author: Wolf, J. Kelsey, J., concurring in part and dissenting in part.

text:
    AMALGAMATED TRANSIT UNION, LOCAL 1579, Petitioner, v. CITY OF GAINESVILLE, Respondent.
    No. 1D17-4382
    District Court of Appeal of Florida, First District.
    February 15, 2019
    Eric Jacob Lindstrom of Egan, Lev, Lindstrom & Siwica, P.A., Orlando, for Petitioner.
    Thomas M. Gonzalez and Melissa Torres of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Respondent.
   Wolf, J.

Amalgamated Transit Union, Local 1579 (Union), seeks certiorari review of a trial court order vacating an arbitration award and remanding the matter for a new arbitration before a different arbitrator. We find that we have jurisdiction, grant the petition, and quash the trial court's order. We also certify conflict with the Third, Fourth, and Fifth Districts, which have determined that appellate courts do not have jurisdiction over a petition for writ of certiorari seeking review of a trial court order vacating an arbitration award and ordering a new arbitration.

FACTS

In 2015 the City of Gainesville (City) terminated the employment of a bus driver, who was a member of the Union, for slapping the hands of passengers on two separate occasions in violation of two of the City's Rules. The Union filed a grievance with the City, and the parties ultimately submitted the matter to a mutually selected arbitrator.

At the arbitration hearing, both parties presented evidence including videos of the two incidents, witness testimony, the driver's employment records, and the City's policies and rules. The arbitrator issued his ruling in November 2016, finding the driver had not violated either Rule and ordering the City to reinstate the driver with back pay.

In February 2017, the City filed a petition to vacate the arbitration award in the circuit court. The circuit court held an evidentiary hearing and found the arbitrator displayed evident partiality by finding the driver did not violate the Rules and improperly commenting on the age and demeanor of the passengers involved in the altercations. The court also found that the arbitrator exceeded the scope of his authority by rendering an award beyond the scope of the collective bargaining agreement. The circuit court ordered the parties to undergo a new arbitration proceeding before a different arbitrator. The Union filed a petition for writ of certiorari in this court challenging that ruling.

STANDARD OF REVIEW

It is well settled that to obtain a writ of certiorari, a party must show there is "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Reeves v. Fleetwood Homes of Florida, Inc. , 889 So.2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder , 826 So.2d 382, 387 (Fla. 2d DCA 2002) ). The irreparable harm requirement is jurisdictional, and if a petitioner fails to establish irreparable harm, then the appellate court must dismiss the petition. See Loewenstein, Inc. v. Draheim , 898 So.2d 1129, 1130 (Fla. 4th DCA 2005) (dismissing petition for writ of certiorari because the petitioner failed to establish irreparable harm).

JURISDICTION

We have jurisdiction, as we have previously held that a trial court's order vacating an arbitration award and remanding the matter for a new arbitration constitutes irreparable harm. Heart Surgery Ctr. v. Thomas J. Bixler, II, M.D., P.A. , 128 So.3d 169 (Fla. 1st DCA 2013) ; Felger v. Mock , 65 So.3d 625 (Fla. 1st DCA 2011). As we stated in Felger , an order vacating an arbitration award and ordering a rehearing before another arbitration panel has the same effect as an order granting a motion for new trial and warrants review for the same reasons. 65 So.3d at 628.

Three of our sister courts have held that certiorari jurisdiction does not exist to review a trial court's order vacating an arbitration award and requiring the parties to undergo another arbitration proceeding. Miami-Dade Cty. v. King , 176 So.3d 373, 374 (Fla. 3d DCA 2015) ; Loewenstein , 898 So.2d at 1130 ; Zabawa v. Penna , 868 So.2d 1292 (Fla. 5th DCA 2004).

Each of these cases appear to be based, in part, on the idea that the time and expense of additional proceedings is not the type of irreparable harm that is required to invoke the certiorari jurisdiction of an appellate court. We certify conflict with these cases and reject their holdings for three reasons.

First, requiring a party to go through a second evidentiary proceeding is qualitatively different from simply requiring a party to continue with an initial merits proceeding. A second merits proceeding requires potentially unnecessary repetition and may result in inconsistent determinations that would call into question a trial court's proper role in reviewing an arbitration reward. In Felger , we correctly analogized a trial court order vacating an arbitration award and mandating a second arbitration with an order granting a motion for new trial. 65 So.3d at 627-28. More is involved than simply the time and expense of additional proceedings.

Second, while case law has rejected the idea that an order vacating an arbitration award and requiring an additional arbitration is a final appealable order, such as in City of Fort Lauderdale v. Fraternal Order of Police, Lodge No. 31 , 582 So.2d 162, 162-63 (Fla. 4th DCA 1991), no more judicial labor needs to be done in relation to a vacated final arbitration award, regardless of whether it is sent for a new arbitration. Any further judicial labor on the part of the trial court will be directed to the second arbitration proceeding. Thus, while precedent prevents us from reviewing the trial court's order as an appealable final order, it should be subject to some form of review by an appellate court.

Finally, petitioner persuasively argues that by not providing for some review of trial court orders vacating an arbitration award and ordering a new arbitration, we are not providing deference to the alternative dispute resolution process. Florida has long held that arbitration is a contracted for agreement that ensures an alternative to litigation designed to limit litigation and promote finality. See, e.g., Visiting Nurse Ass'n of Florida, Inc. v. Jupiter Med. Ctr., Inc. , 154 So.3d 1115, 1135-36 (Fla. 2014). Requiring parties to undergo an additional evidentiary procedure without appellate review would thus frustrate the entire stated point of arbitration: limited litigation and finality.

Accordingly, providing certiorari review in the limited circumstances where a trial court has clearly departed from the essential requirements of the arbitration statute not only protects the contractual agreement reached between parties in a specific case, but also supports the rationale behind the use of arbitration as an alternative form of dispute resolution.

DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF THE LAW

To establish that a trial court has departed from the essential requirements of the law, a party must show "the trial court made an error so serious that it amounts to a miscarriage of justice." Fuller v. Truncale , 50 So.3d 25, 27 (Fla. 1st DCA 2010) (quoting State v. Smith , 951 So.2d 954, 958 (Fla. 1st DCA 2007) ). "A ruling constitutes a departure from the essential requirements of the law when it amounts to a violation of a clearly established principle of law resulting in a miscarriage of justice. The term clearly established law refers to recent controlling case law, rules of court, statutes, and constitutional law." Heart Surgery Ctr. , 128 So.3d at 173 (citing Dep't of Revenue ex rel. Carnley v. Lynch , 53 So.3d 1154, 1156 (Fla. 1st DCA 2011) ).

In Florida, circuit courts are required to vacate an arbitration award if:

(a) The award was procured by corruption, fraud, or other undue means;
(b) There was:
1. Evident partiality by an arbitrator appointed as a neutral arbitrator;
2. Corruption by an arbitrator; or
3. Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
(c) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to hear evidence material to the controversy, or otherwise conducted the hearing contrary to s. 682.06, so as to prejudice substantially the rights of a party to the arbitration proceeding;
(d) An arbitrator exceeded the arbitrator's powers;
(e) There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under s. 682.06(3) not later than the beginning of the arbitration hearing; or
(f) The arbitration was conducted without proper notice of the initiation of an arbitration as required in s. 682.032 so as to prejudice substantially the rights of a party to the arbitration proceeding.

§ 682.13(1)(a)-(f), Fla. Stat.

In the absence of one of the above numerated factors, courts are without authority to overturn an arbitration award. See Schnurmacher Holding, Inc. v. Noriega , 542 So.2d 1327, 1328 (Fla. 1989). Moreover, a trial court may not vacate an arbitration award for mere errors of judgment an arbitrator has made as to the law or as to the facts of a case. Visiting Nurse Ass'n of Florida, Inc. , 154 So.3d at 1134.

In the instant case, the trial court vacated the arbitration award for two reasons: the arbitrator demonstrated evident partiality and the arbitrator exceeded his powers.

Evident Partiality

The correct test for weighing an arbitrator's evident partiality "consists of judging whether the complaining party made a showing through credible evidence, giving rise to a reasonable impression of partiality that was direct, definite, and capable of demonstration, as distinct from a mere appearance of bias that was remote, uncertain, and speculative." Heart Surgery Ctr. , 128 So.3d at 175 (quoting RDC Golf of Fla. I, Inc. v. Apostolicas , 925 So.2d 1082, 1095 (Fla. 5th DCA 2006) ). A trial court's failure to use the correct test in judging the partiality of the arbitrator and the failure to correctly interpret case law constitutes a departure from the essential requirements of law. Heart Surgery Ctr. , 128 So.3d at 176.

In this case, the trial court utilized, in part, an "outrageous findings" standard that has been used in some federal cases.

United Indus. Workers, Serv., Transp., Prof'l Gov. of N. Am. of Seafarers' Intern. Union of N. Am., Atl., Gulf, Lakes & Inland Waters Dist. AFL-CIO, (Local No. 16) on Behalf of Bouton v. Gov. of Virgin Islands , 987 F.2d 162, 171 (3d Cir. 1993) ; Holodnak v. Avco Corp., Avco-Lycoming Div., Stratford, Connecticut , 381 F.Supp. 191, 199 (D. Conn. 1974), aff'd in part, rev'd in part , 514 F.2d 285 (2d Cir. 1975).

The outrageous findings standard has not been adopted in Florida as a distinct reason for vacating an award. In some cases the language of an arbitration award may provide evidence of partiality that could permit a court to vacate an arbitration award. However, we decline to adopt that standard here as it could impermissibly lead to trial courts reevaluating factual findings and legal conclusions. See Visiting Nurse Ass'n of Florida, Inc. , 154 So.3d at 1134. Such reevaluations occurred in this case. The arbitrator's challenged remarks related to the demeanor and actions of the alleged victims, matters that were clearly relevant to the lawfulness of the driver's actions during the incidents. While the trial court disagreed with the arbitrator's characterization of the evidence, the remarks did not demonstrate partiality toward a particular party.

Accordingly, the trial court did not employ the correct legal standard and thus departed from the essential requirements of law.

However, even if the circuit court had used the correct legal standard, it still departed from the essential requirements of the law by reweighing the facts of the case and concluding that the arbitrator employed the incorrect legal standard. Neither of these reasons constitute a valid basis for overturning an arbitration award under section 682.13. Id.

Excess of Authority

A trial court departs from the essential requirements of the law when it erroneously concludes that an arbitrator has exceeded his authority. Fegler , 65 So.3d at 627. If an arbitration award is within the scope of the parties' collective bargaining agreement, a trial court cannot vacate the award on the basis that the arbitrator exceeded his authority. Id. It bears repeating that a trial court may not vacate an arbitration award for mere errors of judgment an arbitrator has made as to the law or as to the facts of a case. Visiting Nurse Ass'n of Florida, Inc. , 154 So.3d at 1134.

Here, the second reason the trial court vacated the arbitration award was because it found the arbitrator exceeded his authority by rendering an award that was beyond the scope of the collective bargaining agreement. Specifically, the trial court found that the arbitrator: (1) ignored the plain language of the rules petitioner was alleged to have violated; (2) struck the words "unlawful" and "improper" from one of the city's disciplinary rules, declined to apply Florida's criminal law to petitioner's claim of self-defense, and failed to follow his own factual findings; and (3) ignored the specific penalty provision contained in the city's disciplinary code by finding that although petitioner committed violations of the code, those violations were not serious enough to warrant dismissal.

The record does not support the trial court's determinations. The parties' collective bargaining agreement states that Union employees are subject to the City's disciplinary code, and both parties agree that the arbitrator was required to determine whether the driver's conduct violated that code. The driver was alleged to have violated Rules 17 and 19, which pertain to the offenses of "fighting, provoking or instigating a fight" and "immoral, unlawful, or improper conduct or indecency, whether on or off the job which would tend to affect the employee's relationship to his/her job, fellow workers' reputations or goodwill in the community."

The arbitrator correctly quoted both rules in the award, found the driver acted in defense of herself and the other passengers while operating the bus, and explicitly found that the driver had not acted unlawfully or improperly. The arbitrator ultimately concluded that the driver had not violated either rule, and therefore the City had no justified basis to fire her.

The arbitration award was clearly within the scope of the arbitrator's authority, and the trial court's order constituted an impermissible review of the arbitrator's factual findings and application of the law. Visiting Nurse Ass'n of Florida, Inc. , 154 So.3d at 1134. As such, the trial court's order was a departure from the essential requirements of law.

The petition for writ of certiorari is granted and the order under review is quashed.

Bilbrey, J., concurs; Kelsey, J., concurs in part and dissents in part with opinion.

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

I concur in the majority's resolution of the jurisdictional issue and in the certification of conflict. I respectfully dissent from the merits disposition, and would deny the petition. The circuit court did not err in interpreting the City's Code of Conduct and the arbitration agreement; or in concluding that the arbitrator demonstrated bias by, at a minimum, going beyond the objectively-observable record facts and basing the decision on speculation as to the non-record feelings, motivations, and personalities of those involved in the underlying incidents. On this record, the circuit court correctly vacated the award.

      All of the federal circuit courts that have addressed this issue have held they have jurisdiction to review a federal district court's order vacating an arbitration award and remanding the case for a new arbitration. Sanchez v. Elizondo , 878 F.3d 1216, 1219 (9th Cir. 2018) ; Bull HN Info. Sys., Inc. v. Hutson , 229 F.3d 321, 328 (1st Cir. 2000) ; Jays Foods, L.L.C. v. Chem. & Allied Prod. Workers Union, Local 20 , 208 F.3d 610, 612-13 (7th Cir. 2000) ; V.I. Hous. Auth. v. Coastal Gen. Constr. Servs. Corp. , 27 F.3d 911, 914 (3d Cir. 1994) ; Landy Michaels Realty Corp. v. Local 32B-32J, Serv. Emps. Int'l Union , 954 F.2d 794, 797 (2d Cir. 1992) ; Forsythe International, S.A. v. Gibbs Oil Company of Texas , 915 F.2d 1017 (5th Cir. 1990). However, the federal appellate courts reached this conclusion based on the statutory language of the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 -16, not on inherent powers or jurisdiction over specific writs. Sanchez , 878 F.3d at 1219-20. The federal statute differs from Florida's statute in that it permits an appeal to be taken from an order modifying, correcting, or vacating an arbitration award under 9 U.S.C. § 16(a)(1)(E), whereas section 682.20(1)(f), Florida Statutes, specifically allows "an appeal from an order vacating an award without directing a rehearing." While federal law is not controlling, it is a persuasive example of how courts can better protect the arbitration process with direct, rather than protracted, appellate review.

      The trial court objected to the arbitrator's characterization of the passenger in the first incident as "an embittered, angry old woman who was mad at the world and spoiling for a verbal fight before she even boarded the bus," who was "childish and obnoxious." The trial court also found it outrageous that the arbitrator described the passenger in the second incident as "an already angry male passenger who got on the bus fussing at the driver, and who was also looking for trouble." While the arbitrator's remarks may be somewhat intemperate, the gist of the remarks concerning the demeanor of the passengers was arguably supported by inferences the arbitrator could have made from the video recordings of the incidents provided to him.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert LEWIS, Appellant, v. U.S. HOSPITALITY OF TAMPA BAY, INC., a Florida Corporation, Appellee.
    Case No. 2D18-2560
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Robert Lewis, pro se.
    No appearance for Appellee.
   PER CURIAM.

This appeal is dismissed as from a nonfinal, nonappealable order. See Fla. R. App. P. 9.130(a)(5) ("Orders entered on an authorized and timely motion for relief from judgment are reviewable by the method prescribed by this rule. Motions for rehearing directed to these orders will not toll the time for filing a notice of appeal." (emphasis added) ).

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


author: Per Curiam.

text:
    Eric A. WELCH, Appellant/Cross-Appellee, v. Mark S. INCH, Secretary of Florida Department of Corrections, et al., Appellee/Cross-Appellant.
    No. 1D17-1507
    District Court of Appeal of Florida, First District.
    February 15, 2019
    Eric A. Welch, pro se, Appellant/Cross-Appellee.
    Ashley B. Moody, Attorney General, and Anthony Dean Johnson, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant.
   Per Curiam.

After Eric Welch appealed the portion of the circuit court's order dismissing his action, the Florida Department of Corrections filed a cross-appeal of the portion of the order denying its motion seeking a determination that Welch was a "vexatious litigant" pursuant to section 68.093, Florida Statutes, and seeking to sanction him accordingly. Upon this court's dismissal of Welch's appeal, the Department's cross-appeal remained pending. At issue is the Department's motion to declare Welch a "vexatious litigant."

In the pertinent part of the motion in question, the Department and other defendants requested that the circuit court "declare Mr. Welch a vexatious litigant under section 68.093 and order Welch to show cause why he should not be sanctioned with limitations on his ability to file pro se matters." Welch then filed his notice of dismissal pursuant to rule 1.420(a)(1), Florida Rules of Civil Procedure. The Department filed its objection to the voluntary dismissal, asserting that it was a tactic to avoid the sanctions sought by the Department in its motion. A few days after filing its objection, the Department obtained a hearing date from the circuit court and prepared and distributed a notice of hearing on its pending motion.

Prior to the scheduled hearing, the circuit court entered the order on appeal. The court acknowledged Welch's voluntary dismissal, formally dismissed the case, and summarily denied the Department and other defendants' motion for various relief, including their request for a determination that Welch was a vexatious litigant under section 68.093. On appeal, the Department challenges the circuit court's summary denial of its motion, asserting that the court's entry of the order without conducting the scheduled hearing violated section 68.093(3). The Department raises no other basis for reversal other than the failure to hold a hearing.

Undoubtedly Welch is vexatious in the colloquial sense. But the circuit court's summary denial of the Department's motion did not violate the clear language of section 68.093(3), which is the only section that speaks to a "hearing" in such matters. Subsection (3) provides that a defendant, the Department in this case, "may move the court ... for an order requiring the plaintiff to furnish security." § 68.093(3)(a), Fla. Stat. Upon the filing of a "motion for an order to post security," the action is stayed until the court rules on the motion. § 68.093(3)(d), Fla. Stat. Section 68.093(3)(b) describes "the hearing upon any defendant's motion for an order to post security," requiring the court to consider "any evidence" relevant to the motion at such hearing.

The Department's motion did not seek an order requiring Welch to furnish or post security - defined in the statute as "an undertaking by a vexatious litigant to ensure payment to a defendant in an amount reasonably sufficient to cover the defendant's anticipated, reasonable expenses of litigation, including attorney's fees and taxable costs." § 68.093(2)(c), Fla. Stat. Rather, the Department requested that the court deem Welch a "vexatious litigant" under the statute and, based on this designation, order him to show cause why he should not be sanctioned with limitations on his ability to file additional pro se actions. In effect, the Department sought relief under subsection (4) of the statute, which does not speak to the need for a hearing; in other words, the trial court was entitled to adjudicate the Department's motion without a hearing under that subsection.

The court's summary denial of this request without a hearing did not violate any provision of section 68.093 based on what the Department requested. Since the Department did not move for Welch to post security-the only potential sanction under section 68.093(3) for which a hearing may be deemed necessary-the circuit court did not err by denying the Department's motion without holding a hearing.

The Department sought, pursuant to section 68.093(4) to prohibit Welch from filing any new action. On appeal, however, it has not challenged the merits of the denial of its motion under section 68.093(4) -it has only contested the lack of a hearing.

Because the circuit court was not required to hold a hearing, it did not act improperly. Because the Department does not challenge the merits of the trial court's order, only the lack of a hearing, we are constrained to affirm.

AFFIRMED .

Roberts, Makar, and Bilbrey, JJ., concur.

      The motion sought other relief to sanction Welch as well, but the Department does not challenge the denial of these requests.

      Rule 1.420(a) allows a plaintiff to dismiss his or her action prior to trial without further order of the court. However, the pending motion for affirmative relief filed by the Department and other defendants was in the nature of a counterclaim, and could thus remain pending for independent adjudication by the circuit court upon the defendant's objection to dismissal. See Fla. R. Civ. P. 1.420(a)(2).


text:
    Warren R. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2688
    District Court of Appeal of Florida, First District.
    February 18, 2019
    Warren R. Johnson, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Warren R. Johnson was convicted in 2005 of second-degree murder and possession of a firearm by a convicted felon. He was sentenced to fifty years' imprisonment with a twenty-five-year mandatory minimum. Since his convictions and sentences became final, Johnson has filed seven postconviction motions. All seven have been denied by the postconviction court.

Here, Johnson appeals the trial court's order summarily denying his eighth motion for postconviction relief. Johnson alleged that his trial counsel was ineffective for failing to object to multiple problems with the jury instructions, for failing to object to improper comments by the prosecutor, and for failing to convey a plea offer. The trial court properly denied Johnson's eighth postconviction motion as untimely and successive. See Fla. R. Crim. P. 3.850(b), (h)(2). We, therefore, affirm the trial court's order, and, by separate order, direct Johnson to show cause why he should not be barred from future pro se filings in this Court.

AFFIRMED.

Rowe, Bilbrey, and Kelsey, JJ., concur.


text:
    Wilbert MOORE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4764
    District Court of Appeal of Florida, First District.
    February 18, 2019
    Wilbert Moore, Jr., pro se, Appellant.
    Ashley B. Moody, Attorney General; Trisha Meggs Pate, Assistant Attorney General; and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges the trial court's summary denial of his 3.850 motion. We agree with Appellant that the court failed to attach portions of the record that conclusively establish that Appellant is not entitled to relief. We reverse the trial court's order and remand for the court to hold an evidentiary hearing on Appellant's ineffective assistance claim, or to attach portions of the record (not merely the State's response to the motion) that conclusively refute Appellant's claims. Morrison v. State , 860 So.2d 458, 460 (Fla. 1st DCA 2003) ; see Skellie v. State , 849 So.2d 1220, 1221 (Fla. 5th DCA 2003).

Ray, Kelsey, and Jay, JJ., concur.


text:
    Russell MALONEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4523
    District Court of Appeal of Florida, First District.
    February 20, 2019
    Russell Maloney, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED as untimely. See Fla. R. App. P. 9.100(c)(1).

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


text:
    Michael Jerome HOOD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3450
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 19, 2019
    Michael Jerome Hood, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Tobler v. State , 239 So.3d 796 (Fla. 5th DCA 2018).

COHEN, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Donmonique H. COCKRUM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4665
    District Court of Appeal of Florida, First District.
    February 21, 2019
    Donmonique H. Cockrum, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Makar, Winokur, and M.K. Thomas, JJ., concur.


text:
    Anthony William RITZ, Jr., Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D18-4856
    District Court of Appeal of Florida, First District.
    February 20, 2019
    Anthony William Ritz, Jr., pro se, Appellant.
    Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.110(b) (notice of appeal must be filed within 30 days of rendition of order to be appealed); Palm v. State , 982 So.2d 1226 (Fla. 1st DCA 2008) ("Because the notice of appeal was filed more than 30 days after rendition of the order and the untimely motion for rehearing did not delay rendition, this Court is without appellate jurisdiction.").

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


text:
    Geneva Marie KELLUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4970
    District Court of Appeal of Florida, First District.
    February 20, 2019
    Geneva Marie Kellum, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED. See Fla. R. App. P. 9.110(b) (providing that a notice of appeal must be filed within 30 days of rendition of order to be appealed).

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


text:
    Devin Lee BASS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s)
    CASE NO.: 1D14-2449
    District Court of Appeal of Florida, First District.
    February 22, 2019
    ORDER ON MOTIONS FOR REHEARING AND REHEARING EN BANC
    BY ORDER OF THE COURT:
   Neither the motion for rehearing nor Judge Makar's latest dissent on the merits identifies points of law or fact that the court has overlooked or misapprehended. Therefore, the January 7, 2019 motions for rehearing and rehearing en banc are denied.

Ray and Winsor, JJ., concur.

Makar, J., dissenting from denial of rehearing and rehearing en banc.

Confusion and conflict. That's what now exists in this district because the panel's decision parts ways with precedent, including M.M. v. State , 51 So.3d 614 (Fla. 1st DCA 2011), as Bass's motions for rehearing and rehearing en banc persuasively demonstrate. The panel majority holds that a person's failure to give a correct name to a law enforcement officer constitutes the crime of obstruction under section 843.02, Florida Statutes, whether the person was lawfully detained or not. According to the majority, Bass could have been a suspect in lawful custody, a potential witness, or a mere passerby or onlooker at the time of his fib. Doesn't matter: he gave an incorrect name (which, by the way, didn't fool the officer or hinder his investigation) and thereby committed the crime of obstruction. But wait. M.M. says that under section 843.02, "failing to give one's correct identity is not a crime unless the person is legally detained ." 51 So.3d at 616 (emphasis added). Bass, too, failed to give a correct identity , but the majority says it is a crime because "it does not matter" whether he was legally detained or not. It's a head scratcher how this case and M.M. can cohabitate in the same district. This case also butts heads with our sibling courts. Direct and irreconcilable conflict now exists with districts that have held no criminal liability attaches for giving a false name (or failing to give a correct identity) unless done while lawfully detained; even the State sides with Bass on this point, saying it "agrees that the Second District Court of Appeal's holding in Sauz v. State , 27 So.3d 226 (Fla. 2d DCA 2010) [,] that legal detention is required" in this case. That's been the standard statewide, one from which the panel decision departs. Because of the express and direct conflict that now exists, our supreme court ought to clear up this newly-created muddle.

I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.


text:
    Stanley WYKRETOWICZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-316
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 22, 2019
    Aaron David Delgado, of Delgado & Romanik, PLLC, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

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

LAMBERT, J., concurring specially with opinion.

LAMBERT, J., concurring specially with opinion.

Stanley Wykretowicz was convicted after trial of culpable negligence, a lesser-included offense of the charged crime of neglect of a child causing great bodily harm. Because Wykretowicz has not shown reversible error here, I agree with the affirmance of his conviction.

I briefly write to address the sentence imposed. The trial court withheld an adjudication of guilt and sentenced Wykretowicz to serve sixty days in the county jail with sixty days of jail credit. This was improper. See State v. Scarantino , 543 So.2d 399, 399 (Fla. 4th DCA 1989) ("Under Florida Rule of Criminal Procedure 3.670 and Thomas v. State , 356 So.2d 846 (Fla. 4th DCA 1978), adjudication cannot be withheld if a jail term is imposed."). Based upon the trial court's intent to withhold an adjudication of guilt here, it should have placed Wykretowicz on probation, withheld the adjudication of guilt, and imposed the sixty days of incarceration as a special condition of the probation. See Tucker v. State , 78 So.3d 36, 37 n.3 (Fla. 3d DCA 2012) (citing State v. Green , 581 So.2d 1008, 1009 (Fla. 4th DCA 1991) ). However, because the State has not challenged the sentence in this direct appeal, this issue has not been preserved for our present review.


author: COHEN, J.

text:
    Chris Jamal WALLACE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4069
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    Gary J. Schwartz, Orlando, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Chris Jamal Wallace appeals the order denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief following an evidentiary hearing. Wallace raises two issues on appeal: the trial court's determination that his motion was untimely and the alternative finding that he established neither deficient performance nor prejudice necessary to prevail on his claim of ineffective assistance of counsel. We affirm.

In 2006, Wallace, a Nigerian national, pled guilty to actual or constructive possession of more than twenty grams of cannabis, a third-degree felony, and use or possession of drug paraphernalia, a first-degree misdemeanor. The plea form Wallace signed provided, "I understand that if I am not a citizen of the United States, I may be deported." The trial court withheld adjudication on the cannabis charge, adjudicated Wallace guilty on the paraphernalia charge, and imposed a one-day sentence with credit for time served. Wallace's judgment and sentence became final in January 2007.

In September 2016, the federal government rejected Wallace's green card application and initiated removal proceedings because of his 2006 plea. Wallace moved for postconviction relief in January 2017, alleging that he received misadvice from his court-appointed counsel regarding the immigration consequences of his plea. He argued that his motion was timely because he filed it within two years of the initiation of removal proceedings. The State disagreed, contending that Wallace was required to file his motion within two years of his judgment becoming final. The postconviction court ordered an evidentiary hearing.

At the hearing, Wallace testified that in 2006, he informed his counsel about his immigration status, and his counsel assured him that a withholding of adjudication would not affect his status. Wallace stated that he would not have entered a plea if he knew that it could affect his status and that he would have gone to trial instead. He also testified that he entered the plea to be able to take care of his child. Wallace represented that the first time he became aware of the negative consequence of his plea was in 2016 when the federal government began removal proceedings. Wallace's former counsel, who had twenty-five years of experience, testified that while he had no independent recollection of Wallace or his case, he would not have told a client that a plea and withholding of adjudication would have no immigration consequences.

The postconviction court denied Wallace's motion, finding that it was untimely pursuant to Gomez v. State, 126 So.3d 444 (Fla. 4th DCA 2013) (holding that postconviction claim based upon attorney's misadvice of deportation consequences must be brought within two years of conviction becoming final), and that Wallace failed to establish either ineffective assistance or prejudice based on trial counsel's credible testimony and Wallace's testimony that he entered the plea to take care of his child. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We agree.

The postconviction court did not err in finding that Wallace's motion was untimely. Rule 3.850 provides that a defendant must file a motion for postconviction relief within two years of the judgment and sentence becoming final. Fla. R. Crim. P. 3.850(b). Wallace contends that his motion was timely pursuant to State v. Johnson, 615 So.2d 179 (Fla. 3d DCA 1993), and Rodriguez v. State, 824 So.2d 328 (Fla. 3d DCA 2002), in which the Third District found that postconviction claims based on trial counsels' misadvice were timely even though defendants brought the claims more than two years after their judgments became final.

However, the Third District decided Johnson and Rodriguez prior to State v. Green, 944 So.2d 208 (Fla. 2006). In Green, the Florida Supreme Court receded from its earlier opinion in Peart v. State, 756 So.2d 42 (Fla. 2000), where it held that defendants had two years, beginning from when they had or should have had knowledge of the threat of deportation, to bring claims that the trial court failed to inform them of possible deportation after entering a guilty plea. 944 So.2d at 212-13. In doing so, the supreme court addressed the problems created in the application of Peart, which included significantly delayed claims, unavailability of evidence, and faded memories. Id. at 215-16. Thus, in holding that a defendant must bring a postconviction claim of failure to advise of immigration consequences within two years of the judgment becoming final, the court reasoned:

[I]t is the fact that the plea subjects the defendant to deportation, rather than a specific threat of deportation, that establishes prejudice .... Whether the plea subjects the defendant to deportation is an existent fact on the date of the plea which is either known or ascertainable by the defendant.

Id. at 218.

Here, it is undisputed that Wallace filed his motion for postconviction relief well beyond the two-year limitation of Rule 3.850(b). Under Green, Wallace needed to allege and prove that he could not have ascertained the immigration consequences of his plea during the two-year period after his judgment became final with the exercise of due diligence. See id. ("It will not be enough to allege that the defendant learned of the possibility of deportation only upon the commencement of deportation proceedings after the two-year limitations period has expired. The requirement of due diligence compels the defendant to allege and prove that affirmative steps were taken in an attempt to discover the effect of the plea on his or her residency status."). Contrary to Wallace's assertion, the requirements of Green apply to both claims regarding trial counsels' misadvice and trial courts' failure to properly advise defendants of the potential immigration consequences of entering a plea. See Bee v. State, 132 So.3d 857, 858 (Fla. 4th DCA 2013) ("The two-year time limit for filing a postconviction motion [based on the alleged misadvice from counsel regarding the immigration consequences of a plea] runs from the date the conviction and sentence become final, not from when a defendant discovers misadvice.").

As to the merits of Wallace's claim, we find that competent, substantial evidence supports the court's findings that Wallace did not establish ineffective assistance of counsel. See Blanco v. State, 702 So.2d 1250, 1252 (Fla. 1997) ; Keith v. State, 46 So.3d 85, 86 (Fla. 5th DCA 2010).

AFFIRMED.

BERGER and EDWARDS, JJ., concur.

      Sections 893.13(6)(a) and 893.147(1), Florida Statutes (2006), respectively.

      The effectiveness of this language is not raised as an issue in this case. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ; Hernandez v. State, 124 So.3d 757, 759 (Fla. 2012).

      The Honorable Frank N. Kaney originally presided over Wallace's judgment and sentence, while the Honorable Keith A. Carsten presided over Wallace's postconviction proceedings.


author: EDWARDS, J.

text:
    Stephen DUXBURY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3917
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

Stephen Michael Duxbury appeals the judgment entered following a jury trial in which he was found guilty as charged of first-degree murder, attempted sexual battery with physical force, and burglary of an occupied dwelling with assault or battery. Duxbury was sentenced to life in prison without the possibility of parole for the murder and attempted sexual battery, together with another fifteen-year prison term for the burglary. The victim was a young woman who lived in the multi-story condominium building, Uptown Place, where Duxbury was a security guard. Duxbury claims that the trial court erred in denying his motion to suppress his post-Miranda statements and in denying his motion for judgment of acquittal on the attempted sexual battery with physical force. After careful review and consideration, we deny Duxbury's claims and affirm the judgment and sentence.

According to the evidence introduced at trial, at 1:45 a.m. on October 17, 2015, the victim was making an effort to return to her condo after an evening socializing and drinking with friends in downtown Orlando. Witnesses-strangers and friends alike-described her as being extremely intoxicated. She shared an Uber ride with two other young women ("Good Samaritans") to Uptown Place. Those Good Samaritans were concerned about her well-being because she was so intoxicated. They waited as the victim tried to use the keypad to enter Uptown Place; however, because she did not have her key fob, key, identification, or iPhone, she was unsuccessful. Before long, Duxbury, who was on duty at Uptown Place and dressed in a security guard uniform, approached the three women. After they explained the victim's predicament, Duxbury advised that he could not let anyone into the building without identification or proof that they were a resident, nor could he allow her to sleep on a couch in the building's lobby. As they continued to talk, a young male resident of the building opened the outside door and allowed the victim in.

Instead of challenging the victim's entry into the building, Duxbury continued talking with the Good Samaritans, who expressed their concern to Duxbury as to how the victim would get into her unit without a key. The Good Samaritans eventually left and went across the street to their own building. In his statements to the police, Duxbury said that he then went looking for the victim. The jury saw video taken by surveillance cameras at Uptown Place that showed the victim wandering around the inside of the building, going from one floor to another, as she tried to find her own apartment. The video showed Duxbury following the victim on various floors and in various locations within Uptown Place for thirty to forty minutes. One eyewitness testified that Duxbury was trailing a short distance behind the intoxicated victim, rather than actually walking with her.

Duxbury later told police that the victim, at some point, had tried to enter her apartment by using a digital lock on her door, but she was not able to recall the code. Duxbury advised police that she told him that her key fob was in her car, so Duxbury started to go with her to the building's garage. However, Duxbury related that the victim suddenly said she recalled the code and headed back towards her apartment; Duxbury said he left her alone at that point. When he passed by her door later, she was nowhere to be seen.

The victim's friends became concerned when they were unable to contact her that afternoon and evening. They called the police, who eventually agreed to do a well-being check and met them outside Uptown Place. Although off duty, Duxbury approached the police and the victim's friends. Duxbury said he knew who they were concerned about before anybody told Duxbury whether the person of concern was a man or woman or her name. Police gained access to her apartment and they alone entered. Initially, they saw no sign of a struggle or any obvious criminal activity. Before long, they discovered the victim, dead, in her bed, wrapped in a comforter. The victim smelled of bleach and there were signs of bleaching around her, consistent with somebody attempting to clean her body to remove physical evidence.

The victim's shirt and bra had been ripped open in front. Her pants and underwear had been forcefully removed, leaving abrasions; those items of clothing were never recovered. The medical examiner found evidence of blunt trauma to the victim's head, contusions on her upper body as though she had been repeatedly punched, defensive wounds on her arms, and other contusions and abrasions consistent with somebody forcefully restraining her. There was no direct evidence of consensual or forced intercourse, but the medical examiner discovered abrasions that were consistent with somebody attempting to have sex with the victim. The medical examiner testified that the cause of death was asphyxiation due to manual strangulation, and the death was ruled a homicide.

Duxbury completed his usual security guard daily report in which he mentioned his encounter with the victim, but did not mention the length of time that he followed her around nor report that he had removed bags of trash from the inside hallway. After being advised of his Miranda rights, Duxbury gave several statements to police in which he steadfastly maintained that he had never, ever been in the victim's apartment. However, investigators found a print from his right thumb in her bathroom and a print from his left thumb on the nightstand in her bedroom. Furthermore, his DNA was found on the victim's breasts. There were shoeprints in the apartment, including several that generally matched a pair of shoes recovered from Duxbury's home. A police technician searched Duxbury's smartphone and determined that somebody had done an internet search using that phone, trying to learn how to override a Kwikset digital lock-the type of lock on the victim's door. That internet search was performed around five o'clock that morning, which coincided with a ninety-minute time period during which Duxbury is not seen on any video nor his location revealed by any other security-related patrol data.

MOTION TO SUPPRESS STATEMENTS TO POLICE

Duxbury gave a recorded statement to police shortly after the victim's body was discovered. He participated in a second interview that included a polygraph examination. Prior to trial he moved to suppress those statements, claiming that although he was given Miranda warnings and had signed a waiver of those rights, his statements were not voluntarily provided. In his motion to suppress, Duxbury relied upon Garrity v. New Jersey , 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).

Garrity involved statements obtained from police officers who had been explicitly warned that they would be fired if they did not cooperate with a police investigation implicating them. A New Jersey statute in place called for loss of tenure, forfeiture of employment, and loss of pension rights if one who was subject to that statute refused to testify by invoking the right against self-incrimination in a criminal proceeding. Garrity , 385 U.S. at 494 n.1, 87 S.Ct. 616. The Supreme Court reasoned that "[w]here the choice is 'between the rock and the whirlpool,' duress is inherent in deciding to 'waive' " one's constitutional rights or to lose one's job. Id. at 498, 87 S.Ct. 616. Garrity held that the Fourteenth Amendment prohibits the use of statements obtained under such coercion, namely the threat of loss of employment, even if the defendant fails to claim or waives the privilege against self-incrimination. Id.

Here, a pretrial hearing was conducted during which Duxbury argued that he had a subjective fear that he would be fired from his security guard job if he did not cooperate with the police. Duxbury admitted that neither his supervisor nor the police explicitly or implicitly told him or suggested that he would be fired from his job unless he cooperated with and gave recorded statements to the police. Given the lack of any actual threats that he would be terminated, Duxbury relied upon section 493.6118(1)(o ), Florida Statutes (2015), as providing a legal obligation to cooperate with police, arguing that it created a de jure threat that he would be fired if he refused to speak with the authorities.

The trial court issued a detailed order denying Duxbury's motion to suppress, noting that he had conceded that no actual or implied threat of job loss was made and that the statutory provision was limited in scope and did not require cooperation with police in a criminal investigation. Duxbury renewed his motion to suppress during trial, and it was once again denied.

We agree with the trial court that section 493.6118(1)(o ) only requires security guards to cooperate with investigations conducted by the Department of Agriculture and Consumer Services, which is the licensing and disciplinary body overseeing security guards. That statute does not coerce a security guard to provide statements to police under threat of losing his job. Given the absence of any evidence of explicit, implicit or de jure threats that Duxbury would lose his job if he did not provide recorded statements to police, we agree with the trial court that Garrity is inapplicable and find that the trial court did not err in denying the motion to suppress. No other basis for excluding Duxbury's statements to police has been argued; thus, they were properly admitted into evidence for the jury's consideration.

MOTION FOR JOA AS TO ATTEMPTED SEXUAL BATTERY

Duxbury argues that the trial court erred in denying his motion for judgment of acquittal regarding the crime of attempted sexual battery with force. "In moving for a judgment of acquittal, a defendant 'admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.' " Chamberlain v. State , 881 So.2d 1087, 1104 (Fla. 2004) (quoting Darling v. State , 808 So.2d 145, 155 (Fla. 2002) ). "[C]ourts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law." Davis v. State , 207 So.3d 177, 195 (Fla. 2016) (quoting Reynolds v. State , 934 So.2d 1128, 1145 (Fla. 2006) ).

Duxbury claims that there was only circumstantial evidence that an attempted sexual battery occurred, requiring the State to either rebut or introduce competent, substantial evidence that is inconsistent with Duxbury's reasonable hypotheses of innocence. Duxbury's primary hypothesis was that there was no sexual battery. Although there was no evidence of actual intercourse, the crime charged was attempted sexual battery. As discussed above, the victim had numerous abrasions on her body consistent with an attempted sexual battery, and Duxbury's DNA was found on her breasts. This was circumstantial evidence inconsistent with Duxbury's hypothesis of innocence, and it was sufficient evidence to allow the jury to decide the issue of guilt. See Johnson v. State , 238 So.3d 726, 742 (Fla. 2018) ("It is 'the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.' " (quoting State v. Law , 559 So.2d 187, 189 (Fla. 1989) ) ).

Duxbury's alternative hypothesis of innocence was that perhaps the victim had invited him into her apartment where they had consensual sex. That hypothesis contradicts Duxbury's argument that there was no evidence the victim had engaged in consensual or forced sex. Additionally, that hypothesis of innocence was contradicted by Duxbury's own statements to police that the victim did not invite him into her apartment that early morning, and that he had never been in her apartment. Finally, evidence suggested that the victim was too intoxicated, with a .239 grams/deciliter blood alcohol level, to have had the capacity to consent to sex that night, which further conflicts with Duxbury's hypothesis of innocence, as does the evidence of the violence inflicted upon her.

We find that the motion for judgment of acquittal was properly denied, as there was competent, substantial evidence to support a jury's verdict that a sexual battery with physical force had been attempted and that Duxbury was the perpetrator of that crime. "The [defendant's] conviction is supported by sufficient evidence where a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt after viewing the evidence in the light most favorable to the State." Knight v. State , 186 So.3d 1005, 1010-12 (Fla. 2016).

For the reasons set forth above, we affirm.

AFFIRMED.

ORFINGER and GROSSHANS, JJ., concur.

      Security video depicted Duxbury carrying several bags of trash from the building into the parking garage on the floor where his car was parked and where a dumpster was located. It was very unusual for security guards to remove trash from the building, and the length of time that elapsed after Duxbury entered the garage led the State to suggest that Duxbury may have put those bags in his car rather than throwing them away.

      According to the State's expert, the DNA obtained from the scene matched fourteen of fifteen marker locations on Duxbury's DNA sample, giving the statistical probability of seven hundred billion to one that it was Duxbury's DNA.

      The shoes in question recovered from Duxbury's home were a popular brand and a common size with nothing more to match the shoe prints to those particular shoes.

      Chapter 493 applies to the Department of Agriculture and Consumer Services' regulation of private investigators, private security guards, and repossession agents. Section 493.6118(1)(o ) states that grounds for disciplinary proceedings include: "Failure or refusal to cooperate with or refusal of access to an authorized representative of the department engaged in an official investigation pursuant to this chapter." See § 493.6101(1) (defining "Department" as "the Department of Agriculture and Consumer Services").

      In a case relied upon by Duxbury, but which supports the trial court's ruling, Minnesota v. Murphy , 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), the Supreme Court found that a probationer was not deterred from claiming self-incrimination by any reasonably believed threat of revocation of probation if he refused to confess to his probation officer. Id. at 432-40, 104 S.Ct. 1136. In the absence of such a threat, he was not coerced into waiving his constitutional rights. Id.

      Duxbury did not testify at trial. There was certainly no evidence to support this hypothesis of innocence.

      See Troy v. State , 948 So.2d 635, 647 (Fla. 2006) (holding that evidence "victim was found completely nude, with her underwear and torn bra next to her body," coupled with the "great deal of violence inflicted upon the victim," was sufficient evidence for the trial court to have submitted the charge of attempted sexual battery to the jury).


text:
    Henry Enrique COLLAZO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1799
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    James S. Purdy, Public Defender, and George D. E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant's conviction, but remand to the circuit court to correct a scrivener's error in the judgment and sentence, which should reflect that Appellant's conviction for count two was vacated at sentencing.

AFFIRMED.

ORFINGER, LAMBERT, and GROSSHANS, JJ., concur.


author: WALLIS, J.

text:
    J.W., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-806
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   WALLIS, J.

Appellant appeals the trial court's entry of judgments and sentences in Brevard County Circuit Court case numbers 05-2016-CJ-001268-A, 05-2016-CJ-002292-A, 05-2016-CJ-002328-A, 05-2016-CJ-002367-A, 05-2017-CJ-000634-A, 05-2017-CJ-000635-A, and 05-2018-CJ-000700-A. We find that the trial court failed to include written findings supporting its placement of Appellant in case numbers 05-2018-CJ-000700-A, 05-2017-CJ-000634-A, and 05-2017-CJ-000635-A. We remand for the trial court to include these written findings pursuant to R.S. v. State, 204 So.3d 990 (Fla. 1st DCA 2016). We affirm the judgments and sentences in case numbers 05-2016-CJ-001268-A, 05-2016-CJ-002292-A, 05-2016-CJ-002328-A, and 05-2016-CJ-002367-A without further discussion.

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

ORFINGER and GROSSHANS, JJ., concur.


text:
    Cay Adam RIVERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2814
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    Cay Adam Rivera, Raiford, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   WALLIS, J.

Appellant appeals the trial court's summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Although Appellant's initial motion raised seven claims of ineffective assistance of counsel, Appellant is only appealing the trial court's summary denial of claims (1), (5), and (6). We affirm the trial court's denial of claim (1) without further discussion.

The facts relevant to the remaining issues on this appeal concern Appellant's ability to access a safe containing illegal contraband that was the subject of the charges brought to trial. The evidence established that the safe was accessible via a key and a keypad. Appellant was found in possession of a key to the safe. The State provided testimony that the safe's keypad was not functioning properly at the time of the offense.

In claim (5), Appellant alleges that his trial counsel was ineffective because he did not hire a safe expert to provide testimony that the keypad was functioning properly thereby allowing others to access the safe. In claim (6), Appellant argues trial counsel was ineffective for failing to hire a private investigator to show that he did not reside in the residence and that other people had access to the safe. The trial court summarily denied both claims, finding that trial counsel's decisions were based on trial strategy.

Although the trial court cites trial strategy as justifying the summary denial, it is impossible to determine from the record and without an evidentiary hearing whether trial counsel's decisions were reasonable trial strategy. Moreover, the records do not conclusively refute Appellant's claims. Therefore, it was error for the trial court to summarily deny claims (5) and (6). See Reynolds v. State, 227 So.3d 220, 221 (Fla. 5th DCA 2017) ("Generally, a trial court may not summarily deny a rule 3.850 motion on the ground that trial counsel made a reasonable tactical decision, unless 'it is so obvious from the face of the record that trial counsel's strategy not to present a voluntary intoxication defense is very clearly a tactical decision well within the discretion of counsel.' " (quoting Hannon v. State, 941 So.2d 1109, 1138 (Fla. 2006) ) ).

We, therefore, reverse and remand the summary denial of claims (5) and (6) for the trial court to either attach records conclusively refuting these claims, or to hold an evidentiary hearing. See Hannon, 941 So.2d at 1138 ; Reynolds, 227 So.3d at 221.

AFFIRMED IN PART; REVERSED IN PART; REMANDED with Instructions. ORFINGER and HARRIS, JJ., concur.


text:
    Giovanni VELEZ, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-0927
    District Court of Appeal of Florida, First District.
    February 25, 2019
    Giovanni Velez, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Osterhaus, and Jay, JJ., concur.


text:
    Michael GLIDDEN, Petitioner, v. Mark S. INCH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D18-0538
    District Court of Appeal of Florida, First District.
    February 25, 2019
    Michael Glidden, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Osterhaus, and Jay, JJ., concur.


text:
    James BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0125
    District Court of Appeal of Florida, First District.
    February 25, 2019
    James Brown, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Willie JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1697
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 26, 2019
    Willie Jones, Milton, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Baker v. State, 878 So.2d 1236, 1245-46 (Fla. 2004).

ORFINGER, WALLIS and SASSO, JJ., concur.


text:
    Nail A. HARRY, Petitioner, v. Mark S. INCH, Secretary, Department of Corrections, Respondent.
    No. 1D18-3976
    District Court of Appeal of Florida, First District.
    February 25, 2019
    Nail A. Harry, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

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


text:
    Pamela COLBERT, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D18-2288
    District Court of Appeal of Florida, First District.
    February 25, 2019
    Pamela Colbert, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee; Rana Wallace, General Counsel; Mark Hiers and Thomas A. Klein, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Osterhaus, and Jay, JJ., concur.


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

text:
    STATE of Florida, Appellant, v. Darel W. DOUGHERTY, Appellee.
    No. 1D18-1235
    District Court of Appeal of Florida, First District.
    February 28, 2019
    Ashley B. Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant.
    Joseph C. Bodiford and Gannon M. Coens of Bodiford Law, P.A., Tallahassee, for Appellee.
   Per Curiam.

The State appeals the imposition of a downward departure sentence after Appellee was convicted of 137 counts naming the following offenses: aggravated white-collar crime; grand theft (over $ 100,000); organized scheme to defraud; criminal use of personal identification information ($ 50,000 or more); criminal use of personal identification information; and 132 counts of uttering a forged instrument. Because the trial court did not provide any valid legal reason for departure that was supported by competent, substantial record evidence, we reverse and remand for resentencing. See State v. Adkison , 56 So.3d 880 (Fla. 1st DCA 2011) ; Demoss v. State , 843 So.2d 309, 311 (Fla. 1st DCA 2003) (citing Banks v. State , 732 So.2d 1065, 1067 (Fla. 1999) ).

REVERSED and REMANDED for further proceedings.

B.L. Thomas, C.J., and Jay, J., concur; Bilbrey, J., concurs with opinion.

Bilbrey, J., concurring.

I fully concur in the majority's holding that the downward departure sentence was not supported by competent, substantial evidence and must therefore be reversed and remanded for resentencing. I write separately to note that, so long as supported by the Criminal Punishment Code, nothing "precludes the imposition of a downward departure sentence on resentencing following remand." Jackson v. State , 64 So.3d 90, 93 (Fla. 2011). To the extent that our previous cases hold otherwise, they have been overruled by Jackson .


author: Rowe, J.

text:
    Justin Lee LANIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4357
    District Court of Appeal of Florida, First District.
    February 28, 2019
    Andy Thomas, Public Defender, and Kevin Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

Justin Lanier appeals his judgment and sentence for child neglect of his infant daughter. We affirm all issues raised on appeal and write only to address Lanier's argument that the trial court erred by denying his motion for judgment of acquittal.

Facts

For three weeks before she was finally taken to the emergency room on November 16, 2016, five-month-old L.L. had been screaming what her own mother described as "bloody murder." At the hospital, L.L. was inconsolable and in severe pain. She had bruises all over her body: on her head, behind her ear, down her back, and on her buttocks. She was unable to hold her head up on her own. The only position in which the infant could find any comfort was lying on her stomach with her head turned to the side.

After a physical examination, doctors discovered L.L.'s skull was fractured in at least six places. On one side of the infant's head, a small piece of bone had broken off from the larger part of her skull. A nurse compared the x-ray of L.L.'s skull to a "broken egg." Blood and fluid filled the cavity between L.L.'s brain and her skull, causing her head to swell and appear visibly larger than normal. L.L. also had intraretinal hemorrhaging in her right eye.

Due to the severity of the infant's injuries, a Child Protective Investigator was called to the hospital. Upon entering the hospital room where L.L. was being treated, the investigator heard her making what he described as "the worst noise" he had ever heard. He testified that the sound was so distressing that he had to leave the room.

L.L.'s pediatrician suspected the infant had been physically abused. He reported that he had seen L.L. on October 24, twenty-three days before her admission to the emergency room. L.L.'s mother, April Zimmerman, had brought the infant into his office exhibiting symptoms of dehydration. The pediatrician and attending nurse attested that during that office visit, L.L. had no visible signs of injury, and no abnormal behavior was reported or observed.

When interviewed by the police, neither Lanier nor Zimmerman could explain L.L.'s injuries. Both parents reported that L.L. had fallen off their bed between two and half and three weeks before they brought her to the emergency room. Their estimated timeframe would have put L.L.'s alleged fall on or after October 26, two days after L.L.'s October 24 doctor's visit, and twenty-one days before she was admitted to the hospital on November 16.

Lanier was unemployed during the relevant time period and testified that he was responsible for taking care of L.L. while Zimmerman worked up to four overnight shifts per week. As the parent primarily responsible for L.L.'s care, Lanier bathed, fed, and changed L.L. But he testified that he never saw bruising on the infant's head, above her ear, down her back, or on her buttocks. At the same time, Lanier admitted that he noticed L.L. could not support her head and keep it upright, and he described his infant daughter's neck as feeling "loose."

Lanier also admitted that he never sought medical attention for L.L.'s injuries. He claimed that he was under the impression that Zimmerman had taken L.L. to the doctor to be evaluated on November 7. He asserted Zimmerman returned home and reported back that L.L. was fine. Zimmerman admitted that she had lied to Lanier about taking L.L. to a follow up visit to the doctor on November 7. But between November 7 and November 16, Lanier knew that L.L. received no medical care. During those nine days, on November 11, L.L.'s grandmother observed that the infant's condition was not improving and urged Lanier and Zimmerman to take their daughter to the doctor. But both parents ignored the grandmother's pleas, and L.L. received no medical attention.

The next time a doctor saw L.L. on November 16, she had six skull fractures, a swollen head, a limp neck, and a bleeding brain. Three surgeries were required to drain the fluid and relieve the pressure from L.L.'s brain. A ventricular peritoneal shunt was placed inside the infant's head to help her reabsorb her spinal fluid. The neurosurgeon who performed the surgeries testified that there was a mixture of old and new blood in L.L.'s brain, which indicated the infant had suffered at least two independent injuries separated in time. This testimony was consistent with other testimony that L.L.'s injuries could not have been inflicted from a single fall or a single blow to the head. The neurosurgeon opined that the presence of new blood indicated L.L. was injured as recently as "a few days" before her hospital admittance. The presence of old blood was consistent with a separate injury inflicted up to "a few weeks" before. The radiologist confirmed that based on the density of the blood reflected on the infant's CT scan, some of the blood in L.L.'s brain was more than seven days old. The fluid and swelling caused L.L.'s head to grow to a size well above the ninety-ninth percentile for her weight and age. The neurosurgeon testified that it would have taken at least a few weeks for the swelling to have reached the point that it did. The neurosurgeon opined that L.L. would have died without medical intervention.

Lanier and Zimmerman were charged with child neglect. At Lanier's trial, Lanier and Zimmerman maintained that L.L. fell off the bed. Zimmerman's testimony revealed that from the time the infant allegedly fell from the bed until approximately three weeks later, L.L. laid in bed "getting worse and worse." Zimmerman admitted that the infant would scream "bloody murder" whenever either parent tried to move her.

At the close of the State's evidence, Lanier moved for a judgment of acquittal. He argued there was insufficient evidence to prove that his failure to seek medical attention for L.L. amounted to culpable negligence. The court denied the motion. Lanier was found guilty of child neglect and sentenced to fifteen years' imprisonment.

Analysis

We review a trial court's ruling on a motion for judgment of acquittal de novo. Jones v. State , 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). Viewing the evidence and all reasonable inferences in the light most favorable to the State, we must determine whether competent, substantial evidence supports the verdict. Id.

Lanier was charged with child neglect in violation of section 827.03(2)(b), Florida Statutes (2016). "Neglect of a child" is defined as:

A caregiver's failure or omission to provide a child with the care, supervision, and services necessary to maintain the child's physical and mental health, including ... medical services that a prudent person would consider essential for the well-being of the child; ...
....
Except as otherwise provided in this section, neglect of a child may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.

§ 827.03(1)(e), Fla. Stat. (2016). Subsection (2)(b) provides that "[a] person who willfully or by culpable negligence neglects a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the second degree."

"[C]ulpable negligence [means] more than a failure to use ordinary care.... [I]t must be gross and flagrant [and] committed with an utter disregard for the safety of others." Burns v. State , 132 So.3d 1238, 1240 (Fla. 1st DCA 2014). It is "consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm." Kish v. State , 145 So.3d 225, 228 (Fla. 1st DCA 2014) (quoting Fla. Std. Jury Instr. (Crim.) 16.6). We have explained that in child neglect cases, a caregiver's "degree of care, neglect, indifference, or callous disregard is measured against societal norms and expectations under the circumstances." Ramos v. State , 89 So.3d 1119, 1120 (Fla. 1st DCA 2012). Therefore, the facts of each case are "critical" in determining whether the totality of circumstances supports a finding of culpable negligence. Kish , 145 So.3d at 228 (citing Ibeagwa v. State , 141 So.3d 246 (Fla. 1st DCA 2014) ).

Lanier argues that while he may have been negligent in failing to seek medical attention for L.L. sooner, the State failed to demonstrate that his inaction amounted to culpable negligence. He contends there was no evidence he knew or should have known that L.L.'s skull was fractured, and that it was reasonable for him to rely on Zimmerman's assertions that she had taken L.L. to the doctor's office on November 7 and that the doctor found that L.L. was fine. We disagree. Based on the facts and circumstances of this case, there was sufficient evidence to establish a jury question regarding whether Lanier was culpably negligent. See Ramos , 89 So.3d at 1121.

The length of time between L.L. sustaining multiple injuries and her receiving medical attention was anywhere between seven days and three weeks. L.L.'s symptoms of trauma, her persistent and worsening condition, and need for immediate medical attention would have been obvious to any reasonable person. See, e.g. , Moore v. State , 790 So.2d 489, 492 (Fla. 5th DCA 2001) (affirming conviction for child neglect where father allowed infant to fall and then failed for two days to seek medical advice despite infant's noticeable symptoms and abnormal behavior). Several witnesses, including Lanier, testified that for at least three weeks before the infant was admitted to the emergency room, L.L. cried inconsolably when picked up and could not hold her head up on her own. Lanier stated that L.L.'s neck felt "loose." The evidence showed that L.L.'s head was visibly swollen and that her body was covered in bruises. L.L. was a five-month-old infant-she was not walking or even crawling. The medical testimony established that a five-month-old could not injure herself to such an extent.

Lanier counters that there was no evidence that he knew or should have known that L.L. had skull fractures. But a finding of culpable negligence in a child neglect case does not require proof that the defendant knew the specific nature of the child's injuries. Rather, it requires a showing that the defendant either knew or should have known that the extent of the child's injuries was such that the failure to seek medical attention amounted to a willful failure to provide for the child's well-being. Compare Moore , 790 So.2d at 492 (finding sufficient evidence of culpable negligence where child suffered head injury in father's care and child's symptoms over the next few days were such that father should have known the injury required medical attention) with Poczatek v. State , 213 So.3d 1065 (Fla. 2d DCA 2017) (finding insufficient evidence of culpable negligence despite caretaker's forty-five minute delay in seeking medical attention for child where child's injuries were not immediately symptomatic).

Here, there was direct and circumstantial evidence that Lanier knew or should have known the extent of L.L.'s injuries. Both Lanier and Zimmerman testified that Lanier voiced concern about their infant daughter's condition and repeatedly asked Zimmerman if she had taken L.L. to the doctor. Even though Lanier was the parent primarily responsible for changing, feeding, and bathing the infant, he claimed he did not see any bruising on L.L.'s body. But the bruising covering infant's head, back, and buttocks was easily visible to the physicians in the emergency room and in the photographs from that day that were admitted into evidence and shown to the jury. Assuming Lanier did not notice the bruising, he admitted L.L.'s neck felt "loose" as far back as three weeks before she was finally taken to the emergency room. He knew for three weeks that L.L. could not hold her head up on her own, that she cried out in pain when she was picked up, and that the infant's condition was not improving. Still, he did nothing. Lanier's knowledge of the severity of L.L.'s injuries coupled with his failure to seek medical attention for the infant constituted sufficient evidence from which the jury could properly infer that his inaction was "knowing and intentional, or done with such wanton or careless indifference to [L.L.]'s well-being as to be practically intentional." Arnold v. State , 755 So.2d 796, 799 (Fla. 2d DCA 2000).

Finally, despite the direct and circumstantial evidence that Lanier knew L.L. was severely injured and required medical attention, he argues it was reasonable for him to rely on Zimmerman's assertions that she took L.L. to the doctor's office on November 7 and reported back that L.L. was fine. But even if Lanier had relied on Zimmerman's false report that she had taken L.L. to the doctor's office, he took no action during the next nine days to alleviate his daughter's suffering despite urging from L.L.'s grandmother to take the infant to the hospital. The medical testimony established that the mixture of blood in L.L.'s brain indicated that she had been injured within "a few days" of her hospital admittance. When asked specifically about the infant's condition between November 7 and November 16, Lanier testified that L.L. was still crying more than usual and still unable to support her own head. He admitted that L.L. appeared to be in pain. He admitted that he noticed something was wrong with her. And he admitted that he could have found a way to take the infant to the hospital if he so desired. But he made no such effort. This inaction in the face of L.L.'s obvious pain and suffering clearly demonstrated "an entire want of care raising the presumption of indifference to consequences" and was sufficient to support a finding that Lanier's failure to seek medical attention for his five-month-old daughter constituted culpable negligence. Ramos , 89 So.3d at 1121. The trial court's denial of the motion for judgment of acquittal is AFFIRMED.

Osterhaus and Kelsey, JJ., concur.

      Lanier was originally charged with aggravated child abuse and child neglect, but the State dropped the aggravated child abuse charge before trial.


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

text:
    OTIS ELEVATOR COMPANY, a Connecticut for Profit Corporation, Coastal Elevator Service Corp., a Florida for Profit Corporation, Louis Carl Devincentis, Individually and as an Employee of Otis Elevator Company, James Duda, Individually and as an Employee of Otis Elevator Company, Daniel Hunter, Individually and as an Employee of Otis Elevator Company, and Robert Mowrey, Individually and as an Employee of Otis Elevator Company, Petitioners, v. Catherine CRAIG-MYERS, Individually and as Personal Representative of the Estate of Robert Myers, Respondent.
    No. 1D18-2825
    District Court of Appeal of Florida, First District.
    February 28, 2019
    Kenneth B. Bell and Lauren V. Purdy of Gunster Yoakley & Stewart, P.A., Tallahassee, for Petitioners.
    Philip J. Padovano of Brannock & Humphries, Tallahassee, and Maegen Peek Luka of Brannock & Humphries, Tampa; Sidney L. Matthew of Sidney L. Matthew, P.A., Tallahassee, for Respondent.
   Per Curiam.

DENIED .

B.L. Thomas, C.J., and Roberts, J., concur; Osterhaus, J., concurs with opinion.

Osterhaus, J., concurring.

Petitioners mount a convincing argument that Respondent provided no evidence establishing a prima facie case for the application of the crime-fraud exception. They are correct that before a trial court reviews attorney-client communications in camera to determine whether the crime-fraud exception applies, it must first determine that the party invoking the exception has presented evidence establishing such a prima facie case. See First Union Nat'l Bank v. Turney , 824 So.2d 172, 183 (Fla. 1st DCA 2001), reh'g denied (Jan. 17, 2002); see also Butler, Pappas, Weihmuller, Katz, Craig, LLP v. Coral Reef of Key Biscayne Developers, Inc. , 873 So.2d 339, 342 (Fla. 3d DCA 2003) ; First Union Nat'l Bank of Fla. v. Whitener , 715 So.2d 979, 982 (Fla. 5th DCA 1998). Here, there was no evidence of an attorney's advice being sought to aid the client's crime or fraud. And so, in camera review of the privileged documents should not have been ordered. See Fla. Mining & Materials Corp. v. Cont'l Cas. Co. , 556 So.2d 518, 519 (Fla. 2d DCA 1990) (holding that a party "must allege and produce prima facie evidence that petitioners affirmatively sought the advice of counsel to procure a fraud" and declaring that a ruling that evidence of fraud itself suffices "would literally eliminate the attorney-client privilege in any suit where there was any allegation of fraud or misrepresentation").

In spite of this apparent error, however, certiorari relief is not available right now to fix it. Because the trial court has not ordered anything to be disclosed to Respondent, nor determined if Respondent or her counsel will ever see any of the privileged documents, certiorari relief is premature. See Poston v. Wiggins, 112 So.3d 783, 786 (Fla. 1st DCA 2013) (citing Cape Canaveral Hosp., Inc. v. Leal , 917 So.2d 336, 339-40 (Fla. 5th DCA 2005) (denying as premature a certiorari petition seeking review of an order requiring the submission of documents for an in camera inspection) ).


text:
    Glenn Scott RODRIGUEZ, Appellant, v. Nicole Stephannie Felicia RODRIGUEZ, Appellee.
    Case No. 5D17-2404 5D17-3474
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 1, 2019
    Nikie Popovich, of Popovich Law Firm, P.A., Orlando, for Appellant.
    Chad A. Barr and Heather M. Kolinsky, Law Office of Chad A. Barr, P.A., Altamonte Springs, for Appellee.
   PER CURIAM.

In these consolidated appeals, Appellant challenges the amended final judgment for dissolution of marriage and the post-final-judgment income withholding for child support and alimony order ("IWO"). Having carefully reviewed the record and the briefs filed, we affirm the amended final judgment without further discussion.

There are, however, two errors in the IWO that Appellee concedes should be corrected. First, Appellant was ordered in the amended final judgment to pay Appellee the sum of $ 4500 per month in durational alimony through July 1, 2032, but the IWO does not presently provide a date for Appellant's employer to discontinue its withholding and remittance of money from Appellant's pay check once Appellant's durational alimony obligation ends. Second, the IWO contains an incorrect date for when Appellant's child support payment is to be reduced once his obligation to pay support for the parties' eldest child ends. The parties acknowledge that the present date of May 31, 2020, in the IWO is incorrect and should be corrected to reflect the date of May 31, 2019.

Accordingly, we affirm the amended final judgment for dissolution of marriage in all respects but remand for the entry of a corrected IWO consistent with this opinion.

AFFIRMED; REMANDED with directions.

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


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Michael OLSON, as Personal Representative of the Estate of Floyd Olson, Appellee.
    No. 1D18-4938
    District Court of Appeal of Florida, First District.
    February 28, 2019
    David C. Reeves, Robert B. Parrish and Jeffrey A. Yarbrough of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville; Jason T. Burnette and Stephanie E. Parker of Jones Day, Atlanta, Georgia; Charles R.A. Morse of Jones Day, New York, NY, for Appellant.
    Gary Paige of Gordon & Doner, P.A., Davie; Celene H. Humphries, Maegen Peek Luka and Thomas J. Seider of Brannock & Humphries, Tampa; Charles Farah and Eddie Farah of Farah & Farah, Jacksonville; Randy Rosenblum of Dolan Dobrinsky & Rosenblum, LLP, Miami; Richard J. Lantinberg, Norwood S. Wilner and Jay Plotkin of The Wilner Firm, Jacksonville, for Appellee.
   Per Curiam.

Because the circuit court's September 28, 2018, "Order Denying Defendant's renewed Motion for a Directed Verdict or Alternatively for a New Trial," was final, the notice of appeal filed on November 28, 2018, was untimely. Accordingly, this is appeal is dismissed. Appellant may seek relief pursuant to Florida Rule of Civil Procedure 1.540.

Bilbrey, Winokur, and M.K. Thomas, JJ., concur.


author: ATKINSON, Judge.

text:
    FL-7, INC., Appellant, v. SWF PREMIUM REAL ESTATE LLC., d/b/a Engel & Volkers, a Florida Limited Liability Company, Appellee.
    Case No. 2D17-4321
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019
    Christyna M. Torrez of Coleman, Hazzard, Taylor, Claus, Doupé & Diaz, P.A., Naples, for Appellant.
    Brian O. Cross of Goede, Adamczyk, Deboest & Cross, PLLC, Naples, for Appellee.
   ATKINSON, Judge.

FL-7, Inc. (FL-7) appeals the final judgment awarding SWF Premium Real Estate, LLC., d/b/a Engel & Volkers (Engel & Volkers), the attorney's fees and costs that it incurred as a prevailing party after obtaining a final summary judgment. FL-7 successfully appealed that underlying judgment. See FL-7, Inc. v. SWF Premium Real Estate, LLC, 259 So.3d 285 (Fla. 2d DCA 2018). As such, because Engel & Volkers is no longer the prevailing party and no longer entitled to an award of fees and costs on that basis, we must reverse. See Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) ("Once a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney's fees. Consequently, an award of attorney's fees and costs predicated on a reversed or vacated final judgment also must be reversed.").

Reversed and remanded.

NORTHCUTT and SLEET, JJ., Concur.


text:
    William B. ENGLERT and Toni A. Englert, Appellants, v. HSBC BANK USA, N.A., AS TRUSTEE FOR the DEUTSCHE ALT-A SECURITIES, INC., Mortgage Pass-Through Certificates, Series 2006-OA1 and Pebble Persico, Appellees.
    Case No. 5D17-3386
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019
    Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford, and Anthony N. Legendre, II, of Law Offices of Legendre & Legendre, PLLC, Maitland, for Appellants.
    Nancy M. Wallace and Ryan D. O'Connor, of Akerman LLP, Tallahassee, William P. Heller, of Akerman LLP, Fort Lauderdale, and Paul W. Ettori, of Akerman, LLP, Orlando, for Appellee, HSBC Bank USA, N.A.
    No Appearance for other Appellee.
   PER CURIAM.

We affirm the final judgment of foreclosure in all respects, except for the award of legal fees, attorney's fees, and inspection costs. Because no evidence was introduced at trial to substantiate the award of $ 40,376.38 in legal fees, $ 2647.50 in attorney's fees, $ 915 in inspection costs, and $ 157.50 in other costs, we reverse the award of said fees without remand. See Mkt. Tampa Invs., LLC v. Deutsche Bank Nat'l Tr. Co. for Novastar Mortg. Funding Tr., Series 2007-I, 216 So.3d 783, 783 (Fla. 2d DCA 2017) ("[W]e reverse the attorney's fee award in the foreclosure judgment without remand because the award is not supported by competent, substantial evidence." (citing Michel v. Bank of N.Y. Mellon, 191 So.3d 981, 984 (Fla. 2d DCA 2016) ) ).

AFFIRMED in part, REVERSED in part.

ORFINGER, BERGER and WALLIS, JJ., concur.

      We commend Appellee's counsel for conceding error on this point at oral argument.


text:
    Herbert Lee BUTLER, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-4888
    District Court of Appeal of Florida, First District.
    March 5, 2019
    Herbert Lee Butler, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Tallahassee, for Respondent.
   Per Curiam.

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

Makar, Winokur, and M.K. Thomas, JJ., concur.


author: HARRIS, J.

text:
    Noel B. CAMPANHAC, Appellant, v. Riley LAURAMORE, Appellee. and Noel B. Campanhac, Appellant, v. Beverly Lauramore, Appellee.
    Case No. 5D18-1001 Case No. 5D18-1002
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019 Rehearing Denied March 8, 2019
    Eric J. Friday, of Kingry & Friday, Jacksonville, for Appellant.
    No Appearance for Appellees.
   HARRIS, J.

Appellant, Noel Campanhac, appeals the trial court's final judgments of injunction for protection against stalking in these related cases, arguing that there was insufficient evidence of stalking to support the injunctions. After considering the limited testimony and evidence presented below and without the benefit of briefs or any appearance by Appellees, we agree with Appellant that there was no competent, substantial evidence to support a finding of stalking. See Packal v. Johnson, 226 So.3d 337, 338 (Fla. 5th DCA 2017) (holding that each incident of stalking must be proven by competent, substantial evidence to support injunction against stalking). Accordingly, we reverse the injunction.

REVERSED.

LAMBERT and SASSO, JJ., concur.

      This Court has consolidated these cases for purposes of this opinion only.


text:
    LALLY ORANGE BUICK PONTIAC GMC, INC. and IYFRD Holdings, Inc. n/k/a Orange Buick GMC, Inc., Appellants, v. Simi SANDHU, Appellee.
    Case No. 5D17-3363
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019
    Jennifer S. Eden, and Christina Y. Taylor, of Latham, Shuker, Eden & Beaudine, LLP, Orlando, for Appellants.
    Jennifer R. Dixon, Richard Dellinger, and Melody B. Lynch, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee.
   PER CURIAM.

In this second appeal, we have before us the same issue raised by the parties in their first appeal. In that appeal, we held that the trial court erred when it valued Appellee's interest in a closely-held corporation at $1.9 million dollars. See Lally Orange Buick Pontiac GMC, Inc. v. Sandhu , 207 So.3d 981 (Fla. 5th DCA 2016) (" Lally I "). Specifically, we held that "the trial court's valuation figure is not supported by competent, substantial evidence, and the court abused its discretion in adopting that figure." Id. at 985.

On remand, the trial court once again valued Appellee's interest in that same closely-held corporation at $1.9 million dollars. Appellants correctly assert that we did not remand the case to obtain an explanation from the trial court of how it determined that valuation figure. We once again hold that the trial court's valuation figure of $ 1.9 million was not, is not, and cannot be supported by the evidence presented below, regardless of the trial court's explanation of how it arrived at that figure. The trial court abused its discretion in adopting that figure the first time and apparently misunderstood our earlier opinion in Lally I .

As before, we note that the trial court may appoint independent appraisers to recommend a fair value, it may credit one expert's method of computing value over another's, and it may utilize an expert's valuation methodology as applied to competent, substantial evidence to reach its own valuation figure. See id. at 986. We again observe that if the valuation figure is within the range suggested by the competent, substantial evidence at trial, it will not result in reversible error if it rests upon the credibility and methodology employed by the witnesses. However, Appellee's initial statement of value in the appraisal rights form she prepared and her testimony at trial, which provided no documentation and no detail of valuation methodology, are not competent, substantial evidence of the corporation's value or of her interest in the corporation. See id. at 985.

Accordingly, we reverse and remand for the trial court to adopt a valuation that is supported by competent, substantial evidence, and for any further proceedings consistent with this opinion.

REVERSED and REMANDED with instructions.

ORFINGER, EDWARDS, and HARRIS, JJ., concur.