author: Forst, J.

text:
    Michael Joseph FRY, Appellant, v. Elizabeth Holman FRY, Appellee.
    No. 4D17-2435
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Christopher R. Bruce of Bruce Law Firm, P.A., West Palm Beach, and John L. Chalif of Law Offices of John L. Chalif, Palm Beach Gardens, for appellant.
    Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton, for appellee.
   Forst, J.

Appellant Michael Joseph Fry challenges the final parenting plan set forth in the trial court's final dissolution of marriage. Specifically, he challenges the timesharing schedule and the delegation of ultimate decision-making authority to his former wife, Appellee Elizabeth Holman Fry. Appellant raises several issues on appeal. We affirm with respect to all issues, solely writing to address the trial court's denial of Appellant's motion for a continuance, filed on the eve of trial.

Background

After initiating divorce proceedings, Appellee filed a motion seeking the appointment of a licensed psychologist to "interview, test, and evaluate the parties and the minor child to assist the Court with regard to, but limited to parental responsibility, time-sharing schedule, and parenting plan." The parties stipulated to the appointment of Dr. Day to conduct the evaluation and issue a written report.

Subsequently, Appellant retained Dr. Kristin Tolbert as an expert witness to prepare a report and provide testimony with respect to Dr. Day's report. Dr. Tolbert received Dr. Day's report in December 2016. On February 1, 2017, the parties were directed that any report prepared by Dr. Tolbert was to be provided to opposing counsel by February 19, and that all witnesses were to be available for deposition prior to March 19. Appellant and his expert failed to meet these deadlines. In mid-March, the trial court set June 1, 2017 as the trial date. On April 25, Appellant's counsel was informed that Appellee expected the report by May 5, in advance of Dr. Tolbert's scheduled deposition. On May 2, Appellee's counsel was assured that the report would be provided by May 11. This deadline was extended to May 12, then to May 15, then to May 23, then to May 26 (with deposition scheduled on May 30).

On May 25, Appellant requested a "brief continuance of trial," primarily taking issue with the substance of Dr. Day's report, though acknowledging that Dr. Tolbert's report "has not been provided as of the time of this motion." Two days before the trial date, a hearing was held regarding Appellant's motion, as well as Appellee's motion to preclude Dr. Tolbert from testifying. At the hearing, Appellant's counsel provided email messages from Dr. Tolbert indicating that she had been delayed due to "computer issues" and a "death in the family."

The trial court denied Appellant's motion for a continuance. In granting Appellee's motion to exclude Dr. Tolbert as a witness, the trial court noted "[t]he rule in the pretrial order is very clear on providing reports. We play by the rules here. This case has been set ... since March ... for trial. ... [T]he husband has had lots of time to hire whoever they choose or nobody ... they can hire anybody they want. They haven't done it. So this case is going to proceed to trial tomorrow ...."

The following day, as the trial commenced, Dr. Tolbert appeared and Appellant renewed his request for a continuance of one to three weeks. Dr. Tolbert informed the trial court that the report "is like 95 percent complete" and that it could "absolutely" be completed by the following day. The trial court reiterated its decision to exclude Dr. Tolbert and the trial went forward.

Analysis

The standard of review for a decision to grant or deny a request for a continuance is abuse of discretion. Taylor v. Inst. for Med. Weight Loss , 863 So.2d 398, 400 (Fla. 4th DCA 2003). "A denial of a continuance should not be reversed unless there has been an abuse of discretion clearly appearing in the record." Cargile-Schrage v. Schrage , 908 So.2d 528, 529 (Fla. 4th DCA 2005).

In determining whether the trial court has abused his discretion, a reviewing court should consider "whether the denial of the continuance creates an injustice for the movant; whether the cause of the request of the continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance."

Id. (quoting Fleming v. Fleming , 710 So.2d 601, 603 (Fla. 4th DCA 1998) ).

Appellant argues that the request for a continuance to provide Dr. Tolbert's promised report and deposition, followed by her testimony, should have been granted, as the denial created an injustice to Appellant. Appellant relies upon three district court opinions for support: Ramadon v. Ramadon , 216 So.3d 26, 28-30 (Fla. 2d DCA 2017) ; Fisher v. Perez , 947 So.2d 648, 650-54 (Fla. 3d DCA 2007) ; and Taylor , 863 So.2d at 399-400. All of these cases are distinguishable.

In Ramadon , the trial court denied the former wife's motion for continuance filed by recently hired trial counsel who had replaced prior counsel who had withdrawn two weeks earlier. Ramadon , 216 So.3d at 28. In reversing the trial court, the district court noted that the former wife had been harmed by the former husband's noncompliance with discovery orders and her "request for continuance was unforeseeable by the movant and not the result of dilatory practices." Id. at 30 (quoting Fleming , 710 So.2d at 603 ).

In Fisher , the trial court denied the defendant's motion for continuance after the defendant learned, during trial, that his sole expert witness would be unable to testify the following day because the witness "was suffering from complications from a recent back surgery, was partially paralyzed, [and] highly medicated." Fisher , 947 So.2d at 649. The district court reversed, noting that "it appears defense counsel did everything possible to investigate [the witness's] unavailability and provided the court with sufficient facts to grant the motion for continuance." Id. at 651.

In Taylor , Taylor learned, several days before calendar call (and about two weeks prior to the earliest trial date) that her expert witness, without explanation, was unwilling to testify. Taylor , 863 So.2d at 399. Taylor immediately filed a motion for continuance, which was denied, and then attempted to replace her expert with a substitute, who would be available to testify without the continuance. Id. The trial court denied the motion and struck the proposed substitute witness. Id. We reversed, finding "no evidence or suggestion that Taylor's counsel was engaged in any type of dilatory practice." Id. at 400.

The instant case differs significantly from Ramadon , Fisher , and Taylor . In Ramadon , the court found that the opposing party's conduct in not complying with discovery was a major factor in the moving party's need for a continuance. 216 So.3d at 29-30. In both Fisher and Taylor , the courts found that the party seeking a continuance did so immediately after learning of the unanticipated unavailability of the party's expert witness. Fisher , 947 So.2d at 650 ; Taylor , 863 So.2d at 400. In Taylor , we noted that "[i]f there had been evidence that Taylor's counsel had knowledge much earlier in the proceedings that [the original expert] would not be cooperative, then the trial judge would have been justified in denying the motion to continue." Taylor , 863 So.2d at 400.

In the instant case, the record reflects that Appellant's counsel was on notice of Dr. Tolbert's dilatory conduct. Dr. Tolbert had received Dr. Day's report in December 2016, but failed to complete her responsive report prior to the pretrial order's March deadline. Several dates in May were then set for the deposition of Dr. Tolbert and then rescheduled due to her noncompletion of the report. Three weeks after the initial date in May on which the report had been promised, Appellant finally made his first motion for continuance.

The trial court's granting the motion to strike Dr. Tolbert as a witness did not create an injustice for Appellant. The trial court still had the benefit of the report filed by an expert (Dr. Day), the appointment of whom had been stipulated to by both parties. Competent, substantial evidence exists to support the trial court's award of 57-43 timesharing (versus Appellant's requested 50-50 timesharing) and the court's findings regarding Appellant's parental fitness.

Finally, as to whether Appellee would have been prejudiced by a continuance of the trial, Appellant argued at the hearing on his motion and again at trial that he needed just one to three additional weeks. In opposition, Appellee cited the need for the child's parenting arrangements to be settled in an expeditious fashion. The record supports Appellee's concern. Dr. Day had advised that because the parties were in conflict, for the best interests of the child, they needed to get past the trial so that they could move on. In light of Appellant's record of setting dates on which the report would be submitted followed by last-minute cancellations of depositions, it was reasonable for Appellee to argue that Appellant's promise of only "one additional week" could not be relied upon, and it was well within the court's discretion to deny a continuance.

Conclusion

Appellant's expert continued making and breaking promises as to the completion date of her report, right up to the eve of trial. Against this backdrop, we cannot maintain that it was an abuse of discretion for the trial court to deny Appellant's motion for continuance.

Affirmed.

Levine, J. and Artau, Edward L., Associate Judge, concur.


source: Caselaw Access Project

author: Mirman, Lawrence, Associate Judge.

license: Public Domain

text:
    Kevin S. GARRISON, Appellant, v. Catheline GARRISON, Appellee.
    No. 4D17-3401
    District Court of Appeal of Florida, Fourth District.
    [October 10, 2018]
    Sean L. Collin of Lyons, Snyder & Collin, P.A., Plantation, for appellant.
    Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Stephen M. Zukoff of Law Offices of Stephen M. Zukoff, Miami, for appellee.
   Mirman, Lawrence, Associate Judge.

Kevin Garrison ("Former Husband") appeals a final judgment of dissolution of marriage wherein, following a trial, the court found that Former Husband's closely held business, Garrison's Prosthetic Services ("GPS"), was a marital asset subject to equitable distribution. The court then awarded each party a fifty percent ownership interest in GPS and, in doing so, explicitly declined to "assign a value to GPS." On appeal, Former Husband argues that the court erred in distributing and not valuing GPS. On both points, Former Wife argues that affirmance is mandated because Former Husband has not provided a transcript of the trial court proceedings to this Court. Because the court's errors are apparent on the face of the record, we reverse and remand.

The standard of appellate review regarding equitable distribution is abuse of discretion. Kovalchick v. Kovalchick , 841 So.2d 669, 670 (Fla. 4th DCA 2003). Failure to provide a trial transcript on appeal will usually result in an affirmance of the trial court's ruling. Wofford v. Wofford , 20 So.3d 470, 473 (Fla. 4th DCA 2009). Only facially apparent errors from the record will result in reversal. Id.

With respect to the court's equal distribution of GPS, it is well settled in Florida that "compelling former spouses to remain in business together 'creates [an] intolerable situation' " and constitutes an abuse of discretion. Lift v. Lift , 1 So.3d 259, 260-61 (Fla. 4th DCA 2009) (quoting Novak v. Novak , 429 So.2d 414, 414-15 (Fla. 4th DCA 1983) ); Manolakos v. Manolakos , 871 So.2d 258, 260 (Fla. 4th DCA 2004) (parties who have stated they do not want to continue to work together after their divorce should not be made to do so); Menendez v. Rodriguez-Menendez , 871 So.2d 951, 952 (Fla. 3d DCA 2004) (error to not properly value a closely held business and leave the parties as joint owners). The record here, limited though it is, established that the parties had an acrimonious relationship and did not want to remain in business together. For example, during contentious motion practice preceding trial, Former Wife alleged that Former Husband terminated her employment with GPS, denied her access to the business bank accounts, and essentially usurped complete control of the business. Therefore, it is facially apparent that the court erred in awarding each spouse half of GPS.

Reversal is also required on the valuation issue. Section 61.075 of the Florida Statutes provides that in any contested dissolution action, the court must make specific written findings identifying, valuing, and distributing marital assets. § 61.075(3)(b), Fla. Stat. (2017). Failure to make the statutorily required findings requires reversal. Crooks v. Crooks , 967 So.2d 969, 970 (Fla. 4th DCA 2007). Here, in contradiction to the governing statute, the trial court specifically declined to "assign a value to GPS." This was error. Whelan v. Whelan , 736 So.2d 732, 733 (Fla. 4th DCA 1999) (facially apparent equitable distribution error even without a transcript requires reversal and remand for appropriate findings to be made).

Accordingly, we reverse the portion of the final judgment concerning GPS. On remand, the trial court is to value GPS, award this asset to one of the parties, and devise a plan of distribution which is practical and beneficial to both parties. See Novak , 429 So.2d at 415 ; Menendez , 871 So.2d at 952.

Reversed and remanded.

Ciklin and Conner, JJ., concur.


author: SLEET, Judge.

text:
    Maritsa DEJESUS, Appellant, v. A.M.J.R.K. CORP. and Altagracia Guillen, Appellees.
    Case No. 2D17-2374
    District Court of Appeal of Florida, Second District.
    Opinion filed February 9, 2018.
    John A. Anthony and John W. Landkammer of Anthony & Partners, LLC, Tampa, for Appellant.
    Pedro W. Rodriguez of Pedro W. Rodriguez, P.A., Tampa, for Appellee, A.M.J.R.K. Corp.
    Curran K. Porto, Tampa, for Appellee, Altagracia Guillen.
   SLEET, Judge.

Maritsa DeJesus challenges the trial court's Order on Proceedings Supplementary, in which the court determined that property against which she holds a lien is entitled to homestead protection against forced sale. Because the property is owned by a corporation and because Altagracia Guillen, the natural person residing there, possesses no ownership interest in the property, we reverse.

The property in question is owned by A.M.J.R.K. Corp., of which Guillen is the president and sole shareholder. In 2012, DeJesus suffered injuries on the property and sued A.M.J.R.K. for damages. At that time, Guillen did not reside on the property. In 2014, while the litigation was still pending, a quitclaim deed was prepared, signed, and recorded attempting to transfer the property from A.M.J.R.K. to Guillen. However, the deed lacked consideration, a corporate seal, and evidence of proper corporate capacity or authority for the signatures, and the acknowledgment clause signed by the notary was for an individual, not a corporation. Subsequently, in 2015, Guillen started to reside on the property with her children. On December 8, 2015, the trial court entered final judgment in DeJesus's favor in her suit against A.M.J.R.K. and awarded her $390,649.64 in damages.

In an effort to collect on her judgment, on January 11, 2016, DeJesus, as the judgment creditor, filed a supplementary complaint alleging that A.M.J.R.K. had attempted to transfer the property to prevent a forced sale of the asset. The supplementary complaint further alleged that the first quitclaim deed was defective and that the transfer from A.M.J.R.K. to Guillen was thus not effective. DeJesus sought a constructive trust on the property and injunctive relief preventing A.M.J.R.K. from transferring the asset. Finally, DeJesus sought to implead Guillen. While the supplementary proceeding was pending, a second quitclaim deed purporting to transfer the property from A.M.J.R.K. to Guillen was recorded, but it suffered from some of the same defects as the first deed. On March 5, 2016, the trial court entered an order impleading Guillen as a third-party defendant in the case. The trial court subsequently entered a temporary injunction preventing the transfer of the property.

Following a hearing, the trial court entered its Order on Proceedings Supplementary, in which it ruled (1) that both quitclaim deeds were defective and that neither attempted transfer from A.M.J.R.K. to Guillen was effective; (2) that despite the ineffective transfers, homestead attached to the property when Guillen began residing there in 2015; (3) that since the property did not receive homestead status until after DeJesus filed her action against A.M.J.R.K., DeJesus was entitled to a lien on the property; and (4) that despite DeJesus' lien on the property, due to its homestead status, the property was protected from forced sale or transfer to DeJesus.

On appeal, DeJesus argues that the trial court erred in determining that a corporation like A.M.J.R.K. could hold a homestead exemption on real property. We agree. Article X, section 4(a), of the Florida Constitution, entitled "Homestead; exemptions," provides as follows: "There shall be exempt from forced sale under process of any court, and no judgment, decree[,] or execution shall be a lien thereon, ... property owned by a natural per son ." (Emphasis added.) As such, the plain language of the Florida Constitution requires that the owner of the property be a natural person to claim the homestead exemption. Here, neither attempt to transfer the property to Guillen was successful, and the property continued to be owned by A.M.J.R.K., a corporation.

Nevertheless, the trial court determined that homestead attached to the property because Guillen-a natural person-resides there. In doing so, the court cited Callava v. Feinberg, 864 So.2d 429 (Fla. 3d DCA 2003), as support for its conclusion that "Florida law does not require that a person be the owner of a homestead property to be protected by the Florida constitution." The trial court, however, misreads the holding in Callava.

In that case the judgment creditor sought a lien on a home purchased by Callava, the judgment debtor. However, the actual purchase of the home was made in the name of "Jorge Gaviria, as Trustee," and Callava was a beneficiary of the trust. Id. at 431. The trial court there imposed the lien, and the judgment creditor sought to foreclose on it. Callava argued that the property was her homestead, but the trial court entered the foreclosure judgment against her. On appeal, the Third District reversed, concluding as follows:

The constitutional provision "does not designate how title to the property is to be held and it does not limit the estate that must be owned ...." Southern Walls, Inc. v. Stilwell Corp., 810 So.2d 566, 569 (Fla. 5th DCA 2002). "[T]he individual claiming homestead exemption need not hold fee simple title to the property." Id. (citing Bessemer Props., Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946) ). See also HCA Gulf Coast Hospital v. Estate of Downing, 594 So.2d 774, 776 (Fla. 1st DCA 1991) (beneficiary of spendthrift trust entitled to claim homestead exemption as to trust property). Thus, even if Callava owns only a beneficial interest in the property, she is entitled to claim a homestead exemption to the forced sale of the property and the trial court erred in foreclosing her interest in the property.

Id. (alteration in original) (emphasis added).

Thus, Callava does not hold that a person need not own property to claim homestead protection. Callava merely holds that one's ownership interest in the property need not be fee simple title in order to obtain the homestead exemption from the forced sale of the property to satisfy a judgment lien. While the judgment debtor in Callava had some ownership interest in the property-as a beneficiary of the trust that owned it-in the instant case Guillen has no ownership interest, either legal or equitable, in the property at issue. See In re Alexander, 346 B.R. 546, 547 (Bankr. M.D. Fla. 2006) ("To qualify for Florida's homestead exemption, an individual must have an ownership interest in a residence that gives the individual the right to use and occupy it as his or her place of abode.").

We also note that although Guillen is the president and sole shareholder of A.M.J.R.K., such status did not give her an interest in the corporation's property. See Mease v. Warm Mineral Springs, Inc., 128 So.2d 174, 179 (Fla. 2d DCA 1961) ("The stockholders do not have vested in them title in the corporate property."); see also Hackney v. Niedecken, 133 So.3d 1228, 1230 (Fla. 2d DCA 2014) (holding that status as a corporate stockholder did not entitle that stockholder to payment made on corporation's property). Accordingly, we must reverse the trial court's order and remand for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and BADALAMENTI, JJ., Concur.


author: PER CURIAM.

text:
    Marc BAKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1058
    District Court of Appeal of Florida, Second District.
    Opinion filed January 26, 2018
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm without comment the order revoking Mr. Baker's probation. However, because the order of revocation erroneously indicates that Mr. Baker pleaded guilty to violating his probation when in fact he was found in violation after an evidentiary hearing, we remand this case for the trial court to correct the scrivener's error. See Turner v. State, 873 So.2d 480, 480 (Fla. 2d DCA 2004).

Affirmed; remanded to correct scrivener's error.

NORTHCUTT, CASANUEVA, and SALARIO, JJ., Concur.


author: SALARIO, Judge.

text:
    IN the INTEREST OF X.W., a child.
    Guardian Ad Litem Program, Appellant, v. C.W. and Department of Children and Families, Appellees.
    Case No. 2D17-1807
    District Court of Appeal of Florida, Second District.
    Opinion filed February 9, 2018
    Sara Elizabeth Goldfarb, Sanford, for Appellant.
    Toni A. Butler of Alderuccio & Butler, LLC, Naples, for Appellee C.W.
    No appearance for remaining Appellee.
   SALARIO, Judge.

The Guardian ad Litem Program (GAL) appeals from a final order denying its petition to terminate the parental rights of C.W., the father of X.W. X.W. was conceived as the result of a sexual battery by C.W. upon X.W.'s mother-a minor. The trial court found that the sexual battery and C.W.'s lengthy incarceration for that offense established statutory grounds for termination, but it denied the petition on the basis that termination would not be in X.W.'s best interests and was not the least restrictive means of protecting him from harm. The best interests and least restrictive means findings are legally and factually infirm. We reverse.

I.

The GAL filed a petition for the termination of C.W.'s parental rights on October 14, 2016. The petition alleged five statutory grounds for termination: (1) C.W.'s involvement with X.W. was a threat to X.W.'s life, safety, and well-being under section 39.806(1)(c), Florida Statutes (2016) ; (2) C.W. was incarcerated and expected to remain so for a significant portion of X.W.'s minority under section 39.806(1)(d) ; (3) C.W. had engaged in egregious conduct that threatened the life, safety, or health of X.W. under section 39.806(1)(f) ; (4) C.W. had subjected the child or another child to a sexual battery under section 39.806(1)(g) ; and (5) X.W. had been conceived as the result of a sexual battery made unlawful by section 794.011, Florida Statutes, under section 39.806(1)(m). Each ground was based on C.W.'s sexual battery of X.W.'s mother. The GAL alleged that termination of C.W.'s parental rights was in X.W.'s best interests because of the gravity of the offense committed by C.W., the lack of any significant relationship between C.W. and X.W., and the strength of X.W.'s relationship with his maternal grandmother, who is available to adopt X.W.

The case proceeded to an adjudicatory hearing, see § 39.809, at which the evidence established the following. On the evening of September 22, 2013, S.B. ran away from home for one night. She was eleven years old at the time. While away, she met C.W. in a park. He was twenty-five. C.W. took S.B. to his apartment and had sex with her. No one disputes that this was an unlawful sexual battery in violation of section 794.011. X.W. was conceived as a result and was born on May 29, 2014.

C.W. pleaded guilty to one count of lewd or lascivious battery and one count of impregnating a child under the age of sixteen. On December 15, 2014, he was sentenced to ten years' imprisonment and qualified as a sexual offender. His anticipated release date is in 2024, at which point X.W. will be ten years old. Upon release, C.W. will be subject to five years of sex offender probation, which includes significant restrictions on his ability to parent X.W. According to the probation orders in the record, he will be unable to have unsupervised contact with X.W. and will be allowed supervised contact only upon the recommendation of a qualified practitioner in a sexual offender treatment program who bases the recommendation on a risk assessment. He also will be unable to have any contact with S.B. unless the contact is approved by S.B., a qualified practitioner, and the sentencing court. And he will be unable to live within 1000 feet of a school, child care facility, park, playground, or other place where children regularly congregate.

X.W. was sheltered, adjudicated dependent as to both C.W. and S.B., and placed with his maternal grandmother-S.B.'s mother. By everyone's account, X.W. looks to his maternal grandmother as his mother figure. The two are closely bonded, and X.W. goes to his grandmother for love and affection. X.W.'s maternal grandmother handles all the day-to-day duties a parent would ordinarily handle for a child. She is willing to take care of X.W. as long as necessary and is also willing to adopt him. She wants to wait on adoption until S.B. turns eighteen, however, so that S.B. has a chance to make her own decision about whether she wants to be a parent to X.W.

S.B. lives in the home with X.W. At the time of the hearing, she was fifteen years old and in ninth grade. S.B.'s relationship to X.W. is akin to a brother-sister relationship. S.B. is interested in things most fifteen-year-olds are interested in-things like going to school and being with friends. While there is love between S.B. and X.W., S.B. is not his caregiver. There was no evidence that S.B. is likely to be willing and able to be X.W.'s caregiver when she turns eighteen.

X.W.'s maternal grandmother testified that C.W. sent her a care package around the holidays and also wrote a letter to her in which he asked about X.W. She also testified that C.W.'s family, with her approval, had been taking X.W. to visit with C.W. in prison every two weeks until the termination proceedings were instituted. A representative of the GAL testified that there is not a current bond between C.W. and X.W. and that forming a bond after C.W. is released from prison would be very difficult due to the conditions of C.W.'s probation. There was no evidence that C.W. is likely to be willing or able to be a parent to X.W. when released from prison.

The trial court denied the GAL's petition. As to the grounds for termination, the trial court found that the GAL had proven both that C.W. would be incarcerated for a significant portion of X.W.'s minority-establishing a ground for termination under section 39.806(1)(d) -and that X.W. was conceived as the result of a sexual battery on S.B. that was unlawful under section 794.011-establishing a ground for termination under section 39.806(1)(m). It found that the GAL failed to establish grounds for termination based on a continued threat to X.W. under section 39.806(1)(e) or sexual abuse or battery under section 39.806(1)(g), in both instances because the evidence was insufficient to show any continuing risk of harm to X.W. in the absence of a termination of C.W.'s parental rights. The trial court found that the GAL waived its allegations that termination was justified based on egregious conduct under section 39.806(1)(f).

With regard to X.W.'s manifest best interests, the trial court explained that the fact that X.W. was conceived as a result of a sexual battery by C.W. gave rise to a statutory presumption that termination was in X.W.'s best interests. See § 39.806(1)(m). It also made findings as to each of the eleven manifest best interest factors in section 39.810. Those findings either weighed in favor of the conclusion that termination was in X.W.'s best interests or were neutral. For example, the trial court found that there is no significant love, affection, or emotional bond between C.W. and X.W. See § 39.810(5). It found that C.W. lacked the current ability and disposition to provide the child with food, clothing, medical care, and other remedial care and that there was no evidence that he would have this capacity in the future. See § 39.810(2). It found that C.W. lacked the current capacity to care for X.W. such that X.W.'s safety, well-being, and health would not be endangered and that there was no evidence of his ability to provide that care in the future. See § 39.810(3). It found that X.W. had formed a significant relationship with a parental substitute-the maternal grandmother-and that the bond between them was strong. See § 39.810(7). And it found that the GAL had recommended termination and that it accepted the GAL's testimony regarding X.W.'s manifest best interests. See § 39.810(11). Notwithstanding the statutory presumption and these separate findings, the trial court concluded that termination was not in X.W.'s best interests because (1) even if X.W. was adopted by his maternal grandmother, "it is highly probable that the child would, in reality, be raised by the mother and father if they desired to do so" and (2) termination would sever C.W.'s potential financial support for the child without severing contact between C.W. and X.W.

The trial court also found that termination of C.W.'s parental rights was not the least restrictive means of protecting X.W. It based this finding on its determinations that X.W. was not at risk of harm based on C.W.'s sexual battery of S.B. and that because he had been incarcerated, C.W. had not been offered services that might permit the safe reestablishment of the parent-child bond. Finding that the GAL had not carried its burden as to manifest best interests or least restrictive means, the trial court denied the GAL's petition. This appeal timely followed.

II.

There is no dispute in this appeal that the trial court correctly found that the GAL proved grounds for termination under section 39.806(1)(d) and (m). The GAL raises three issues: (1) that the trial court erred in refusing to find that it established grounds for termination under section 39.806(1)(g) based on C.W.'s sexual abuse of S.B.; (2) that the trial court erred in determining that termination was not in X.W.'s manifest best interests; and (3) that the trial court erred in determining that termination was not the least restrictive means of protecting X.W. We find merit in the second and third grounds, which taken together require a reversal, and decline to reach the first.

Before it may grant a petition to terminate parental rights, a trial court must find two statutory requirements satisfied by clear and convincing evidence: the existence of a ground for termination under section 39.806 and that termination would be in the child's manifest best interests under section 39.810. § 39.809(1); Dep't of Children & Family Servs. v. S.H., 49 So.3d 846, 851 (Fla. 2d DCA 2010). In addition, because a termination implicates the due process rights of both parent and child, the party seeking termination is constitutionally required to prove that termination is the least restrictive means of protecting the child from harm. S.M. v. Dep't of Children & Families, 202 So.3d 769, 772 (Fla. 2016) (citing Padgett v. Dep't of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla. 1991) ). We may reverse an order denying a petition to terminate parental rights when the trial court makes an error of law, see Dep't of Children & Family Servs. v. T.C., 95 So.3d 1050, 1050 (Fla. 2d DCA 2012), or its denial is not supported either by competent substantial evidence or by the best interests of the child, see S.H., 49 So.3d at 851.

A.

In this case, the trial court's finding that termination was not in the child's best interests is unsupported by competent substantial evidence.

Once it determined by clear and convincing evidence that X.W. was conceived through unlawful sexual battery under section 794.011, the trial court was required to presume that termination of C.W.'s parental rights was in the best interests of X.W. See § 39.806(1)(m) ("It is presumed that termination of parental rights is in the best interest of the child if the child was conceived as the result of the unlawful sexual battery."). The trial court's determination that X.W. was conceived through an unlawful sexual battery under section 794.011, based both on the elements of the charges to which C.W. pleaded and the evidence presented at the hearing, is supported by clear and convincing evidence. See Guardian ad Litem Program v. M.H., 184 So.3d 1253, 1257 (Fla. 4th DCA 2016). Thus, the trial court was obligated to find that termination of C.W.'s parental rights was in X.W.'s best interests unless C.W. rebutted that presumption by, at a minimum, adducing credible evidence that would be sufficient to sustain a finding, contrary to the presumption, that leaving C.W.'s parental rights intact is in X.W.'s best interests. See § 90.302(1), Fla. Stat. (2016) (stating the burden of a party facing a presumption affecting the burden of production); cf. M.H., 184 So.3d at 1258 (stating in dictum that "it is incumbent on M.H. to rebut the presumption" afforded by section 39.806(1)(m) ).

Here, there was no credible evidence sufficient to show that having C.W. retain the right to parent X.W. is in X.W.'s best interests. C.W. did not produce any evidence at the hearing. And we see nothing in the evidence presented by the GAL that could have credibly shown that maintaining the parental rights of a man who, as a twenty-five-year-old, sexually battered an eleven-year-old girl, who will be incarcerated for that offense until the child is ten, and who will be subject to severely restrictive conditions of probation thereafter is in the child's best interests. On the contrary, on the facts as found by the trial court, the statutory factors governing the question of manifest best interests showed just the opposite.

The trial court's determination that the statutory presumption that termination was in X.W.'s best interests was rebutted was based first on its factual finding that C.W. and S.B. would likely raise X.W. upon C.W.'s release from prison. There is, however, no evidence in our record to show that C.W. and S.B. either intend or are likely to be able to work together and parent X.W. when C.W. is released from prison in 2024. Although he was present at the adjudicatory hearing, C.W. did not testify. S.B.'s testimony says nothing at all about her future desires and intentions. Further, as the trial court found, there was no evidence of C.W.'s future capacity to provide or care for X.W. The trial court's finding that C.W. and S.B. are likely to parent X.W. appears to have been based on speculation as to their future intentions and capabilities. That speculation is not credible evidence rebutting the presumption that termination is in X.W.'s best interests. See J.C. v. Dep't of Children & Family Servs., 947 So.2d 1246, 1250 (Fla. 2d DCA 2007) (rejecting "speculative and unsupported" findings of fact in a trial court's termination order (citing R.S. v. Dep't of Children & Families, 881 So.2d 1130, 1134 (Fla. 4th DCA 2004) ) ); see also RNK Family Ltd. P'ship v. Alexander-Mitchell Assocs., 890 So.2d 297, 299 (Fla. 2d DCA 2004) (holding that a witness's speculation does not qualify as competent substantial evidence supporting a trial court's decision).

The same problem affects the trial court's second basis for finding the presumption rebutted-namely, its finding concerning the father's future financial support of X.W. The trial court found that C.W. has no present ability to provide for X.W. financially. It also found that there was no evidence of C.W.'s future ability to provide for X.W. In the end, then, the trial court's concern about severing a potential source of financial support was based on a hope that someday C.W. might be in a position to provide for X.W. As with the trial court's finding about C.W. and S.B.'s ability to coparent X.W., that bare hope is not credible evidence sufficient to overcome the statutory presumption in favor of termination.

B.

As a matter of due process, the GAL was required to prove by clear and convincing evidence that there was a risk of harm to X.W. and that termination of C.W.'s parental rights was the least restrictive means to avoid it. See Padgett, 577 So.2d at 571 ; see also Dep't of Children & Families v. F.L., 880 So.2d 602, 608 (Fla. 2004). The trial court's finding that the GAL failed to prove a risk of harm was not supported by competent substantial evidence. Furthermore, its related finding as to the least restrictive means is legally flawed.

The trial court found that there was no risk of harm to X.W. because he was not actually harmed by C.W.'s sexual battery of S.B. and there was "no evidence" that C.W. was likely to abuse X.W. in the future. Yet the evidence showed that twenty-five-year-old C.W. met S.B. at a park in the middle of the night, when S.B. was eleven and running away from home. C.W. could have called the police or tried to get S.B. somewhere safe. Instead, he took her to his apartment, had sex with her, and ejaculated inside her, causing her to become pregnant. In short, C.W. was willing to use a child-then roughly the same age as X.W. will be when C.W. is released from prison-to satisfy his own desires without regard to the radical change to the child's life and future that foreseeably could and in fact did result from his conduct.

We have been unable to find a case on facts like these, in which a petitioner seeks to terminate parental rights to a child produced by the parent's sexual battery of a minor without proof of actual harm to the child who is the subject of the termination proceedings. We find analogous, however, those cases in which courts have found evidence of a significant risk of substantial harm to a child where a parent's conduct concerning the abuse of one child demonstrates an inability on the part of that parent to provide a safe environment for another child who has not yet been abused. See, e.g., S.H., 49 So.3d at 858 (reversing order denying termination of mother's parental rights to two children who were not abused where father killed a third child through abuse and mother was an admitted drug user who demonstrated an intention to continue her relationship with the father); T.O. v. Dep't of Children & Families, 21 So.3d 173, 180 (Fla. 4th DCA 2009) (affirming order terminating mother's parental rights to children who had not been abused by father where "[s]he demonstrated that she cannot provide a safe environment for the children"); Dep't of Children & Families v. B.B., 824 So.2d 1000, 1008-09 (Fla. 5th DCA 2002) (reversing order denying termination of father's parental rights to two male children where the father had sexually abused female children and the father's religious views encouraged the kind of sexual abuse visited on the female children and stating "that the lower court erred in concluding that the egregious abuse [of the female children] could not support termination of parental rights as to the other children"); see also F.L., 880 So.2d at 608 ("Implicit in our decision in Padgett is the recognition that in some cases, but not in all cases, a parent's conduct toward another child may demonstrate a substantial risk of significant harm to the current child."). C.W.'s sexual abuse of S.B., regardless of whether it establishes that he is likely to sexually abuse X.W. in the future, at a minimum permits the inference that he is ready, willing, and able to use a child for his own purposes and without care for the consequences that could be visited on the child-thus creating a risk that X.W. will be harmed by C.W. in the future. This is not a case where, as the trial court found, there was "no evidence" that an as-yet-unabused child was at risk of future harm from his parent.

Furthermore, the trial court's finding that there is no risk of abuse to X.W. neglects to consider the potential emotional and permanency-related harms this record evidences. There is substantial evidence here that reunification between C.W. and X.W. will be exceedingly difficult, if not impossible, to achieve. As the trial court found, due to C.W.'s incarceration, there is no significant love, affection, or emotional bond between C.W. and X.W. C.W. will remain in prison until X.W. is ten. And for five years thereafter-assuming everything goes well-C.W. will be subject to conditions of sex offender probation that pose formidable challenges to the formation of anything resembling a conventional father-son bond with X.W. See, e.g., Alvarado v. State, 205 So.3d 810, 810-11 (Fla. 2d DCA 2016) (Villanti, C.J., concurring) (describing the consequences of the requirement that sexual offenders not live within 1000 feet of a childcare facility, school, park, or playground). The continued parent-child relationship thus subjects X.W. to the potential harm of being forced to maintain a relationship under these circumstances and being delayed in establishing a more-or-less permanent parent-child relationship with the maternal grandmother. See S.M., 202 So.3d at 782 ("The 'right' of a parent to a bond with the child is important, but ultimately the health, welfare, and safety of the child must be paramount."); cf. Dep't of Children & Families v. B.C., 185 So.3d 716, 718-19 (Fla. 1st DCA 2016) (holding that least restrictive means test did not bar termination simply because mother could have periodic supervised visits with child where there was no realistic possibility of reunification). The trial court should have considered these factors in determining whether there was a significant risk of substantial harm to X.W., yet its order contains no indication that it did so. See, e.g., B.C. v. Dep't of Children & Families, 887 So.2d 1046, 1054 (Fla. 2004) (holding that although rights may not be terminated based solely on the length of a parent's incarceration, "the actual effect of incarceration on the parent child relationship" must be considered in light of the statutory and constitutional requirements for termination).

Turning to the trial court's findings on least restrictive means, the proper inquiry is whether there are measures short of termination that would "permit the safe re-establishment of the parent-child bond." S.M., 202 So.3d at 778-79 (quoting B.B., 824 So.2d at 1009 ). In ordinary circumstances, there should be an effort to rehabilitate the parent and reunite the family, such as through a case plan, before rights are terminated. S.H., 49 So.3d at 854. The welfare of the child, however, is paramount: The least restrictive means test "is not intended to preserve a parental bond at the cost of a child's future." S.M., 202 So.3d at 778 (quoting B.B., 824 So.2d at 1009 ).

Here, the trial court found that the least restrictive means test was not satisfied because, although C.W. has been provided a case plan, his incarceration has prevented him from complying with it and receiving the benefit of services. As the GAL correctly points out, however, this is not the ordinary case in which the law requires an opportunity to comply with a case plan. Initially, section 39.806(2) provides that "[r]easonable efforts to preserve and reunify families are not required if a court of competent jurisdiction has determined that any of the events described in paragraphs (1)(b)-(d) or paragraphs (1)(f)-(m) have occurred." Thus, a case plan with a goal of reunification is not required where, under section 39.806(1)(m), a child has been conceived as the result of an unlawful sexual battery. See D.A.D. v. Dep't of Children & Family Servs., 903 So.2d 1034, 1040 (Fla. 2d DCA 2005) (holding that when a ground for termination listed in section 39.806(2) is proved, the department "is not required to offer the parent a case plan with a goal of reunification"). Likewise, the supreme court has recognized that in "extraordinary circumstances," termination of parental rights without the use of case plans is the least restrictive means. In re T.M., 641 So.2d 410, 413 (Fla. 1994) (holding that statutory provisions dispensing with a case plan in cases of serious abuse or egregious conduct do not violate the least restrictive means test). We are confident that in cases like this one-involving the sexual battery of an eleven-year-old resulting in the conception of a child-such extraordinary circumstances exist.

Moreover, even if a case plan would ordinarily be required in a case involving an unlawful sexual battery, it would not be required here. The least restrictive means test requires an opportunity to comply with a case plan for the purpose of permitting the "safe re-establishment of the parent-child bond." S.M., 202 So.3d at 779 (quoting B.B., 824 So.2d at 1009 ). That, of course, presupposes that there is a parent-child bond for a case plan to reestablish. Here, the trial court expressly found that "there is no significant love, affection or emotional ties" between C.W. and X.W. due to C.W.'s incarceration. That finding was supported by competent substantial evidence; C.W. has been incarcerated since X.W. was born. Given that finding, the least restrictive means test does not preclude the termination of parental rights. See S.S. v. Dep't of Children & Family Servs., 891 So.2d 1068, 1070 (Fla. 2d DCA 2004) (affirming termination of parental rights where child had been in custody of and had established a bond with maternal aunt and there was "little or no bond to protect and there was never a parent-child relationship to reestablish"); F.L.C. v. G.C., 24 So.3d 669, 671 (Fla. 5th DCA 2009) ("Here, the trial court specifically found that the father did not have a meaningful father/child bond with either of his two sons. Where there is little or no bond to protect and there was never a parent/child relationship to re-establish, termination of parental rights is not barred by the application of the least restrictive means test.").

III.

The findings the trial court made to support its conclusion that the statutory presumption that termination of C.W.'s parental rights is not in X.W.'s manifest best interests were not supported by competent substantial evidence. The trial court's findings concerning harm neglected to account for the evidence before it, and its findings concerning least restrictive means were legally mistaken. We reverse the order denying the GAL's petition to terminate parental rights and remand the case with directions to the trial court to reconsider whether X.W. is subject to a substantial risk of significant harm and to enter a new final order on the GAL's petition in light of its findings. If it is helpful for the court to consider additional evidence on the question of harm, it is free to do so.

Reversed and remanded with directions.

KHOUZAM and LUCAS, JJ., Concur.

      Lewd or lascivious battery under section 800.04(4)(a), Florida Statutes (2013), criminalizes "sexual activity" with a minor, the definition of which is identical to the definition of the term "sexual battery" under section 794.011(h), Florida Statutes (2013). See § 800.04(1)(a) ; see also Guardian Ad Litem Program v. M.H., 184 So.3d 1253, 1256-57 (Fla. 4th DCA 2016) (holding that (1)(m) applies upon proof that a child "was conceived as a result of ... conduct deemed unlawful pursuant to section 794.011(8)(a)" and that "[w]e do not construe the requirement that a trial court must accept a guilty plea or conviction as conclusive proof of a violation of section 794.011 as an element requiring a guilty plea or conviction for TPR under that ground"). Impregnation of a minor under sixteen by a person over twenty-one is a violation of section 827.04(3), Florida Statutes (2013), and is part of the child abuse statutes.

      The trial court found that the maternal grandmother testified that she wanted to give "both the mother and father a chance to raise the child." That finding is not supported by competent substantial evidence because that is not how the grandmother testified. She testified as described in the text.

      It appears that the sentencing court in C.W.'s criminal case consented to these visits.

      The only factors that did not weigh in favor of termination were those under section 39.810(1), dealing with the existence of a suitable permanent custody arrangement with a relative, and section 39.810(10), pertaining to the child's preferences, which the trial court correctly found he was unable to express. These amounted at most to neutrals under the circumstances of this case. See § 39.810(1) (stating that the existence of a suitable permanent custody arrangement "may not receive greater consideration than any other factor weighing on the manifest best interest of the child and may not be considered as a factor weighing against termination of parental rights"), (10) (stating that a court may consider a child's preferences "if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference").

      Adjudicatory hearings in termination cases are governed by the "rules of evidence in use in civil cases." § 39.809(3). In civil cases, there are two types of evidentiary presumptions-those affecting the burden of producing evidence and those affecting the burden of proof. See § 90.302-.304, Fla. Stat. (2016) ; Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 51-54 (Fla. 2012) (describing and differentiating between the two types of presumptions). In this case, we need not decide into what category the presumption created by section 39.806(1)(m) falls. We assume without deciding that the presumption affects the burden of production-the weaker of the two types of presumption-and conclude that C.W. has failed to rebut it.

      The GAL argues that once it proved the ground for termination under section 39.806(1)(m), harm was established without need of any additional inquiry into the individual circumstances of the case. Because the requirement of harm is a matter of due process, there is at least a question as to whether the GAL's construction of the statute would be constitutional. See F.L., 880 So.2d at 608-09 (rejecting as unconstitutional a construction of section 39.806(1)(i), establishing a ground for termination when the parent's rights to another child have been involuntarily terminated, as creating a rebuttable presumption in favor of termination). This constitutional issue has not been briefed by the parties and, because we can resolve this appeal on the grounds stated in the text, we decline to reach or express any opinion about it. See Martinez v. Heinrich, 521 So.2d 167, 168 (Fla. 2d DCA 1988) (describing the "fundamental doctrine" that courts do not decide constitutional questions unless necessary).

      To the extent the trial court's reconsideration of the constitutional requirement of harm also bears on its determination that the GAL failed to prove a statutory ground for termination under section 39.806(1)(g), it may also reconsider that determination.


author: CRENSHAW, Judge.

text:
    STATE of Florida, Appellant, v. A.J., Appellee.
    Case No. 2D15-2718
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellee.
   CRENSHAW, Judge.

The State appeals the dismissal of a marijuana possession charge against A.J. The trial court dismissed the charge-over the State's repeated objections-after A.J. had orally moved for dismissal on the basis that she had returned six consecutive negative drug screens as the court had ordered. Because the dismissal was error, we must reverse.

The State charged A.J. with one count of possessing less than twenty grams of a controlled substance-marijuana-after a school official found a "marijuana blunt" in A.J.'s makeup bag during a search. At a status conference on April 30, 2015, the court offered to dismiss the charges if A.J. satisfied her case manager's drug treatment program at the end of three months, after the case manager had reported that A.J. had returned four consecutive negative drug screens between February 26 and April 25. In response to concerns from defense counsel about objections the State may have to this offer, the court stated that "I don't care whether they do or do not.... It's not their call."

At the next status conference on May 28, 2015, A.J. moved for dismissal of the charges, arguing that "she had six consecutive negative drug screens and that was the offer made to her by the court, not only on the date of arraignment, but [also at] her last status conference." The State argued that "there's no basis for the [c]ourt to dismiss. There's no motions. It's not a trial. It's not within the [c]ourt's purview ... for the [c]ourt to just outright dismiss." However, the court granted A.J.'s oral motion.

The State's discretion to prosecute is "absolute," Barnett v. Antonacci, 122 So.3d 400, 405 (Fla. 4th DCA 2013) (quoting State v. Cain, 381 So.2d 1361, 1367 (Fla. 1980) ), and "inviolate," State v. Greaux, 977 So.2d 614, 615 (Fla. 4th DCA 2008) (citing State v. Wheeler, 745 So.2d 1094, 1096 (Fla. 4th DCA 1999) ). "[I]n the absence of [a] statute or motion to dismiss, the decision whether to prosecute or to dismiss charges is a determination to be made by solely the State." State v. Brosky, 79 So.3d 134, 135 (Fla. 3d DCA 2012). This discretion trumps the court's belief regarding whether the interests of the public and the parties are best served by a dismissal. Id. (first citing State v. Cleveland, 390 So.2d 364, 367 (Fla. 4th DCA 1980), approved, 417 So.2d 653 (Fla. 1982) ; and then citing Wheeler, 745 So.2d at 1096 ). Additionally, Florida Rule of Criminal Procedure 3.190(a) requires that a motion to dismiss "be in writing and signed by the party making the motion or the attorney for the party," and "[t]his court has repeatedly held that it is improper for a trial court to dismiss charges when the defendant has not filed a written motion to dismiss." State v. Suazo, 973 So.2d 1273, 1274 (Fla. 2d DCA 2008) (citing cases).

Here, A.J.'s motion was not in writing, but made orally at the status conference. In addition, no "good cause" was shown by A.J. so as to permit the court to waive the requirement that the motion be in a signed writing. See Fla. R. Crim. P. 3.190(a). The court therefore erred in granting A.J.'s oral motion to dismiss. See Suazo, 973 So.2d at 1274 ; State v. Reedy, 862 So.2d 941, 942 (Fla. 2d DCA 2004) (holding that the trial court erred in dismissing grand theft charges where motion to dismiss was not in writing and the State did not have time to prepare its response).

Moreover, the State repeatedly argued-to no avail-that there was no authority for the court to enter a dismissal. It is apparent from the transcripts of the status conferences that the court "fashioned" this form of "sanction" because it did not consider juvenile drug court-which the State had offered-as suitable for A.J.'s needs and circumstances, considering that A.J. would have to be removed from school three times per week to attend and that there would be transportation issues getting her to and from drug court. In fact, at the first status conference, the trial court remarked that the juvenile drug court program had a "one size fits all approach" and stated that "I will do what I think is best for this child because she is my child and in my care." The court's dismissal constituted an improper infringement upon the State's discretion to prosecute. See Wheeler, 745 So.2d at 1096.

As the Fourth District stated in Wheeler, "[n]otwithstanding the court's belief that the best interests of the public and the parties would be served by dismissal, it is the state attorney who 'must still make the final determination as to whether prosecution will continue.' " Id. (quoting Cleveland, 390 So.2d at 367 ). In State v. Plate, 929 So.2d 617, 618 (Fla. 5th DCA 2006), for instance, the trial court had dismissed a charge of obtaining a motor vehicle by fraud against Plate, "apparently in an effort to save Plate's military career." The Fifth District found this was an abuse of discretion "[n]otwithstanding the trial court's good intentions." Id. The Fifth District also found an abuse of discretion "[n]otwithstanding the trial court's good intentions," where the trial court had dismissed two charges related to the defendant's driving without a license, apparently influenced by the defendant's efforts to obtain a license, the cost of prosecuting, and the interests of judicial efficiency. State v. Franklin, 901 So.2d 394, 395 (Fla. 5th DCA 2005).

Here, like in Plate and Franklin, the trial court-notwithstanding its "good intentions"-abused its discretion in dismissing the charge against A.J. over the State's objections, based on its perspective of the most suitable way to address A.J.'s circumstances. The decision whether to prosecute or to dismiss the charges against A.J. was vested solely in the State. See Brosky, 79 So.3d at 135. Accordingly, we reverse and remand for further proceedings. See Suazo, 973 So.2d at 1274 (first citing Reedy, 862 So.2d at 942 ; then citing State v. Alexander, 831 So.2d 1252, 1253 (Fla. 2d DCA 2002) ; and then citing State v. Pope, 674 So.2d 901, 901 (Fla. 2d DCA 1996) ).

Reversed and remanded for further proceedings.

LaROSE, C.J., and LUCAS, J., Concur.


author: Per Curiam.

text:
    Patrice KERR, Petitioner, v. SECOND JUDICIAL CIRCUIT COURT, Respondent.
    No. 1D18-0297
    District Court of Appeal of Florida, First District.
    February 20, 2018
    Patrice Kerr, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Patrice Kerr filed a tort suit against several public officials and other defendants, seeking monetary and injunctive relief. Claiming the trial court has not timely ruled on his pending motions, Kerr seeks a writ of mandamus. But in a civil case like this one, "it is the litigant's obligation to take such actions as are necessary to prosecute the case to final disposition, and, in the course of that, to file such motions as may be necessary and bring those motions to the trial court's attention for a ruling." Thomas v. State, Dep't of Revenue , 74 So.3d 145 (Fla. 1st DCA 2011). Because Kerr has made no showing that he has taken such actions, his petition is DENIED.

Jay, Winsor, and M.K. Thomas, JJ., concur.


text:
    Cornelius Dion BASKIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D14-3802
    District Court of Appeal of Florida, Second District.
    Opinion filed March 7, 2018. Rehearing Denied May 14, 2018
    Mark Lipinski, Bradenton, and Christopher E. Cosden, Fort Myers, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   SALARIO, Judge.

Cornelius Baskin appeals from his judgment and sentence for second-degree murder. The evidence at his trial included statements he made to police after he was confined in the psychiatric wing of a hospital. Although Mr. Baskin's family retained a lawyer to represent him, the police did not tell him that and instead interviewed him in the absence of counsel. The admission of those statements violated the due process clause of the Florida Constitution.

We reverse and remand for a new trial or other proceedings consistent with this opinion.

On June 7, 2012, Regina Nunez was found dead, lying face down on her bed in her apartment in Bradenton, Florida. She had last been seen alive by a friend during the afternoon of June 6. When police began investigating the death, they learned that Ms. Nunez and Mr. Baskin were romantically involved and that Mr. Baskin was frequently in her apartment. That led police to want to talk to him.

At the time, Mr. Baskin had been committed to Manatee Memorial Hospital pursuant to the Baker Act. See §§ 394.451-.4892, Fla. Stat. (2011). While at his parents' during the afternoon and evening of June 6, he had been behaving in an agitated way-nervous, pacing, and unable to relax or slow down. He had, according to his mother, suffered from similar mental health problems before. At about four o'clock in the morning on June 7, Mr. Baskin's parents took him to Manatee Memorial. He was placed in the psychiatric unit, which is secure and allows only limited visitor access.

When Mr. Baskin's mother came to visit him around six o'clock in the evening on June 7, a nurse told her that she would not be permitted to see him. The nurse explained that Ms. Nunez had been found dead, that the police were coming to the hospital to question Mr. Baskin, and thus that no visit could be allowed. Concerned about her son's being questioned in light of his mental state at the time, Mr. Baskin's mother set about looking for an attorney to represent him.

She reached out to Layon Robinson, a lawyer in Manatee County who was married to a friend of hers from church, who agreed to represent Mr. Baskin. Mr. Robinson immediately went to the hospital. He spoke to a security guard and a nurse at the psychiatric unit and told them that he was Mr. Baskin's lawyer, but he was not permitted to see Mr. Baskin. Mr. Robinson gave the nurse a business card, reiterated that he was Mr. Baskin's lawyer, and told them that he did not want Mr. Baskin talking to the police. He waited with Mr. Baskin's parents for a short while-Mr. Baskin's father having arrived at some point during the events-but the police did not arrive. They all then left the hospital with a plan to come back in the morning to talk to Mr. Baskin.

The police arrived sometime later. Although the record is not clear about the chain of communication, it is clear that they became aware that a lawyer had been hired to represent Mr. Baskin. Notwithstanding that, the investigating detective interviewed Mr. Baskin. That detective did not tell Mr. Baskin that he had a lawyer and did not inform him of any rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Mr. Baskin had also been given medications by the hospital to calm him down, and he was expected to become drowsy. During the interview, Mr. Baskin initially said that he had last seen Ms. Nunez a couple of days before the murder but then later stated that he had last seen her at her apartment around eight in the morning on June 6. He also said that when he left, Ms. Nunez was asleep in her bed. The detective asked about the last time Mr. Baskin and Ms. Nunez had had sex, and Mr. Baskin said about a week before.

The county medical examiner concluded that Ms. Nunez's death was a homicide and that the cause of death was asphyxiation. The State charged Mr. Baskin with second-degree murder. Prior to trial, Mr. Baskin moved to suppress the statements he made to the police at Manatee Memorial on the ground, among others, that the police decision to conduct the interview without Mr. Baskin's counsel present and without informing Mr. Baskin that counsel had been retained for him violated the due process clause of article 1, section 9 of the Florida Constitution. The trial court denied the motion because it concluded that the interview was not a custodial interrogation.

The case went to trial. The State's DNA evidence put Mr. Baskin's DNA on Ms. Nunez's person and in her bedroom, but it also produced evidence of other contributors-including at least one other male contributor. Although the presence of Mr. Baskin's DNA was consistent with his being the murderer, it was also consistent with what one might expect of people in close contact, as the evidence showed Mr. Baskin and Ms. Nunez had been. The State proceeded on a theory that Mr. Baskin killed Ms. Nunez because he was jealous and believed she was carrying on with other men. There was evidence that Mr. Baskin had a tumultuous relationship with Ms. Nunez, with frequent loud arguments and accusations by Mr. Baskin that Ms. Nunez had been unfaithful. There were cell phone records reflecting several calls and emotional texts between Mr. Baskin and Ms. Nunez on the day of the murder that showed that the two planned to see each other that day. And the State presented site location data from Mr. Baskin's cell phone carrier that showed that his cell phone connected to the cell tower closest to Ms. Nunez's home at a time consistent with the medical examiner's testimony concerning when the murder may have occurred.

During closing arguments, the State highlighted Mr. Baskin's statements to the police at the hospital that were admitted during trial, arguing that they placed him in the apartment close in time to the murder, showed a familiarity with the details of the crime, and showed a consciousness of guilt. In its initial closing argument, the State argued that suggestions from evidence adduced by the defense that certain other persons might have committed the murder were meritless, stating as follows:

If the killer is one of those people, how come we see no texts from that person, in those last several texts where we know Ms. Nunez to be alive. And that, ladies and gentlemen, the fact that he wants to put himself as far away from her apartment as he can, in the hours surrounding her death, is why he fudges his answers when he talks to [the detective] at the hospital. He first says that he last spoke to her a couple days ago. That's his first answer. Then he says he was at the apartment around 8 a.m. on the 6th, and that Regina was asleep on the bed when he left. And it's interesting that the last time he saw her, I submit some of the truth leaks through his statements, he says she's on the bed the last time he saw her. Because that is the last place he saw her, ladies and gentlemen, on the bed, lifeless.

(Emphasis added.)

The jury convicted Mr. Baskin, and the trial court sentenced him to thirty years in prison to be followed by ten years of probation. This is Mr. Baskin's timely appeal. He argues, among other things, that the trial court erred in admitting his statements to the police during his uncounseled interview at the hospital.

The supreme court's decision in State v. McAdams, 193 So.3d 824 (Fla. 2016) -rendered after the trial in this case-compels us to reverse. There, the police interviewed an estranged husband during an investigation into the whereabouts of his wife and her boyfriend. Id. at 826. The husband was told that he was not under arrest and voluntarily accompanied a detective to the sheriff's office, where he was questioned in an interview room. Id. While he was being questioned, an attorney retained by the husband's parents arrived. Id. at 826-27. Although the lawyer told the deputy at the counter that he wanted all questioning to stop, he was not allowed to communicate with his client. Id. at 827. The husband confessed to murdering his wife and her boyfriend. Id. at 826. After he confessed, the questioning detectives read the husband the Miranda warnings, and the husband continued talking and directed the detectives to the bodies of the wife and boyfriend. Id.

After the trial court denied a motion to suppress the husband's statements, he was convicted and sentenced to life in prison. Id. at 828. Our court reversed, holding that once the detectives read the husband the Miranda warnings, he was in custody and entitled to be informed about the attorney retained to represent him. Id. (citing McAdams v. State, 137 So.3d 401, 407-08 (Fla. 2d DCA 2014) ). We certified a question to the supreme court concerning whether and when a defendant who is not in custody has a right to be informed that a lawyer has been retained to represent him and wishes to talk to him. Id. at 828-29. The supreme court rephrased that question as asking when, under the due process clause of the Florida Constitution, a person being questioned by law enforcement in a nonpublic location must be notified that an attorney retained for that person is at the location and available to speak with him or her. Id. at 829.

The supreme court held that "when an individual is being questioned in a non-public area, and an attorney retained on his or her behalf arrives at the location, the Due Process Clause of the Florida Constitution requires that the police notify the individual of the attorney's presence and purpose." Id. at 832. This is true regardless of whether the defendant is in custody, the supreme court held, because it is "unworkable for the due process rights of an individual under the Florida Constitution to be contingent upon custodial status with regard to access to a retained attorney" because "[i]t is clear that as soon as a retained attorney arrives at the law enforcement office, the questioning of the individual can intensify significantly with the goal of obtaining a confession." Id. at 831. Thus, "the only way to properly protect the due process rights of citizens under the Florida Constitution is to implement a bright-line rule" that when someone is being questioned in a nonpublic place and an attorney arrives to represent them, the individual under questioning is entitled to know. Id. at 832.

We see no material respect in which this case is distinguishable from McAdams. The supreme court explicitly rejected the custodial/noncustodial distinction upon which the trial court, consistent with our court's earlier decision in McAdams, relied in denying Mr. Baskin's suppression motion in favor of a "bright-line" rule that applies whenever a defendant is being questioned in a nonpublic place and an attorney comes to represent him. There is no dispute that Mr. Baskin was questioned in a nonpublic place-Baker Acted in a secure unit in a hospital-or that an attorney had been retained to represent him. The only difference here is that the attorney left the hospital before the police arrived, whereas in McAdams the attorney was physically present at the sheriff's office while the interrogation was in process. That distinction makes no difference on the facts of this case. An attorney was retained for Mr. Baskin and wanted to talk to him, the police were aware of it before they questioned Mr. Baskin, and the attorney provided a business card to the nurse at the hospital so that there was a means for the police to get Mr. Baskin in contact with him. Given those circumstances, there is no reason why the applicability of McAdams to this case would hinge on the fact that Mr. Baskin's lawyer happened not to be physically present at the hospital when the police arrived to question Mr. Baskin. See Greenwich v. State, 207 So.3d 258, 264 (Fla. 5th DCA 2016) (holding that the fact that counsel was not physically present at the nonpublic facility where questioning was taking place was immaterial where counsel attempted to contact his client at the facility by telephone).

Nor was the admission of Mr. Baskin's statements to the police harmless beyond a reasonable doubt. See Geissler v. State, 90 So.3d 941, 948 (Fla. 2d DCA 2012) (observing that State bears burden of establishing harmlessness beyond reasonable doubt). This was a close case. The DNA evidence was not conclusive, and the balance of the State's case as to identity and state of mind hinged on inferences drawn from circumstantial evidence, such as the character of Mr. Baskin's relationship with Ms. Nunez and the cell-site-location data placing Mr. Baskin's phone at a cell tower near Ms. Nunez's apartment close in time to the murder. The admission of Mr. Baskin's statements enabled the State to add to those circumstances in closing argument that Mr. Baskin was in Ms. Nunez's apartment close in time to the murder, that he was acquainted with the position of the body at the crime scene, and that after the murder, Mr. Baskin behaved in a manner consistent with the way a guilty person would behave when approached by the police-fudging answers about important details but admitting enough to show that he knew what happened because he was there. On this record, we are unable to say that there is no possibility that the error in admitting these statements contributed to the verdict. See Williams v. State, 199 So.3d 424, 428 (Fla. 2d DCA 2016) (holding that erroneous admission of evidence of the defendant's flight was not harmless where the State's evidence was not overwhelming and stating that "because the evidence of flight established an inference of consciousness of guilt, we simply cannot say that ... this evidence did not contribute to the verdict"); Allen v. State, 192 So.3d 554, 558 (Fla. 4th DCA 2016) (holding that evidence of the defendant's prearrest refusal to submit to a DNA test was not harmless, even where he submitted to the test postarrest, because the evidence was "admitted to show his consciousness of guilt" and "the state emphasized this erroneously admitted evidence in its closing argument").

Mr. Baskin also argues that the trial court erred in denying his motion to suppress the cell-site-location data presented by the State on grounds that it was obtained without a warrant in violation of the Fourth Amendment to the United States Constitution. In Tracey v. State, 152 So.3d 504, 526 (Fla. 2014), our supreme court held that the warrantless procurement of real-time cell-site-location data violated the Fourth Amendment, but it did not address whether the same conclusion pertains to past or historical cell-site-location data of the type used in this case. The question of whether law enforcement may access a suspect's historical cell-site-location data without a warrant is before the United States Supreme Court in Carpenter v. United States, No. 16-402, with a decision expected this term. See Carpenter v. United States, --- U.S. ----, 137 S.Ct. 2211, 198 L.Ed.2d 657 (2017). Mr. Baskin has filed a motion asking that we stay our decision in this appeal pending the outcome of Carpenter. Because reversal is necessary regardless of how Carpenter is decided, we deny that motion by way of separate order. We note, however, that in the event this case is retried as a result of this opinion, any determination under the Fourth Amendment concerning the admissibility of the cell-tower data will likely be controlled by the decision in Carpenter.

For the foregoing reasons, the judgment and sentence of the trial court is reversed and this case is remanded for a new trial or other proceedings consistent with this opinion.

Reversed and remanded.

KELLY and BLACK, JJ., Concur.

      McAdams also addressed errors associated with the failure to give Miranda warnings in a custodial situation, 193 So.3d at 830-45, an issue we need not discuss because we reverse based on McAdams' holding regarding the failure to inform Mr. Baskin that he had counsel.

      Mr. Baskin further challenges the denial of his motion for judgment of acquittal on grounds that the State failed to satisfy the special standard applicable in circumstantial evidence cases and that the trial court erred in admitting certain testimony by the custodian of Mr. Baskin's cell phone records. We find no merit in either issue and decline to address them further.


text:
    Quinton COLLIER, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW and Florida Department of Corrections, Respondents.
    No. 1D17-2794
    District Court of Appeal of Florida, First District.
    March 15, 2018
    Quinton Collier, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee; Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondents.
   Per Curiam.

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

Wolf, Lewis, and Jay, JJ., concur.


text:
    Victor Jerome BELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2370
    District Court of Appeal of Florida, First District.
    March 9, 2018
    Victor Jerome Bell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.110(b).

Rowe, Ray, and Makar, JJ., concur.


text:
    Frank ROSSOTTO, Appellant, v. WEST PARK VILLAGE CONDOMINIUM ASSOCIATION, INC., Appellee.
    Case No. 2D17-2738
    District Court of Appeal of Florida, Second District.
    Opinion filed March 28, 2018
    Frank Rossotto, pro se.
    Stephan C. Nikoloff of Cianfrone, Nikoloff, Grant & Greenberg, P.A., Dunedin, for Appellee.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction. See Wahl v. Taylor, 926 So.2d 488, 489 (Fla. 2d DCA 2006) ("[A]n order merely granting a motion for summary judgment is not a final order because it does not enter judgment for or against a party."); Better Gov't Ass'n of Sarasota Cty. v. State, 802 So.2d 414 (Fla. 2d DCA 2001).

LaROSE, C.J., and CRENSHAW and LUCAS, JJ., Concur.


text:
    Kahn D. CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1968
    District Court of Appeal of Florida, Second District.
    Opinion filed March 28, 2018. Rehearing Denied June 21, 2018
    Kahn D. Campbell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katie Lynn Salemi, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We remand this case to the postconviction court for correction of the judgment and sentence to reflect that Kahn D. Campbell's sentence is a nonguidelines, parole-eligible sentence. See Emory v. State, 605 So.2d 1326, 1327 (Fla. 2d DCA 1992).

We affirm the postconviction court's order in all other respects.

KELLY, SLEET, and BADALAMENTI, JJ., Concur.


author: LaROSE, Chief Judge.

text:
    CITY OF DUNEDIN, Appellant, v. PIRATE'S TREASURE, INC. and Matthew Campbell, Appellees.
    Case No. 2D17-3017
    District Court of Appeal of Florida, Second District.
    Opinion filed April 13, 2018. Rehearing Denied June 8, 2018
    Jay Daigneault, Dunedin, and Randol D. Mora of Trask Daigneault, LLP, Clearwater, Tampa, for Appellant.
    Keathel Chauncey and David J. Melvin of Fresh Legal Perspective, PL., Tampa, for Appellee Pirate's Treasure, Inc.
    No appearance for Appellee Matthew Campbell.
   LaROSE, Chief Judge.

The City of Dunedin appeals the trial court's nonfinal order denying its motion to dismiss the negligent misrepresentation claim asserted against it by Pirate's Treasure, Inc. The trial court found, as a matter of law, that the City was not entitled to sovereign immunity on this claim. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(xi), 9.030(b)(1)(B) ; see also Miami-Dade County v. Pozos, 42 Fla. L. Weekly D2063, D2064, 242 So.3d 1152, 1154, 2017 WL 621233 (Fla. 3d DCA Feb. 15, 2017) (dismissing appeal from an order denying the County's motion for summary judgment where "[t]he trial court ... did not declare, make a finding, or otherwise determine that, as a matter of law, the County was not entitled to sovereign immunity"). Because the City owed neither a common law nor statutory duty of care to Pirate's Treasure, we reverse.

Background

In 2006, representatives of the parties met to review a preliminary conceptual site plan. Pirate's Treasure wanted the City to approve its efforts to renovate its commercial property to accommodate a refurbished marina and a new restaurant. At the meeting, Mr. Campbell allegedly reminded Pirate's Treasure of the necessary processes that had to be completed and the various approvals required before Pirate's Treasure could commence construction. The City alerted Pirate's Treasure to the procedures set forth in the City's publicly-available development code, and the regulations guiding the growth and development of land uses within the City. Pirate's Treasure contends that the meeting was simply to determine whether each renovation "would be allowed" as a permitted or a conditional use under the development code. Pirate's Treasure suggests that the City's final approval of the project was never in question.

Allegedly, Pirate's Treasure relied on representations made by Mr. Campbell and other City employees at the review meeting to begin preparing a costly and time-consuming site plan that would comply with the development code. In November 2007, Pirate's Treasure submitted its final site plan, which the City's engineering department approved in August 2009.

In September 2009, however, the City informed Pirate's Treasure of its concerns with the proposed restaurant's square footage and the sufficiency of parking. Pirate's Treasure demanded final approval of the site plan, claiming that the City had never raised these issues before. Later, in December 2009, the parties agreed that the site plan for the marina redevelopment and restaurant would be separated so as not to cause "undue further hardship" to Pirate's Treasure. In May 2010, the City approved the site plan for the marina redevelopment. In April 2011, the City informed Pirate's Treasure that its application for the site plan approval for the restaurant was considered terminated; a new application needed to be submitted, in compliance with a revised development code that became effective in December 2010.

In response, Pirate's Treasure sued the City in September 2011. It filed an amended complaint in September 2016 to add claims of fraud and negligent misrepresentation against the City and Mr. Campbell. Pirate's Treasure alleged that the City and Mr. Campbell "knew or should have known the falsity of such misrepresentations" regarding its repeated assurances to Pirate's Treasure "that the site plan was approved on multiple occasions." Pirate's Treasure contended that the City and Mr. Campbell engaged in a bait-and-switch, with "such misrepresentations [made] in order to induce [Pirate's Treasure] into beginning construction on the Marina Development." The City moved to dismiss the amended complaint on the grounds that it was immune from the fraud and negligent misrepresentation counts. The trial court held a hearing on the City's motion and issued two orders. The first dismissed the fraud claim with prejudice. The second order denied, as a matter of law, the City's motion to dismiss the negligent misrepresentation claim. The City appeals from this second order.

Analysis

The City argues that the trial court should have granted its motion to dismiss the negligent misrepresentation claim on sovereign immunity grounds. The City contends that Pirate's Treasure's pleadings impute the actions of a city employee against the City. Consequently, according to the City, the claims are barred by section 768.28(9), Florida Statutes (2011), because the pleadings incorporate "allegations that the City's negligence was the result of an employee's bad faith, malicious purpose, or wanton disregard for property." We reject this argument. The separate counts against the City and its employee are pleaded sufficiently and could stand independently. We comment no further on this argument.

We address in greater detail the City's argument that, as a sovereign state entity, it is immune from liability on Pirate's Treasure's negligent misrepresentation claim because it owed Pirate's Treasure no duty to enforce, interpret, or provide reliable information concerning compliance with the City's development code.

The parties frame the issue before us as whether sovereign immunity shields the City from liability. See Town of Gulf Stream v. Palm Beach County, 206 So.3d 721, 725 (Fla. 4th DCA 2016) ("Sovereign immunity protects the sovereign from being sued without its consent." (citing City of Fort Lauderdale v. Israel, 178 So.3d 444, 446 (Fla. 4th DCA 2015) ) ); see also § 768.28(2), Fla. Stat. (2017) (including municipalities as being among those state entities entitled to sovereign immunity).

The parties conflate the issues of tort liability and sovereign immunity. As noted earlier, the City claims entitlement to sovereign immunity because it owes no duty to Pirate's Treasure. However, there is a significant distinction "between a lack of liability under established tort law and the presence of sovereign immunity." Wallace v. Dean, 3 So.3d 1035, 1044 (Fla. 2009). As the Florida Supreme Court observed, "[w]hen addressing the issue of governmental liability under Florida law, we have repeatedly recognized that a duty analysis is conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes." Id. (footnote omitted). In other words, "[i]f no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached." Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 932 (Fla. 2004) ; see also Wallace, 3 So.3d at 1045 ("[T]he presence of sovereign immunity does not render the State's actions nontortious[;] it simply means that the State has not consented to suit in its courts with regard to certain claims[ ]. In contrast, the absence of a duty of care renders the defendant nonliable as a matter of law because his, her, or its actions are therefore nontortious vis-à-vis the plaintiff." (emphasis omitted) ). "[T]he absence of a duty of care between the defendant and the plaintiff results in a lack of liability, not application of immunity from suit." Wallace, 3 So.3d at 1044.

"[F]or there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct." Hillsborough County v. Morris, 730 So.2d 367, 368 (Fla. 2d DCA 1999) (alteration in original) (quoting Trianon Park Condo. Ass'n v. City of Hialeah, 468 So.2d 912, 917 (Fla. 1985) ). And, "whether a 'duty of care' exists is a question of law to be determined solely by the [trial] court.... We review that legal determination de novo." L.A. Fitness Int'l, LLC v. Mayer, 980 So.2d 550, 557 (Fla. 4th DCA 2008) (citation omitted).

The City bears no statutory or common law duty to furnish Pirate's Treasure information regarding its city code. See Hillsborough County, 730 So.2d at 368 (finding that the county had no duty "regarding the dissemination of information concerning the location of water mains"). And Pirate's Treasure alerts us to none. "In fact, Florida courts have consistently declined to hold governmental entities liable for a failure to maintain and provide accurate information in public records." Layton v. Dep't of Highway Safety & Motor Vehicles, 676 So.2d 1038, 1040 (Fla. 1st DCA 1996). The disinclination of Florida courts to attach liability to sovereign entities has even been extended to instances involving the active dissemination of inaccurate information. See, e.g., City of Tarpon Springs v. Garrigan, 510 So.2d 1198, 1199-1200 (Fla. 2d DCA 1987) (holding that the city was not liable for building inspector's "alleged negligent furnishing of incorrect information" regarding federal flood insurance program requirements); Friedberg v. Town of Longboat Key, 504 So.2d 52, 53 (Fla. 2d DCA 1987) (holding that the town was not liable for allegedly furnishing incorrect information concerning the issuance of a certificate of occupancy); Storm v. Town of Ponce Inlet, 866 So.2d 713, 715 (Fla. 5th DCA 2004) ("[T]he government owes no duty to individual members of the public for giving out accurate information ...."). The City, therefore, does not owe a duty to convey accurate information concerning whether Pirate's Treasure's site plan complied with the City's development code.

Because we determine that the City did not owe Pirate's Treasure a duty of care, we proceed no further in analyzing whether sovereign immunity prevents Pirate's Treasure's negligent misrepresentation claim. See Wallace, 3 So.3d at 1044 ("[I]f a duty of care is owed, it must then be determined whether sovereign immunity bars an action for an alleged breach of that duty." (quoting Pollock, 882 So.2d at 933 ) ); McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla. 1992) (stating that the 'duty' element of a negligence action "is a minimal threshold legal requirement for opening the courthouse doors" (emphasis and footnote omitted) ).

Conclusion

Because the City owed no common law or statutory duty of care to Pirate's Treasure, we conclude that the City is not liable to Pirate's Treasure on the negligent misrepresentation claim. See Manfre v. Shinkle, 184 So.3d 641, 645 (Fla. 5th DCA 2016) ("[A]s a threshold matter, there can be no governmental liability unless a common law or statutory duty of care was owed to the injured party." (citing Wallace, 3 So.3d at 1044-45 ) ).

Reversed.

VILLANTI and CRENSHAW, JJ., Concur.

      Appellee, Matthew Campbell, was employed by the City at the time of the events giving rise to Pirate's Treasure's claims. Although named along with the City as a codefendant below, he has taken no part in the appellate proceedings. See Fla. R. App. P. 9.020(g)(2) (defining an appellee as "[e]very party in the proceeding in the lower tribunal other than an appellant").

      In a separate order, the trial court dismissed Pirate's Treasure's fraud claim against the City. That order is not before us.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Johntay Amos DORTCH, DOC #Y03027, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2407
    District Court of Appeal of Florida, Second District.
    Opinion filed April 13, 2018.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Johntay Amos Dortch appeals the judgment and sentence entered after a jury found him guilty of fleeing or attempting to elude a law enforcement officer by driving at high speed or with wanton disregard for the safety of other persons or property (count one), resisting an officer without violence (count two), leaving the scene of a crash causing damage to other attended property (count three), and driving without a valid driver license (count four). Following our independent review of the record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we ordered supplemental briefing addressing the sufficiency of the evidence on count three, and we now reverse Dortch's conviction on that count.

Dortch argues that the trial court erred in denying his motion for judgment of acquittal on count three because the evidence failed to establish that the crash caused any damage to the attended building identified in the operative information.

See § 316.061(1), Fla. Stat. (2015). The State appropriately concedes error-neither the officers' testimony nor the dash camera video demonstrated that the building sustained any damage when Dortch's vehicle collided with it. See Bonner v. State, 138 So.3d 1101, 1102 (Fla. 1st DCA 2014) (holding that State failed to prove violation of probation based on new law offense because affidavit alleged damage but not injury but evidence at hearing suggested personal injury but failed to establish damage to vehicle or property); Powell v. State, 28 So.3d 958, 958-59 (Fla. 1st DCA 2010) (reversing conviction under section 316.063(1), Florida Statutes (2005), because there was no competent, substantial evidence of damage to property or to another vehicle). Accordingly, we affirm the judgment and sentences as to counts one, two, and four but reverse as to count three.

Affirmed in part; reversed in part.

KELLY and CRENSHAW, JJ., Concur.


text:
    Curtis L. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3735
    District Court of Appeal of Florida, First District.
    April 25, 2018
    Curtis L. Robinson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This appeal is dismissed for lack of jurisdiction. The order of the circuit court deciding that Appellant is not entitled to postconviction discovery is not among the class of orders independently appealable by a defendant pursuant to Florida Rule of Appellate Procedure 9.140(b)(1). See Bond v. State , 206 So.3d 850 (Fla. 1st DCA 2016) (dismissing appeal and noting order denying postconviction discovery is reviewable on appeal from final order disposing of motion for postconviction relief).

Lewis, Roberts, and Jay, JJ., concur.