text:
    Carolyn BANKS, Appellant, v. ALACHUA COUNTY SCHOOL BOARD, Appellee.
    No. 1D18-2128
    District Court of Appeal of Florida, First District.
    June 24, 2019
    Eric Jacob Lindstrom of Egan, Lev, Lindstrom & Siwica, P.A., Orlando, for Appellant.
    David M. Delaney, Jamie L. White, and Natasha Mickens of Dell Salter, P.A., Gainesville, for Appellee.
   Per Curiam.

Carolyn Banks appeals from an order dismissing with prejudice her two-count complaint against the Alachua County School Board. We affirm the dismissal of Count 2 of her complaint without comment. We reverse the portion of the trial court's order dismissing Count 1 of her complaint with prejudice.

Dismissal of a complaint with prejudice is a severe sanction to be used in limited circumstances. Obenschain v. Williams , 750 So. 2d 771, 772-73 (Fla. 1st DCA 2000) (holding a complainant should generally be given leave to amend a defective complaint except where the complaint fails to state a cause of action, and it "conclusively appears that there is no possible way to amend the complaint to state a cause of action"); McAlpin v. Roberts , 195 So. 3d 1197, 1199 (Fla. 1st DCA 2016) (reversing an order dismissing a complaint with prejudice and remanding with instructions to allow the appellants an opportunity to amend). In moving to dismiss, the school board argued the complaint was time-barred by the applicable statute of limitations and the complaint failed to state a cause of action.

A motion to dismiss based on the expiration of a statute of limitations should be granted only in "extraordinary circumstances" when the facts constituting the defense affirmatively appear on the face of the complaint and its attachments conclusively establish that the action is barred. Goodwin v. Sphatt , 114 So. 3d 1092, 1094 (Fla. 2d DCA 2013) (citation omitted). The instant case is not one of those extraordinary circumstances as the complaint raised sufficient facts to preclude dismissal on this basis.

In determining whether a complaint states a cause of action upon which relief can be granted, our review is confined to the four corners of the complaint and its attachments. Universal Underwriters Ins. Co. v. Body Parts of Am., Inc. , 228 So. 3d 175, 176 (Fla. 1st DCA 2017) (quoting Sobi v. Fairfield Resorts, Inc. , 846 So. 2d 1204, 1206-07 (Fla. 5th DCA 2003) ). We must draw all inferences in favor of the complainant and accept as true all well-pleaded allegations. Id. Considering the complaint's allegations in the light most favorable to Ms. Banks, we find she stated a cause of action for contract reformation and raised factual issues to withstand the motion to dismiss. Accordingly, we reverse the portion of the order dismissing Count 1 with prejudice and remand for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED .

Roberts, Ray, and Jay, J.J., concur.


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    Lazaro ALFONSO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2617
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Brian H. Zack, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   LOGUE, J.

Defendant, Lazaro Alfonso, seeks review of the trial court's order denying his motion to suppress the identification made by the sole witness who observed him breaking into her home. We affirm.

FACTS

The witness, an eleven year-old girl, was home alone. Upon hearing a knock on the front door, she looked through the peephole and saw a man wearing a baseball cap. She immediately telephoned her father, who told her to not open the door. She checked the peephole again, but the man was gone.

Approximately one hour later, the witness heard glass shattering in the living room. She went to the living room and from about fifteen feet away, saw a man breaking through a window with a "tool." She moved in closer and was able to observe from a distance of about three feet. She recognized him as the same man who was previously at the front door, though he was no longer wearing a cap. The venetian blinds covering the window were pulled down, but the slats were open. The witness quickly called her father again, locked herself in the bathroom, and called the police. Within minutes, the police arrived and found the defendant in the backyard. He was carrying a backpack with personal items and also had a screwdriver.

The police conducted a show-up shortly thereafter with the defendant on the street. The witness was able to view the defendant from her kitchen window. The period of time between the witness's observation of the man breaking the window and the show-up was approximately twenty minutes. The witness immediately identified him as the man who was previously at the front door. The defendant was ultimately charged with burglary of an unoccupied dwelling, criminal mischief causing damage of two hundred dollars or less, and possession of burglary tools. The defendant made a post-Miranda confession whereby he admitted to having burglarized the house in order to get money for alcohol and drugs.

Prior to trial, the defendant moved to suppress the witness's identification of him. The witness testified at the motion to suppress hearing. The motion was denied. At trial, over defense objection, the State introduced the witness's out-of-court show-up identification and had the witness make an in-court identification of the defendant. The defendant was convicted of the lesser-included offense of trespass.

The appellant now argues that the trial court abused its discretion by not suppressing the identification by the witness because it was based upon the impermissibly suggestive show-up. Because there was no error, we affirm.

STANDARD OF REVIEW

We review the trial court's denial of the motion to suppress the out-of-court identification for abuse of discretion. Walker v. State, 776 So. 2d 943, 945 (Fla. 4th DCA 2000) ("The decision to admit a pre-trial identification is within the sound discretion of the trial court and the decision should be overturned only upon a showing of abuse of discretion."); Lee v. State, 635 So. 2d 128, 130 (Fla. 3d DCA 1994) ("The decision to admit an out of court identification was within the sound discretion of the trial court."). The court has not abused its discretion where the "court's decision [is] well supported by substantial and competent evidence." Walker, 776 So. 2d at 945.

ANALYSIS

A "pretrial identification is considered a 'show-up' procedure where the police take a witness, shortly after the commission of an observed crime, to where the police are detaining the suspect, in order to give them an opportunity to make an identification." Walker, 776 So. 2d at 945. Furthermore, "[a]lthough 'show-up' procedures are inherently suggestive because the witness is presented with only one suspect for identification, it can be valid if the identification is based solely upon the witness's independent recollection of the suspect without being influenced by the suggestiveness of the procedure." Id. When evaluating whether a show-up is impermissibly suggestive, "[t]he test promulgated by the United States Supreme Court and adopted by [the Florida Supreme] Court is twofold: (1) did the police employ an unnecessarily suggestive procedure in obtaining an out-of-court identification; and (2) if so, considering the totality of the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification." Walton v. State, 208 So. 3d 60, 65 (Fla. 2016).

The defendant argues that the police conducted an unnecessarily suggestive show-up, in light of the witness's testimony, including but not limited to the pre-show-up comments from law enforcement to the witness "that they had already gotten him." The defendant argues that this unnecessarily suggestive show-up created "a substantial likelihood of irreparable [mis]identification." However, even where a "show-up procedure may have been suggestive," a court may still find that "based on the totality of the circumstances, the identification was reliable and there was no likelihood of irreparable misidentification." Lassiter v. State, 858 So. 2d 1134, 1136 (Fla. 5th DCA 2003).

In order to analyze whether under the totality of the circumstances there exists a substantial likelihood of irreparable misidentification, the court considers "(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation." Walton, 208 So. 3d at 66.

In light of these factors, and examining each in turn, the totality of the circumstances in this case did not give rise to a substantial likelihood of irreparable misidentification. The first factor requires that the court look to the "opportunity of the witness to view the criminal at the time of the crime." Id. Here, the witness had sufficient time to view the defendant at the time of the crime. The record shows the witness saw the defendant through the peephole initially and observed him for approximately 20-30 seconds. She then observed him again from a distance of about fifteen feet, as he was attempting to break through the window, and then from a distance of three feet for a span of 10 seconds.

Next, the court examines "the witness's degree of attention." Id. The record demonstrates that the witness had a high degree of attention focused on the defendant. The witness focused solely on him as she observed him through the peephole and also focused her attention on him when she observed him breaking through the window. She testified that she was approximately fifteen feet away from the window when she first saw him, but then slowly moved to a distance of roughly three feet away from the defendant and the window. She observed him throughout the duration of this time. Her attention was first focused on his hands as he was striking the window, but she then focused on his identity and motive.

Third, the court also examines "the accuracy of the witness's prior description of the criminal." Id. The trial court found that there was no prior description. However, the court did find the witness credible when she described the defendant as she saw him through the peephole and when she recalled his appearance while breaking the window. The witness was able to describe his height, build, skin tone, and clothing after viewing him through the peephole. She testified that, upon seeing him break the window, she was able to again observe his skin tone, height, build, clothing, and haircut since he was no longer wearing a cap.

Fourth, the witness demonstrated a high "level of certainty ... at the confrontation." Id. The witness immediately identified the defendant during the show-up as the person she had seen through the peephole and the person who was attempting to break-in through the window. She testified that at the show-up, she was sure that the defendant was the same man she had seen through the peephole and breaking her window. She further identified him in court and stated that she would not have told the police it was him if she was not sure.

Lastly, "the length of time between the crime and the confrontation," see id., in the underlying case weighs against irreparable misidentification. From the time the witness observed the defendant breaking the window to the time of the show-up, approximately only 15-20 minutes had elapsed.

Because there is substantial competent evidence in the record to support the trial court's finding that there was no substantial likelihood of irreparable misidentification, we hold there was no abuse of discretion and the trial court properly denied the motion to suppress. See Lassiter, 858 So. 2d at 1136 (affirming denial of motion to suppress despite a possibly suggestive show-up where, based on the totality of the circumstances, there was no likelihood of irreparable misidentification given that the witness had a reasonable opportunity to view the defendant, observed the robbery for two minutes, the witness's attention was focused on the defendant during the robbery, the crime occurred in a well-lit area, the witness positively identified the defendant in a show-up, and "only three hours had elapsed between the crime and the identification"); State v. Jackson, 744 So. 2d 545, 548 (Fla. 5th DCA 1999) (reversing order granting motion to suppress where witness was able to observe the defendant in broad daylight, the witness was physically close to the defendant while observing, the witness's description of the defendant was "reasonably accurate," the witness's identification did not waiver, and the period of time between crime and identification to be fifteen minutes); Lee, 635 So. 2d at 129 (affirming denial of motion to suppress where the court "found that the officer had opportunity to view the defendant at the time of the crime, that his attention was focused on defendant, that his radio description, although fairly generic, was accurate under the circumstances, that he was sure of his identification, and, that a very short time had elapsed between the crime and the identification.").

Even if the trial court had, under the facts of this case, erred by not granting the motion to suppress, any error would have been harmless. Here, the witness saw someone using a "tool" to break a window in order to enter her house. The defendant was caught in her back yard with a screwdriver shortly after she called the police to report the break-in. The witness's father stated that he did not know the defendant and the defendant did not have permission to be in their back yard. When apprehended, the defendant's only excuse was that he had heard police sirens and jumped into the backyard. Additionally, the defendant signed a post-Miranda confession stating that he was attempting to break into the house because he needed money for drugs and alcohol. Given the totality of the circumstances in the record, any error in admitting the identification was harmless beyond a reasonable doubt. See Scott v. State, 629 So. 2d 238, 241 (Fla. 3d DCA 1993) (holding that even in light of the admission of unduly suggestive show-up, "we do not reverse on this ground ... because we find no error in the trial judge's ultimate conclusion that, under all the circumstances, the out-of-court identification did not taint Moore's in - court identification of the defendant."); see generally, State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

Affirmed.

      There was conflicting testimony regarding the show-up. The officer who handled the show-up testified that the police car was not in view at the time of the show-up and the defendant was not in handcuffs. However, the witness's testimony indicated he was handcuffed and was "at" the police vehicle. The witness also testified that the dispatch officer on the phone told her it was safe to go outside because the suspect had been caught. She further testified that the officer who greeted her when she opened the door also told her that they had caught the suspect. Both instances of being told the suspect had been caught occurred before the show-up.


author: FERNANDEZ, J.

text:
    ST. BRENDAN HIGH SCHOOL, INC., et al., Appellants, v. Magali NEFF, et al., Appellees.
    No. 3D18-2579
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019 Rehearing Denied July 17, 2019
    J. Patrick Fitzgerald & Associates, P.A., Roberto J. Diaz and Maura Fitzgerald Jennings ; Gaebe Mullen Antonelli & DiMatteo, Elaine D. Walter, Joseph M. Winsby and Michael A. Mullen, for appellants.
    James J. Traitz ; Jay M. Levy, for appellees.
    Before SALTER, FERNANDEZ and LINDSEY, JJ.
   FERNANDEZ, J.

St. Brendan High School, Inc., and Archdiocese of Miami, Inc., (collectively, "St. Brendan") appeal the trial court's order granting a temporary injunction compelling St. Brendan to reverse its expulsion of Michelle Neff, a minor, and to readmit her to complete her junior year of high school. Due to the Neffs' failure to show entitlement to relief and the trial court's failure to include all of the necessary findings required for granting an injunction, we reverse and vacate the order and remand for further proceedings consistent with this opinion.

St. Brendan, a private Catholic high school in Miami-Dade County, Florida, expelled high school student, Michelle Neff, when her parents, Magali and Herbert Neff, filed a personal injury action against the school after Michelle was injured while performing community service at Good Hope Equestrian Training Center, Inc., an organization listed on St. Brendan's approved community service list. St. Brendan maintains that filing the suit against the school violated school policy, specifically certain school handbook provisions. Approximately one month after the expulsion, the Neffs filed an emergency motion for temporary injunction, in order to compel the school to readmit Michelle to complete her junior year.

After a hearing on the emergency motion for temporary injunction, the trial court issued an order simply granting the motion, noting that the court's reasoning was contained in the record. St. Brendan timely appealed the non-final order granting the temporary injunction.

This Court applies "a hybrid standard of review to the appeal of an order granting or denying a temporary injunction: 'To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.' " City of Miami v. City of Miami Firefighters' & Police Officers' Ret. Trust & Plan, 249 So. 3d 709, 713 (Fla. 3d DCA 2018) (quoting Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1258 (Fla. 2017) ).

To obtain a temporary injunction, a party seeking relief must satisfy the following four-part test: "[1] a substantial likelihood of success on the merits; [2] lack of an adequate remedy at law; [3] irreparable harm absent the entry of an injunction; [4] and that injunctive relief will serve the public interest." Gainesville Woman Care, 210 So. 3d at 1258 ; see also Mercado Oriental, Inc. v. Marin, 725 So. 2d 468, 469 (Fla. 3d DCA 1999) ; Fla. R. Civ. P. 1.610(c). If the party fails to meet any of these requirements, the motion must be denied. Genchi v. Lower Fla. Keys Hosp. Dist., 45 So. 3d 915, 919 (Fla. 3d DCA 2010). "Before granting a temporary injunction, the trial court must make clear, definite, and unequivocally sufficient factual findings .... Failure to make specific findings as to each of these four elements is reversible error." Tesoro Prop. Owner's Ass'n, Inc. v. Tesoro Commons, LLC, 237 So. 3d 403, 404 (Fla. 4th DCA 2018). The trial court's findings must be supported by competent substantial evidence. Gainesville Woman Care, 210 So. 3d at 1265. Upon review of the record, we find that the Neffs failed to present competent substantial evidence to satisfy each element of the four-part test, and the trial court failed to include all of the necessary findings to support granting a temporary injunction in this case.

As to the element of irreparable harm, the extent of the trial court's findings were: "[a] contract for education is a unique contract," and "the wisdom to disenroll [Michelle] shortly before exams is questionable." The hearing transcript does not include any additional findings as to irreparable harm. The inconvenience of Michelle having to change schools during her high school years does not rise to the level of irreparable harm to support a temporary injunction in this case, nor does the inability to attend school with her friends.

The record is also absent any analysis as to the unavailability of an adequate remedy at law. To the contrary, the Neffs amended their complaint to add a claim of intentional infliction of emotional distress, thereby pursuing a remedy at law as a result of the school's action.

Finally, the trial court failed to make any findings as to the elements of likelihood of success on the merits and service to public interest. We note, however, that if schools are to become liable for every incident at an off-premises activity for which community service hours are available, community service will be a thing of the past.

On these facts, we find that both the trial court's reasoning and the Neffs' assertions are without basis in Florida law and are wholly conclusory. Accordingly, we reverse and vacate the order granting a temporary injunction preventing St. Brendan from discharging Michelle Neff, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      The main provision, on which St. Brendan relies, provides as follows:
      The school views the education of a student as a partnership between the parents and the school. Parents and students are expected to comply with the school rules and policies, and to accept and support the authority of school officials, whether it be at school events, on or off school campus, or on social media or other public forum. Just as a parent can withdraw a child from the school if desired, the school has the right to disenroll a student if it determines at its discretion that the parent or student partnership with the school is irretrievably broken.
      (Emphasis added).


author: EDWARDS, J.

text:
    Bryan SANTOS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1318
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 28, 2019
    James W. Smith, III, of CPLS, P.A., Orlando, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

Bryan Santos appeals his judgment and sentence and the denial of his motion to withdraw his plea, arguing that his plea of nolo contendere was involuntary because it was based on misadvice or ineffective assistance of counsel. Having reviewed the record on appeal, briefs, and authorities cited therein, we affirm Santos' judgment and sentence, and affirm the trial court's order denying Santos' motion to withdraw his plea.

SANTOS' CLAIM OF INVOLUNTARY PLEA

Santos was charged by information with one count of burglary of a dwelling with a battery, a first-degree felony punishable by life in prison, and one count of domestic violence battery, a first-degree misdemeanor. The charges arose out of Santos' attempt to visit the mother of their son in order to persuade her to let him visit their child. According to the victim's testimony, which was supported by a surveillance video, Santos came to the victim's residence, repeatedly tried to force his way inside, grabbed her by her hair, ripped her shirt, and tried to pull her out of her residence. Because they had several prior incidents of domestic violence, there was a "no contact" order in place.

Santos' scoresheet reflected a lowest permissible sentence of 46.2 months in prison. The State made a plea offer for a bottom-of-the-guidelines sentence, even though the victim, who was present at sentencing, wanted a longer sentence. Santos rejected the State's offer and through his privately-retained trial counsel sought a downward departure from the 46.2 months.

The trial court did an outstanding job of explaining to Santos that he had three options: (1) proceed to trial, (2) accept the State's plea offer, or (3) make an open plea to the court with no promises of what sentence might be imposed. The trial court confirmed that Santos understood each option. The trial court also made certain that Santos knew that the court could sentence him to any prison term, from 46.2 months to life, and Santos acknowledged that he understood that. See Nelfrard v. State , 34 So. 3d 221, 223 (Fla. 4th DCA 2010) ("Where the court informs a defendant of his sentencing exposure, a defendant may not reasonably rely on a contrary representation by counsel.").

Santos' counsel told the trial court that he would be requesting a downward departure from the 46.2 months based on the victim having provoked Santos into committing this crime by not honoring a time-sharing schedule. The trial court said that it would listen to all the testimony and review whatever evidence each side wished to present at sentencing. The trial court went on to explain in detail to Santos that before the court would order a downward departure, it would first have to determine that there was a legal basis to depart, and whether it should exercise its discretion to depart. It explained that it was not obliged to depart downward and could in fact sentence Santos to life. Such conversations during a colloquy have been held to refute claims of attorney misadvice based on promises as to sentence length. Ragoobar v. State , 893 So. 2d 647, 648-49 (Fla. 4th DCA 2005).

During this discussion, the trial court reminded Santos that the victim would be testifying and that she reportedly wanted more, not less, than the 46.2-month sentence. Repeatedly, Santos voiced his understanding of the process and his options. Defense counsel had requested the court to explain these things to Santos to make sure Santos understood.

Defense counsel was given repeated opportunities to speak privately with his client to confirm that Santos understood his options and to determine what he wanted to do. The trial court repeatedly told Santos that it could sentence him to more than the 46.2 months, the bottom of the guidelines provided, and each time Santos verbally acknowledged that he understood. After a lengthy explanation and consultation with counsel, Santos chose to plead no contest, open to the court. Before accepting his plea, the trial court conducted another detailed, thorough colloquy during which Santos confirmed that he was satisfied with his lawyer, who had done all that Santos wished and nothing he had not, that nobody had threatened him or promised him anything, and that his plea was truly voluntary.

The victim testified to the violent confrontation at her house, explained what the surveillance video showed, and filled in the events not captured on video. Defense counsel asked for a sidebar during the victim's testimony to see if the State's offer of 46.2 months was still available; however, it had been withdrawn once testimony began. The victim completed her testimony, advising that there had been several incidents of domestic violence before and that she was afraid for her safety and the safety of their son. Other witnesses apparently testified on behalf of Santos, but his appellate counsel chose not to obtain a transcript of the sentencing hearing, as will be discussed below.

When the trial court gave Santos the opportunity to speak, he simply said, "Please have mercy on my sentencing, Your Honor. That's all."

The trial court then adjudicated Santos guilty of both counts, sentencing him to ten years in the Department of Corrections for the burglary with a battery charge followed by one year of probation, with credit for time served, and a sentence of time served for the misdemeanor battery. The trial court stated for the record that he found no legal basis for a downward departure, rejecting the provocation basis, and further stated that, even if there had been a legal basis, it would not have exercised its discretion to downward depart.

After sentencing Santos moved to withdraw his plea, claiming that his defense counsel had told him that he would receive a downward departure and that defense counsel had presented only a "bare bones" sentencing argument. In a detailed order, to which it attached relevant portions of the hearing transcript, the trial court explained why it was denying Santos' post-sentence motion to withdraw his plea.

Once a sentence has been imposed pursuant to a plea, "a defendant must demonstrate a manifest injustice requiring correction in order to withdraw a plea." Griffin v. State , 114 So. 3d 890, 897 (Fla. 2013). Unless the defendant can show that the trial court abused its discretion in denying a post-sentence motion to withdraw plea, it will be affirmed on appeal. Wagner v. State , 895 So. 2d 453, 456 (Fla. 5th DCA 2005). It is clear from the record before this Court that the trial court did not abuse its discretion in denying Santos' motion to withdraw his plea, and it is equally clear that Santos' open plea to the court was voluntary and with knowledge that he faced a sentence from below the 46.2-month bottom of the guidelines all the way to life in prison. There is no legal or factual merit whatsoever to Santos' claim on appeal that his plea was involuntary. Accordingly, we affirm.

AFFIRMED.

ORFINGER and HARRIS, JJ., concur.

      Santos' motion to withdraw plea was filed by his new attorney, James W. Smith III, who is also Santos' attorney on appeal. Given that the brief filed on behalf of Santos cites only two cases and is six pages in total length, the irony of Attorney James W. Smith III describing anything as "bare bones" is not lost on this Court.

      We affirm on the merits, or lack thereof, of Santos' claim. We choose not to invoke Lynn v. City of Fort Lauderdale , 81 So. 2d 511, 513 (Fla. 1955), or Hammond v. State , 34 So. 3d 58, 59 (Fla. 4th DCA 2010).


author: HARRIS, J.

text:
    Timothy RIORDAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2956
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 28, 2019
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, J.

Timothy Riordan appeals his prison sentence, challenging the constitutionality of section 775.082(10), Florida Statutes (2016). Riordan argues that, even if section 775.082(10) was constitutional, the trial court failed to make sufficient findings to impose a prison sentence. After Riordan filed his appeal, the Florida Supreme Court ruled, consistent with Riordan's primary argument, that 775.082(10) is unconstitutional because it requires the trial judge, rather than a jury, to make a factual finding of dangerousness to the public, which is necessary to increase an offender's maximum sentence from a nonstate prison sanction to a state prison sanction. Brown v. State, 260 So. 3d 147, 151 (Fla. 2018). Because Riordan's prison sentence was based on a finding of dangerousness made by the trial judge, this error was not harmless, Brown requires reversal of Riordan's prison sentence.

Even if reversal was not required by Brown, we would still reverse Riordan's prison sentence because the trial court's reason for imposing the sentence is inadequate. Riordan was charged below with felony battery, upgraded from a misdemeanor based on a prior battery conviction. At trial, the jury found Riordan guilty of battery and then specifically found that he was previously convicted of battery. With this conviction, Riordan's scoresheet totaled 21.3 points, just under the minimum score required to authorize imposition of a prison sentence without any additional findings.

Under section 775.082(10), a defendant who scores 22 points or fewer is presumptively entitled to a nonstate prison sentence. He may only be sentenced to prison if there are written findings supported by competent, substantial evidence "that a nonstate prison sanction could present a danger to the public." § 775.082(10), Fla. Stat. A trial court's finding of dangerousness pursuant to section 775.082(10) must be in writing and must be supported by the record. Jones v. State, 71 So. 3d 173, 175 (Fla. 1st DCA 2011). In sentencing Riordan, the trial court made several findings regarding Riordan's criminal history and then concluded that, based solely on the perceived escalating pattern of those convictions, failure to impose a prison sentence would result in potential future danger to the public. However, in finding an offender to be a danger to the public, the court must do more than merely recite prior convictions. The court "must make findings to establish a nexus between sentencing an offender to a nonstate prison sanction and the resulting danger that a nonstate prison sanction could present to the public." Reed v. State, 192 So. 3d 641, 648 (Fla. 2d DCA 2016).

In Reed, the Second District reversed a prison sentence because the trial court's written findings merely recited the defendant's charges and "failed to develop a nexus between a nonstate prison sanction and the resulting danger" that the defendant, under such a sentence, could present to the public. Id. Similarly in Jones, the First District reversed a prison sentence because the court failed to make sufficient findings that imprisonment, rather than a nonstate prison sentence, would better deter the defendant from committing future crimes. 71 So. 3d at 176. The Jones court further found a lack of record support for the trial court's "implicit finding" that a nonstate prison sanction would constitute a significantly lesser deterrent on the defendant than three years in state prison. Id.

Again, in Johnson v. State, 219 So. 3d 167, 170 (Fla. 1st DCA 2017), an upward departure sentence imposed under 775.082(10) was vacated. In that case, the trial court made several specific findings to support its conclusion that the defendant posed a danger to the community and that a prison sentence was warranted. Johnson, 219 So. 3d at 169. However, the appellate court reversed the sentence and remanded to the trial court to impose a nonstate prison sentence because "none of the six grounds stated by the trial court explain how a non-state prison sanction, such as jail, could present a danger to the community, as required by the plain meaning of the statute." Id. at 169-70 ; see also Johnson v. State, 260 So. 3d 502, 508-09 (Fla. 1st DCA 2018) (reversing defendant's prison sentence because trial court failed to develop nexus between nonstate prison sanction and resulting danger that defendant could present to public).

In this case, the trial court found that Riordan's "escalating pattern of criminal conduct" justified the upward departure. The order went through Riordan's prior convictions, found that the majority of Riordan's priors were non-violent crimes, and then correctly noted that a danger to the public could be found "based off economic and other types of harm." See McCloud v. State, 55 So. 3d 643, 644 (Fla. 5th DCA 2011) (holding that "danger may, at least in some cases, encompass pecuniary or economic harm"). However, the court's ultimate conclusion-that failure to impose a prison sentence would result in a danger to the community-was neither supported by the record nor did it meet the nexus requirement clearly contained in the statute and subsequent case law. Therefore, the trial court erred in sentencing Riordan to prison.

A prison sentence imposed on a qualifying defendant who scores 22 or fewer sentencing points constitutes an upward departure sentence. Bryant v. State, 148 So. 3d 1251, 1258 (Fla. 2014). When an appellate court reverses an upward departure sentence based on inadequate written findings, the court must remand for resentencing with no possibility of departure from the guidelines. Pope v. State, 561 So. 2d 554, 555 (Fla. 1990). Therefore, we reverse and remand for the trial court to resentence Riordan to a nonstate prison sanction. See Bradley v. State, 155 So. 3d 1248, 1250 (Fla. 4th DCA 2015) ; Johnson, 260 So. 3d at 509 (citing Johnson, 219 So. 3d at 170) (remanding for imposition of nonstate prison sanction, noting that appellate court was not permitted on remand to articulate new reasons for upward departure); see also Jones, 71 So. 3d at 176 (same).

REVERSED and REMANDED for resentencing.

ORFINGER and GROSSHANS, JJ., concur.

      In a footnote to the Brown opinion, the supreme court left it to future appellate courts to determine, when reversing a prison sentence improperly imposed under 775.082(10), what remand instructions to give to the trial court. See id. at 150 n.1. Despite the invitation to do so in Brown, we need not determine in this case whether the State should be afforded an opportunity to present the dangerousness issue to a jury, because we conclude that the findings relied upon to justify the upward departure were legally insufficient to justify a prison sentence.


author: PER CURIAM.

text:
    Richard FIGUEREDO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3120
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 28, 2019
    Richard Figueredo, Miami, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Richard Figueredo appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) Motion to Correct Illegal Sentence, wherein he argued that the five-year driver's license suspension imposed on him by the trial court was illegal. We agree and reverse.

After entering a plea to trafficking in methamphetamine, Figueredo was sentenced to serve seven years in the Department of Corrections as a habitual felony offender (HFO). The trial court also ordered his driver's license suspended for a period of five years.

Section 322.055(1), Florida Statutes (2015), provides a basis for the revocation of a driver's license based upon a conviction involving a controlled substance, as follows:

Notwithstanding s. 322.28, upon the conviction of a person 18 years of age or older for possession or sale of, trafficking in, or conspiracy to possess, sell, or traffic in a controlled substance, the court shall direct the department to revoke the driver license or driving privilege of the person. The period of such revocation shall be 1 year or until the person is evaluated for and, if deemed necessary by the evaluating agency, completes a drug treatment and rehabilitation program approved or regulated by the Department of Children and Families. However, the court may, in its sound discretion, direct the department to issue a license for driving privilege restricted to business or employment purposes only, as defined by s. 322.271, if the person is otherwise qualified for such a license. A driver whose license or driving privilege has been suspended or revoked under this section or s. 322.056 may, upon the expiration of 6 months, petition the department for restoration of the driving privilege on a restricted or unrestricted basis depending on length of suspension or revocation. In no case shall a restricted license be available until 6 months of the suspension or revocation period has expired.

(Emphasis added). The trial court offered no explanation for the length of the suspension other than to suggest it was lawful based on Figueredo's designation as an HFO. This was error.

Accordingly, we reverse the order under review and remand with directions that the trial court grant the motion and direct the Department of Highway Safety and Motor Vehicles to revoke Figueredo's driver's license as provided in section 322.055(1), Florida Statutes.

REVERSE and REMAND.

COHEN, BERGER and WALLIS, JJ., concur.


author: Per Curiam.

text:
    Jeffrey Todd MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-478
    District Court of Appeal of Florida, First District.
    June 28, 2019
    Michael Ufferman, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We review the trial court order denying Appellant's motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant was charged by amended information with (Count 1) sexual battery while in a position of familial authority, for penetrating the vagina of the victim with his penis when the victim was between age fifteen and seventeen, (Count 2) sexual battery while in a position of familial authority, for penetrating the mouth of the victim with his penis when the victim was between age thirteen and seventeen, and (Count 3) lewd and lascivious molestation on a victim under twelve years old, for forcing or enticing the victim to touch him when she was between the ages of six and eleven.

The attachments to the order on Appellant's motion reflect the following facts. At trial, the victim testified that Appellant, her stepfather, made her touch his penis with her hands "two or three times a week," beginning when she was six or seven and continuing until she was eighteen. The victim testified that the abuse escalated: she stated she lost her virginity to Appellant when she was fifteen, and that if she was on her period she would perform oral sex. The victim testified that she eventually found out that she was pregnant and gave birth to a baby that she then put up for adoption. She identified Appellant as the person who impregnated her. DNA evidence presented at trial established by a 99.99 percent probability that Appellant was the biological father of the victim's child.

Video of an interview between Appellant and law enforcement was played at trial. During the interview, Appellant stated that, when the victim was eighteen, she got drunk on New Year's Eve and asked him to rub her vagina; Appellant stated that he pushed her away and told her to go to bed. At trial, however, Appellant admitted to having sexual intercourse with the victim, his stepdaughter, when she was eighteen, but never before.

Appellant's daughter, the victim's half-sister, who was fourteen at the time of trial, testified that she lived with her father, but "he didn't really pay attention to [her]," stating Appellant largely ignored her and her younger brother. Appellant's daughter testified that Appellant focused most of his attention on the victim, although she testified that she never saw anything that she thought was inappropriate. Appellant's daughter testified that Appellant would occasionally send her and her brother outside to play with the dog or clean the pool, but that the victim would not be sent outside with them. Appellant's daughter testified that she would sometimes try to go back inside to get water, but he door would be locked. Appellant's daughter testified that, when she and her brother would eventually be let back inside, she would see the victim "washing her hands and crying."

Appellant's twelve-year-old son also testified that when his mother was at work, and he and the victim were home with Appellant along with Appellant's daughter, Appellant would send his own children outside and that his son would find the door locked when he attempted to reenter.

The jury found Appellant guilty on all three counts, and the court sentenced him to concurrent thirty-year sentences for Counts 1 and 2, and to life in prison for Count 3.

Appellant filed an amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 raising seven grounds for relief. Pertinent here, Appellant claimed newly discovered evidence, and attached an affidavit from Appellant's daughter in which she swore that she now did not believe that Appellant had molested her sister. She stated that she felt she had been "coached or brain washed" to take her mother and sister's side over her father's, and that her mother "put a lot of things in [her] head." She stated that she had testified in court that her father didn't pay attention to her, and stated she now knows that his attention was focused on the victim "because they were in a relationship." Appellant's daughter stated that she felt she had been obligated to protect her mother and sister, and stated that "I think what my father did was very wrong, but in my heart I don't feel like he should be doing life for something he did not do something their [sic] is no proof of."

In his motion, Appellant also claimed that his trial counsel was ineffective for failing to call Appellant's parents and Ami Morris as witnesses at trial, failing to go over the victim's text messages with Appellant, and failing to introduce a letter Appellant wrote to his father in which he admitted having a sexual relationship with his eighteen-year-old stepdaughter. Appellant additionally raised two sentencing issues.

The postconviction court summarily denied the motion , finding that Appellant's daughter's recanted testimony would not probably produce an acquittal on retrial and that Appellant could not show prejudice on any of his ineffective assistance claims. This timely appeal followed.

Analysis

"The standard of review of a summary denial of a rule 3.850 motion is de novo." McLin v. State, 827 So. 2d 948, 954 (Fla. 2002). "To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record." Peede v. State , 748 So. 2d 253, 257 (Fla. 1999).

Appellant first argues that the lower court erred in denying an evidentiary hearing regarding his claim of newly discovered evidence, in the form of Appellant's daughter's recantation of testimony regarding the victim. A defendant must meet two requirements to obtain a new trial based on newly discovered evidence: (1) "the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must also appear that neither the defendant nor defense counsel could have known of such evidence by the use of diligence"; (2) "the newly discovered evidence must be of a nature that it would probably produce an acquittal on retrial or yield a less severe sentence." Davis v. State, 26 So. 3d 519, 526 (Fla. 2009). "Specifically, recanted testimony that is alleged to constitute newly discovered evidence will mandate a new trial only if (1) the court is satisfied that the recantation is true, and (2) the recanted testimony would probably render a different outcome in the proceeding." Id. Recanted testimony would not have altered trial's outcome if it would not have eliminated other evidence at trial supporting the elements that the newly discovered evidence is offered to rebut. Id. at 529.

Here, even if the court accepted the recantation as true, such recantation could only potentially affect the daughter's testimony regarding what behavior she observed in the victim. The purported recantation would not eliminate or diminish in any way the testimony from the victim that Appellant continually sexually abused her beginning when she was six or seven until she was eighteen. At trial, Appellant's daughter, the victim's half-sister, did not testify that she saw Appellant sexually abuse her half-sister. In fact, this witness testified she saw nothing inappropriate occur with the victim and Appellant. And neither step-sibling testified that they observed Appellant abusing the victim.

Appellant's daughter testified that Appellant ignored her and her brother in favor of the victim and would send her and her brother outside, so he could be alone with the victim. The purported recantation stated that Appellant's daughter now understands that Appellant paid attention to her and her younger brother "in a different way" than he did to the victim, because he and the victim "were in a relationship." Appellant's guilt was established by evidence completely separate from this testimony, and this recanted testimony would in no way render a different outcome in the trial, especially in light of the victim's detailed and devastating testimony and the Appellant's trial testimony that admitted he did have sexual intercourse with the victim, after Appellant firmly denied such occurred in a pretrial interview.

Although Appellant's trial admission claimed the intercourse occurred after the victim's eighteenth birthday, the admission was obviously harmful to Appellant's defense, because the inconsistency diminished his credibility. The jury knew Appellant denied that intercourse occurred but had to later explain the DNA evidence. Thus, the record conclusively refutes Appellant's claim on this ground; the asserted recantation could not have changed the outcome of the trial.

Appellant next argues his counsel was ineffective for failing to present Appellant's mother and father and another defense witness at trial, despite Appellant's request. Appellant states that these witnesses would have testified that they were around Appellant in the time period that the offenses allegedly occurred and never saw any improper behavior by Appellant towards the victim.

To prove ineffective assistance of counsel, the defendant must show (1) that counsel's performance was deficient, and (2) that the defendant was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish prejudice under Strickland , the defendant must demonstrate a reasonable probability that the result of the proceeding would have been different but for counsel's deficiency. Hoskins v. State, 75 So.3d 250, 254 (Fla. 2011). Appellant cannot show prejudice. Appellant claims that these uncalled witnesses would have testified that they never saw Appellant acting inappropriately toward the victim. But testimony at trial established that the abuse occurred when Appellant was left alone with the children, and the testimony of the uncalled witnesses could not diminish the credibility of the victim's testimony because it wouldn't rebut the testimony that abuse occurred when the witnesses weren't there. Appellant's ineffectiveness claim on this ground is therefore meritless, and the postconviction court did not err in summarily denying Appellant's motion on this issue.

Appellant also argues that defense counsel should have more thoroughly investigated allegedly deleted texts between the Appellant and the victim, and the victim and her mother, but none of these texts, even if they exist, would have produced a different result. We need not decide if any of counsel's actions were deficient, if we determine that Appellant cannot show prejudice: "Because Strickland requires that a defendant establish both deficiency and prejudice, an appellate court evaluating a claim of ineffectiveness is not required to issue a specific ruling on one component of the test when it is evident that the other component is not satisfied." Lebron v. State , 135 So. 3d 1040, 1052 (Fla. 2014). To prevail on an ineffective assistance claim, "[t]he claimant must demonstrate a likelihood of a different result that is 'substantial, not just conceivable.' " Carter v. State , 225 So. 3d 881, 883 (Fla. 1st DCA 2017) (quoting Harrington v. Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ). "In order to sufficiently undermine the court's confidence in the outcome, a claimant 'must rely on more than mere speculation.' " Id. (quoting Derrick v. State , 983 So.2d 443, 462 (Fla. 2008) ).

Appellant argues that if counsel had gone over the text messages with him, he would have been able to use those texts to challenge the credibility of the victim and of his wife. Appellant argues that deleted texts from the victim to Appellant after the victim had turned eighteen indicate that the victim wanted to have consensual sex with Appellant. But this evidence would not rebut the victim's testimony that she and Appellant had sexual intercourse before she turned eighteen.

Appellant argues that one omitted text message would have indicated that the victim gave differing explanations as to why she left her grandparents' house in Orlando. The victim testified that she left because Appellant would not let her mother leave her house, but Appellant claims a text shows that the victim told her aunt that she left early due to an argument with her grandmother. But the text message would have in no way refuted the victim's testimony regarding the extensive sexual abuse the victim suffered during the years in question.

Appellant argues that text messages indicate that he and the victim's mother went on two dates in June 2012, once to the movies and once to dinner, and Appellant could have used these text messages to challenge the mother's credibility. But there is not a reasonable probability that the outcome of the trial would have been different even if the text messages had completely destroyed the mother's credibility, which the texts would not have done, as Appellant's guilt was established by evidence entirely separate from the mother's testimony. Appellant cannot establish a reasonable probability that the outcome of the trial would have been different if he had been able to utilize the text messages at trial. The trial court properly denied relief on this claim.

Appellant next argues that trial counsel was deficient for failing to present at trial a letter that Appellant wrote to his father in which he admits to having a sexual relationship with his eighteen-year-old stepdaughter. Appellant argues that if counsel had presented this letter, the State would have been prevented from arguing that before trial, Appellant denied having a sexual relationship with his stepdaughter. However, as the postconviction court correctly noted, the video of Appellant's interview with law enforcement showed Appellant denied having any sexual relationship with his stepdaughter. Even if the letter had been presented at trial, the State still could have argued that Appellant lied to law enforcement about not having a sexual relationship with the victim. Appellant therefore cannot show a reasonable probability that the outcome of the trial would have been different if the letter had been presented. Appellant's ineffectiveness claim on this ground is therefore meritless, and the postconviction court did not err in denying Appellant's motion on this ground.

Appellant next argues cumulative error. The cumulative effect of numerous errors in counsel's performance may constitute prejudice, but only where "confidence in the outcome of [the defendant's] original trial has been undermined and that a reasonable probability exists of a different outcome." State v. Gunsby, 670 So. 2d 920, 924 (Fla. 1996). As stated above, even assuming that counsel was deficient, Appellant cannot show a reasonable probability that the outcome of the trial would have been different, in light of the victim's testimony, corroborating circumstantial evidence, and the evidence demonstrating Appellant did engage in sexual intercourse with the victim, contracting his previous attempt to deny this fact. State v. Woodel, 145 So. 3d 782, 803 (Fla. 2014) ("Furthermore, because we do not find multiple errors in this case, there is no cumulative error effect that establishes prejudice").

AFFIRMED .

Roberts and Osterhaus, JJ., concur; B.L. Thomas, C.J., concurs specially with opinion.

B.L. Thomas, C.J., concurring specially.

I concur with the court's opinion and write to provide context to that opinion with additional facts from the record on Appellant's direct appeal filed with this court. It is well established that an appellate court may take judicial notice of its own files. See Hillsborough Cty. Bd. of Cty. Com'rs v. Public Employees Relations Com'n , 424 So. 2d 132, 133 (Fla. 1st DCA 1982) (holding courts may take judicial notice of their own records); see also, e.g. , Loren v. State , 601 So. 2d 271 (Fla. 1st DCA 1992) (stating that, in reviewing the summary denial of a postconviction motion, this court may take judicial notice of the direct appeal in its own records). I acknowledge the tension between this principle and the Florida Rules of Appellate Procedure, which define the record following summary denial of a rule 3.850 motion as "the motion, response, reply, order on the motion ... and attachments to any of the foregoing" and state that an order summarily denying an appellant's motion shall be reversed unless this record "shows conclusively that the appellant is entitled to no relief." Fla. R. App. P. 9.141(2)(A), (D).

Facially sufficient claims of ineffective assistance of counsel require an allegation that the outcome of the movant's trial would have been different but for the claimed errors of counsel. In reviewing such a claim, a postconviction court must necessarily consider the entire record of the proceeding to make a determination on ineffectiveness. Because these collateral actions assert that a claimed error affected an entire trial, in many cases such claims cannot truly be "conclusively refuted" without full consideration of that trial. But, of course, rule 3.850 cannot be construed to require attachment of the full trial transcript, see Tillery v. State , 639 So. 2d 76, 77 (Fla. 1st DCA 1994), and I do not suggest that postconviction courts should do so.

I do, however, think that where, as here, an appellate court has a transcript of the full trial proceeding in its records, it may take notice of these records in reviewing the lower court's ruling on the prejudice prong of an ineffective assistance claim. The supreme court has stated that, because ineffective assistance claims are mixed questions of law and fact that implicate a constitutional right, appellate courts have an obligation to "independently review" these claims. Stephens v. State , 748 So. 2d 1028, 1034 (Fla. 1999). The supreme court has further suggested that, because of this obligation, "an appellate court's review of a trial court's order denying an ineffective assistance claim requires consideration of the entire record that was before the trial court." State v. Coney , 845 So. 2d 120, 140 (Fla. 2003) (Pariente, J., concurring specially). Stephens and Coney did not involve review of a summary denial of an ineffectiveness claim, and Justice Pariente's call to review the entire record may be read to pertain only to a postconviction record following an evidentiary hearing. But because appellate courts are obligated to independently review mixed questions of constitutional magnitude, and because the prejudice determination necessarily requires a consideration of the entire proceeding by the postconviction court, it follows that a court reviewing that determination can and should review the entirety of that proceeding.

As such, I have taken notice of the record on Appellant's direct appeal and find the following facts useful in contextualizing Appellant's arguments and the portions of the trial transcript attached by the postconviction court.

The victim's mother testified that when she was married to Appellant he did not give the same attention to their children as he did to his step-daughter, the victim. The victim had no boyfriends and was only allowed one girlfriend. The mother became concerned and suspicious about Appellant's relationship with the victim. The victim's mother began asking her daughter if Appellant had touched her inappropriately. The victim at first denied any inappropriate activity and would become "overly animated" and just say Appellant was "mean."

Appellant's ex-wife testified she confronted Appellant with her suspicions, but Appellant denied any inappropriate activity and told her she was an "idiot" and "he had every right to be close" to the victim. Appellant told the victim's mother that he was closer to the victim than their other children, because the victim was older and called him "daddy" when she was four.

The victim's mother testified that she and Appellant stopped having sexual relations before she discovered a text on Appellant's phone that had not been sent out. She testified that she came home that day and found the victim crying and saying she "hated" Appellant. There was chaos in the home with all the children in an uproar. The children had heard Appellant saying derogatory comments on the phone about their mother. The victim's half-brother testified that when Appellant finished that conversation, he gave an angry look at the victim and asked if she was mad "because they didn't hump today."

When she examined Appellant's phone, Appellant's ex-wife found the text which read "yeah, you didn't rub your butt against me last week." The victim's mother knew the text could not have been intended for her. She confronted her daughter about the text, who initially denied Appellant had been molesting her but then covered herself in a blanket and said "yes."

The mother, in an apparent state of shock and rage, testified the next thing she remembered was standing in the room where Appellant was sleeping and holding a gun in her hand. She didn't remember getting the gun but only holding the rifle to Appellant's head and screaming at him to wake up. The children, including the victim, defused the scene and prevented any violence, and the next thing the mother remembered was being outside and talking to police.

The victim's mother testified that she took all the children and left the home. She later learned the victim was pregnant, and Appellant was identified as the father. She also learned how long the sexual activity between Appellant and the victim had continued.

The victim, who was nineteen at the time of trial, testified that she had known Appellant since she was four years old. He was a father figure to her; she called him "dad." The victim testified that Appellant began molesting her when she was six or seven years old and continued engaging in sexual activity with her until she was eighteen years old. When asked why she had not reported the sexual abuse earlier, she replied "I was scared."

The victim testified that the abuse escalated. Appellant began touching the victim and forcing her to put her mouth on his penis. He would ejaculate on a towel or his stomach.

The victim testified she lost her virginity to Appellant when she was fifteen. She told Appellant she did not want to have intercourse with him, but he said it would be "fine." Appellant had sexual intercourse with the victim "every Friday" or about two or three times a month.

The victim testified that Appellant was stricter with her than with his own children. He would not allow her to have any close friends, except one girlfriend. The victim testified that Appellant told her if he found out she had a boyfriend, he would also "put a bullet" in his head and "in her head too."

The deputy who first responded to the scene described the victim as crying hysterically and "very upset." The victim's mother was crying "but not hysterically" but as if "she was blown away" and "confused." A sheriff's investigator testified that he interviewed the victim in the emergency room that night. The victim "was crying, hiding her face behind her hands." This investigator also interviewed the Appellant.

The video of the interview between Appellant and the investigator was played at trial. During the interview Appellant waived his right to remain silent and right to counsel. The investigator informed Appellant that there were accusations that Appellant had engaged in sexual activity with the victim since she was six years old and that he had sexual intercourse with the victim "a week and a half ago." Appellant denied this. He also specifically denied he had sexual intercourse with the victim after she turned eighteen years old. Appellant blamed the accusations on relationship problems with the victim's mother.

The foregoing facts further support the court's opinion that Appellant's daughter's recantation, the alleged failure to call Appellant's parents and Ami Morris as witnesses, and the alleged failure to use Appellant's letter to his father did not affect the outcome of the trial and thus did not prejudice Appellant.

Appellant also claimed counsel was ineffective for failing to properly use certain text messages to impeach State witnesses. Appellant argues that one omitted text message would have showed that the victim gave conflicting explanations as to why she left her grandparents' house. The victim testified that she left because Appellant would not let her mother leave her house, but Appellant claims a text shows that the victim told her aunt that she left early due to an argument with her grandmother. In the text in question, the victim told her aunt "Yeah mom was really depressed and I missed her a lot and me and mammawl kind of got in an argument but we're fine now." This text message is not inconsistent with the victim's testimony, as both indicate she left her grandparents' house because her mother was having problems. This text message would not have refuted the victim's testimony that Appellant repeatedly sexually abused her throughout much of her childhood.

At trial the victim's mother testified that she and Appellant had not had sexual relations in over a year before she was made aware of the sexual abuse and testified that she and Appellant did not ever go out on dates. Appellant argues that text messages indicate that, contrary to her testimony, he and the victim's mother went on two dates in June 2012, once to the movies and once to dinner, and Appellant could have used this inconsistency to challenge the mother's credibility. However, the context of the relevant testimony indicates that she meant she and Appellant had not gone out recently, not that they had never gone on a date. As stated above, Appellant cannot establish a reasonable probability that the outcome of the trial would have been different if he had been able to utilize the text messages at trial. The victim's mother's testimony was relatively brief, and the matters involved in the text were essentially collateral the mother's testimony.

Based on the foregoing, I concur with the court's opinion to affirm the postconviction court's summary denial of Appellant's motion alleging ineffective assistance of counsel.

      The postconviction court granted relief on sentencing claims which are not at issue.


text:
    PANGEA PRODUCE DISTRIBUTORS, INC., Appellant, v. FRANCO'S PRODUCE, INC., et al., Appellees.
    No. 3D18-1026
    District Court of Appeal of Florida, Third District.
    Opinion filed July 3, 2019
    Scott Alan Orth (Hollywood), Miami Shores, for appellant.
    Roniel Rodriguez IV, Aventura; Alvarez | Gonzalez | Menezes, LLP and Ignacio M. Alvarez, Miami, for appellees.
    Before FERNANDEZ, SCALES and HENDON, JJ.
   FERNANDEZ, J.

The plaintiff, Pangea Produce Distributors, Inc. ("Pangea"), appeals the trial court's final order denying Pangea's Motion for Leave to File a Third Amended Complaint. Following a review of the record, we find that the circuit court abused its discretion in denying Pangea leave to amend. Thus, we reverse the final order denying Pangea's Motion to Amend.

In 2011, Pangea filed a single-count complaint against Carlos Franco and his corporation, Franco's Produce, Inc. (collectively, "Franco"), alleging that the parties entered into a verbal joint venture involving the sale of produce in Miami-Dade County between April 2010 and December 2010. In August 2012, Pangea moved for leave to amend to add Perishable Agricultural Commodities Act ("PACA") claims. After the case was set for trial in August 2015, Pangea decided to drop its PACA claim and moved the Court, ore tenus , to amend once again. The motion was granted and, on August 24, 2015, Pangea filed its Second Amended Complaint. The Second Amended Complaint contained five counts based on the same alleged transaction, but added that the alleged verbal joint venture was for a trial period of three to six months, terminable by either party.

On August 27, 2015, Franco filed a joint Motion to Dismiss Pangea's Second Amended Complaint. Mr. Franco argued that the Second Amended Complaint was "legally insufficient" as to him individually, and Franco's Produce requested dismissal of the Complaint as to Count II (Open Account), Count III (Account Stated), and Count IV (Unjust Enrichment), based on technicalities. Franco also argued that when the Second Amended Complaint was filed, Pangea departed from the pleadings by adding allegations of fact, namely regarding the alleged short-term trial period and termination option.

On November 3, 2015, the circuit court heard Franco's Motion to Dismiss Pangea's Second Amended Complaint. The Court entered an order granting Franco's Motion to Dismiss with prejudice. Pangea filed a Motion for Reconsideration or Clarification, arguing that it was error to dismiss the entire Complaint, as Franco's Motion to Dismiss did not articulate any proper argument in favor of dismissal of Counts I (Breach of Joint Venture/Partnership Agreement Terminable at Will) or Count V (Breach of Contract), and the court's dismissal of the Second Amended Complaint was based on the defense argument that Pangea had re-alleged and incorporated certain prior paragraphs into Counts II, III, and IV that contradicted those causes of action, but which Pangea argued could be easily cured. Contemporaneously, Pangea filed a Motion for Leave to File a Third Amended Complaint, with a proposed Third Amended Complaint to correct the minor deficiencies attached.

On March 21, 2017, the circuit court denied the Motion for Rehearing and the Motion for Leave to Amend. Believing that this was a final order, Pangea appealed. That appeal was dismissed upon a determination that the order then under review was not a final order. Subsequently, a final order was entered, and Pangea timely filed this appeal.

This Court has jurisdiction to review final orders of trial courts not directly reviewable by the Florida Supreme Court or a circuit court pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A). The standard of review for the denial of leave to amend is abuse of discretion. Datwani v. Netsch, 562 So. 2d 721, 723 (Fla. 3d DCA 1990).

Florida Rule of Civil Procedure 1.190(a), provides that leave to amend "shall be given freely when justice so requires." Typically, refusal to allow amendment of a pleading constitutes an abuse of discretion unless allowing the amendment "would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile." JVN Holdings, Inc. v. Am. Constr. & Repairs, 185 So. 3d 599, 601 (Fla. 3d DCA 2016) (quoting Kay's Custom Drapes, Inc. v. Garrote, 920 So. 2d 1168, 1171 (Fla. 3d DCA 2006) ). While the policy in Florida, as articulated in Rule 1.190(a), is to allow amendments to pleadings liberally, "a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." Alvarez v. DeAguirre, 395 So. 2d 213, 216 (Fla. 3d DCA 1981) (explaining that in addition to the desirability of allowing amendments to pleadings so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached). Although the number of amendments is not determinative of abuse, three ineffective attempts to state the same cause of action or defense are enough, and the liberality in permitting amendments decreases as the action progresses and as the number of amended pleading increases. Id. at 217.

In the present case, there has been no showing that granting leave to amend the complaint would prejudice Franco or that the amendment would be futile. There is no support for the notion that Pangea has abused the privilege to amend given that Pangea has only amended twice before. Franco cites to Alvarez for the proposition that dismissal of a complaint after three ineffective attempts at proper pleadings is not deemed abuse of discretion. However, in Alvarez the plaintiff had six opportunities to present a proper pleading and failed to do so. Unlike in Alvarez, Pangea has only amended twice before and is only now seeking a third opportunity to present a proper pleading. Thus, we reverse the circuit court's order denying Pangea leave to file a third amended complaint. In light of our conclusion, we decline to address the remaining issues raised on appeal.

Reversed and remanded.


author: HENDON, J.

text:
    Sandra LAPCIUC, et al., Appellants, v. Isaac LAPCIUC, et al., Appellees.
    No. 3D18-1804
    District Court of Appeal of Florida, Third District.
    Opinion filed July 3, 2019
    Legon Fodiman, P.A., and Todd R. Legon and William F. Rhodes, for appellants.
    Berger Singerman, LLP, and James D. Gassenheimer, Ashley Dillman Bruce, and Stephanie M. Chaissan, for appellees.
    Before LOGUE, SCALES, and HENDON, JJ.
   HENDON, J.

Sandra Landman a/k/a Sandra Lapciuc and PaulDan, LLC, appeal from the trial court's order granting Isaac Lapciuc and Del Valle Brands, Inc.'s emergency motion to enforce a settlement agreement. We affirm in part and reverse in part.

Isaac Lapciuc ("Isaac") is the 85% majority shareholder and president of Del Valle Brands ("DVB"), while Sandra Landman ("Sandra") is a 15% minority shareholder of DVB. DVB is a warehouse operation located in the building solely owned by PaulDan LLC, whose sole shareholder is Sandra. DVB leases the warehouse space from PaulDan pursuant to the terms of a Triple-Net Lease. Sandra and Isaac are former spouses whose respective rights to DVB and PaulDan were decided by a June 2013 marital settlement agreement ("MSA") and by the May 2017 settlement agreement ("Settlement Agreement").

The Settlement Agreement arose out of a dispute over Isaac's purchase of Precision Trading ("Precision" or "New Business"). Isaac allegedly pledged certain DVB assets and cross-collateralized those assets with the assets of Precision in connection with financing the acquisition. Sandra objected to the proposed acquisition and filed a shareholder derivative action against Isaac and DVB. The parties entered into the Settlement Agreement. The trial court dismissed the derivative action and all the associated amended complaints, counterclaims, and third-party suits with prejudice, retaining jurisdiction to enforce the incorporated Settlement Agreement.

In 2018, Isaac negotiated increases in DVB's and Precision's portfolios to expand both businesses. With the new demands for product, Isaac applied to increase the businesses' already existing asset-based line of credit ("LOC") by an additional $7 million (from $23 million for DVB and from $10 million for Precision) in order to finance the new inventory demands. The additional LOC was to have the same terms as the original LOC. Sandra objected, asserting that she had the right to approve or object to the new LOC, and claimed that the loan terms were not commercially reasonable pursuant to provision 2(c)iii of the Settlement Agreement, which provides:

iii. No Additional Indebtedness. Except for commercially reasonable and prudent expenditures on behalf of the New Business , Isaac will not incur or guaranty any additional indebtedness exceeding the amounts currently available to be borrowed through pending bank or other loans unless the proceeds of the same are used to reduce the then outstanding balance of Isaac's and DVB's obligation to pay Sandra under her Employment Agreement with DVB.

(Emphasis added). After multiple communications between the parties, Mercantile Bank ("Bank") decided it would not close on the increased LOC until the dispute with Sandra was resolved, either by a court order or by Sandra's agreement to the new LOC. When Sandra refused to give her consent to the increased LOC, and the new business contracts were about to suffer from lack of additional inventory, Isaac filed a motion to enforce the Settlement Agreement.

At the August 28, 2018 hearing on the motion to enforce, the trial court noted that Sandra withdrew her objection to the LOC, while maintaining that she did not "consent" to the LOC nor waive her rights to challenge the LOC in the future. Isaac's counsel stated that the Bank would not close without both a court order approving the LOC pursuant to the Settlement Agreement and a reaffirmation of the Lease's self-executing subordination clause (either by Sandra or the court), because Sandra had indirectly threatened the Bank with legal action should it grant the LOC to Isaac. Sandra's counsel argued against any order from the court "approving" the LOC or the Lease, stating that decision would amount to a declaratory judgment without an evidentiary hearing necessary to prove the legitimacy of the LOC or the Lease. After hearing both parties' arguments, and noting Sandra's withdrawal of her objection to the LOC, the trial court granted in part Isaac's Motion to Enforce the Settlement Agreement. The court found that DVB and Precision were authorized to enter into the LOC. The court also found that the Lease is valid and enforceable, and that the subordination clause is self-executing. Sandra appealed.

The crux of Sandra's objection to the increased LOC - and indeed, the salient issue at the hearing - was whether that additional indebtedness was "commercially reasonable and prudent," as provision 2(c)iii of the Settlement Agreement required. The determination of that question, however, necessitated a full evidentiary hearing. Nevertheless, over Sandra's counsel's strenuous objection, and without any documentary or testimonial evidence that the increased LOC was a "commercially reasonable and prudent" expenditure, the trial court implicitly found that the LOC was commercially appropriate by authorizing Del Valle and Precision to proceed with the LOC. The trial court should not have decided the merits of the motion to enforce the Settlement Agreement without any evidentiary support in the record to evaluate the commercial reasonableness, or not, of the increased LOC. See, e.g., Empire Blue Cross Blue Shield v. Pub. Health Tr. of Dade Cty., 546 So. 2d 1077, 1078 (Fla. 3d DCA 1989) (holding that an evidentiary hearing was necessary on motion to enforce a settlement agreement where the value of certain medical services required under the settlement agreement was undetermined).

The trial court additionally found that the Lease between the parties was valid and enforceable and that the Landlord's subordination clause was self-executing. Once again, the trial court made this ruling without any evidentiary support, and where that issue had not been raised in the motion but was argued for the first time at the motion hearing. To be clear, "the granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process." Miami-Dade Cty. Bd. of Cty. Comm'rs v. An Accountable Miami-Dade, 208 So. 3d 724, 734 (Fla. 3d DCA 2016) (quoting Celebrity Cruises, Inc. v. Fernandes, 149 So. 3d 744, 750 (Fla. 3d DCA 2014) (quoting Connell v. Capital City Partners, LLC, 932 So. 2d 442, 444 (Fla. 3d DCA 2006) ); see also Mizrahi v. Mizrahi, 867 So. 2d 1211, 1213 (Fla. 3d DCA 2004) ("Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings."); Epic Metals Corp. v. Samari Lake E. Condo. Ass'n, Inc., 547 So. 2d 198, 199 (Fla. 3d DCA 1989) ("A trial court violates a litigant's due process rights when it expands the scope of a hearing to address and determine matters not noticed for hearing.").

As the increased LOC has since been funded, we affirm that portion of the order allowing that transaction to proceed. We reverse in part and remand with directions to the trial court to strike paragraphs 2 and 3 of the order on appeal, as those rulings were made without the necessary evidentiary hearing.

Affirmed in part, reversed in part and remanded.

      Under the 2013 MSA, Isaac agreed to pay Sandra $4 million as full satisfaction of the equitable distribution amount for the buy-out, and after that amount was funded, Sandra was reissued a 15% interest in DVB and received a ten-year employment contract from DVB paying her $200,000 a year. Also, as part of the MSA, Isaac assigned all of his right, title, and interest in PaulDan to Sandra, leaving Sandra as its sole member.


text:
    Marie BECKELL, Appellant, v. The BANK OF NEW YORK MELLON, etc., Appellee.
    No. 3D18-1106
    District Court of Appeal of Florida, Third District.
    Opinion filed July 3, 2019
    Kenneth Eric Trent (Fort Lauderdale), for appellant.
    DeLuca Law Group, PLLC., and Shawn Taylor and Brandi Wilson (Fort Lauderdale), for appellee.
    Before LOGUE, SCALES, and HENDON, JJ.
   LOGUE, J.

Borrower, Marie Beckell, appeals the entry of a final judgment of mortgage foreclosure in favor of the lender, Bank of New York Mellon. The sole issue on appeal is whether it was proper to enter judicial default against Ms. Beckell. Because Ms. Beckell filed documents in the underlying action but was deprived of a meaningful amount of time to respond to the application for default, we reverse.

Background

On May 25, 2012, the Bank filed a foreclosure complaint against Ms. Beckell, to which she filed a pro se answer in response. Subsequently, the Bank filed an amended complaint naming another alleged property owner as an additional defendant. Ms. Beckell did not amend her answer or otherwise respond. At 4:33 p.m. on December 8, 2015, the Bank moved for default against Ms. Beckell. The following day, the trial court granted the Bank's motion and entered judicial default against Ms. Beckell for failure to serve a responsive pleading to the amended complaint. Ms. Beckell was included on the certificate of service for both the motion and order. Subsequently, counsel appeared for Ms. Beckell, and twice moved to vacate the default. Notwithstanding, the case went to a bench trial with a default judgment entered against Ms. Beckell. Following trial, final judgment was entered against Ms. Beckell. This appeal followed.

Analysis

Under Florida law, "[i]t is fundamental that when a party against whom affirmative relief is sought has appeared in an action by filing or serving papers, that party shall be served with notice of the application for default as required by Florida Rule of Civil Procedure 1.500(b)."

Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996). Rule 1.500(b) authorizes entry of default against a party who failed to defend itself, but requires notice be given to a party that filed or served any document:

(b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any document in the action, that party must be served with notice of the application for default.

Fla. R. Civ. Pro. 1.500(b).

We recently reversed entry of default under circumstances similar to those in the case at bar. In Falcon v. Wilmington Savings Fund Society, FSB, 258 So. 3d 565 (Fla. 3d DCA 2018), the borrower filed documents in the action, but failed to respond to the complaint. Id. at 566. The lender moved for default and served the borrower. Id. Two-and-a-half hours later, the trial court entered default against the borrower. Id. We explained that the " 'notice of application' [requirement] ... would be purposeless unless given in sufficient time to permit some meaningful action to be taken upon it after its receipt." Id. (citing Cohen v. Barnett Bank of S. Fla., 433 So. 2d 1354, 1355 (Fla. 3d DCA 1983) ). As a result, we held that two-and-a-half hours between service of the application and entry of the default was less than "patently insufficient" to satisfy the notice requirement. Falcon, 258 So. 3d at 567.

In so doing, we relied on our decision in Cohen. There, the borrower filed documents in the action, but failed to respond to the complaint. Cohen, 433 So. 2d at 1354. The lender moved for default and served the borrower. Id. at 1355. The court entered default two days after the motion was served. Id. We reversed "because sufficient notice of the default application was not given the defendant." Id. We concluded that two days' time was insufficient and explained that Rule 1.500(b) :

must be deemed to include [the notice] requirement. Under Fla. R. Civ. P. 1.090(e), five days must be added to the time in which responsive action is permitted or required when, as here, service is made by mail. Since the two day period in the notice given by the bank was less than that, and was patently insufficient even without reference to the rule ... the default and the consequent judgments it secured must be set aside.

Cohen, 433 So. 2d at 1355 (citations omitted).

The case at bar falls squarely within time periods deemed insufficient to comply with the notice requirement by this Court in Falcon and Cohen. Here, default was entered not more than twenty-four hours after the Bank filed its application. Because Ms. Beckell was deprived of a meaningful amount of time to respond to the application, she was not given sufficient notice under the rule. Accordingly, it was error to enter default against Ms. Beckell. We therefore reverse the order of default and final judgment of foreclosure as to Ms. Beckell, and remand for further proceedings.

Reversed and remanded.


text:
    Valentin SPATARU, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, et al., Appellees.
    No. 3D18-2142
    District Court of Appeal of Florida, Third District.
    Opinion filed July 3, 2019
    Valentin Spataru, in proper person.
    Mark A. Schneider, P.A., and Mark A. Schneider (Fort Lauderdale), for appellee Florida Department of Transportation.
    Before LOGUE, HENDON, and MILLER, JJ.
   HENDON, J.

Valentin Spataru appeals from a final order dismissing his second amended complaint with prejudice for failing to adhere to a prior court order prohibiting further pro se filings. We affirm.

In 2017, Spataru filed a pro se complaint against Florida Department of Transportation ("FDOT"), among others, seeking damages he allegedly sustained in a 2013 bicycle/car collision, asserting that FDOT

should have placed signs to indicate two-way bike traffic on the pedestrian sidewalk that parallels US-1 in Key Largo. The trial court issued a sua sponte order to Spataru to show cause why his complaint should not be dismissed for failure to state a cause of action, and why he should not be barred from further filings unless represented by an attorney. Spataru did not respond, and instead filed a first amended complaint and moved to disqualify the trial court judge.

In October 2017, the trial judge denied the "motion" for disqualification and entered an order dismissing the case for failure to show cause, as well as barring Spataru from further pro se filings. Spataru appealed. This Court dismissed the appeal because it was taken from a non-final, non-appealable order. Spataru v. Fla. Dep't of Transp., 257 So. 3d 126 (Fla. 3d DCA 2018).

In August 2018, Spataru filed a second amended complaint. The trial court granted FDOT's motion to dismiss with prejudice. The court in its order found that Spataru continued to file meritless and vexatious suits and, in defiance of the court's order, filed yet another pro se complaint.

Our standard of review of a trial court's order dismissing a complaint for noncompliance with a court order is abuse of discretion. Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004) ; Bank One, N.A. v. Harrod, 873 So. 2d 519, 520 (Fla. 4th DCA 2004) ("Dismissal of a complaint for non-compliance with a court order is subject to an abuse of discretion standard of review."). "If reasonable people could differ as to the propriety of the trial court's action, the action is not unreasonable." Dunmire, at 495. Although dismissing the case with prejudice is a severe sanction, it is justified where a party shows "deliberate and contumacious disregard of the court's authority" or "willful disregard or gross indifference to an order of the court." Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983).

This Court finds that the trial court did not abuse its discretion by dismissing the case with prejudice. The trial court made two specific findings: 1) that Spataru failed to show cause why his initial complaint should not be dismissed for failure to state a cause of action, and 2) that Spataru willfully ("in defiance to this Court's prior orders") disregarded the order prohibiting him from further pro se filings without the signature of a licensed Florida attorney. Finding no abuse of discretion, we affirm.

Affirmed.

      The record provides that Spataru has filed at least eight meritless complaints against various entities and persons in the past five years.


text:
    Ivan Isadore RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-926
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Ivan Isadore Russell, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Jones v. State , 922 So. 2d 1088 (Fla. 4th DCA 2006) (holding that the filing of an unsuccessful petition for belated appeal does not toll or extend the two-year limit for filing a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 ).

Wetherell, Winokur, and M.K. Thomas, JJ., concur.


text:
    Arthur JAMES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4179
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Arthur James, pro se, Petitioner.
    Ashley Moody, Attorney General, and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Respondent.
   Per Curiam.

DENIED. See Knight v. State , 267 So. 3d 38 (Fla. 1st DCA 2018), review granted , No. SC18-309, 2018 WL 3097727 (Fla. June 25, 2018).

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


text:
    Tony Lamar CASTRO, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3679
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this appeal filed pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the judgment, sentences, and the order revoking Appellant's probation. However, we remand for the entry of a corrected probation revocation order that conforms to the trial court's oral pronouncement that revocation was based only upon Appellant's new law offenses. See Thomas v. State , 255 So. 3d 997, 997 (Fla. 1st DCA 2018) (affirming the revocation of probation and sentence but remanding for entry of a corrected revocation order that conformed to the trial court's oral pronouncement); Sesco v. State , 254 So. 3d 1196, 1196 (Fla. 1st DCA 2018) (affirming the revocation of probation and sentence but remanding for the trial court to enter a corrected revocation order reflecting, consistent with its oral pronouncement, that the revocation was based only on the new law offenses); Ross v. State , 212 So. 3d 1149, 1150 (Fla. 1st DCA 2017) (affirming the revocation of probation and sentences but remanding for entry of a corrected revocation order that conformed to the trial court's oral pronouncement).

AFFIRMED but REMANDED for correction.

Lewis, Makar, and Bilbrey, JJ., concur.


text:
    Johnny A. JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3421
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Johnny A. James, pro se, Appellant.
    Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Johnny James appeals the denial of the rule 3.800(a) motion in which he argued that his 30-year habitual felony offender (HFO) sentence on Count II is illegal because the trial court never properly designated him as an HFO on that count. We affirm.

The claim raised in the current motion is procedurally barred because James unsuccessfully raised the same claim-and variations of it-on direct appeal and in three prior rule 3.800(a) cases that were affirmed on appeal. See State v. McBride , 848 So. 2d 287, 290 (Fla. 2003) ("Collateral estoppel ... precludes a defendant from rearguing in a successive rule 3.800 motion the same issue argued in a prior motion."). Additionally, because this claim was squarely addressed-and rejected-in this Court's opinion on direct appeal, we find this appeal to be frivolous and, pursuant to section 944.279(1), Florida Statutes, we direct the Clerk of this Court to send a certified copy of this opinion to the appropriate institution within the Department of Corrections for potential disciplinary action against James. See Ponton v. Willis , 172 So. 3d 574, 576 (Fla. 1st DCA 2015) (explaining that a Spencer order is not required before referring the inmate for disciplinary action based upon a frivolous filing). Finally, we caution James that further frivolous postconviction filings may result in an order barring him from proceeding pro se in this Court. See State v. Spencer , 751 So. 2d 47 (Fla. 1999).

AFFIRMED .

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

      It is unclear why this pro se motion was not rejected or stricken as unauthorized because, in the order that was affirmed by this Court in case number 1D12-4742, the trial court prohibited James from filing future pro se pleadings in the underlying criminal case (case no. 1998-270-CF) unless the pleading is signed by a member of The Florida Bar and directed the Columbia County Clerk of Court to reject all pro se pleadings filed by James in that case.

      James v. State , 845 So. 2d 238 (Fla. 1st DCA 2003).

      James v. State , Case No. 1D12-45, 90 So. 3d 278 (Fla. 1st DCA 2012) (table); James v. State , Case No. 1D09-2646, 22 So. 3d 73 (Fla. 1st DCA 2009) (table); James v. State , Case No. 1D08-2526, 990 So. 2d 1064 (Fla. 1st DCA 2008) (table).

      James , 845 So. 2d at 239-40 ("Appellant now argues that, on resentencing for Count II, the trial court was bound to reduce the sentence to a guidelines sentence. Appellant's argument is premised upon the assertion that the HFO sentence imposed on Count II violates the double jeopardy prohibition and his due process rights because he was not initially subjected to HFO treatment on that count. We reject appellant's argument ....").


text:
    Jeremy HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3097
    District Court of Appeal of Florida, First District.
    July 9, 2019
    Jeremy Hicks, pro se, Appellant.
    Ashley Moody, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Jeremy Hicks entered a negotiated guilty plea to three counts of lewd or lascivious battery on a person under 16 and was sentenced to thirty years imprisonment. Hicks filed a postconviction motion alleging five grounds for relief, all of which the trial court denied without evidentiary hearing. We find that the record attachments to the order, including the transcript of Hicks' plea colloquy and the signed plea form, do not conclusively show that Hicks is entitled to no relief in grounds two and five of his motion, which alleged that his counsel was ineffective for failing to move to suppress incriminating statements he made to law enforcement after officers violated his Miranda rights. Fla. R. Crim. P. 3.850(f)(5). We therefore reverse this portion of the order and remand for an evidentiary hearing on this claim. Fla. R. App. P. 9.141(b)(2)(D). See Wilson v. State , 871 So. 2d 298, 299 (Fla. 1st DCA 2004) ("Appellant's entry of a plea, plea colloquy, and other record attachments do not conclusively refute his first claim that his counsel failed to investigate evidence that would have supported a motion to suppress incriminating statements he gave to police while in custody without being informed of his Miranda rights, and that his counsel should have filed a motion to suppress."). We affirm the trial court's summary denial of Hicks' three other claims.

AFFIRMED in part, REVERSED in part, and REMANDED .

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

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