text:
    Isidro DORADO a/k/a Gilberto Mendez, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0737
    District Court of Appeal of Florida, Second District.
    March 28, 2019
    BY ORDER OF THE COURT:
   The petition for belated appeal of the summary denial of petitioner's postconviction motion in the trial court is granted in circuit court case numbers 2005-CF-4650 and 2008-CF-3025 for review of the trial court's order of August 28, 2018.

The circuit court clerk shall treat this order as a notice of appeal, promptly certify same and return it to this court as with any notice of appeal, and a new appellate case number will be assigned to this appeal and an acknowledgment letter will issue at that time. The summary record shall be transmitted to this court when the certified copy of this order is returned by the trial court clerk.

After a new appellate case number is assigned and an acknowledgment letter has issued, this court will issue an order advising the appellant of the due date of the optional initial brief.

SILBERMAN, VILLANTI, and BADALAMENTI, JJ., Concur.


source: Caselaw Access Project

license: Public Domain

text:
    Lane WARZYBOK, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0022
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Dontrey Lynch WEBSTER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0736
    District Court of Appeal of Florida, Second District.
    March 27, 2019
    BY ORDER OF THE COURT:
   The petitioner's motion for State of Florida to concede illegal sentence is denied as an unauthorized filing in this court.


text:
    Richard H. ELBERT, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2417
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


author: PER CURIAM.

text:
    Manuel Vicente ANTUNA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2881
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Manuel Vicente Antuna, pro se.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Michael Schaub, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

KELLY, BLACK, and SLEET, JJ., Concur.


text:
    Philip Jesse MILLS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1452
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
   PER CURIAM.

Affirmed.

CASANUEVA, KHOUZAM, and BLACK, JJ., Concur.


text:
    Torrey D. WALKER, DOC #Y11735, Appellant, v. Honorable Thomas S. REESE; Stephen Russell; and Anthony Kunasek, Appellees.
    Case No. 2D18-1262
    District Court of Appeal of Florida, Second District.
    Opinion filed February 27, 2019.
    Torrey D. Walker, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Shelley Cridlin, Assistant Attorney General, Tampa, for Appellees Stephen Russel and Anthony Kunasek.
    No appearance for remaining Appellee.
   PER CURIAM.

Affirmed.

VILLANTI, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Norvall SCOTT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1537
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
   PER CURIAM.

Affirmed.

CASANUEVA, BLACK, and BADALAMENTI, JJ., Concur.


text:
    David I. EPPS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2991
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
   PER CURIAM.

Affirmed. See McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013) ; Epps v. State, 100 So. 3d 689 (Fla. 2d DCA 2012) (table decision); Epps v. State, 75 So. 3d 1254 (Fla. 2d DCA 2011) (table decision); Doby v. State, 25 So. 3d 598 (Fla. 2d DCA 2009) ; Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009) ; Epps v. State, 976 So. 2d 1104 (Fla. 2d DCA 2008) (table decision); Valdez-Garcia v. State, 965 So. 2d 318 (Fla. 2d DCA 2007) ; Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002) ; Pleas v. State, 41 So. 3d 980 (Fla. 1st DCA 2010) ; Lykins v. State, 894 So. 2d 302 (Fla. 3d DCA 2005) ; Harris v. State, 789 So. 2d 1114 (Fla. 1st DCA 2001) ; Thomas v. State, 778 So. 2d 429 (Fla. 5th DCA 2001) ; Bloodworth v. State, 504 So. 2d 495 (Fla. 1st DCA 1987).

KELLY, MORRIS, and SLEET, JJ., Concur.


text:
    Marcus Antonio TRIBBITT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3237
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Marcus Antonio Tribbitt, pro se.
   PER CURIAM.

Affirmed. See Galindez v. State, 955 So. 2d 517 (Fla. 2007) ; Tucker v. State, 726 So. 2d 768 (Fla. 1999) ; Knight v. State, 6 So. 3d 733 (Fla. 2d DCA 2009) ; Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004).

KELLY, MORRIS, and SLEET, JJ., Concur.


text:
    Timothy TACY, Appellant, v. Kevin RAMBOSK, in his official capacity as Sheriff of Collier County, Florida, Appellee.
    Case No. 2D17-4547
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019
    Timothy Tacy, pro se.
    Adriana M. Jisa of Purdy, Jolly, Giuffreda, Barranco & Jisa, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA, KHOUZAM, and ATKINSON, JJ., Concur.


text:
    Kevin H. GRAHAM, in His Individual Capacity; Gary L. Wood, Ph.D., in His Individual Capacity; James A. Christensen, M.D., in His Individual Capacity; and Marilyn D. Christensen, in Her Individual Capacity, Appellants, v. LAKE ELLEN LANDINGS TOWNHOMES CONDOMINIUM ASSOCIATION, INC., a Florida Non-Profit Corporation, Appellee.
    Case No. 2D18-2607
    District Court of Appeal of Florida, Second District.
    Opinion filed March 8, 2019.
    Kevin H. Graham, pro se, and for Appellants Gary L. Wood, PH.D., in his individual capacity; James A. Christensen, M.D., in his individual capacity; and Marilyn D. Christensen, in her individual capacity.
    Yvette R. Lavelle and Joseph G. Riopelle of Boyd, Richards, Parker & Colonnelli, P.L., Tampa; and Charles Evans Glausier of Glausier Knight, PLLC, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

KHOUZAM, SALARIO, and BADALAMENTI, JJ., Concur.


author: Per Curiam.

text:
    Dane Matthew WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3084
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2019]
    Dane M. White, Avon Park, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed.

Gross, May and Ciklin, JJ., concur.


text:
    Henry Albert HOLBROOK, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D14-2121
    District Court of Appeal of Florida, Second District.
    Opinion filed February 27, 2019
    Michael L. Maple, Louisville, Kentucky, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA, BLACK, and BADALAMENTI, JJ., Concur.


text:
    J.B. GROSSMAN, Appellant, v. AMERICAN EXPRESS CENTURION BANK CORPORATION, Appellee.
    No. 4D18-2825
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2019]
    J.B. Grossman, Fort Lauderdale, pro se.
    Lourdes R. Slinsky and Mitchell Morneault of Modlin Slinsky, P.A., Sunrise, for appellee.
   Per Curiam.

Affirmed.

Taylor, Ciklin and Levine, JJ., concur.


text:
    Jon Warren TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2518
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2019]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed.

Warner, Gross and Forst, JJ. concur.


text:
    Jerome TITA, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3019
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2019]
    Robert D. Devin of Robert D. Devin, P.A., Fort Lauderdale, for appellant.
    No appearance for appellee.
   Per Curiam.

Affirmed .

Gross, May and Kuntz, JJ., concur.


text:
    Heather Lynn MACDOUGALL, Appellant, v. William Todd JENSEN, Appellee.
    No. 4D18-2833
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2019]
    Heather L. MacDougall, Jupiter, pro se.
    Jason R. Marks and Ashley P. Frankel of Kluger, Kaplan, Silverman, Katzen & Levine, P.L., Miami, for appellee.
   Per Curiam.

Affirmed.

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


text:
    Santoria Devon BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2519
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2019]
    Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   Per Curiam.

Affirmed .

Warner, Forst and Klingensmith, JJ., concur.


text:
    Garfield GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2706
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christina VERGNE, Appellant, v. Jason GLIDEWELL, Appellee.
    No. 4D18-2513
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2019]
    Samuel A. Walker and Tee Persad of CPLS, P.A., Orlando, for appellant.
    Jennifer E. Reisler of Beaulieu-Fawcett Law Group, P.A., Delray Beach, for appellee.
   Per Curiam.

Affirmed.

May, Klingensmith and Kuntz, JJ., concur.


text:
    Steven KOPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2942
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Anthony BRUNSON, Appellant, v. Howard FOULKE, Appellee.
    No. 4D18-2964
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dawn WILLIAMS, Appellant, v. SCHOOL DISTRICT OF BROWARD COUNTY, Florida, Appellee.
    No. 4D18-2793
    District Court of Appeal of Florida, Fourth District.
    April 18, 2019
    Robert F. McKee and Mark F. Kelly, Tampa, for appellant.
    Denise M. Heekin and Elizabeth W. Neiberger of Bryant, Miller, Olive P.A., Miami, for appellee.
   Per Curiam.

Affirmed.

May, Ciklin and Klingensmith, JJ., concur.


text:
    BOARDWALK PROPERTIES MANAGEMENT, INC., a foreign corporation doing business in Florida, Appellant, v. EMERALD CLINTON, LLC, a Florida limited liability company, Appellee.
    No. 4D18-2490
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2019]
    John H. Pelzer of Greenspoon Marder LLP, Fort Lauderdale, for appellant.
    Stephen F. Rosenthal and Robert C. Josefsberg of Podhurst Orseck, P.A., Miami, for appellee.
   Per Curiam.

Affirmed.

Gerber, C.J., Conner, J., and Metzger, Elizabeth A., Associate Judge, concur.


text:
    Gregory S. FRIEDLANDER, as Personal Representative of the Estate of Burton Glen Friedlander, et al., Appellant, v. Steven FRIEDLANDER, Appellee.
    No. 4D18-2516
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tangie L. PAUL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3812
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019 Rehearing Denied April 17, 2019
    Tangie L. Paul, Brooksville, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee
   PER CURIAM.

AFFIRMED.

BERGER, WALLIS and LAMBERT, JJ., concur.


text:
    Billy J. MARTIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3437
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019 Rehearing Denied April 12, 2019
    Billy J. Martin, Raiford, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

COHEN, HARRIS and GROSSHANS, JJ., concur.


text:
    Derick SMITH, Appellant, v. ORANGE COUNTY SHERIFF'S OFFICE, Charles Dees and Miguel Rosario, Appellees.
    Case No. 5D18-932
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 12, 2019 Rehearing Denied April 15, 2019
    Jerry Girley, of The Girley Law Firm, PA, Orlando, for Appellant.
    Walter A. Ketcham, Jr. and Brian F. Moes, of Grower, Ketchum, Eide, Telan & Meltz, PA, Orlando, for Appellees Charles Dees and Miguel Rosario.
    No Appearance for Appellee, Orange County Sheriff's Office.
   PER CURIAM.

AFFIRMED.

COHEN, LAMBERT and EDWARDS, JJ., concur.


text:
    Anwar E. DIXON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3724
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 26, 2019 Rehearing Denied April 16, 2019
    Anwar E. Dixon, Carrabelle, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED.

BERGER, HARRIS and GROSSHANS, JJ., concur.


text:
    Anthony Terrell EVANS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-225
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    Anthony Terrell Evans, Okeechobee, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED.

WALLIS, EISNAUGLE and SASSO, JJ., concur.


text:
    Gerald DORMEVIL, Appellant, v. Rachelle DORMEVIL, Appellee.
    Case No. 5D18-2381
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019 Rehearing Denied April 17, 2019
    Gerald Dormevil, Windermere, Pro se.
    Warren T. Channell, of Channell Law Firm, P.A., Winter Garden, for Appellee.
   PER CURIAM.

AFFIRMED.

EISNAUGLE, GROSSHANS and SASSO, JJ., concur.


text:
    David Alan SHUEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2808
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019 Rehearing Denied April 17, 2019
    David Alan Shuey, Century, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

WALLIS, EDWARDS and HARRIS, JJ., concur.


text:
    Michael S. MEYERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3157
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019 Rehearing Denied April 17, 2019
    Michael S. Meyers, Lowell, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

BERGER, WALLIS and EDWARDS, JJ., concur.


text:
    Steven CAVACO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-111
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jason K. FULLER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3849
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    Jason K. Fuller, Sneads, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

BERGER, LAMBERT and SASSO, JJ., concur.


text:
    Peter STANLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3813
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    Peter Stanley, Daytona Beach, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

COHEN, WALLIS and HARRIS, JJ., concur.


text:
    Jonathan Pernell MATHIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3723
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Greg WHITAKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3677
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tyrell JACK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3527
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    Tyrell Jack, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED.

EVANDER, C.J., BERGER and WALLIS, JJ., concur.


text:
    Daneal J. IRONS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3281
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    Daneal J. Irons, Arcadia, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

COHEN, WALLIS and EDWARDS, JJ., concur.


text:
    Reed OLSEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3133
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Roman Faizorin, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

EVANDER, C.J., BERGER and WALLIS, JJ., concur.


text:
    Robert KENDRICK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3075
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee
   PER CURIAM.

AFFIRMED.

EVANDER, C.J., COHEN and BERGER, JJ., concur.


text:
    Bruce Wayne CARTER, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2985
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

COHEN, EISNAUGLE and GROSSHANS, JJ., concur.


text:
    Victor MALDONADO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2877
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

BERGER, WALLIS and SASSO, JJ., concur.


text:
    Z.J.L., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2632
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Craig R. Atack, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

WALLIS, EISNAUGLE and HARRIS, JJ., concur.


text:
    Otis L. JACKSON, Appellant, v. State of Florida, DEPARTMENT OF CORRECTIONS and Florida Commission on Offender Review, Appellees.
    Case No. 5D18-2384
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019 Rehearing Denied May 14, 2019
    Ottis L. Jackson, Bushnell, pro se.
    Mark Hiers, Assistant General Counsel, Tallahassee, for Appellee, Florida Commission on Offender Review.
    Sheron Wells and Beverly Bartlett Brewster, of Department of Corrections, Tallahassee, for Appellee, State of Florida Department of Corrections.
   PER CURIAM.

AFFIRMED.

EVANDER, C.J., COHEN and BERGER, JJ., concur.


text:
    Jermaine GREENE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2382
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Carmen Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER, BERGER and WALLIS, JJ., concur.


text:
    Joshua PEREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2255
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Craig R. Atack, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

BERGER, EDWARDS and HARRIS, JJ., concur.


text:
    Leo James BOUCHARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2111
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Echavion FLEWELLEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2094
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

EVANDER, C.J., COHEN and EISNAUGLE, JJ., concur.


text:
    David Patrick MARTIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1211
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER, BERGER and EISNAUGLE, JJ., concur.


text:
    Antonio Jermaine GRAHAM, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-965
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Rufinus LEWIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-461
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Shawn Jose RUALES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4024
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Glendon George Gordon, Jr., Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee
   PER CURIAM.

AFFIRMED.

EVANDER, C.J., BERGER and EISNAUGLE, JJ., concur.


text:
    Walner MERCIDIEU, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2527
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    James S. Purdy, Public Defender, and Kathryn R. Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

BERGER, HARRIS and SASSO, JJ., concur.


text:
    Akeem Simee JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1307
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Thomas Steve BURKE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3868
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 9, 2019
    Thomas Steve Burke, Raiford, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

EVANDER, C.J., EISNAUGLE and GROSSHANS, JJ., concur.


text:
    J.D., Father of D.M., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3806
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 16, 2019
    Elliot R. Ambrose, of The Law Office of Elliott R. Ambrose, Brooksville, for Appellant.
    Kelly Schaeffer, of Children's Legal Services, Department of Children and Families, Bradenton, for Appellee.
    Craig Robert Lewis, of Vincent F. Vaccarella, P.A., Ft. Lauderdale, Thomasina Moore and Sara Elizabeth Goldfarb, of Guardian ad Litem, Tallahassee, for Guardian ad Litem Program.
   PER CURIAM.

AFFIRMED.

COHEN, LAMBERT and GROSSHANS, JJ., concur.


text:
    Elvin J. MONTELEONE and Janet S. Monteleone, Appellants, v. CITRUS HILLS CONSTRUCTION, LLC, a Delaware Limited Liability Company and Hampton Hills, LLC., a Delaware Limited Liability Company, Appellees.
    Case No. 5D18-23
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Rolando COSME, Appellant, v. U.S. BANK N.A., Successor TRUSTEE TO BANK OF AMERICA, N.A., Successor in Interest to Lasalle Bank, N.A., as Trustee, on Behalf of the Holders of the WaMu Mortgage Pass-Through, etc., et al., Appellees.
    Case No. 5D17-3127
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 16, 2019
    Michael M. Brownlee, of The Brownlee Law Firm, P.A., Orlando, and Anthony Legendre, II, of Legendre and Legendre, PLLC, Maitland, for Appellant.
    Gennifer L. Bridges, of Burr & Forman LLP, Orlando, for Appellee, U.S. Bank N.A.
    Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellee, Clerk of Courts of Orange County.
    No Appearance for other Appellees.
   PER CURIAM.

AFFIRMED.

BERGER, GROSSHANS and SASSO, JJ., concur.


text:
    LANCER INSURANCE COMPANY, Appellant, v. Juan DUARTE, Appellee.
    Case No. 5D18-1547
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 16, 2019
    C. Robert Pickett, and J.W. Taylor, of Taylor & Associates, Attorneys At Law, P.L., Winter Haven, for Appellant.
    Pierre J. Seacord, and Alan P. Mirelman,of Ringer, Henry, Buckley & Seacord, P.A., Orlando, and Rick Martindale, of The Martindale Law Group, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED.

EVANDER, C.J., LAMBERT and HARRIS, JJ., concur.


text:
    Jason A. CROSS, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-QA9 and Capital First Management, LLC, etc., Appellees.
    Case No. 5D17-3912
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 16, 2019
    Ryan N. Ghantous, of Ghantous & Branch, PLLC, Orlando, for Appellant.
    James H. Wyman, of Hinshaw & Culbertson LLP, Coral Gables, for Appellee, Deutsche Bank Trust Company Americas, as Trustee for Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2005-QA9.
    No Appearance for Other Appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER, HARRIS and GROSSHANS, JJ., concur.


text:
    RONALD M. MARINI, D.M.D., P.A., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    Case No. 5D17-3702
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 16, 2019
    Lance O. Leider, of The Health Law Firm, Altamonte Springs, for Appellant.
    Tracy Cooper George, of Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER, LAMBERT and EDWARDS, JJ., concur.


text:
    Carl FICKE, Appellant, v. Kyle DAVIS, Appellee.
    Case No. 5D18-614
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 16, 2019
    Shane M. Smith, of Shane M. Smith, P.A., Melbourne, for Appellant.
    Paulo R. Lima, and Elizabeth K. Russo, of Russo Appellate Firm, P.A., Miami, for Appellee.
   PER CURIAM.

AFFIRMED.

EDWARDS, GROSSHANS and SASSO, JJ., concur.


author: Forst, J.

text:
    The EVENT DEPOT CORP., Petitioner, v. Robert FRANK and Terri Frank, Individually, and as Parents and Natural Guardians of Elizabeth Frank, a Minor Child, Respondents.
    No. 4D18-2306
    District Court of Appeal of Florida, Fourth District.
    [April 24, 2019]
    Eric C. Morales and Jason H. Klein of Wood, Smith, Henning & Berman, LLP, Miami, for petitioner.
    Daniel Mahfood and Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, and Jonathan R. Gdanski and David Silverman of Schlesinger Law Offices, P.A., Fort Lauderdale, for respondents.
   Forst, J.

Petitioner The Event Depot Corp., a defendant in the personal injury lawsuit below, seeks certiorari review of an amended order allowing the plaintiffs Robert and Terri Frank, individually and as parents and natural guardians of their minor child, Elizabeth Frank ("Respondents"), to seek punitive damages against Petitioner. Petitioner argues the order fails to specify a finding of a reasonable evidentiary basis for recovering punitive damages against a corporate defendant. For the reasons explained below, we deny the petition.

Background

In 2011, Elizabeth Frank was injured when she fell from the "Psycho Swing" amusement ride at the Seminole Ball Park in Hollywood, Florida. Petitioner owned the equipment involved. In 2016, Respondents filed a nine-count amended complaint against Petitioner and other defendants, alleging causes of action for strict liability and negligence. Allegations included that the swing was missing crucial safety equipment, safety instructions, etc. Defendant The Celebration Source was alleged to have designed, manufactured, assembled, distributed, promoted, sold, leased, serviced, repaired, and placed the subject swing into the stream of commerce. Defendants Michael Campi, Paul Campi, David Campi, and Jeremy Soto were named in the suit as employees or agents of The Celebration Source. Defendant Timmy Hutson was purportedly operating the swing when Elizabeth Frank was injured.

In July 2017, Respondents moved for leave to amend their complaint to add a punitive damages claim against all defendants. The trial court granted leave to amend as to all defendants except Petitioner. In April 2018, Respondents filed a second motion for leave to amend to seek punitive damages against Petitioner. In July 2018, after a hearing, the trial court granted the motion, allowing Respondents to file a fourth amended complaint to seek punitive damages as to Petitioner. Petitioner timely sought certiorari review.

In the order on review, the trial court said it considered the initial evidentiary proffer made at the hearing on the first motion for leave to amend. That proffer included: "(1) criminal charges for culpable negligence against defendant M. Campi; (2) report of ADP & Associates, Inc.; (3) mediation contractual agreement of M. Campi; (4) October 13, 2015 deposition of M. Campi; (5) Psycho Swing instruction manual and (6) October 22, 2015 deposition of P. Campi." Additionally, the trial court considered the proffer made at the second hearing, which included the deposition of Robert Murray, the Psycho Swing's creator and developer.

The court pointed to additional information from the Murray deposition offered by Respondents at the second hearing to show that Petitioner "evinced a reckless disregard for the health and safety of human life by lending out the Psycho Swing and permitting it to be used without required safety harness, the owner's manual, or adequate safety training." This information included Murray's testimony that he invented, developed, made and sold the Psycho Swing in the 1990s, and had knowledge in operating the swing and developing its operating procedures, instruction manual and safety protocol, as well as his explanation of "the critical importance of the safety harness in its safe operation" and testimony that providing the swing for use by another company without the safety harness was "unconscionably something that you shouldn't do."

The trial court also cited evidence from Respondents' initial proffer, based on M. Campi's deposition testimony, suggesting that Petitioner "provided the Psycho Swing to The Celebration Source for use without providing the required safety harness."

The trial court ruled that the initial evidentiary proffer and the "newly proffered testimony of Mr. Murray" provided a reasonable evidentiary basis for recovery of punitive damages against Petitioner, and thus granted Respondents' motion.

Analysis

To invoke certiorari, a petitioner must demonstrate "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Reeves v. Fleetwood Homes of Fla., Inc. , 889 So.2d 812, 822 (Fla. 2004) (citation omitted).

In the seminal case of Globe Newspaper Co. v. King , the Florida Supreme Court held:

appellate courts do have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section 768.72. Certiorari is not available to review a determination that there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.

658 So.2d 518, 519 (Fla. 1995) (emphasis added).

In Leinberger v. Magee , this court, relying on a decision of the Fifth District, explained what the procedural requirements of section 768.72 entail. 226 So.3d 899, 900 (Fla. 4th DCA 2017). "First, the movant must attach the proposed amended pleading to the motion seeking leave to amend in compliance with Florida Rule of Civil Procedure 1.190(a)." Id. Second, "the 'proffer' or other evidence of record to support the punitive damages claim must be served prior to the hearing on the motion for leave to amend." Id. "Third, the trial court must make an affirmative finding that the plaintiff made a reasonable showing by evidence, which would provide a reasonable evidentiary basis for recovering such damages if the motion to amend is granted." Id. at 901 (internal quotation marks omitted).

Here, there was a proposed amended complaint, a timely proffer, and a sufficient order. Thus, all three procedural steps were followed.

Yet, Petitioner contends that the trial court's "fail[ure] to specify a finding of a reasonable evidentiary basis for recovery of punitive damages against a corporate defendant ," constituted a departure from the essential requirements of law. Petitioner points to section 768.72(3), Florida Statutes (2018), which provides that:

(3) In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent meets the criteria specified in subsection (2) and:
(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;
(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

(emphasis added).

Petitioner contends that the trial court's order contains no finding of a reasonable evidentiary basis consistent with the above statute. Petitioner also contends that Respondents presented no evidence implicating Petitioner's managers, officers, directors or principals of knowingly condoning, ratifying, or consenting to the alleged conduct.

Respondents have argued that Petitioner waived the right to raise challenges under section 768.72(3), Florida Statutes, based on corporate liability. The record refutes this position. Still, Petitioner's argument is flawed for two reasons. First, the second motion for leave to amend to seek punitive damages did not allege liability of the Petitioner corporation based on the conduct of any particular employee or agent. Rather, the basis for the punitive damages claim was Petitioner's alleged act of providing the Psycho Swing to The Celebration Source (i.e., placing it into the stream of commerce) without the safety harness, instruction manual and adequate safety training. This supports a punitive damages claim against the corporation under section 768.72(3)(c), Florida Statutes.

Second, this court is without jurisdiction to review the sufficiency of Respondents' evidentiary proffer. As discussed, the scope of this court's certiorari review is limited to whether the trial court has complied with the procedural requirements of section 768.72, Florida Statutes. Fla. Hosp. Med. Servs., LLC v. Newsholme , 255 So.3d 348, 350 (Fla. 4th DCA 2018) (citing Tilton v. Wrobel , 198 So.3d 909, 910 (Fla. 4th DCA 2016) (citing Globe Newspaper Co. , 658 So.2d at 520 ) ) ). Certiorari review is not available "to review the sufficiency of the evidence." KIS Grp., LLC v. Moquin , 263 So.3d 63 (Fla. 4th DCA 2019) (quoting Tilton , 198 So.3d at 910 ); see also Melendez v. Eversole , 263 So.3d 1140 (Fla. 1st DCA 2019) ;

Am. Heritage Life Ins. Co. v. Smith , 263 So.3d 133 (Fla. 1st DCA 2018) (both citing Globe Newspaper Co. , 658 So.2d at 520 ).

Here, the trial court complied with the procedural requirements of the statute. Respondents proffered evidence to support their punitive damages claim and, after a hearing, the trial court entered an order finding the proffer to be sufficient to support the claim. The petition for writ of certiorari must therefore be denied. See Melendez ; Am. Heritage Life Ins. Co.

Conclusion

The trial court followed the procedures required to determine whether punitive damages may be pled. Because Petitioner has failed to demonstrate that the trial court departed from the essential requirements of law in allowing the fourth amended complaint to plead punitive damages claims against Petitioner, we deny the petition.

Petition denied .

Warner, J., concurs.

Kuntz, J., concurs specially with opinion.

Kuntz, J., concurring specially.

I join the Court's denial of the petition for writ of certiorari. I am bound by our case law to do so. See Fla. Hosp. Med. Servs., LLC v. Newsholme , 255 So.3d 348, 350 (Fla. 4th DCA 2018) (citing Tilton v. Wrobel , 198 So.3d 909, 910 (Fla. 4th DCA 2016) (citing Globe Newspaper Co. v. King , 658 So.2d 518, 520 (Fla. 1995) ) ).

The majority opinion correctly concludes that our certiorari jurisdiction is limited by controlling precedent to "review whether a trial judge has conformed with the procedural requirements of section 768.72." Slip Op. at 3 (quoting Globe Newspaper Co. , 658 So.2d at 519 ). But we lack certiorari jurisdiction "to review a determination that there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Slip Op. at 3 (quoting Globe Newspaper Co. , 658 So.2d at 519 ).

This provides the litigants only the narrowest review of an order that can transform a lawsuit. As the Third District explained, "[f]rom a practical perspective, the granting of a motion for leave to amend a complaint to add a punitive damages claim can be a 'game changer' in litigation." TRG Desert Inn Venture, Ltd. v. Berezovsky , 194 So.3d 516, 520 n.5 (Fla. 3d DCA 2016) ; see also Osechas v. Arcila , 44 Fla. L. Weekly D389, --- So.3d ---- (Fla. 3d DCA Feb. 6, 2019) (an order allowing a party to amend a complaint to add a claim for punitive damages "materially alter[s] the course of civil litigation" (Scales, J., specially concurring) ). The litigation is materially changed, in part, because "[a]llowing a plaintiff to proceed with a punitive damages claim subjects the defendant to financial discovery that would otherwise be off limits" and "potentially subjects the defendant to uninsured losses." Berezovsky , 194 So.3d at 520 n.5 ; see also Cat Cay Yacht Club, Inc. v. Diaz , 264 So.3d 1071 (Fla. 3d DCA 2019) (noting "[t]he prospect of intrusive financial discovery following a trial court's authorization for an amendment to add a claim for punitive damages").

For these reasons, the Third District suggested the Florida Bar's Appellate Court Rules Committee should consider amending Florida Rule of Appellate Procedure 9.130 to allow an appeal of an order deciding a motion for leave to add a claim for punitive damages. See Osechas , 44 Fla. L. Weekly at D389, --- So.3d at ---- ; Levin v. Pritchard , 258 So.3d 545, 548 n.4 (Fla. 3d DCA 2018) ; Berezovsky , 194 So.3d at 520 n.5.

I share those concerns. Additionally, the cases limiting our certiorari jurisdiction in the context of an order allowing a party to add a claim for punitive damages derive from the Florida Supreme Court's opinion in Globe Newspaper Co. In that opinion, the Florida Supreme Court analyzed section 768.72, Florida Statutes (1993), and held:

We conclude that appellate courts do have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section 768.72.

658 So.2d at 519. In dissent, Justice Anstead explained that when section 768.72 was enacted, the legislature "specifically granted the petitioner a substantive right to be free of financial discovery, absent a particularized evidentiary showing." Id. at 521 (Anstead, J., dissenting). Because of that legislative grant, Justice Anstead would not have limited the scope of our certiorari jurisdiction and would have permitted review of orders allowing a party to add a claim for punitive damages. Id. (Anstead, J., dissenting).

Four years after Globe Newspaper Co. , the legislature made substantive revisions to section 768.72. See Ch. 99-225, Laws of Fla. The legislature amended the statute to provide definitions, require "clear and convincing evidence of gross negligence or intentional misconduct to support the recovery of" punitive damages, and provide standards for the imposition of punitive damages in certain instances. Id. Within Chapter 99-225, the legislature also made substantive revisions to section 768.73, Florida Statutes, stating in the introductory portion of the enacted legislation that it was "revising provisions with respect to limitations on punitive damages; providing monetary limitations; providing for the effect of certain previous punitive damages awards." Ch. 99-225, Laws of Fla. It also enacted sections 768.725, .735, .736, and .737, Florida Statutes. Ch. 99-225, Laws of Fla. Relevant here, section 768.725 was enacted to "provid[e] for evidentiary standards for an award of punitive damages." Ch. 99-225, Laws of Fla.

These revisions were substantive and many. But many courts continue to apply the test set forth four years earlier in Globe Newspaper Co. That test was established at a time when the court explained that the "plain meaning of section 768.72... require[d] a plaintiff to provide the court with a reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in a plaintiff's complaint." Globe Newspaper Co. , 658 So.2d at 520.

It is true that the language quoted in Globe Newspaper Co. remains in the statute. But the statute now requires more than adherence to the procedural requirements. For example, a defendant may "be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence." § 768.72(2), Fla. Stat. (2018). And for an employer, punitive damages can be imposed for the conduct of an employee only if the plaintiff meets certain conditions. See § 768.72(3), Fla. Stat. Thus, strictly applying the Globe Newspaper Co. test might preclude our certiorari jurisdiction even when a circuit court allows a claim for punitive damages to proceed but recovery is otherwise barred by the statute. But see Varnedore v. Copeland , 210 So.3d 741, 745 (Fla. 5th DCA 2017).

These statutory amendments add substantive hurdles that did not exist when the court rejected Justice Anstead's view that certiorari review should be available to review an order allowing a party to plead a claim for punitive damages. See Globe Newspaper Co. , 658 So.2d at 521 (Anstead, J., dissenting).

As explained by the Third District, allowing a party leave to amend a complaint to seek punitive damages "can be a 'game changer' in litigation." Berezovsky , 194 So.3d at 520 n.5. And it is an order that can, at present, be reviewed only on appeal of a final judgment. But on review of the final judgment, the circuit court's finding that a reasonable basis existed to allow the claim for punitive damages will be reviewed de novo. Estate of Despain v. Avante Grp., Inc. , 900 So.2d 637, 642 (Fla. 5th DCA 2005) (citing Holmes v. Bridgestone/Firestone, Inc. , 891 So.2d 1188, 1191 (Fla. 4th DCA 2005) ). That de novo review might be more appropriate before implementation of the game-changing order.

So I join the Third District in suggesting that the Florida Bar's Appellate Court Rules Committee consider amending Rule 9.130 to allow the appeal of a non-final order determining the right of a party to amend a complaint to add a claim for punitive damages. Alternatively, now almost twenty-five years later, the Florida Supreme Court may wish to consider whether Justice Anstead's dissent in Globe Newspaper Co. was correct.

      Petitioner also argues that Respondents' fourth amended complaint, attached to the second motion for leave to amend to seek punitive damages, was deficient in alleging gross negligence under section 768.72(2)(b), Florida Statutes (2018). Our review of the pleading refutes this argument, and we reject this point without further discussion.

      While the petition was pending, the trial court amended its order on December 12, 2018. See Gibraltar Private Bank & Tr. v. Schacht , 220 So.3d 1234, 1235 (Fla. 3d DCA 2017) ("While a trial court is without jurisdiction to vacate a non-final order which has been appealed , a party's filing of a certiorari petition challenging an interlocutory ... order does not divest the trial court of jurisdiction.") (footnote omitted). This amendment led to the amended petition for writ of certiorari now before this court.

      Varnedore v. Copeland , 210 So.3d 741 (Fla. 5th DCA 2017).

      The Florida State University College of Law has digitized the Florida Statutes for 1941 and 1955 to 1996. See Digitized Legal Collections , Florida State University College of Law, https://fall.law.fsu.edu/ (last visited Feb. 25, 2019). The Florida Legislature provides a digital version of the Florida Statutes for 1997 through the present. See Florida Statutes , Online Sunshine, http://www.leg.state.fl.us/statutes/ (last visited Feb. 25, 2019).


author: Warner, J.

text:
    Roberto ESTAPE, Appellant, v. Stanley B. SEIDMAN Ph.D., Individually, and Stanley B. Seidman, Ph.D, P.A., a Florida Corporation, Appellees.
    No. 4D17-3336
    District Court of Appeal of Florida, Fourth District.
    [April 24, 2019]
    Max R. Price of the Law Offices of Max R. Price, P.A., Miami, for appellant.
    John W. Mauro and Scott C. Cochran of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., Fort Lauderdale, for appellees.
   Warner, J.

Roberto Estape appeals a summary final judgment entered on his claims of negligence and breach of fiduciary duty against appellee, Dr. Stanley Seidman, a psychologist. In a contested dissolution of marriage proceeding, Estape and his wife agreed to use Dr. Seidman as a reunification therapist for their children, and the court approved their agreement. Estape contends that he had a psychologist-patient relationship with Dr. Seidman, evidenced by a document that the doctor had him sign. He asserts that any communications between them were required by statute to be confidential, but the doctor breached that confidentiality, causing Estape damage. Dr. Seidman claimed that because the communications occurred within the litigation, he was entitled to absolute immunity based upon the litigation privilege, and the trial court agreed. We reverse, finding that the statutory grant of confidentiality prevails over the litigation privilege, a common law doctrine, and there remains a question of fact as to the existence of the psychologist-patient relationship.

During the dissolution of marriage proceedings, Estape was prevented from seeing his children. The children saw two psychologists, and after a time, the psychologists concluded that reunification with the father should occur. The parties agreed to the commencement of a visitation schedule and that Dr. Seidman would serve as the reunification therapist. Few instructions were included in the agreement announced in court, other than that the children were to have two sessions with Dr. Seidman prior to the first unsupervised visitation, which was already scheduled. In addition, Dr. Seidman, together with the children's psychologists, could determine whether each child should have a vacation with their father without the other child. The court refused to make any determination other than to adopt the agreement of the parties. The order entered by the trial court simply states: "The Court adopts the Agreement on temporary children's access issues and related issues as contained in the transcript of the hearing on May 2, 2011, as an Order of the Court, which is attached hereto as Exhibit '1.' " It does not name Dr. Seidman in the order.

After one short session with Estape, and a session with the children, Dr. Seidman sent an email to the children's guardian ad litem, objecting to the first scheduled visitation on the grounds that he had not had the time to perform a sufficient evaluation and that the children were apprehensive about seeing their father. He also related some information conveyed to him by Estape during his short session with him. As a result, the mother moved to stay the scheduled visitation, and it did not occur. More proceedings involving visitation ensued, preventing Estape from seeing his children.

Estape eventually filed a complaint against Dr. Seidman, alleging causes of action for breach of fiduciary duty and negligence. The gravamen of the breach of fiduciary duty claim was that Dr. Seidman had communicated to the guardian ad litem material which Estape claimed was privileged under the psychotherapist-patient doctrine. See Gracey v. Eaker , 837 So.2d 348, 353-55 (Fla. 2002) (finding that the wrongful disclosure of confidential information by a psychotherapist constitutes a breach of a fiduciary duty). The negligence count was also based upon Estape's claim that Dr. Seidman communicated to the guardian ad litem without following standard practices for psychologists.

Dr. Seidman moved for summary judgment. He alleged that he was a court-appointed reunification therapist and, as such, protected by absolute immunity for statements made during the judicial proceeding.

In response, Estape set forth evidence that he had entered into a psychologist-patient relationship with the doctor. He pointed to a form that he signed when he appeared at Dr. Seidman's office for his first session. That form included a confidentiality statement as follows:

Information shared with a psychologist is kept strictly confidential and is not disclosed without your written provision. However, confidentiality is not guaranteed in cases of (a) danger to yourself others (e.g., homicide or suicide), or (b) situations [in] which children are endangered (e.g., sexual or physical abuse or neglect).

The form also provided for Informed Consent:

I have read and understood the preceding statements, have had the opportunity to ask questions about them, and agreed to begin treatment at Associates In Behavioral Counseling.

(emphasis added). The court granted the motion for summary judgment, and after denying a motion for rehearing, it entered final judgment in favor of the doctor, which prompted this appeal.

We review a final summary judgment de novo, recognizing that it should be granted only when there is a complete absence of genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fini v. Glascoe , 936 So.2d 52, 54 (Fla. 4th DCA 2006). Whether the absolute immunity privilege applies is a question of law to be decided by the court. See Ball v. D'Lites Enters., Inc. , 65 So.3d 637, 638 (Fla. 4th DCA 2011).

"The law in Florida has long been that defamatory statements made in the course of judicial proceedings are absolutely privileged, and no cause of action for damages will lie, regardless of how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry." Fridovich v. Fridovich , 598 So.2d 65, 66 (Fla. 1992). "The immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties in a proceeding but to judges, witnesses, and counsel as well." Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co. , 639 So.2d 606, 608 (Fla. 1994). As noted in Myers v. Hodges, 53 Fla. 197, 44 So. 357, 360 (1907), however, the absolute immunity for statements in judicial proceedings arose from the common law of England. By statute, the common law is the law of this state, but only to the extent that it is not inconsistent with the acts of the legislature . See § 2.01, Fla. Stat. (2016).

Section 490.0147, Florida Statutes (2012), provides that communications between a psychotherapist and patient are confidential, but the statute establishes circumstances where the privilege may be waived:

Any communication between any person licensed under this chapter and her or his patient or client shall be confidential. This privilege may be waived under the following conditions:
(1) When the person licensed under this chapter is a party defendant to a civil, criminal, or disciplinary action arising from a complaint filed by the patient or client, in which case the waiver shall be limited to that action.
(2) When the patient or client agrees to the waiver, in writing, or when more than one person in a family is receiving therapy, when each family member agrees to the waiver, in writing.
(3) When there is a clear and immediate probability of physical harm to the patient or client, to other individuals, or to society and the person licensed under this chapter communicates the information only to the potential victim, appropriate family member, or law enforcement or other appropriate authorities.

The first principle of statutory interpretation is that statutes must be interpreted in accordance with their plain meaning. See Acosta v. Richter, 671 So.2d 149, 153 (Fla. 1996). Here, it is clear that the statute establishes the confidentiality of psychotherapist communications and very limited means of waiving that privilege. This is also consistent with the legislative intent expressed in section 490.002, Florida Statutes, that "in order to preserve the health, safety, and welfare of the public, the Legislature must provide privileged communication for members of the public or those acting on their behalf to encourage needed or desired psychological services to be sought out."

None of the grounds for waiver set forth in the statute apply to the communications made by Dr. Seidman in the dissolution case. The first section does not apply because he was not a party in that proceeding. Second, Estape provided no written waiver, nor was any waiver provided by any of the other family members. Finally, there is no evidence in this record of the potential for physical harm to any persons. Therefore, if Estape was a patient of Dr. Seidman, his communications with him were entitled to confidentiality according to the statute.

The assertion of a right to disclose communications pursuant to a litigation privilege would add another exception to the statutory grant of confidentiality, which would be inconsistent with the plain meaning of the statute. Therefore, the common law privilege must give way. See § 2.01, Fla. Stat. We hold that absolute immunity for communications during judicial proceedings does not provide immunity to a psychotherapist for revealing communications regarding a patient contrary to section 490.0147.

There remains the question of whether Estape was a patient of Dr. Seidman, so that psychotherapist-patient confidentiality applies. Estape points to the document provided by Dr. Seidman and signed by Estape, agreeing to treatment by Dr. Seidman and stating that his communications would be kept confidential. Dr. Seidman, on the other hand, contends that he was appointed by the court and did not have a psychotherapist-patient relationship. A very material question of fact remains.

Provisions of both Chapter 61, Florida Statutes (2012), as well as administrative regulations regarding psychotherapists, show that the legislature did not intend that absolute immunity apply any time a court appoints a therapist in dissolution of marriage proceedings. For instance, under section 61.122, Florida Statutes (2012), regarding the establishment of a parenting plan, a psychologist who is appointed to develop a plan, including a time-sharing arrangement, is presumed to be acting in good faith. The statute allows a parent, who desires to sue a psychologist over the parenting plan recommendations, to petition the court to replace the challenged psychologist, but it also provides for the award of attorney's fees to either the psychologist or the parents, depending on which party prevails. A parent may have to overcome the presumption of good faith, but the statute clearly allows litigation and does not provide for absolute immunity for the psychologist. Furthermore, section 61.125, Florida Statutes (2012), authorizes the appointment of a parenting coordinator, whose purpose is to assist parents in dispute resolution over parenting plans. Section 61.125(7) contains an express confidentiality provision for communications between the parenting coordinator, who could be a licensed therapist, and the parties. However, section 61.125(9) provides for a limitation of liability for a coordinator, unless the coordinator acts in bad faith or reckless disregard for the rights of the parties.

Further, even if the therapist is court-appointed, pursuant to Rule 64B19-19.006 of the Florida Administrative Code, regarding confidentiality with respect to psychotherapists, the psychotherapist performing the evaluation is required to explain to the person being evaluated the limits of confidentiality:

(2) In cases where an evaluation is performed upon a person by a psychologist for use by a third party, the psychologist must explain to the person being evaluated the limits of confidentiality in that specific situation, document that such information was explained and understood by the person being evaluated, and obtain written informed consent to all aspects of the testing and evaluative procedures.

As to Dr. Seidman's appointment, we have no explanation of what his duties as a "reunification therapist" were to be. This term is not used in the statute. The mere designation of Seidman as a therapist by court-approved agreement, provides little for us to evaluate in order to determine what type of relationship was intended. Unlike a court appointment of an expert to assist the court in evaluating custody or other matters in dissolution proceedings, it does not appear in this record that any reports were to be made to the court itself. Therefore, we cannot conclude as a matter of law that Dr. Seidman had absolute immunity under the circumstances of this case.

Dr. Seidman points to this court's decision in Ross v. Blank , 958 So.2d 437 (Fla. 4th DCA 2007) as supporting his claim of absolute immunity. Ross , however, is distinguishable, as it did not involve a psychotherapist-patient relationship. There, in divorce proceedings, a wife and her daughters saw Blank, a psychologist. Id. at 439. During those sessions, Blank learned information regarding Ross, the father, which suggested to her the potential of child sexual abuse. Id. After consulting with others, she reported Ross to the Department of Children and Families. Id. Ross sued Blank for defamation, both with respect to the report to DCF and other communications made by Blank during the course of the divorce proceedings, as well as negligence. Id. Blank moved for summary judgment as to all claims asserted, and as to those allegedly defamatory statements made during the divorce proceedings, Blank claimed absolute immunity based upon the litigation privilege. Id. The trial court granted the motion, entering judgment against Ross. Id. at 439-40. On appeal, we agreed that the statements made by the psychologist to the court-appointed custody evaluator, and also to the guardian ad litem, were protected by the litigation privilege. Id. at 441. Blank, however, did not have a psychotherapist-patient relationship with Ross, the father. Therefore, it is inapplicable to the issue presented in this case.

For the foregoing reasons, we reverse the final summary judgment entered by the trial court. There exist material issues of fact as to whether a psychotherapist-patient relationship existed between Estape and Dr. Seidman or whether other statutes applied which would preclude the assertion of absolute immunity. Because the trial court's judgment exclusively involved the application of the litigation privilege, we do not determine whether the statements made constituted the communication of privileged information.

Reversed and remanded for further proceedings.

Gross, J., and Weiss, Daliah, Associate Judge, concur.

      In addition, both parties referenced a deposition of Dr. Seidman, but the deposition was not made part of the record.


author: Levine, J.

text:
    The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Trustee for CWABS, Inc. Asset-Backed Certificates, Series 2003-BC4, Appellant, v. FLORIDA KALANIT 770 LLC, Douglas Jackson, Fairway Isles at Olive Tree Homeowners Association Inc., Michelle Jackson, Olive Tree Property Owners Association, Inc., The Enclave At Fairway Isles Homeowners Association, Inc., and Tirza Ventures LLC, Appellees.
    No. 4D18-3295
    District Court of Appeal of Florida, Fourth District.
    [April 24, 2019]
    Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman LLP, West Palm Beach, for appellant.
    Michael S. Spoliansky of Spoliansky Law P.A., North Miami Beach, for appellee Florida Kalanit 770 LLC.
   Levine, J.

The trial court involuntarily dismissed the foreclosure action filed by The Bank of New York Mellon ("the bank") against Florida Kalanit 770 LLC, finding that the bank lacked standing because the allonge predated the note. We find the fact that the allonge predated the note by one day did not render the allonge invalid. Therefore, we reverse.

The bank filed a foreclosure complaint against Florida Kalanit, alleging it was the holder of the note. A copy of the note attached to the complaint contained an allonge with an endorsement from the original lender to the bank. The allonge was dated one day before the note was executed. Both the note and the allonge contained the borrower's name, the property address, the note date, and the loan amount. Florida Kalanit filed an answer and affirmative defenses alleging that the bank was not the proper party to bring the action and that the endorsement was executed by "robo-signors."

During trial, the bank introduced testimony from an employee of the servicer. The bank also introduced into evidence the original note, mortgage, limited power of attorney, payment history, and judgment figures. Toward the end of cross-examination, the trial court interjected and questioned how the note was assigned the day before it was signed. Florida Kalanit responded that it could not be. Florida Kalanit then asked the witness, "Could you explain to the Court ... how that allonge could be attached to the note that doesn't exist before the note was signed?" The witness responded, "I don't know."

Florida Kalanit then moved for an involuntary dismissal, arguing that the allonge "legally could never exist because it was dated, as the Court noted, before the note came into existence." The trial court granted the motion for involuntary dismissal "[b]ased upon standing" because the "[a]llonge attached to the note was dated before the note came into existence." After denying rehearing, the trial court entered a final order of dismissal.

An order granting a motion for involuntary dismissal is reviewed de novo. Rouffe v. CitiMortgage, Inc. , 241 So.3d 870, 872 (Fla. 4th DCA 2018). In the instant case, the trial court granted the involuntary dismissal based on lack of standing. Whether a party has standing to bring an action is reviewed de novo. Vogel v. Wells Fargo Bank, N.A. , 192 So.3d 714, 716 (Fla. 4th DCA 2016). "When a mortgage foreclosure case proceeds to a bench trial, the plaintiff bank need only present competent, substantial evidence that it has standing to foreclose." Id. (citation omitted).

A party must prove it has "standing to bring a mortgage foreclosure complaint by establishing an assignment or equitable transfer of the note and mortgage prior to instituting the complaint." Joseph v. BAC Home Loans Servicing, LP , 155 So.3d 444, 446 (Fla. 4th DCA 2015).

The trial court erred in dismissing the case for several reasons. Initially, Florida Kalanit's answer did not challenge the validity of the allonge on the grounds that it predated the note. Even during trial, Florida Kalanit did not raise any issue with respect to the date of the allonge until the trial court introduced the issue. By not raising this issue in its pleadings, Florida Kalanit waived this defense to the foreclosure action. See Fla. R. Civ. P. 1.140(b) ("Every defense in law or fact to a claim for relief in a pleading must be asserted in the responsive pleading .... Any ground not stated must be deemed to be waived ....").

Even assuming this issue was not waived, the fact that the note was executed one day after the allonge did not invalidate the allonge. "An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself." Purificato v. Nationstar Mortg., LLC , 182 So.3d 821, 823 (Fla. 4th DCA 2016) (citation omitted). Nothing in this definition explicitly states or even suggests that an allonge may not be executed before the note as long as it is subsequently affixed to the note. Additionally, nothing in Florida's UCC suggests that an allonge may be signed only after executing the note. Significantly, the UCC expressly states that "[a]n instrument may be antedated or postdated." § 673.1131, Fla. Stat. (2018).

Further, Florida law recognizes that an entity may contract to sell property that it does not own at the time of contracting. "Under the doctrine of after-acquired title if a grantor purports to transfer ownership of real property to which he lacks legal title at the time of the transfer, but subsequently acquires legal title to the property, the after-acquired title inures, by operation of law, to the benefit of the grantee." BMCL Holding LLC v. Wilmington Tr., N.A. , 201 So.3d 109, 111 (Fla. 3d DCA 2015) (citation and quotation marks omitted). "The doctrine of after-acquired title applies to mortgages." Id. at 112.

Cases from other jurisdictions have also concluded that an allonge may predate the execution of a note. See Sgroe v. Wells Fargo Bank, N.A. , 941 F.Supp.2d 731, 740 (E.D. Tex. 2013) (finding that note executed three days after the date on the allonge did not invalid the allonge); IndyMac Bank v. Miguel , 117 Hawai'i 506, 184 P.3d 821, 828 (Haw. Ct. App. 2008) (finding assignment of mortgage valid even though it predated the execution of the mortgage by one day); HSBC Bank USA, Nat'l Ass'n v. Lia , A-2032-13T3, 2015 WL 9694367, *7 (N.J. Super. Ct. App. Div. Jan. 8, 2016) (finding bank satisfied its obligation to establish its right to foreclose where defendants "did not challenge the validity of the recorded assignment that predated the filing of the complaint").

Because the trial court erred in concluding that the bank lacked standing to foreclose, we reverse and remand for further determination consistent with this opinion.

Reversed and remanded.

Taylor and Ciklin, JJ., concur.


author: BADALAMENTI, Judge.

text:
    Armando Rafael PEREZ, DOC #H47989, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2331
    District Court of Appeal of Florida, Second District.
    Opinion filed October 26, 2018.
    Elizabeth J. Johnson of Halscott Megaro, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Armando Rafael Perez appeals from his convictions and sentences for several counts of video voyeurism. Although he raises several issues on appeal, we need only address whether the trial court erred by denying in part his motion to suppress evidence seized subsequent to a warrantless search of the hard drive of his personal laptop computer. That search yielded several secret recordings of his adult stepdaughter, K.P., in her bedroom while she was in various states of undress. After careful review and the benefit of oral argument, we reverse the order denying Mr. Perez's motion to suppress because the trial court misapplied the inevitable discovery doctrine.

In his motion to suppress, Mr. Perez sought the exclusion of the videos that formed the basis of his convictions for video voyeurism. At the suppression hearing, the State presented two witnesses: Ms. Perez, Mr. Perez's then-spouse and mother of K.P., and the investigating detective.

Mr. Perez, his wife, stepson, and stepdaughter, K.P., lived in the same house. Ms. Perez testified that she received a telephone call from her daughter, K.P., alerting her that K.P. had discovered that the television in the living room of their home displayed a live video feed from K.P.'s bedroom. K.P. had discovered the live feed when she pushed the wrong button on the television's remote control, which changed the video input to display a live video feed of her bedroom. After Ms. Perez returned home, she accessed Mr. Perez's laptop "to see if there were any ... videos on there." Ms. Perez described the laptop as "Armando's" laptop. She testified that Mr. Perez did not "give [her] permission to access his laptop" and that it was the "first time ... [she] had ever accessed [Mr. Perez's] computer." Ms. Perez searched the files on Mr. Perez's laptop and identified several videos of her adult daughter in various states of undress.

Ms. Perez called the police and reported the incident. The detective who responded to Ms. Perez's report was assigned to the Computer Crimes Unit of his law enforcement agency. When the detective arrived at the residence, only Ms. Perez and K.P. were present. Ms. Perez advised the detective both about the videos of K.P. she discovered on Mr. Perez's laptop and the hidden cameras inside K.P.'s bedroom. The detective identified small pinhole cameras hidden within an electrical outlet and the smoke alarms inside K.P.'s bedroom. Those hidden cameras were hardwired to a digital video recorder stored underneath the television in the living room, where K.P. had discovered the live feed of her bedroom earlier that day.

At that point, the detective obtained sworn statements from Ms. Perez and K.P. He also telephoned the state attorney's office from the Perez residence and spoke with an assistant state attorney, whom he described as an "intake attorney" who "handles most of the cases that come from the Computer Crimes Unit." The detective advised the intake attorney that he believed he had probable cause to obtain a search warrant to search the contents of the laptop. He also advised the intake attorney that Ms. Perez was willing to consent to the search of the laptop. The detective then asked the intake attorney "whether or not [he] should work off of consent or get a search warrant at that point." The intake attorney, who had thirty years' experience at the state attorney's office, said "to go ahead and work on the consent of [Ms. Perez] to conduct the examination of the computer." The detective testified that at the time he called the intake attorney, he was "prepared and ready to start typing out the search warrant." (Emphasis added.) The detective instead received Ms. Perez's written consent to search the hard drive of Mr. Perez's personal laptop. Ms. Perez then surrendered Mr. Perez's laptop to the detective. Thereafter, law enforcement conducted a warrantless search of the hard drive of Mr. Perez's laptop and located the videos of K.P., which formed the basis for Mr. Perez's voyeurism charges and convictions.

The trial court subsequently issued a written order denying Mr. Perez's motion to suppress the videos obtained from the warrantless search of his laptop. It first found that the consent to the search of Mr. Perez's laptop by Ms. Perez was invalid because Ms. Perez had no authority to consent to the search of a laptop that did not belong to her. Nevertheless, the trial court accepted the sole remaining argument advanced by the State, concluding that the videos obtained from the search of the laptop were admissible under the inevitable discovery doctrine.

To support its conclusion, the trial court found that the detective possessed probable cause that would have supported the issuance of a warrant to search Mr. Perez's laptop. The court reasoned that "[b]ut for the misadvice [from the intake attorney that the detective telephoned], law enforcement would have been actively engaged in writing and obtaining a search warrant." The court concluded that "the contents of [Mr. Perez's] computer would have been inevitably discovered."

Following the suppression hearing, Mr. Perez's counsel advised the trial court that Mr. Perez would proceed to trial unless the State would agree to stipulate that the order denying the motion to suppress was dispositive or the court would certify the order as dispositive. The State refused to agree to the dispositiveness of the order, and the trial court stated it was not in a position to make such a finding. Mr. Perez elected to proceed to trial. At the jury trial, the State introduced the videos obtained from the warrantless search of the laptop. Mr. Perez was convicted as charged.

On appeal, Mr. Perez argues that the trial court erred by denying his motion to suppress the videos stored on the hard drive of his personal laptop. Specifically, he contends that the trial court erred in its application of the inevitable discovery doctrine because law enforcement was not in active pursuit of a warrant prior to the warrantless search of his laptop. We agree. Bound by our supreme court's decision in Rodriguez v. State, 187 So.3d 841 (Fla. 2015), we hold that the trial court erred in holding that the videos were admissible under the inevitable discovery doctrine.

"A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Id. at 845 (quoting Terry v. State, 668 So.2d 954, 958 (Fla. 1996) ). "[A]ppellate courts defer to the trial court's factual findings so long as the findings are supported by competent, substantial evidence, and review de novo the legal question of whether there was probable cause given the totality of the factual circumstances." Id. (quoting State v. Hankerson, 65 So.3d 502, 506 (Fla. 2011) ).

Both the Fourth Amendment to the United States Constitution and the Florida Constitution prohibit unreasonable searches and seizures. Amend. IV, U.S. Const.; Art. I, § 12, Fla. Const. Absent a warrant issued by a neutral and detached magistrate, a search is per se unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It is axiomatic that "[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ... reasonableness generally requires the obtaining of a judicial warrant." Riley v. California, 573 U.S. 373, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (alteration in original) (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ). "In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement." Id.

One exception to the warrant requirement is consent to the search of the item. Here, the State does not dispute that the search of Mr. Perez's laptop was based on invalid consent because Ms. Perez had no authority to consent to the search. Indeed, Ms. Perez testified that it was "Armando's" laptop, that Mr. Perez did not "give [her] permission to access his laptop," and that it was the "first time ... [she] had ever accessed [Mr. Perez's] computer." See King v. State, 79 So.3d 236, 238 (Fla. 1st DCA 2012) ("[T]here is no right on the part of a third party to consent to a search of personal property belonging to another person unless there is evidence of both common authority over and mutual usage of the property." (alteration in original) (quoting Kelly v. State, 77 So.3d 818, 825 (Fla. 4th DCA 2012) ) ).

The inevitable discovery doctrine is another exception to the Fourth Amendment's warrant requirement. See Nix v. Williams, 467 U.S. 431, 447, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) ; Rodriguez, 187 So.3d at 845. Under the inevitable discovery doctrine, evidence obtained as a result of an illegal search "may still be admissible provided the evidence would ultimately have been discovered by legal means." Rodriguez, 187 So.3d at 845 (quoting Fitzpatrick v. State, 900 So.2d 495, 514 (Fla. 2005) ). Although not elucidated by Nix, our supreme court, in a 4-to-3 decision, held that the inevitable discovery doctrine also requires the prosecution to demonstrate that a search warrant was being actively pursued prior to the illegal search. Id. at 849-50. As the majority in Rodriguez noted, the cases applying the inevitable discovery doctrine "focus on whether police made an effort to get a warrant prior to the illegal search and whether strong probable cause existed for the search warrant." Id. at 847 (quoting McDonnell v. State, 981 So.2d 585, 593 (Fla. 1st DCA 2008) ).

In Rodriguez, a law enforcement officer obtained consent from the defendant to search his home. Id. at 844. The officer then searched the home and found a marijuana "grow room." Id. The defendant moved to suppress the evidence, and the trial court denied the motion. Id. Although the trial court found that the defendant's consent to the warrantless search of his home was invalid, the court determined that the evidence would have been inevitably discovered. Id. The trial court concluded that the inevitable discovery doctrine applied because probable cause had been established before law enforcement requested consent. Furthermore, it found that had the officer not obtained consent to the search, the officer "would have gone and gotten a warrant." Id. On appeal, the Third District affirmed the trial court's denial of the motion to suppress. Id. Our supreme court reversed, concluding that the trial court's application of the inevitable discovery doctrine was improper because the "officers' failure to seek a search warrant preclude[d] the application of the inevitable discovery doctrine." Id. at 850.

Announcing its holding that the inevitable discovery doctrine requires the prosecution to make a showing that law enforcement was in active pursuit of a search warrant, the Rodriguez court explained that the doctrine "cannot function to apply simply when police could have obtained a search warrant if they had taken the opportunity to pursue one." Id. at 849. This is because such a rule would "effectively nullify the requirement of a search warrant under the Fourth Amendment." Id. at 850.

Just as in Rodriguez, the trial court here erred in relying on the inevitable discovery doctrine, an exception to the warrant requirement, to support its denial of Mr. Perez's motion to suppress. Applying the first part of the inquiry set forth in Rodriguez, there is no question that law enforcement possessed probable cause that would have supported the issuance of a warrant to search Mr. Perez's laptop. The detective conducted a lawful search of the home, located the hidden cameras inside K.P.'s bedroom, and was informed by Ms. Perez that Mr. Perez's laptop contained videos depicting K.P. in various states of undress in her bedroom. But the analysis does not stop there. That the detective had probable cause to conduct the search of Mr. Perez's personal laptop is insufficient to justify the detective's failure to obtain a warrant to search the laptop. See id. at 849 ("[T]here is no room for probable cause to obviate the requirement to pursue a search warrant, for this would eliminate the role of the magistrate and replace judicial reasoning with the current sense impression of police officers."); Clayton v. State, 252 So.3d 827, 831 (Fla. 1st DCA 2018) (concluding that probable cause alone was insufficient to justify a warrantless search of the defendant's home and noting that if probable cause alone was sufficient, "any time police have probable cause to search a home, they could do so without seeking a search warrant and the State would be permitted to introduce evidence seized in such a search by asserting that the evidence would have been discovered inevitably").

The second part of the inquiry set forth in Rodriguez is whether the prosecution demonstrated that the police were actively pursuing a search warrant prior to the occurrence of the illegal search. See Rodriguez, 187 So.3d at 849-50. The trial court neglected to properly apply this requirement. At the suppression hearing, the detective testified that although he "was prepared and ready to start typing out the search warrant," he did not do so. (Emphasis added.) The detective instead made a decision to forgo the search warrant affidavit process. He received written consent from Ms. Perez to search the laptop, which was invalid because, as previously explained, she had no authority to consent to the search. See King, 79 So.3d at 237 (reversing the denial of a motion to suppress where officers conducted a search of the defendant's safe after relying on improper consent by the defendant's wife to the search). Because there was no evidence that a search warrant was being actively pursued prior to the illegal search of the laptop's contents, the trial court erred in its application of the inevitable discovery doctrine. See Rodriguez, 187 So.3d at 850 (concluding that law enforcement's failure to seek a search warrant precluded application of the inevitable discovery doctrine); Clayton, 252 So.3d at 831 (reversing denial of a motion to suppress evidence where officers conducted a search of the defendant's home after relying on the defendant's invalid consent to the search and where the officers made no attempt to secure a search warrant).

In its appellate brief and at oral argument, the State asserted that the detective's telephone call to the state attorney's office inquiring as to whether to secure a search warrant or simply obtain Ms. Perez's consent constituted active pursuit of a search warrant. That telephone call, the State contends, satisfied the second part of the inquiry set forth in Rodriguez. We reject that argument. The State has neither cited, nor have we identified, a single case holding that a law enforcement officer's telephone call to a prosecutor to ask for advice on whether a search warrant is required constitutes "active pursuit of a search warrant." Courts applying the inevitable discovery doctrine have held that law enforcement actively pursued a search warrant only where law enforcement took affirmative steps to secure a warrant directly from a neutral and detached magistrate. See, e.g., United States v. Lamas, 930 F.2d 1099, 1103-04 (5th Cir. 1991) (concluding that the inevitable discovery doctrine applied where probable cause to obtain a search warrant existed and where a law enforcement officer took active steps to obtain a warrant by heading to his patrol vehicle to draft an affidavit to the magistrate but abandoned that effort after another officer informed him that the defendant had agreed to sign a consent form).

On this record, we conclude that the inevitable discovery doctrine cannot apply where, as here, the State's only preserved argument is that strong probable cause existed for a search warrant and that the law enforcement officer "could have" obtained a warrant but decided not to actively pursue one because a prosecutor told the officer that consent would suffice. The trial court's ruling contravenes the dictates of Rodriguez. That the detective, as the trial court found, "would have been actively engaged in writing and obtaining a search warrant for the contents of the computer" but for the assistant state attorney's "misadvice" matters not in the milieu of the active pursuit requirement set forth in Rodriguez. On this record, the detective did nothing to actively pursue a search warrant. Indeed, although the detective was prepared and ready to start typing out an affidavit to obtain a search warrant from a neutral and detached magistrate, the detective chose not to transfer his readiness to do so into action. Choosing to do nothing in this context is the polar opposite of actively pursuing a search warrant.

In sum, we conclude that the trial court erred in denying in part the motion to suppress because it improperly applied the inevitable discovery doctrine. The trial court's ruling contravenes Rodriguez because the detective here did not actively pursue a search warrant. We reject the State's argument that a telephone call to an assistant state attorney inquiring as to whether to secure a search warrant, without more, satisfies the "active pursuit requirement" elucidated by our supreme court in Rodriguez. The Fourth Amendment's warrant requirement would be wholly undercut if a law enforcement officer can sidestep the requirement by making a single telephone call to a prosecutor to ask if he needs to start the process of obtaining a search warrant. The would-be audience of a search warrant affidavit is a neutral and detached magistrate, not a prosecutor. Although the route the detective took to seize the incriminating evidence here was more expedient, "[t]he constitutional guarantee to freedom from warrantless searches is not an inconvenience to be dismissed in favor of claims for police and prosecutorial efficiency." See Rodriguez, 187 So.3d at 849.

The error in admitting the videos cannot be considered harmless in this case. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986). Bound by Rodriguez, we reverse with instructions for the trial court to vacate Mr. Perez's convictions and sentences. We remand for a new trial. See Albritton v. State, 769 So.2d 438, 439 (Fla. 2d DCA 2000) (reversing and remanding for a new trial where the trial court erred in denying a motion to suppress).

Reversed and remanded with instructions.

CASANUEVA, J., and LEE, LAUREL M., ASSOCIATE JUDGE, Concur.

      We decline the State's invitation to employ the "tipsy coachman" rule and affirm on grounds that the warrantless search of Mr. Perez's laptop fell within the good faith exception to the exclusionary rule. It would be inappropriate to consider the State's argument because, among other reasons, the trial court did not make factual findings as to the applicability of this exception below. See Fitzsimmons v. State, 935 So.2d 125, 128 (Fla. 2d DCA 2006) (declining to employ the tipsy coachman rule).


text:
    Sam CASSEUS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1641
    District Court of Appeal of Florida, First District.
    February 4, 2019 Rehearing Denied March 18, 2019
    Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Sam Casseus was accused of engaging in sexual activity with his 13-year-old stepdaughter. He pled guilty to charges of sexual battery by a person in familial or custodial authority and lewd or lascivious molestation in exchange for concurrent terms of time served followed by sex offender probation. After sentencing, Casseus moved to withdraw his plea because he was not told that he would be subject to mandatory electronic monitoring as a condition of probation. Casseus now appeals the denial of his motion, arguing that mandatory electronic monitoring is a direct consequence of his plea and failure to advise him of this condition renders the plea involuntary. We affirm.

The pertinent facts are straightforward and undisputed. Section 948.30, Florida Statutes (2014), sets forth a list of additional terms and conditions of probation or community control for certain sex offenses. They are considered standard conditions and do not require oral pronouncement at the time of sentencing. § 948.30, Fla. Stat. Relevant to this case, the trial court is required to order mandatory electronic monitoring as a condition of probation. § 948.30(3), Fla. Stat. The parties agree that Casseus was not informed of the mandatory nature of this condition prior to entering his guilty plea. They disagree, however, on whether this provides a basis for Casseus to withdraw his plea after sentencing.

When a defendant seeks to withdraw a guilty plea after sentencing, he must demonstrate that withdrawal is necessary to correct a manifest injustice.

Campbell v. State , 125 So.3d 733, 736 (Fla. 2013). In the interest of finality, this is a heavier burden than that required to withdraw a plea prior to sentencing. State v. Partlow , 840 So.2d 1040, 1044 (Fla. 2003) (Cantero, J., concurring). One way to show manifest injustice is by proving the plea was not entered voluntarily. Woodall v. State , 39 So.3d 419, 421 (Fla. 5th DCA 2010) ; see also Fla. R. Crim. P. 3.170(l ) ; Fla. R. App. P. 9.140(b)(2)(A)(ii)(c). "[I]f a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void." Bolware v. State , 995 So.2d 268, 272 (Fla. 2008) (quoting McCarthy v. United States , 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) ).

"The voluntariness of a plea depends on whether the defendant is aware of the direct consequences of the plea and those consequences listed in Florida Rule of Criminal Procedure 3.172(c)." Partlow , 840 So.2d at 1042. By contrast, the failure to inform a defendant about a collateral consequence of the plea does not render the plea involuntary. Id. at 1043. The distinction between a direct and collateral consequence "turns on whether the result represents a definite, immediate, and largely automatic effect on the range of the defendant's punishment." Major v. State , 814 So.2d 424, 429, 431 (Fla. 2002) (citing Zambuto v. State , 413 So.2d 461, 462 (Fla. 4th DCA 1982) ). "[N]either the seriousness of the sanction nor its burden on the defendant affects the inquiry." Bolware , 995 So.2d at 274. The supreme court has clearly stated that "for a penalty to be deemed a direct consequence of a plea, it must constitute punishment. " Id. at 273. Thus, the question here is whether mandatory electronic monitoring constitutes "punishment" in this context.

Courts have found that direct consequences of a plea-those that affect the range of punishment-include any applicable mandatory minimum penalties, the statutory maximum sentence, the application of jail credit, and whether any sentence enhancement designations such as the habitual felony offender statute apply. See State v. Coban , 520 So.2d 40 (Fla. 1988) (mandatory minimum term is a direct consequence of a plea); Polite v. State , 990 So.2d 1242 (Fla. 3d DCA 2008) (maximum penalty that could be imposed upon a violation of probation or community control is a direct consequence of a plea); Reyna v. State , 18 So.3d 1131, 1133 (Fla. 2d DCA 2009) ("Credit for time served, or jail credit, is a direct consequence of a plea because it affects the range of punishment-in this case, the length of Mr. Reyna's incarceration-in a definite manner, immediately and automatically upon imposition of a sentence."); Hampton v. State , 217 So.3d 1096 (Fla. 5th DCA 2017) (defendant must be made aware of the reasonable and direct consequences of habitualization prior to entering a plea).

Conversely, courts have found that mandatory registration as a sexual offender does not constitute punishment, and thus is not a direct consequence of the plea. In Partlow , the supreme court was asked to resolve a conflict between the First and Fourth Districts on the issue of "whether, after being sentenced for a sexual offense pursuant to a plea of guilty or nolo contendere , a defendant may withdraw his plea as involuntary because he was not informed of the sexual offender registration requirement." 840 So.2d at 1041. The supreme court agreed with this Court's decision in Nelson v. State , 780 So.2d 294 (Fla. 1st DCA 2001), and held that the sexual offender registration requirement was a collateral consequence of the plea, and therefore failure to inform the defendant of that requirement before he entered the plea did not render the plea involuntary. Id. at 1043. The court reasoned that the sexual offender registration requirement had no effect on the "range of the defendant's punishment" because "the requirement to register is not punishment at all." Id. The court explained that "the defendant faces no further punishment for this crime simply because the law imposes other duties as a result." Id.

Similarly, in Bolware the supreme court held that revocation of a driver's license based on habitual traffic offender status does not constitute punishment. 995 So.2d at 275. The court acknowledged that the loss of driving privileges constitutes a personal hardship, but recognized that hardship does equate to punishment. Id. Thus, license revocation is not a direct consequence of a plea for which a defendant must be informed to ensure that the plea is voluntary. Id.

The instant case presents a situation analogous to the sexual offender registration requirement and the loss of driving privileges, which are not considered punishment, no matter how definite, immediate, automatic, or onerous. Although the trial court is statutorily required to order electronic monitoring as a condition of sexual offender probation, it is not a direct consequence of the plea, as it does not affect the range of punishment for the crime. Unlike the cases finding a consequence to be direct, being required to wear an electronic monitor does not affect the term of probation or what sentence an offender faces for the charged crime. Any burden or embarrassment caused by the device would not be any different than requiring the offender to register for life as a sexual offender or predator. Cf. Belleau v. Wall , 811 F.3d 929, 937 (7th Cir. 2016) ("Having to wear [an electronic GPS] monitor is a bother, an inconvenience, an annoyance, but no more is punishment than being stopped by a police officer on the highway and asked to show your driver's license is punishment, or being placed on a sex offender registry...."). Accordingly, we hold that mandatory electronic monitoring as a condition of probation under § 948.30 is not punishment and, therefore, Casseus is not entitled to withdraw his plea.

In reaching our decision, we have not overlooked Casseus's reliance on Witchard v. State , 68 So.3d 407 (Fla. 4th DCA 2011). In that case, the Fourth District held that the requirement that a trial court impose electronic monitoring on certain sex offenders who violate their probation applies only to probationers whose offenses occurred on or after the effective date of the statute. 68 So.3d at 411 (construing § 948.063, Florida Statutes ). The court reasoned that application of the statute to probationers who committed their crimes prior to its effective date violated the ex post facto clause of the constitution because the law "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Id. 409. Although Witchard found that mandatory electronic monitoring constitutes "punishment" for ex post facto purposes, we are guided by the precedent discussed above on the issue of whether due process requires that a defendant be informed of a particular sanction before entering a plea of guilty.

AFFIRMED .

Wolf, Lewis, and Ray JJ., concur.

      The court recognized that, while not a direct consequence of a plea, the suspension or revocation of a driver's license constitutes such a serious consequence that a defendant should be informed of it pursuant to rule. Bolware , 995 So.2d at 276. Accordingly, the court directed "that [rule 3.172 ] be amended as we have done with other consequences that we found to be collateral but of substantial importance." Id. ; see In re Amendments to Fla. Rules of Criminal Procedure 3.172 & 3.985 & Amendments to Fla. Rule of Civil Procedure 1.985 , 20 So.3d 376 (Fla. 2009) (amending 3.172(c) to require trial court to inform defendant regarding mandatory driver's license suspension or revocation).