author: Kelsey, J.

text:
    Darrell VON YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0704
    District Court of Appeal of Florida, First District.
    February 4, 2019 Rehearing Denied March 28, 2019
    Andy Thomas, Public Defender, and Kevin P. Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Kelsey, J.

Appellant was convicted and sentenced for burglary of an occupied conveyance, and robbery without a weapon. He challenges the trial court's denial of his motion for judgment of acquittal, arguing that his actions could not have put any reasonable person in fear. We find this argument wholly meritless. In light of the record evidence and the governing law, we find no reversible error, and affirm Appellant's convictions and sentences.

Appellant's Actions.

Appellant, a male, is nearly six feet tall, and at the time of these events he weighed nearly 200 pounds and was 43 years old. He had what law enforcement described at trial as "very distinct gold teeth." The victim of Appellant's crimes was a 19-year-old female sophomore at Pensacola State College. The two were strangers. Appellant had a history of panhandling on the campus, with some incidents of aggressiveness, and therefore the campus police had trespass-warned him to stay off of campus. Nevertheless, while the victim was sitting in her car on campus, Appellant opened her passenger door and got in, holding a backpack on his lap. He sternly demanded that she take him to a gas station. She refused, and he repeated his demand more sternly. She testified that she was "really scared," did not know what could be in Appellant's backpack, and felt that she had no choice but to comply.

Once the victim started driving toward a nearby gas station, Appellant started giving her different instructions, taking them to a store that had no gas pumps. Instead of claiming he needed gas, he then said he needed to meet a woman there who would be his alibi for not picking up his children from day care on time. Once there, still in the victim's car, Appellant asked the victim for $ 100 for gas money. When she said she did not have that much money with her, and gave him $ 20 or $ 40, he suggested she could go to an ATM and get more, which she refused to do. He asked for her phone number, claiming he would use it to get in touch with her to pay her back; and he tested it to be sure it was the right number before getting out of the car.

The victim testified that she was scared during this episode, because she did not know Appellant, she did not know what he had in his backpack or what he might do with whatever might be in there, and she did not know his intentions. She cooperated with Appellant's demands because she did not want to do anything that could have aggravated the situation.

Appellant's counsel argued to the jury that no reasonable person could have been afraid under these circumstances, because Appellant did not wear a mask; did not brandish a gun, knife, or other weapon; did not take the victim's phone; and did not overtly threaten the victim with bodily harm. Counsel argued that "at best, this was an awkward and weird situation." In her oral motion for judgment of acquittal, defense counsel claimed the State failed to establish a prima facie case that Appellant's actions would have put a reasonable person in fear or that he entered the victim's car with the intent to commit an offense in it. The trial judge denied the JOA motion, and the jury convicted Appellant as charged.

At sentencing, Appellant admitted that after watching the victim testify, he could see that his actions had made her afraid. He expressed remorse for having put her in fear. The trial judge observed as follows before sentencing Appellant to ten years in prison for each of the two counts, to run concurrently:

You know, I was there throughout the trial. I heard what happened. And, you know, the concern is, of course, somebody that somebody doesn't know coming in and getting in a car -- getting in their car, uninvited, complete total stranger, with a backpack telling me you're going to drive me somewhere, that would freak me out, a grown man. And I carry a pistol in my car. But still, that would completely freak me out.

JOA Standards.

A motion for judgment of acquittal tests the legal sufficiency of the State's evidence. State v. Lalor , 842 So.2d 217, 219 (Fla. 5th DCA 2003) ; Anderson v. State , 504 So.2d 1270, 1271 (Fla. 1st DCA 1986). "When a defendant moves for judgment of acquittal, he admits all facts in evidence ... and every conclusion favorable to the State reasonably inferable therefrom." Anderson , 504 So.2d at 1271. "If the State has presented competent evidence to establish every element of the crime, then judgment of acquittal is improper." McCray v. State , 171 So.3d 831, 832 (Fla. 1st DCA 2015) (citing State v. Odom , 862 So.2d 56, 59 (Fla. 2d DCA 2003) ). Because the trial court applies a purely legal test when deciding a motion for JOA, we review its decision de novo. Pagan v. State , 830 So.2d 792, 803 (Fla. 2002).

JOA for Burglary.

We hold that the lower tribunal correctly denied Appellant's motion for JOA on the burglary charge. Burglary is the act of "[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein ...." § 810.02(1)(b), Fla. Stat. (2016). Appellant challenged the evidence of his intent to commit an offense in the victim's car, arguing here as he did to the jury that he only wanted to borrow some money. The State is not required to prove any specific offense "so long as [the State] charges and proves 'the essential element of intent to commit an offense' " upon entering the conveyance. Joseph v. State, 965 So.2d 357, 358 (Fla. 4th DCA 2007) (quoting Toole v. State, 472 So.2d 1174, 1175 (Fla. 1985) ). The evidence supports the conclusion that Appellant intended to commit, at least, false imprisonment and robbery.

Appellant's holding the victim inside her car illegally and without her consent was false imprisonment. § 787.02(1)(a), Fla. Stat. (defining false imprisonment as "forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will"). The evidence was sufficient to establish the elements of the crime. The element of a threat was supplied not only by Appellant's mere uninvited physical presence in the victim's car, but also by his physical characteristics making it likely that he could overpower the victim, by his sternly-worded demands, and by his prominent display of a backpack that could hold a weapon. See, e.g. , State v. Horton , 442 So.2d 408, 408-09 (Fla. 2d DCA 1983) (holding that the threat to confine was a question for the jury where the defendant locked the front door of his hotel to prevent a deliveryman's departure but never expressly threatened him or physically touched him). In addition, Appellant's counsel conceded in argument at trial that Appellant intended to get money from the victim, which on the facts presented constituted robbery.

JOA for Robbery: "Putting in Fear."

The issue presented in Appellant's motion for judgment of acquittal on the robbery charge was not whether this victim and this trial judge were or would have been in fear as a result of Appellant's actions, as they both stated they were or would have been. Rather, the issue is whether the proverbial, non-specific "reasonable person" would be put in fear under the circumstances. § 812.13(1), Fla. Stat. (defining robbery as "the taking of money ... of another, ... when in the course of the taking there is the use of force, violence, assault, or putting in fear ." (emphasis added) ). "The fear contemplated by the statute is the 'fear of death or great bodily harm.' " Smithson v. State , 689 So.2d 1226, 1228 (Fla. 5th DCA 1997) (quoting Brown v. State , 397 So.2d 1153, 1155 (Fla. 5th DCA 1981) ). This element does not require proof that the defendant made express threats of violence. State v. Baldwin , 709 So.2d 636, 637-38 (Fla. 2d DCA 1998). See also, e.g., Magnotti v. State , 842 So.2d 963, 964-65 (Fla. 4th DCA 2003) (bank robbery where the defendant demanded money but never displayed a weapon or threatened violence); Woods v. State , 769 So.2d 501, 502 (Fla. 5th DCA 2000) (defendant told cashier to hand over the money from the drawer but never displayed a weapon or made any threats of violence). "[I]f the circumstances attendant to the robbery were such as to ordinarily induce fear in the mind of a reasonable person, then the victim may be found to be in fear for the purpose of the robbery statute." Baldwin , 709 So.2d at 637.

We hold that Appellant's actions satisfy the putting-in-fear element of robbery. These circumstances are very similar to those in Flagler v. State , 198 So.2d 313, 314 (Fla. 1967). The Flagler court held that the victim was reasonably put in fear when a stranger jumped into her car and stole her purse without saying a word. In fact, the court said, "We think that in this setting the mother would have been less than human if she had not been frightened out of her wits and that the fear was generated when she saw a strange hand reaching for her purse at about the time she became conscious of petitioner's presence." Id.

Much like the defendant in Flagler , Appellant violated the victim's sense of safety and security when he entered her vehicle uninvited, then demanded that the victim take him to a destination of his choosing and give him money. Considering Appellant was brazen enough to enter the victim's car while she was in it, it was reasonable for her to fear that Appellant, who had a backpack on his lap, was also willing to secure compliance with his demands by the use of violence. It requires no imagination to understand that a physically out-matched young woman being instructed to drive to another location with someone physically like the Appellant might reasonably be expected to fear an outcome involving great bodily harm or death. Given the evidence adduced in this case, all of which was undisputed; given the realities of opportunistic crime in today's society; and given the vulnerabilities of crime victims like this victim, we are deeply disappointed that experienced counsel would continue on appeal to trivialize this criminal episode as merely "an awkward and weird situation," or "rudeness," and to argue that no reasonable person could be placed in fear by these crimes. The jury finding to the contrary was based on competent evidence, Appellant himself conceded that he had placed the victim in fear, and the trial judge said these circumstances would "completely freak [him] out" in spite of his being a grown man and carrying a pistol with him. We believe any reasonable person would be afraid. We find Appellant's argument wholly without merit, to say the least; but we emphasize that our affirmance is based on the evidence and the law, and is not in any way attributable to counsel's assertion of a meritless argument.

In sum, the evidence, when viewed in a light most favorable to the State, is sufficient to support a finding that Appellant's actions would put a reasonable person in fear as that term is used in the robbery statute. Therefore, the court did not err when it denied Appellant's JOA motion as to the robbery charge. Finding no error in the trial court's denial of Appellant's motion for JOA, we affirm Appellant's judgment and sentence.

AFFIRMED .

Ray and Jay, JJ., concur.

      See Flagler v. State , 189 So.2d 212, 213 (Fla. 4th DCA 1966), for the Fourth District's recounting of the facts.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Troy HILL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4755
    District Court of Appeal of Florida, First District.
    February 5, 2019 Rehearing Denied March 29, 2019
    Troy Hill, pro se, Petitioner.
    Ashley B. Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The writ of prohibition is denied on the merits. See State v. Telucien , 225 So.3d 385 (Fla. 4th DCA 2017) ; Wallace v. State , 189 So.3d 1022 (Fla. 3d DCA 2016).

Bilbrey, Winokur, and Jay, JJ., concur.


text:
    Troy HILL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4754
    District Court of Appeal of Florida, First District.
    February 5, 2019 Rehearing Denied Date March 29, 2019
    Troy Hill, pro se, Petitioner.
    Ashley B. Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The writ of prohibition is denied on the merits. See Erlinger v. Federico , 242 So.3d 1177, 1182 (Fla. 1st DCA 2018) (holding that unfavorable legal rulings do not provide grounds for disqualification).

Bilbrey, Winokur, and Jay, JJ., concur.


author: EDWARDS, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Mary E. SHEFFIELD, Personal Representative of the Estate of Valton Sheffield, Appellee.
    Case No. 5D17-2521
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 8, 2019 Rehearing Denied March 28, 2019
    Troy A. Fuhrman, and Marie A. Borland, of Hill Ward Henderson, Tampa, Brian C. Lea, Pro Hac Vice, of Jones Day, Atlanta, and Charles R. A. Morse, of Jones Day, New York, for Appellant.
    David J. Sales, and Daniel R. Hoffman, of David J. Sales, P.A., Sarasota, and Melvin B. Wright, and Lisa Thomas, of Colling, Gilbert Wright & Carter, LLC, Orlando, for Appellee.
   EDWARDS, J.

The issue we address in this Engle -progeny wrongful death case is whether to apply the punitive damages statute in place at the time of the decedent's death or to instead apply the punitive damages statute in place when the Engle class was recertified in 1996. Based on the statute's specific language and well-established Florida law, we hold that the applicable version of the punitive damages statute is the 1999 version of section 768.73, Florida Statutes, which was in effect when the instant wrongful death cause of action accrued on the date of decedent's death. We find the trial court erred by applying the pre-1999 version of that statute and reverse for further proceedings that may include a new trial on punitive damages. We are aware that three other district courts of appeal have reached a different conclusion on this issue; therefore, we certify express and direct conflict with those decisions.

FACTUAL BACKGROUND

Valton Sheffield was first diagnosed with primary lung cancer in 1994, nearly ten years after he quit smoking. He had a portion of the affected lung removed and then underwent radiation and chemical therapies, which purportedly cured him of that first cancer. In 2003, he was again diagnosed with lung cancer and underwent similar treatment. Three years later, in 2006, he was once again diagnosed with lung cancer and passed away in 2007.

His widow, Mary Sheffield, was named personal representative of his estate. On behalf of the Estate, she timely filed a wrongful death action seeking compensatory and punitive damages from several tobacco companies, including Appellant, R.J. Reynolds Tobacco Company, based on her claim that her husband's death was the result of smoking the defendants' addictive, harmful cigarettes. The Estate's complaint contained counts sounding in negligence, strict liability, fraud by concealment, and conspiracy to commit fraud, and further alleged that Mr. Sheffield was a member of the so-called Engle class.

Following trial, the jury returned one verdict finding liability against Reynolds and awarding $ 1.8 million in compensatory damages, and a second verdict awarding $ 5 million in punitive damages against Reynolds.

LEGAL ANALYSIS

Prior to, during, and following trial, Reynolds argued that the punitive damages issues should be governed by the current version of section 768.73, which became law on October 1, 1999, but the trial court agreed with the Estate and applied the pre-1999 version of that statute. The 1999 version modified the prior law in several ways, including potentially barring punitive damages awards against a defendant if punitive damages were previously awarded against that defendant "in any action alleging harm from the same act or single course of conduct." § 768.73(2)(a), Fla. Stat. (1999). Given the numerous prior punitive damages awards against it, Reynolds argues that applying the 1999 version of the statute would have given it the opportunity to avoid punitive damages completely.

We apply the de novo standard to our review of the trial court's ruling on which version of the statute applied. See Townsend v. R.J. Reynolds Tobacco Co. , 192 So.3d 1223, 1225 (Fla. 2016).

Express statutory language controls

Section 768.73(5), Florida Statutes (1999), states: "The provisions of this section shall be applied to all causes of action arising after the effective date of this act." "When the statutory language is 'clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.' " McNeil v. State , 162 So.3d 274, 275 (Fla. 5th DCA 2015) (internal citations omitted) (quoting Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) ). "Likewise, '[a] court cannot construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications.' " Casais v. State , 204 So.3d 969, 970 (Fla. 5th DCA 2016) (quoting Jefferson v. State , 927 So.2d 1037, 1039 (Fla. 4th DCA 2006) ).

In another Engle -progeny case, the Florida Supreme Court likewise held that where a statute expressly states to which cases it will apply, prospectively only or also retrospectively, the clear language of the statute governs. Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 301 (Fla. 2017). "When the statute is clear and unambiguous, we use the plain language of the statute and avoid rules of statutory construction to determine the Legislature's intent." Id. (internal quotation marks and citations omitted). There, the supreme court applied the 2011 version of the comparative fault statute to Schoeff's Engle claim because that version specifically provided that "[t]his act is remedial in nature and applies retroactively." Id. Thus, when it comes to deciding which version of a statute shall be applied, Engle -progeny cases are no different than any other cases.

Statute in effect when cause of action arose will govern

In the absence of express statutory language to the contrary, Florida law generally holds that the applicable version of a statute is the version in effect at the time a cause of action accrues. D'Angelo v. Fitzmaurice , 863 So.2d 311, 314 n.9 (Fla. 2003) (applying statutes regarding apportionment of fault and setoff for settlements that were in effect when cause of action arose); Estate of Despain v. Avante Grp., Inc. , 900 So.2d 637, 641 n.3 (Fla. 5th DCA 2005) (applying punitive damages statute in effect when cause of action arose, rather than when trial occurred); St. John v. Coisman , 799 So.2d 1110, 1113 (Fla. 5th DCA 2001) (applying punitive damages statute in effect when cause of action arose); Nationwide Mut. Fire Ins. Co. v. MacDonald , 645 So.2d 1057, 1058 (Fla. 4th DCA 1994) (applying wrongful death statute that was amended after decedent was injured but before her death, which amendment created parents' claim for the loss of adult children); Brodose v. Sch. Bd. of Pinellas Cty. , 622 So.2d 513, 513 (Fla. 2d DCA 1993) (applying offer of judgment statutes in effect when cause of action accrued).

Wrongful death action accrues on date of death

Here, both parties agree that the statutory language as amended in 1999 is unambiguous so that it can be applied without need for further interpretation. Thus, both sides agree that it is to be applied to causes of action arising after October 1, 1999. However, they disagree as to when the Estate's wrongful death cause of action accrued. "Florida law does not distinguish between when a cause of action accrues and when a cause of action arises."

Philip Morris USA Inc. v. Martin , 262 So.3d 769, 773, 2018 WL 6566755 (Fla. 4th DCA Dec. 12, 2018) (quoting Lumbermens Mut. Cas. Co. v. August , 509 So.2d 352, 353 (Fla. 4th DCA 1987), quashed on other grounds , 530 So.2d 293 (Fla. 1988) ). "[T]he terms 'accrue' and 'arise' are synonymous with respect to when a cause of action comes into existence ...." Id. ; see also Accrue , Black's Law Dictionary (10th ed. 2014) ("To come into existence as an enforceable claim or right; to arise.").

"The purpose of the Florida Wrongful Death Act is to provide a 'separate and independent' cause of action since the original cause of action for personal injury did 'not survive' the death of the injured party." Kelly v. Georgia-Pacific, LLC , 211 So.3d 340, 342 (Fla. 4th DCA 2017) (citations omitted). "Wrongful death actions are brought on behalf of the survivors, not to recover for injuries to the deceased, but to recover for statutorily identified losses the survivors have suffered directly as a result of the death." DeVaughn v. DeVaughn , 840 So.2d 1128, 1132 (Fla. 5th DCA 2003).

Florida law is clear: a cause of action for wrongful death accrues on the date of the decedent's death. See Fulton Cty. Adm'r v. Sullivan , 753 So.2d 549, 552 (Fla. 1999) ("In Florida, a cause of action for wrongful death accrues on the date of death."); Love v. Hannah , 72 So.2d 39, 41 (Fla. 1954) ("The plaintiffs' right of action under the wrongful death statute must be determined by the facts existing at the time of the death of decedent."); St. Francis Hosp. v. Thompson , 159 Fla. 453, 31 So.2d 710, 711 (1947) ("Plaintiff's cause of action did not accrue by reason of the wrongful act alone. It took a wrongful act and death to give plaintiff a cause. The statute of limitations commenced to run upon death."); Domino's Pizza, LLC, v. Wiederhold , 248 So.3d 212, 219 (Fla. 5th DCA 2018) ("This conclusion is consistent with cases recognizing that wrongful death actions accrue on the date of the decedent's death."); MacDonald , 645 So.2d at 1057 ("A cause of action for wrongful death accrues on the date of decedent's death."); Bruce v. Byer , 423 So.2d 413, 414-15 (Fla. 5th DCA 1982) ("The general rule is that a cause of action for wrongful death accrues upon the date of the decedent's death."); Moorey v. Eytchison & Hoppes, Inc. , 338 So.2d 558, 559 (Fla. 2d DCA 1976) ("The cause of action for wrongful death accrues upon the date of the decedent's death."); Fletcher v. Dozier , 314 So.2d 241, 241 (Fla. 1st DCA 1975) ("The [wrongful death] cause of action accrues and the statute [of limitations] commences to run on the date of such death."); Walker v. Beech Aircraft Corp. , 320 So.2d 418, 420 (Fla. 3d DCA 1975) ("Here, appellant's cause of action accrued at the date of her husband's death.").

Thus, when one considers the express language of the 1999 version of the punitive damages statute-that it applies to all causes of action arising after its effective date of October 1, 1999-combined with Florida's general rule that the statute in effect when a cause of action accrues is applicable, and well-established Florida law that a wrongful death cause of action accrues on the date of death, which here was 2007, one would expect no debate that the punitive damages issues in the underlying trial would have been governed by the 1999 version of the statute rather than the pre-1999 version. Yet the Estate argues, the trial court found, and three other district courts of appeal have concluded that the outcome is different for an Engle -progeny wrongful death case. We will next consider that line of reasoning and explain why we conclude it does not withstand scrutiny.

Engle : Manifestation vs. Accrual

In order to be considered a member of the Engle class, the plaintiff or the plaintiff's decedent must have manifested one of the smoking-related diseases or conditions prior to the cut-off date of November 21, 1996. R.J. Reynolds Tobacco Co. v. Ciccone , 190 So.3d 1028, 1030 (Fla. 2016). The Florida Supreme Court conferred two benefits upon the Engle class members: "(1) each class member's time to file an individual suit would be equitably tolled to allow filing within one year of the court's decision, and (2) in the individual action, the Engle jury's 'common core findings' in Phase I"-that the tobacco companies were negligent, marketed defective cigarettes, and conspired to conceal the risk of smoking-"would be given 'res judicata effect.' " Id. at 1037 (internal citations omitted). In Engle , the supreme court found several reasons to vacate the original class-wide verdict awarding punitive damages, finding instead that separate punitive damages determinations would be made in each individual's case. Thus, Engle punitive damages are not subject to issue preclusion via res judicata treatment. Engle v. Liggett Group, Inc. , 945 So.2d 1246, 1263-65, 1277 (Fla. 2006). Here, the parties stipulated that Mr. Sheffield's 1994 lung cancer was a contributing cause of his death in 2007, and on appeal neither party contests Engle class membership.

The Estate asserts that "manifestation" sufficient to be an Engle class member is the equivalent of the "accrual" of the Estate's cause of action in 1994, which was before the effective date of the 1999 version of the punitive damages statute. The Estate conflates "accrual" with "manifestation" as though the terms were interchangeable. However, the Florida Supreme Court in Ciccone made it clear that "manifestation" and "accrual" are distinct concepts: "[S]tatute of limitations principles are inapplicable to the 'manifestation' issue of Engle class membership." Ciccone , 190 So.3d at 1037. " '[M]anifestation' for purposes of establishing membership in the Engle class means the point at which the plaintiff began suffering from or experiencing symptoms of a tobacco-related disease or medical condition." Id. at 1030. The supreme court noted that under the definition of manifestation it adopted, "the plaintiff does not need to have been formally diagnosed or know that the symptoms were tobacco-related prior to the 'cut-off date' for class membership." Id. at 1031. However, the supreme court has held that a cause of action for latent or "creeping diseases" does not accrue and the statute of limitations does not begin to run until the plaintiff has knowledge of the causal connection between the infirmity and the product in question. Id. at 1038. "[I]t is clear that a plaintiff should not, and cannot, be required to file a cause of action before even realizing that the cause of action exists." Id. The supreme court noted that "the policy concerns driving cases involving the accrual of a cause of action for statute of limitations purposes have no bearing on the policy for requiring 'manifestation' to prove membership in the Engle class." Id. at 1037. "Moreover, manifestation of a tobacco-related disease for purposes of establishing Engle class membership is a completely separate issue from the date a cause of action accrues or arises." Martin , 266 So.3d at 776 (citing Ciccone , 190 So.3d at 1039 ).

When Reynolds previously attempted to equate Engle class membership with the accrual of a cause of action, the Florida Supreme Court made it crystal clear that this line of reasoning was incorrect:

Simply put, the policy undergirding the "manifestation" of an injury for the accrual of a cause of action is not the same as the policy rationale for the "manifestation" requirement to establish Engle class membership. Accrual is simply not the relevant inquiry for determining Engle class membership.... Because R.J. Reynold's argument regarding statute of limitations principles "fails to take into account the differences in policy between the accrual of a cause of action for the purposes of the statute of limitations and pinpointing a date for class membership by looking back in time from the 2006 Engle decision," this argument is unavailing ....

Ciccone , 190 So.3d at 1039 (internal citations omitted).

In R.J. Reynolds Tobacco Co. v. Allen , 228 So.3d 684 (Fla. 1st DCA 2017), the First District dealt with an Engle -progeny case that had been timely commenced as a personal injury case, which was then converted into a wrongful death action when Allen passed away. In Allen , the First District conflated Engle class membership with accrual of the relevant cause of action. After acknowledging that "[i]n many wrongful death actions, the cause of action accrues on the date of a decedent's death," that court then concluded that Engle -progeny cases were different because class membership depended upon manifestation rather than accrual. Id. at 689.

Given the supreme court's lengthy discussion in Ciccone about how the accrual of a cause of action is irrelevant to Engle class membership, it is unclear why the First District concluded that class membership was not only relevant to, but in fact determined, when a cause of action accrued. There are many people who potentially were Engle class plaintiffs because they were Florida residents who manifested signs of a smoking-related illness or disease before the November 21, 1996 recertification date, but whose causes of action had not accrued by the filing deadline in 2007 because they were not yet on reasonable notice of a causal connection between their use of tobacco and the illness or disease. Furthermore, because a wrongful death action is "separate and independent," it cannot arise until death has occurred. See Kelly , 211 So.3d at 342. "Plaintiff's cause of action did not accrue by reason of the wrongful act alone. It took a wrongful act and death to give plaintiff a cause." Thompson , 31 So.2d at 711.

The First District also improperly relied upon the concept that both the wrongful death action and punitive damages claim related back to the "date of the Engle class for statute of limitations purposes" based upon a misapplication of In re Engle Cases , 45 F.Supp.3d 1351 (M.D. Fla. 2014). Allen , 228 So.3d at 690. Both Allen and In re Engle Cases dealt with cases in which "the original complaints (filed by the then-alive plaintiffs) were timely filed," and then became potential wrongful death cases when each plaintiff passed away. In re Engle Cases , 45 F.Supp.3d at 1356 ; see Allen , 228 So.3d at 690. The Middle District concluded that plaintiffs would be permitted to file amended complaints substituting wrongful death claims for personal injury claims and the wrongful death claims would be deemed timely filed because they would relate back to the dates on which the corresponding original personal injury complaints were filed. In re Engle Cases , 45 F.Supp.3d at 1360-61. In Allen , the First District mistakenly suggested that In re Engle Cases found that wrongful death actions would relate back to the date of the Engle class for statute of limitations purposes. Allen , 228 So.3d at 690. However, as noted, the Middle District held that the amended complaints asserting wrongful death would relate back to the date of each plaintiff's original personal injury complaint, not to the date of the class-action complaint filed in May 1994. Had the First District properly applied In re Engle Cases , it would have concluded that the amended complaint for wrongful death filed by Allen's estate related back to the date when Allen's personal injury complaint was filed, rather than to the date on which Allen manifested smoking-related disease symptoms. Here, Mr. Sheffield never filed a personal injury complaint, so the relation-back doctrine is inapplicable.

Although in Allen the First District cited Engle and Ciccone as support for its assertion that Engle cases are not subject to the usual rule-that wrongful death actions accrue on the date of death-neither of those cases so held. For the reasons discussed, we believe that the First District incorrectly concluded that the pre-1999 punitive damages statute would apply to a cause of action arising after 1999.

In R.J. Reynolds Tobacco Co. v. Evers , 232 So.3d 457 (Fla. 2d DCA 2018), the Second District also conflated "manifestation" for purposes of class membership with the "accrual" of a cause of action. Id. at 461. Evers was commenced as a wrongful death action following Mr. Evers's death in 2007. In large part, Evers relies upon and quotes from the Allen case, discussed above. Thus, we need not repeat the bases for our disagreement.

Citing Allen and Evers , the Fourth District announced its agreement with the First and Second Districts "in holding that the pre-1999 version of section 768.73, Florida Statutes, applies in an Engle progeny personal injury suit that is converted into a wrongful death action upon the smoker's death." R.J. Reynolds Tobacco Co. v. Estate of Konzelman , 248 So.3d 134, 135 (Fla. 4th DCA 2018). The Konzelman opinion contains no information about when Ms. Konzelman's personal injury cause of action arose, nor does it provide information about when she died. One would assume from the opinion that Ms. Konzelman, the decedent, manifested a smoking-related illness or disease by the November 21, 1996 cut-off date for Engle class membership. In a more recent Engle -progeny punitive damages case, the Fourth District noted that "manifestation of a tobacco-related disease for purposes of establishing Engle class membership is a completely separate issue from the date a cause of action accrues or arises." Martin , 266 So.3d at 776 (citing Ciccone , 190 So.3d at 1039 ). As the Fourth District gave no basis in Konzelman for its conclusion other than its agreement with the First and Second Districts, there is nothing else that needs to be said other than we disagree for the reasons expressed above.

CONCLUSION

For the reasons discussed above, we hold that the Estate's wrongful death cause of action accrued on the date of Mr. Sheffield's death in 2007, making the 1999 version of section 768.73, Florida Statutes, applicable to the punitive damages issues in this case and to the possible retrial of those issues. We reverse that portion of the judgment awarding punitive damages and remand to the trial court for further proceedings consistent with this opinion, which may include a new trial regarding only punitive damages issues. We affirm the remainder of the final judgment after carefully considering the additional issues raised by Reynolds.

We certify that our opinion in this case directly and expressly conflicts with the decisions of R.J. Reynolds v. Konzelman , 248 So.3d 134 (Fla. 4th DCA 2018) ; R.J. Reynolds Tobacco Co. v. Evers , 232 So.3d 457 (Fla. 2d DCA 2017) ; and R.J. Reynolds Tobacco Co. v. Allen , 228 So.3d 684 (Fla. 1st DCA 2017).

AFFIRMED IN PART, REVERSED IN PART, REMANDED FOR FURTHER PROCEEDINGS REGARDING PUNITIVE DAMAGES, AND CONFLICT CERTIFIED.

COHEN, J., concurs.

LAMBERT, J., concurs in part, and dissents in part, with opinion.

LAMBERT, J., concurring, in part, and dissenting, in part.

I concur with affirming the award of $ 1.8 million in compensatory damages. As to the reversal of the punitive damages award, the majority opinion holds that the post-1999 version of section 768.73, Florida Statutes, applies to the instant wrongful death action because this cause of action did not accrue until the death of the decedent, Valton Sheffield, in 2007. However, because I believe that the trial court properly applied the pre-1999 version of this punitive damages statute, I dissent from that portion of the opinion.

Mr. Sheffield's cause of action for personal injuries and illnesses related to his use of cigarettes manufactured and distributed by R.J. Reynolds accrued in 1994 when he was first diagnosed with lung cancer. Stated differently, Mr. Sheffield could have filed his own suit against R.J. Reynolds for his tobacco-related personal injuries and illnesses long before the 1999 amendment to the punitive damages statute. If he had and later died after 1999 due to his illness, his personal right to seek punitive damages under the pre-1999 statute would have survived the merger or amendment into the later wrongful death claim brought by his estate. See Martin v. United Sec. Servs., Inc., 314 So.2d 765, 771-72 (Fla. 1975) (allowing for punitive damages upon merger of personal injury survival action into wrongful death claim).

Mr. Sheffield deferred filing his own suit and instead participated as a class member in the lengthy Engle class action tobacco litigation. That case essentially did not conclude until the Florida Supreme Court issued its opinion in 2006 that, among other things, approved the decertification of the class but provided each class member a one-year window from the issuance of its mandate to bring an individual action. Engle , 945 So.2d at 1277. In my view, the fact that Mr. Sheffield elected to forego filing his individual action against R.J. Reynolds prior to 1999 and instead remained a part of the Engle class action litigation against R.J. Reynolds and the other defendants should not be dispositive.

The Fourth District Court of Appeal recently observed in another Engle case that when a claimant could have brought his or her personal injury claim prior to 1999 and later succumbs to the very disease "[i]t is of no consequence that [suit] had not been filed prior to the 1999 amendment, as the relevant inquiry is when did the claims arise or accrue." Martin , 266 So.3d at 774. I agree with this analysis and with the decisions of our sister courts in Allen , Evers , and Konzelman , cited in the majority opinion, to the extent that they determined the pre-1999 punitive damages statute applies or essentially relates back to the Engle class-action complaint when the Engle class member dies after 1999 as a result of his or her tobacco-related personal injury or illness claim that arose prior to the 1999 statutory amendment. Here, the parties stipulated that Mr. Sheffield's tobacco-related lung cancer first diagnosed in 1994 was a contributing legal cause of his death in 2007.

I would affirm the $ 5 million punitive damages award.

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

      However, section 768.73(2)(b) permits the trial court to submit punitive damages to the jury "if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant's behavior."

      Reynolds appeals the use of the Engle common core res judicata liability findings, asserting that it violates federal due process and that the Estate's strict-liability and negligence claims are pre-empted by federal law. Reynolds concedes that those issues were litigated before the Florida Supreme Court, which denied those arguments; Reynolds raises them here for the purpose of preserving them for later review.

      The Allen opinion does not state when Ms. Allen's personal injury cause of action arose separate from the fact that her illness manifested itself prior to the November 21, 1996 cut-off date. Her personal injury suit was filed in 2007 and was converted into a wrongful death action in 2009.

      As noted above, Evers was originally a wrongful death case; it was not commenced as a personal injury claim that was converted to a wrongful death case.

      Martin concerned an Engle class member whose class-qualifying disease manifestation was a tobacco-related heart attack. 266 So.3d at 769-70. However, Mrs. Martin ultimately died in 2004 from tobacco-related lung cancer that manifested itself in 2003. Id. Under those circumstances, the Fourth District found that her cause of action accrued in 2003 when she first manifested lung cancer, making the punitive damages statute that became effective October 1, 1999, applicable. Id. at D2749. Thus, Martin also conflated "disease manifestation" with "accrual of a cause" of action because it did not use the date of death to determine when the cause of action accrued. However, the Fourth District in Martin did reject the concept that all Engle -progeny claims relate back to the 1994 Engle class action complaint. Id.

      Because section 768.73(2)(b) permits the trial court to submit punitive damages to the jury "if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant's behavior," whether the punitive damages award will be stricken or whether a new trial limited to punitive damages must take place depends initially on the trial court's determination of that statutory issue. Because the trial court ruled that the pre-1999 punitive damages statute controlled, it made no findings on the sufficiency of prior awards. Even if the trial court found the prior punitive damage awards did not sufficiently punish Appellant's behavior, a new trial may not be justified, as a practical matter, because that same statutory subsection provides that any such award "must be reduced by the amount of any earlier punitive damages awards rendered in state or federal court." See Martin , 266 So.3d at 776 n.3.

      As indicated in the majority opinion, it is undisputed that Mr. Sheffield is an Engle class member, which the Florida Supreme Court defined to include "[a]ll [Florida] citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine." Engle , 945 So.2d at 1256.


text:
    Jens P. HANSEN, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D18-2792
    District Court of Appeal of Florida, First District.
    February 12, 2019 Rehearing Denied April 2, 2019
    Jens P. Hansen, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Wetherell, and Makar, JJ., concur.


author: Osterhaus, J. Makar, J., dissenting.

text:
    Kelvin Terrill DORTCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3363
    District Court of Appeal of Florida, First District.
    February 15, 2019 Rehearing Denied March 29, 2019
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Osterhaus, J.

Kelvin Terrill Dortch appeals from a re-sentencing in which he was sentenced to concurrent life sentences for his crimes. We affirm. We disagree with Mr. Dortch's argument that our prior mandate in Dortch v. State , 137 So.3d 1173 (Fla. 1st DCA 2014) entitled him to be sentenced to concurrent terms of 40 years incarceration. We also conclude that the trial court made the findings required by section 921.1401, Florida Statutes before imposing life sentences.

I.

Mr. Dortch's case has a complex sentencing history. On August 25, 1992, the State charged Mr. Dortch by indictment with committing multiple crimes including sexual battery and armed robbery. On March 9, 1994, he was found guilty by a jury. The trial court sentenced him to life incarceration for the sexual battery count and two robbery counts.

After the United States Supreme Court decided Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the State filed a motion to correct Mr. Dortch's illegal life sentence. The trial court granted the State's motion and resentenced Mr. Dortch to concurrent terms of 40 years' incarceration for the sexual battery count and one of the robbery counts, running them consecutive with the other robbery count and with the sentence from another case (case number 92-4605).

Mr. Dortch appealed the new sentence asserting, among other things, that the court failed to follow the parties' prior stipulation that his sentences run concurrent with the sentence in the other 92-4605 case. Dortch v. State , 137 So.3d 1173, 1174 (Fla. 1st DCA 2014). This court agreed that Appellant was "entitled to be resentenced in accordance with the stipulation,"

and reversed and remanded. Id. at 1177-78.

On remand, Mr. Dortch asked the trial court to simply make his sentence in the other 92-4605 case concurrent with his 40-year sentences. But the court chose instead to fully resentence him under the framework established in section 921.1401, Florida Statutes. After taking evidence, the trial court re-sentenced Mr. Dortch to concurrent life sentences on the sexual battery and each of the robbery counts, to run concurrent with his sentence in the 92-4605 case. This appeal followed.

II.

A.

Mr. Dortch contends first that the court's imposition of life sentences pursuant section 921.1401 exceeded the scope of the mandate in Dortch , 137 So.3d 1173, and violates double jeopardy principles. We disagree. In Dortch , this court reversed and remanded the 40-year consecutive sentences, finding that Mr. Dortch was "entitled to be resentenced in accordance with the stipulation," so that his sentences would run concurrently with his sentence in the other 92-4605 case. Id. at 1177. The dispositional language at the end of the opinion was "Reversed and remanded" with no specific directions. Id. at 1178.

"When an order or judgment is reversed and remanded, the lower tribunal has authority to conduct further proceedings in conformity with the instruction of the appellate court." Collins v. State , 680 So.2d 458, 459 (Fla. 1st DCA 1996). Only when the appellate court provides specific instructions, is the otherwise broad authority of a trial court narrowly constrained. Id. Here, with no specific directions to the contrary, the well-established principle is that "resentencing is a de novo proceeding in which the decisional law effective at the time of the resentencing applies." State v. Fleming , 61 So.3d 399, 400 (Fla. 2011). Thus, under the terms of the Dortch mandate, the trial court had authority to conduct de novo resentencing. Its actions were perfectly appropriate because "where a sentence has been reversed or vacated, the resentencings in all criminal proceedings ... are de novo in nature." Id. at 406. "[T]he full panoply of due process considerations attach ... [and] both parties may present new evidence bearing on the sentence." Id. (citing State v. Scott , 439 So.2d 219, 220 (Fla. 1983) ).

The State is also correct that by the time of Mr. Dortch's second resentencing, the decisional law provided for re-sentencing pursuant to chapter 2014-220, Laws of Florida (which is codified in section 921.1401, Florida Statutes ). Indeed, the Court in Kelsey v. State , 206 So.3d 5, 11 (Fla. 2016), held that in the Graham resentencing context, a defendant's 45-year sentence without the benefit of review under section 921.1402 was illegal because "the Legislature has determined that the 'means and mechanisms for compliance' with Graham are to provide judicial review for juvenile offenders" who are sentenced to lengthy terms of years. This holding was applied to a sentence of 40 years incarceration in Lee v. State , 234 So.3d 562 (Fla. 2018).

Double jeopardy principles also did not preclude the imposition of a life sentence in this case. Mr. Dortch's original sentence was life incarceration, which was vacated in the aftermath of and pursuant to Graham . The Florida Supreme Court has made clear that jeopardy only attaches to legal sentences. Kelsey , 206 So.3d at 11. So when Mr. Dortch was resentenced under the new law's provisions, the State could "again seek life imprisonment with judicial review." Id. Jeopardy did not attach to Mr. Dortch's 40-year sentences because they were illegal under Kelsey and Lee . As such, the imposition of a life sentence pursuant to section 921.1401 was not error and did not violate double jeopardy principles.

B.

Mr. Dortch next contends that the trial court erred in declining to make specific findings regarding the factors enumerated in section 921.1401(2) and implemented via Florida Rule of Criminal Procedure 3.781(c).

In imposing Mr. Dortch's sentence, the trial court made it clear at the resentencing hearing and in its written order that it had reviewed and considered the factors listed in § 921.1401(2) before it resentenced Mr. Dortch to life imprisonment. Twice at the hearing, the trial court stated the findings specifically required by the rule: that all relevant factors required by § 921.1401(2) had been "reviewed and considered by the Court, including the entire record and the evidence and arguments submitted at the sentencing hearing ... and that a sentence of life imprisonment is appropriate." The trial court's written order said much the same thing: "the Court considered the evidence related to the offense, the defendant's youth and attendant circumstances, including, but not limited to those enumerated in § 921.1401(2), Florida Statutes [and] has concluded that a sentence of life imprisonment is appropriate."

These findings are all that the statute and rule require. Section 921.1401(2) sets forth no requirement to make detailed findings on all ten of its factors. Indeed, the statute's "including, but not limited to" language indicates that the statute's list isn't exhaustive of what courts must consider: "In determining whether life imprisonment ... is an appropriate sentence, the court shall consider factors relevant to the offense and the defendant's youth and attendant circumstances, including, but not limited to : [the 10-factor list]." Id.

Rule 3.781(c) implements this statute by requiring that courts make two "specific" findings on the record:

The court shall make specific findings on the record that all relevant factors have been reviewed and considered by the court prior to imposing a sentence of life imprisonment or a term of years equal to life imprisonment.

Fla. R. Crim. P. 3.781(c). Specifically, courts must find on the record that they have (1) "reviewed" and (2) "considered" all relevant factors prior to imposing a life sentence. The rule's requirements go no further than that. The rule doesn't say, for instance, that trial courts must make findings as to each of the ten § 921.1401(2) factors, in addition to whatever other factors they review and consider, in pronouncing a sentence.

And so, in this case, the trial court conducted an adequate resentencing hearing. It went over the statutory factors and heard evidence about them. Then, it acknowledged that it had "reviewed and considered" all relevant factors as required by the statute and rule before sentencing Mr. Dortch to life. Under these circumstances, the trial court did all that was required under the statute and rule in exercising its judicial authority to render a life sentence. Cf. Mendoza-Magadan v. State , 217 So.3d 112 (Fla. 4th DCA 2017) (concluding that specific findings were not required in a different juvenile sentencing context); Chavez-Mesa v. U.S. , --- U.S. ----, 138 S.Ct. 1959, 201 L.Ed.2d 359 (2018) (finding a trial judge's form-order decision to have satisfied the Federal Sentencing Guidelines' requirement to "state in open court the reasons for [imposing] the particular sentence").

III.

Finally, we affirm the trial court's decision not to impanel a jury for the resentencing under the authority of Copeland v. State , 240 So.3d 58, 59-60 (Fla. 1st DCA 2018). We also affirm as to Mr. Dortch's remaining claims without comment.

AFFIRMED .

Jay, J., concurs; Makar, J. dissents with opinion.

Makar, J., dissenting.

This dissent is among the most unlikely because I dissented in Dortch v. State , 137 So.3d 1173, 1179 (Fla. 1st DCA 2014) ( Dortch I ), concluding that Dortch had either waived or abandoned the stipulation at issue and was not entitled to its benefit at resentencing on remand. I disagreed with the panel majority's conclusion as to the vitality of the decades-old stipulation, but I fully understood their clearly-stated intent, which was that Dortch was "entitled to the benefit of the bargain" on remand and that he was "entitled to be resentenced in accordance with the stipulation." Id. at 1177 (emphasis added). The remand in Dortch I was predicated on the specific holding that Dortch was entitled to resentencing in accord with the stipulation, which is the law of the case and must be honored as binding. See generally Phillip J. Padovano, Florida Appellate Practice , § 20:12 ("Law of the Case") (2018). As such, I fail to see any basis that justified Dortch being resentenced de novo on remand as if the stipulation never existed. This case does not involve a general, undifferentiated remand without directions where broad discretion is accorded to the trial judge. See Collins v. State , 680 So.2d 458, 459 (Fla. 1st DCA 1996). Instead, it involves a specific holding that limited the scope of remand to the stipulation. This limitation didn't have to be in the dispositional language at the end of the opinion, as long as it was evident in the prior panel's opinion, as it was in this case. See, e.g. , Ketcher v. Ketcher , 188 So.3d 991, 994 (Fla. 1st DCA 2016) ( Ketcher I ) (panel's directions as to remand contained in body of opinion), opinion after remand , Ketcher v. Ketcher , 198 So.3d 1061, 1063 (Fla. 1st DCA 2016) (holding that trial court exceeded mandate set forth in Ketcher I ). Dortch is unequivocally entitled to the benefit of the stipulation, which subjects him to concurrent 40-year sentences versus the de novo resentencing that netted him life. Denying Dortch of the benefit of the stipulation amounts to a breach of the mandate and a due process violation.

      Section 921.1401(2), Fla. Stat. provides that
      (2) In determining whether life imprisonment or a term of years equal to life imprisonment is an appropriate sentence, the court shall consider factors relevant to the offense and the defendant's youth and attendant circumstances, including, but not limited to:
      (a) The nature and circumstances of the offense committed by the defendant.
      (b) The effect of the crime on the victim's family and on the community.
      (c) The defendant's age, maturity, intellectual capacity, and mental and emotional health at the time of the offense.
      (d) The defendant's background, including his or her family, home, and community environment.
      (e) The effect, if any, of immaturity, impetuosity, or failure to appreciate risks and consequences on the defendant's participation in the offense.
      (f) The extent of the defendant's participation in the offense.
      (g) The effect, if any, of familial pressure or peer pressure on the defendant's actions.
      (h) The nature and extent of the defendant's prior criminal history.
      (i) The effect, if any, of characteristics attributable to the defendant's youth on the defendant's judgment.
      (j) The possibility of rehabilitating the defendant.


author: PER CURIAM.

text:
    Antonio WELCH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3550
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 1, 2019 Rehearing Denied April 8, 2019
    Antonio Welch, Clermont, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant appeals the trial court's denial of his Florida Rule of Criminal Procedure 3.800(a) motion for postconviction relief in Orange County Circuit Court Case No. 2008-CF-000699-AO. We affirm the trial court's order and caution Appellant that abusive, repetitive, malicious, or frivolous filings directed to the identified lower court case number may result in sanctions such as a bar on pro se filing in this Court and referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See § 944.279(1), Fla. Stat. (2018) ; State v. Spencer , 751 So.2d 47 (Fla. 1999).

AFFIRMED.

EDWARDS, EISNAUGLE, and HARRIS, JJ., concur.


text:
    Angel Ruben Lopez HERNANDEZ, Beneficiary and Former Personal Representative of the Estate of Angel Lopez Maldonado, Appellant, v. Angel Raul Lopez HERNANDEZ, Beneficiary and Administrator Ad Litem of the Estate of Angelo Lopez Maldonado, Star Insurance Company, Julius S. Williams, Esquire, Appellees.
    Case No. 5D17-3006
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 19, 2019 Rehearing Denied March 27, 2019
    Angel Ruben Lopez Hernandez, Dublin, Ohio, pro se.
    Angel Raul Lopez Hernandez, Miramar, pro se.
    No Appearance for Other Appellees.
   PER CURIAM.

AFFIRMED. See § 733.609(1), Fla. Stat. (2016) ("A personal representative's fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss resulting from the breach of this duty.").

ORFINGER, BERGER and WALLIS, JJ., concur.


author: Damoorgian, J.

text:
    Jose Miguel MORENO, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1100
    District Court of Appeal of Florida, Fourth District.
    March 6, 2019
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Appellant, Jose Moreno, appeals an order modifying his probation based on the court's finding that Appellant violated the terms of his probation by being in possession of a firearm and marijuana. On appeal, Appellant challenges the sufficiency of the evidence supporting the court's possession findings and also argues that he is entitled to resentencing based on a scoresheet error. We hold that there was competent, substantial evidence supporting the court's finding that Appellant violated the terms of his probation and affirm without further comment. We write only to address the scoresheet error.

At sentencing, the State presented a scoresheet identifying carrying a concealed firearm as the primary offense and driving in violation of a driver's license restriction as an additional offense. Appellant's lowest permissible sentence under the scoresheet was a non-prison sanction. Based on Appellant's scoresheet, the court found that prison time was inappropriate. However, because Appellant was found in possession of a firearm just six days after he was placed on probation for being in possession of a firearm, the court extended Appellant's probation by an additional three years.

On appeal, Appellant argues and the State concedes that driving in violation of a driver's license restriction, a misdemeanor, should not have been scored as an additional offense since Appellant completed his sentence for that offense before the violation of probation occurred. Somps v. State , 183 So.3d 1090, 1092 (Fla. 4th DCA 2015) ("An offense should not be scored as an additional offense following the revocation of a defendant's probation if the defendant completed his sentence as to that offense before the VOP occurred."). This error resulted in Appellant being assigned an additional .2 points on his scoresheet.

"A defendant who illustrates an erroneous imposition of points on his scoresheet is entitled to have the errors corrected. However, that defendant is not entitled to resentencing if the errors were harmless." Zelaya v. State , 257 So.3d 493, 497 (Fla. 4th DCA 2018) (internal citation omitted). "A scoresheet error 'is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.' " Id . (quoting Brooks v. State , 969 So.2d 238, 241 (Fla. 2007) ).

Here, the record conclusively shows that Appellant's sentence would have been the same under a correct scoresheet. Excluding the erroneously included .2 points would not have altered Appellant's recommended guideline sentence of a non-prison sanction. While this in and of itself does not establish that the error was harmless, cf. Lopez v. State , 811 So.2d 815, 816 (Fla. 2d DCA 2002), the court's comments during sentencing establish that its sentence would have been the same with or without its consideration of the extra .2 points for the driver's license offense, see Noa v. State , 199 So.3d 1004, 1005 (Fla. 4th DCA 2016) (court's comments during sentencing established that scoresheet error was harmless). Accordingly, we affirm Appellant's sentence, but remand for the entry of a corrected scoresheet.

Affirmed and remanded.

Warner and Levine, JJ., concur.


text:
    Willie James JONES, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2953
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019
    Willie James Jones, Lake Butler, pro se.
    Ashley Moody, Attorney General, Tallahassee, and, Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee
   PER CURIAM.

Willie Jones petitions for a writ of habeas corpus, alleging, inter alia, that his appellate counsel was ineffective for failing to appeal the denial of his motion for judgment of acquittal. We grant the writ. Pursuant to our decision in Clay v. State , 226 So.3d 346 (Fla. 5th DCA 2017), the motion for judgment of acquittal was meritorious.

Because a second appeal would be redundant, we remand for the trial court to enter a judgment of acquittal. See Delgado v. State , 174 So.3d 1071, 1074 (Fla. 5th DCA 2015) ("Because a new appeal would be redundant, we remand with directions for the trial court to vacate Delgado's judgment and sentence ... on count two.")

PETITION GRANTED; REMANDED with instructions.

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


text:
    Pedro Andres BRAVO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-5208
    District Court of Appeal of Florida, First District.
    March 11, 2019 Rehearing Denied April 5, 2019
    Pedro Andres Bravo, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Roberts, Ray, and Jay, JJ., concur.


text:
    Arthur L. BELTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4372
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Arthur L. Belton, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Ray, and Jay, JJ., concur.


text:
    Madonna WHITTAKER, Appellant, v. PNC BANK, NATIONAL ASSOCIATION, as successor by merger to RBC Bank (USA), f/k/a RBC Centura Bank, Wells Fargo Bank, N.A. and Allen Daniel Holland, Appellees.
    Case No. 5D18-2916
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019 Rehearing Denied April 11, 2019
    Madonna H. Whittaker, Windermere, pro se.
    Sean K. Mills, of O'Kelley and Sorohan, Attorneys at Law, LLC, Maitland, for Appellee PNC Bank, National Association, as Successor by Merger to RBC Bank (USA), F/K/A RBC Centura Bank.
    No Appearance for other Appellees.
   PER CURIAM.

Appellant, Madonna Whittaker, appeals the amended final judgment of foreclosure and the order denying her "Objection to Nonservice, Foreclosure Sale, etc.; and Motion to Strike, Quash and Vacate." Appellee, PNC Bank, N.A., concedes that the lower court lacked personal jurisdiction over defendants Tenant I (who is Appellant), Tenant II, and Unknown Spouse of Allen Daniel Holland, because Appellee did not obtain personal service of process for the subject foreclosure action on those defendants. Accordingly, this Court reverses the final judgment and remands this cause to the trial court to enter an amended final judgment of foreclosure that does not include Appellant/Tenant I, Tenant II, and Unknown Spouse of Allen Daniel Holland as defendants or judgment debtors. The amended final judgment shall be effectively dated nunc pro tunc May 31, 2018. Appellee at its expense shall promptly cause to be recorded in the public land records of Orange County, Florida, and in every other county in which a judgment in this case was filed or recorded, certified copies of: (1) this opinion, (2) the mandate that will issue in this case, and (3) the amended final judgment called for herein.

Appellant lacks standing to assert any arguments on behalf of Allen Daniel Holland, and Appellee has not conceded error regarding obtaining judgment against Mr. Holland. Appellant's motion for attorney's fees is denied as there is no basis in law to grant same. Appellant's motion to tax her appellate costs is denied without prejudice for her to timely file a motion to tax appellate costs in the circuit court pursuant to Florida Rule of Appellate Procedure 9.400(a).

REVERSED and REMANDED.

LAMBERT, EDWARDS and GROSSHANS, JJ., concur.


author: WALLIS, J.

text:
    Jessica CONTI, Appellant, v. James AUCHTER and Ashlee Auchter, Appellees.
    Case No. 5D18-696
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019 Rehearing Denied April 9, 2019
    Mark D. Tinker, Kathryn L. Ender, and Therese A. Savona, of Cole, Scott & Kissane, P.A., Tampa, for Appellant.
    N. John Hedrick, Jr., and Gregory J. Donoghue, of Law Offices of Donoghue & Associates, Melbourne, for Appellees.
   WALLIS, J.

Jessica Conti was sued by James Auchter after she rear-ended his truck with her car. He sought damages for lower back injuries, and Ashlee Auchter, James's wife, sued for loss-of-consortium. James served Conti a proposal for settlement for the personal injury claim, and Conti served Ashlee a proposal for settlement for the loss-of-consortium claim. Neither party accepted the proposed settlement offers. Ultimately, the jury concluded that James had not suffered a permanent injury. As a result, the jury did not award Ashlee any damages for her loss-of-consortium claim.

In connection with the rejected proposal for settlement, Conti moved for attorney's fees for defending both claims, arguing that James's injury claim was inextricably intertwined with Ashlee's loss-of-consortium claim. The trial court, while acknowledging the intertwined nature of the claims, found that the claims were not inextricably intertwined because the loss-of-consortium claim is derivative. Because this was error, we reverse.

"[T]he party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible." Effective Teleservices, Inc. v. Smith, 132 So.3d 335, 339 (Fla. 4th DCA 2014) (quoting Chodorow v. Moore, 947 So.2d 577, 579 (Fla. 4th DCA 2007) ). "Claims are 'inextricably intertwined' when a 'determination of the issues in one action would necessarily be dispositive of the issues raised in the other.' " Id. (quoting Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 172 (Fla. 4th DCA 2002) ). In other words, "where the claims involve a 'common core' of facts and are based on 'related legal theories,' a full fee may be awarded unless it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney's fees were sought." Boswell v. Shirley's Pers. Care Servs. of Okeechobee, Inc., 211 So.3d 210, 212 (Fla. 4th DCA 2017) (quoting Anglia Jacs & Co., 830 So.2d at 172 ).

The derivative nature of a loss-of-consortium claim, while being a separate cause of action, supports the conclusion that the instant claims are inextricably intertwined. See § 627.737, Fla. Stat. (2012) ("In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided ... a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience ... only in the event that the injury or disease consists [of, inter alia ,] ... [p]ermanent injury within a reasonable degree of medical probability ...."); Randall v. Walt Disney World Co., 140 So.3d 1118, 1121 (Fla. 5th DCA 2014) ("Florida case law recognizes that loss-of-consortium is a separate cause of action belonging to the spouse of the injured married partner, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium." (quoting Orange Cty. v. Piper, 523 So.2d 196, 198 (Fla. 5th DCA 1988) ) ). Both claims were based on a core set of facts and the determination of the permanency issue was dispositive in the consortium claim. See Boswell, 211 So.3d at 212 ; Effective Teleservices, Inc., 132 So.3d at 339. Therefore, when, like here, a defendant successfully defeats a loss-of-consortium claim by proving a lack of permanency of the plaintiff spouse's injury, then the claims are inextricably intertwined. See Boswell, 211 So.3d at 212 ; Effective Teleservices, Inc., 132 So.3d at 339.

Despite the Auchters' arguments to the contrary, we are unconvinced that Saunders v. Dickens, 103 So.3d 871, 881 (Fla. 4th DCA 2012), decision quashed on other grounds, 151 So.3d 434 (Fla. 2014), or Blanton v. Godwin, 98 So.3d 609, 612 (Fla. 2d DCA 2012), precludes this holding. The courts in Saunders and Blanton refused to make a blanket rule that loss-of-consortium claims are always inextricably intertwined and emphasized that a purely legal argument was insufficient to establish that the claims are inextricably intertwined. See Saunders, 103 So.3d at 881 (holding error where trial court found loss-of-consortium claim inextricably intertwined based on defendant's legal argument and not based on evidence); Blanton, 98 So.3d at 612 (holding the party who moved for attorney's fees failed to meet his burden of either presenting evidence that the claims were inextricably intertwined or allocating his time, and declining to adopt a blanket rule that loss-of-consortium claims are always inextricably intertwined). We agree that such a blanket rule is unwise. Yet, unlike the parties seeking fees in Saunders and Blanton, Conti presented both legal argument and expert testimony that established that the claims in this case were inextricably intertwined because she challenged the permanency of James's injury to successfully defeat Ashlee's loss-of-consortium claim. See Saunders, 103 So.3d at 881 ; Blanton, 98 So.3d at 612. Thus, the lower court erred when it concluded that the claims were not inextricably intertwined.

Consequently, we reverse and remand with instructions for the trial court to conduct an evidentiary hearing for Conti to present evidence in support of her requested attorney's fees, and for the trial court to consider the reasonableness of the requested hours with the understanding that Ashlee's loss-of-consortium claim is inextricably intertwined with James's negligence claim. We affirm in all other respects.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED with Instructions.

ORFINGER and BERGER, JJ., concur.


author: B.L. Thomas, C.J.

text:
    James Waverly STEEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3978
    District Court of Appeal of Florida, First District.
    March 20, 2019
    James Waverly Steel, pro se, Appellant.
    Ashley B. Moody, Attorney General, Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges the trial court's order denying postconviction relief. For the reasons set forth below, we affirm.

In January 2011, Appellant was convicted of three counts of sexual battery and sentenced to thirty years in prison on each count, to run concurrent. Before trial, the State noticed its intent to use the collateral crime evidence that eight other victims, all middle-aged women of the same race who were either mentally disabled or involved in drug transactions that made them particularly vulnerable, were sexually assaulted within a three-block radius, and that three of the attacks occurred within a time period of several weeks. The State also pointed out the similar modus operandi in the attacks; for example, four of the victims indicated that their attacker threatened that he had recently been in prison and was not afraid of returning.

At trial, the victim in this case identified Appellant in open court as the man who raped her. She testified that Appellant initially attempted to converse with her, then followed her as she walked home alone. She testified that he then punched her in the face and took her behind a flight of stairs in a closed building, where he yelled at her and accused her of being racist for not giving him a cigarette. She testified that he then took her to a gated dumpster area behind a Dollar Store and raped her, telling her that he intended to kill her. The State's DNA analysts testified that DNA recovered from the victim's rape kit was a 99.9% match to Appellant, amounting to 1 in 19,000 African-Americans. A victim of one of the collateral attacks took the stand and identified Appellant as her assailant in a rape that occurred four days prior to the charged offense. That witness testified that Appellant punched her and dragged her into a gated dumpster area, where he raped her. Appellant was found guilty as charged and sentenced to thirty years in prison. This Court per curiam affirmed Appellant's convictions and sentence. Steel v. State , 86 So.3d 1122 (Fla. 1st DCA 2012).

Also in 2011, in a separate jury trial involving a different victim, Appellant was convicted of two counts of sexual battery and one count of kidnapping. He was sentenced to thirty years in prison on the sexual battery counts, and life in prison on the kidnapping count. His sentences were to run consecutive to the thirty-year sentence that was imposed following the January 2011 trial. This Court per curiam affirmed Appellant's convictions and sentences. Steel v. State , 88 So.3d 939 (Fla. 1st DCA 2012).

In 2013, Appellant filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising eleven claims of ineffective assistance of counsel. The trial court summarily denied the motion, and this Court granted Appellant a belated appeal. On appeal, Appellant abandoned several of the claims raised in his rule 3.850 motion, arguing only that: 1) defense counsel was ineffective for failing to challenge the victim's in-court identification; 2) defense counsel was ineffective for failing to preserve Appellant's right to a speedy trial; 3) an evidentiary hearing was necessary to determine if defense counsel was ineffective for not objecting to the collateral crime evidence; 4) defense counsel was ineffective for failing to object to a jury panel of one black man and five white women; and 5) an evidentiary hearing was necessary to determine if defense counsel was ineffective for failing to challenge the State's treatment of possibly exculpatory DNA evidence.

Analysis

"[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." Freeman v. State , 761 So.2d 1055, 1061 (Fla. 2000). To raise a viable ineffective assistance of counsel claim, an appellant must allege that the specific acts or omissions by counsel fell below a standard of reasonableness under prevailing professional norms, and that the appellant was prejudiced by those acts or omissions such that the outcome of the case would have been different if not for the acts or omissions. Strickland v. Washington , 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

Appellant's first claim is that defense counsel provided ineffective assistance by failing to object to the victim's in-court identification, or by failing to have that identification suppressed prior to trial. Appellant insists that the victim's in-court identification was inadmissible, as the victim was unable to identify Appellant in a pretrial photographic lineup.

In Fitzpatrick v. State , the supreme court held that "[a]n in-court identification may not be admitted 'unless it is found to be reliable and based solely upon the witness' independent recollection of the offender at the time of the crime,' uninfluenced by any intervening illegal confrontation." 900 So.2d 495, 519 (Fla. 2005) (quoting Edwards v. State , 538 So.2d 440, 442 (Fla. 1989) ). One of the factors to consider is a failure to identify the defendant on a prior occasion. Id. "It is the State's burden to demonstrate by clear and convincing evidence that the courtroom identification had an independent source[.]" Id. In Fitzpatrick , the victim's testimony at trial demonstrated that he had an independent recollection, as the victim testified that the defendant had been in his house for ten to fifteen minutes and conversed with him. Id.

Here, there was nothing unduly suggestive about the victim's in-court identification of Appellant, nor does Appellant point to anything suggestive or improper about the procedures used in the attempt to obtain an out-of-court identification. Cf. id. at 520 ("Fitzpatrick cannot sustain the argument that [the witness'] viewing the photo array prior to the suppression hearing unduly bolstered her identification."). Like in Fitzpatrick , the victim here testified to a lengthy encounter with Appellant and that he conversed with her before and during the attack. This satisfies the requirement that the victim's in-court identification was based on her independent recollection.

As the State presented sufficient evidence that the victim had an independent recollection for her in-court identification, any objection to that identification would have been futile. Thus, defense counsel was not deficient for failing to object. See Willacy v. State , 967 So.2d 131, 140 (Fla. 2007) ("counsel is not ineffective for failing to make a futile objection").

Appellant's second claim is that defense counsel's failure to preserve the right to a speedy trial deprived Appellant of his due process and equal protection rights.

(A)n attorney may waive speedy trial without consulting the client and even against the client's wishes. Thus, if the right to speedy trial may be waived without consulting the defendant, counsels' waiver here cannot be considered an error, let alone one that is "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

McKenzie v. State , 153 So.3d 867, 875 (Fla. 2014) (internal citations omitted) (quoting Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ).

Because defense counsel was permitted to waive Appellant's speedy trial rights without consulting Appellant, the allegations against defense counsel do not demonstrate a deficiency rising to ineffective assistance. Moreover, there was no prejudice, for although Appellant argues that the State "would not have had time to conjure up" collateral crime witnesses, if his case had gone to trial sooner, the victim identified Appellant as her attacker in open court and the State's DNA analysts testified that DNA collected from the victim was a 99.9% match to Appellant. Based on this evidence, there is no reasonable probability that the outcome of the trial would have been different absent the collateral crime evidence. Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ("A reasonable probability is a probability sufficient to undermine confidence in the outcome.").

Appellant's third claim is that the collateral crime evidence was not sufficiently similar such as to be admissible, and that defense counsel was ineffective for failing to object to it. As an ineffective assistance claim, this argument is conclusively refuted by the record, as defense counsel objected to the collateral crime evidence before and during trial and challenged its admission in the motion for new trial. As a challenge to the admissibility of the evidence, this issue was raised on direct appeal, and this Court affirmed the conviction. Steel , 86 So.3d 1122. Appellant may not simply couch the same argument as an ineffective assistance claim in order to reargue the matter. See Arbelaez v. State , 775 So.2d 909, 915 (Fla. 2000). Because Appellant's claim is procedurally barred as an evidentiary challenge and is conclusively refuted by the record as an ineffective assistance claim, we affirm the trial court's summary denial of postconviction relief as to this claim.

Appellant's fourth claim is that defense counsel was ineffective for failing to object to a jury panel consisting of one African-American man and five white women. Rather than point to any racial bias from individual jurors, Appellant argues that any jury with five white jurors is inherently racially biased.

When a juror indicates during voir dire that he or she can be fair and impartial, the record will not demonstrate prejudice under Strickland that a biased juror served on the jury, and no evidentiary hearing is needed. Jenkins v. State , 824 So.2d 977, 983 (Fla. 4th DCA 2002). Here, the transcript of the jury selection proceedings reveals that none of the jurors who served indicated they were unable to be fair or impartial, and none made any statement indicating a racial bias. As the record demonstrates no juror bias against Appellant, defense counsel was not ineffective for failing to object to the jury.

Appellant's final argument is that the trial court should have held an evidentiary hearing to determine whether defense counsel was ineffective for failing to investigate the State's destruction or mishandling of cigarette butts found at the crime scene, which potentially contained exculpatory DNA evidence. In Freeman , the supreme court held that the defendant could not argue that the State failed to properly investigate a crime scene, because "(c)omplaints about the State's treatment of the physical evidence should have been raised on direct appeal; therefore, they are procedurally barred in collateral proceedings." 761 So.2d at 1063. As to whether a defense attorney can be ineffective for not challenging such a failure by the State, the supreme court held that there was no error in denying an ineffective assistance claim, without an evidentiary hearing, where the defense attorney had argued the issue in opening statement, cross-examination, and closing argument. Id.

Appellant argues that cigarette butts found at the crime scene might have contained DNA from a person other than Appellant. As in Freeman , this is a challenge to the State's treatment of physical evidence, and it is procedurally barred. Id. Defense counsel, like the attorney in Freeman , discussed this issue during opening statements and informed the jury that Appellant's DNA was not found on cigarette butts recovered at the scene. Therefore, Appellant's claim is conclusively refuted by the record.

Because all of Appellant's claims are procedurally barred, legally insufficient, or conclusively refuted by the record, the trial court did not err in summarily denying postconviction relief.

AFFIRMED .

Roberts and Osterhaus, JJ., concur.