failed to establish at trial predecessor's standing at the inception of suit and recognizing that a person's ability to enforce the note was "not relevant" to the trial court's determination of whether the person claiming ownership of the note had the right to have the note released from the trial court records). Recently, the Fourth District Court reversed a trial court's order denying a plaintiff's motion for return of an original promissory note and mortgage after the underlying foreclosure action was dismissed for lack of prosecution, reasoning that there is no legal basis to prevent the return of an original note that was not cancelled by the entry of a judgment. U.S. Bank Nat'l Ass'n v. Rodriguez , 43 Fla. L. Weekly D2172 (Fla. 4th DCA Sept. 20, 2018). It also noted that Florida Rule of Judicial Administration 2.430(f)-(h)

recognizes the power of the courts to release exhibits or other parts of court records that are the property of the party placing the items in the court records and establishes procedures for the return and disposal of original exhibits and court records. Id.

In the present case, U.S. Bank caused the original note and mortgage to be placed in the 2017 court file. It represented in its recently-filed notice of dismissal that it had settled the present foreclosure suit against Santiago. We conclude that a separate lawsuit is not required for U.S. Bank to seek the release of these documents.

PETITION FOR WRIT OF PROHIBITION DENIED.

TORPY and HARRIS, JJ., concur.


author: Per Curiam.

text:
    Bennie Eugene SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1656
    District Court of Appeal of Florida, First District.
    October 24, 2018 Rehearing Denied December 10, 2018
    Bennie Eugene Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Rowe, Osterhaus, and Kelsey, JJ., concur.


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

text:
    Jessie FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5007
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Jessie Floyd, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia C. Harris, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant, Jessie Floyd, appeals an order denying his postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

Appellant was convicted after a jury trial of armed robbery with a deadly weapon (Count I) and aggravated assault with a deadly weapon (Count II). The State filed a notice of intent to seek prison releasee reoffender (PRR) designation, but withdrew the notice before sentencing. Appellant was sentenced to twenty-five years in prison on Count I and a concurrent term of five years in prison on Count II. His convictions and sentences were affirmed on appeal without opinion. See Floyd v. State , 184 So.3d 520, 2016 WL 690997 (Fla. 1st DCA 2016) (Table).

In Appellant's first ground, he argued that his attorney was ineffective for failing to promptly advise him of the State's notice of intent to seek the PRR designation. He alleged that the notice was sent to defense counsel on May 6, 2015, but counsel did not open the e-mail until May 8, 2015. He asserted that she did not inform him of the notice until jury selection on May 11, 2015. He claimed that if his attorney had timely advised him of the PRR notice, he would have had an opportunity to review the evidence and determine that going to trial was not worth risking a PRR sentence, and he would have accepted the State's eight-year plea offer. He alleged that the State would not have withdrawn the offer, the trial court would have approved the offer, and the sentence imposed would have been less than the twenty-five-year prison sentence he ultimately received.

A claim of ineffective assistance of counsel is governed by Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance, an appellant must allege that (1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms, and (2) the appellant was prejudiced by these acts or omissions such that the outcome of the case would have been different. See id. at 690-692, 104 S.Ct. 2052.

"If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper , 566 U.S. 156, 168, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). In the context of plea negotiations, the first prong of the Strickland analysis can be satisfied by allegations that "counsel performed deficiently in (1) advising a defendant to reject a plea offer, (2) misadvising the defendant about the maximum penalty faced, or (3) failing to convey a plea offer." Sirota v. State , 95 So.3d 313, 319 (Fla. 4th DCA 2012), quashed on other grounds by State v. Sirota , 147 So.3d 514 (Fla. 2014). To establish prejudice, a defendant must allege that

(1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

Alcorn v. State , 121 So.3d 419, 430 (Fla. 2013) (citing Missouri v. Frye , 566 U.S. 134, 148, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) ). "When determining whether defense counsel's misadvice concerning a plea prejudiced the defendant, the trial court must consider the circumstances 'at the time of the offer and what would have been done with proper and adequate advice.' " Parenti v. State , 225 So.3d 949, 951 (Fla. 5th DCA 2017) (quoting Alcorn , 121 So.3d at 432 ).

Here, Appellant's allegations of prejudice are facially sufficient. However, with regard to the deficiency prong, he does not allege that counsel failed to convey the eight-year plea offer, neglected to advise him of the penalties he faced, or otherwise misadvised him in connection with plea negotiations. Rather, he claims that counsel did not advise him of the PRR notice promptly enough to allow him to review the evidence and decide whether to accept the plea offer. Even assuming arguendo such allegations could establish a deficient performance on counsel's part, this claim is factually meritless.

At the beginning of jury selection on Monday, May 11, 2015, defense counsel asked for permission to place some information on the record. She explained that she had visited Appellant in jail on the preceding Wednesday, but he terminated the visit before she could convey all of the information she intended to provide. She subsequently received the PRR notice on Friday, May 8, 2015. She advised Appellant about the notice the morning of jury selection. She wrote him a note explaining the designation and how it would result in him serving 100% of the maximum sentence, and noted that one of his charged offenses was a first-degree felony punishable by life in prison. She also explained that there was a great deal of evidence against him and a strong likelihood that he would be convicted at trial. She informed him that if he was convicted, the judge would have no discretion to impose anything other than a life sentence.

In open court, defense counsel referred to the PRR designation as a "game changer" and urged Appellant to accept the eight-year plea offer to avoid spending the rest of his life in prison. She indicated the offer had been open for "many, many months," and the State was still willing to allow him to accept it that morning. She acknowledged that Appellant was upset with how she was handling the case, but reminded him that they had assessed his trial prospects by reviewing the incriminating surveillance video and the other evidence against him.

At that point, Appellant interrupted by saying, "My face was not on the video." Counsel responded that there was DNA evidence and an identification by the clerk of the convenience store. Appellant replied, "That's weak." Defense counsel reiterated that if Appellant proceeded to trial, he would most likely be convicted, and the judge would not have discretion to consider what an appropriate sentence would be given the nature of the offenses and Appellant's history; instead, the PRR designation would remove all discretion and he would be sentenced to life in prison. She advised, "[S]low down and think about what you are doing." Appellant responded by asking the judge to remove counsel from the case, because he did not trust her. He complained that she was "scared to go to trial" and had repeatedly tried to persuade him to take the eight-year plea offer. The judge found no grounds to remove counsel from the case, so Appellant elected to represent himself.

Under these circumstances, this claim is refuted by the record. Defense counsel advised Appellant of the PRR notice on the next business day after she received it. By that time, she had already reviewed the incriminating evidence with him, but Appellant believed that her reluctance to proceed to trial was unreasonable. With the eight-year plea offer still available, counsel fully explained the PRR designation and she commendably warned Appellant in the direst possible terms that he was likely to lose at trial and spend the rest of his life in prison.

Despite this, Appellant rejected counsel's advice, declined to accept the eight-year plea offer, and proceeded to trial pro se . Given this information, counsel did not perform deficiently. She provided all of the information Appellant needed to consider the eight-year plea offer while it was still available. Even after he was fully advised of the pitfalls of his case and the severity of his potential sentence, the record reflects that Appellant had no intention of accepting the offer. Therefore, this claim was properly denied.

In Appellant's second ground, he argued that counsel was ineffective for failing to file a pretrial motion to suppress. This ground contained two subclaims. In subclaim (a), he alleged that a motion to suppress should have been filed on the basis that the detective who stopped him after the robbery had no probable cause to do so, given the victim's flawed and vague description of the suspect. In subclaim (b), Appellant asserted that the show-up identification was impermissibly suggestive, because he was in a police car and with a police officer at the time, which may have given the victim an impression of his guilt. He claimed that counsel should have also sought suppression of the voice identification on this basis. In his motion for rehearing after his amended motion was denied, he explained for the first time that counsel should have sought suppression of the evidence seized from his person-a knife, gloves, cigarettes, money, and a black plastic bag.

Insofar as Appellant argued in subclaim (a) that a motion to suppress should have been filed based upon the invalidity of his detention by the detective, this claim is facially insufficient. A defendant cannot show that counsel provided ineffective assistance by failing to file a motion to suppress if the motion would have been meritless. Johnston v. State , 63 So.3d 730, 740 (Fla. 2011). Here, Appellant failed to provide any factual allegations about his encounter with the detective that would have supported a motion to suppress. Furthermore, he improperly identified the evidence that would have been subject to suppression for the first time in his motion for rehearing. See Fla. R. Crim. P. 3.850(j) ("A motion for rehearing must be based on a good faith belief that the court has overlooked a previously argued issue of fact or law or an argument based on a legal precedent or statute not available prior to the court's ruling." (emphasis added)). As this aspect of his claim remained facially insufficient after an opportunity to amend, it was properly denied with prejudice. See Fla. R. Crim. P. 3.850(f)(2) (providing that where a defendant is given an opportunity to amend and the amended motion remains insufficient, the trial court may provide another opportunity to amend or summarily deny the motion with prejudice).

This Court's records reflect that any further attempts to amend his motion would have proven futile. The record in Appellant's direct appeal reflects that he was detained less than .4 miles from the location of the robbery within 9 minutes of the be-on-the-lookout (BOLO) alert being issued. The detective who detained Appellant testified that Appellant matched the suspect's description based upon his age, build, and his clothing, minus an "outer sweater." The detective made contact and asked Appellant questions. Appellant's answers and demeanor were evasive. He was then briefly detained while the victim was brought to the scene to make an identification. The victim identified Appellant based upon his clothing, his height and build, and his voice. It was only at this point that Appellant was arrested and his backpack was searched.

Under these circumstances, any motion to suppress challenging the legality of his detention would have been denied, as the detective had articulable reasonable suspicion to stop Appellant, and it was permissible to detain him long enough to bring the victim to identify him. See State v. Leach , 170 So.3d 56, 60-62 (Fla. 2d DCA 2015). After the victim identified him, probable cause existed to support Appellant's arrest and a search incident to arrest. See Jackson v. State , 241 So.3d 914, 917 (Fla. 1st DCA 2018).

With regard to Appellant's argument in subclaim (b) that counsel should have filed a motion to suppress the show-up identification, he did not provide supporting factual allegations regarding the circumstances of the identification. Thus, this aspect of his claim was also subject to denial with prejudice because it remained facially insufficient after an opportunity to amend. Regardless, it is also meritless.

For an out-of-court identification to be suppressed, it must be shown that (1) the police used an unnecessarily suggestive procedure, and (2) the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. See Fisher v. State , 924 So.2d 914, 917 (Fla. 5th DCA 2006). "[A] show-up is inherently suggestive because a witness is presented with only one suspect for identification. However, a show-up is not invalid if it does not give rise to a substantial likelihood of irreparable misidentification given the totality of the circumstances." Perez v. State , 648 So.2d 715, 719 (Fla. 1995) (internal citations omitted). In evaluating the likelihood of misidentification, the trial court should consider (1) the witness' opportunity to view the suspect at the time of the offense, (2) the witness' degree of attention, (3) the accuracy of the witness' previous description of the suspect, (4) the witness' level of certainty, and (5) the length of time between the offense and the identification. Neil v. Biggers , 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

As discussed above, the show-up identification in this case occurred within minutes of the robbery, at which time the victim identified Appellant by his height, build, clothing, and voice. Furthermore, the transcript of the 911 recording played during trial reflects that not only did the victim interact with Appellant during the robbery, she also believed that he had been in the store earlier that day and was a regular customer. She recognized his voice and knew which direction he usually came from when he visited the store. She described Appellant as an African-American man wearing blue jeans, a gray bandana, and a gray hoodie. Aside from Appellant's assertion in his motion that his hoodie was actually brown, the victim's description matches Appellant's description of what he was wearing that night. Given this information, even if defense counsel had filed a motion to suppress the show-up identification, any such motion would have been denied. Therefore, this aspect of his claim was properly denied.

In Appellant's third ground, he argued that the trial court erred in failing to permit him to review deposition transcripts before representing himself at trial. In his fourth ground, he asserted that the trial court abused its discretion by ruling that he could not impeach his own witnesses. These claims are not cognizable pursuant to rule 3.850, and were therefore properly denied. See Fla. R. Crim. P. 3.850(c) ("This rule does not authorize relief based upon grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence."); Johnson v. State , 985 So.2d 1215, 1215 (Fla. 1st DCA 2008) (identifying prosecutorial misconduct, insufficiency of the evidence, and trial court error as issues that should have been raised on direct appeal and are not cognizable in a collateral postconviction motion).

In Appellant's fifth ground, he claimed that his attorney was ineffective for failing to make deposition transcripts available to him so that he could assess the strengths and weaknesses of his case. He alleged that he requested that his attorney provide him with the details of the victim's deposition testimony, and subsequently asked her for deposition transcripts. He asserted that counsel told him that she did not order deposition transcripts because she did not need them to prepare for trial. He argued that if he had known what the victim said at depositions prior to trial, he would have had more evidence to use to impeach her, in addition to the conflicting statements in her 911 call and her sworn statement to police. He also claimed that if he had access to transcripts, he might have determined that the State's evidence was overwhelming and accepted the eight-year plea offer.

The record reflects that Appellant chose to represent himself on the day of jury selection. The judge advised him that making that decision at that late stage would not entitle him to seek a continuance. The judge cautioned Appellant that he would have to pick a jury that day and go to trial in two days. Appellant asked defense counsel about obtaining deposition transcripts, and counsel responded that she did not seek to have the depositions transcribed, because she did not deem transcripts necessary for trial. Appellant asked to have the depositions transcribed, and the judge reiterated that counsel had deemed the transcripts unnecessary for her trial preparation and that the trial would not be postponed based upon Appellant's decision to represent himself on the eve of trial.

On the day of trial, Appellant advised the judge that he would not be able to represent himself to the fullest of his abilities without deposition transcripts. The judge repeated his determination that counsel had not ordered them and no continuances would be granted to allow Appellant to obtain them. Under these circumstances, it appears that defense counsel had determined that she did not require the deposition transcripts to prepare for trial. She cannot now be deemed ineffective for failing to anticipate that Appellant would elect to represent himself on the eve of trial and would require the transcripts to prepare.

Furthermore, Appellant did not properly allege prejudice. He does not assert pursuant to Strickland that the outcome of the trial would have been different but for counsel's failure to obtain the deposition transcripts. Nor does he properly allege prejudice in connection with the eight-year plea offer under Alcorn . Instead, he made contradictory claims that the transcripts may have assisted him in impeaching the victim's already flawed testimony, or the transcripts may have shown him that the evidence was overwhelming and convinced him to accept a plea deal. Thus, this ground was subject to denial, because it remained facially insufficient after an opportunity to amend. Additionally, his allegations are too speculative to support an entitlement to postconviction relief. See Connor v. State , 979 So.2d 852, 863 (Fla. 2007) ("Relief on ineffective assistance of counsel claims must be based on more than speculation and conjecture.").

In Appellant's sixth and final ground, he argued that the cumulative effect of the trial court's errors and his attorney's ineffective assistance deprived him of a fair trial. However, because all of Appellant's individual claims are subject to denial for the reasons discussed above, his claim of cumulative error must also fail. See Griffin v. State , 866 So.2d 1, 22 (Fla. 2003).

AFFIRMED .

Kelsey and Winokur, JJ., concur.

      An appellate court may take judicial notice of its own records as well as those from any other court. See Jackson v. State , 127 So.3d 706, 706 (Fla. 4th DCA 2013) (taking judicial notice of the record in the defendant's previous postconviction appeal in affirming the denial of a subsequent postconviction motion); Pace v. State , 826 So.2d 996, 997 (Fla. 3d DCA 2001) (taking judicial notice of the file in the appellant's direct appeal in order to resolve a postconviction appeal).


author: Rowe, J.

text:
    Nashwa HOLT, Appellant, v. Eric V. HOLT, Appellee.
    No. 1D17-3092
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Robert J. Powell of Clark Partington, Pensacola, for Appellant.
    Crystal C. Spencer of Spencer Law PA, Pensacola, for Appellee.
   Rowe, J.

Former wife Nashwa Holt appeals an order granting former husband Eric Holt relief from a 2010 order vacating the trial court's final judgment of dissolution. Former husband had filed a motion in the original dissolution action seeking relief from the 2010 order on grounds that former wife committed fraud on the court when she forged his signature on a stipulated order vacating the final judgment of dissolution. Former wife argues that under Florida Rule of Civil Procedure 1.540(b), former husband was required to file an independent action to seek relief from the 2010 order. We agree.

I. Facts

After four years of marriage, the parties agreed to divorce in August 2009. While the dissolution action was pending, former husband was incapacitated. In January 2009, he suffered a traumatic brain injury as a result of an IED explosion while he was deployed in Afghanistan. From January 2009 to February 2010, former husband received inpatient treatment at various hospitals, including the Walter Reed National Military Medical Center in Washington, D.C.

During his hospitalization, former wife presented former husband with a marital settlement agreement, which he signed. They agreed to expedite the dissolution. Former husband was not represented by counsel, and, due to his incapacity and frequent change of treatment centers, he relied on former wife to report to him on the status of the dissolution proceedings.

But unbeknownst to former husband, a final judgment of dissolution of marriage was entered in January 2010. And then, two months later, a stipulated order was presented to the trial court seeking to vacate the final judgment of dissolution of marriage. The order purported to include the signatures of former wife, her attorney, and former husband. The trial court entered the 2010 order vacating the final judgment of dissolution.

In February 2010, former husband completed his medical treatment and reconciled with former wife. They moved to Maryland, bought a home, and raised two children. Then, in 2013, the marriage deteriorated again, and former wife filed to dissolve the marriage in Maryland. During a 2016 hearing in the Maryland action, former husband learned for the first time that their marriage had been dissolved in the Florida action, and that shortly thereafter the 2010 order had been entered vacating the final judgment of dissolution.

Based on this information, former husband moved in the original Florida action for relief from the 2010 order vacating the final judgment of dissolution pursuant to Florida Rule of Civil Procedure 1.540(b). He asserted that the 2010 order was the result of fraud on the court because former wife had forged his signature. He alleged that he had no knowledge their marriage had been dissolved, and he sought to set aside the 2010 order vacating the final judgment of dissolution.

At a hearing on the motion, former husband presented the testimony of a handwriting expert, who testified that the signature on the 2010 order matched that of former wife and appeared to be a forgery. Based on the expert's testimony, the trial court set aside the 2010 order and reinstated the final judgment of dissolution nunc pro tunc to January 2010.

Former wife appeals, asserting the trial court lacked jurisdiction to grant relief because former husband's motion was untimely under rule 1.540(b).

II. Analysis

We review the trial court's order for an abuse of discretion. See Shiver v. Wharton , 9 So.3d 687, 689 (Fla. 4th DCA 2009). Florida Rule of Civil Procedure 1.540(b) states in part:

On motion and upon such terms as are just, the court may relieve a party ... from a final ... order ... for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party .... The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.
This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

Fla. R. Civ. P. 1.540(b) (emphasis added).

The rule provides several grounds on which a party may seek relief from a judgment or order. The plain language of the rule provides that a party seeking relief from a final order on grounds of fraud, whether intrinsic or extrinsic, must do so within one year of the order. However, a party alleging fraud on the court, also referred to as extrinsic fraud, may seek relief more than one year after the order only by filing an independent action. The fraud alleged in this case is extrinsic. DeClaire v. Yohanan , 453 So.2d 375, 377 (Fla. 1984), superseded by rule on other grounds as recognized in Parker v. Parker , 950 So.2d 388 (Fla. 2007). By forging former husband's signature on the 2010 order, former wife prevented former husband "from having an opportunity to present his case in court." Id. at 379 ; see also Parker , 950 So.2d at 389-92. Therefore, former husband has raised a claim of extrinsic fraud. But, because he filed his motion more than one year after the entry of the 2010 order, former husband was precluded from seeking relief in the original action pursuant to the rule. Parker , 950 So.2d at 392 ("[W]here fraud is extrinsic, it is deemed independent of the action and, therefore, must be attacked independent of the action."); Lefler v. Lefler , 776 So.2d 319, 321 (Fla. 4th DCA 2001) (" Florida Rule of Civil Procedure 1.540(b), applicable to family court proceedings pursuant to Florida Family Law Rule 12.540, permits a party to bring an independent action to set aside a judgment for fraud upon the court after one year from the final judgment."). Rather, former husband could only seek relief from the 2010 order by filing an independent action.

Accordingly, we reverse the trial court's order granting former husband relief from the 2010 order. Our disposition is without prejudice to former husband, who may file an independent action seeking relief from the 2010 order. See Fla. R. Civ. P. 1.540(b).

B.L. Thomas, C.J., and M.K. Thomas, J., concur.


text:
    Timothy Wade COFFELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1611
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Timothy Wade Coffell, was convicted of possession of marijuana in excess of twenty grams (Count 1), cultivation of cannabis (Count 2), and possession of paraphernalia (Count 3). His sentencing scoresheet reflected a score of 16.9 points. Pursuant to section 775.082(10), Florida Statutes (2016), Appellant was entitled to a non-state prison sanction, unless the trial court made written findings that a non-state prison sanction could present a danger to the public. The trial court made written findings that Appellant could present a danger to the public if subject to only a non-state prison sanction and sentenced him to concurrent terms of three years of imprisonment on Counts 1 and 2 and to time served on Count 3. Appellant challenges the constitutionality of section 775.082(10), arguing that it is unconstitutional under Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the finding of danger to the public was not made by a jury.

The outcome of this case is controlled by our recent decision in Booker v. State , 244 So.3d 1151 (Fla. 1st DCA 2018), where we held that section 775.082(10) was unconstitutional as applied to Booker because it authorized the trial court to make factual findings that increased his maximum sentence from one year in county jail to four years in prison, contrary to the holdings in Apprendi and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Id. at 1156-64. But see Brown v. State , 233 So.3d 1262 (Fla. 5th DCA 2017), review granted , SC18-323, 2018 WL 2069393 (Fla. Apr. 9, 2018). Here, the trial court made factual findings that increased Appellant's maximum sentence from one year in jail to three years in prison. Therefore, as required by Booker , we reverse Appellant's sentence and remand for resentencing under the prior version of section 775.082(10). See 244 So.3d at 1168-69.

REVERSED and REMANDED .

Wolf and Lewis, JJ., concur; Rowe, J., concurs with opinion.

I fully concur with the majority opinion and write only to address the State's argument that Coffell's sentence was not unconstitutional or in conflict with the holdings in Apprendi or Blakely because the trial court made explicit findings based on Coffell's prior convictions to support its finding that the imposition of a nonstate prison sanction would present a danger to the public. Contrary to the State's argument, the record demonstrates that the trial court did not rely solely on Coffell's prior convictions when it decided to impose a state prison sentence pursuant to section 775.082(10). Instead, the trial court made several findings unrelated to Coffell's prior convictions including the following: that a number of firearms were located in Coffell's residence, that some of the firearms were hidden in a couch, that Coffell lived in a trailer park with nearby residents, and that Coffell possessed the firearms "to protect the cannabis that he was in possession of at the time of the search warrant." Because the court's order reflects that the court relied on more than just Coffell's prior convictions when it imposed his sentence, I agree we are constrained by our decision in Booker v. State , 244 So. 3d 1151 (Fla. 1st DCA 2018), to reverse and remand for resentencing.


author: Winokur, J.

text:
    Darwin Dwayne DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0941
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Andy Thomas, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Darwin Dwayne Davis was convicted of possessing a controlled substance, and now challenges the trial court's denial of his motion to suppress. We affirm.

I.

Davis was involved in a traffic stop that included a canine sniff of his vehicle, which alerted to the presence of narcotics. The subsequent search of Davis' vehicle yielded a package of synthetic marijuana wedged between the cushions on the front seat area. Davis acknowledged ownership of the contraband to police. After his arrest, Davis filed a motion to suppress all evidence and statements stemming from the search of the vehicle, arguing that the vehicle had been within the curtilage of Davis' mobile home. As a result, Davis maintained that the warrantless search of his vehicle was unreasonable.

During the suppression hearing, Investigator Travis Topolski of the Okaloosa County Sheriff's Office testified that he initiated the traffic stop because Davis failed to come to a complete stop when exiting a gas station. Davis eventually stopped on a dirt road on the west side of his mobile home. Topolski further testified that there was a chain-link fence around Davis' mobile home and that Davis stopped his vehicle outside of the fenced-in area. Topolski observed that there was no type of enclosure around the vehicle or roof over it. Approximately six minutes after the stop, Deputy Elliot Howard arrived with a dog, which conducted a canine sniff of the vehicle. Both Topolski and Howard testified that neither they nor the dog entered or searched any of the area within the fenced-in portion of Davis' property.

For his part, Davis testified that he objected to the search and that he did not give police permission to bring the dog onto his property. Davis also stated that he stopped his vehicle in his driveway, but agreed that it was outside of the fenced-in area of the property. Davis testified that he lived at the mobile home for approximately seventeen years and that the fence was in place before he moved into the property. Davis added that over the years he had repaired the fence and that he never tried to change its layout.

The trial court denied suppression, finding Topolski's testimony credible and concluding that Davis' vehicle was outside the curtilage of his mobile home. As a result, the trial court found that the traffic stop was lawful and the search was reasonable. Davis subsequently accepted the State's plea offer and the trial court found that Davis' suppression motion was dispositive for appellate purposes.

II.

A trial court's ruling on a motion to suppress evidence presents a mixed question of law and fact. Connor v. State , 803 So.2d 598, 608 (Fla. 2001). The trial court's factual findings will be upheld if there is competent, substantial evidence to support them. State v. Young , 974 So.2d 601, 608 (Fla. 1st DCA 2008). However, the trial court's application of the law to those facts is reviewed de novo . Id. Additionally, Florida courts are bound by all United States Supreme Court decisions relating to search and seizure law. Art. I, § 12, Fla. Const.; Johnson v. State , 995 So.2d 1011 (Fla. 1st DCA 2008).

A canine sniff test conducted during a lawful traffic stop does not violate the Fourth Amendment as long as the traffic stop is not "prolonged beyond the time reasonably required to complete that mission." Illinois v. Caballes , 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). In contrast, a warrantless canine sniff test on a residence or its curtilage violates the Fourth Amendment. Florida v. Jardines , 569 U.S. 1, 7-12, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013).

Davis does not dispute the trial court's factual findings, but rather challenges its legal analysis. Therefore, the issue for this Court is whether Davis' vehicle was within the curtilage of his residence. If so, then the warrantless canine sniff was an unreasonable search pursuant to Jardines . On the other hand, if Davis' vehicle was outside the curtilage then Caballes controls and the canine sniff was permissible.

III.

Curtilage is "the land or yard adjoining a house, usually within an enclosure." Black's Law Dictionary 466 (10th ed. 2014). The central inquiry in determining if an area constitutes curtilage is whether the area harbors the "intimate activity associated with the 'sanctity of a man's home and the privacies of life.' " Oliver v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (quoting Boyd v. United States , 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886) ).

United States v. Dunn , 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), sets forth a test to determine whether an area constitutes curtilage by weighing these four factors: 1) the proximity of the area at issue to the home; 2) whether the area is within the enclosure surrounding the home; 3) the particular use of the area; and 4) the steps taken to protect the area from observation from individuals passing by. Id. at 301, 107 S.Ct. 1134. The purpose of the test is to ascertain "whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Id. See also State v. Hamilton , 660 So.2d 1038, 1042 (Fla. 1995) ; Sarantopoulos v. State , 629 So.2d 121, 123 (Fla. 1993).

Davis claims that the vehicle was on the curtilage of his mobile home. However, the Dunn factor-test demonstrates that Davis' vehicle was outside the curtilage of the property.

First, the trial court found that the distance of the parking area to Davis' mobile home was approximately twenty feet. While the area was close to Davis' mobile home, this is the only Dunn factor that suggests it was part of the curtilage.

Second, the parking area was located outside of the fence surrounding his mobile home. The presence of a fence is not dispositive of the issue, but it bolsters the trial court's conclusion that the parking area was not intended to be part of the curtilage. Indeed, the Dunn court noted "that 'for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining curtilage-as the area around the home to which the activity of home life extends-is a familiar one easily understood from our daily experience." 480 U.S. at 302, 107 S.Ct. 1134 (quoting Oliver , 466 U.S. at 182, n.12, 104 S.Ct. 1735 ).

Third, the record does not disclose that the parking area was used for any purpose other than parking. Finally, Davis made no effort to conceal the parking area from observation from the viewing public. On the contrary, Davis testified that he has repaired and replaced parts of the fence, but has not extended it to cover the parking area. It is reasonable to conclude that Davis had no intention to extend any sort of privacy to the parking area. As a result, we find that Davis' vehicle was not on the curtilage of his mobile home.

Davis relies on two cases for the proposition that a parking area is per se curtilage. State v. Musselwhite , 402 So.2d 1235 (Fla. 2d DCA 1981) ; Joyner v. State , 303 So.2d 60 (Fla. 1st DCA 1974). In Joyner , this Court held "that yards, courtyards, driveways and parking areas usually and customarily used in common by occupants of apartment houses, condominiums and other such complexes with other occupants thereof constitute a part of the curtilage." 303 So.2d at 64. In Musselwhite , the Second District relied on Joyner and held that "a driveway to one's residence is within the curtilage of that property." 402 So.2d at 1237.

Joyner and Musselwhite are both distinguishable because neither case involved a parking area that was outside of a fenced area. In contrast, the Fifth District has held that a vehicle parked outside of a residence's fenced area was not on the home's curtilage. Wheeler v. State , 62 So.3d 1218, 1220-21 (Fla. 5th DCA 2011). The Wheeler court noted that "[t]he homeowner manifested no attempt to protect against observation by people passing by." Id. at 1221. The same is true here.

More importantly, both Joyner and Musselwhite predate Dunn . As a result, neither case engaged in the requisite four-factor inquiry. The Second District has recently called into doubt this Court's holding in Joyner . See Shannon v. State , 252 So.3d 358, 361 (Fla. 2d DCA 2018) (acknowledging this Court's decision in Joyner , but holding that post- Dunn a vehicle located in a motel parking was not part of the curtilage; noting that the Dunn court "set forth a more narrow definition of a curtilage" than we had in Joyner ). We agree with the Second District's analysis that Joyner is inconsistent with Dunn .

IV.

Nothing in the record indicates that Davis intended the parking area to be associated with the privacies of his home life. Therefore, the trial court's determination that the parking area was not curtilage is appropriate pursuant to Dunn. Since the canine sniff of Davis' vehicle did not last longer than needed to effectuate the traffic stop, it was reasonable. Accordingly, we affirm Davis' judgment and sentence.

AFFIRMED .

Roberts and Rowe, JJ., concur.


text:
    Tyrone WILKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-633
    District Court of Appeal of Florida, First District.
    October 31, 2018 Rehearing Denied December 11, 2018
    Tyrone Wilkins, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Miles v. State , 89 So.3d 967 (Fla. 1st DCA 2012) (dismissing appeal as untimely because trial court did not abuse its discretion by denying defendant's motion for extension of time to file a motion for rehearing).

Roberts, Wetherell, and Osterhaus, JJ., concur.


author: ATKINSON, Judge.

text:
    I.K., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2186
    District Court of Appeal of Florida, Second District.
    Opinion filed October 31, 2018
    Howard L. Dimmig, II, Public Defender, and Mathew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katie Salemi Ashby, Assistant Attorney General, Tampa, for Appellee.
   ATKINSON, Judge.

After an adjudicatory hearing, I.K. was found guilty of criminal mischief, in violation of section 806.13(1)(b)(1), Florida Statutes (2015), and resisting an officer without violence, in violation of section 843.02, Florida Statutes (2015). The court withheld adjudication of delinquency and placed I.K. on probation. I.K. appeals, challenging the denial of his motion for judgment of dismissal as to the latter charge of resisting an officer without violence.

A motion for judgment of dismissal, the purpose of which is to test the legal sufficiency of the State's evidence, is reviewed de novo. R.J.K. v. State, 928 So.2d 499, 502 (Fla. 2d DCA 2006) ; E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003). When the evidence, viewed in the light most favorable to the State, does not establish a prima facie case of the crime, then judgment of dismissal is proper. G.T.J. v. State, 994 So.2d 1182, 1184 (Fla. 2d DCA 2008) ; A.R. v. State, 127 So.3d 650, 653 (Fla. 4th DCA 2013).

At trial, two officers of the Tampa Police Department (the "Department") testified that they received a dispatch call to respond to a residence for a local pickup of I.K. for violation of probation. They explained that the dispatch call-variously described as a "VOP, Local Pickup," a "dispatch call to respond to the residence ... for a pickup," and "A Violation of Probation Pickup"-was an internal practice of the Department by which officers from the Department check in on juveniles who are on probation. For example, when the terms of probation require the juvenile to be home at a certain time, officers will go to the juvenile's house to see if he is violating his probation. If the officers "don't make contact with that juvenile there," they place a local pickup for that juvenile. The officer puts that information into the Department's system "with radio, as a pickup, so that ... any law enforcement that comes into contact with him ... will know he violated that curfew order."

Based on the dispatch call they received, the officers went to I.K.'s house to arrest him. They found him hiding in a closet in the back bedroom. When leading him out of the apartment, he refused to walk down the stairs so the officers had to physically carry him. Once they got him in the patrol car, he kicked out a window. They had to use a special technique to restrain him.

Section 843.02 provides that resisting an officer in the lawful execution of any legal duty without offering or doing violence to the officer is a first-degree misdemeanor. To adjudicate I.K. delinquent for resisting an officer without violence, the State must prove that "(1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty." C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla. 2009).

In determining whether the officer was in the lawful execution of a legal duty, the court "must apply the legal standards governing the duty undertaken by the law enforcement officer at the" time of the defendant's resistance-including the Fourth Amendment and any other relevant requirements of law. C.E.L. v. State, 995 So.2d 558, 560 (Fla. 2d DCA 2008) (en banc) (citing Tillman v. State, 934 So.2d 1263, 1271, 1274 (Fla. 2006) ); see Burgess v. State, 313 So.2d 479, 481 (Fla. 2d DCA 1975) ("While it is unnecessary that an arrestee be guilty of the crime for the arrest to be lawful, still there must be legal grounds for the arrest for it to be valid." (internal citation omitted) ); cf. B.M. v. State, 212 So.3d 526, 530 (Fla. 2d DCA 2017) ("[T]he detective did not articulate a reasonable and well-founded suspicion that B.M. had committed a crime so as to conduct an investigatory stop. Accordingly, B.M. did not violate section 843.02 by defying the detective's order to stop."); D.L. v. State, 87 So.3d 824, 825 (Fla. 2d DCA 2012) (noting that the State "failed to present sufficient evidence to show that the officers had a reasonable suspicion that D.L. was trespassing ... and thus failed to show that the officers were engaged in the lawful execution of their duties when they detained him to investigate that charge").

I.K. contends that the trial court erred by denying his motion for judgment of dismissal because the State failed to introduce the local pickup order, the order of probation that I.K. was under suspicion of having violated, or any other evidence proving that I.K.'s arrest for violation of probation was lawful. The State argues that the officer's testimony about the dispatch call was sufficient to prove that the officers were engaged in the lawful execution of their legal duty at the time of I.K.'s arrest. The State contends that the "local-pickup" dispatch call is similar to a BOLO (a "be-on-the-lookout") dispatch, pursuant to which an officer's stop of a suspect has been found to constitute the execution of a legal duty supporting an adjudication of delinquency for resisting an officer. See S.D.T. v. State, 33 So.3d 779, 780 (Fla. 4th DCA 2010).

The State is correct in comparing the dispatch call in this case to a BOLO. The officers were taking action based upon a communication received by others in their law enforcement agency, informing them that the juvenile was under suspicion of having violated the terms of his probation. And under certain circumstances, the "local pickup" dispatch, a system for intra-officer communication, could be utilized to establish the lawful execution of a legal duty under the fellow officer rule to support an adjudication of delinquency for resisting an officer without violence. See id. (finding BOLO sufficient to prove that the officer had reasonable suspicion to make an investigatory stop in lawful execution of his legal duty); State v. Bowers, 87 So.3d 704, 707 (Fla. 2012) (explaining that "the fellow officer rule provides that if an officer relies on a chain of evidence to formulate the existence of probable cause for an arrest or a search and seizure," an officer is not required "to possess personal knowledge of each link in the chain of information if the collective knowledge of all the officers supports a finding of probable cause").

Here, however, the State adduced no proof that the juvenile was on probation at all, much less what the terms of his probation were and whether there was probable cause to believe he had violated those terms in order to justify an arrest. See § 985.101(1)(d), (4), Fla. Stat. (2015). It merely proved that the officers received direction to take I.K. into custody for violating his probation.

Another's knowledge of probable cause to believe that I.K. violated a specific condition of his probation might very well have motivated the dispatch call; and that knowledge could be imputed to the arresting officers despite their ignorance of those details. However, to establish that these officers were lawfully executing a legal duty when they took I.K. into custody, the State was required to adduce evidence establishing the factual basis for that probable cause. See, e.g., J.C. v. State, 205 So.3d 830, 831 (Fla. 2d DCA 2016) (finding State had not proven the lawful execution of a legal duty of taking juvenile into custody for violating curfew after officer observed he was not at home because State "failed to offer into evidence an order of probation or any other proof that a valid order of probation existed ... [or] evidence of the terms and conditions of the alleged probation, such as curfew restrictions"). It failed to do so here.

Because the State adduced insufficient evidence to establish that taking I.K. into custody for violating his probation was a lawful execution of a legal duty, the trial court should have granted I.K.'s motion for dismissal of the charge of resisting an officer without violence. Accordingly, we must reverse the adjudication of delinquency for resisting an officer without violence. We affirm the adjudication of delinquency for criminal mischief.

Affirmed in part; reversed in part; remanded.

LaROSE, C.J., and MORRIS, J., Concur.


text:
    Gregory Frank TOTH, Appellant, v. Stephanie Spielman MILLER, Formerly Known as Stephanie Miller-Toth, Appellee.
    Case Nos. 2D15-3835 2D16-289 CONSOLIDATED
    District Court of Appeal of Florida, Second District.
    October 31, 2018
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellant.
    Margaret H. White-Small of Margaret H. White-Small, Attorney at Law, Ponte Vedra Beach, and Stacy L. Sherman of Stacy L. Sherman, P.A., Cape Coral, for Appellee.
    BY ORDER OF THE COURT:
   Appellant's motion for rehearing is denied. On the court's own motion, the prior opinion dated August 31, 2018, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

In this consolidated appeal, Gregory Frank Toth challenges the amended final judgment dissolving his marriage to Stephanie Spielman Miller and the money judgment entered in favor of Ms. Miller pursuant to the amended final judgment of dissolution. Mr. Toth raises a number of challenges to the amended judgment, one of which is dispositive. He argues, and we agree, that the record as a whole in this case creates the appearance that the amended judgment does not reflect the judge's independent decision-making. See Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla. 2004).

The judge adopted Ms. Miller's proposed sixty-five-page final judgment without a single alteration. While this fact alone might not convince us the judge had failed to exercise independent decision-making, when viewed in the context of the record as a whole, and in particular some of the judge's comments at the final hearing, we face a scenario much like the one we described in Bishop v. Bishop, 47 So.3d 326 (Fla. 2d DCA 2010). There, we concluded that the "errors and omissions" in the judgment together with the circumstances under which it was entered did not establish that it was the product of the judge's own "thoughtful and independent analysis of the facts, the evidence presented, and the law that applies." Id. at 329 (citing Perlow, 875 So.2d at 390 ).

Accordingly, we affirm the portion of the amended final judgment that dissolved the parties' marriage. We reverse the remainder of that judgment and remand with directions that the judge enter a final judgment reflecting his independent decision-making consistent with the evidence and applicable law. See id. at 331. In light of our reversal of the amended judgment, we also reverse the money judgment entered in favor of Ms. Miller pursuant to that judgment.

Affirmed in part, reversed in part, and remanded with directions.

NORTHCUTT and MORRIS, JJ., Concur.

      We decline to reach the other issues raised in the initial brief and express no opinion on the merits of Mr. Toth's claims.


author: SALTER, J.

text:
    Jade Nicole RYAN, Appellant/Petitioner, v. Thomas RYAN, Appellee/Respondent.
    Nos. 3D18-1420 & 3D18-1457
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    Abramowitz and Associates and Evan L. Abramowitz, Coral Gables, for appellant/petitioner.
    Orshan, Spann & Fernandez-Mesa and Steven P. Spann, Coral Gables, and Robert D. Orshan, for appellee/ respondent.
    Before SALTER, LOGUE and SCALES, JJ.
   SALTER, J.

The former wife, Jade Nicole Ryan ("Former Wife"), seeks review of a post-judgment order in a dissolution of marriage case. The order suspended her unsupervised timesharing with her minor child and ordered her to pay for substance abuse evaluation and treatment. In Case No. 3D18-1420, Former Wife appeals the modification of her timesharing rights with her child, a non-final order with our limited jurisdiction as specified in Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). In consolidated Case No. 3D18-1457, the Former Wife seeks a writ of certiorari to quash another portion of the same order, in which she was directed to submit herself to an alcohol and drug evaluation and a treatment program, to be fitted with a SCRAM bracelet, and to pay for these measures at her own expense.

We affirm the non-final order and deny the petition for certiorari.

Case No. 3D18-1420: Timesharing

The parties' minor child is a four year-old girl. In addressing the Former Husband's third motion to restrict timesharing, the trial court properly considered prior (and recent) agreed orders regarding the temporary suspension of unsupervised timesharing, the Former Wife's prior concessions of drug and alcohol abuse, and the restoration of unsupervised timesharing during times of compliance with conditions.

The trial court also heard new evidence (from a private investigator) regarding empty champagne bottles and prescription drug containers collected from the trash containers outside the Former Wife's residence, where she conducted her timesharing with the minor child. The guardian ad litem and the private investigator testified, but did not provide specific information regarding the best interests of the minor child. The guardian ad litem in fact recommended that the Former Wife be allowed to exercise unsupervised timesharing with the child so long as the Former Wife continues to wear the SCRAM bracelet.

The trial court's limitations on the Former Wife's visitation are reviewed for an abuse of discretion. Sordo v. Camblin, 130 So.3d 743, 744 (Fla. 3d DCA 2014). The court has discretion to restrict or deny visitation to protect the welfare of the child. Hunter v. Hunter, 540 So.2d 235, 238 (Fla. 3d DCA 1989).

In this case, there was little testimony regarding the best interests of the child, but the earlier findings regarding alcohol abuse, drug abuse, and violations of conditions in prior agreed orders were concerning to the trial court. The trial court found that these circumstances were "placing the minor child at risk if left alone with the Former Wife." Prior orders allowed supervised visitation by the Former Wife when her mother was present and so long as other conditions were fulfilled.

The Former Husband's latest motion contended that several conditions had been violated and that a more formal limitation on supervised visitation was necessary (with a supervisor appointed by the court, rather than by the Former Wife's mother). The record contains competent substantial evidence supporting the trial court's decision to renew limitations on the Former Wife's exercise of timesharing until such time as her compliance with conditions and substance abuse evaluations support a restoration of unsupervised timesharing.

The Former Wife also argues that the order under review should be reversed because it does not specify the conditions that must now be met in order to lift the limitations on visitation, relying on cases such as Hunter v. Hunter, 540 So.2d 235 (Fla. 3d DCA 1989). In this case, however, the order expressly directs the parties to schedule a case management conference within thirty days to address the Former Wife's compliance with the SCRAM bracelet, alcohol and drug testing, and treatment program requirements imposed by the order. The trial court stated that, at the conference, the court would "determine the Former Wife's time-sharing status with the minor child." We find no error in this procedure, as it provides a clear path toward reconsideration of the timesharing limitations if enumerated conditions are met.

We also find no error in those provisions of the order directing the Former Wife to pay the expenses of her alcohol and drug evaluation, all expenses of the SCRAM bracelet and monitoring, and the cost of in-patient or out-patient treatment as recommended by the Transitions Recovery Program. If unable to pay the expenses of the services required by the order, the Former Wife could be denied an opportunity to resume unsupervised timesharing. In the trial court, however, the Former Wife made no such assertion or demonstration of prospective inability to pay those expenses.

Two of our sibling district courts have determined that the costs of supervision should be treated as a child support expense and included in those calculations. Moore v. Yahr, 192 So.3d 544 (Fla. 4th DCA 2016) ; Perez v. Fay, 160 So.3d 459 (Fla. 2d DCA 2015). But the Former Wife has not pointed to any authority providing similar treatment for expenses of monitoring and treating substance abuse imposed as a result of a party's violation of prior agreed orders.

For these reasons, we affirm the order in Case No. 3D18-1420 relating to the modification of timesharing.

Case No. 3D18-1457: Evaluation

In this second of the consolidated cases, the Former Wife contends that the portions of the same order requiring "the Former Wife to submit to a substance abuse evaluation, be fitted for a SCRAM bracelet, attend substance abuse treatment and be responsible for the costs associated with same" are a departure from the essential requirements of the law, resulting in material injury for the remainder of the case, such that the injury cannot be corrected in a post-judgment appeal. M.M. v. Florida Dep't of Children & Families, 189 So.3d 134 (Fla. 2016).

For the reasons previously described, and on the record before us, we find that none of these elements necessary to a writ of certiorari has been demonstrated, and thus deny the petition.

      The acronym stands for "secure continuous remote alcohol monitor," a wearable device capable of detecting and electronically reporting alcohol use by the wearer.

      As one example, the trial court referred to a 2017 determination that Former Wife "had purchased 7,800 canisters of nitrous oxide in a six (6) week period." As another, Former Wife previously agreed to the entry of a requirement for supervised visitation after allowing the child to play in the residential swimming pool while the Former Wife was impaired.

      In contrast, the order in Hunter was "uncertain as to when Mr. Hunter may petition the court to reestablish visitation." 540 So.2d at 238.


author: SCALES, J.

text:
    Amada ORTEGA, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D17-2028
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    Marin, Eljaiek, Lopez & Martinez, P.L., and Steven E. Gurian and Anthony M. Lopez, Coconut Grove, for appellant.
    Berk, Merchant & Sims, PLC, and Patrick E. Betar and Evelyn M. Merchant, Miami; Hinshaw & Culbertson LLP, and Maureen G. Pearcy, Coral Gables, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   SCALES, J.

Amada Ortega, the plaintiff below, appeals an order granting final summary judgment in favor of the defendant below, Citizens Property Insurance Corporation ("Citizens"), on Ortega's claim for breach of a homeowner's insurance policy. Because we agree with Ortega that disputed issues of material fact remain as to whether a covered peril caused an opening in the roof of Ortega's home, allowing rain water to enter and damage the home's interior, we reverse the order granting final summary judgment and remand for further proceedings.

I. FACTS AND PROCEDURAL BACKGROUND

Ortega owns a home located in Miami-Dade County that, at all times material, was insured by a homeowner's insurance policy issued by Citizens. In September 2014, Ortega made a claim on her policy after the interior of her home allegedly sustained damage from rain water penetration due to a roof leak.

The instant policy does not provide coverage for direct loss to property "caused by ...[r]ain ... to the interior of a building unless a covered peril first damages the building causing an opening in a roof ... and the rain ... enters through this opening." (Emphasis added). In October 2014, Citizens inspected the property and denied Ortega's claim, asserting that the roof leakage in question was not the result of a covered peril that created an opening in the roof. Rather, Citizens concluded that the roof leak had occurred due to wear and tear, defect, improper maintenance and/or improper repairs of the roof - all of which are exclusions from coverage under the subject policy.

In December 2014, Ortega filed the instant breach of contract action against Citizens, alleging that the water damage to the interior of her home was covered under the subject policy because the roof opening, and resulting damage, was caused by a covered peril. Citizens re-inspected the home, again concluding that the roof leakage was not the result of a covered peril, but that the roof had merely deteriorated to the point that it had "reached the end of its useful life."

After conducting some amount of discovery, Citizens moved for summary judgment arguing that "there is not one iota of evidence to establish that a covered peril created an opening [that] first caused damage to the subject roof which resulted in water damage to the interior of the home." (Emphasis added). Ortega responded that the roof of her home had been damaged during a windstorm, creating an opening for the rain water to enter and damage the home's interior. As support, Ortega relied upon the deposition of her son, Armando Ortega, and the affidavit of Alfredo Brizuela, a licensed general contractor and engineer in the state of Florida.

After conducting a brief hearing, the trial court entered an order granting, without explication, Citizens' motion for summary judgment. On August 28, 2017, the trial court entered the final summary judgment that Ortega has timely appealed.

II. ANALYSIS AND CONCLUSION

On this appeal, while Citizens concedes that the requisite "covered peril" under the instant policy provision includes both (i) a tree branch falling through the roof of the home, and (ii) a wind-created opening in the roof, Citizens argues that Ortega failed to present any evidence of either occurrence in the lower proceedings so as to preclude entry of summary judgment in its favor. We disagree.

Armando Ortega testified at his deposition that, in September 2014, a tree branch "went through" the roof of his mother's home, creating a "huge hole" directly over the kitchen. Mr. Ortega stated that there had been a storm that day and that, in addition to the branch that had fallen onto the roof, there were tree limbs strewn on the driveway in front of the house. After removing the tree branch that was "sticking out of the roof," Mr. Ortega placed a tarp on the roof and attempted to temporarily patch the damaged area above the kitchen. Mr. Ortega confirmed that photographs of the roof taken by Citizens during its October 2014 inspection depict the temporary repairs he had made to the roof.

Alfredo Brizuela, the licensed general contractor and engineer who inspected Amada Ortega's home, attested in his affidavit, in relevant part, that: (1) he "observed classic windstorm damages to the roofing system at the Property; specifically ... evidence of uplift damage from increased wind forces"; (2) the damage he "observed on the ceilings, walls and baseboards of the property were consistent with a sudden and accidental leak"; (3) in his professional opinion, "the property suffered an accidental direct physical loss to the roofing system from heavy wind and rain which allowed water to enter the Property and cause the interior ceilings to collapse and caused ensuing damage to the interior property"; and (4) the damage "occurred at the Property on or about September 21, 2014, as reported by the Insured."

"If the record on appeal reveals the merest possibility of genuine issues of material fact, or even the slightest doubt in this respect, the summary judgment must be reversed." Piedra v. City of N. Bay Vill., 193 So.3d 48, 51 (Fla. 3d DCA 2016). Contrary to Citizens's suggestion, as set forth herein, Ortega introduced an "iota of evidence" sufficient to preclude entry of summary judgment on the material issue of whether a covered peril created an opening to the roof of Ortega's home which then permitted rain water to enter and damage the interior of the home. Id.; see also Carnes v. Fender, 936 So.2d 11, 14 (Fla. 4th DCA 2006) ("Such evidence is sufficient to constitute the scintilla of appreciable evidence required to defeat a motion for summary judgment."). Accordingly, we reverse the final summary judgment entered in favor of Citizens and remand for further proceedings.

Reversed and remanded.

      Ortega alleged that the roof leak occurred on or about September 21, 2014.

      We review a trial court's grant of summary judgment de novo . Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).


author: PER CURIAM.

text:
    AMERICAN SHUTTLE, INC., Appellant, v. In re: Martin ZILBER, v. Southern Shuttle Services, Inc., etc., Appellees.
    Nos. 3D17-1839 & 3D17-1542
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018.
    Patino & Associates, P.A., and Ralph G. Patino ; Ralph O. Anderson P.A., and Ralph O. Anderson (Fort Lauderdale), for appellant.
    Roniel Rodriguez IV, P.A., and Roniel Rodriguez IV, for appellee Harvard Financial Services LLC a/a/o Martin Zilber.
    Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.
   PER CURIAM.

American Shuttle, Inc. ("American Shuttle") appeals the trial court's order granting final summary judgment in favor of Harvard Financial Services LLC ("Harvard Financial Services") and the subsequent denial of its motion for rehearing or post-judgment relief. Because there are genuine issues of material fact, we reverse.

The underlying action surrounds the execution of an asset purchase agreement between American Shuttle and Southern Shuttle Services, Inc. American Shuttle was not an original party. The original proceedings were between Martin Zilber and Southern Shuttle. A judgment was entered against Southern Shuttle in the amount of $103,269.63. American Shuttle was named a party defendant after the trial court granted plaintiff assignee Harvard Financial Services' motion to invoke supplementary proceedings and implead third parties on September 1, 2016.

On January 30, 2017, the trial court issued a notice to appear to the three impleaded party defendants under section 56.29, Florida Statutes (2018). Contained in the notice to appear was a provision requiring the defendants to file an answer and assert any affirmative defenses within ten days of service. Furthermore, the notice added that any evidence offered in support of any affirmative defense after the deadline would be inadmissible at trial. American Shuttle timely filed its answer and affirmative defenses on February 9, 2017.

On April 6, 2017, Harvard Financial Services filed a motion for summary judgment against American Shuttle. Harvard Financial Services argued that the deposition testimony of American Shuttle's corporate representative, Robert Beers, was inconsistent with his earlier affidavit filed in conjunction with American Shuttle's affirmative defenses. On May 25, 2017, American Shuttle filed a response to the motion for summary judgment attaching new evidence to corroborate its defenses. On May 31, 2017, the trial court held a hearing on the motion. At the outset, the trial court ruled that it would not consider the new evidence proffered by American Shuttle as it was untimely. In so doing, the trial court granted the motion for summary judgment against American Shuttle and entered a judgment for damages in the amount of $103,269.93.

American Shuttle filed a timely first appeal as a precautionary measure on June 20, 2017 pending resolution of its motion for rehearing or post-judgment relief. On July 13, 2017, the trial court denied the motion for rehearing or post-judgment relief. American Shuttle subsequently filed a second timely appeal on August 8, 2017, challenging the denial. The appeals were consolidated upon order of this court.

American Shuttle argues that its fifth affirmative defense asserting the payment of all sums due under the asset purchase agreement and Robert Beers' sworn affidavit and testimony raise a genuine dispute of material fact. We agree. Based on the record before us, we conclude a genuine dispute of material fact exists regarding whether American Shuttle has paid all sums due under the asset purchase agreement. Gidwani v. Roberts, 248 So.3d 203 (Fla. 3d DCA 2018) (reversing summary judgment where the moving party failed to proffer evidence conclusively establishing the absence of a genuine issue of material fact); Calarese v. Weissfisch, 87 So.3d 1225 (Fla. 3d DCA 2012) (reversing summary judgment where the defendant's affirmative defenses were not conclusively disproved by affidavit or other sworn evidence); Riverwood Condo. Ass'n Inc. v. Litecrete, Inc., 69 So.3d 983 (Fla. 3d DCA 2011) (reversing summary judgment where the moving party did not refute the defendant's affirmative defenses and allegations in a sworn affidavit and deposition testimony were not challenged).

Reversed and remanded.


text:
    Huguette JEAN, etc., Appellant, v. ONM DEVELOPMENT, LLC, etc., et al., Appellees.
    No. 3D17-1063
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    The Purnell Law Firm, P.A., and Angelia Baldwin Purnell (Fort Lauderdale), for appellant.
    Mintzer Sarowitz Zeris Ledva & Meyers LLP, and Allison C. Heim (Tampa), for appellee ONM Development, LLC.
    Before LAGOA, SALTER, and LOGUE, JJ.
   PER CURIAM.

Because the former tenant's affidavit does not contradict the Property Manager's affidavit stating that "the turnover from the Developer of the Condominium to the Condominium Association took place on December 16, 2009" and that, as a result, "[a]s of December 16, 2009, the Developer no longer had control over The Oaks in North Miami, [given that] control was transferred to the Condominium Association," the trial court properly granted summary judgment as there were no genuine issues of material fact. Morgan v. Cont'l Cas. Co., 382 So.2d 351, 353 (Fla. 3d DCA 1980).

Affirmed.


text:
    Anthony S. WALKER, Appellant, v. Gregg Stephen TEKERMAN, Appellee.
    No. 3D18-1996
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    Gary Barcus (Pembroke Pines), for appellant.
    MKRS, LAW P.L., and Sergio R. Casiano, Jr., Coral Gables, for appellee.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Upon consideration, we grant appellee's motion and dismiss this appeal for lack of jurisdiction, as the trial court's order denying appellant's motion to dismiss for failure to state a cause of action is a nonfinal, nonappealable order. See Fla. R. App. P. 9.130(a)(3) ; Gomez v. S & I Props., LLC, 220 So.3d 539 (Fla. 3d DCA 2017) ;

Eagle Arts Acad., Inc. v. Tri-City Elec. Co., 211 So.3d 1083 (Fla. 3d DCA 2017) ; Fineman v. Greenberg, 575 So.2d 1310 (Fla. 3d DCA 1991).

Alternatively, appellant requests that we treat this as a petition for writ of certiorari. Certiorari is ordinarily unavailable to review an order denying a motion to dismiss. See Lantana Ins., Ltd. v. Thornton, 118 So.3d 250, 251 (Fla. 3d DCA 2013) and cases cited; Cuneo v. Conseco Servs., LLC, 899 So.2d 1139 (Fla. 3d DCA 2005) ; Royal Caribbean Cruises, Ltd. v. Sinclair, 808 So.2d 231, 232 (Fla. 3d DCA 2001) (holding: "The mere expense and inconvenience of litigation does not constitute harm sufficient to permit certiorari review, even if the order departs from the essential requirements of the law"). Further, the petition filed in the instant case fails to establish the prerequisite to invoking this court's certiorari jurisdiction-an irreparable harm that cannot be corrected on postjudgment appeal. See Bd. of Trs. Of Internal Improvement Fund v. Am. Educ. Enters., 99 So.3d 450, 454-55 (Fla. 2012). We are therefore without jurisdiction to consider this on certiorari review.

Appeal dismissed.


text:
    FLORIDA POWER & LIGHT COMPANY, etc., Petitioner, v. Heydi VELEZ, et al., Respondents.
    No. 3D18-1002
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    Squire Patton Boggs (US) LLP, and Alvin B. Davis, for petitioner.
    Armas Bertran Pieri, and J. Alfredo Armas, Eduardo E. Bertran and Francesco A. Zincone ; Acosta Law Firm, and Julio C. Acosta and Simeon Genadiev ; MSP Recovery Law Firm, and John H. Ruiz ; Dorta Law and Gonzalo R. Dorta, for respondents.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Florida Power & Light Company ("FPL") petitions for a writ of prohibition, seeking to prohibit the trial court from continuing to exercise jurisdiction in the proceeding below, pending a determination from the Florida Public Service Commission ("PSC") as to whether FPL complied with storm-hardening standards established by the PSC. Upon our determination that the trial court has jurisdiction to proceed with the action below, we deny the petition.

The action was filed below by the respondents, members of a putative class of FPL customers who seek money damages on claims against FPL for breach of contract and gross negligence, arising out of an alleged failure by FPL to comply with certain storm-hardening standards established by the PSC. FPL maintains that the PSC has exclusive jurisdiction over certain issues raised in the respondents' complaint.

This court may grant a writ of prohibition "when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction." English v. McCrary, 348 So.2d 293, 296 (Fla. 1977). Importantly, "[p]rohibition will be invoked only in emergency cases to forestall an impending present injury where [the] person seeking [the] writ has no other appropriate and adequate legal remedy." Id. at 297 (citation omitted).

There can be no question that the PSC has the exclusive jurisdiction "to regulate and supervise each public utility with respect to its rates and service ...." § 366.04, Fla. Stat. (2017). However, and as petitioner properly concedes, the PSC does not have the authority to award money damages. See Southern Bell Tel. & Tel. Co. v. Mobile Am. Corp., 291 So.2d 199 (Fla. 1974).

Further, the courts are the appropriate forum for determining whether FPL's alleged past conduct constituted a breach of contract or gross negligence, and the mere fact that such claims may involve questions of whether FPL failed to meet certain standards established by the PSC does not divest the trial court of its jurisdiction, or vest exclusive jurisdiction in the PSC, to resolve such issues. See e.g., Fla. Power & Light v. Glazer, 671 So.2d 211, 214 (Fla. 3d DCA 1996).

As the Florida Supreme Court has previously noted:

The PSC is uniquely qualified to determine difficult technical questions regarding the adequacy of telephone service, and has a technical staff whose functions include dealing with such difficult issues. The parties would of course be entitled to be heard and to cross-examine witnesses before the PSC in event of such a reference by the trial court to that body. The ultimate issues raised in a suit for money damages for a completed, past failure to meet the statutory standards are, however, a matter of judicial cognizance and determination. Whether the circumstances of a particular case are such as to indicate that the circuit court should refer the matter to the PSC for findings is a determination resting solely within the sound discretion of the circuit court.
* * *
Nowhere in Ch. 364 is the PSC granted authority to enter an award of money damages (if indicated) for past failures to provide telephone service meeting the statutory standards; this is a judicial function within the jurisdiction of the circuit court pursuant to Art. V, s 5(b), Fla. Const.

Southern Bell, 291 So.2d at 202 (emphasis added).

In Southern Bell, the trial court dismissed a tort action based upon a finding that the PSC had exclusive jurisdiction. The First District reversed that dismissal order, holding that the PSC did not have exclusive jurisdiction. The Florida Supreme Court affirmed, approving the following analysis contained in the First District's opinion:

The jurisdiction of the Public Service Commission is primarily prospective-a matter of promulgating regulations and setting rates. Its tariffs and regulations, if applicable, control as to the rights of the parties. The courts are primarily concerned with affording remedies for actions that have taken place. A claim that sets forth facts showing a plaintiff suffered damage as a result of a violation of the tariffs and regulations can be entertained by a court of general jurisdiction, or a claim in tort that sets forth facts which would constitute tortious conduct to the injury and damage of the claimant can also be filed in a court of general jurisdiction.

Mobile Am. Corp. v. Southern Bell Tel. & Tel. Co., 282 So.2d 181, 184 (Fla. 1st DCA 1973) (quoting Valentine v. Michigan Bell Telephone Co., 388 Mich. 19, 199 N.W.2d 182 (1972) ).

Further, the Florida Supreme Court noted that although a trial court may , in the exercise of its discretion, refer to the PSC matters which "raise[ ] intricate problems of a technical nature ... to obtain the benefit of the state regulatory agency's specialized expertise in the field," the trial court was not required to do so and the trial court maintained its jurisdiction to award money damages "for past failure to provide ... service meeting the statutory standards." Southern Bell, 291 So.2d at 202.

See also Glazer, 671 So.2d at 214 (reaffirming that the PSC's authority is not exclusive and does not divest the circuit court of its jurisdiction over tort actions seeking money damages; noting further: " 'While compliance with a statutory standard is evidence of due care, it is not conclusive on the issue. Such a standard is no more than a minimum, and it does not necessarily preclude a finding that the actor was negligent in failing to take additional precautions.' ") (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 36, at 233 (5th ed. 1984) ); Winter Springs Dev. Corp. v. Florida Power Corp., 402 So.2d 1225, 1228 (Fla. 5th DCA 1981) (holding that "where, as here, a plaintiff seeks money damages for breach of contract, which an administrative body is not empowered to award, the administrative remedy is not considered adequate and the plaintiff is not bound to exhaust it before seeking relief in court.") Compare Florida Power Corp. v. Zenith Indus. Co., 377 So.2d 203, 204 (Fla. 2d DCA1979) (holding that, where customer filed suit alleging electric company improperly increased rates, and sought refund of overcharges, "jurisdiction to determine and award refunds of the alleged overcharges does not lie in the court, but in the Florida Public Service Commission.")

Petition denied.