author: Gerber, C.J.

text:
    William E. BYNES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3593
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    William E. Bynes, Miami, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Lindsay A. Warner, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals from the circuit court's denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. The circuit court denied the motion, finding that the motion was procedurally barred as successive. Although we disagree with that finding, we nevertheless affirm, because the defendant's motion fails on the merits.

We present this opinion in three sections:

1. The defendant's underlying convictions and sentences;
2. The defendant's rule 3.800(a) motions; and
3. This appeal.

1. The Defendant's Underlying Convictions and Sentences

The defendant was convicted of four offenses committed in January 2001, which were charged as counts one, two, three, and seven.

At sentencing, the state argued that the defendant qualified as a violent career criminal (VCC) because the four offenses were enumerated felonies committed within five years after the defendant's release from a sentence imposed as a result of a prior conviction for an enumerated felony, pursuant to section 775.084(1)(d)3.b., Fla. Stat. (2000). At that time, section 775.084(1)(d)3.b. provided, in pertinent part:

"Violent career criminal" means a defendant for whom the court must impose imprisonment pursuant to paragraph (4)(d), if it finds that ... [t]he primary felony offense for which the defendant is to be sentenced is a felony enumerated in subparagraph 1. and was committed on or after October 1, 1995, and ... [w]ithin 5 years after the conviction of the last prior enumerated felony, or within 5 years after the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later.

The circuit court agreed with the state's argument, and imposed VCC sentences on all four counts.

On direct appeal, we affirmed the convictions and sentences. Bynes v. State , 854 So.2d 289 (Fla. 4th DCA 2003).

2. The Defendant's Rule 3.800 Motions

The defendant later filed four separate Florida Rule of Criminal Procedure 3.800(a) motions.

The defendant's first rule 3.800(a) motion argued that his VCC sentences on counts three and seven were illegal because the crimes charged under those counts were not enumerated felonies under the VCC statute. The circuit court denied that motion, but we agreed with the defendant's argument and reversed for resentencing on counts three and seven. Bynes v. State , 127 So.3d 556, 557 (Fla. 4th DCA 2012).

The defendant then filed a second rule 3.800(a) motion, arguing that his VCC sentences on counts one and two were illegal because the offenses were committed more than five years after he should have been released from prison pursuant to a later resentencing. The circuit court denied the motion on the merits and we affirmed. Bynes v. State , 181 So.3d 498 (Fla. 4th DCA 2015).

The defendant later filed a third rule 3.800(a) motion, this time arguing that his VCC sentences on counts one and two were illegal because the offenses were committed more than five years after his release from the specific sentence imposed for his last prior enumerated felony conviction. The circuit court denied the motion, finding that the defendant's argument was barred because he raised it in his second rule 3.800(a) motion. We summarily affirmed. Bynes v. State , 227 So.3d 589 (Fla. 4th DCA 2017) (unpublished table decision).

The defendant then filed a fourth rule 3.800(a) motion, this time raising the same argument which he made in his third rule 3.800(a) motion. The circuit court denied the fourth motion, noting that "[the defendant's] proper eligibility under the VCC statute has been litigated on multiple occasions and has always been affirmed," and barred the defendant from further pro se filing.

3. This Appeal

This appeal followed. The defendant primarily argues that the circuit court erred in denying his third and fourth rule 3.800(a) motions as successive.

On further review, we agree with the defendant that his third and fourth rule 3.800(a) motions were not successive. The argument raised in those motions is different than the one raised in the second motion and has never been reviewed on its merits. See State v. McBride , 848 So.2d 287, 289-90 (Fla. 2003) ; Gunn v. State , 970 So.2d 862, 863 (Fla. 4th DCA 2007).

However, on the merits, we conclude that the circuit court's denial of the defendant's fourth rule 3.800(a) motion was proper. Nothing in the record shows that the enumerated felonies charged in counts one and two were committed more than five years after the defendant's last prior enumerated felony conviction, or more than five years after the defendant's release from his prison sentence imposed as the result of his last prior enumerated felony conviction. Cf. Esteves v. State , 966 So.2d 470, 471 (Fla. 4th DCA 2007) (trial court's error in denying defendant's rule 3.800(a) motion as successive, without attaching any portions of the record to support its conclusion, was harmless where the defendant's claim had been raised and rejected on direct appeal, i.e., on the merits).

In sum, the circuit court ultimately did not err in denying the defendant's fourth rule 3.800(a) motion, because the record does not show the defendant is entitled to relief. Therefore, we affirm the denial of the defendant's fourth rule 3.800(a) motion for reasons different than the reason upon which the circuit court relied.

Affirmed.

Levine and Conner, JJ., concur.


source: Caselaw Access Project

author: Klingensmith, J.

license: Public Domain

text:
    Neil J. WEINER, Appellant, v. Jennifer MAULDEN, Appellee.
    No. 4D18-2170
    District Court of Appeal of Florida, Fourth District.
    [April 10, 2019]
    Warren B. Kwavnick of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, for appellant.
    Scott T. McCullough of McCullough & Leboff, P.A, Davie, for appellee.
   Klingensmith, J.

Appellant Neil Weiner, the defendant in the action below, appeals the trial court's denial of his motion for attorneys' fees resulting from a proposal for settlement served upon Jennifer Maulden. For the reasons set forth below, we reverse the order denying attorneys' fees and remand for the trial court to determine a reasonable fee to be awarded.

Two plaintiffs, Maulden and David Holzberg, filed separate lawsuits against Appellant due to an automobile accident. Appellant moved to consolidate the cases. The trial court granted the motion, but only for the purposes of discovery, and later granted Appellant's second motion to consolidate the cases for trial. Maulden moved for reconsideration of the consolidation or, in the alternative, asked that the court impanel two separate juries.

While Maulden's motion for reconsideration was pending, Appellant served separate proposals for settlement on Maulden and Holzberg. He offered Maulden $ 51,000 to resolve all of her claims, including costs and interest, but excluding attorneys' fees and punitive damages, which were not part of the claim in dispute. Notably, Appellant sent the proposal to Maulden under the specific case caption and case number associated with her case without any reference to Holzberg's case. Maulden failed to accept the proposal for settlement within thirty days.

Maulden's case went to trial. The jury returned a verdict in favor of Maulden for $ 21,320, which was later reduced to $ 5,497.20 after set-offs. Appellant then moved for entitlement to attorneys' fees under section 768.79, Florida Statutes (2016), which the trial court denied. This appeal follows.

A party's entitlement to attorneys' fees is reviewed de novo . See Anderson v. Hilton Hotels Corp. , 202 So.3d 846, 852 (Fla. 2016).

According to section 768.79(1) :

In any civil action for damages ... if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him ... from the date of filing of the offer if ... the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award.

"[T]he offer of judgment statute creates an entitlement to attorneys' fees when the statutory and procedural requirements have been satisfied. The mandatory language of section 768.79 reinforces the notion that a proper offer automatically creates that entitlement, unless the offer is made in bad faith." Anderson , 202 So.3d at 856 (citations omitted). "Thus, an offer that complies with section 768.79 and [Florida Rule of Civil Procedure] 1.442 creates a 'mandatory right' to collect attorneys' fees." Id. (quoting TGI Friday's, Inc. v. Dvorak , 663 So.2d 606, 611 (Fla. 1995) ).

There is no dispute that the amount awarded to Maulden following trial was sufficient to trigger Appellant's entitlement to fees under section 768.79(1). However, Maulden claims that Appellant's proposal for settlement failed to apportion the total amount between her and Holzberg, thus leaving her reasonably uncertain whether her acceptance would extinguish Holzberg's claims in light of the consolidation. Maulden argues this proposal was a statutorily ambiguous "joint offer" that failed to apportion the damages amount among the offerees, thus making it invalid. We disagree.

"The supreme court has recently held that 'when a single offeror submits a settlement proposal to a single offeree ... and the offer resolves pending claims by or against additional parties who are neither offerors nor offerees , it constitutes a joint proposal that is subject to the apportionment requirement ...." Miley v. Nash , 171 So.3d 145, 149 (Fla. 2d DCA 2015) (emphasis added) (quoting Audiffred v. Arnold , 161 So.3d 1274, 1280 (Fla. 2015) ). "A [joint] proposal for settlement not strictly conforming to rule 1.442(c)(3)'s apportionment requirement is unenforceable." Peltz v. Tr. Hosp. Int'l, LLC , 242 So.3d 518, 520 (Fla. 3d DCA 2018).

Maulden's argument fails because the trial court consolidated the cases for two specific purposes: discovery and trial. Her claims did not merge with Holzberg's claims under the consolidation orders because "[w]here cases are consolidated for discovery and trial, they do not lose their individual identities as distinct, separately filed actions." SPS Dev. Co., LLC v. DS Enters. of Palm Beach, Inc. , 970 So.2d 495, 497 (Fla. 4th DCA 2007) ; accord Wagner v. Nova Univ., Inc. , 397 So.2d 375, 377 (Fla. 4th DCA 1981). As expressly stated in the consolidation orders, the parties' cases against Appellant, and not their individual claims , were consolidated. Maulden and Holzberg each retained their independent causes of action.

Further, the proposal explicitly stated that acceptance would resolve all damages "in this action." This language refers to the case number and the named parties identified in the proposal. Appellant's proposal did not mention any other pending claims, cases, or parties that would be affected by her acceptance. It also did not mention Holzberg, nor did the case style or caption of her proposal include Holzberg's name or case number. Because the express terms of Appellant's proposal only addressed Maulden and her claims, its language created no ambiguity as to what would be settled. Nor would a reasonable reading of its terms create doubt about whether Maulden's acceptance of the proposal would also settle Holzberg's claims.

Therefore, we conclude that Appellant's proposal for settlement served upon Maulden was proper under sections 768.79(1) and (2) and rule 1.442(c). We reverse the trial court's order denying Appellant's entitlement to attorneys' fees under the proposal for settlement and remand for proceedings consistent with this opinion.

Reversed and remanded with instructions .

May and Ciklin, JJ., concur.

      Appellant also sent Holzberg a proposal for settlement that was virtually identical to the proposal he sent to Maulden, aside from the names of the parties and the total settlement amount. Holzberg accepted Appellant's proposal just prior to trial.


author: Damoorgian, J.

text:
    AVP DESTINY, LLC, a Florida limited liability company, Anthony V. Pugliese, III, individually, Anthony V. Pugliese, Inc. d/b/a the Pugliese Company and Joseph Reamer, Appellants/Cross-Appellees, v. FD DESTINY, LLC, Elisabeth and Jonathan Deluca as Co-Personal Representatives of the Estate of Frederick A. Deluca, Land Company of Osceola County, LLC, FD Destiny Credit, LLC, and Doctors' Associates, Inc. f/k/a Subway, Appellees/Cross-Appellants.
    No. 4D17-2439
    District Court of Appeal of Florida, Fourth District.
    [April 10, 2019]
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, John F. Mariani of Kammerer Mariani PLLC, West Palm Beach, and Bruce S. Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, for appellants/cross-appellees.
    Christopher N. Bellows and Rodolfo Sorondo, Jr. of Holland & Knight LLP, Miami, Richard C. Hutchison of Holland & Knight LLP, West Palm Beach, and John R. Chapman of Holland & Knight LLP, Fort Lauderdale, for appellees/cross-appellants.
   Damoorgian, J.

AVP Destiny, LLC, Anthony V. Pugliese, III, individually, Anthony V. Pugliese, Inc. d/b/a The Pugliese Company, and Joseph Reamer (collectively the "Pugliese Parties") appeal the final judgment entered in favor of FD Destiny, LLC, Elisabeth and Jonathan DeLuca as Co-Personal Representatives of the Estate of Frederick A. DeLuca, and Land Company of Osceola County, LLC (collectively the "FD Parties") following a five-week jury trial. On appeal, the Pugliese Parties argue that the trial court erred in: 1) denying their motion for directed verdict; 2) denying their motion to set aside a previously entered judgment; 3) denying their motion to amend the pleadings to conform to the evidence; 4) excluding certain evidence; and 5) instructing the jury on the FD Parties' affirmative defenses. We affirm on these arguments without further comment. The FD Parties cross-appeal the final judgment, arguing that the court erroneously calculated its damages. We affirm on this issue for the reasons discussed below.

This appeal arises from the failed development of a large parcel of property. For reasons not relevant to the issue being addressed in this opinion, the FD Parties sued the Pugliese Parties for civil theft. The jury ultimately awarded the FD Parties $ 2.9 million in compensatory damages on that count. Pursuant to the civil theft statute, section 772.11, Florida Statutes, the court trebled that amount. It then added prejudgment interest on the $ 2.9 million awarded by the jury to the trebled sum. The FD Parties challenge this computation on appeal, arguing that the court should have added the prejudgment interest to the $ 2.9 million and then trebled that combined sum. In other words, they argue that the prejudgment interest should have been included as an element of damages and trebled. We disagree.

It is well established that "because the purpose of prejudgment interest is restitution, rather than retribution, the prejudgment interest should only be awarded on the actual amount stolen and not on the treble damages." Vining v. Martyn , 660 So.2d 1081, 1082 (Fla. 4th DCA 1995) ; accord Sebastiano v. Sclafani , 984 So.2d 673, 673 (Fla. 4th DCA 2008) ; R & B Holding Co. v. Christopher Advert. Grp., Inc. , 994 So.2d 329, 334 (Fla. 3d DCA 2008). Therefore, it stands to reason that if prejudgment interest cannot be awarded on the amount as trebled under the civil theft statute, it likewise cannot be added to the actual amount stolen and then trebled. Whether the prejudgment interest is added to the actual amount stolen and then trebled or whether the actual amount stolen is trebled and then prejudgment interest added, the result is the same: the prejudgment interest is impermissibly trebled.

The FD Parties nonetheless argue that their proposed method for computing damages is correct pursuant to O'Donnell v. Arcoiries, Inc. , 561 So.2d 344 (Fla. 4th DCA 1990). Specifically, they rely on a single sentence in that case wherein this Court held that "the trial court properly computed treble damages by including prejudgment interest as an element of damages." Id. at 345. This Court, however, has declined to interpret O'Donnell as authorizing prejudgment interest on the treble damages:

Although this court in O'Donnell ... stated that "the trial court properly computed treble damages by including prejudgment interest as an element of damages," this single sentence does not make clear whether this court was authorizing prejudgment interest on the treble damages or the compensatory portion of the award. Thus, we do not read O'Donnell as restricting our opinion at bar.

Vining , 660 So.2d at 1082.

Based on the foregoing, we affirm the final judgment in all respects.

Affirmed.

Conner and Forst, JJ., concur.


author: Per Curiam.

text:
    Domenick GRASSO, Appellant/Cross-Appellee, v. Kara S. GRASSO, Appellee/Cross-Appellant.
    No. 1D18-1479
    District Court of Appeal of Florida, First District.
    February 18, 2019 Rehearing Denied April 09, 2019
    Domenick Grasso, Pro se, Appellant.
    Ross A. Keene and Nicole Kessler Ferry, Pensacola, for Appellee.
   Per Curiam.

Former husband appeals the amended final judgement of dissolution of marriage, raising issues related to: valuations of marital property for equitable distribution, imputation of income for calculating child support and retroactive child support, and the securing of child support via a life insurance policy. Former wife cross-appeals, claiming error in the denial of her request for attorney's fees. We affirm as to all issues on the appeal and cross-appeal except the life insurance issue, which we now discuss.

A trial court is authorized to order a party to purchase or maintain a life insurance policy "to the extent necessary to protect an award of child support." Fla. Stat. § 61.13(1)(c) (2017). A trial court, however, may not do so "without making factual findings regarding the necessity of such coverage." Winney v. Winney , 979 So.2d 396, 400 (Fla. 1st DCA 2008) ; Kotlarz v. Kotlarz , 21 So.3d 892, 893 (Fla. 1st DCA 2009) ("In order to support the life insurance requirement, the trial court must make specific evidentiary findings as to the availability and cost of insurance, the obligor's ability to pay, and the special circumstances that warrant such security."). We agree with the former husband that the trial court did not make the requisite factual findings (a point the former wife does not address in her answer brief), and we are unable to determine whether this error was harmless. Winney , 979 So.2d at 401. We, therefore, reverse the amended final judgment as to the life insurance policy and remand for a determination supported by specific evidentiary findings in support of the life insurance requirement. Therriault v. Therriault , 102 So.3d 711, 714 (Fla. 1st DCA 2012).

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    Jeremiah CORBETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1186
    District Court of Appeal of Florida, First District.
    February 20, 2019 Rehearing Denied April 09, 2019
    Jeremiah Corbett, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

On September 25, 2010, Jeremiah Corbett, Eric Johnson, Raphael Thompson, and Bryant Smith attended a "teen night" event at Club Menage. After the club closed, a crowd gathered in the parking lot of a nearby Walgreens. Johnson's sister, Alexis, was among those gathered. A man in the crowd saw Corbett and his friends, pulled out a pistol, cocked it, and held it at his side pointed towards the ground. The man exchanged words with Corbett and his friends, but he never pointed the gun at them.

Corbett and his friends got into Thompson's van to leave. Thompson started to drive around the back of Walgreens, but then stopped the vehicle. Thompson and Corbett began brandishing pistols at the crowd while declaring, "They tried us." Corbett then opened the van's door and fired a gun into the crowd, even though Johnson warned, "Stop, man, my sister's over there, my sister's over there!" As the group drove away from the scene, Corbett was still uttering, "Man, they tried us."

Alexis Johnson testified that she had been at the club and was preparing to leave in her aunt's car, when she noticed the van. Alexis saw a person open the door of the van and then gunshots rang out. Alexis tried to duck, but she felt blood flow down the back of her neck. She reached up and felt a bullet fragment. Alexis passed out after exiting her aunt's car.

When police responded to the scene, an officer found Alexis on the ground with a gunshot wound to the back of her head. Alexis was transported to the hospital and received medical treatment for her injuries. She survived the shooting.

But fourteen-year-old Horace James did not survive the incident. When police arrived at Walgreens, an officer discovered Horace lying outside the store with an apparent gunshot wound to the back of his head. Horace had come to meet his sister Leslie, who had been at the club. Leslie found her brother lying motionless on the ground.

Corbett was charged with first-degree murder with a firearm of Horace James, attempted felony murder of Alexis Johnson, shooting a firearm within or at an occupied vehicle, and possession of a firearm by a juvenile delinquent. After a jury trial during which several eyewitnesses to the shooting testified, Corbett was found guilty on all four counts.

Corbett was sentenced to life imprisonment with a twenty-five-year minimum mandatory on the first-degree murder count; life imprisonment without the possibility of parole on the attempted felony murder count; fifteen years' imprisonment on the shooting a firearm within or at an occupied vehicle count; and fifteen years' imprisonment on the possession of a firearm count. Corbett's convictions and sentences were affirmed on direct appeal. Corbett v. State , 134 So.3d 453 (Fla. 1st DCA 2014) (unpublished table decision).

Corbett filed a motion for postconviction relief, raising nine claims. The trial court struck four of the claims as facially insufficient and gave Corbett the opportunity to amend those claims. Corbett filed an amended motion, addressing only those four claims. After reviewing the record, the trial court summarily denied both motions. This timely appeal follows.

Analysis

We review the summary denial of a postconviction motion de novo. Flagg v. State , 179 So.3d 394, 396 (Fla. 1st DCA 2015). In order for an appellant to demonstrate ineffective assistance of counsel, the appellant must show that counsel's performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because without the conduct there was a reasonable probability that the outcome would have been different. Strickland v. Washington , 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Spencer v. State , 842 So.2d 52 (Fla. 2003). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Spencer , 842 So.2d at 61.

Corbett argues that his trial counsel was ineffective for failing to (1) object to the testimony of a surprise witness, (2) retain an expert witness to testify about the type of firearm that caused the injuries to Horace James, (3) retain an expert to testify that Horace James was shot by a stray bullet or celebratory gunfire, (4) locate five witnesses, (5) investigate Javel Ponder and his cousin, (6) retain an expert in crime scene investigation and reconstruction, (7) make an adequate motion for judgment of acquittal as to counts one and two, (8) develop an alternate suspect for count one, and (9) make an adequate motion for judgment of acquittal to the intentional act element of count two. We address each of these claims in turn.

Claim One

Corbett alleges that his defense counsel was ineffective for failing to object to the testimony of Javel Ponder because Ponder was not listed as a potential witness in the State's discovery. The record reflects that the State disclosed Ponder as a witness on December 12, 2012. Corbett's trial did not begin until February 25, 2013. The State's disclosure of Ponder as a witness was timely as it provided Corbett with sufficient time to prepare for trial. State v. Johnson , 196 So.3d 585, 588 (Fla. 5th DCA 2016). Because the disclosure was timely, defense counsel had no grounds to object to Ponder's testimony. Hitchcock v. State , 991 So.2d 337, 361 (Fla. 2008) ("Counsel cannot be deemed ineffective for failing to make a meritless objection."). Thus, the trial court properly denied this claim as conclusively refuted by the record.

Claim Two

Corbett next alleges that his counsel was ineffective for failing to retain an expert to testify about the type of firearm that caused Horace James's injuries. He alleged that the expert could have testified that James's wounds were not caused by a larger caliber firearm, like the one in Corbett's possession, and that it was more likely that the wound was caused by a .32-caliber bullet found by the police.

At trial, a firearm analyst testified that she could not determine the caliber of the bullet used in the shooting from the fragments obtained from the crime scene. But she testified that she could eliminate some calibers, including .32-caliber, because the characteristics of the fragments were inconsistent with those calibers. The medical examiner testified that James was shot through the back of the head, with the bullet exiting through his forehead. She testified that the size of the hole in James's head indicated that he was shot with a large caliber bullet. Given the testimony of these two experts, Corbett's assertions that a defense expert would have testified that the victim's wound was caused by a .32-caliber bullet are speculative at best. See Connor v. State , 979 So.2d 852, 863 (Fla. 2007) ("Relief on ineffective assistance of counsel claims must be based on more than speculation and conjuncture.").

Further, Corbett cannot establish that he was prejudiced by counsel's failure to retain such an expert. Four people, including two people who were in the van with Corbett, testified that they saw him shoot into the crowd gathered in the Walgreens parking lot. Two other witnesses testified that they did not see who was firing the gun, but could tell that the shots were coming from the van. Thus, presenting a defense theory that James was struck by a .32-caliber bullet would require the jury to believe that despite the lack of testimony that anyone else was firing a gun at the time of the shooting, and the testimony that Corbett was observed shooting into the crowd, James was coincidentally struck by a .32-caliber bullet that was fired at the very same time by an unidentified person. Because Corbett's claim was wholly speculative, and because Corbett failed to show that he was prejudiced by the failure to call the expert, the trial court properly denied this claim.

Claim Three

Next, Corbett argues that his attorney was ineffective for failing to retain an expert from Bullet Free Skies to testify that the victims were shot by a stray bullet or celebratory gunfire. Even if an expert testified that it was possible for the victims to have been hit by stray bullets or celebratory gunfire, there was no evidence that there was any other gunfire in the area that night to support such a theory. It also strains logic to suggest that when Corbett was firing his gun into a crowd, two victims in that crowd were coincidentally struck by bullets fired by some unknown third party. Thus, the trial court properly denied this claim because Corbett cannot demonstrate that there is a reasonable probability that the outcome of his trial would have been different if counsel had presented the testimony of such an expert. Spencer , 842 So.2d at 61.

Claim Four

Corbett further alleges that counsel was ineffective for failing to locate and call five witnesses: Ponder's cousin, Greg Shealy; Emily Humphrey, the person who called in a Crime Stopper tip; and a woman who called herself "Red" on Facebook. To state a facially sufficient claim for the failure to call a witness, "the movant must allege the identity of the potential witness, the substance of the witness's testimony, an explanation of how the omission of the testimony prejudiced the outcome of the case, and a representation that the witness was available for trial." Leftwich v. State , 954 So.2d 714, 714 (Fla. 1st DCA 2007).

Although he was given the opportunity to amend this claim, Corbett failed to allege that any of these witnesses would have been available for trial. Thus, to the extent that Corbett sought to allege that counsel was ineffective for failing to call these witnesses, the trial court properly denied this portion of the claim as facially insufficient. Nelson v. State , 977 So.2d 710, 711 (Fla. 1st DCA 2008) ("Although a trial court in its discretion may grant more than one opportunity to amend an insufficient claim, Spera [v. State , 971 So.2d 754 (Fla. 2007),] does not mandate repeated opportunities."). To the extent that Corbett sought to allege that counsel was ineffective for failing to locate these witnesses, the trial court properly denied the claim because there is no reasonable probability that the outcome of the trial court would have been different if counsel had investigated these witnesses, given that four eyewitnesses testified that Corbett was the shooter. Spencer , 842 So.2d at 61.

Claim Five

Corbett argues that defense counsel was ineffective for failing to investigate Javel Ponder and Ponder's cousin. He alleged that Ponder testified at trial that he was in a vehicle with his cousin when he witnessed Corbett firing a gun into the crowd at Walgreens. Corbett asserted that counsel should have located the cousin to confirm or refute Ponder's testimony. He alleged that if the cousin did not place Ponder at the scene of the crime, then the jury could have rejected Ponder's testimony. The trial court properly denied this claim as speculative. Further, this claim was properly denied because even if the jury rejected Ponder's testimony, three other eyewitnesses testified that Corbett was the shooter; thus, Corbett is unable to establish how he was prejudiced by counsel's allegedly ineffective act. Spencer , 842 So.2d at 61.

Claim Six

Corbett alleges that counsel was ineffective for failing to retain an expert in crime scene investigation and reconstruction. He alleges that such an expert could have testified that Corbett could not have killed James based on the testimony regarding where Corbett was located at the time of the shooting, the position of James's body, James's height, and the injury that caused James's death. The trial court properly denied this allegation as speculative. Because no gun was ever recovered, no expert could opine as to whether the victim's death was caused by Corbett's undiscovered and unexamined firearm. To the extent Corbett suggested that counsel could have found an expert to testify that James could not have been shot from Corbett's location, there is no reasonable probability that such testimony would have changed the outcome of the trial in light of the fact that four witnesses testified that they saw Corbett shooting into the crowd. Spencer , 842 So.2d at 61.

Claim Seven

Corbett argues that defense counsel was ineffective for failing to make an adequate motion for judgment of acquittal on the charges of murder and attempted felony murder. To state a facially sufficient claim that counsel was ineffective for failing to preserve a sufficiency of the evidence claim, "a movant should state sufficient facts to show that '[h]e may very well have prevailed on a more artfully presented motion for acquittal based upon the evidence he alleges was presented against him at trial.' " White v. State , 977 So.2d 680, 681 (Fla. 1st DCA 2008) (quoting Neal v. State , 854 So.2d 666, 670 (Fla. 2d DCA 2003) ). "Because conflicts in the evidence and the credibility of the witnesses have to be resolved by the jury, the granting of a motion for judgment of acquittal cannot be based on evidentiary conflict or witness credibility." Hitchcock v. State , 413 So.2d 741, 745 (Fla. 1982).

As to the charge of the first-degree murder of Horace James, Corbett alleges that the State's evidence was insufficient to show that James was shot and killed by a bullet from Corbett's gun. He argues that there was no evidence that he fired the gun in James's direction and that there was no determination that the bullet that killed James was the same size and caliber as the gun he allegedly possessed that night. Corbett's arguments are refuted by the record. The testimony at trial established that four eyewitnesses saw Corbett shoot in the direction of the crowd that was gathered in the parking lot at Walgreens. After the shots were fired, James, who was in the crowd, collapsed. The medical examiner testified that James was killed by a gunshot wound to the head. Given this evidence, even if counsel had moved for a judgment of acquittal arguing that there was no proof that one of Corbett's bullets killed James, any such motion would have been denied.

As to the charge of the attempted first-degree felony murder of Alexis Johnson, Corbett argues that the State failed to present sufficient evidence that James was shot and killed before Alexis was shot. Here, the evidence introduced at trial established that Corbett, who was angry at a man in the crowd, fired several shots into the crowd gathered in the Walgreens parking lot. While doing so, he hit and killed James instead of his intended target, thereby committing murder, and struck Alexis Johnson in the head, which could have killed her. Thus, he committed an enumerated felony and a separate intentional act. Any argument about the order of the shootings is irrelevant to the elements of this offense. Because counsel's motion for judgment of acquittal based on this argument would have failed, counsel cannot be deemed ineffective. Hitchcock , 991 So.2d at 361. Thus, the trial court properly denied this claim.

Claim Eight

Corbett next alleges that his counsel was ineffective for failing to develop an alternate suspect for the murder of Horace James. He argues that counsel should have investigated the description of the man observed by Humphrey and Shealy and determined whether they could identify Corbett as the shooter. He further asserted that if counsel had investigated the Crime Stopper Tip that the shooter ran into a house on Arlington Road, counsel could have confirmed whether that tip was true and potentially contradicted the testimony that Corbett fled in a van after the shooting. He claimed that this information could have led counsel to an alternative suspect.

This claim is based entirely on speculation. Corbett first hypothesizes that the man seen by Humphrey and Shealy on the night in question was involved in the shooting. He next conjectures that there would be some form of evidence, although never alleges what type of evidence, in the house on Arlington Road that would allow counsel to verify the Crime Stopper Tip. The trial court properly denied this claim due to its speculative nature. Connor , 979 So.2d at 863. The trial court also properly denied this claim because there is no reasonable probability that a defense using an alternative suspect would have been accepted by the jury in light of the fact that four witnesses identified Corbett as the shooter.

Claim Nine

In his final claim, Corbett alleges that his counsel was ineffective for failing to make an adequate motion for judgment of acquittal as to the intentional act element of the charge of attempted first-degree felony murder. Corbett, relying on the decision in Milton v. State , 161 So.3d 1245, 1250 (Fla. 2014), asserts that counsel should have argued that the discharge of the firearm could not serve as the intentional act requirement of attempted felony murder because it was an essential element of the underlying felony of first-degree murder.

In Milton , the issue presented was "whether the act of discharging a firearm can satisfy the 'intentional act' element of attempted felony murder when the underlying felony is attempted murder and the same individuals are the victims of both crimes ." Id. at 1246 (emphasis added). The supreme court held that "Milton's single act of discharging a firearm did not satisfy the 'intentional act' element of attempted felony murder, as it was an essential element of the underlying attempted second-degree murder." Id. at 1250.

Milton is distinguishable from this case. In Milton , the defendant fired multiple gun shots into a crowd of people standing in front of a house. Id. at 1246. He was charged with and convicted of three counts of attempted felony murder (involving three separate victims), and the underlying felony alleged for each of these counts was the attempted second-degree murder of each of the three victims. Id. at 1246-47.

Here, Corbett was charged with the attempted felony murder of Alexis Johnson with the underlying felony being the first-degree murder of Horace James. Thus, this case is distinguishable from Milton . Because counsel's motion for judgment of acquittal based on this argument would have failed, counsel cannot be deemed ineffective. Hitchcock , 991 So.2d at 361. Thus, the trial court properly denied this claim.

Because all of Corbett's claims were insufficient or conclusively refuted by the record, we affirm the trial court's summary denial of his motion for postconviction relief.

AFFIRMED .

Rowe, Ray, and Osterhaus, JJ., concur.


text:
    Cecil MATHEWS, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-1800
    District Court of Appeal of Florida, First District.
    February 21, 2019 Rehearing Denied April 16, 2019
    Cecil Mathews, pro se, Petitioner.
    Kenneth S. Steely, General Counsel; Gayla Grant and Eric Salvatore Giunta, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

Rowe, Bilbrey, and Kelsey, JJ., concur.


text:
    Robert A. GELSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3664
    District Court of Appeal of Florida, First District.
    February 27, 2019 Rehearing Denied April 09, 2019
    Robert A. Gelsey, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Upon consideration of Petitioner's response filed on December 26, 2018, this case is hereby dismissed.

Rowe, Bilbrey, and Kelsey, JJ., concur.


text:
    Giovanni VELEZ, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-0929
    District Court of Appeal of Florida, First District.
    February 25, 2019 Rehearing Denied April 16, 2019
    Giovanni Velez, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Osterhaus, and Jay, JJ., concur.


text:
    Giovanni VELEZ, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-0928
    District Court of Appeal of Florida, First District.
    February 25, 2019 Rehearing Denied April 16, 2019
    Giovanni Velez, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Osterhaus, and Jay, JJ., concur.


text:
    Kevin Lee ELLIOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1877
    District Court of Appeal of Florida, First District.
    February 27, 2019 Rehearing Denied April 09, 2019
    Kevin Lee Elliott, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Virginia C. Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Kevin Lee Elliott was convicted in 2014 for the sexual battery of his sixteen-year-old stepdaughter. Following his conviction, Elliott filed a motion for postconviction relief, raising seven claims of ineffective assistance of counsel and one claim of cumulative error. The postconviction court summarily denied Elliott's claims as facially insufficient or conclusively refuted by the record. We affirm.

Facts

Elliott began dating the victim's mother when the victim was two years old. Elliott and the victim's mother eventually married but divorced when the victim was fourteen or fifteen years old. After the divorce, the victim lived with Elliott due to the mother's inability to keep a job or maintain a home. One night, the victim attended a friend's party and returned home intoxicated. Elliott offered the sixteen-year-old victim an alcoholic beverage and the two drank together until the victim was "pretty wasted." The victim told Elliott that she wanted to date an older boy. Elliott advised the victim that before she would be permitted to date the boy, she had to have sex with Elliott. Elliott took the victim to his bedroom and had sex with her. The victim moved out of Elliott's home a few months later.

The victim did not divulge the incident to anyone until she was eighteen years old, when she confided in her boyfriend, Joshua Gossett. Gossett and the victim then confronted Elliott over the phone. Elliott initially denied any knowledge of the incident. Gossett and the victim made several more phone calls to Elliott. During one such phone call, the victim went into the bathroom and slit her wrists. She was subsequently hospitalized pursuant to the Baker Act.

Elliott eventually confessed to his best friend, Christopher Smith, that he had sexual intercourse with the victim after they had both been drinking, but he claimed that the sex was consensual. Around the same time, the victim disclosed the sexual battery to counselors and psychiatrists and decided to contact the police about the incident. Following an investigation, Elliott was charged with the sexual battery of a person in familial or custodial authority. In 2014, Elliott was tried by a jury and found guilty as charged. He was sentenced to thirty years' imprisonment.

In 2018, Elliott filed an amended motion for postconviction relief, which was summarily denied. This appeal follows.

Analysis

We review the summary denial of a postconviction motion de novo. Flagg v. State , 179 So.3d 394, 396 (Fla. 1st DCA 2015). Elliott alleges multiple claims of ineffective assistance of counsel. In order to prevail on his claims, he was required to show that counsel's performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because without the conduct there was a reasonable probability that the outcome would have been different. Strickland v. Washington , 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Spencer v. State , 842 So.2d 52 (Fla. 2003). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Spencer , 842 So.2d at 61.

Claim One

Elliott argued that counsel was ineffective for failing to obtain the victim's and Gossett's cell phone records. Elliott contended that the records would show that the victim was working with Elliott on the day she disclosed the incident to Gossett, and that she and Gossett had been arguing via telephone and text message. Elliott alleged that the phone records would have supported the defense's theory that the victim lied about the sexual battery to gain sympathy from Gossett and that the victim slit her wrists because her scheme backfired when Gossett became angry with her.

The trial court properly denied this claim. The record shows that the victim's trial testimony about her encounter with Elliott was consistent with her report to police and with her disclosure to Gossett. Moreover, Elliott confessed to Christopher Smith that he had sex with the victim when she was sixteen years old. On this record, Elliott cannot establish that he was prejudiced by counsel's failure to obtain the phone records or that there is a reasonable probability that the outcome of his trial would have been different if the phone records had been admitted into evidence. Miller v. State , 161 So.3d 354, 364 (Fla. 2015) (holding that "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").

Claim Two

Next, Elliott argued that counsel was ineffective for failing to call three witnesses. He argued that counsel should have called the victim's mother to show that the victim was in contact with Elliott before the victim told Gossett about the alleged abuse. Elliott next argued that counsel should have called Kristen Nicholson to corroborate Elliott's testimony that the victim and Gossett were arguing when the victim told Gossett about the alleged sexual battery. Elliott also argued that counsel should have called Gossett's aunt because she could have testified that the victim worked with Elliott and that the victim was arguing with Gossett before she disclosed the encounter with Elliott.

The trial court properly denied this claim for relief. The record demonstrates that counsel investigated whether the victim's mother and Nicholson would present helpful testimony for the defense. The record is silent about whether he considered calling Gossett's aunt as a witness. Regardless, any testimony regarding an argument between Gossett and the victim the day she disclosed the sexual battery is a collateral matter that does not reflect on the veracity of the victim's allegations. And Elliott failed to demonstrate how presenting testimony of the three witnesses would have changed the outcome of his trial considering the victim's consistent testimony regarding the sexual battery and his own confession to a friend. Thus, this claim was properly denied. Nelson v. State , 875 So.2d 579, 583 (Fla. 2004) (holding that to prevail on a claim that counsel was ineffective for failing to call a witness, the appellant must show prejudice from the omission of the witness's testimony).

Claim Three

Elliott alleged that counsel was ineffective for failing to call Sandra Smith, Christopher Smith's wife, as a witness. He argued that Sandra would have testified that Smith had a motive to falsely testify because Smith believed that Elliott was having an affair with her. During the cross-examination of Smith, defense counsel attempted to elicit testimony from Smith that after Smith spoke to the police about Elliott's confession, Smith learned there was a possibility that Elliott had an affair with Sandra. The prosecutor argued that this was improper character evidence, and defense counsel argued that it went to Smith's bias as a witness. But because Smith did not confront Elliott about the alleged affair until after Smith spoke with the police about Elliott's confession, the trial court ruled that this line of questioning was not relevant. Defense counsel cannot be deemed ineffective for failing to attempt to present evidence that had already been excluded by the trial court - even if it was through a different witness. Lukehart v. State , 70 So.3d 503, 513 (Fla. 2011) ("Counsel cannot be deemed ineffective for failing to pursue a meritless claim."). Thus, this claim was properly denied.

Claim Four

Next, Elliott alleged that counsel was ineffective for failing to impeach the victim's testimony with inconsistent statements she made in a police report. However, Elliott failed to identify the allegedly inconsistent portions of the victim's statements. The conclusory nature of the claim renders it facially insufficient. Mohr v. State , 17 So.3d 1249, 1249 (Fla. 2d DCA 2009). The trial court gave Elliott an opportunity to correct this pleading deficiency, but Elliott failed to do so. Thus, this claim was properly denied. See Nelson v. State , 977 So.2d 710, 711 (Fla. 1st DCA 2008) ("Although a trial court in its discretion may grant more than one opportunity to amend an insufficient claim, Spera [v. State , 971 So.2d 754 (Fla. 2007),] does not mandate repeated opportunities.").

Claim Five

Elliott alleged that counsel was ineffective for failing to object to several instances of prosecutorial misconduct. He alleged that counsel should have objected when the prosecutor informed the jury that Elliott's girlfriend, Kristen Nicholson, was incarcerated during the summer of 2010. During opening statements, the prosecutor stated that Nicholson had been incarcerated and that a jail custodian would verify the dates of her incarceration. This information was necessary to establish the age of the victim at the time of the sexual battery. The victim testified that she knew that she was sixteen years old when the incident occurred because Nicholson was not living in the house with Elliott but was in prison at the time. Thus, Nicholson's incarceration was relevant evidence and defense counsel had no grounds to object to the presentation of the evidence. Lukehart , 70 So.3d at 513.

Elliott further argued that counsel should have objected during opening statements when the prosecutor stated that Joshua Gossett would testify "honestly" as this was improper bolstering. During opening, the prosecutor stated:

She then goes to tell her boyfriend. He of course will tell you he did not take it well at all. Matter of fact, he's going to tell you himself he was angered. He was upset. He was confused because he's going to tell you honestly he had met the defendant a couple of times.

Contrary to Elliott's argument, this was not an improper statement because the prosecutor never implied that she had a reason to believe Gossett that was not presented to the jury. See Jackson v. State , 89 So.3d 1011, 1018 (Fla. 4th DCA 2012) (holding that explaining why the jury should believe a witness is not an improper personal opinion about the credibility of the witness as long as the prosecutor does not suggest that she has reasons to believe the witness that were not presented to the jury). Thus, defense counsel had no grounds to object to this statement.

Next, Elliott argued that defense counsel should have objected during closing arguments when the prosecutor stated that the victim's suicide attempt was a consequence of her disclosure of the sexual battery. During direct examination, the victim testified that she slit her wrists after disclosing the incident to Gossett because she "was ashamed of what happened." During the initial closing, the prosecutor argued: "Well, ladies and gentlemen, this is something that [the victim] had festering in her for two years. It led her to a point where when she finally told her boyfriend, her release was to go and slit her wrist and be [B]aker acted." During rebuttal closing, the prosecutor argued: "[The victim's] upset because now her boyfriend knows. Now the defendant knows that she's told, spiraling to the point where she cuts herself. Again, that reality, that leap she took is all settling in."

Neither of the prosecutor's comments identified by Elliott were improper. "[T]he purpose of closing argument is to present a review of the evidence and suggestions for drawing reasonable inferences from the evidence." Toler v. State , 95 So.3d 913, 917 (Fla. 1st DCA 2012) (quoting Fleurimond v. State , 10 So.3d 1140, 1148 (Fla. 3d DCA 2009) ). Both statements were a fair comment on the evidence that was presented through the testimony of the victim. Because none of these objections would have been meritorious, defense counsel cannot be deemed ineffective for failing to make them. Lugo v. State , 2 So.3d 1, 21 (Fla. 2008). Thus, the trial court properly denied this claim.

Claim Six

Next, Elliott argued that defense counsel should have asked for jury instructions on lesser-included offenses. He argued that this failure deprived the jury of its right to exercise its pardon power. "However, 'as a matter of law, the possibility of a jury pardon cannot form the basis for a finding of prejudice under Strickland .' " Johnson v. State , 247 So.3d 689, 697 (Fla. 1st DCA 2018) (quoting Sanders v. State , 946 So.2d 953, 960 (Fla. 2006) ). Thus, the trial court properly denied this claim.

Claim Seven

Elliott alleged that counsel misadvised him regarding his right to testify in his own defense. He stated that counsel admitted it was Elliott's right to testify but strongly advised against it. Elliott alleges that based on this alleged misadvice, he did not exercise his right to testify. The record conclusively refutes this claim.

At the close of the State's case, the trial court conducted a colloquy with Elliott. Elliott testified that he intended to exercise his right to remain silent. The court went on to explain:

THE COURT: And I assume you've had discussions with Mr. Beard. I don't need to know what they were, but that you have talked back and forth about whether to or not to testify, maybe you've had advice from family and friends, you never know.
Sometimes I see people who want to testify and the lawyer thinks they shouldn't. I've seen people where the lawyer wants them to testify, and the defendant says, "I don't think I can do it." Override reasons why somebody might or not might testify. You understand and acknowledge that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And what I need to know is though that after all the conversations and considerations, advice, whatever it might be, you are making your own personal decision because it ultimately is your decision whether to decide to become a witness or not, so this decision is yours and yours alone. You understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. And so you are making this decision freely and voluntarily to say, "I am going to stand by my Constitutional Right to remain silent," correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. All right. That sounds good.

Elliott is not entitled to go behind his statements in the colloquy. Kelley v. State , 109 So.3d 811, 812-13 (Fla. 1st DCA 2013) (holding that a postconviction motion cannot be used to go behind the defendant's sworn representations to the court). Thus, the trial court properly denied this claim.

Claim Eight

Finally, Elliott argued that the cumulative effect of the alleged errors deprived him of a fair trial. Because Elliott failed to establish that any of his claims for postconviction relief had merit, he also failed to demonstrate that any cumulative error occurred. Schoenwetter v. State , 46 So.3d 535, 562 (Fla. 2010) (holding that it is proper to deny a claim of cumulative error when each individual claim of error is meritless). Thus, the trial court properly denied this claim.

Because all of Elliott's claims were facially insufficient or conclusively refuted by the record, we affirm the trial court's summary denial of his motion for postconviction relief.

AFFIRMED .

Rowe, Bilbrey, and Kelsey, JJ., concur.


text:
    Kimothy Mark SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4095
    District Court of Appeal of Florida, First District.
    March 7, 2019 Rehearing Denied April 16, 2019
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Kimothy M. Simmons ("Simmons") was seventeen years old when he impersonated a law enforcement officer to gain access into a home and stabbed the victim, a person he had never met, over thirty-one times. A jury found Simmons guilty of first degree murder, that the murder was committed during the commission of a burglary, and that he carried, displayed, and used a weapon during the commission of the offenses. He was sentenced to a mandatory sentence of life in prison. In the wake of Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Simmons was granted resentencing. Following an evidentiary hearing, he was again sentenced to life in prison with the opportunity for early release with a review hearing to be conducted in accordance with sections 775.082 (1)(b)1. and 921.1402(2)(a), Florida Statutes. Simmons now challenges that sentence.

Simmons first argues the trial court erred in several of its findings on the statutory factors set forth in section 921.1401, Florida Statutes. However, as no contemporaneous objection was made at the time of alleged errors at the sentencing hearing, the issues were not preserved for review. Accordingly, this Court may only review claims of fundamental error. See Nawaz v. State , 28 So.3d 122, 124 (Fla. 1st DCA 2010). If a court considers a constitutionally impermissible factor in imposing a sentence fundamental error can occur. See Macan v. State , 179 So.3d 551, 552 (Fla. 1st DCA 2015). Here, none of Simmons' claims of error involve impermissible factors. He merely disagrees with the trial court's assessment of the required factors under section 921.1401. The statute requires only that the trial court "consider" these factors before it can impose a life sentence. § 921.1401(2), Fla. Stat. As the trial court did so, no fundamental error occurred.

As to Simmons' second issue on appeal, this Court has previously rejected the argument that a jury, rather than the trial court, must determine whether a life sentence is appropriate under the statutory factors in section 921.1401. See Gonzalez v. State , 252 So.3d 1282, 1283 (Fla. 1st DCA 2018) ; Roberson v. State , 247 So.3d 718, 719 (Fla. 1st DCA 2018) ; Copeland v. State , 240 So.3d 58, 59-60 (Fla. 1st DCA 2018). The statutory factors in section 921.1401 do not alter the maximum, or minimum, punishment available for juvenile offenders. See Beckman v. State , 230 So.3d 77, 96 (Fla. 3d DCA 2017). These factors are not elements of the offense; they are merely sentencing factors which the trial judge may take into consideration when exercising his discretion to impose a sentence within the range prescribed by statute and ensure proportionality. Id. at 94-96.

Simmons' argument that this Court should revisit Copeland and subsequent cases due to the recent Florida Supreme Court decision in Williams v. State , 242 So.3d 280 (Fla. 2018), is unavailing. The Williams decision does not affect the prior holdings of this Court. In Williams , a jury convicted the juvenile defendant of first-degree murder, without specifying whether it was premeditated or felony murder, or both. Id. at 283. Under the section 921.1401, such a finding entitled the defendant to a sentence review in twenty-five years. Id. at 288. Without this finding, there was no minimum required sentence, and the sentence review would be in fifteen years. Id. at 284, 288. At resentencing, the trial court denied the defendant's request to impanel the jury to make this finding. Id. at 285. The Florida Supreme Court reversed, holding Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), required the jury to make this factual finding, not the trial court. Id. at 282. Alleyne required a jury to decide any facts which increased the sentencing floor, or minimum mandatory sentence. Id. at 286. An Alleyne violation occurred in Williams because there was no clear jury finding on the general verdict form that Appellant had actually killed, intended to kill, or attempted to kill the victim, a finding which would increase the minimum required sentence.

Alleyne is not implicated in the instant case because the jury had made its required finding that Simmons actually killed the victim. Although the jury, as in Williams , was instructed on both premeditated murder and felony murder, the jury specifically convicted Simmons of first-degree felony murder. The jury expressly found on the verdict form Simmons killed the victim during the commission of a burglary. Moreover, the jury, unlike the jury in Williams , did not receive an instruction on principals. Thus, the jury in the instant case was not given the option of convicting Simmons of killing the victim based on the action of another. As the jury made the requisite finding in this case, the minimum floor has been set, and the trial court must proceed to determine whether a life sentence is appropriate under section 921.1401.

The trial court issued a detailed sentencing order discussing the statutory factors. Simmons has shown no error. Accordingly, the life sentence is affirmed.

AFFIRMED .

Makar and M.K. Thomas, JJ., concur; Wolf, J., concurs in result only.


text:
    FLORIDA DEPARTMENT OF HEALTH, Petitioner, v. EDWARD MILLER AND SON, INC., Respondent.
    No. 1D18-4110
    District Court of Appeal of Florida, First District.
    March 1, 2019 Rehearing Denied April 11, 2019
    Eduardo S. Lombard of Radley Law Firm, Tallahassee, for Petitioner.
    Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied. Fla. Dep't of Health v. Tropiflora, LLC , 265 So.3d 673, 2019 WL 323688 (Fla. 1st DCA Jan. 25, 2019).

Wolf, Osterhaus, and Jay, JJ., concur.


author: Jay, J.

text:
    Perry James FORD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3359
    District Court of Appeal of Florida, First District.
    March 13, 2019 Rehearing Denied April 16, 2019
    Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Jay, J.

In this appeal from his conviction and sentence for first-degree murder, Appellant claims that (1) the trial court erred in denying his motion for judgment of acquittal; and (2) his sentence of life imprisonment without parole is excessive and constitutes cruel and unusual punishment. We affirm Appellant's sentence without further discussion. See Lockhart v. State , 260 So.3d 1184 (Fla. 1st DCA 2018) ; Romero v. State , 105 So.3d 550 (Fla. 1st DCA 2012). For the reasons that follow, we also affirm the denial of Appellant's motion for judgment of acquittal.

I.

Appellant was indicted for first-degree murder on the dual theories of premeditation and felony murder (with robbery as the underlying felony). At trial, it was established that the seventy-five-year-old victim lived alone, had mobility issues, and used a walker for balance. Appellant's grandmother was one of the victim's best friends and her caregiver as well. Appellant also assisted the victim on occasion. On June 21, 2016, the victim reported that she suspected that Appellant had stolen cash from her hospital room. Appellant admitted to law enforcement that he had stolen money from the victim, that the victim had confronted him about the theft, and that he promised to pay the victim back.

On August 10, 2016, Katie Shea reported that her car had been burglarized and that her checkbook and a .22 Ruger handgun-with a laser sight and her name engraved on it-had been stolen from the vehicle. Three days later, Appellant went with his friend, Joewaki Hamilton, to a credit union ATM to cash two of Shea's checks, which was recorded by the ATM surveillance video. Hamilton saw Appellant in possession of a gun equipped with the laser. Deandre Scott, another of Appellant's friends, saw Appellant in possession of the same gun, which Appellant kept in his book bag.

In the early morning hours of September 9, 2016, the victim received three calls from the same phone number that was registered to Appellant's younger brother, Kendrick Rodgers. The first call was received at 12:23 a.m. and lasted ten minutes, the second call was received at 12:35 a.m. and lasted two minutes, and the third call was received at 12:42 a.m. and lasted six minutes. At 12:52 a.m., the victim's home security system indicated that the victim's front door was opened and closed and that the alarm was deactivated. The front door was left open for one minute and ten seconds and then closed at 12:54 a.m. The next activity was at 1:05 a.m. when the front door was opened and closed.

For the next 33.5 hours, there was no activity detected by the system until another friend of the victim, Clara Reeves, went to the victim's house after not hearing from her, found the door unlocked, and entered the house to find the victim dead in her bedroom. According to Reeves, the victim was very safety conscious, would never open the door to strangers, and preferred that visitors call her before they came over late at night.

When the crime scene was processed, there were no signs of forced entry, and all the windows and doors were secured. The victim's wallet was found opened, but her purse and cell phone were missing. A spent shell casing from a .22 firearm was found near the victim's body. An autopsy determined that the victim had been struck in the head-which caused a laceration that likely stunned her-and shot in the head at close range, which killed her. A firearms expert determined that the fatal gunshot came from the stolen .22 Ruger, which was recovered during an unrelated traffic stop-not involving Appellant-in November 2016.

After reviewing the victim's cell phone records, Detective Shannon Briarton of the Pensacola Police Department spoke to Kendrick Rodgers, who allowed her to examine his cell phone. Briarton determined that the calls to the victim had been erased from the phone. However, analysis of the cell phone records indicated that the phone was moving in relation to the cell phone towers when the calls were made and that the last call was received by a cell phone tower in the vicinity of the victim's home. Briarton then executed a search warrant of Appellant's home and found gloves, a box containing two blank checks belonging to Katie Shea, and the victim's debit card.

Afterwards, Briarton made contact with Appellant after advising him of his rights. During the interview, Appellant said that it had been months since he was at the victim's home, and that he was at the apartment of his friend, Shaniya James, on the night of the murder. Appellant admitted that he had his brother's phone and called the victim from James' apartment while he was drunk on the night of the murder, but denied going to the victim's house.

Briarton spoke to Shaniya James and determined that Appellant had been making calls to her at 1:37 a.m. on the morning of the murder. James knew Appellant from high school and denied seeing Appellant that night because she worked from 3:45 p.m. until midnight and then spent the night at her parents' home. Appellant did not have a key to her apartment and was not allowed to stay there while she was away. The back door to her apartment did not close properly, but James used a piece of plywood to keep the back door closed.

Detective Christopher Forehand of the Pensacola Police Department obtained a warrant for Appellant's Facebook messages with his friend, Joewaki Hamilton. While Forehand found the corresponding time and date stamps with Hamilton's messages, the messages themselves had been deleted. However, on Hamilton's cell phone, the Facebook Messenger account showed a series of six messages-and their contents-occurring on September 8 and 9, 2016. At 11:39 p.m. on September 8, 2016, Appellant messaged Hamilton that he wanted to meet with Hamilton "when I get done doing this shit." Later, at 1:42 a.m., Appellant sent a message to Hamilton saying "WYA-Where you at-I tried to link up with y'all."

After the State rested, defense counsel moved for a judgment of acquittal on the grounds that the circumstantial evidence presented by the State did not establish that Appellant killed the victim, or that the killing was premeditated, or rebut Appellant's reasonable hypothesis of innocence that he was at Shaniya James' house during the commission of the murder. The trial court denied the motion. After the defense rested, the trial court denied Appellant's renewed motion for judgment of acquittal. The jury returned a verdict finding Appellant guilty as charged. The trial court imposed the mandatory sentence of life in prison without parole. This appeal followed.

II.

Appellant claims that the trial court erred in denying his motion for judgment of acquittal because the State's circumstantial evidence neither established that he committed the murder nor rebutted his reasonable hypothesis of innocence. To withstand a motion for judgment of acquittal in a case based wholly on circumstantial evidence, the evidence, viewed in a light most favorable to the State, must be inconsistent with any reasonable hypothesis of innocence proposed by the defendant. State v. Law , 559 So.2d 187, 188-89 (Fla. 1989). This special standard "requires that the circumstances lead 'to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt. They must be inconsistent with innocence.' " Lindsey v. State , 14 So.3d 211, 215 (Fla. 2009) (quoting Frank v. State , 121 Fla. 53, 163 So. 223 (1935) ). Under this standard, "[s]uspicions alone cannot satisfy the State's burden of proving guilt beyond a reasonable doubt"; rather, " '[i]t is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict." Ballard v. State , 923 So.2d 475, 482 (Fla. 2006) (quoting Davis v. State , 90 So.2d 629 631-32 (Fla. 1956) ).

Viewed in a light most favorable to the State, the evidence pointed to Appellant as the only possible suspect. In June 2016, the victim had accused Appellant-whom she knew through Appellant's grandmother-of stealing from her. Subsequently, Appellant was seen in possession of the murder weapon, a .22 Ruger with a laser sight that was stolen along with some checks during a vehicle burglary in August 2016. Appellant cashed two of those stolen checks three days after the burglary. After midnight on September 9, 2016, Appellant made three cell phone calls to the victim, the last of which ended at 12:48 a.m. Four minutes later, the victim's home security system indicated that the front door was opened and closed and that the alarm was deactivated. The front door was left open for one minute and ten seconds and then closed at 12:54 a.m. The next activity was at 1:05 a.m. when the front door was opened and closed.

For the next 33.5 hours, there was no activity detected until the victim's friend went to the victim's house after not hearing from her, found the door unlocked, and entered the house to find the victim dead in her bedroom with a fatal gunshot wound to the head. There were no signs of forced entry, and all the windows and doors were secured. The victim was known to be very safety conscious, was characterized as someone who would never open the door to strangers, and preferred that visitors call her before they came over late at night.

This circumstantial evidence connected Appellant to the crime through a firm timeline that established that the elderly victim admitted Appellant-a person she knew-into her home late at night within minutes of receiving a call from Appellant and that-no more than ten minutes later-Appellant shot her with a firearm that he acquired from a prior burglary. Although Appellant claimed that he was at the apartment of his friend, Shaniya James, on the night of the murder, and that he called the victim from James' apartment, this hypothesis of innocence was inconsistent with (1) James' testimony that she was not with Appellant on that night, Appellant did not have the key to her apartment, and Appellant did not have permission to be in her apartment when she was not there; (2) cell tower data showing that Appellant's cell phone was moving when he made the calls to the victim; (3) Appellant's Facebook messages to his friend, Joewaki Hamilton, suggesting that Appellant was not at James' apartment when the victim was murdered; and (4) the deleted calls to the victim on Appellant's cell phone as well as his messages to Hamilton on his Facebook account. Because this evidence was sufficient for a jury to find within "a reasonable and moral certainty" that Appellant and no one else committed the murder, the trial court properly denied the motion for judgment of acquittal. See Kline v. State , 223 So.3d 482 (Fla. 1st DCA 2017) (holding that circumstantial evidence was sufficient for the jury to find within "a reasonable and moral certainty" that Kline, and no one else, murdered his wife where the evidence connected Kline to the crime through a firm timeline, he was the last person to see his wife alive, their marriage was unhappy, he made inculpatory statements in a letter to his ex-wife, and his hypothesis of innocence was implausible).

III.

Alternatively, Appellant claims that the State's circumstantial evidence failed to establish that either the murder was premeditated or the victim was robbed during the commission of the murder. Premeditation is a fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit reflection. Johnston v. State , 863 So.2d 271, 285 (Fla. 2003). "Premeditation can be formed in a moment and need only exist 'for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.' " DeAngelo v. State , 616 So.2d 440, 441 (Fla. 1993) (quoting Asay v. State , 580 So.2d 610, 612 (Fla. 1991) ). " 'Where the element of premeditation is sought to be established by circumstantial evidence, the evidence relied upon by the state must be inconsistent with every other reasonable inference' in order to defeat a motion for judgment of acquittal." Jones v. State , 36 So.3d 903, 907 (Fla. 4th DCA 2010) (quoting Cochran v. State , 547 So.2d 928, 930 (Fla. 1989) ). "Premeditation may be inferred from the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted." Id. (quoting Cochran , 547 So.2d at 938 ).

Viewed in a light most favorable to the State, the evidence established that Appellant arranged a visit with the victim after midnight, traveled to the victim's home armed with a firearm, pistol whipped the victim, shot her in the head with the firearm at close range, and took her purse and cell phone before he left. This evidence was inconsistent with a lack of premeditation because there was sufficient time for Appellant to be conscious of the nature of the act he was about to commit and the probable result of that act. Moreover, this evidence was sufficient to establish that Appellant robbed the victim of her purse and cell phone during the commission of the murder. Thus, the circumstantial evidence was legally sufficient to support the verdict of first-degree murder.

AFFIRMED .

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

      We emphasize that this special standard applies here only because the evidence of Appellant's guilt is entirely circumstantial. Knight v. State , 186 So.3d 1005, 1010-11 (Fla. 2016).


author: Bilbrey, J.

text:
    Phoebe FLANAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5290
    District Court of Appeal of Florida, First District.
    March 18, 2019 Rehearing Denied April 11, 2019
    Benjamin James Stevenson, ACLU Found. of Fla.; Jason Cromey, Pensacola; and Nancy Abudu, ACLU Found. of Fla., Miami, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee, and Codey L. Leigh, Pensacola for Appellee Pam Childers, Escambia County Clerk of Circuit Court and Comptroller, Pensacola.
   Bilbrey, J.

Appellant challenges the conclusion of the trial court that a payment plan established under section 28.246, Florida Statutes (2017), is reasonable. We affirm.

Following Appellant's adjudication of guilt for trafficking in cocaine, possession of cocaine with intent to deliver, possession of paraphernalia, and violating a prior order of probation, she was sentenced to 41.1 months in prison and ordered to pay certain costs and fines. Pursuant to section 322.245(5)(a), Florida Statutes, Appellant's driver's license was suspended in September 2014 for failure to pay her fines and costs. Upon her release from prison, Appellant sought a payment plan for these outstanding fines and costs so she could seek reinstatement of her driver's license. On the authority of section 28.246(4), the clerk of the court for Escambia County enrolled Appellant in a plan requiring payment of $10 per month.

As permitted by section 28.246, Appellant challenged the reasonableness of her payment plan contending that the housing, utilities, and insurance that Appellant's mother pays on the home where Appellant resides rent-free should not be considered as income. The trial court found that these recurring in-kind payments from Appellant's mother exceed $500 per month and therefore the payment plan was reasonable.

Appellant argues, among other things, that a payment plan is reasonable only if the required monthly payment amount is equivalent to two percent of her monthly net income, and since net income is defined in section 27.52(1)(a)1. as "consisting of total salary and wages, minus deductions required by law, including court-ordered support payments," consideration of anything other than a salary or a wage in calculating a payment is improper and hence unreasonable. Appellant reads the applicable statutory law too narrowly.

Section 28.246(4) provides that an individual may seek a payment plan from the clerk of court for payment of court-ordered fees, service charges, costs, and fines. The monthly amount required under such a plan "is presumed to correspond to the person's ability to pay if the amount does not exceed 2 percent of the person's annual net income, as defined in s. 27.52(1), divided by 12. The court may review the reasonableness of the payment plan." The presumption established in section 28.246(4) regarding a person's ability to pay does not limit what a trial court may consider in determining the reasonableness of a payment plan. In this case, as noted, Appellant has benefited from substantial recurring family support in addition to receiving social security disability benefits. Regular support from family as well as social security benefits are matters which are to be considered in determining whether a party is indigent under section 27.52. That such assets may also be considered by a trial court in assessing the reasonableness of a payment plan is consistent with the statutory scheme.

Therefore, we agree the trial court correctly considered Appellant's in-kind income as a matter of law and find that the order is supported by competent, substantial evidence.

AFFIRMED .

Rowe and Kelsey, JJ., concur.


author: Osterhaus, J.

text:
    William KNEER, Appellant, v. LINCARE AND TRAVELERS INSURANCE, Appellees.
    No. 1D18-1988
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Dean Burnetti, Lakeland, and Bill McCabe, Longwood, for Appellant.
    Steven H. Preston of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellees.
   Osterhaus, J.

In this workers' compensation appeal, Claimant argues that § 440.093(3), Florida Statutes, is unconstitutional, and that the finding that he had no psychiatric work restrictions is unsupported by competent substantial evidence. We affirm.

I.

The facts are not in dispute. Claimant suffered an accident and back injury arising out of work performed in the course and scope of his employment in 2014. After the injury, Claimant underwent extensive back surgery. Claimant reached maximum medical improvement (MMI) for his back injury in January 2016, with a 10% permanent impairment. He was assigned permanent physical restrictions, including restrictions related to his ability to lift, carry, and stand.

About 18 months later, in August 2017, Claimant filed a petition for benefits (PFB) seeking psychological treatment for depression relating to his back injury. This claim did not arise from a new physical injury, but from the original accident and back injury. The employer/carrier (E/C) accepted compensability and authorized treatment. Claimant then filed a PFB in December 2017, seeking temporary partial disability (TPD) benefits extending back to January 2016, the date of physical MMI, for his mental injury.

The E/C opposed this petition asserting that the temporary disability claim was unsupported by the record and precluded by the workers' compensation statute, which cuts off temporary benefits for psychiatric injuries six months after a claimant reaches physical MMI. See § 440.093(3), Fla. Stat. The JCC agreed with the E/C's argument and denied temporary disability benefits, citing § 440.093(3), as well as Utopia Home Care/Guarantee Insurance Co. v. Alvarez , 230 So.3d 72 (Fla. 1st DCA 2017), and School Board of Lee County v. Huben , 165 So.3d 865 (Fla. 1st DCA 2015).

II.

On appeal, Claimant brings a constitutional challenge to § 440.093(3)'s six-month limitation on temporary disability benefits for mental injuries once physical MMI is reached. He argues first that § 440.093(3) unconstitutionally denies his access to the courts, due process, and equal protection by forbidding him from receiving TPD benefits even though his psychiatric injury has not reached MMI. The standard of review for such constitutional challenges is de novo. See Medina v. Gulf Coast Linen Servs. , 825 So.2d 1018, 1020 (Fla. 1st DCA 2002).

Claimant's constitutional challenge is focused on § 440.093(3) of the workers' compensation statute, which reads as follows:

Subject to the payment of permanent benefits under s. 440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee's physical injury or injuries, which shall be included in the period of 104 weeks[ ] as provided in s. 440.15(2) and (4). Mental or nervous injuries are compensable only in accordance with the terms of this section.

Under this section, an injured employee's ability to receive temporary benefits is linked to the existence and duration of the physical injury. First, § 440.093(1)"emphasize[s] the requirement of an 'accompanying physical injury requiring medical treatment' before payment of benefits for mental or nervous injuries is allowed." Utopia Home Care , 230 So.3d at 73 ; see also Indian River Cty. Sheriff's Dep't v. Roske , 417 So.2d 1161 (Fla. 1st DCA 1982) ; see also Superior Mill Work v. Gabel , 89 So.2d 794 (Fla. 1956). Then, subsection (3) sets a "strict deadline after which no [temporary disability] benefits are payable on psychiatric injuries .... [It] starts a clock that stops six months to the day after the date of physical MMI." Huben , 165 So.3d at 867.

Under the system, injured workers can receive temporary disability benefits for mental injuries that accompany qualifying physical injuries for up to 260 weeks. But if the mental injury outlasts physical MMI, temporary benefits are payable for only six more months after reaching MMI (up to the 260-week maximum).

In Claimant's case, TPD benefits were not available based on his psychiatric injury because it arose more than a year after he reached physical MMI on the back injury. Under § 440.093 and the case law, Claimant missed the window for receiving TPD benefits related to his psychiatric injury. Had Claimant's psychiatric injury developed contemporaneously or closer in time with his physical injuries, he could have qualified for TPD benefits prior to physical MMI, and then for six months after reaching physical MMI. But because his psychiatric injury manifested more than a year after reaching physical MMI, he missed the period in which TPD benefits were available for it.

Dissatisfied with these statutory parameters, Claimant cites Westphal and argues that § 440.093(3)'s limitation on temporary benefits for psychiatric injuries violates his constitutional right to access the courts, as well as his due process and equal protection rights. In Westphal , the Florida Supreme Court ruled that the workers' compensation statute's 104-week cap on temporary benefits in § 440.15(2)(a) violated article I, § 21, of the Florida Constitution. Mr. Westphal suffered a workplace injury that left him totally physically disabled and unable to work. Westphal , 194 So.3d at 327. After receiving temporary total disability benefits for 104 weeks, the statute terminated benefits, leaving him totally disabled, unable to work, and statutorily prevented from receiving disability wages for an indefinite period, until an employer-authorized doctor determined that he reached MMI. Id.

The Florida Supreme Court determined that the statute's 104-week temporary benefits cap denied Mr. Westphal's right of access to courts because it withheld disability benefits indefinitely, at a time "when the worker cannot return to work and is totally disabled." Id. at 314. By terminating Mr. Westphal's benefits after just 104 weeks, the Court held that the system did not function as a reasonable alternative to tort litigation. Id. It held that 260 weeks of temporary total disability benefits would henceforth be available to Mr. Westphal and others like him, up from the 104 weeks authorized in § 440.15(2)(a). Id.

Claimant argues that his situation requires a similar analysis and modification of a statutory limitation, so that he can receive temporary benefits for his lingering psychiatric injury. But we don't read Westphal to require this result. In Westphal , the Court recognized the existence of a "tipping point" when the diminution of workers' compensation benefits-measured from the 1968 Constitution's adoption of the right of access to courts-renders the workers' compensation system unconstitutional. Id. at 323. The Court's chief consideration was whether Florida's workers' compensation system provided a "reasonable alternative to tort litigation." Id. (citing Kluger v. White , 281 So.2d 1 (Fla. 1973) ). The Court proceeded to measure a 70% reduction in temporary benefits for injured workers since 1968, which applied "even if the worker remains incapable of working for an indefinite period of time." Id. at 325. And it concluded that the 104-week limitation was unconstitutional for workers like Mr. Westphal, who couldn't use the tort system to recover for their workplace injury, couldn't work, and faced interim "economic ruination" because their benefits were statutorily cut off during the recovery period until an E/C-appointed doctor declared them to be at MMI. Id. at 326.

Claimant's circumstances are different and substantially more favorable than those faced by Mr. Westphal. Unlike Mr. Westphal, Claimant has already qualified for permanent benefits and he can work. Claimant reached physical MMI and received permanent benefits and an impairment rating based on his physical injury. His benefits don't depend upon receiving a favorable decision from an E/C-appointed doctor. Furthermore, Claimant has no work restrictions due to his psychiatric injury. In fact, Claimant's doctors think it's in his best interest from a psychiatric perspective to return to work. These factors make Claimant's situation different from the ruinous situation faced by Mr. Westphal.

Under these circumstances, we see no Westphal -type constitutional problem with the statute's limitation on psychiatric benefits. See § 440.015, Fla. Stat. (expressing the Legislature's intent that the Workers' Compensation Law be interpreted to assure "the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker's return to gainful reemployment"). Although § 440.093(3) draws narrower parameters for receiving temporary benefits for psychiatric injuries than for physical injuries, it does not force claimants to wait indefinitely to receive permanent disability benefits, or expose claimants to economic ruination while awaiting qualification for permanent benefits, as was Mr. Westphal's situation. See W.G. Roe & Sons v. Razo-Guevara , 999 So.2d 708, 709 (Fla. 1st DCA 2008) (noting that "the six-month limitation on temporary psychiatric benefits is conditioned upon the payment of permanent benefits for the associated physical injury").

Another reason we don't see a constitutional problem with § 440.093(3), is that its six-month-post-physical-MMI limitation on temporary benefits applies only to psychiatric injuries, which have historically received less favorable treatment in Florida law. Had Claimant's psychiatric injury arisen closer-in-time to, or contemporaneously with, his related physical injury, he would have qualified to receive TPD benefits. But his psychiatric injury arose more than a year after his physical injury reached maximum improvement, and more than a year after the § 440.093(3) period for receiving temporary benefits had ended. Isolated psychiatric claims have not traditionally been recoverable under Florida's workers' compensation and tort law. For example, benefits have never been available for stand-alone mental injuries without an accompanying physical injury. See Utopia Home Care , 230 So.3d at 73 ; Roske , 417 So.2d at 1161 ; City Ice & Fuel Div. v. Smith , 56 So.2d 329, 330 (Fla. 1952). The 1968-era precursor statute to § 440.093 defined "[a]ccident" to exclude "[a] mental or nervous injury due to fright or excitement only." See § 440.02(19), Fla. Stat. (1968). And only those psychiatric injuries resulting "directly and immediately" from a physical injury were deemed compensable. Superior Mill Work , 89 So.2d at 795 ; see also Franklin Manor Apartments v. Jordan , 417 So.2d 1159, 1160 (Fla. 1st DCA 1982) (noting that "[i]t has long been the law in this state that for post-traumatic neurosis to be compensable, it must be the direct and immediate result of the industrial injury"). These limitations reflect similar traditional tort-law limitations on recoveries for psychiatric injuries. See, e.g. , Gilliam v. Stewart , 291 So.2d 593, 594 (Fla. 1974) (upholding Florida's "long standing" impact rule that foreclosed recovery for emotional or mental injuries unaccompanied by physical injuries). And so, for purposes of the Westphal analysis, Claimant has not demonstrated that § 440.093(3) departs from past workers' compensation limitations, or that it renders Florida's workers' compensation law an unreasonable alternative to tort litigation.

While we recognize that Claimant's psychiatric injury isn't a strictly stand-alone injury, and that it relates back to his prior workplace accident, § 440.093(3)'s application to his circumstances is consistent with how such injuries have been treated under Florida's workers' compensation law since 1968, when the Constitution conferred the right of access to the courts. But even if it wasn't always consistent, the Legislature has flexibility to alter the law's benefit structures, and even reduce benefits, without violating the Constitution's access-to-courts provision. See Martinez v. Scanlan , 582 So.2d 1167, 1171 (Fla. 1991) ; Acton v. Ft. Lauderdale Hosp. , 440 So.2d 1282, 1284 (Fla. 1983). And we don't think the temporary benefits limitation in § 440.093(3) reduces benefits to the "tipping point" of creating an unconstitutional system. Rather, the system continues providing injured workers "with full medical care and wage-loss payments for total or partial disability regardless of fault and without the delay and uncertainty of tort litigation," at a reasonable cost to employers. Martinez, 582 So.2d at 1171-72.

We likewise reject Claimant's due process and equal protection challenges to § 440.093(3), recognizing the State's legitimate interest in establishing time limits for benefits associated with psychiatric injuries. See Newton v. McCotter Motors, Inc ., 475 So.2d 230, 231 (Fla. 1985) (holding that time limits on workers' compensation death benefits did not violate rights of due process, access to courts, or equal protection).

Finally, we reject Claimant's argument contesting the finding that he lacked psychiatric-based work restrictions. Both psychiatrists who evaluated Claimant opined that he could work and had no work restrictions based on his psychiatric condition. Because competent substantial evidence supports the JCC's finding, this issue is affirmed. See Ullman v. City of Tampa Parks Dep't , 625 So.2d 868, 873 (Fla. 1st DCA 1993) (recognizing that findings regarding work restrictions must be upheld if supported by the evidence).

III.

For these reasons, the judgment of the JCC is AFFIRMED .

Wolf and Jay, JJ., concur.

      In Westphal v. City of St. Petersburg , 194 So.3d 311, 327 (Fla. 2016), the Florida Supreme Court revived the pre-1994 statute that provided a 260-week limitation on the entitlement to temporary total disability benefits as set out in section 440.15(2). This result was extended by this Court to the entitlement of temporary partial disability benefits payable under section 440.15(4). See Gonzalez v. Visa , 204 So.3d 987, 987-88 (Fla. 1st DCA 2016) ; Jones v. Food Lion, Inc. , 202 So.3d 964, 965-66 (Fla. 1st DCA 2016).