author: Ciklin, J.

text:
    Jose Ramon NIEVES RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4328
    District Court of Appeal of Florida, Fourth District.
    [March 27, 2019]
    Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Paul Patti, III, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

A friendly residential gathering took a tragic turn, resulting in the shooting death of the gathering's host. The shooter, Jose Rivera, appeals his convictions of first-degree murder with a firearm; attempted first-degree murder with a firearm; aggravated battery with a deadly weapon, a firearm; and discharging a firearm in public or on residential property. He raises two issues, both of which we find to be without merit. We write to address Rivera's argument that he is entitled to a new Stand Your Ground Law hearing, as the controlling statute was amended after the hearing, and it now provides that once a defendant makes out a prima facie case for immunity, the state must prove by clear and convincing evidence that immunity does not apply. Previously, the statute had been interpreted as requiring defendants to prove by a preponderance of the evidence that immunity applied. Based on our own precedent, we affirm, but we stay the mandate, as the issue of the amended statute's retroactive application is pending in the Florida Supreme Court.

After Rivera was charged with numerous offenses arising out of his shooting a firearm and using it to beat one of the victims, he moved to dismiss based on Florida's Stand Your Ground Law, section 776.032, Florida Statutes. The trial court heard evidence and denied the motion. A jury found Rivera guilty as charged as to most of the offenses.

Rivera appealed his convictions. Subsequently, an amendment to the statute went into effect. It provides that "once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution." § 776.032(4), Fla. Stat. (2017) ; Ch. 2017-72, § 1, Laws of Fla. Rivera seeks retroactive application of this amendment.

This court held in Hight v. State , 253 So.3d 1137, 1141 (Fla. 4th DCA 2018), that the amendment constituted a substantive change to the law that applies prospectively. The Third District takes the same view. See Love v. State , 247 So.3d 609, 612-13 (Fla. 3d DCA 2018). But the First, Second, and Fifth Districts take the contrary view. See Fuller v. State , 257 So.3d 521, 537 (Fla. 5th DCA 2018) ; Commander v. State , 246 So.3d 1303, 1304 (Fla. 1st DCA 2018) ; Martin v. State , No. 2D16-4468, --- So.3d ----, ----, 2018 WL 2074171, at *2 (Fla. 2d DCA May 4, 2018). The Florida Supreme Court is presently considering the issue. See Love v. State , No. SC18-747, 2018 WL 3147946 (Fla. June 26, 2018).

Based on Hight , we affirm. But because the retroactivity issue is before the supreme court, we stay the mandate pending the court's resolution of Love , 247 So.3d 609, review granted , No. SC18-747, 2018 WL 3147946 (Fla. June 26, 2018).

Affirmed. Mandate stayed.

May and Klingensmith, JJ., concur.

      Section 776.032, Florida Statutes, also known as Florida's Stand Your Ground Law, "provides for immunity from prosecution when a defendant has used force in accordance with certain specified statutory circumstances." Bretherick v. State , 170 So.3d 766, 768 (Fla. 2015). When a defendant raises the statutory immunity, the trial court must conduct "an evidentiary hearing." Id. at 773. The trial court must then "decide the factual question of the applicability of the statutory immunity." Id. (quoting Dennis v. State , 51 So.3d 456, 458 (Fla. 2010) ).


source: Caselaw Access Project

author: Damoorgian, J.

license: Public Domain

text:
    FLORIDA PENINSULA INSURANCE COMPANY, Appellant, v. Cindy DEPORTER, Appellee.
    No. 4D18-489
    District Court of Appeal of Florida, Fourth District.
    [April 10, 2019]
    Thomas A. Valdez, Iniv Gabay and Jose E. Bosch of Quintairos, Prieto, Wood & Boyer, P.A., Tampa and Miami, for appellant.
    Dean R. Mallett and Marc J. Gutterman of Gutterman Trial Group, Fort Lauderdale, for appellee.
   Damoorgian, J.

Florida Peninsula Insurance Company (the "Insurer") appeals an interlocutory order striking its proposal for settlement. We lack jurisdiction to consider the order and, therefore, dismiss the appeal.

Article V, section 4(b)(1) of the Florida Constitution states, "District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts .... They may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court." The district court may also exercise certiorari jurisdiction to review an otherwise non-appealable nonfinal order, but only in very limited circumstances. Citizens Prop. Ins. Corp. v. San Perdido Ass'n , 104 So.3d 344, 348 (Fla. 2012).

The categories of nonfinal orders appealable to the district courts are set forth in Florida Rule of Appellate Procedure 9.130. The Insurer does not dispute that the appealed order does not fall into any of the categories of appealable nonfinal orders delineated in Rule 9.130. It does, however, maintain that the appealed order is final for purposes of appellate jurisdiction. We disagree.

Orders finding a proposal for settlement unenforceable are treated like denials of requests for attorney's fees for purposes of a finality analysis. See Kiefer v. Sunset Beach Invs., LLC , 207 So.3d 1008, 1009-10 (Fla. 4th DCA 2017). Post-judgment orders denying a claim for entitlement to attorney's fees are considered final and appealable because there is no possible further judicial labor to be done with respect to the fees sought. Id. at 1009 (treating a post-judgment denial of motion for fees pursuant to a proposal for settlement as a final appealable order); BDO Seidman, LLP v. British Car Auctions, Inc. , 789 So.2d 1019, 1020 (Fla. 4th DCA 2001) ; Yampol v. Turnberry Isle S. Condo. Ass'n , 250 So.3d 835, 837 (Fla. 3d DCA 2018). Conversely, because a pre-judgment denial of a motion for fees does not foreclose the possibility that the party may seek or recover fees via another mechanism at some point during the litigation, pre-judgment orders denying a claim for attorney's fees are not final appealable orders. See Red Bird Laundry v. Parks , 728 So.2d 1238, 1239 (Fla. 5th DCA 1999) ("In this case, no final order has been issued, so that the order denying the request for fees cannot be considered a non-final order entered after final judgment. No other basis for jurisdiction appears."). As such, the appealed pre-judgment order striking the Insurer's proposal for settlement is not a final appealable order.

In the alternative, the Insurer argues that this Court should exercise its certiorari jurisdiction to review the appealed order. "A certiorari petition must satisfy three requirements before a district court can grant relief from an erroneous interlocutory order. 'A petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.' " Fassy v. Crowley , 884 So.2d 359, 363 (Fla. 2d DCA 2004) (quoting Parkway Bank v. Fort Myers Armature Works, Inc. , 658 So.2d 646, 648 (Fla. 2d DCA 1995) ). "[T]he final two prongs of the test are jurisdictional. The district court must conduct the jurisdictional analysis before it is empowered to determine whether to grant relief on the merits, i.e., whether the nonfinal order departs from the essential requirements of the law." Id.

Based on the foregoing, the threshold consideration for this Court is "whether the order is capable of causing irreparable harm which cannot be cured on final appeal." Hargrett v. Toyota Motor Sales U.S.A., Inc. , 705 So.2d 1009, 1009 (Fla. 4th DCA 1998). The Insurer argues that the order caused it irreparable harm in that "it allowed [Appellee] to continue to litigate this case without the restraint that the existence of a [fee sanction] threat would encouraged (sic)" and "deprived [the Insurer] of the benefits of ... seeking the type of early settlement the Proposal for Settlement Statute was intended to promote and the related benefit of discouraging needless litigation." In other words, the Insurer asserts that the order may be costing it additional litigation time and expenses. However, as the Florida Supreme Court concluded in Rodriguez v. Miami-Dade County , 117 So.3d 400, 405 (Fla. 2013), "the continuation of litigation and any ensuing costs, time, and effort in defending such litigation does not constitute irreparable harm." Accordingly, the harm claimed by the Insurer does not rise to the level of "irreparable harm" necessary to merit certiorari review.

Dismissed.

Conner and Forst, JJ., concur.


author: Per Curiam. Kuntz, J., concurring.

text:
    Michael Scott STURGEON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D18-3406
    District Court of Appeal of Florida, Fourth District.
    [April 10, 2019]
    Gregory C. Rosenfeld of Law Offices of Greg Rosenfeld, P.A., West Palm Beach, Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, and Joshua LeRoy of LeRoy Law, P.A., West Palm Beach, for petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for respondent.
   Per Curiam.

Petition Denied.

May and Forst, JJ., concur.

Kuntz, J., concurring with opinion.

Kuntz, J., concurring.

I fully join the Court's denial of Michael Sturgeon's petition for writ of certiorari to quash the circuit court's order denying his motion to end his probation. Sturgeon pleaded guilty to eleven counts of possession of child pornography. The court sentenced Sturgeon to four years in prison followed by five years of sex offender probation. Under the plea agreement, his sentence included a "no early termination" of probation clause.

After four years of probation, Sturgeon moved to end his probation. The circuit court denied the motion. But, it noted that it would have granted the motion if not for the State's objection because of the no early termination provision.

Sturgeon argues the no early termination provision is unenforceable because it violates the controlling statute, violates the separation of powers, contravenes public policy, and is unenforceable and severable under contract law.

Sturgeon is correct that appellate courts have held that where a circuit court imposes special conditions of probation, the imposition of a no early termination provision violates section 948.05, Florida Statutes. See, e.g. , Arriaga v. State , 666 So.2d 949, 950 (Fla. 4th DCA 1996) ; Jones v. State , 666 So.2d 191, 192 (Fla. 2d DCA 1995) ; Baker v. State , 619 So.2d 411, 412 (Fla. 2d DCA 1993). But, even if those cases were correctly decided, they are distinguishable because this case involves a negotiated plea agreement.

Here, Sturgeon and the State entered into a valid and binding plea agreement that included a no early termination provision. Both the State and Sturgeon received benefits to the detriment of the other from the plea agreement. To ignore the no early termination provision and allow Sturgeon to terminate probation would allow him to enjoy the benefits of the plea bargain but avoid the burden.

The circuit court correctly declined to relieve Sturgeon from the burden of the valid agreement. I fully join the Court's affirmance of the circuit court's order.

      But see Arriaga , 666 So.2d at 950 (Farmer, J., dissenting) ("If ... Baker stands for the proposition that the sentencing judge is barred from expressing an intention that the offender serve the full period of probation imposed without premature remission, I should have difficulty in accepting it. It certainly seems to me that, in deciding to forego commitment to prison, the sentencing judge may intend that the full period of probation is the price for the avoidance of prison.").


author: Gross, J.

text:
    Stephen STUBBS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3295
    District Court of Appeal of Florida, Fourth District.
    [April 17, 2019]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Stephen Stubbs was convicted after a jury trial of unlawful sexual activity with a minor in violation of section 794.05(1), Florida Statutes. We write to address the propriety of the State's introduction of similar fact evidence-the experiences of two other young women with appellant.

Finding that the admission of such testimony was proper, we affirm the conviction.

The information alleged that the criminal sexual activity occurred between November 2009 and November 2010 when the victim was sixteen or seventeen years old.

The victim moved to Palm Beach County when she was eleven years old. She joined the church of Restoration of Life Ministries when she was fifteen.

In his mid-forties, Stubbs was the pastor of the church. He was called "Apostle"; the victim testified that being an "apostle" is the highest appointment a person can have. It meant that Stubbs was speaking from God. She believed the defendant to be the prophet he claimed to be.

The defendant was a father figure to the victim. She went to him for guidance concerning daily decisions in her life. The church was the biggest part of her world-she never missed a church function and went almost every day. In addition to her church activities, she babysat Stubbs's children.

When the victim was sixteen, Stubbs began to groom her for future sexual contact. The grooming began with instances of physical contact over clothes. Two weeks before the victim's seventeenth birthday, the contact escalated to French kissing. She never questioned Stubbs's intentions and "always did what he told [her] to do."

Over the next several months, after the victim finished babysitting, the defendant drove her to the home used as a church. The physical contact accelerated and intensified. Multiple times, on different days, Stubbs inserted his finger into the victim's vagina. These digital incidents escalated to Stubbs rubbing his penis up and down her vagina and performing oral sex so that he could teach her how to reach orgasm. When the victim did not climax, Stubbs told her she was equipped to deal with temptations. She was seventeen years old.

The defendant told her that it was his responsibility to teach her because she did not have a father. He told her he was an Apostle, a spiritual leader, and his physical contact with her was platonic for him because it was his duty. He told her that if she kissed a boy or let him touch her in a certain way the boy was putting spirits on her and, as her Apostle, he would have to take them off.

The victim tearfully testified that she did not report the incidents because she trusted Stubbs and he justified what he was doing. She continued to attend church, thinking that he was "super committed" to her.

The grooming culminated toward the end of the victim's freshman year in college, when she was eighteen. On that occasion the defendant took her to his son's room, put on a condom, and penetrated her vagina with his penis.

The same week, the victim reported the abuse to her school counselor. At the time, she wanted to forgive the defendant, and did not want her family to know. When the police contacted her and she learned that there was an additional allegation concerning a different girl, she decided to cooperate.

In addition to the victim's testimony, the state offered the testimony of two women who had had similar experiences with Stubbs.

Witness 1 began attending the church with her sister and mother when she was a teenager. She testified that Pastor Stubbs was an "Apostle," which meant that God spoke to him and gave him wisdom concerning the lives of the people in the church. Stubbs was a trusted religious advisor to the girl and her family. When Witness 1 was sixteen years old, Stubbs learned that she was sexually active. Stubbs told her, "If I find out that you had sex with someone else, I'm coming for what's mine." After she had sex again, Stubbs arranged to take her to the movies. Witness 1 and her mother met Stubbs in a parking lot and the witness got into his car. Instead of going to the movies, Stubbs took the girl to his house and led her into the guest room. He said, "I'm going to show you how to please a man without having to put your mouth on his penis." Stubbs put on a condom and had sex with her. She lay there looking up, crying until Stubbs was done. He told her to get dressed and took her home.

Witness 2 began attending the church with her family when she was about thirteen years old. She testified that to her family, Stubbs was the pastor and "Apostle," which meant that he received directives or guidance from God and that the advice he gave was the "will of God." He told her that he would be a father to her. When she was seventeen or eighteen, Stubbs taught her "how to kiss" in his car behind a Publix supermarket. On another occasion, while she was babysitting his children, he brought her into his garage, pulled his pants down and had her sit on his lap. Later, he took her into a bedroom and placed his penis on her vagina, saying things like, "See, I'm not getting hard," and "How does that feel?" Witness 2 testified that Stubbs said he was trying to "teach" her. Witness 2 was uncomfortable but did not question or resist Stubbs's actions because he was her pastor.

The two witnesses' testimony was admissible under section 90.404(2), Florida Statutes (2017). Subsection 90.404(2)(b) is directly applicable to this case because Stubbs was charged with "child molestation" within the meaning of the statute, which provides:

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.

§ 90.404(2)(b) 1., Fla. Stat. (2017). Stubbs was charged with unlawful sexual activity with a minor in violation of section 794.05(1), Florida Statutes, which is one of the crimes enumerated in subsection 90.404(2)(b)2. as falling within the definition of "child molestation." By describing violations of section 794.05, Witness 1 testified about acts that fall within the statutory definition of "child molestation." Section 90.404(2)(b) "has been construed to allow the admission of evidence of other acts of child molestation to corroborate the victim's testimony by showing that the accused had a propensity for such criminal conduct." Pitts v. State , 263 So.3d 834, 839 (Fla. 1st DCA 2019) (internal quotation marks and citation omitted). To the extent that Witness 2 may have described acts that occurred after she was eighteen, the testimony was admissible under either section 90.404(2)(a) or (2)(c) 1. See Whisby v. State , 262 So.3d 228, 231 (Fla. 1st DCA 2018) (observing that under section 90.404(2)(c), "evidence of a collateral sexual offense 'may be considered for its bearing on any matter to which it is relevant.' ").

The supreme court confronted section 90.404(2) in McLean v. State , 934 So.2d 1248 (Fla. 2006). The court identified relevancy as a "threshold question" under the statute:

[T]he similarity of the prior act and the charged offense remains part of a court's analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be "substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence."

Id. at 1259 (quoting § 90.403, Fla. Stat. (2005) ); see also Peralta-Morales v. State , 143 So.3d 483 (Fla. 1st DCA 2014). The supreme court set out factors that a trial court should consider in deciding whether the probative value of acts admissible under section 90.404(2) is substantially outweighed by unfair prejudice to the defendant under section 90.403 :

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.

McLean , 934 So.2d at 1262.

The two-step process when a trial court confronts a section 90.404(2) issue is that the "court first must find that the state proved the other molestations by clear and convincing evidence." State v. Sandoval , 125 So.3d 213, 216 (Fla. 4th DCA 2013). Next, the court "must assess whether the probative value of the other molestations is substantially outweighed by the danger of unfair prejudice" based on the framework contained in the quote from McLean directly above this paragraph. Id.

We agree with the analysis of the trial judge regarding the points of similarity between the charged crime and the acts described by the two witnesses:

• All of the girls were teenagers between the ages of 16-19;
• All of the girls were members of the defendant's church;
• The defendant had a relationship of trust with each girl;
• The defendant expressed that his conduct was justified through religious teaching or sexual education;
• The defendant held a position of religious authority in each girl's life, and each girl believed that the defendant's actions were sanctioned by God;
• The defendant used his position in the church to gain access to the girls alone and to gain their acquiescence;
• The defendant was involved in the everyday decision making of each girl; and • The defendant had union with or penetrated the vagina of each girl.

The most significant linking factor between the charged crime and the collateral evidence is Stubbs' exploitation of his role as a trusted religious figure in the girls' lives to gain trust and access and to nullify the girls' objections. There was no abuse of discretion in the circuit court's finding that the collateral crimes were established by clear and convincing evidence. The evidence was admissible under section 90.404(2)(b) and (c). See State v. Tameris , 54 So.3d 619 (Fla. 5th DCA 2011).

On this record, the collateral act evidence did not become a feature of the trial or overwhelm the evidence of the charged crime. The relevance of the testimony to establish Stubbs' exploitation of his religious position was not outweighed by unfair prejudice. See § 90.403, Fla. Stat. (2017).

Affirmed.

Warner and Levine, JJ., concur.

      We find no error in the other point raised on appeal-that the trial court excluded evidence of the victim's untruthfulness as being too remote. The impeaching witnesses' testimony concerned events that occurred six and eight years before trial and pertained to the victim's reputation when she was an adolescent in high school. See Carter v. State , 485 So.2d 1292, 1295 (Fla. 4th DCA 1986) (no error in excluding character testimony based on contact over four years before trial, at a time when the witness whose veracity was challenged was "an adolescent undergoing the various physical and psychological changes that accompany the maturing process.").

      We note that Chapter 794 defines consent as "intelligent, knowing, and voluntary consent and does not include coerced submission." § 794.011(1)(a), Fla. Stat. (2017). Arguably, Witness 2 was coerced into submitting to Stubbs because of his religious authority over her.


author: Metzger, Elizabeth A., Associate Judge.

text:
    Stuart N. BORNSTEIN, an individual, and Granada, LLC, a Florida Limited Liability Company, Appellants, v. Ira MARCUS, an individual, and Ira Marcus P.A., a Florida Corporation, Appellees.
    No. 4D18-277
    District Court of Appeal of Florida, Fourth District.
    [May 8, 2019]
    Xavier A. Franco, George E. McArdle and Michael A. Mullavey of McArdle, Pérez & Franco P.L., Coral Gables, and John P. Seiler of Seiler Sautter Zaden Rimes & Wahlbrink, Fort Lauderdale, for appellants.
    Robert M. Klein, Mark J. Sullivan and Andrew M. Feldman of Klein Glasser Park & Lowe, P.L., Miami, for appellees.
   Metzger, Elizabeth A., Associate Judge.

Appellants, Granada, LLC and Stuart Bornstein, appeal the trial court's final judgment entered in favor of appellees, Ira Marcus and Ira Marcus, P.A., following a bench trial. We affirm the final judgment and write solely to address the court's conclusions regarding appellants' breach of contract claims.

As set forth in our previous opinion concerning this case:

In 2009, appellant Stuart Bornstein, Alan Potamkin, and their company Granada, LLC, entered into a retainer and contingent fee agreement with appellee Ira Marcus, P.A., for legal representation with a claim against the City of Coral Gables. Pursuant to the fee agreement, the firm would be entitled to 40% of the gross recovery. Additionally, the firm was to be paid two retainers totaling $ 50,000 ... [which] would be applied as a credit against any recovery.

Bornstein v. Marcus , 169 So.3d 1239, 1241 (Fla. 4th DCA 2015) (emphasis added).

The retainer and contingency fee agreement ("Fee Agreement") included the following hypothetical, which showed how the $ 50,000 retainer credit would affect Ira Marcus, P.A.'s (the "firm") take-home fee amount if there was a recovery from the City of Coral Gables:

Ex: Gross recovery: $1,000,000.00 Less Fees (40%) $400,000.00 _____________ $600,000.00 Credit client +$50,000.00 _____________ Net Attorneys Fees $350,000.00 Adjusted Gross to client $650,000.00 Less Outstanding costs: -$3000.00 _____________ Net to Client: $647,000.00

In 2007, Granada, LLC sued the City of Coral Gables. Ultimately, the City offered to settle Granada, LLC's claims for $ 1.45 million. Per the Fee Agreement, the firm was entitled to retain $ 530,000 of the settlement proceeds (after accounting for the $ 50,000 retainer credit). To assist appellants in reaching a settlement agreement with the City, the firm agreed to reduce its attorney's fees. To that end, the firm sent Mr. Bornstein, among others, a distribution sheet, which outlined how the $ 1.45 million settlement from the City would be divided ("Distribution Agreement"). The Distribution Agreement specifically noted, among other things, that Granada, LLC would "net" $ 880,816.01 and the firm would retain $ 450,000 in "Adjusted Attorneys Fees".

Appellant Bornstein signed the Distribution Agreement both as principal of Granada, LLC and in his individual capacity. In doing so, Bornstein acknowledged he "[r]eviewed, accepted and agreed to" the Distribution Agreement. Thereafter, Granada, LLC accepted the City's $ 1.45 million settlement offer. The firm distributed the settlement proceeds exactly as outlined in the Distribution Agreement.

It is undisputed Granada, LLC netted $ 880,816.01 of the settlement proceeds received from the City per the terms of the Distribution Agreement. Despite this, Bornstein complained the settlement distribution was incorrect. Specifically, Bornstein asserted the firm was contractually obligated to refund appellants the $ 50,000 retainer initially addressed in the Fee Agreement. Appellee Marcus and the firm disagreed, maintaining the Distribution Agreement controlled, noting it clearly set forth the firm's entitlement to retain a flat $ 450,000 in attorney's fees.

The parties were unable to work out their differences regarding the $ 50,000 retainer paid to the firm. As a result, appellants filed a complaint against appellees for breach of contract, breach of fiduciary duty, conversion, and civil theft. The case proceeded to a non-jury trial. Both sides presented evidence regarding the events leading up to Granada, LLC's settlement with the City, the Fee Agreement, and the creation of the Distribution Agreement. Mr. Potamkin, a nonparty, and Bornstein testified, claiming the $ 50,000 "retainer credit" noted within the Fee Agreement was owed by the firm to appellants as a refund. At the same time, both Potamkin and Bornstein admitted the $ 50,000 retainer was "nonrefundable" under the terms of the Fee Agreement.

Marcus testified that the parties agreed his firm would net $ 450,000 from the City settlement proceeds as a fee after consideration of the retainer. Marcus also testified that all of the parties intended for the Distribution Agreement to supersede the contingency fee and retainer credit portions of the Fee Agreement. Marcus conceded the parties intended for the remainder of the Fee Agreement to remain intact.

At the conclusion of the trial, the court entered final judgment in favor of appellees. With respect to the breach of contract claims, the court found there was no breach as the Distribution Agreement created a new flat fee agreement, via novation, which unambiguously provided that the firm was entitled to retain $ 450,000 for attorney's fees from the settlement proceeds.

Appellants argue that the Distribution Agreement did not qualify as a novation based on the parties' lack of intent to completely replace the Fee Agreement and, therefore, the court's ruling on the breach of contract claim was erroneous. At best, appellants argue that the evidence at trial established the Distribution Agreement constituted a modification of the Fee Agreement which left the $ 50,000 retainer credit provision intact.

We first consider whether the Distribution Agreement constituted a novation. "A novation is a mutual agreement between the parties concerned for the discharge of a valid existing obligation by the substitution of a new valid obligation ...." Miami Nat'l Bank v. Forecast Constr. Corp. , 366 So.2d 1202, 1204 (Fla. 3d DCA 1979). Under Florida law, four elements are required to effectuate the novation of a binding contract: "(1) the existence of a previously valid contract; (2) the agreement to make a new contract; (3) the intent to extinguish the original contractual obligation; and (4) the validity of the new contract." S.N.W. Corp. v. Hauser , 461 So.2d 188, 189 (Fla. 4th DCA 1984).

In contrast, a modification merely replaces some terms of a valid and existing agreement while keeping those not abrogated by the modification in effect. See Franz Tractor Co. v. J.I. Case Co. , 566 So.2d 524, 526 (Fla. 2d DCA 1990). "It is well established that the parties to a contract can discharge or modify the contract, however made or evidenced, through a subsequent agreement." St. Joe Corp. v. McIver , 875 So.2d 375, 381-82 (Fla. 2004). This includes contracts for attorney's fees. Lugassy v. Indep. Fire Ins. Co. , 636 So.2d 1332, 1335 (Fla. 1994).

Here, although the court's novation finding is entitled to great deference, we are compelled to disagree with such finding as all parties testified that the Distribution Agreement was meant to modify, not completely replace, the Fee Agreement. The question then becomes whether the trial court reached the right result on appellants' breach of contract claims, but for the wrong reasons. See Dade Cty. Sch. Bd. v. Radio Station WQBA , 731 So.2d 638, 644-45 (Fla. 1999). We answer that question in the affirmative because the record evidence shows the parties intended to modify the contingency fee and retainer credit provisions together.

When determining the scope of a modification to a contract, the following principles control: (1) "individual terms of a contract are not to be considered in isolation, but as a whole and in relation to one another"; (2) "the proper resolution of any inconsistency ... is best determined by the manner in which the parties actually perform under it"; and (3) "an amendment to an agreement is designed to serve some useful function, and its existence is strong evidence, therefore, that the contract was changed from what the parties believed and intended was provided before." S. Fla. Beverage Corp. v. Figueredo , 409 So.2d 490, 495-96 (Fla. 3d DCA 1981). "When it is clear from the language or overall scheme or plan of a contract that the parties intended for various provisions to operate independently of each other, the court must enforce the contract as written." Moore v. State Farm Mut. Auto. Ins. Co. , 916 So.2d 871, 875 (Fla. 2d DCA 2005).

In the instant case, the contingency fee provision, read in conjunction with the retainer fee credit provision of the Fee Agreement, served as an initial rubric for determining the net compensation the firm would be entitled to be paid from the litigation proceeds. In turn, the subsequent Distribution Agreement specifically removed any reference to use of a contingency fee or application of a retainer credit and clearly delineated that the firm was entitled to net $ 450,000 from the litigation proceeds. The parties' performance affirms that the Distribution Agreement governed the firm's total fee compensation. The Distribution Agreement clearly and unambiguously modified both the contingency fee and retainer credit provisions of the Fee Agreement.

Accordingly, even though the trial court found the Distribution Agreement constituted a novation versus a modification of the Fee Agreement, we find, pursuant to the tipsy coachman doctrine, that the court did not err when it concluded appellees did not breach the contract entered into with appellants regarding attorney's fees. See Dade Cty. Sch. Bd. , 731 So.2d at 644-45.

Affirmed.

Gerber, C.J., and Conner, J., concur.


author: Per Curiam.

text:
    PLAZA LA MER, INC. and South Square Development, Inc., Appellants, v. DELRAY PROPERTY INVESTMENTS, INC., SOSQ Property Investments, Inc., Hatim Hashwani, Harry Hahamovitch, Robert Geiserman, HHH Development Group, Inc., and HHH Financial Corporation, Inc., Appellees.
    Nos. 4D16-2462 4D18-1068 4D18-1099
    District Court of Appeal of Florida, Fourth District.
    [May 8, 2019]
    Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, and Robert A. Sweetapple of Sweetapple, Broeker & Varkas, P.L., Boca Raton, for appellants.
    Stephen A. Mendelsohn of Greenberg Traurig, P.A., Boca Raton, and Elliot H. Scherker and Brigid F. Cech Samole of Greenberg Traurig, P.A., Miami, for appellees Delray Property Investments, Inc., and SOSQ Property Investments, Inc.
   Per Curiam.

In 2015, we described this case as the "oldest active case in Palm Beach County." Hahamovitch v. Delray Prop. Invs., Inc. , 165 So.3d 676, 678 n.1 (Fla. 4th DCA 2015). The case returns but limited to the circuit court's final judgment awarding attorney's fees and costs to the appellees. We affirm.

After we affirmed the court's final judgment, the case returned to the circuit court and both appellants and appellees sought attorney's fees and costs. The court held a hearing and entered an Order on Joint Motions on the Parties' Post-Trial Motions for Attorney's Fees. The court determined (i) the appellees were the prevailing parties on certain issues; and (ii) the appellants did not prevail on any claim that included an entitlement to attorney's fees.

The appellants appealed. After oral argument, we concluded the court's order was final for the appellants but non-final for the appellees. As a result, we relinquished jurisdiction to the circuit court to determine the amount of fees due to the appellees for those claims on which the court had determined them to be the prevailing party.

The circuit court held several hearings after we relinquished jurisdiction. At the start of one of those hearings, counsel for the appellants stipulated that the appellants were not challenging the time entries, the hourly rate, or number of hours billed by counsel for the appellees. And the appellees agreed that they were not seeking any fees incurred before February 2008. Finally, the parties also stipulated that the appellants were not contesting the amount of costs due to the appellees. The appellants' cost challenge was limited to the "allocation" of those costs.

Ultimately, the court issued a final judgment awarding the appellees $ 1,203,852.47 in attorney's fees and costs. Of that amount, the appellees were awarded $ 969,571.88 from Plaza La Mer and South Square Development, Inc. The remaining $ 234,280.59 was due solely from Plaza La Mer.

We review the circuit court's allocation of attorney's fees for an abuse of discretion. Glantz & Glantz, P.A. v. Chinchilla , 17 So.3d 711, 713 (Fla. 4th DCA 2009) (citations omitted).

The appellants challenge the court's allocation of fees and costs and argue that the "entire litigation was actually two similar but mis-joined cases." The appellees disagree and argue that the "appellants have asserted throughout this litigation that their accounting/declaratory judgment claims were integrated and could not be placed into separate categories." On the facts here, we conclude the court did not abuse its discretion when it awarded the appellees $ 969,571.88 in fees and costs from Plaza La Mer and South Square Development, Inc., and $ 234,280.59 solely from Plaza La Mer.

Here, the appellants jointly prosecuted claims against the appellees. They shared counsel and legal arguments. Since this case was filed in 1995, the case has proceeded jointly. The case effectively proceeded as one plaintiff against one defendant. The appellants themselves jointly sought an award of attorney's fees, and the appellants sought to recover the fees and costs "incurred in the defense and prosecution of this action." The appellants jointly requested an evidentiary hearing to prove the time their attorney expended and to establish their costs.

From the start, the appellants presented singular arguments and shared a legal strategy, witnesses, lawyers, motions, and briefs. This case did not involve distinct parties presenting separate and distinct claims for damages. This involved two parties acting as one, making it nearly impossible to apportion fees absent arbitrarily assigning each half the burden. See Franzen v. Lacuna Golf Ltd. P'ship , 717 So.2d 1090, 1093 (Fla. 4th DCA 1998) ("[T]he trial court is not required to apportion attorney's fees where work for one claim cannot be distinguished from work on other claims.").

The circuit court's final judgment is affirmed in all respects.

Affirmed.

Taylor, May and Kuntz, JJ., concur.


author: Per Curiam. Conner, J., dissenting.

text:
    Domenic GROSSO a/k/a Domenic L. Grosso, Appellant, v. HSBC BANK USA, N.A., AS TRUSTEE on Behalf OF ACE SECURITIES CORP., Appellee.
    No. 4D17-2874
    District Court of Appeal of Florida, Fourth District.
    [May 8, 2019]
    ON MOTION FOR REHEARING
   Per Curiam.

We deny the bank's motion for rehearing, but withdraw our previously issued opinion and substitute the following in its place.

The homeowner appeals an order denying his motion for attorney's fees following the bank's voluntary dismissal of its foreclosure action. We reverse because the voluntary dismissal rendered the homeowner the prevailing party for purposes of attorney's fees.

HSBC Bank filed a foreclosure complaint against the homeowner, alleging it was the owner and holder of the note and mortgage. HSBC further alleged it was entitled to attorney's fees under the contract. A copy of the note attached to the complaint listed DB Home Lending LLC as the lender and the homeowner as the borrower. The note contained a specific endorsement by DB Home Lending to HSBC.

The homeowner filed an answer and affirmative defenses. In his affirmative defenses, the homeowner stated that the bank lacked standing, the bank did not have legal rights to enforce the note and mortgage, and the endorsement on the note was not valid and authentic. The homeowner also requested attorney's fees.

A year after filing the complaint, HSBC voluntarily dismissed the case without prejudice. The homeowner moved for prevailing party attorney's fees under the contract. Specifically, the homeowner alleged in the motion for attorney's fees that "[t]he Mortgage that was the subject matter of this lawsuit provided for costs and expenses if the Note holder was to enforce the Note" and that section 57.105(7), Florida Statutes, made this provision applicable to the homeowner. HSBC opposed the motion, arguing that the homeowner's lack of standing defense precluded him from recovering fees. After a hearing, the trial court denied the homeowner's motion, finding that he failed to prove that he and HSBC were parties to the contract.

A trial court's determination of whether a party is entitled to attorney's fees based on a fee provision in the mortgage is reviewed de novo. Bank of N.Y. Mellon Tr. Co., N.A. v. Fitzgerald , 215 So.3d 116, 118 (Fla. 3d DCA 2017). Section 57.105(7), Florida Statutes, operates to make a unilateral attorney's fees provision in a mortgage contract reciprocal. In order for a prevailing party to avail itself of section 57.105(7), both the movant and the opponent must be parties to the contract containing the fee provision. Madl v. Wells Fargo Bank, N.A. , 244 So.3d 1134, 1138 (Fla. 5th DCA 2017).

In denying the motion for fees, the trial court relied on Florida Community Bank, N.A. v. Red Road Residential, LLC , 197 So.3d 1112 (Fla. 3d DCA 2016). In Red Road Residential , the borrower maintained throughout the litigation, including in sworn discovery, that she never signed the mortgage. Id. at 1114. Rather than litigating its claim against the borrower, the bank ultimately dismissed her from the lawsuit with prejudice. Id. Unlike Red Road Residential , the instant case did not involve any sworn discovery and the dismissal was without prejudice.

We find instructive Rodriguez v. Wilmington Savings Fund Society, FSB as Trustee for Stanwich Mortgage Loan Trust A , No. 4D18-310, 270 So.3d 367, 2018 WL 6528491 (Fla. 4th DCA Dec. 12, 2018). In that case, a borrower was found to be entitled to prevailing party fees after the bank's voluntary dismissal even though she had challenged the bank's standing throughout the lawsuit. This court found that "the parties never litigated the merits of [the bank's] standing below, and the trial court never made a finding that the Borrower was not a party to the note or mortgage." Id. at *2. Because the bank voluntarily dismissed the action without the trial court resolving the standing issue on the merits, the borrower was entitled to fees. Id. See also Wells Fargo Bank, N.A. v. Elkind , 254 So.3d 1153, 1154 (Fla. 4th DCA 2018) (finding borrower who raised lack of standing as affirmative defense was entitled to prevailing party attorney's fees following the bank's voluntary dismissal because the parties never litigated standing and "the trial court never made a finding that the bank or the borrower were not parties to the contract"); Harris v. Bank of N.Y. Mellon , No. 2D17-2555, --- So.3d ----, ----, 2018 WL 6816177, at *4 (Fla. 2d DCA Dec. 28, 2018) ("[P]roof of standing is not required to establish a contractual relationship between the parties.").

In this case, HSBC voluntarily dismissed its complaint, thus rendering the homeowner the prevailing party for purposes of attorney's fees. Notably, the trial court never made a judicial determination that HSBC or the homeowner was not a party to the contract. Additionally, HSBC

maintained in its complaint a right to enforce the contract. Significantly, the copy of the note attached to the complaint contained a specific endorsement by the original lender to HSBC and listed the homeowner as the borrower. This should be sufficient record evidence to demonstrate that HSBC and the homeowner were parties to the underlying contract so as to justify attorney's fees pursuant to section 57.105(7). See Mihalyi v. LaSalle Bank, N.A. , 162 So.3d 113, 115 (Fla. 4th DCA 2014) (implying that an evidentiary hearing is required for determining the amount of fees, not for determining entitlement to fees); Hensley v. Eckerhart , 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ("A request for attorney's fees should not result in a second major litigation.").

The cases the dissent relies on are distinguishable, as none involve a voluntary dismissal without prejudice like the instant case. The dissent attempts to distinguish Rodriguez and Elkind by stating that those cases dealt with judicial estoppel or prevailing parties, and not with the burden for attorney's fees. But cases with the same facts should get the same result. A voluntary dismissal, without a judicial determination, should allow reliance on the reciprocal attorney's fees provision of section 57.105(7).

Based on the foregoing authority, the homeowner was entitled to prevailing party attorney's fees. We reverse and remand for the trial court to grant attorney's fees and determine the reasonableness of the amount sought.

Reversed and remanded with instructions.

Levine and Forst, JJ., concur.

Conner, J., dissents with opinion.

Conner, J., dissenting.

I respectfully dissent for two reasons: (1) the trial court properly determined that no evidence was presented by the homeowner establishing the homeowner and HSBC were parties to a contract with a fee provision; and (2) the two cases from this District primarily relied upon by the majority are inapplicable to the specific argument made by HSBC in the trial court, which the trial court found to be dispositive.

Our recent opinions in Rodriguez v. Wilmington Savings Fund Society, FSB as Trustee for Stanwich Mortgage Loan Trust A , No. 4D18-310, 270 So.3d 367, 2018 WL 6528491 (Fla. 4th DCA Dec. 12, 2018) and Wells Fargo Bank, N.A. v. Elkind , 254 So.3d 1153 (Fla. 4th DCA 2018), are inapposite because those opinions address issues concerning determination of a prevailing party and judicial estoppel, but they do not address the specific argument raised in the trial court by HSBC as to who has the burden of proof regarding a contractual relationship.

I respectfully submit the case law on the issue of attorney's fees after a voluntary dismissal is confusing. In part, this is because appellate courts have frequently failed to articulate with precision the distinction in law between who is a "prevailing party" in litigation and who is a "party" to a contract. Moreover, standing, in the context of foreclosures, can be confusing because there are two phases of standing (at the time suit is filed and at the time of trial), which can be pertinent to determining who prevails on a legal issue. Additionally, the case law frequently fails to emphasize that promissory notes are a special specie of contracts, involving a special set of legal principles. For example, a person who does not properly obtain ownership of a blank indorsed note can enforce it because he or she is in possession of it.

See § 673.3011, Fla. Stat. (2018). Presumably, enforcement of the note with an attorney fee provision allows such possessor to also receive attorney's fees. At first blush, it seems implausible to say a person who is not in the chain of ownership can be considered in privity with the maker of the note, however, simple possession of contract (the blank indorsed note) provides the privity, even though there is no meeting of the minds. I also submit that much of the confusion stems from a failure to properly analyze and apply legal principles regarding judicial estoppel.

Our case law regarding entitlement to attorney's fees after a voluntary dismissal has properly discerned that in terms of analysis, there is a difference between cases where the trial court has made evidentiary determinations regarding standing and cases where such evidentiary determinations have not been made. See Rodriguez , 270 So.3d at 368, 2018 WL 6528491 at *1 ; Elkind , 254 So.3d at 1154. However, trial judges are frequently led down the wrong path by attorneys who fail to recognize the difference between who is the prevailing party in litigation and who has the burden of proof for entitlement to fees. More importantly, if a party to a suit seeks attorney's fees pursuant to a contract clause, but is not in a contractual relationship with the opposing party in the suit from whom fees are sought, it is improper to award attorney's fees based on the contract provision. Novastar Mortg., Inc. v. Strassburger , 855 So.2d 130, 131 (Fla. 4th DCA 2003) ("Because the Strassburgers were not parties to the mortgage, they were not entitled to recover attorney's fees under the mortgage."); see also Gibson v. Courtois , 539 So.2d 459, 460 (Fla. 1989) (determining that the fact that no contract was formed was dispositive on the issue of fees based on a contract provision); Fitzgerald , 215 So.3d at 121 ("Because no contract existed between the parties, the trial court erred in awarding Fitzgerald attorney's fees pursuant to section 57.105(7) [.]"); HFC Collection Ctr., Inc. v. Alexander , 190 So.3d 1114, 1117 (Fla. 5th DCA 2016) (holding that a party cannot employ section 57.105(7) as a basis for fees after proving the opposing party never became a party to the contract).

In granting rehearing and denying fees to the homeowner in this case, the trial court relied upon Judge Scales's insightful opinion in Florida Community Bank, N.A. v. Red Road Residential, LLC , 197 So.3d 1112 (Fla. 3d DCA 2016). There, the bank filed a voluntary dismissal after one of the defendants, Rios, filed a motion for fees as a sanction under section 57.105(1), Florida Statutes. Id. at 1114. After the voluntary dismissal, Rios moved for fees under both section 57.105(1) and section 57.105(7) (the contract reciprocity fee provision). Id. The trial court denied fees under section 57.105(1), but granted fees under section 57.105(7). Id. Notably, Judge Scales observed that "[a]s section 57.105(7) plainly requires, to gain the benefit of its substantive entitlement to prevailing party fees, the party seeking the benefit of reciprocity must be a party to the contract containing the fee provision ." Id. at 1115 (emphasis added). After making the observation, the opinion goes on to explain:

Ada Rios does not appear to contest this proposition. Rather, in oral argument, she sought to distinguish the reasoning in Novastar [ v. Strassburger ] by arguing that, in Novastar and other similar cases, the trial court actually adjudicated that the party seeking fees was not a party to the contract. Ada Rios points out that, in this case, the Bank voluntarily dismissed its lawsuit before such an adjudication occurred. Ada Rios argues that, as the prevailing party (by virtue of the Bank's dismissal), she should be the beneficiary of the fact that her status as a mortgagor specifically was not adjudicated.
Not surprisingly, the Bank takes the contrary position in the form of this syllogism: because Ada Rios's principal defense was that she was not a party to the mortgage, and because Ada prevailed, therefore, for the purposes of section 57.105(7), Ada Rios was not a party to the mortgage.
Regarding whether Ada Rios was a party to the mortgage, we note that both the Bank and Ada Rios take positions opposite to the positions they took before the Bank's voluntary dismissal of Ada Rios from the lawsuit. While both the Bank and Ada Rios suggest that the other party should be estopped from making its respective argument about whether Ada was a party to the mortgage, we view the case not from the parties' estoppel perspectives, but from the perspective of burden: which party had the threshold burden of establishing whether Ada Rios was a party to the mortgage ?
In our view, in order to avail herself of section 57.105(7)'s reciprocity, Ada Rios, as the prevailing party and movant seeking fees under the mortgage's fee provision , had the threshold burden to plead and establish that she was a party to the mortgage containing the fee provision. Ada Rios's status as the lawsuit's prevailing party does not equate to Ada Rios being a mortgagor under the mortgage so as to trigger section 57.105(7)'s reciprocity provision.

Id. at 1115-16 (emphases added) (footnote omitted) (citations omitted). The Third District reversed the order awarding fees and remanded the case for further proceedings because "[t]he burden lies with the prevailing party to establish, as a threshold matter, her status as a party to the contract." Id. at 1116. I agree with the Third District that in litigation seeking to enforce a contract (which includes foreclosure cases), establishing one party as the prevailing party in the suit does not necessarily establish that the prevailing party is also in a contractual relationship with the opposing party. See id.

In the trial court below, HSBC consistently argued in opposition to the homeowner's motion for fees, as well as in support of its motion for rehearing, that in order to prove entitlement, the homeowner had the evidentiary burden of proving not only that the homeowner was the prevailing party, but also that the homeowner and HSBC were in a contractual relationship while the foreclosure suit was being litigated. The trial court granted fees to the homeowner, after initially determining that Red Road Residential was factually distinguishable from this case. HSBC moved for rehearing contending the trial court erred in its interpretation and application of Red Road Residential . After entertaining argument on the motion for rehearing, the trial court granted rehearing and specifically set a new evidentiary hearing on the fee motion. At the conclusion of the new hearing on the fee motion, the trial court found that

the Defendant [ (the homeowner) ] failed to prove that the Plaintiff [ (HSBC) ] and Defendant were parties to the note and mortgage. The Defendant's Answer denied paragraphs 3, 4, & 5 of Plaintiff's Complaint and Defendant's Affirmative Defense asserted the Defendant [sic] did not have standing to file the Complaint. These assertions have not been overcome by evidence to show the Plaintiff and Defendants were parties to the Contract.

My review of the transcript of the hearing confirms that the homeowner presented no evidence that he was in a contractual relationship with HSBC. Thus, it appears the trial court's finding was correct that there was no competent substantial evidence to support a determination that the homeowner and HSBC were parties to a contract which contained a provision of a fee award. Therefore, I contend that we have no legal basis to reverse the trial court. I disagree with the majority's conclusion that the copy of the note attached to the complaint provided "sufficient record evidence to demonstrate HSBC and the homeowner were parties to the underlying contract so as to justify attorney's fees pursuant to section 57.105(7)." When the issue of entitlement is uncontested, it is not uncommon for stipulations, admissions in pleadings, and affidavits to be used. When entitlement is contested, evidentiary hearings are required, with proof by testimony, exhibits, or both, unless summary judgment proceedings are properly invoked.

In addition to arguing the homeowner was not entitled to attorney's fees for failure to carry his burden and provide evidence of a contractual relationship, HSBC made arguments below and on appeal asserting the homeowner could not make a factual showing of entitlement based on principles of judicial estoppel. Such arguments were incorrect and distracting. Trial advocates are to be reminded:

In judicial proceedings, a party simply is not estopped from asserting a later inconsistent position (if that it can be called), unless the party's initial position was successfully maintained.

Leitman v. Boone , 439 So.2d 318, 322 (Fla. 3d DCA 1983).

I emphasize that judicial estoppel arguments in these fee cases are distracting, when the argument is inappropriate, for a reason. I said above that Elkind was inapposite for the disposition of this case. I was one of the panel members deciding Elkind . In going back and reviewing our analysis and the briefs submitted in that case, I now realize that a somewhat similar argument about the burden of proof in fee cases was made in Elkind , but the clarity of the argument was lost by infusing it with arguments about judicial estoppel and not as a stand-alone argument.

For the reasons I have discussed, I would affirm the trial court.


text:
    Jefty JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-538
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Antony P. Ryan, Regional Counsel, and Louis G. Carres, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

Jefty Joseph appeals his convictions for first-degree murder with a firearm, robbery with a firearm, kidnapping with a firearm, and grand theft of a motor vehicle. He specifically challenges the trial court's denial of his motion to suppress. We affirm.

A citizen informant called 911 and reported that three men -- two black men with dreadlocks and one white man -- went into an abandoned house, a shot was fired, and only the two black men came out. The informant also provided a description of a car and its license plate number. Law enforcement officers responded to the scene, observed the car described in the BOLO parked in a residential driveway approximately one half of a mile from the abandoned home, and confirmed that its license plate number matched the one given in the BOLO. The homeowner came outside and yelled to an officer that the car did not belong to him. He reported that two black males came from the car and were walking east. Joseph and his co-defendant, black men with dreadlocks, were spotted approximately 25 to 30 yards from the car walking east. No other people were around. A law enforcement officer drew and pointed his weapon and ordered them to stop. Joseph stopped and was placed in handcuffs, but the co-defendant fled. Shortly thereafter, Joseph was tentatively identified by a witness at a show-up. He was arrested and searched, and some of the victim's belongings were found in his pockets.

Prior to trial, Joseph moved to suppress evidence of the victim's possessions. His motion was denied. The jury returned a verdict of guilty as charged and he was sentenced to life in prison.

Joseph contends that several aspects of his search and seizure were unconstitutional. We disagree.

"Whether an officer's suspicion is reasonable [to support an investigatory stop] is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop." Exantus-Barr v. State , 193 So. 3d 936, 939 (Fla. 4th DCA 2016) (quoting Slydell v. State , 792 So. 2d 667, 671 (Fla. 4th DCA 2001) ).

First, the initial stop of Joseph was supported by reasonable suspicion, as he and the co-defendant matched the physical description of the suspects provided by a citizen informant, they were apprehended shortly after the crime and near the abandoned house, and they were the only two people outside in the crime scene area. See State v. Maynard , 783 So. 2d 226, 228 (Fla. 2001) (explaining that if the source of information contained in a BOLO is "a citizen informant, then the information from the tip ... would be considered at the high end of the reliability scale"); Sanchez v. State , 199 So. 3d 472, 475 (Fla. 4th DCA 2016) (explaining that relevant circumstances in determining the existence of reasonable suspicion to justify a stop may include the length of time and distance from the offense, and the absence of other persons in the vicinity of the offense, among other things). The fact that his shirt was a different color than was originally reported by the informant was insufficient to dispel suspicion, as he may have merely discarded the other shirt.

Second, it was reasonable for the officer to draw his weapon and place Joseph in handcuffs because he was suspected to be armed and his co-defendant fled. The drawn weapon and handcuffs did not convert the encounter into an arrest. See Reynolds v. State , 592 So. 2d 1082, 1084 (Fla. 1992) ("Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officers' safety or to thwart a suspect's attempt to flee."); State v. Leach , 170 So. 3d 56, 61 (Fla. 2d DCA 2015) (finding it was reasonable for officers to draw their weapons where defendant was a felony suspect, hiding at night, and officers could not determine whether he was armed, and noting that "[l]eaving their weapons holstered ... would have put the officers at an unnecessary risk").

Finally, the state proved by the searching detective's testimony that the search occurred after Joseph's arrest and was thus a valid search incident to arrest. The searching detective explained that department policy was that an individual is in custody when he is going to be taken to headquarters, and then he inventories what is on their person, and that he "in fact d[id] that with Mr. Joseph, inventor[ied] his pockets, before [he] took him up to turn him over to the detectives" at headquarters. See Pagan v. State , 830 So. 2d 792, 806 (Fla. 2002) (noting that, on appellate review, "the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling").

Accordingly, the evidence was obtained in a valid search and we affirm the trial court's denial of the motion to suppress.

Affirmed.

May and Klingensmith, JJ., concur.


author: Conner, J.

text:
    D.L.T., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2528
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

D.L.T., a child, appeals his disposition entered below in which the trial court departed from the recommendation for disposition by the Department of Juvenile Justice ("DJJ"). DJJ's predisposition report recommended commitment to a non-secure facility. The trial court committed D.L.T. to a high-risk commitment program, after determining he violated probation in multiple ways, including new law violations. At the time of disposition, D.L.T. was on probation for seven cases.

On appeal, D.L.T. argues that the trial court's explanation for departing from the DJJ's recommendation was inadequate under E.A.R. v. State , 4 So. 3d 614 (Fla. 2009). Specifically, he contends the trial court failed to articulate the potential lengths of stay associated with each level of restrictiveness, as well as the trial court's understanding of the treatment programs and services available at the various levels. Our review of the record confirms D.L.T.'s argument is correct. The problem is the record does not reflect that the defense preserved this particular argument which is now made for the first time on appeal.

Generally, "unpreserved claims of error cannot be raised on appeal absent fundamental error." State v. Kettell , 980 So. 2d 1061, 1068 (Fla. 2008) (citing Castor v. State , 365 So. 2d 701, 703 (Fla. 1978) ). Although failure to comply with E.A.R. constitutes fundamental error, the absence of any objection at the time of disposition, followed by the failure to file a motion to correct a disposition error pursuant to Florida Rule of Juvenile Procedure 8.135(b), precludes consideration even of fundamental disposition errors on direct appeal. C.C. v. State , 150 So. 3d 216, 217 (Fla. 4th DCA 2014) ; A.L.B. v. State , 23 So. 3d 190, 191 (Fla. 1st DCA 2009) (affirming disposition despite fundamental error due to noncompliance with E.A.R. ).

However, we write to remind trial judges of what we said in D.V. v. State , 216 So. 3d 3 (Fla. 4th DCA 2017) :

In E.A.R. , the supreme court reined in the discretion of trial judges to deviate upward from the DJJ recommendations by requiring a significant level of detail supported by both the record of the disposition hearing and the characteristics of various restrictiveness levels. Applying the statutory framework, the supreme court determined that to deviate from a DJJ recommendation, the trial court must:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels ... including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential "lengths of stay" associated with each level, and the divergent treatment programs and services available to the juvenile at these levels (the DJJ possesses the expertise to provide this information); and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.
E.A.R. , 4 So.3d at 638 ; see also B.N. v. State , 39 So. 3d 515, 517 (Fla. 4th DCA 2010).
Additionally, the trial court's explanation for deviating from the DJJ's recommendation
must provide a legally sufficient foundation for "disregarding" the DJJ's professional assessment and PDR [Predisposition Report] by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child's programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.
Id.
"While a trial court, working routinely with juveniles, may have insight into the types of programs provided at certain juvenile detention facilities, E.A.R. requires a trial court place that knowledge on the record if the judge intends to rely on these types of findings to support deviations ." D.R.R. v. State , 94 So. 3d 680, 683 (Fla. 4th DCA 2012) (internal citation omitted). These reasons must sufficiently explain why the court's decision provides for the child "the most appropriate dispositional service in the least restrictive available setting."
E.A.R. , 4 So. 3d at 638 (quoting § 985.03(21)).

Id. at 10 (first alteration in original) (emphases added).

We also write to remind the trial court and appellate defense counsel of the requirements to preserve disposition errors and the necessity to comply with Florida Rule of Juvenile Procedure 8.135(b) to preserve relief for fundamental error.

Affirmed.

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


author: Warner, J.

text:
    Dalia A. DIPPOLITO, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2486
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, and Gregory C. Rosenfeld of the Law Offices of Greg Rosenfeld, P.A., West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for appellee.
    ON MOTION FOR REHEARING AND REHEARING EN BANC
   Warner, J.

We deny the motion for rehearing and rehearing en banc, but we substitute our previous opinion with the following.

Dalia Dippolito appeals her conviction for solicitation to commit first-degree murder of her husband for which she was sentenced to sixteen years in prison. She raises three issues: 1) whether the trial court erred in allowing the State to present evidence of uncharged crimes; 2) whether the conduct of law enforcement constituted objective entrapment, which the court erred in refusing to submit to the jury; and 3) whether the court erred in allowing the jury to consider unsubstantiated bad acts evidence. As to the first issue, the presentation of the uncharged crime evidence occurred after the defendant opened the door to the evidence; thus, the court did not abuse its discretion in allowing the evidence. As to the second issue, the issue of objective entrapment is a matter of law for the court and not the jury, and the court did not err in denying the appellant's claim of objective entrapment. As to the third issue, the bad act evidence was inextricably intertwined with other evidence and was necessary to show the context out of which the charged crime arose. We thus affirm as to all issues raised.

This is an appeal of the third trial of appellant. This court reversed the first trial based upon an error in jury selection. See Dippolito v. State , 143 So. 3d 1080 (Fla. 4th DCA 2014). The second trial resulted in a hung jury. As set forth in our former opinion, the basic facts of the charge are as follows:

In the late summer of 2009, appellant's lover approached the Boynton Beach Police Department and reported that appellant was planning to kill her husband. An investigation ensued, during which police videotaped incriminating meetings between appellant and her lover, as well as between appellant and a purported hit man, who was in reality an undercover officer. The hit man agreed to shoot and kill appellant's husband in their home and make the killing look like part of a burglary.
Subsequently, police staged a fake crime scene at appellant's home and informed her that her husband had been killed in the manner described by the hit man. Appellant's reaction was videotaped by the police and by the television show "Cops," which was then filming the Boynton Beach Police Department. Appellant was subsequently taken to the police station and interviewed. The police eventually told appellant that her husband was alive and revealed the hit man was an undercover officer. Appellant maintained her innocence.
She was charged with solicitation to commit first degree murder with a firearm.

Id. at 1081.

After the reversal of the first conviction in Dippolito I , the defense filed a motion to dismiss based on objective entrapment due to allegations of BBPD's misconduct in the investigation; claims of BBPD's failure to investigate her lover, who told the police of Dippolito's murder plan; an assertion that the lover did not wish to cooperate; and an allegation of BBPD's failure to supervise the lover. The trial court conducted an evidentiary hearing and denied the motion to dismiss, holding that the conduct of the police did not amount to objective entrapment. Appellant filed a petition for writ of prohibition with this court, arguing that denial of dismissal was improper based upon objective entrapment. Neither in the trial court nor in this court did appellant argue that the issue was one for the jury. This court dismissed the petition.

Prior to the second trial, appellant moved in limine to prevent the State from introducing evidence that Dippolito had previously unsuccessfully attempted to poison her husband with antifreeze. The State stipulated that it would not admit evidence relating to the poisoning allegation. The trial court agreed, although noting that the ruling could change depending on the evidence presented at trial. At trial, the jury was deadlocked, and a mistrial was declared.

Prior to the third trial, appellant also moved the court for an order precluding the State from introducing evidence of collateral bad acts. She argued that the collateral bad acts were not "inextricably intertwined" with the charged offense because the State was previously able to present its case during the second trial without relying on the prior bad acts evidence. The trial court denied the motions.

At the third trial, the jury heard extensive evidence of appellant's conduct both before and after her lover approached the police to inform them of her plans to kill her husband. Much of it involved police-recorded conversations between appellant and her lover after the lover agreed to become an informant. When appellant called the lover as a witness in her case, the State sought, on cross-examination, to question him about appellant's prior admission of attempting to poison her husband. The court ruled the testimony was admissible for impeachment purposes of the lover because the defense had opened the door when the lover testified that he didn't believe Dippolito actually wanted to have her husband killed. The court allowed the State to ask the lover whether appellant had told him that she had previously tried to poison her husband using antifreeze. The lover responded that she had.

At the conclusion, despite the fact that the court had already held an evidentiary hearing and determined that there was no objective entrapment, appellant requested a jury instruction on objective entrapment, which required the jury to determine whether the police conduct was so egregious that it offended notions of justice and fairness. The court denied the instruction. The jury convicted her as charged, and the court sentenced her to sixteen years in prison. She appeals her conviction.

In her first issue on appeal, Dippolito argues the court improperly allowed the State to introduce evidence that she told her lover that she had previously tried to poison her husband with antifreeze. Questions about the admissibility of evidence are within the discretion of the trial judge, as limited by the rules of evidence. Nardone v. State , 798 So. 2d 870, 874 (Fla. 4th DCA 2001). While she contends that this court found the testimony inadmissible in Dippolito I , we did not expressly decide that issue. There, the defense argued that the jury venire had been tainted because they had all heard one juror say that she had heard Dippolito had attempted to poison her husband. We ruled that the trial court erred by failing to strike the jury panel after hearing the allegation. Dippolito I , 143 So. 3d at 1085. We did not rule that the evidence could not be admitted under any circumstances.

When ruling on the pre-trial motion in limine regarding the poisoning, the court notified the parties that the ruling was subject to change if something occurred during the trial to cause the judge to rethink the earlier ruling. Something did occur during trial to change the ruling-the defense elicited testimony from the lover that he didn't believe that appellant actually wanted to kill her husband. Defense counsel thus "opened the door" for impeachment of the lover with evidence that appellant had told him of prior attempts to kill her husband. As the court explained in Ramirez v. State , 739 So. 2d 568, 579 (Fla. 1999) :

As an evidentiary principle, the concept of "opening the door" allows the admission of otherwise inadmissible testimony to "qualify, explain, or limit" testimony or evidence previously admitted. Tompkins v. State , 502 So. 2d 415, 419 (Fla. 1986) ; see Huff v. State , 495 So. 2d 145, 150 (Fla. 1986) ; Blair v. State , 406 So. 2d 1103, 1106 (Fla. 1981).
The concept of "opening the door" is "based on considerations of fairness and the truth-seeking function of a trial." Bozeman v. State , 698 So. 2d 629, 631 (Fla. 4th DCA 1997).

Here, we conclude that the court did not abuse its discretion in admitting the evidence of appellant's earlier attempt to poison her husband. That evidence was necessary to limit the lover's testimony on direct. It also explains why the lover initially approached the police-because he did actually believe appellant was going to kill her husband.

As to her second issue, appellant contends that law enforcement's conduct in this case amounted to objective entrapment as a matter of law. She argues that law enforcement's treatment of her lover was outrageous conduct. She contends, as well, that the police participation in the "Cops" TV program constituted objective entrapment. The review of the denial of a motion to dismiss founded on objective entrapment is de novo. Bist v. State , 35 So. 3d 936, 939 (Fla. 5th DCA 2010).

In considering objective entrapment, courts look to the totality of the circumstances, focusing on "whether the government conduct 'so offends decency or a sense of justice that judicial power may not be exercised to obtain a conviction.' " Hernandez v. State , 17 So. 3d 748, 751 (Fla. 5th DCA 2009) (quoting State v. Blanco , 896 So. 2d 900, 901 (Fla. 4th DCA 2005) ). The types of conduct which have led to a finding of objective entrapment are relatively limited. The illegal manufacturing of crack cocaine by police to be used in police-initiated sale transactions was found to be objective entrapment in State v. Williams , 623 So. 2d 462 (Fla. 1993). In State v. Glosson , 462 So. 2d 1082 (Fla. 1985), the Florida Supreme Court found that the police tactic of using a contingent fee arrangement for the testimony of an informant constituted a due process violation because it manufactured, rather than detected, crime. In State v. Hunter , 586 So. 2d 319 (Fla. 1991), the supreme court found objective entrapment where the informant's contract with police required him to obtain at least four kilograms of cocaine within a certain time period in order to reduce his sentence, thus providing an incentive for the informant to target otherwise innocent persons. In Dial v. State , 799 So. 2d 407, 410 (Fla. 4th DCA 2001), we held that an "informant's conduct ..., targeting an innocent person under her supervision and exploiting her weaknesses without any efforts from law enforcement to avoid entrapment or monitor the informant's activities," constituted objective entrapment.

None of these circumstances appear in this case. Although appellant asserts that the police threatened the lover to gain his cooperation, the trial court found that he was not threatened by police. It was the lover who first approached the police with his concern that appellant would kill her husband, not the other way around. The lover was not attempting to reduce his own exposure to a criminal sentence, nor was he being paid by law enforcement. And during cross-examination, the lover admitted that he was not actually threatened with prosecution.

Appellant also asserts that the failure to supervise the lover, who then exerted substantial pressure on appellant, constituted objective entrapment. Failure to supervise a CI will not support dismissal unless the lack of supervision results in unscrupulous conduct by the informant. Bist , 35 So. 3d at 941. Without more, this failure does not rise to the level of a due process violation. See State v. Figuereo , 761 So. 2d 1252, 1255 (Fla. 3d DCA 2000). The mere fact that the lover made repeated phone calls to appellant without the police monitoring them is insufficient to show entrapment.

With respect to the "Cops" television filming, the police did not involve the show in the surveillance or investigation of appellant until after appellant had already taken all the steps to solicit the murder of her husband. It was only at the point that she was being arrested, after the crime was complete, that the TV program filmed the arrest. As the crime of solicitation to commit murder was completed before "Cops" was involved, the agreement between the police and the show with respect to the filming did not constitute a due process violation.

Relatedly, appellant contends that the court erred in refusing to submit her objective entrapment defense to the jury. The appellant had already moved to dismiss based upon objective entrapment, and the trial court held an evidentiary hearing and denied the motion based upon the court's thorough review of the evidence.

Objective entrapment is a matter of law for the court to decide. See Cruz v. State , 465 So. 2d 516, 521 (Fla. 1985). Appellant points to Delice v. State , 878 So. 2d 465 (Fla. 4th DCA 2004), for the proposition that the defense should be submitted to the jury, but Delice does not go that far. In Delice , the defendant claimed that a confidential informant raped her, causing her to fear the CI and making her susceptible to the CI's inducements. Id. at 467. The opinion states, "With respect to objective entrapment, we find Delice's allegation of rape to be unsubstantiated and believe this to be a jury question." Id. at 468. At the most, this would permit a trial court to submit discrete factual disputes to the jury, but the ultimate decision of whether the conduct of law enforcement constitutes objective entrapment remains for the court, not a jury, to decide. Moreover, there is no indication in the opinion that the court had already determined the factual issues and denied the objective entrapment claim on its merits prior to trial, as occurred in this case.

The supreme court has clearly stated, both in Cruz and again in Munoz v. State , 629 So. 2d 90 (Fla. 1993), that objective entrapment is a question of law for the court. In Munoz , the court again explained that conduct of law enforcement which violates due process can constitute entrapment, which is a decision made by a judge not a jury, because it is an affront to the judicial system, regardless of its implications to the individual defendant. Objective entrapment does not involve elements of a crime but focuses on the due process rights of all citizens to be free of egregious police conduct. "While we must not tie law enforcement's hands in combatting crime, there are instances where law enforcement's conduct cannot be countenanced and the courts will not permit the government to invoke the judicial process to obtain a conviction." Id. at 98 (quoting State v. Williams , 623 So 2d 462, 465 (Fla. 1993) ). "The principle of due process imposes upon the courts 'the responsibility to conduct "an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend [the] canons of decency and fairness ...." ' " Soohoo v. State , 737 So. 2d 1108, 1110-11 (Fla. 4th DCA 1999) (quoting Williams , 623 So. 2d at 465 ). Even if there were disputed issues of fact, the trial court resolved those issues on the motion to dismiss filed by the appellant and determined that law enforcement's conduct was not so outrageous as to offend due process principles. See Blanco , 896 So. 2d at 902 (reversing a trial court's dismissal of charges on objective entrapment grounds where there was a disputed issue of fact between the defendant and the State, and noting that even if the defendant's factual allegations were assumed as true, the law enforcement's conduct was not so egregious as to require dismissal of the charges).

The United States Supreme Court has held that the Fifth and Sixth Amendments to the Constitution require that all elements of a crime must be submitted to the jury for determination, but for other procedures, including affirmative defenses, the Constitution does not require a jury determination. See United States v. Gaudin , 515 U.S. 506, 511, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) ; see State v. Ellis , 723 So. 2d 187, 189-90 (Fla. 1998). Assuming that objective entrapment is an affirmative defense, it clearly does not involve the determination of an essential element of the crimes with which appellant was charged. Therefore, there is no right to a jury determination of the issue.

The matter of objective entrapment is a matter of law for the court, and the court determined the issue without assistance from the jury. We find no mandatory requirement that the issue be submitted to the jury for resolution. While we would not preclude a trial court, in its discretion, from submitting discrete factual disputes to a jury in the court's determination of the due process issue of objective entrapment, we hold that there is no constitutional obligation to submit the claim to the jury.

Finally, appellant claims that the court allowed into evidence several collateral crimes which were not inextricably intertwined with the solicitation to commit murder. These included: 1) theft of money from her husband which was allegedly earmarked for restitution in a criminal case against the husband; 2) that she attempted to hire another individual to kill her husband; 3) that she illegally planted drugs in her husband's car to cause him to violate probation; 4) an attempted theft of a gun from her lover; 5) attempting to defraud her husband out of the title to his home; and 6) her relationship with another lover and various texts between them, some of which discuss her efforts to get rid of her husband.

"The admissibility of collateral crime evidence is within the discretion of the trial court, and the trial court's ruling shall not be disturbed upon review absent an abuse of that discretion." Hodges v. State , 885 So. 2d 338, 357 (Fla. 2004). "[C]ollateral crimes evidence is 'inextricably intertwined' if the evidence is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s)." Ballard v. State , 66 So. 3d 912, 918 (Fla. 2011).

The court did not abuse its discretion in admitting this evidence. Without reference to these other crimes, it would have been impossible to give a complete or intelligent account of the criminal episode and how it developed over time. The text messages were entered into evidence to show that Dippolito had an ongoing plot, first to have her husband's probation revoked in order to obtain his assets. And later, when she failed to get his probation revoked, she plotted to murder him. The evidence was relevant and established the entire context out of which the charged crimes arose.

For the foregoing reasons, we affirm appellant's conviction and sentence.

Ciklin and Levine, JJ., concur.


text:
    Herman HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2249
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Richard L. Rosenbaum of Law Offices of Richard Rosenbaum, Fort Lauderdale, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
    CONCESSION OF ERROR
   Per Curiam.

Herman Holmes appeals the summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Holmes alleged five claims of ineffective assistance of counsel. We reverse the portion of the trial court's order that denied claim three and remand to allow Holmes an opportunity to amend that claim. We affirm, without further discussion, the court's summary denial of the remaining claims.

Holmes was convicted of two counts of robbery with a firearm following a jury trial. The trial court sentenced him to life in prison as a prison releasee reoffender (PRR). This court affirmed on direct appeal. See Holmes v. State , 168 So. 3d 1278 (Fla. 4th DCA 2015).

Holmes timely filed the instant rule 3.850 motion. In claim three, Holmes alleged that counsel was ineffective for misrepresenting the likelihood of success at trial and for failing to discuss PRR sanctions with him. He maintained that counsel failed to inform him that he faced mandatory life imprisonment if he was convicted at trial, and that counsel informed him that his maximum exposure was twelve years. He further alleged that this resulted in his rejection of a twelve-year plea offer. He argued that if counsel properly advised him, he would have "readily" accepted the plea offer. See Alcorn v. State , 121 So. 3d 419, 422 (Fla. 2013).

Following this court's order to show cause, the State argued that Holmes failed to allege two out of the four pleading requirements in Alcorn . See id. Specifically, Holmes failed to allege that the State would not have withdrawn the plea offer and that the trial court would have accepted the offer. See id. ; see also Ramos v. State , 141 So. 3d 643, 645 (Fla. 4th DCA 2014) ("His claim is also facially insufficient under Alcorn because he does not state that the prosecutor would not have withdrawn the offer and that the court would have accepted it.").

However, the State concedes, and we agree that pursuant to Spera v. State , 971 So. 2d 754 (Fla. 2007), Holmes should have been permitted an opportunity to amend his claim to render it legally sufficient. See, e.g. , Brown v. State , 243 So. 3d 1000, 1002 (Fla. 4th DCA 2018) (reversing and remanding with leave to amend claim which was facially insufficient under Alcorn ).

Therefore, we reverse the summary denial and remand with directions for the trial court to provide Holmes sixty days to amend claim three of his motion, if he can do so in good faith. We affirm the summary denial of the remaining claims.

Affirmed in part, reversed in part, and remanded.

Gerber, C.J., Forst and Klingensmith, JJ., concur.


text:
    STATE of Florida, Appellant, v. Sherry CROSSLEY-ROBINSON, Appellee.
    No. 4D18-1393
    District Court of Appeal of Florida, Fourth District.
    [June 5, 2019]
    Ashley B. Moody, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellee.
   Gross, J.

The State appeals a downward departure sentence imposed on Sherry Crossley-Robinson after she entered an open plea of no contest to one count of attempted robbery and four counts of robbery (no weapon). The plea encompassed five cases involving four victims; the defendant was accused of robbing and attempting to rob four different banks in the Fort Lauderdale area over a six-month period.

We reverse the sentence in lower court case number 16-13124CF10A because the record fails to support the statutory factor the trial court relied upon to downwardly depart.

At a plea conference, the trial court advised the defendant that she faced a maximum of 15 years in prison for each count of robbery and a maximum sentence of 5 years for the attempted robbery. The court also told the defendant that the lowest permissible sentence under the scoresheet was 50.55 months in prison. The defendant stated that she understood and entered an open plea of no contest to all five counts, which the court accepted.

Next, the court addressed the defendant's motion for a downward departure sentence. One of the grounds raised for a downward departure was that the offenses were committed in an unsophisticated manner and were isolated incidents for which the defendant had shown remorse. See § 921.0026(2)(j), Fla. Stat. (2018). Another ground raised for a downward departure was that the defendant cooperated with the state to resolve the current offense or any other offense. § 921.0026(2)(i). After hearing testimony and argument, the circuit court determined that these grounds constituted valid statutory reasons to downwardly depart. The court sentenced the defendant to 364 days in jail, followed by two years of community control and ten years of probation on each of the four robbery counts. For the single count of attempted robbery, the court sentenced the defendant to 364 days in jail, followed by two years of community control and two years of probation. All counts on all cases were ordered to run concurrently. The State timely objected to the downward departure sentence and renewed its arguments for the record.

As we explained in DeSantis v. State , 240 So. 3d 751, 752-53 (Fla. 4th DCA 2018) :

We apply a mixed two-part review when analyzing a downward departure sentence. In the first step, the trial court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it. In reviewing the first step, we must determine whether competent substantial evidence supports the trial court's ruling.
In the second step, the trial court must decide whether to depart, i.e., whether departure is indeed the best sentencing option. This requires the trial court to weigh the totality of the circumstances, including aggravating and mitigating factors. We review this decision for an abuse of discretion, which occurs where no reasonable person would agree with the trial court's decision.

(Internal citations omitted).

The offenses committed were not "isolated incidents" within the meaning of section 921.0026(2)(j)

"A departure sentence may be imposed where the trial court finds that the 'offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.' " Staffney v. State , 826 So. 2d 509, 511 (Fla. 4th DCA 2002) (quoting § 921.0026(2)(j), Fla. Stat. (2001) ). "Thus, in order to support the downward departure based on this statutory factor, there must be competent substantial evidence that: (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant had shown remorse." Id. at 511-12. All three factors must be established to justify a departure under subsection 921.0026(2)(j).

The State does not dispute that the defendant has shown remorse for her crimes. Because we concluded that the offenses in this case were not isolated incidents, we do not reach the issue of whether the crimes were committed in an unsophisticated manner.

"Neither the legislature nor the courts have established a bright-line rule for determining whether an offense is an isolated incident." State v. Waterman , 12 So. 3d 1265, 1268 (Fla. 4th DCA 2009). "Instead, the courts have set forth the standard that [a] defendant's extensive prior criminal record precludes a showing that an offense was an isolated incident." Id. (internal quotations and citation omitted). "An offense is not isolated if a defendant has an extensive prior criminal record." Bellamy v. State , 199 So. 3d 480, 483 (Fla. 4th DCA 2016). Crucial to this case, "[a]n offense also is not isolated if it involves multiple incidents." Id. (citing State v. Strawser , 921 So. 2d 705, 707 (Fla. 4th DCA 2006) ("We recognize that, as there were multiple incidents involving one of the victims over a period of several months, the isolated incident aspect ... has not been met.")).

In this case, there were multiple bank robberies during a six-month period. Nevertheless, the defendant argues that these incidents were isolated, citing State v. Randall , 746 So. 2d 550 (Fla. 5th DCA 1999), and State v. Merritt , 714 So. 2d 1153 (Fla. 5th DCA 2010), where the fifth district found the offenses to be isolated even though there were multiple criminal incidents. However, Randall and Merritt are distinguishable from the present case because in those cases, the incidents took place within a short period of time. See Randall , 746 So. 2d at 552 (four separate sales of cocaine within a thirteen-day period to the same person were "isolated incidents, close in time."); Merritt , 714 So. 2d at 1153 (three sex acts involving a single victim were "isolated" because "they were something the defendant had never engaged in before, in his 25 year lifetime, and they took place in a relatively short span of time.").

Here, the incidents took place over a six-month period and involved four different victims, so they could not be considered "isolated incidents" within the meaning of the statute. See Strawser , 921 So. 2d at 707 (multiple incidents involving one of the victims over a period of several months not an isolated incident); State v. Walters , 12 So. 3d 298, 301 (Fla. 3d DCA 2009) (fifty separate money laundering transactions over the course of more than six months not isolated); State v. Munro , 903 So. 2d 381, 382 (Fla. 2d DCA 2005) (three incidents of molestation over a three-week span not isolated); State v. White , 894 So. 2d 293, 294 (Fla. 2d DCA 2005) (multiple sales of cocaine during a fourth-month time frame not isolated).

Because the criminal offenses here at issue were not "isolated incidents" under the statute, the trial court was precluded from relying on section 921.0026(2)(j) as the basis for a downward departure sentence.

We reverse the sentence in case number 16-13124CF10A and remand to the circuit court for resentencing.

Taylor and Levine, JJ., concur.

      As the State concedes, we have jurisdiction over only the one case mentioned in this paragraph. A notice of appeal was filed only in that case. No notices of appeal were filed for the other four cases, which were separately filed in the circuit court.

      We agree with the State that the trial court did not decide to depart because the "defendant cooperated with the state to resolve the current offense ." § 921.0026(2)(i) (emphasis added). Rather, it appears that the court followed the case law which holds that "[a] departure sentence is not warranted where a defendant merely cooperated after [the] offense was discovered because that cooperation did not solve a crime." State v. Johnson , 193 So. 3d 32, 35 (Fla. 3d DCA 2016) (internal quotation and citation omitted); see also State v. Coleman , 780 So. 2d 1004, 1005 (Fla. 4th DCA 2001) (cooperation not supported where defendant "did not cooperate with the police until after he was arrested and only after being confronted with incriminating evidence"); State v. Wheeler , 180 So. 3d 1117, 1120 n.1 (Fla. 5th DCA 2015) (defendant did not cooperate with the State to resolve the current offense where "[a]t the time the police questioned him, they were already aware of his crimes"); State v. Bleckinger , 746 So. 2d 553, 555-556 (Fla. 5th DCA 1999) (confessing after arrest and entering a guilty plea is not sufficient to constitute cooperation as a mitigating factor). Regarding the court's apparent finding that an incident regarding the defendant's child was a valid reason to depart, we hold that the defendant's telephonic reporting of a molestation of her child, a crime which she did not witness or participate in, and which predated some of her offenses, was insufficient to establish "cooperation" with the State under section 921.0026(2)(i).