author: VILLANTI, Judge. LUCAS, Judge, Concurring in part and dissenting in part.

text:
    Estella PURDUE, as Personal Representative of the Estate of Leroy Purdue, Deceased, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA, Inc., Appellees.
    Case No. 2D18-333
    District Court of Appeal of Florida, Second District.
    Opinion filed November 14, 2018.
    Lorenzo Williams of Gary, Williams, Parenti, Watson & Gary, P.L.L.C., Stuart, for Appellant.
    Marie A. Borland and Troy A. Fuhrman of Hill Ward Henderson, Tampa; and Charles R.A. Morse of Jones Day, New York, New York, for Appellee R.J. Reynolds Tobacco Company.
    Geoffrey J. Michael of Arnold & Porter Kay Scholer LLP, Washington, D.C., for Appellee Philip Morris USA, Inc.
   VILLANTI, Judge.

Estella Purdue appeals the order that denied her motion to vacate a prior order that dismissed her case against R.J. Reynolds Tobacco Company and Philip Morris USA, Inc., for lack of prosecution. Because the trial court failed to hold an evidentiary hearing to address disputed issues of fact concerning whether Purdue received notice of the impending dismissal, we reverse and remand for further proceedings.

Purdue sued R.J. Reynolds and Philip Morris, among others, on January 10, 2008, in an Engle progeny case. Shortly after the case was filed, the defendants and Purdue's counsel entered into a "Standstill Agreement," pursuant to which this case was treated as stayed by the parties. The trial court, however, was never advised of the Standstill Agreement, and there was no formal stay in place.

The trial court's docket shows that Purdue filed a notice of serving expert witness interrogatories on March 2, 2011. Over a year later, on September 10, 2012, substituted counsel for Purdue filed a notice of designation of email address. Between September 10, 2012, and August 2013, no record activity of any kind occurred in the case.

Based on the lack of any record activity, the trial court clerk made an entry in the docket on August 21, 2013, stating that he had mailed notices of lack of prosecution to "all parties." However, copies of the notices that were mailed were not filed in the court file.

Two months later on October 22, 2013, four separate documents, each entitled "Notice of Lack of Prosecution," were filed in the court file. These notices, which were dated August 21, 2013, were addressed to Brown & Williamson Tobacco Corporation, American Tobacco Company, John Doe Corporation, and Philip Morris USA, Inc., and provided that the action would be dismissed without further notice or hearing unless a party showed good cause in writing "at least five days before the hearing on the motion or prior to October 22, 2013," why the action should remain pending. The record contains no explanation as to why these notices were not filed in the court file until sixty days after they were allegedly mailed. Notably, none of the filed notices were addressed to Purdue or her counsel.

When no party filed any objection to the dismissal or engaged in any record activity during the sixty days after the notices of lack of prosecution were sent, the trial court summarily dismissed the case under a "Master Dismissal Order" dated October 28, 2013. The "Master Dismissal Order" dismissed forty-seven separate cases that were identified on an attached list-all for lack of prosecution-and did not indicate if or how the order was transmitted to any of the parties or attorneys affected by it.

Twenty-eight months later on February 23, 2016, Purdue filed a motion to vacate the dismissal under Florida Rule of Civil Procedure 1.540. In her motion, she asserted that neither she nor her counsel had received either the notice of lack of prosecution or the master dismissal order. In support of her motion, she filed the affidavit of Attorney Paul McMahon, in which he alleged that neither he nor his office had ever received either the notice of lack of prosecution or the master dismissal order. Purdue also filed the affidavit of Attorney Donald Watson, in which he alleged that he had no knowledge of ever receiving a copy of the notice of lack of prosecution or the master dismissal order and further that no copy of either document could be located anywhere in the law firm's files. Purdue sought to vacate the dismissal order as a clerical mistake under rule 1.540(a), as the product of excusable neglect under rule 1.540(b)(1), or as void under rule 1.540(b)(4).

Despite the existence of the Standstill Agreement, under which this case was stayed as between the parties, R.J. Reynolds and Philip Morris objected to Purdue's motion, arguing that the order of dismissal did not contain a clerical error and was not void. They also argued that the motion to vacate was untimely under rule 1.540(b)(1) and that the attorneys' affidavits were insufficient to establish that they had not received the notice of lack of prosecution and the dismissal order. Without providing the rationale for its ruling, the trial court denied Purdue's motion to vacate. On appeal, Purdue again argues that she is entitled to relief on each of these grounds. We agree, but only in part.

First, Purdue is not entitled to relief under rule 1.540(a) because the clerk's alleged failure to mail the notice of lack of prosecution and/or the dismissal order to Purdue is not a "clerical error" as contemplated by that rule. Rule 1.540(a) provides relief from "[c]lerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission." The language of the rule contemplates a mistake or error in the order or judgment itself-not in the process or procedure of transmitting the order. Further, the errors contemplated by the rule are only those in form, not substance. As this court has said, "[t]he 'clerical mistakes' referred to by rule 1.540(a) are only 'errors or mistakes arising from accidental slip or omission, and not errors or mistakes in the [s]ubstance of what is decided by the judgment or order.' " Byers v. Callahan, 848 So.2d 1180, 1184 (Fla. 2d DCA 2003) (second alteration in original) (quoting Town of Hialeah Gardens v. Hendry, 376 So.2d 1162, 1164 (Fla. 1979) ). Hence, the rule is essentially designed to correct typographical errors and the like rather than to address due process violations or substantive errors in a judgment.

Here, Purdue does not allege that there is an error in the order of dismissal itself. Thus, she has not alleged an error that is cognizable under rule 1.540(a). Her reliance on DiPiazza v. Palm Beach Mall, Inc., 722 So.2d 831 (Fla. 2d DCA 1998), where the order at issue accidentally dismissed all defendants rather than only one, and Underwriters at Lloyd's London v. Rolly Marine Service, Inc., 475 So.2d 265 (Fla. 4th DCA 1985), where a mistake in an order entered by the clerk caused the case to be dismissed rather than transferred, is unavailing because those cases did involve actual errors in the orders themselves rather than in the process of transmitting them. Accordingly, Purdue is not entitled to relief under rule 1.540(a).

Second, Purdue is not entitled to relief under rule 1.540(b)(1) because her motion was untimely under that subsection. It is true that "[a] party can seek relief under rule 1.540(b) when he or she does not receive a copy of an order entered by the court." Waters v. Childers, 198 So.3d 1007, 1008 (Fla. 1st DCA 2016) ; see also Liberty Mut. Ins. Co. v. Lyons, 622 So.2d 621, 622 (Fla. 5th DCA 1993) ("Generally, a prior judgment, decree or order must be set aside where there is excusable neglect in the form of a litigant's failure to receive notice of a pending hearing or trial."). However, a motion to vacate under rule 1.540(b)(1) must be filed within one year of the entry of the judgment, order, or decree. See Fla. R. Civ. P. 1.540(b)(1). So while Purdue's claim that she did not receive the master dismissal order is generally cognizable under rule 1.540(b)(1), her motion, filed twenty-eight months after the entry of that order, is untimely. See Renovaship, Inc. v. Quatremain, 208 So.3d 280, 284 (Fla. 3d DCA 2016) (refusing to consider a motion to vacate under rule 1.540(b)(1) based on the nonreceipt of an order when the motion was filed fifteen months after the dismissal was entered). Therefore, Purdue is not entitled to relief on this basis.

Finally, however, Purdue may be entitled to relief under rule 1.540(b)(4) if she can prove that the master dismissal order is void as having been entered without notice and an opportunity to be heard. While the simple lack of receipt of an order or judgment is not sufficient to render that order or judgment void, an order or judgment that was entered without notice and an opportunity to be heard is void as a violation of due process. See Renovaship, Inc., 208 So.3d at 285 (citing Curbelo v. Ullman, 571 So.2d 443, 445 (Fla. 1990) ). Hence, while the lack of receipt of a judgment or order arising out of a hearing of which the litigant had notice will not render a judgment or order void, lack of notice and an opportunity to be heard can, if proven, render the judgment or order void. Id. (distinguishing between entry of a judgment without any notice of the hearing, which rendered the judgment void, and entry of a judgment arising out of a hearing of which the litigant had notice but in which the litigant chose not to participate, which was not void). And when the facts concerning the receipt of the notice of the opportunity to be heard are disputed, the determination of whether an order is void can be resolved only after an evidentiary hearing. See, e.g., Bayview Loan Servicing, LLC v. Dzidzovic, 249 So.3d 1265, 1267-68 (Fla. 2d DCA 2018) ("Where a motion under rule 1.540(b) sets forth 'a colorable entitlement to relief,' the trial court should conduct an evidentiary hearing to determine whether such relief should be granted." (quoting Cottrell v. Taylor, Bean & Whitaker Mortg. Corp., 198 So.3d 688, 691 (Fla. 2d DCA 2016) ) ); Minda v. Minda, 190 So.3d 1126, 1128 (Fla. 2d DCA 2016) (holding that if a rule 1.540(b) motion alleges a colorable entitlement to relief and is not refuted by the record, the trial court should either hold an evidentiary hearing on the motion or grant relief (citing In re Guardianship of Schiavo, 800 So.2d 640, 644 (Fla. 2d DCA 2001) ) ); cf. Chancey v. Chancey, 880 So.2d 1281, 1282 (Fla. 2d DCA 2004) ("If a rule 1.540 motion alleges a colorable entitlement to relief, the circuit court should conduct a limited evidentiary hearing on the motion.").

Here, Purdue alleges in her motion that she did not receive the notice of lack of prosecution that warned of the pending dismissal and provided notice of the opportunity to be heard. If this allegation is true, then the master dismissal order was rendered without notice, the order would be void as entered in violation of due process, and Purdue would be entitled to relief. Hence, her motion alleges a colorable entitlement to relief that is not refuted by the record. Under these circumstances, Purdue was entitled to a limited evidentiary hearing on the issue of whether the master dismissal order should be vacated, and the trial court erred by summarily denying relief without holding such a hearing.

In defense of the trial court's order, R.J. Reynolds argues that the court properly denied the motion because Purdue did not serve it within a reasonable time. However, at least one court has held that a motion filed two years after entry of a judgment was filed within a reasonable time. See Polani v. Payne ex rel. Prudential Prop. & Cas. Ins. Co., 654 So.2d 202, 204 (Fla. 4th DCA 1995). Moreover, the Fifth District recently held that the question of whether a party has diligently sought relief under rule 1.540, i.e., acted within a reasonable time, is a matter best left to the discretion of the trial court. See Fields v. Beneficial Fla., Inc., 208 So.3d 278, 280 (Fla. 5th DCA 2016), review denied, No. SC17-278, 2017 WL 3866289 (Fla. Sept. 5, 2017) ; see also Dzidzovic, 249 So.3d at 1269 (remanding for an evidentiary hearing on whether a motion to vacate should have been granted and providing that "[w]e leave it to the trial court, on remand, to determine the timeliness of the motion" for determining whether it had been filed within a reasonable time). Accordingly, the question of whether Purdue's motion to vacate was brought within a reasonable time under all of the circumstances here is a matter that the trial court should address at the evidentiary hearing on remand.

Finally, we reject Purdue's assertions in this appeal that she is entitled to have this court simply vacate the order of dismissal because her evidence of nonreceipt is unrefuted. Here, there is a docket entry that states that the clerk of court mailed the notice of the lack of prosecution to "all parties," and the clerk is presumed to have properly discharged his duties. See Wells v. Thomas, 78 So.2d 378, 384 (Fla. 1954) ("We must presume that the Clerk performed his statutory duty, which was to mail the notice and certify thereto, or else certify that he had no addresses of record of the persons entitled to notice; and we think it is just as reasonable to infer that the notice to the appellee Hyslop was, in fact, mailed to him (as in the case of the other tax deed holder, Savage) and that the record thereof became misplaced, as it is to infer that the Clerk completely ignored his statutory duty. To do otherwise under the particular circumstances here present would amount to an imputation of fraud against the Clerk-and this we will not do in the absence of more compelling evidence."); Long v. Sphaler, 89 Fla. 499, 105 So. 101, 104 (1925) (same). Therefore, Purdue must present evidence to rebut the presumption that the clerk properly discharged his duties as documented in the docket.

Accordingly, on remand the trial court must conduct an evidentiary hearing to consider the veracity of Purdue's claim of nonreceipt of the notice of lack of prosecution and to determine whether her evidence is sufficient to overcome the presumption that the clerk properly mailed that notice. If Purdue satisfies the trial court during that hearing that neither she nor her trial counsel received the notice of lack of prosecution and that her delay in moving to set aside the dismissal was reasonable, Purdue is entitled to have the order of dismissal vacated. The trial court is free at the hearing to consider any additional testimony and evidence that the parties wish to present. If, on the other hand, Purdue does not so satisfy the trial court, the dismissal order should stand.

Reversed and remanded for further proceedings.

SLEET, J., Concurs.

LUCAS, J., Concurs in part and dissents in part with opinion.

LUCAS, Judge, Concurring in part and dissenting in part.

I concur with the majority's considered opinion in most respects. However, the court's decision to reverse and remand for an evidentiary hearing appears to turn on a question over whether Ms. Purdue's motion had been filed within a "reasonable time" under Florida Rule of Civil Procedure 1.540. That particular determination is one within the sound discretion of a trial judge to make on a case-by-case basis. See Deluca v. King, 197 So.3d 74, 75-76 (Fla. 2d DCA 2016) ("Generally, orders on 1.540(b) motions are reviewed for an abuse of discretion.... Whether a judgment is void for lack of personal jurisdiction is reviewed de novo." (first citing Phenion Dev. Grp., Inc. v. Love, 940 So.2d 1179, 1181 (Fla. 5th DCA 2006) ; then citing Wiggins v. Tigrent, Inc., 147 So.3d 76, 80 (Fla. 2d DCA 2014) ) ); Eduartez v. Fed. Nat'lMortg. Ass'n, 251 So.3d 227, 231 (Fla. 3d DCA 2018) (noting that a trial court's denial of a rule 1.540 motion "is generally reviewed for an abuse of discretion," but when the review "turns either on a purely legal, statutory construction or voidness issue, we review the rule 1.540 order de novo"). In my opinion, the trial judge was well within his discretion to dispense with Ms. Purdue's motion without an evidentiary hearing. Some further background will explain what informs that view.

As the majority notes, in 2008, the attorneys for the parties entered into what has been described as the Standstill Agreement, which was, in effect, an agreement to stay this proceeding, along with several other lawsuits. For reasons that have yet to be shared with any court or judge, neither the Standstill Agreement nor a proposed order to effectuate the agreement's stay was ever submitted to the trial court. Instead, the Standstill Agreement contemplated that Ms. Purdue's counsel would, from time to time, file something with the court in order to prevent precisely what eventually happened here (a dismissal for nonactivity). The parties to the agreement represented they understood "that additional documents will need to be filed to comply with the terms herein." And the Standstill Agreement specifically provided:

In all cases subject to the Standstill Agreement, Plaintiffs shall be permitted to file a notice every 6 months, or more often if required by the courts, to inform the courts that the cases should not be dismissed for want of prosecution. Plaintiffs shall be permitted to file additional documents, as often as they deem necessary, as long as the sole purpose of such filings is to prevent dismissals for want of prosecution.

Obviously, that didn't happen in Ms. Purdue's case.

For reasons that also remain unexplained (even after the submission of a motion, supporting affidavits, appellate briefs, and oral argument), Ms. Purdue's various lawyers did not file anything or check the court docket in her case for over two years. This, in spite of an agreement that all but directed them to do so. Indeed, Ms. Purdue's motion contained no substantive argument that it was being filed within a reasonable time. Nor did her appeal. So it is hard for me to find any fault with the trial judge's decision under these circumstances (much less a "gross abuse of discretion"); and I fail to see what purpose an evidentiary hearing could serve when the moving party has never articulated a reason for having one.

Rule 1.540(b)(4) can provide an avenue of relief if an attorney did not receive prior notice of an adverse judgment; but that avenue was only open for Ms. Purdue if her motion had been brought within a reasonable time of the dismissal order. Ms. Purdue's attorneys have not told this court, or the trial court below, how or why her motion was filed within a reasonable time, nor how the evidentiary hearing the majority is now ordering on remand will shed any light on her argument ... whatever that argument may end up being.

I would affirm the order below.

      We have jurisdiction. See Fla. R. App. P. 9.130(a)(5).

      Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).

      Interestingly, there is also no copy of any notice that was sent to R.J. Reynolds.

      Indeed, this ruling may even be subject to the enigmatically elevated "gross abuse of discretion" standard of review. See Coblentz v. State, 855 So.2d 681, 682 (Fla. 2d DCA 2003) ("Generally an order entered pursuant to Florida Rule of Civil Procedure 1.540(b) is reviewed under a gross abuse of discretion standard." (citing Tilden Groves Holding Corp. v. Orlando/Orange Cty. Expressway, 816 So.2d 658, 660 (Fla. 5th DCA 2002) ) ). As our former colleague, Judge Davis, astutely observed: "We have no definition of what a 'gross' abuse of discretion includes or how it differs from an abuse of discretion. We can only assume that it is more egregious than a typical abuse of discretion." Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 302 (Fla. 2d DCA 2004) (footnote omitted); see also Emmer v. Brucato, 813 So.2d 264, 265 n.1 (Fla. 5th DCA 2002) (querying that "if an abuse of discretion is an action no reasonable judge would take" what would constitute a gross abuse of discretion-one "only an extremely unreasonable judge would take"). Regardless of the standard's vagaries, it is clear our review here is supposed to be highly deferential to the trial court. The majority's pointing to one instance where an appellate court affirmed the granting of a rule 1.540 motion filed two years after the entry of a judgment, Polani v. Payne ex rel. Prudential Prop. & Cas. Ins. Co., 654 So.2d 202, 204 (Fla. 4th DCA 1995), to justify reversing this trial court's denial of a similarly timed motion does not comport with the heightened deference we should be giving.

      The Standstill Agreement was part of a larger agreement between the defendants and the law firm representing Ms. Purdue, which was entitled "Agreement on Engle Progeny Cases Filed by Gary Williams Firm."

      For better or worse, we are constrained by the precedent in our state to continue viewing a lack of sufficient notice surrounding a judgment's entry as akin to the judgment being "void." See Renovaship, Inc. v. Quatremain, 208 So.3d 280, 285 (Fla. 3d DCA 2016) (collecting cases and holding "[t]he general principle of law is well-settled: a final judgment entered without adequate notice of the hearing and an opportunity to be heard is void" (footnote omitted) ). In Florida, this pronouncement traces back to a statement in State ex rel. Fulton Bag & Cotton Mills v. Burnside, 153 Fla. 599, 15 So.2d 324, 326 (1943) ("It is settled law that where it appears that a court is legally organized and has jurisdiction of the subject matter and the adverse parties are given an opportunity to be heard as required by law, errors or irregularities, or even wrong doing [sic] in the proceedings, short of an illegal deprivation of an opportunity to be heard, will not render the judgment void."), which, in turn, was based on an unelaborated citation to Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926). First of all, Burnside's recitation notwithstanding, a judgment issued after a failure to furnish sufficient notice of a hearing would more properly be understood as one that has simply been entered in error or, at most, a "voidable" ruling. Cf. Wiggins, 147 So.3d at 81 (explaining that a "void judgment is so defective that it is deemed never to have had legal force and effect," while a "voidable judgment is a judgment that has been entered based upon some error in procedure that allows a party to have the judgment vacated" (quoting Sterling Factors Corp. v. U.S. Bank Nat'l Ass'n, 968 So.2d 658, 665 (Fla. 2d DCA 2007) ) ). Moreover, Burnside's pronouncement appears to have been a misreading of Malone's precedent. Malone concerned a commercial foreclosure proceeding that had been litigated in a court of chancery in which the distinction between "jurisdiction" as a general matter versus the jurisdiction of a court in equity was in dispute. 109 So. at 683-84. While the Malone court had much to say about the nature of jurisdiction-and whether a lack of jurisdiction renders a tribunal's orders void-none of that discussion pertained to the effect of a lack of notice within a proceeding (other than a brief mention within the opinion that there was no contention made about a lack of service or appearance by the defendant, id. at 687-88 ). In fact, Malone's opinion could have been better understood to limit the notion that a judgment is void to situations where a court acts beyond its subject matter jurisdiction or where there was a want of personal jurisdiction over a litigant. See id. at 685 ("To authorize the assertion that a judgment is void, it must have emanated from a court of limited jurisdiction not acting within its legitimate prerogative or from a court of general jurisdiction, where the parties are not actually or by legal construction before the court and subject to its jurisdiction."); see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (holding that a judgment entered when a tribunal does not have personal jurisdiction over the defendant is a violation of due process and is void).
      I point all this out only because our appellate courts have, at times, appended terms like "void" or "lack of jurisdiction" to rulings to indicate nothing more than their view that the ruling was especially wrong. The desire to find suitable words to convey a strong disagreement is certainly understandable; it would be better, though, if we were a little more selective with our nomenclature. Legal terms such as "void" and "jurisdiction" come with a long pedigree that give them specific meaning and effect. Preserving their clarity is important in this context especially because, as Ms. Purdue notes in this appeal, if we are to apply the term "void" in its most accurate sense, rule 1.540(b)'s "reasonable time" limitation would not apply to her motion-if indeed the dismissal order was truly "void." See Wiggins, 147 So.3d at 81 ("There is no time limitation on setting aside a void judgment." (citing Johnson v. State, Dep't of Revenue, ex rel. Lamontagne, 973 So.2d 1236, 1238 (Fla. 1st DCA 2008) ) ).


source: Caselaw Access Project

author: WALLIS, J.

license: Public Domain

text:
    Gregory Alan DUNCAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2486
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018
    Gregory Alan Duncan, Sneads, pro se.
    No Appearance for Appellee.
   WALLIS, J.

Gregory Duncan appeals the trial court's summary denial of his Motion for Relief from Judgment, Decrees, or Orders filed pursuant to Florida Rule of Civil Procedure 1.540(b). Because the trial court erred when it denied the motion without affording Appellant the opportunity to amend, we reverse and remand.

Appellant was convicted and sentenced for failing to obtain a Florida Driver's License or Identification Card within forty-eight hours of registering with the Sheriff's Office in violation of section 943.0435, Florida Statutes (2016). In his Rule 1.540(b) motion, Appellant alleges violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), because trial witnesses testified falsely, which resulted in a fraud being committed upon the trial court. The trial court denied Appellant's motion without elaboration.

Although Rule 1.540 is limited to civil causes of action, the Florida Supreme Court has stated that courts should treat an erroneously filed Rule 1.540 motion in a criminal case that collaterally attacks the criminal conviction as a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Steinhorst v. State, 636 So.2d 498, 500 (Fla. 1994) ("[T]he court below should have treated this as a 3.850 motion, which would not be barred as untimely or successive if 'facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence.' " (quoting Fla. R. Crim. P. 3.850(b)(1) ; and citing art. V, § 2(a), Fla. Const.) ); see also Cannon v. State, 206 So.3d 831, 833-34 (Fla. 1st DCA 2016) (holding the trial court should have treated a defendant's motion to set aside, which was made without reference to a rule, as a Rule 3.850 motion); Barrett v. State, 965 So.2d 1260, 1261 (Fla. 2d DCA 2007) ("Article V, section 2(a) of the Florida Constitution requires that no cause be dismissed because an improper remedy has been sought. Accordingly, the trial court should have considered whether Barrett had alleged sufficient facts to warrant relief and, if so, treated his motion as if the proper remedy had been sought."). Because Appellant's Rule 1.540(b) motion collaterally attacks his criminal conviction, the trial court should have treated the motion as filed pursuant to Rule 3.850.

However, treating the motion as a Rule 3.850 motion, Appellant failed to allege facially sufficient claims and include the contents and oath required by Rule 3.850. See Fla. R. Crim. P. 3.850(c). Under these circumstances, the trial court should have struck the motion as facially insufficient and granted Appellant the opportunity to amend. See Fla. R. Crim. P. 3.850(f)(2) ; Spera v. State, 971 So.2d 754, 761 (Fla. 2007) ("[W]hen a defendant's initial Rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule's or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.").

Accordingly, we reverse and remand this case for the trial court to treat the Rule 1.540(b) motion as a Rule 3.850 motion, strike the motion as insufficient, and grant Appellant the opportunity to file a facially sufficient Rule 3.850 motion. See Steinhorst, 636 So.2d at 500 ; Cannon, 206 So.3d at 833-34 ; Barrett, 965 So.2d at 1261.

REVERSED and REMANDED with Instructions.

EISNAUGLE and GROSSHANS, JJ., concur.


author: HARRIS, J.

text:
    Corey A. MINIX, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1432
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018
    Corey A. Minix, Lake City, pro se.
    No Appearance for Appellee.
   HARRIS, J.

Corey A. Minix appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motions for postconviction relief. We affirm the summary denial of all grounds raised in Minix's motions, except ground six of his first motion. In that ground, Minix alleged that his plea was involuntary because his trial counsel failed to investigate and raise a prescription defense to the charge of trafficking in a controlled substance. The postconviction court denied this claim, finding that Minix's voluntary plea waived his right to present defenses to a jury. Relying on Stano v. State, 520 So.2d 278 (Fla. 1988), the postconviction court held that Minix was attempting to go behind his plea and precluded him from contesting any events that occurred prior to the plea.

The postconviction court's reliance on Stano is misplaced in that a general waiver of defenses is insufficient to refute a more specific claim. See Prestano v. State, 210 So.3d 772, 773 (Fla. 5th DCA 2017). In this case, there was no specific discussion of the prescription defense during the plea colloquy and no indication that Minix was aware that a prescription defense could be a viable defense to the trafficking charges. See O'Hara v. State, 964 So.2d 839 (Fla. 2d DCA 2007) (extending prescription defense to prosecutions involving trafficking by possession); see also Wagner v. State, 88 So.3d 250, 252 (Fla. 4th DCA 2012) ("A valid prescription is a complete defense to trafficking and a defendant is entitled to a jury instruction on this defense.").

"A trial attorney's failure to investigate a factual defense ... which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction." Guzman-Aviles v. State, 226 So.3d 339, 342 (Fla. 5th DCA 2017) (quoting MacKinnon v. State, 39 So.3d 537, 538 (Fla. 5th DCA 2010) ). Since Minix had a potentially viable claim, he should have been given the opportunity to amend his rule 3.850 motion to allege the requisite prejudice required under Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). See Fla. R. Crim. P. 3.850(f)(2) ; Spera v. State, 971 So.2d 754, 761 (Fla. 2007).

Therefore, we reverse the summary denial as to ground six only and remand to the trial court to grant Minix leave to amend his rule 3.850 motion to state a sufficient claim.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

ORFINGER and EISNAUGLE, JJ., concur.


author: GROSSHANS, J.

text:
    Matthew G. GRIFFIN, Appellant, v. Homer DELOACH, in His Official Capacity as Sheriff of Putnam County, Appellee.
    Case No. 5D17-2449
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018 Rehearing Denied December 20, 2018
    Jeremiah S. Mulligan, of Coquina Law Group, St. Augustine, for Appellant.
    Mark E. Levitt and Marc A. Sugerman, of Allen, Norton & Blue, P.A., Winter Park, for Appellee.
   GROSSHANS, J.

In this appeal, Matthew Griffin challenges the final summary judgment entered by the trial court in favor of the Putnam County Sheriff's Office (Sheriff's Office) on Griffin's claim brought pursuant to section 112.3187 of the Florida Statutes (2015) (the Whistle-blower's Act). We affirm.

Griffin began working for the Sheriff's Office in 2009. In April of 2014, Griffin executed a search warrant at a home located in Putnam County. Based upon statements made by certain individuals during the search, Griffin and his partner suspected that a fellow officer had warned the home's residents that a warrant would soon be executed there. Griffin and his partner reported their suspicions to a supervisor who appeared "displeased," informing them that they should come back only when they had stronger claims.

In late June of that same year, Griffin received additional information that he believed strengthened his prior suspicions about his fellow officer. Within hours, he disclosed this new information to his supervisor who directed the allegations up the chain of command. An inquiry into the officer's actions commenced, and Griffin signed a confidentiality agreement as a witness in the investigation.

Roughly a week later, Griffin began recruiting an individual to assist in an unrelated drug investigation as a confidential informant. Concerned that the prospective informant's appearance at a dependency hearing would endanger her and undermine the drug investigation, Griffin appeared in person before the circuit court judge to ask that the prospective informant be excused from the hearing. While in court, Griffin appeared to represent that the prospective informant was, in fact, a confidential informant and under his protection. The judge called the Sheriff's Office after this hearing to inquire into Griffin's statements. Griffin was put on paid administrative leave later that day, and an investigation into his actions commenced in which all witnesses, including Griffin, were required to sign confidentiality agreements.

Homer Deloach, then a lead officer within the Sheriff's Office, was assigned to conduct the inquiry on both investigations. Deloach interviewed four people relevant to the search warrant incident and found the allegations against the accused officer unfounded. As to the investigation of Griffin, Deloach interviewed six people and ultimately sustained the allegations that Griffin had lied to a judge during the dependency hearing and also disclosed information to a close friend in violation of his confidentiality agreement.

Deloach included these findings in a report, which was forwarded to Griffin's District Commander. The District Commander recommended dismissal, and Griffin's Department Director and the Chief of Staff concurred.

At Griffin's request, a predetermination hearing was held to allow him to present a defense. Accompanied only by his father, Griffin attended the hearing and presented two written statements advancing his position. Ultimately, the three-member board conducting the hearing unanimously agreed with the disciplinary recommendation. The Sheriff later concurred in that recommendation, and Griffin was terminated on September 10, 2014.

Griffin timely filed a complaint alleging that he had been terminated in violation of the Whistle-blower's Act. The Sheriff's Office answered the complaint and subsequently filed a motion for summary judgment. After a hearing, the trial court granted the motion, ruling that Griffin both failed to establish a prima facie case under the Whistle-blower's Act and failed to present evidence to refute the Sheriff's Office's legitimate, non-retaliatory reason for discharging him. This appeal followed.

"The standard of review for a summary judgment is de novo." Garcia v. First Cmty. Ins., 241 So.3d 254, 256 (Fla. 3d DCA 2018) (citing Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) ).

The burden-shifting framework established in McDonnell Douglas applies to claims under the Whistle-blower's Act. Rustowicz v. N. Broward Hosp. Dist., 174 So.3d 414, 419 (Fla. 4th DCA 2015). "To establish a prima facie claim for retaliation under Florida's Whistle-blower Act, sections 112.3187 - 112.31895, Florida Statutes (2007), a plaintiff must demonstrate: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal relation between the two events." Fla. Dep't of Children & Families v. Shapiro, 68 So.3d 298, 305-06 (Fla. 4th DCA 2011) (citing Rice-Lamar v. City of Fort Lauderdale , 853 So.2d 1125, 1132-33 (Fla. 4th DCA 2003) ). "Once the prima facie case is established, the employer [has the burden to] proffer a legitimate, non-retaliatory reason for the adverse employment action." Rice-Lamar, 853 So.2d at 1133. "The plaintiff [then] bears the ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct." Id. Because the plaintiff bears the ultimate burden of proving pretext, an employer is entitled to a summary judgment where it proffers a legitimate, non-retaliatory reason for the adverse employment action and the plaintiff fails to come forward with evidence inconsistent with the proffered reason. See Valenzuela v. GlobeGround N. Am., LLC, 18 So.3d 17, 25-26 (Fla. 3d DCA 2009).

In this case, we conclude that the Sheriff's Office produced a legitimate, non-retaliatory reason for firing Griffin, i.e., that he was discharged after an independent investigation confirmed employment-related misconduct. The evidence presented indicated that Griffin had been initially investigated for lying to a judge and later for breaching his confidentiality agreement. Six different people were interviewed during the investigation, a recommendation for dismissal was made, and the recommendation was reviewed and accepted by six members of the Sheriff's Office not involved in Deloach's investigation of Griffin. Thus, the Sheriff's Office established a legitimate, non-retaliatory reason for the adverse employment action.

Griffin argues that the Sheriff's Office reached the wrong conclusion after the investigation, therefore an issue of material fact exists for jury consideration. However, a factually incorrect result after an employer's investigation does not, by itself, create a disputed factual issue, nor is it evidence of a pretext on the part of the Sheriff's Office. See Burley v. Nat'l Passenger Rail Corp., 801 F.3d 290 (D.C. Cir. 2015). Instead, a plaintiff must show that the employer is "making up or lying about the underlying facts that formed the predicate for the employment decision," the employer is egregiously wrong in its factual findings, or the "employer's investigation ... is so unsystematic and incomplete that a [jury] could conclude that the employer sought, not to discover the truth, but to cover up its own [prohibited conduct]." Id. at 296. We have thoroughly reviewed the record and conclude that none of the evidence relied upon by Griffin meets this criteria.

Therefore, we affirm the final summary judgment.

COHEN, C.J., and EDWARDS, J., concur.

      We set forth the facts in the light most favorable to Griffin, the nonmoving party. See Delandro v. Am.'s Mortg. Servicing, Inc., 674 So.2d 184, 186 (Fla. 3d DCA 1996) (citing Moore v. Morris , 475 So.2d 666, 668 (Fla. 1985) ).

      The record on appeal does not include a transcript of the hearing.

      McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

      Since we affirm on the issue of pretext, we do not reach the effect of the Supreme Court's ruling in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), on the proper standard of causation in claims brought under the Whistle-blower's Act.


author: EISNAUGLE, J.

text:
    Christopher M. BERGER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1313
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018 Rehearing Denied November 16, 2018
    Jason T. Forman, of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
    ON MOTION FOR REHEARING EN BANC
   EISNAUGLE, J.

We grant Appellant Christopher M. Berger's motion for rehearing en banc, withdraw our previous per curiam decision, and substitute the following opinion in its place.

Appellant appeals his convictions for traveling to meet a minor for illegal sexual conduct and attempted sexual battery on a person under twelve years of age. We write only to address Appellant's argument that the trial court erred when it denied his motion for judgment of acquittal on the charge of attempted sexual battery because he did not commit an overt act, relying on our decision in State v. Duke , 709 So.2d 580 (Fla. 5th DCA 1998). We conclude that Appellant committed an overt act, recede from Duke , and affirm.

The Undercover Law Enforcement Operation

Appellant responded to an advertisement on Craigslist for a sexual encounter with a man and woman. Although the ad itself made no reference to a minor, it was posted as part of an undercover sting operation looking for child predators.

A detective, posing as the father of a ten-year-old girl, responded to Appellant's e-mail explaining that he was looking for someone who would teach his ten-year-old daughter about sex. Although Appellant emphasizes that he initially thought he was responding to an ad for an encounter with an adult couple, he nevertheless promptly indicated his interest in the detective's proposal, stating "[w]hile your request may be unusual by most people's standards," "I am very intrigued" and "am [a] very open-minded and a nonjudgmental person."

Over the course of his e-mail conversation with the detective, Appellant was quite specific about the sexual acts he would perform with the child. Appellant then spoke with the detective twice by phone about both the logistics of his drive from north of Ocala to Clermont and the specific sexual acts that he intended to perform with the child. Appellant also promised that he would bring "protection."

Appellant drove more than an hour to a decoy residence in Clermont being used by law enforcement, knocked on the door, and was immediately arrested. He had three condoms in his pocket.

Florida Law: Criminal Attempt and Overt Acts

In Florida, a person commits the offense of criminal attempt if he or she "does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof." § 777.04(1), Fla. Stat. (2015). Thus, "the two elements comprising an attempt to commit a crime are (1) a specific intent to commit the crime and (2) an overt act done toward its commission that is beyond mere preparation." Mizner v. State , 154 So.3d 391, 397 (Fla. 2d DCA 2014) (quoting Enix v. State , 69 So.3d 354, 357 (Fla. 2d DCA 2011) ). "[T]he line between preparatory acts and overt acts is difficult to draw and tends to be case specific." Id. (alteration in original) (quoting Hudson v. State , 745 So.2d 997, 1000 (Fla. 2d DCA 1999) ). The second district has explained the difference between mere preparation and overt acts as follows:

Preparation generally consists of devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward the commission after preparations are completed. The act must reach far enough toward accomplishing the desired result to amount to commencement of the consummation of the crime. Some appreciable fragment of the crime must be committed and it must proceed to the point that the crime would be consummated unless interrupted by a circumstance independent of the attemptor's will.

State v. Coker , 452 So.2d 1135, 1136 (Fla. 2d DCA 1984) (citations omitted). Importantly, "[t]he act need not be ... the ultimate, the last proximate, or the last possible act toward consummation of the crime." Id. at 1137 (citation omitted).

Duke and Its Application

More than twenty years ago in Duke , we reversed the defendant's conviction for attempted sexual battery because we concluded that the defendant had not committed an overt act. 709 So.2d at 582. In that case, the defendant agreed to meet a person he believed was a minor for a sexual encounter. Id. at 581. After meeting the victim in a parking lot, he planned to commit the sexual battery in the victim's home. Id. Upon arriving at the parking lot, however, the defendant was arrested and was later convicted of attempted sexual battery. Id.

On appeal, we reversed and directed the trial court to enter a judgment of acquittal. Id. at 580. Despite evidence that the defendant had discussed the sexual acts he intended to perform and then traveled to the agreed upon meeting place with the victim, we determined, without explanation, that the defendant had not "reached the level of an overt act leading to the commission of sexual battery as required by section 777.04(1)." Id.

Since then, our decision in Duke has often been distinguished, and at times, squarely rejected. In Bist v. State , 35 So.3d 936 (Fla. 5th DCA 2010), a panel of this court considered whether the defendant had committed an overt act within the context of a conviction for attempted lewd and lascivious battery. Id. at 941. In that case, the defendant argued, as the Appellant argues here, that traveling to and arriving at a decoy residence was not an overt act. Id.

In rejecting the defendant's argument, we expressly questioned the result in Duke . Id. n.3. However, we concluded that Duke was distinguishable, even though the facts of both cases were strikingly similar, because the defendant in Bist faced a different charge-attempted lewd and lascivious battery rather than attempted sexual battery. Id.

Our sister court employed the same distinction in Wiggins v. State , 816 So.2d 745 (Fla. 4th DCA 2002). In that case, the fourth district reasoned that Duke was inapposite because the crime of attempted sexual battery "is clearly distinct from a charge of attempted lewd and lascivious act." Id. at 748. The Wiggins court further distinguished Duke by broadly observing that "what is or is not an overt act is very case specific." Id.

Courts in other jurisdictions have more directly disapproved of Duke 's holding. See, e.g. , State v. Glass , 139 Idaho 815, 87 P.3d 302, 307 (Idaho Ct. App. 2003) (finding Duke unpersuasive and reasoning that "[a]fter having arranged with [the decoy victim] to meet at a specific time and place for the expressed purpose of sexual activity, [the defendant] arrived at that meeting place at approximately the appointed time with a box of condoms in his vehicle. This conduct goes beyond remote preparatory activity and unequivocally confirms a criminal design. He was unable to proceed further only because no fourteen-year-old girl appeared at the rendezvous point."); State v. Reid , 383 S.C. 285, 679 S.E.2d 194, 201 (S.C. Ct. App. 2009) (declining to follow Duke , and reasoning that the defendant in that case had "left the location where he was communicating with [the victim] and committed an act beyond mere preparation in driving to and physically arriving at the prearranged location within fifteen minutes of the agreed upon time" (footnote and citation omitted) ), aff'd , 393 S.C. 325, 713 S.E.2d 274 (2011).

Our Analysis of Duke and the Overt Act in this Case

We now recognize that Duke was wrongly decided and recede from its holding. In so doing, we emphasize that an overt act does not require "the last possible act toward consummation of the crime." Coker , 452 So.2d at 1137 (citation omitted). Rather, the crime of attempt is complete where a defendant "does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof." § 777.04(1), Fla. Stat. (2015).

Our holding in Duke is not only inconsistent with the overt act analysis for other crimes, see Bist , but is also in conflict with a plain reading of section 777.04(1), Florida Statutes. While the defendant in Duke might not have committed the very "last possible act" toward a sexual battery, he certainly committed an act toward the commission of the crime when he arrived at the agreed upon location to meet his victim and failed only because he was intercepted by law enforcement.

Likewise, in this case, Appellant clearly acted in pursuit of his criminal intent, "going beyond mere preparation to the actual commencement of the crime." Bist , 35 So.3d at 941 (citation omitted). In fact, Appellant took every step necessary to commit the crime of sexual battery except enter the decoy residence and come into physical contact with a real victim.

Therefore, we hold that a defendant commits an overt act in furtherance of the crime of attempted sexual battery where, as in this case, the defendant travels to and arrives at an agreed upon location to meet and sexually batter a minor victim.

AFFIRMED.

COHEN, C.J., ORFINGER, TORPY, EVANDER, BERGER, WALLIS, LAMBERT, EDWARDS, HARRIS, and GROSSHANS, JJ., concur.


author: Per Curiam.

text:
    Dominique D. DOUGLAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0939
    District Court of Appeal of Florida, First District.
    November 16, 2018 Rehearing Denied January 2, 2019
    Dominique D. Douglas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

B.L. Thomas, C.J., and Wetherell and Winsor, JJ., concur.


author: Winsor, J.

text:
    Willie FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1157
    District Court of Appeal of Florida, First District.
    November 20, 2018
    Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Willie Floyd is what state law calls a "habitual traffic offender." See § 322.264, Fla. Stat. (2014). When an officer pulled him over for going nearly double the speed limit, the officer discovered that Floyd's license had been suspended or revoked some fifteen times-and that it was still revoked. The State charged Floyd with violating section 322.34(5), which provides that "[a]ny person whose driver license has been revoked pursuant to [the habitual traffic offender statute] and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree." He was convicted and sentenced to 33.5 months in prison.

By its own terms, the statute applies only if a "driver license has been revoked,"

id. , and the Florida Supreme Court has confirmed that the statute does not apply to those who never had a license in the first place, State v. Miller , 227 So.3d 562, 565 (Fla. 2017) ("Having a driver license that has been revoked under the habitual traffic offender statute, section 322.264, Florida Statutes, is a necessary element of a section 322.34(5) offense."). Floyd's sole argument on appeal is that he never had a "driver license" because he had only a "learner's permit." He argues concisely: "A learner's permit is not a driver's license." Init. Br. at 7. If Floyd were correct on this point, he would prevail under Miller . But he is not correct.

Although Floyd (and perhaps others) refer colloquially to a "learner's permit," the Florida Legislature chose to classify what Floyd held as a "learner's driver license." § 322.1615, Fla. Stat. Moreover, the Legislature defined "driver license" to mean "a certificate that, subject to all other requirements of law, authorizes an individual to drive a motor vehicle and denotes an operator's license as defined in 49 U.S.C. s. 30301." § 322.01(17), Fla. Stat.; see also 49 U.S.C. § 30301 (" '[M]otor vehicle operator's license' means a license issued by a State authorizing an individual to operate a motor vehicle on public streets, roads, or highways."). A "learner's driver license" indeed authorizes a holder to drive a motor vehicle, albeit with certain restrictions. § 322.1615, Fla. Stat. (providing that "[a] person who holds a learner's driver license may operate a vehicle" subject to certain restrictions). The most notable restriction is that someone with a "learner's driver license" may drive only when a licensed driver over 21 is riding up front. Id. Floyd correctly notes that the license "does not allow someone to drive a car by themselves," Init. Br. at 7, but it does allow someone to drive a car. The statutory definition of "driver license" includes learner's licenses like the one Floyd once held.

AFFIRMED .

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


author: SUAREZ, J.

text:
    M.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-344
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brian H. Zack, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS, and FERNANDEZ, JJ.
   SUAREZ, J.

M.P., a juvenile, appeals from an Adjudicatory Order wherein the trial judge found that M.P. committed trespass and criminal mischief as charged, withheld adjudication of delinquency and placed her on probation. We affirm the adjudicatory order on the charge of trespass; we reverse the adjudicatory order as to the charge of criminal mischief, and remand for a new adjudicatory hearing on the criminal mischief charge and for a new disposition hearing and order on the remaining trespass charge.

M.P. was charged with trespass and criminal mischief. The victim, Mr. Yero, is the owner of a duplex trailer. He rents the back unit of the trailer to M.P. and a co-tenant, while Mr. Yero's relatives live in the front unit of the trailer. The front unit contained the air conditioning thermostat controls for both the front and the back units. M.P. testified that, as part of an ongoing dispute, Mr. Yero's relatives in the front unit would repeatedly turn off the air conditioning to the entire trailer. M.P. testified that on the day of the incident the air conditioning had been turned off and that her co-defendant, R.H., broke into the front unit of the trailer using a butter knife to gain entry through the door of that unit. There was no evidence M.P. participated in the breaking open of the locked door. M.P. admitted to entering the trailer after R.H. had forced open the door solely for the purpose of turning on the air conditioning unit. M.P. testified that she did not go into any other part of the trailer. She stated that she was aware of a burglary of the front unit two weeks earlier, but that she was not involved in that offense. There was no evidence adduced that M.P. broke into the front trailer on the day in question or was involved in the burglary of the front unit two weeks prior.

Over defense objections, the trial court permitted the detective and victim to testify that the front unit of the trailer had been burglarized two weeks earlier and that some of the tenant's belongings had been stolen. The trial court also permitted Mr. Yero to testify, over defense objection, that "they" had broken the front door of the trailer two weeks prior to M.P.'s charged offense, and that he thought whoever broke in must have something to do with the back property tenants because he was trying to evict them. The defense argued that the testimony of the prior burglary was unconnected to and irrelevant to the current offense, and in addition impermissibly introduced evidence of an uncharged crime. At the conclusion of the bench trial, the court made the specific finding that M.P. entered the premises without permission, establishing the offense of trespass. The trial court did not make any findings on the record as to the criminal mischief charge nor did the trial court state whether or not the court considered the testimony of the prior burglary in arriving at the court's decision. The court denied M.P.'s motion for judgment of acquittal, found her delinquent on the charges of trespass and criminal mischief, withheld adjudication, and placed her on probation.

The issue on appeal is whether the trial court erred in overruling the objections to the admissibility of evidence of the prior burglary and, if so, whether the trial court considered that evidence in arriving at the final judgment. We conclude the trial court erred in allowing that evidence and failed to state whether or not it considered that evidence in forming the final judgment.

The State did not file a notice of intent to rely on an uncharged crime, pursuant to section 90.404(2)(a) and (d), Florida Statutes (2018), arguing there was no need as the evidence of the uncharged break-in and burglary constituted dissimilar fact evidence. Further, the State asserted it was not required to comply with that statute as the testimony of the prior burglary was intertwined with the charged offenses to the extent it adequately described the events leading up to the charged crimes, i.e., the animosity between the tenants and the fact that in both the prior and current offenses the air conditioning was turned off. However, it is only when it is impossible to give a complete or intelligent account of the charged crime without reference to uncharged crimes that evidence of those uncharged crimes is admissible. Wright v. State, 19 So.3d 277, 292 (Fla. 2009) ; Griffin v. State, 639 So.2d 966, 968 (Fla. 1994) (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.) ). In this case, there is absolutely no evidence connecting M.P. with the prior burglary, M.P. affirmatively denied any participation in that offense, there was no contrary evidence, and the charge of trespass could be explained and completely proven without any reference to the prior break-in. The testimony was simply not relevant to either of the charges against M.P. and should not have been admitted into evidence.

The State contends that the error, if any, was harmless as the trial court gave the inadmissible testimony no weight. We cannot presume the trial court disregarded the inadmissible testimony, however, where the trial court overruled the objections to the testimony coming into evidence and then did not make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Petion v. State, 48 So.3d 726, 737 (Fla. 2010). The State is therefore unable to establish beyond a reasonable doubt that the improper admission of testimony referencing the prior burglary did not contribute to the finding of delinquency on the charge of criminal mischief. We therefore reverse the adjudicatory order finding M.P. delinquent of the charge of criminal mischief, and remand for a new adjudicatory hearing on that charge. We affirm the finding of delinquency on the charge of trespass but remand for a new disposition hearing, as we cannot say from the record whether the trial court would have imposed the same disposition for the remaining charge of trespass. See, e.g., Thompson v. State, 172 So.3d 527 (Fla. 3d DCA 2015) ; Gray v. State, 170 So.3d 890 (Fla. 3d DCA 2015).

Affirmed in part, reversed in part and remanded.

      M.P. properly concedes that the error was harmless as to the trespass charge, given that M.P. confessed to the officers that she committed the trespass (and did not challenge that confession at the adjudicatory hearing). Further, a corroborating video introduced at the hearing showed R.H. breaking in to the door to the front unit, and M.P. later entering through that door.


text:
    John WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2653
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018
    Charles G. White, P.A., and Charles G. White, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before SUAREZ, LOGUE, and LINDSEY, JJ.
   SUAREZ, J.

John Wilson appeals from a final judgment of conviction and sentence. On appeal, Wilson raises several issues. We affirm all issues presented on appeal, and write solely to address the primary issue raised - whether Wilson knowingly and intelligently waived his 6th Amendment right to counsel.

Wilson was charged with burglary of an unoccupied dwelling, third degree grand theft, assault, trespass of an unoccupied conveyance (Case no. 15-1083), as well as additional charges arising out of the same incident of resisting an officer with violence and criminal mischief (Case no. 15-1084). Prior to trial, and while represented by the Public Defender, Wilson filed a demand for speedy trial and announced that he wished to proceed pro se in 15-1083, but not 15-1084. The trial court held the first of several Faretta hearings to determine whether Wilson was knowingly and intelligently waiving his right to court-appointed counsel. See Hardwick v. State, 521 So.2d 1071, 1074 (Fla. 1988). Despite the trial court's repeatedly cautioning Wilson about the consequences of both a demand for speedy trial and self-representation, Wilson articulately and unequivocally asserted his desire to represent himself. The trial court permitted Wilson to continue pro se.

At the hearing on consolidation, the trial court held another Faretta hearing, at which the trial court once again warned Wilson that a trained attorney could assist him with discovery, the rules of evidence, and provide Wilson with legal advice throughout the trial. Wilson stated that he intended to continue to represent himself. At the conclusion of the hearing, the trial court again asked Wilson if he wished to represent himself and if he understood what he was entering into, and Wilson answered that he understood and wanted to continue pro se.

Prior to trial, Wilson asked for more time for discovery. The trial court denied the request, reminding Wilson that he had been extensively warned of the consequences of insisting on a speedy trial date, which indicated to the court that he was trial-ready. Subsequently, Wilson asserted he still lacked discovery and asked for standby counsel for that purpose, and the trial court reiterated that Wilson did not have a right to standby counsel, that he could proceed pro se or elect to have representation. The trial court held another Faretta hearing at which Wilson once again affirmatively stated he wished to proceed pro se.

Prior to jury selection, and at several critical times throughout the trial, the trial court asked Wilson if he wished to continue to represent himself, and Wilson consistently answered affirmatively. As the trial progressed, the trial court had to repeatedly admonish Wilson for introducing irrelevant evidence or non-record evidence. Each time, Wilson said he understood and promised to discuss only the record facts, only to then repeatedly disregard the trial court's instructions. The trial court issued several curative instructions to the jury as a result. The jury found Wilson guilty as charged. Wilson was sentenced as a habitual felony offender to twenty years in prison followed by five years of probation.

An accused has the right to represent him or herself so long as his or her waiver of the right to counsel is knowingly and intelligently made. Faretta, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. In other words, the defendant must be aware of what he or she is doing, and his or her choice must be made with eyes open. Id. at 835, 95 S.Ct. 2525. This principle is codified in Florida Rule of Criminal Procedure 3.111(d), which provides,

(2) A defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused's comprehension of that offer and the accused's capacity to make a knowing and intelligent waiver. Before determining whether the waiver is knowing and intelligent, the court shall advise the defendant of the disadvantages and dangers of self-representation.
(3) Regardless of the defendant's legal skills or the complexity of the case, the court shall not deny a defendant's unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself.

The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself. Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). In other words, the defendant need not possess the technical legal knowledge of an attorney in order to be permitted to proceed pro se. Hill v. State, 688 So.2d 901, 905 (Fla. 1996) ; Kendle v. State, 255 So.3d 400, 2018 WL 3862817 (Fla. 3d DCA Aug. 15, 2018).

Our review of the proceedings in this case demonstrates that the trial court conducted multiple inquiries prior to and throughout trial that complied with both rule 3.111(d) and Faretta. On each occasion, the trial court emphasized that a lawyer could be of assistance with discovery, direct-examination, cross-examination, raising objections, introducing evidence, as well as providing counsel during plea hearings and/or sentencing hearings. Despite the trial court's numerous promptings, questioning, and warnings, Wilson continued to affirmatively insist on representing himself. The likelihood that a defendant would incompetently represent himself is not a valid reason to deny his unequivocal request for self-representation. See Tarver v. State, 145 So.3d 911, 912 (Fla. 2d DCA 2014) ; McKinney v. State, 850 So.2d 680, 681 (Fla. 4th DCA 2003) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525 ).

Further, when a defendant waives his right to appointed counsel, rule 3.111(d)(5) requires a court to renew its offer of assistance of counsel at each subsequent stage of the proceedings where the defendant appears without counsel. Specifically, rule 3.111(d)(5) provides, "[i]f a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel." "Each subsequent stage" is construed as each crucial stage that may affect the outcome of the proceedings. See Traylor v. State, 596 So.2d 957, 968 (Fla. 1992). In Wilson's case, the trial court went out of its way to make multiple inquiries into Wilson's decision to proceed pro se; each time the court offered him the assistance of counsel, and each time Wilson declined and affirmatively decided to proceed to represent himself. We find competent substantial evidence to support the trial court's determination that Wilson made a knowing and intelligent waiver of his 6th Amendment right to counsel, and no abuse of discretion in allowing Wilson to continue pro se.

Finding neither abuse of discretion nor reversible error in the trial court's rulings, we affirm defendant Wilson's convictions.

      These issues include whether the trial court should have appointed standby counsel, whether the trial court should have stricken Wilson's demand for speedy, whether Wilson knowingly waived his right to testify, and whether he should have had a pretrial competency hearing, among others.

      The trial court denied Wilson's request to separately prosecute the two related cases, and they were eventually consolidated under case number 15-1083.

      Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: ROTHENBERG, C.J.

text:
    HIGHLAND STUCCO AND LIME PRODUCTS, INC., Appellant, v. Silverio ONORATO and Faye Onorato, Appellees.
    No. 3D18-792
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018
    GrayRobinson, P.A., and Jack R. Reiter, Miami, for appellant.
    Rebecca S. Vinocur ; Coral Gables, Simmons Hanly Conroy and William Kohlburn (Salt Lake City, UT), for appellees.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
    ON MOTION FOR CLARIFICATION
   ROTHENBERG, C.J.

On the appellee's motion for clarification, we grant the motion, withdraw this court's opinion issued on September 20, 2018, and issue the following opinion in its stead.

The defendant below, Highland Stucco and Lime Products, Inc. ("Highland"), appeals from an order denying its motion to dismiss for lack of personal jurisdiction. Because the plaintiffs, Silverio Onorato ("Onorato") and Faye Onorato (collectively, "the plaintiffs") failed to satisfy the "minimum contacts" federal constitutional due process requirement, see Reynolds Am., Inc. v. Gero, 56 So.3d 117, 119 (Fla. 3d DCA 2011) (citing Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989) ), we reverse.

BACKGROUND

The plaintiffs filed a products liability action against Highland and several other defendants alleging that Onorato developed mesothelioma from his exposure from 1972 to 1976 to asbestos-containing products that were manufactured, distributed, and/or sold by the defendants in the state of Florida.

Highland filed a motion to dismiss for lack of personal jurisdiction, and in support of its motion, Highland submitted the sworn affidavit of Frederick M. Atkinson ("Atkinson"). In his affidavit, Atkinson explained that Highland, which dissolved in 2009, was acquired in the mid-1960s by his father, who is now deceased, and Atkinson began working at Highland in 1966, moving up through the ranks of the company until he became the vice-president in 1972, and the president approximately twenty years later. The affidavit provides that, among other things, Highland is not and has never been a resident of the state of Florida, and at all times has been a resident of the state of California with its principal place of business in California; had no owners, agents, or employees in Florida; never owned or operated a facility outside of Southern California; never transacted any business in Florida; never negotiated, entered into, or performed a contract in Florida; never owned, used, or possessed real or personal property in Florida; never maintained a place of business in Florida; was never registered to conduct business in Florida; never maintained any bank accounts, offices, post office boxes, telephone numbers, or any other business facility in Florida; never advertised in any Florida publication or on any Florida radio or television station; did not directly solicit business in Florida; never manufactured, distributed, sold, supplied, or installed any asbestos-containing products in Florida; and had no connection with Florida arising from any action or conduct Highland purposely directed towards Florida. The affidavit further states that "[t]he overwhelming majority of HIGHLAND's business was conducted in California. During the time period when HIGHLAND used asbestos, its products were primarily sold to building supply dealers within a 60 mile radius of its Van Nuys, California plant."

In response to Highland's motion, the plaintiffs submitted the following: (1) excerpts from Onorato's deposition wherein he testified that Highland's products were commercially available for purchase in Florida during the time of his exposure; (2) a 1959 trade journal advertisement for Highland's "Hi-Sorb" acoustical plaster that was distributed by Highland Stucco and Lime Products of Florida, Inc. ("Highland of Florida"); (3) an article from the same trade journal that references a plant in Fort Lauderdale operated by Highland of Florida; and (4) an excerpt from Atkinson's deposition which was taken in connection with a 2000 California lawsuit. Highland replied with documentation demonstrating that Highland of Florida was dissolved in 1964, approximately eight years prior to Onorato's alleged exposure .

The trial court conducted a non-evidentiary hearing on the motion. At the conclusion of the hearing, the trial court denied Highland's motion to dismiss. In its order, the trial court concluded that the plaintiffs had alleged sufficient jurisdictional facts to support the trial court's exercise of specific jurisdiction over Highland pursuant to section 48.193(1)(a), Florida Statutes, and to satisfy the constitutional due process requirements because Onorato "testified to his use of and exposure to Highland Stucco products within the state of Florida," and that "[the] product was purchased through distributors in Florida." This appeal followed.

STANDARD OF REVIEW

This Court reviews a trial court's ruling on a motion to dismiss for lack of personal jurisdiction de novo . Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla. 2002). Where the trial court's decision is based on live testimony, the appellate court defers to the trial court's determination as to the credibility of witnesses. Evans v. Thornton, 898 So.2d 151, 152 (Fla. 4th DCA 2005) (citing McCarter v. Bigfoot Indus. Inc., 805 So.2d 1028, 1031 (Fla. 4th DCA 2001) ). Because the trial court made its determination based only on written submissions, we stand on equal footing with the trial court as to the interpretation of the written submissions. Crawford v. Barker, 64 So.3d 1246, 1251 (Fla. 2011) (citing Muir v. Muir, 925 So.2d 356, 358 (Fla. 5th DCA 2006) ).

ANALYSIS

I. Personal Jurisdiction

In Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989), the Florida Supreme Court set forth a two-step process for determining whether personal jurisdiction exists. First, a trial court must determine whether: (1) there exist sufficient jurisdictional facts to bring the action within the purview of Florida's long-arm statute, section 48.193, Florida Statutes ; and (2) whether the foreign corporation possesses sufficient minimum contacts with Florida to satisfy federal constitutional due process requirements. Venetian Salami, 554 So.2d at 501-02. The first, or statutory prong, is established by demonstrating either general or specific jurisdiction. Teva Pharm. Indus. v. Ruiz, 181 So.3d 513, 517 (Fla. 2d DCA 2015). General jurisdiction is established where the defendant has engaged in substantial and not isolated activity within the state. Id. In other words, the defendant's affiliations with the state are so continuous and systemic as to render it essentially "at home" in the forum state. Daimler AG v. Bauman, 571 U.S. 117, 128, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ). Specific jurisdiction, on the other hand, is established by pleading specific facts that demonstrate that the defendant's conduct fits within one or more subsections of section 48.193.

A. Specific Jurisdiction Under Florida's Long-Arm Statute

In this case, the plaintiffs are relying on specific jurisdiction in order to satisfy personal jurisdiction under Florida's long-arm jurisdiction. Section 48.193(1)(a) provides, in part:

A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself ... to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:
1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
2. Committing a tortious act within this state.
3. Owning, using, possessing, or holding a mortgage or other lien on any real property within this state.
4. Contracting to insure a person, property, or risk located within this state at the time of contracting.
....
6. Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:
a. The defendant was engaged in solicitation or service activities within this state; or
b. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.
7. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.
....

In the first amended complaint ("complaint"), the plaintiffs alleged that Onorato developed mesothelioma as a result of being exposed in Florida to products containing asbestos manufactured by Highland. Because the complaint alleges that Highland committed a tortious act in Florida, thus satisfying specific jurisdiction under section 48.193(1)(a)(2), the burden shifted to Highland to contest the allegations by affidavit or other proof, or to claim that the federal minimum contacts requirement was not satisfied. S. Wall Prods. Inc. v. Bolin, 251 So.3d 935, 938-39 (Fla. 4th DCA 2018) (citing Venetian Salami, 554 So.2d at 502 ).

As noted above, Highland submitted the Atkinson affidavit in support of its motion to dismiss. In his affidavit, Atkinson averred that Highland never transacted any business in Florida; never negotiated, entered into, or performed a contract in Florida; never owned, used, or possessed real property in Florida; never contracted to insure any person, property, or risk in Florida; never maintained a place of business in Florida; never registered to do business in Florida; never had a registered agent in Florida; never obtained bank accounts, offices, post office boxes, telephone numbers, or any other business facilities in Florida; and never advertised in any Florida publication, radio station, or television station. Atkinson's affidavit also states that Highland did not directly solicit business within Florida; had no connection with Florida arising from any action or conduct; never purposely directed conduct toward Florida; and never manufactured, distributed, sold, supplied or installed any asbestos-containing products in Florida.

Because Highland adequately contested the allegations, the burden then shifted back to the plaintiffs to refute the evidence submitted by Highland. Venetian Salami, 554 So.2d at 502. The plaintiffs conducted no jurisdictional discovery and the only evidence they submitted to rebut Atkinson's affidavit was: (1) an unauthenticated advertisement from a 1959 trade journal for Highland Hi-Sorb acoustical plaster distributed by Highland of Florida; (2) an unauthenticated article in the same 1959 trade journal that references a plant in Fort Lauderdale operated by Highland of Florida; and (3) testimony given by Atkinson in a 2000 California case. In the 2000 California case, Atkinson specifically testified that all of Highland's sales were made to building material dealers who would usually pick the products up at the plant. However, on occasion, Highland would deliver the products to the dealers, but this did not occur often because the company had only one truck and primarily sold to dealers within a sixty-mile radius of its plant in Van Nuys, California. Highland contends that nothing in Atkinson's testimony serves to refute the affidavit that Atkinson filed in this case. We agree.

Highland, the named defendant in this action, was a California corporation that dissolved in 2009. Highland of Florida, at best, was a Florida corporation that dissolved in 1964, approximately eight years before Onorato's alleged exposure to stucco products containing asbestos, and Onorato has failed to show any connection or relationship between the two corporations. Nothing in the record suggests that the two corporations shared a corporate identity.

Further, even if the plaintiffs had established that the Florida entity was a subsidiary of Highland, the mere presence of a subsidiary in Florida, without more, is insufficient to subject a non-Florida corporate parent to Florida's long-arm jurisdiction. See Walt Disney Co. v. Nelson, 677 So.2d 400, 403 (Fla. 5th DCA 1996). More importantly, even if the plaintiffs had satisfied specific jurisdiction under Florida's long-arm jurisdiction, they still failed to establish that Highland, not Highland of Florida, had sufficient minimum contacts with Florida, such that extending jurisdiction does not offend constitutional due process.

B. Constitutional Due Process

While the statutory prong of the analysis is applied broadly, the constitutional prong is controlled by United States Supreme Court precedent interpreting the Due Process Clause and imposes a more restrictive requirement. Execu-Tech Bus. Sys., Inc., v. New Oji Paper Co., 752 So.2d 582, 584 (Fla. 2000). The constitutional prong of the analysis requires the trial court to consider whether the defendant has sufficient minimum contacts with the state so that the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice. Venetian Salami, 554 So.2d at 502 (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ).

In this connection, the plaintiff must establish that the defendant's contacts with the forum state are: (1) related to the cause of action or gave rise to it; (2) involve some act by which the defendant purposefully availed itself of the privilege of conducting business within the forum; and (3) the defendant's act is such that it should reasonably anticipate being haled into court in that forum state. See Bolin, 251 So.3d at 938 (citing Moro Aircraft Leasing, Inc. v. Int'l Aviation Mktg., Inc., 206 So.3d 814, 817 (Fla. 2d DCA 2016) ). "Random, fortuitous, or attenuated contacts" are insufficient. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

The "purposefully availed itself of conducting business within the forum" and that the "act is such that it should reasonably anticipate being haled into court in that forum state" prongs of the constitutional due process analysis are especially important in this appeal. In products liability cases like this one, it is the defendant's purposeful availment that renders jurisdiction consistent with "traditional notions of fair play and substantial justice." J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011). It is not enough that Highland's products may have found their way into Florida or that Highland may have predicted that they might reach Florida, as foreseeability that a product may find its way into a forum state is not enough, by itself, to allow that state to constitutionally exercise jurisdiction over an out-of-state defendant. Blumberg v. Steve Weiss & Co., Inc., 922 So.2d 361, 365 (Fla. 3d DCA 2006) ; see also Bolin, 251 So.3d at 939-40 (noting that the United States Supreme Court has concluded that merely placing goods in the stream of commerce does not create sufficient minimum contacts to warrant the assertion of jurisdiction) (citing to the plurality in J. McIntyre Mach. ).

Specifically, in Bolin, the Fourth District concluded in an asbestos products liability case that Florida lacked personal jurisdiction over the Georgia corporate defendant where there was no evidence that the Georgia defendant marketed its product in the state, employed agents in the state, had any agreements with distributors in the state, or had any contact which would suggest purposeful availment of the privileges of the forum, and had not presented any evidence as to how the defendant's product was distributed to Florida.

Similarly, in the instant case, the plaintiffs never established a link between Highland and the product he used, how it came to be in Florida, nor that Highland's contacts within the state of Florida were "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " J. McIntyre Mach., 564 U.S. at 880, 131 S.Ct. 2780 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). We, therefore, conclude that even if specific jurisdiction under Florida's long-arm jurisdiction was established, the plaintiffs failed to meet their burden of overcoming Highland's sworn affidavit and submitting evidence demonstrating that Highland's contacts with Florida are sufficient under the constitutional due process prong of the jurisdictional analysis.

CONCLUSION

Highland submitted a very detailed affidavit in support of its motion to dismiss for lack of personal jurisdiction. Because the plaintiffs failed to satisfy their burden by presenting evidence as to how Highland's product(s) may have made their way to Florida and in what quantity, or that Highland directed its product into Florida for distribution, and it was undisputed that Highland was at all times a resident of California, with its principal place of business in California, and has never conducted business in Florida, advertised in a Florida publication, nor manufactured, sold, distributed, or supplied any products containing asbestos in Florida, the plaintiffs failed to demonstrate that Highland purposefully availed itself of the privilege of conducting business within the state such that it reasonably could have anticipated being haled into court in this state. The plaintiffs, therefore, failed to meet their burden of satisfying the constitutional due process prong of the personal jurisdiction analysis. Accordingly, we reverse the trial court's order denying Highland's motion to dismiss for lack of personal jurisdiction.

Reversed.

      During the time of Onorato's alleged exposure, the statute was numbered as section 48.182, Florida Statutes.


author: Damoorgian, J.

text:
    William Michael VALE, Steve Caltagirone, Steve Jordan and Phyllis Greenberg, Appellants, v. PALM BEACH COUNTY, Appellee.
    Nos. 4D18-1037 4D18-1039 4D18-1073 4D18-1592
    District Court of Appeal of Florida, Fourth District.
    November 21, 2018
    William Michael Vale, Boca Raton, pro se.
    Steve Caltagirone, Boca Raton, pro se.
    Steve Jordan, Boca Raton, pro se.
    Phyllis Greenberg, Boca Raton, pro se.
    Robert P. Banks of Palm Beach County Attorney's Office, West Palm Beach, for appellee.
   Damoorgian, J.

In this consolidated appeal, the four property owner plaintiffs appeal the dismissal of their Bert J. Harris, Jr., Private Property Rights Protection Act ("the Act") lawsuits against Palm Beach County. Because plaintiffs' properties were not directly regulated by the county's actions as contemplated under the Act, we affirm.

The following facts are taken from the trial court's detailed and well-reasoned order dismissing plaintiffs' lawsuits. Plaintiffs all purchased homes in a planned unit development adjacent to a golf course. It is undisputed that plaintiffs do not legally own the golf course. After the golf course proved to be unsuccessful, its owner sought to rezone the property for residential development. The county ultimately approved a development order amendment allowing the redevelopment of the golf course. Plaintiffs thereafter separately sued the county for damages under the Act, alleging that the zoning approval inordinately burdened their properties in that it diminished the value of the properties. The county moved to dismiss the lawsuits, arguing that the Act did not apply because the county had taken no direct action against plaintiffs' properties. The trial court agreed with the county and dismissed the lawsuits, reasoning that the Act did "not contemplate the government paying for devaluation that results from government actions directed towards adjacent properties." This appeal follows.

Enacted by the Florida Legislature in 1995, the Act serves "as a mechanism to protect and compensate any landowner whose property is affected by government action not rising to the level of a taking." Ocean Concrete, Inc. v. Indian River Cty., Bd. of Cty. Comm'rs , 241 So.3d 181, 186 (Fla. 4th DCA 2018) (citing § 70.001(1), Fla. Stat. (1995) ). To prevail under the Act, the property owner is required to show that "a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property." § 70.001(2), Fla. Stat. (2016). In order for property to be considered "inordinately burdened," the Act provides that the government action must "directly restrict[ ] or limit[ ] the use of real property." § 70.001(3)(e) 1., Fla. Stat. (emphasis added).

In Hardee County v. FINR II, Inc. , 221 So.3d 1162, 1164 (Fla. 2017), our supreme court considered whether the Act applied to claims arising from government action that regulated property adjacent to a claimant's property. In holding that it did not, the court reasoned that "[t]o ensure that the word 'directly' is not construed as mere surplusage, the government action must directly act upon the owner's parcel. To hold otherwise would give the language no more meaning than if the word 'directly' had been omitted." Id. at 1165 ; see also City of Jacksonville v. Smith , 159 So.3d 888, 889-94 (Fla. 1st DCA 2015) (holding that the claimants could not maintain an action pursuant to the Act for the devaluation of their property caused by governmental action regulating property adjacent to the claimants' property).

Plaintiffs acknowledge the holding in Hardee , however maintain that because their properties and the former golf course are part of the same planned unit development, their properties are "holistically" integrated with, and not merely adjacent to, the former golf course. Accordingly, plaintiffs argue that their properties were in fact directly acted upon by the county. We disagree. The Act defines a "property owner" as meaning "the person who holds legal title to the real property that is the subject of and directly impacted by the action of a governmental entity." § 70.001(3)(f), Fla. Stat. (emphasis added). As it is undisputed that plaintiffs do not hold legal title to the former golf course, they are not "property owners" as contemplated under the Act.

Affirmed.

Gross and Ciklin, JJ., concur.


author: BADALAMENTI, Judge.

text:
    R.M., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4409
    District Court of Appeal of Florida, Second District.
    Opinion filed November 28, 2018
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

R.M. appeals an adjudication of delinquency and an order of commitment to the Department of Juvenile Justice for violations of the terms of his probation. We reverse because the record does not establish a proper waiver of the juvenile's right to counsel.

As background, R.M. was placed on a term of probation after the trial court withheld adjudication for the offenses of burglary of an unoccupied conveyance and petit theft. Thereafter, the State filed several affidavits of violation of probation alleging that R.M. violated his probation by repeatedly absconding from supervision. The case proceeded to a plea hearing where R.M. was unaccompanied by a parent, guardian, or an adult relative. At the hearing, R.M. informed the trial court that he wanted to waive his right to counsel and admit to the violations. After briefly inquiring into R.M.'s desire to waive his right to counsel and conducting a plea colloquy, the trial court accepted his waiver of counsel, found that he was "freely and voluntarily" admitting to the violations, and set a date for R.M.'s disposition hearing. R.M.'s written waiver of counsel and plea forms were submitted to the trial court at that hearing.

R.M. was unaccompanied by counsel at his subsequent disposition hearing. The trial court accepted the State's disposition recommendation, adjudicated him delinquent, and committed him to the Department of Juvenile Justice for placement in a nonsecure residential program. On appeal, R.M. argues that the trial court fundamentally erred by failing to make a proper inquiry into his waiver of counsel as required by Florida Rule of Juvenile Procedure 8.165.

Florida Rule of Juvenile Procedure 8.165(a) requires the court to "appoint counsel as provided by law unless waived by the child at each stage of the proceeding." Subsection (b)(2) explains that "[a] child shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the child's comprehension of that offer and the capacity to make that choice intelligently and understandingly has been made." (Emphasis added.) Subsection (b)(3) further requires that "[t]he assigned attorney shall verify on the written waiver and on the record that the child's decision to waive counsel has been discussed with the child and appears to be knowing and voluntary." (Emphasis added.) In summary, to determine whether a juvenile is knowingly and intelligently waiving his right to counsel, the trial court must:

(1) inform the juvenile of the benefits he would relinquish and the danger and disadvantages of representing himself, (2) determine whether the juvenile's choice [to waive the assistance of counsel] was made voluntarily and intelligently, and (3) determine whether any unusual circumstances existed which would preclude the juvenile from exercising his right to represent himself.

C.K. v. State, 909 So.2d 602, 604 (Fla. 2d DCA 2005) (alteration in original) (quoting D.C.W. v. State, 775 So.2d 363, 364 (Fla. 2d DCA 2000) ); accord L.D.S.J. v. State, 14 So.3d 289, 290 (Fla. 1st DCA 2009).

Our supreme court has explained that "[r]ule 8.165 is not merely procedural in nature, but contains guidelines to ensure that the substantive right to counsel is protected." State v. T.G., 800 So.2d 204, 211 (Fla. 2001). "[T]he waiver of counsel inquiry is especially significant in juvenile cases because children may not fully comprehend the importance of counsel or the consequences of waiving the right to counsel." Id. at 212 (citing P.L.S. v. State, 745 So.2d 555, 557 (Fla. 4th DCA 1999) ). Thus, a trial court's failure to conduct a thorough inquiry into a juvenile's waiver of counsel constitutes fundamental error. Id. at 213.

Here, the trial court attempted to comply with rule 8.165 by informing R.M. of selected ways in which an attorney could assist him at an adjudicatory hearing. For example, the trial court advised R.M. that an attorney could "advise him on whether or not [R.M.] should contest the charges," "help [R.M.] get [his] case ready for trial or for a hearing if [R.M.] wanted one," "get [R.M.'s] witnesses to court," and "advise [R.M.] on what direction [R.M.] should take in [his] case."

Critically, though, the "record is devoid of any discussion regarding whether [R.M.] had an opportunity, and whether that opportunity was meaningful, to confer with an attorney regarding his right to counsel, as required by rule 8.165(a)." L.D.S.J., 14 So.3d at 290-91 (concluding that trial court failed to ensure that juvenile knowingly and intelligently waived his right to counsel where there was no indication that the juvenile discussed his decision with a parent, guardian, or attorney). Even more, the trial court failed to inquire about R.M.'s comprehension of the trial court's offer of counsel, his capacity in making the choice of whether to waive counsel, or the existence of any unusual circumstances which would preclude the juvenile from exercising the right of self-representation. See Fla. R. Juv. P. 8.165(b)(2), (b)(4) ; L.D.S.J., 14 So.3d at 291. Further compounding the error, it is undisputed that no "parent, legal custodian, [or] responsible adult relative" was present when the written waiver of counsel was submitted to the trial court at the change of plea hearing. Fla. R. Juv. P. 8.165(b)(3). And there is no record evidence that an attorney assigned by the court to assist the child "verif[ied] ... on the record that [R.M.'s] decision to waive counsel ha[d] been discussed with [R.M.] and appear[ed] to be knowing and voluntary," as required by rule 8.165(b)(3). See L.D.S.J., 14 So.3d at 291. Accordingly, we conclude that the trial court committed fundamental error by failing to make the necessary inquiries set forth in rule 8.165 and ultimately finding that R.M. had knowingly and voluntarily waived his right to counsel. See id.; see also C.K., 909 So.2d at 604 ("The trial court's failure to comply with rule 8.165... constituted fundamental error.").

Because R.M.'s waiver of counsel was invalid as a matter of law, his plea admitting to the violations of his probation entered without advice of counsel is also deemed involuntary as a matter of law. See C.K., 909 So.2d at 604 (citing T.G., 800 So. 2d at 213 ). Therefore, we reverse the order of delinquency and remand to the trial court "so that it can properly advise [R.M.] of his right to assistance of counsel, ensure by a thorough inquiry that any waiver is free and intelligent, and allow [R.M.] to enter a new plea if appropriate." T.G., 800 So.2d at 213 ; see also C.K., 909 So.2d at 604 ("Therefore, we reverse the order of delinquency and remand for a new adjudicatory hearing at which C.K. shall be permitted to enter a new plea following a proper colloquy and offer of counsel.").

As noted in J.M.B. v. State, 800 So.2d 317, 319 (Fla. 2d DCA 2001), our court continues to "recognize that the juvenile court judge must contend with an unusually heavy docket, and was dealing, in this case, with a juvenile who was no stranger to the ways of the juvenile justice system." Ultimately, as we concluded in J.M.B., "due process must be provided." Id.

Reversed and remanded.

KHOUZAM and SALARIO, JJ., Concur.

      Although the transcript indicates that an assistant public defender was present in the courtroom during R.M.'s plea hearing, there is no indication in the record that this was the attorney assigned by the court to assist R.M. It would contravene the plain and ordinary language of rule 8.165(b)(3) to assume that the mere presence of any attorney who happened to be in a courtroom when a trial court submitted a child's waiver of counsel form also"discussed with the child" his or her decision to waive counsel. And it would be absurd to extend that assumption to also include that this attorney found the child's waiver of counsel to be "knowing and voluntary." Fla. R. Juv. P. 8.165(b)(3) ; see also L.D.S.J., 14 So.3d at 291 (explaining that an unidentified individual's oral indication at a revocation hearing that he had reviewed the waiver of counsel form with appellant did not relieve the trial court of the obligation to ensure that the child intelligently and voluntarily waived his right to counsel). It is also noteworthy that the transcript indicates that R.M. was proceeding pro se.

      Because R.M.'s plea is invalid, we need not address R.M.'s remaining argument that the court committed fundamental error at his disposition hearing by failing to renew his offer of counsel.