author: FERNANDEZ, J.

text:
    WD 19790, LLC, Appellant/Cross-Appellee, v. Dan TRUST, Appellee/Cross-Appellant.
    Nos. 3D17-1706 3D16-2796 3D17-151
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019.
    Stok Folk + Kon, Robert A. Stok and Joshua R. Kon, Aventura, for appellant/cross-appellee.
    GrayRobinson, P.A., Jack R. Reiter, Miami, John Herin, Fort Lauderdale, and Tiffany M. Walters, Melbourne; Fromberg Perlow & Kornick and Staci H. Genet (Fort Lauderdale), for appellee/cross-appellant.
    Before FERNANDEZ, and LINDSEY, JJ., and LUCK, Associate Judge.
   FERNANDEZ, J.

WD 19790, LLC, and H & M Development, LLC, (collectively, "WD") and Dan Trust ("Dan") separately appeal the trial court's non-final orders concerning a temporary injunction enjoining WD from trespassing on Dan's vacant lot. The foremost issue before this Court is whether the order granting injunctive relief includes airspace trespass, specifically, WD's use of a tower crane that swings out over Dan's property. We hold that the temporary injunction order does not enjoin WD from airspace trespass and reverse and remand for further proceedings. We affirm as to all other issues without further discussion.

WD is the owner of a property that is sandwiched between and directly adjacent to Dan's two properties located in Miami Beach. One of Dan's two properties is a vacant lot that is the subject of this appeal. WD sought Dan's permission for temporary access to the vacant lot to facilitate construction of a zero-lot-line, twelve story office building on WD's property. WD alleges that, in reliance on receiving permission from Dan, WD entered upon the vacant lot to facilitate construction. Dan asserted that it did not grant WD authorization and demanded WD cease and desist from further entry. Nevertheless, WD continued entry, and Dan brought a trespass action against WD.

On September 26, 2016, Dan filed its Verified Complaint for Damages & Injunctive Relief, stating that the following actions by WD constituted a trespass upon its property:

Specifically, Defendants, without Plaintiff's authorization or consent, removed and destroyed Plaintiff's fencing[,] which provided a boundary and barrier between Plaintiff's and Defendant's Property, are regularly entering Plaintiff's Property with heavy construction equipment and are using Plaintiff's Property to increase access to Defendant's Property and have caused and continue to cause damage to Plaintiff's Property.

On November 9, 2016, Dan filed an Emergency Motion for Injunctive Relief to enjoin WD from continued trespass. In addition to the actions listed in the complaint, Dan added that WD was in the process of pouring columns that would stand more than one inch over Dan's property line, including concrete foundations and footings that would cause permanent encroachments.

On November 10, 2016, the trial court conducted an evidentiary hearing and entered an order partially granting Dan's emergency motion for injunctive relief. The order referenced an attached transcript of the evidentiary hearing, which the trial court failed to attach. The relevant portion of the order provides as follows:

THEREFORE:
8. Plaintiffs Motion for Temporary Injunctive Relief against Defendants is GRANTED, in part, as follows (and as announced at the November 10, 2016 hearing on this matter, as set forth in the excerpt of Transcript prepared by Joyce Hendrix, Prestige Reporting, attached hereto as Exhibit A):
9. Defendant, WD 19790, its agents, partners, employees, employers, attorneys and all others in active concert or participation with them are hereby immediately enjoined and restrained from any entry upon Plaintiffs Property.
10. Defendant WD 19790, its agents, partners, employees, employers, attorneys and all others in active concert or participation with it, shall immediately remove or cause to be removed their structures, improvements, equipment, vehicles and any other item Defendants caused to be located on Plaintiffs Property.

On November 16, 2016, WD filed a Motion for Stay of Entry of Order arguing insufficient notice of the evidentiary hearing and failure to set a bond. The trial court set an evidentiary hearing on the motion for November 18, 2016. The hearing was continued until December 7, 2016. On November 28, 2016, Dan filed a Motion to Amend the Injunction Order for the purpose of including a bond. That same day, the Court proceeded to set the bond amount at $10,000.00 and amended the injunction order to include the bond. On December 13, 2016, WD filed a notice of appeal as to the non-final original injunction order and the amended order.

On December 15, 2016, Dan filed a Motion to Compel Compliance With and Hold Defendant in Civil Contempt for Violation of Injunction Order. Dan argued that WD defiantly put up a tower crane after the temporarily injunction order was issued. WD responded that the crane was up at the time of Dan's motion for injunctive relief and has remained in place. Dan asserted that the injunction order prohibits WD from operating the tower crane over Dan's property. Dan argues that the injunction order includes airspace trespass evidenced by the language "any entry." Dan also relies on the transcript of the evidentiary hearing where the trial judge states the common law rule, "And the property is not just the land; it goes up to the sky and down through the ground. So there cannot be any trespass or any future trespass either way. And so that's my order on a preliminary temporary basis pending further order of Court." Dan argues that the transcript was incorporated into the order by reference, though it was not directly attached to the order. In return, WD argues that any entry "upon" and removal of structures caused to be "located on" is language in the order denoting a ground trespass only. In the transcript for the hearing on the motion for contempt, Dan concedes that the base of the crane can be seen in a photo taken before the hearing. Dan insists that if it had seen the crane on the property, it would have included the crane in its complaint and motion for injunctive relief.

On December 19, 2016, WD filed an Emergency Motion to Stay Temporary Injunction Pending Appeal. On December 22, 2016, after a hearing on the parties' motions, the trial court denied Dan's motion to compel and granted WD's motion, in part, temporarily staying the injunction order as it relates to airspace trespass only and affirming the injunction order as it relates to anything that touches the dirt of Dan's property. Dan filed a notice of appeal on January 20, 2017, appealing the order partially granting the stay, arguing that the stay was actually an improper modification of the injunction order.

On March 31, 2017, WD filed an Emergency Petition for Declaratory, Injunctive, and Supplemental Relief in the trial court. On July 6, 2017, the trial court denied the temporary injunction. On July 26, 2017, WD appealed this order.

This Court has jurisdiction to review non-final orders granting injunctive relief pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). The standard of review for an order granting or denying a temporary injunction is abuse of discretion. City of Miami Beach v. Kuoni Destination Mgmt., Inc., 81 So.3d 530, 532 (Fla. 3d DCA 2012). Upon review of the record, we find that the non-final temporary injunction granting Dan's emergency motion for injunctive relief does not enjoin WD from operating a tower crane over Dan's property.

The trial court's temporary injunction order does not delineate the specific actions that constitute trespass upon Dan's property. The presumption is that WD is enjoined from committing the actions listed in Dan's motion, which largely mirrors the actions listed in the complaint. However, the motion and the complaint are devoid of any reference to airspace trespass generally or to WD's use of a tower crane over Dan's property. It is well-settled that "[a] circuit court is not authorized to grant injunctive relief where an injunction has neither been requested, nor proven." Minotty v. Baudo, 42 So.3d 824, 836 (Fla. 4th DCA 2010) (citing City of Indian Rocks Beach v. Tomalo, 834 So.2d 341, 342 (Fla. 2d DCA 2003) ). We are unable to read an airspace trespass into an injunction order where the issue was neither pled in the complaint nor in the underlying motion.

As to the trial court's failure to attach the transcript to the injunction order, regardless of whether the transcript was incorporated by reference, the only relevant language in the transcript is the general restatement of the common law principle related to trespass law. During the evidentiary hearing, Dan did not present any evidence related to airspace trespass or to WD's use of a tower crane. It is not enough for the trial court to sua sponte find that the use of the tower crane over Dan's property constitutes an airspace trespass. See First Union Nat'l Bank, N.A. v. Peoples Nat'l Bank of Commerce, 644 So.2d 538, 539 (Fla. 3d DCA 1994) (holding that the trial court erred by entering injunctive relief sua sponte , in the absence of the requisite pleadings and notice).

Accordingly, we conclude that the non-final temporary injunction order does not enjoin WD from operating a tower crane over Dan's property and reverse and remand for further proceedings consistent with this opinion. We affirm as to all other issues without further discussion.

Affirmed in part; reversed in part.

      The following appeals were consolidated for all purposes:
      On December 13, 2016, WD appealed the trial court's non-final Amended Order Granting Plaintiff's Emergency Motion for Injunctive Relief enjoining WD from trespassing on Dan Trust's ("Dan") property.
      On January 20, 2017, Dan appealed the trial court's non-final order partially granting WD's motion to stay the injunction pending appeal as to airspace trespass only.
      On July 26, 2017, WD appealed the trial court's non-final order denying WD's motion for a temporary injunction to allow WD temporary access to Dan's property.

      On November 9, 2016 at 4:19PM, the same day Dan filed its emergency motion, the trial court set an evidentiary hearing for November 10, 2016 at 10:00AM, providing WD notice of less than two business hours. During the hearing, WD stated that it needed more time to procure the evidence needed for a proper defense of WD's actions, as was previously stated in WD's November 1, 2016 motion for enlargement of time to file a response to the complaint. Nevertheless, the hearing was held as ordered.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Morris DALKEITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1333
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Ashley Brooke Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before LOGUE and HENDON, JJ., and LUCK, Associate Judge.
   PER CURIAM.

The defendant, Morris Dalkeith, appeals his conviction for trespass in a conveyance. We affirm, but remand for correction of the judgment to reflect that trespass in a conveyance is a second-degree misdemeanor, §§ 810.08(1) & (2)(a), Fla. Stat. (2018), not a first-degree misdemeanor as listed in the judgment. As counsel for the parties candidly admit that the error was a scrivener's error, not judicial error, which when corrected will not affect the defendant's sentence, the judgment may be corrected without conducting a new sentencing hearing. Malone v. State, 225 So.3d 335, 335 (Fla. 3d DCA 2017).

Affirmed and remanded with instructions.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    William Allen KING, DOC #S39611, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3004
    District Court of Appeal of Florida, Second District.
    Opinion filed January 25, 2019
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Bilal Ahmed Faruqui, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

A jury found William A. King guilty of battery on a staff member of a detention facility for sexually violent predators. See § 784.074, Fla. Stat. (2014). On appeal from the judgment, King challenges his conviction on the grounds that (1) after ordering competency evaluations, the trial court never conducted a competency hearing or determined him competent to proceed and (2) the trial court failed to properly instruct the jury that he had previously been adjudicated insane and that his sanity had not been judicially restored. The State concedes error on the first ground and urges remand for a nunc pro tunc competency hearing. Although we also find error on the second ground, we conclude that it was harmless, and so we agree that we must reverse and remand for a nunc pro tunc competency hearing.

Background

King was charged in 1987 with aggravated battery on a female victim and was charged in 1988 with aggravated assault on a female victim and with possession of a firearm by a convicted felon. King was found not guilty by reason of insanity in both cases, was committed to the Department of Children and Families, and was placed in the South Florida State Hospital (FSH). He was conditionally released in 1995, violated the terms of his release, and was returned to FSH in 1997.

King assaulted a female FSH employee in 2002 and assaulted two others in March and April 2003. In 2012, he was classified as a sexually violent predator and was placed in the Florida Civil Commitment Center (FCCC), where he has been ever since. In June 2015, King battered a female FCCC employee. This led to the charge underlying this appeal.

Analysis

The trial court found reasonable grounds to believe that King was incompetent to stand trial and twice appointed experts to evaluate his competency. Yet it conducted no competency hearing and rendered no written order pronouncing him competent to proceed. As the State concedes, the court's failure to hold a hearing and to rule on King's competency was error. See Fla. R. Crim. P. 3.210(b) ; Charles v. State, 223 So.3d 318, 328 (Fla. 4th DCA 2017) ("Once the trial court appoints experts to examine the defendant's competency, the trial court may not proceed against the defendant without holding a competency hearing and ruling on the defendant's competency."); see also Golloman v. State, 226 So.3d 332, 335 (Fla. 2d DCA 2017) ("Once a reason for a competency hearing has arisen, the defendant has a due process right to an independent finding of competency. This right cannot be waived, and a trial court's failure to make such a finding constitutes fundamental error." (citation omitted) (citing Zern v. State, 191 So.3d 962, 965 (Fla. 1st DCA 2016) ) ).

"Generally, the remedy for a trial court's failure to conduct a proper competency hearing is for the defendant to receive a new trial, if deemed competent to proceed on remand." Dougherty v. State, 149 So.3d 672, 678-79 (Fla. 2014). A new trial is not necessary, however, if a retroactive determination of competency is possible. See id. at 679. Such a determination may be possible if "there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing." Id. (quoting Mason v. State, 489 So.2d 734, 737 (Fla. 1986) ).

In this case, a nunc pro tunc hearing may be feasible because there are several expert and lay witnesses-such as the two doctors whom the trial court appointed to evaluate King, a third doctor whom King independently retained to conduct an evaluation, and a correctional officer who frequently worked with King-who can provide evidence pertinent to King's competency at the time of trial. See id. Accordingly, we reverse and remand for such a hearing.

Before we do, however, we address King's second challenge to his conviction. King couches it in terms of "judicial notice," i.e., the trial court erred in failing to take judicial notice of the fact that after having been adjudged insane on the 1987 and 1988 charges, he had never been judicially restored to legal sanity. Based on the cases on which he relies, coupled with his argument below, however, we construe this challenge as one directed to the trial court's instructions to the jury, and specifically to the trial court's failure to affirmatively instruct the jury that because King had previously been adjudged insane and had not been judicially restored to legal sanity, he was entitled to a rebuttable presumption of insanity at the time of the offense in this case.

Pursuant to Florida Standard Jury Instruction (Criminal) 3.6(a) (2015), a trial court should instruct a jury on insanity as follows:

All persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter in issue.

But instruction 3.6(a) further requires that the following instruction be given "if applicable": "If the evidence establishes that the defendant had been adjudged insane by a court, and has not been judicially restored to legal sanity, then you should assume the defendant was insane at the time of commission of the alleged crime, unless the evidence convinces you otherwise." Fla. Std. Crim. J. Instr. 3.6(a) (emphasis added). Thus, the first instruction places the burden of proof on the defendant, and the second instruction places the burden of proof on the State.

In this case, the trial court gave both instructions. And, at King's request, the court also instructed the jury that "[t]here was an order adjudging the Defendant insane on February 16th, 1990," and that the jury "must assume this to be true without any further evidence being necessary." The court, however, refused King's request that it similarly instruct the jury that he had "not been judicially restored to legal sanity," although both parties and the court all apparently agreed that King never had been "judicially restored to legal sanity." The court's refusal to instruct the jury to that effect was based on its concern that doing so would "essentially direct[ ] the verdict" for the defense and its belief that it was "up to the jury to decide if [King had] been restored to sanity." Instead, the court stated that King could "certainly argue the absence of any evaluation or order that adjudicates him sane."

In Wells v. State, 98 So.2d 795, 802 (Fla. 1957), the supreme court held that the trial court erred in leaving for the jury the question of whether the defendant had been judicially restored to legal sanity "in view of the fact that it was undisputed in the record that the defendant had been adjudged insane and not restored to sanity." In such a situation, "[t]he [trial] court should have charged the jury in an affirmative manner on the question of the presumption of insanity of the defendant," rather than "[leaving] to the jury the question of determining whether the presumption existed." Id. The supreme court explained:

The question of whether the defendant had been judicially restored to sanity was no longer a jury question because the record was wholly devoid of any evidence controverting that fact. We think [giving both] charges, even when read in the light of all of the charges of the court, as we have carefully and meticulously done, tended to confuse the jury and to leave them with the impression that it was within their power to determine whether the defendant had been judicially restored to sanity, a power they did not possess.

Id.; see also Johnson v. State, 118 So.2d 234, 236 (Fla. 2d DCA 1960) (holding that the trial court erred in failing to instruct the jury that the presumption of insanity applied when the evidence was undisputed that sanity had not been formally restored and explaining that "[i]t was not for the jury to decide whether or not the presumption applied, but rather whether or not the rebuttal evidence had overcome it" and that "the court only confused the jury by instructing them that 'every person accused of crime is presumed by the law to be sane' "); cf. Horace v. Culver, 111 So.2d 670, 671 (Fla. 1959) ("[A] person adjudged to be insane is presumed to remain in that condition until it is shown that sanity has returned. While the presumption raised by the adjudication is not conclusive, the effect of the decisions is that it must be recognized unless and until it is overcome by a contrary finding or proof that at a particular time the party previously adjudged incompetent was in fact of sound mind.").

The trial court, therefore, erred in giving both instructions in this case and leaving for the jury to decide what presumption to apply. But we conclude that in this case, the error was harmless because the potential for the confusion with which those cases were concerned was lacking (and King does not argue otherwise). As set forth above, although it refused to give an instruction that King had never been judicially restored to legal sanity, the trial court permitted King to repeatedly argue that fact to the jury. Moreover, the State, from its opening statement forward, presented its case as if the presumption of insanity applied, and it told the jury that it "embraced" the burden of rebutting that presumption and "prov[ing]" that King "[had been] sane" at the time of the offense. When, at the conclusion of the defense case, King renewed his motion for a judgment of acquittal "on the grounds that [he] is now presumed to be insane because his sanity has not been restored ... [a]nd the State has not met their burden of proof," the State responded by presenting rebuttal evidence tailored to rebut any presumption of insanity at the time of the offense, including the testimony of a witness at the facility where King was confined and had committed the offense and of one of the experts who had evaluated King in connection with the offense. Finally, in both its initial and rebuttal closing arguments, the State again referred to the presumption of insanity as if it were all but a foregone conclusion and argued that "that presumption can and has been overcome with the evidence." Given this record, we are confident that the outcome of the proceedings would not have been different if the trial court had affirmatively instructed the jury that King was entitled to a presumption of insanity.

Accordingly, we reverse and remand for the trial court to hold a hearing for the purpose of making a nunc pro tunc determination of King's competency at the time of his trial. If, however, the court determines, "for whatever reason, that an evaluation of [King's] competency at the time of the original trial cannot be conducted in such a manner as to assure [King] due process of law, the court must so rule and grant a new trial." Mason, 489 So.2d at 737. In all other respects, the conviction is affirmed.

Reversed; remanded for further proceedings.

SILBERMAN and SLEET, JJ., Concur.

      We recognize that this caselaw is more than fifty years old and that Florida's insanity instructions have changed several times during this period. Nevertheless, we find no indication that any of these cases have been modified, receded from, or overruled, and as such, they appear to still be good law. Moreover, the continued validity of their holdings is confirmed by the very existence of the alternative jury instruction mandating a rebuttable presumption of insanity when a defendant has been previously adjudged insane and has not been judicially restored to legal sanity.


text:
    Peter R. SOLOMON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3893
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019
    Peter R. Solomon, Monticello, pro se.
    Ashley B. Moody, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 27, 2017 judgment and sentence rendered in Case No. 2016-CF-12434-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Christopher HAMMONDS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3511
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019
    Gregory M. Wagner, Law Office of Gregory M. Wagner, Daytona Beach, for Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 28, 2017 judgment and sentence rendered in Case No. 2014-305074-CFDB, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WALLIS and GROSSHANS, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Angel PADILLA-PADIAL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4036
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019
    Jaime T. Halscott and Robert S. Byther, of Halscott Megaro, P.A., Orlando, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Angel Padilla-Padial appeals the trial court's order revoking his probation and sentencing him to prison. We affirm but remand for entry of a written order consistent with the trial court's oral pronouncement, finding that Padilla-Padial qualified as a violent felony offender of special concern and his release posed a danger to the community pursuant to section 948.06(8)(e), Florida Statutes (2016). See Wells v. State, 243 So.3d 446 (Fla. 5th DCA 2018).

AFFIRMED and REMANDED WITH INSTRUCTIONS.

ORFINGER, COHEN and EDWARDS, JJ., concur.


author: VILLANTI, Judge.

text:
    Serenity HARPER, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.
    Case No. 2D18-2004
    District Court of Appeal of Florida, Second District.
    Opinion filed January 25, 2019.
    David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; and J. Daniel Clark of Clark & Martino, P.A., Tampa, for Appellant.
    Joshua J. Hartley, B. Richard Young, and Jordan M. Thompson of Young, Bill, Boles, Palmer & Duke, P.A., Tampa, for Appellee.
   VILLANTI, Judge.

Serenity Harper appeals the "final judgment" entered by the trial court on April 2, 2018, in favor of her insurer, GEICO General Insurance Company. Because the April 2 judgment is duplicative of a final judgment that the court had previously entered on November 14, 2017, we reverse the duplicative April 2 judgment and remand for the trial court to strike it from the record.

The facts here are not complicated. The trial court entered an order on November 14 that not only granted summary judgment in favor of GEICO, but also provided that "[s]ummary [j]udgment is hereby entered in favor of Defendant, GEICO General Insurance Company." Harper filed a timely notice of appeal to this court as to that judgment, which resulted in the companion case pending before this court in case number 2D17-4987.

Despite the clear language of finality contained in the November 14 order, GEICO subsequently filed a motion asking the trial court to enter a "final judgment." While the appeal was pending in case 2D17-4987, the trial court held a hearing; determined that because the November 14 order was not titled a "final judgment" it was not really final; and entered a second judgment over Harper's objections that the court had no jurisdiction to enter the second judgment and that such was unnecessary because the November 14 judgment was sufficiently final. This second "final judgment" was rendered April 2, 2018. In an abundance of caution, Harper filed a notice of appeal from that judgment as well, which is the judgment on appeal in this case.

Faced with these two appeals, Harper filed a motion in this court in case 2D17-4987, asking this court to determine whether the language in the November 14 order was sufficiently final to support jurisdiction over the appeal. On May 17, 2018, this court issued an order providing that the language in that order contained "sufficient words of finality" and that this court would review that order on its merits.

Harper subsequently filed a motion in the trial court asking it to vacate the April 2 "final judgment" as being improper and duplicative. The trial court apparently never ruled on that motion. Thus, at this juncture, the record in the trial court contains two final judgments-one rendered November 14, 2017, and a second rendered April 2, 2018-each providing the identical relief.

Given this court's determination that the November 14 order contained sufficient words of finality to constitute a final appealable judgment, the April 2 "final judgment" is improper and duplicative. Hence, we reverse the second "final judgment" entered April 2, 2018, and remand with directions to strike it on remand. See, e.g., Diecidue v. Lewis, 223 So.3d 1015, 1019 (Fla. 2d DCA 2017) (directing the trial court to strike a second duplicative judgment from the record); Sound Builders of St. Petersburg, Inc. v. Hanlon, 439 So.2d 276 (Fla. 2d DCA 1983) (striking the latter judgment when duplicative final judgments were entered in one case); Willens v. Willens, 225 So.3d 1017 (Fla. 1st DCA 2017) (directing the trial court to strike a duplicate final judgment that had been inadvertently entered); Nationwide Mut. Fire Ins. Co. v. Robinson, 851 So.2d 888, 889 (Fla. 4th DCA 2003) (reversing second final judgment entered that was a duplicate of the first), reversed on other grounds, 887 So.2d 328 (Fla. 2004). This leaves the parties with the final judgment entered on November 14, 2017.

Reversed and remanded with directions.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: PER CURIAM

text:
    Travis Robert WALKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3456
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019
    James S. Purdy, Public Defender, and Darnelle Paige Lawshe, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM

Travis Walker appeals the denial of his pre-sentencing motion to withdraw his plea. From a thorough review of the record, we find that Walker established good cause in support of his motion and, therefore, reverse.

When good cause is established, Florida Rule of Criminal Procedure 3.170(f) entitles the defendant to withdraw his pre-sentence plea. Tanzi v. State, 964 So.2d 106, 113 (Fla. 2007). This "rule should be liberally construed in favor of the defendant because the law inclines toward a trial on the merits." Johnson v. State, 947 So.2d 1208, 1210 (Fla. 5th DCA 2007).

Under the unique circumstances of this case, we find the trial court abused its discretion in denying Walker's motion to withdraw his plea. See Wright v. State, 961 So.2d 1036, 1041 (Fla. 4th DCA 2007). We reverse Walker's conviction and sentence and remand for the trial court to vacate the plea and sentence and to take further actions consistent with this opinion.

REVERSED and REMANDED.

EDWARDS and HARRIS, JJ., concur.

COHEN, J., dissents without opinion.


text:
    Amarti MITCHELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-371
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
    CORRECTED
   PER CURIAM.

Amarti Mitchell appeals the judgment and sentence imposed upon him after the trial court found he violated condition five of his order of probation for committing a new law violation. We affirm but remand solely for entry of a proper order revoking probation. See Dolinger v. State, 779 So.2d 419, 421 (Fla. 2d DCA 2000) (determining trial court erred by failing to enter a written revocation order and remanding for entry of said order); see also Green v. State, 23 So.3d 820, 821 (Fla. 4th DCA 2009) (remanding for entry of a written order revoking probation where record clearly showed the trial court had revoked appellant's probation).

AFFIRMED; REMANDED for entry of revocation order.

ORFINGER and BERGER, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Robert Graham BISHOP, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4065
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 29, 2019
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Mitchell v. State, 98 So.3d 694, 696 (Fla. 1st DCA 2012) ("The trial court's determination of the weight and credibility of competing expert opinions in chapter 394 proceedings will not be overturned unless clearly erroneous.").

WALLIS and GROSSHANS, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: Per Curiam.

text:
    Michael Eric PIERCE, Appellant, v. Erin Marie PIERCE, Appellee.
    No. 1D17-1824
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Michael Eric Pierce, pro se, Appellant.
    Erin Marie Pierce, pro se, Appellee.
   Per Curiam.

Appellant, Michael Eric Pierce, challenges the trial court's Final Judgment of Dissolution of Marriage. We reject his claims except his argument that the trial court failed to make the requisite factual determinations justifying the amount of child support awarded, as well as any arrears. Accordingly, we reverse and remand so that the trial court can make the appropriate factual findings relating to the trial court's calculation of the child support and arrears owed by Pierce. See Exter v. Diodonet-Molina , 152 So.3d 699, 701 (Fla. 3d DCA 2014) ; Aguirre v. Aguirre , 985 So.2d 1203, 1207 (Fla. 4th DCA 2008).

AFFIRMED in part, REVERSED in part, and REMANDED .

Lewis, Wetherell, and Winokur, JJ., concur.


text:
    Robert S. SUETER AKA Robert Sueter, Appellant, v. WELLS FARGO BANK, N.A. and Mortgage Guaranty Insurance Corporation, Appellees.
    Case No. 5D17-3821
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 29, 2019
    Michael P. Kelton, of Paul, Elkind, Branz & Kelton, P.A., Deland, for Appellant.
    David M. Snyder, of David M. Snyder, P.A., Tampa, and Joshua D. Moore, of Law Offices of Daniel C. Consuegra, Tampa, for Appellee, Mortgage Guaranty Insurance Corporation.
    No Appearance for Other Appellee.
   PER CURIAM.

AFFIRMED. See Aluia v. Dyck-0'Neal, Inc. , 205 So.3d 768, 775 (Fla. 2d DCA 2016) ("A plaintiff seeking a deficiency must establish '1) entry of final judgment of foreclosure; 2) sale of the foreclosed property pursuant to the judgment; [and] 3) issuance of a certificate of title for the property.' " (quoting Frohman v. Bar-Or , 660 So.2d 633, 636 (Fla. 1995) ).

EVANDER, C.J. and GROSSHANS, J., and JACOBUS, B.W., Senior Judge, concur.


text:
    Jejuan L. DIGGS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3898
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 29, 2019
    Jejuan L. Diggs, Madison, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Ives v. State , 993 So.2d 117, 120 (Fla. 4th DCA 2008) (holding that a challenge to the procedure used in qualifying a defendant for Prison Releasee Reoffender sentencing is not cognizable in a rule 3.800(a) motion).

WALLIS, LAMBERT, and SASSO, JJ., concur.


text:
    Mark JONES, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3936
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Mark Jones, South Bay, pro se.
    Ashley B. Moody, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 22, 2018 order denying Petitioner's amended motion to correct illegal sentence filed in Case No. 2003-35313-CFAES, Seventh Judicial Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WALLIS and, EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: EVANDER, C.J.

text:
    Robert O'HARE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-157
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Steven J. Parton, of Mandell Law, P.A., Winter Park, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, C.J.

After the denial of his amended motion to suppress, Appellant, Robert O'Hare, entered a nolo contendere plea to multiple counts of possession of child pornography, multiple counts of video voyeurism, possession of a short-barreled shotgun, and resisting or obstructing an officer without violence. On appeal, Appellant argues that the warrantless search of his residence was unlawful and that the trial court erred in relying on the inevitable discovery doctrine in denying his motion. Although we agree that the inevitable discovery doctrine does not support the denial of Appellant's motion, we conclude that this cause should be remanded for the trial court to consider the applicability of the independent source doctrine.

On September 17, 2015, Ocoee Police Detective Sean Walsh notified Detective Robert Hart, from the Lake County Sheriff's Office, about a child pornography investigation. Walsh told Hart that a person using the screen name John@Ares was downloading child pornography using the Ares network and was sharing it using the peer-to-peer network from a specified Internet Protocol ("IP") address. Walsh secured a search warrant, which allowed him to obtain the IP address information. The IP address was associated with a business. Walsh informed Hart that John@Ares shared child pornography with him on two separate dates prior to September 17.

The following day, Walsh notified Hart that John@Ares was again sharing child pornography at the business. Hart arrived at the location and used an application that allowed him to identify users connected to the wireless network. Walsh advised Hart that the user John@Ares was logging on with a PC (as opposed to an Apple Mac) computer because most Ares network users utilize a PC. Hart did not see any users with the name John connected to the network at that time.

On September 21, 2015, Hart and another detective returned to the business and noticed one person, later identified as Appellant, using a Toshiba laptop PC, a Computer Pad tablet, and a black computer bag. Hart again used the application that allowed him to see who was connected to the wireless network and identified a user by the name of JOHNSMITH-PC as being connected to the network. Appellant was the only patron observed using a PC, and Hart obtained a photograph of him. At that time, Walsh advised Hart that the Ares network was not being used to download child pornography.

On September 30, 2015, Walsh advised Hart that John@Ares was sharing child pornography. Hart returned to the business and observed Appellant using a Toshiba PC. One couple was observed using a Mac computer, but Hart determined that only one PC was connected to the wireless network with the associated username of JOHNSMITH-PC. After Walsh confirmed again that John@Ares was sharing pornography, Hart photographed Appellant, the Toshiba laptop being used, and the tablet that was also in his hand. Hart saw Appellant leave the business and drive away in a white SUV. After Appellant left One Flight Up, JOHNSMITH-PC was no longer connected to the wireless network. Later, Hart received from Walsh a DVD containing the Ares report and pornographic files that were downloaded.

On October 5, 2015, Walsh informed Hart that John@Ares was connected to the business' network and "had multiple files of interest." Hart and several other detectives arrived on scene and verified that Appellant was there with his computer bag. Appellant left shortly after the detectives arrived.

After Appellant left the business and returned home, Corporal Chad Harmon and two other detectives went to Appellant's residence for a "knock and talk" to try to obtain consent to search for evidence of the suspected crime. Upon arrival, Harmon informed Appellant that he suspected Appellant was in possession of child pornography and that Appellant could either consent to a search of his residence or the house would be secured while a search warrant was obtained. Appellant denied consent and repeatedly demanded to see a warrant. As Appellant tried to close the front door, Harmon stuck his foot in the doorway, blocking it from being closed. Harmon testified that this was standard practice, and that because Appellant knew why law enforcement was present, there was a risk that evidence would be destroyed if they left.

For officer safety, Harmon and the other detectives entered the residence and conducted a protective sweep because Appellant initially refused to indicate whether there was anyone else inside the residence. During the sweep, Harmon remained with Appellant. Harmon asked Appellant to step outside, but he declined. When Appellant attempted to step around Harmon in an effort to retreat further into the residence, Harmon grabbed Appellant. The detectives conducting the protective sweep heard a struggle and returned to aid Harmon in detaining Appellant. Appellant's mother entered the foyer and began video recording the transaction.

After the protective sweep, Detective Hart entered Appellant's bedroom and saw the Toshiba laptop that Appellant had been using the business. The laptop was not moved, opened, or otherwise touched at that time. Additionally, Appellant's mother made it clear that she was concerned with law enforcement either having discovered or discovering her deceased husband's gun(s). After being in the residence for about an hour, Detective Hart left to secure a search warrant.

In the warrant affidavit, Hart mentioned that Appellant had denied consent to search his home and that a struggle had ensued resulting in Appellant and the home being secured. However, the probable cause for issuance of the search warrant rested on the investigation conducted prior to entering Appellant's home.

Later in the evening, Hart returned with a search warrant and a search ensued. Police seized the Toshiba laptop and determined that: (1) the user name associated with the device was "John Smith"; (2) the laptop had the ARES program on it; and (3) there were numerous child pornography files saved to the device. Police also found a short-barreled shotgun in Appellant's closet.

The State ultimately charged Appellant by amended information with fifty-one counts of possession of child pornography, twenty-six counts of felony video voyeurism, possession of a short-barreled shotgun, and resisting a law enforcement officer without violence. Appellant filed an amended motion to suppress seeking suppression of the short-barreled shotgun and all evidence obtained from the electronic devices seized during the search of his residence. The State responded by arguing that the warrantless entry into Appellant's home was not unlawful. Alternatively, the State argued that if the entry was unlawful, evidence should not be suppressed on the basis of the independent source and/or inevitable discovery doctrines.

After conducting an evidentiary hearing on Appellant's motion, the trial court determined that the warrantless search of Appellant's residence was unlawful. The State does not challenge that determination on appeal. Nonetheless, the trial court denied the motion to suppress under the inevitable discovery doctrine because law enforcement had commenced an investigation of Appellant prior to the police misconduct. Based on the Florida Supreme Court's decision in Rodriguez v. State , 187 So.3d 841 (Fla. 2015), we respectfully disagree with the trial court's conclusion.

A ruling on a motion to suppress involves a mixed question of fact and law.

State v. Kindle , 782 So.2d 971, 973 (Fla. 5th DCA 2001). "The standard of review [an appellate court] must apply to the findings of fact is whether competent, substantial evidence supports the findings." Id. The evidence and reasonable inferences must be construed most favorable to sustaining the trial court's ruling. Id. "The trial court's application of the law to the facts is reviewed de novo ." Id.

The exclusionary rule will generally serve to suppress evidence discovered pursuant to an unlawful search or seizure. See State v. White , 660 So.2d 664, 666 (Fla. 1995) ("The exclusionary rule inhibits governmental breach of the principles embodied in the Fourth Amendment by prohibiting governmental use of evidence seized in violation of the rule."). The inevitable discovery doctrine is an exception to the exclusionary rule. Nix v. Williams , 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). It requires the prosecution to prove "by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." Id. In Rodriguez , the Florida Supreme Court addressed the question of whether, in the context of an unlawful search of a suspect's home, the inevitable discovery doctrine required "the prosecution to demonstrate that the police were in the process of obtaining a warrant prior to the misconduct or whether the prosecution need only establish that a warrant could have been obtained with the information available prior to the misconduct." 187 So.3d at 849. There, while engaged in a warrantless search of Rodriguez's residence, law enforcement officers discovered illegal drugs. Although the officers had information that would have supported the issuance of a search warrant for Rodriguez's premises, they had not attempted to secure a search warrant prior to entering his residence. Our supreme court concluded that in order to rely on the inevitable discovery doctrine, the state was required to show that law enforcement officers were seeking a search warrant prior to the police misconduct:

We conclude that permitting warrantless searches without the prosecution demonstrating that the police were in pursuit of a warrant is not a proper application of the inevitable discovery rule. The rule cannot function to apply simply when police could have obtained a search warrant if they had taken the opportunity to pursue one, but can only apply if they actually were in pursuit of one.

Id.

Here, as in Rodriguez , the State failed to show that law enforcement was in pursuit of a search warrant at the time of the improper entry into Appellant's residence. Accordingly, it was error for the trial court to rely on the inevitable discovery doctrine to deny Appellant's amended motion to suppress. See Clayton v. State , 252 So.3d 827 (Fla. 1st DCA 2018) (holding that inevitable discovery doctrine supports admission of illegally obtained evidence only when police had actively sought to obtain search warrant before searching home).

In denying Appellant's amended motion to suppress, the trial court did not address the State's alternative argument that Appellant's motion should be denied pursuant to application of the independent source doctrine. The independent source doctrine is closely related to the inevitable discovery doctrine. Nix , 467 U.S. at 443, 104 S.Ct. 2501. "[T]he 'exclusionary rule' has no application where the government can show it has learned of the challenged evidence from an 'independent source.' The rule applies where the illegal search or seizure was not an actual cause of the discovery of the subject evidence." State v. Ojeda , 147 So.3d 53, 61 (Fla. 3d DCA 2014). The independent source rule "applies when evidence is discovered as a result of unlawful police activity but is also discovered independently through a lawful investigation that occurs either before or after the illegal activity, so long as the independent investigation itself is 'untainted by the initial activity.' " Id. at 65 (quoting Jackson v. State , 1 So.3d 273, 278 (Fla. 1st DCA 2009) ). In the instant case, police developed probable cause to believe that Appellant was in possession of child pornography based on the investigation conducted prior to the illegal entry. However, we decline the State's invitation to affirm the trial court's order under the Tipsy Coachman doctrine. The trial court's order does not set forth all of the factual findings that would permit us to fully and independently address the application of the independent source doctrine in this case. Accordingly, we remand this case to the trial court to determine the application of the independent source doctrine in ruling on Appellant's amended motion to suppress.

REVERSED and REMANDED.

WALLIS and HARRIS, JJ., concur.

      The parties stipulated that Appellant's motion was dispositive.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Randy Doyle ROSS, Jr. and State of Florida, Respondents.
    Case No. 5D18-2471
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Joyce L. Miller, Assistant Regional Counsel, of Department of Children and Families, Tavares, for Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.
    No Appearance for Respondent, Randy Doyle Ross, Jr.
   PER CURIAM.

The Department of Children and Families (DCF) petitions this Court for certiorari review, challenging the circuit court's order committing Randy Doyle Ross, Jr., to their care. DCF argues the order departs from the essential requirements of law because Ross does not meet the statutory requirements for commitment. See § 916.13, Fla. Stat. (2018). The State properly concedes error. Accordingly, we grant the writ, quash the order under review, and remand for further proceedings. See Dep't of Child. & Fams. v. Lotton, 172 So.3d 983, 987 (Fla. 5th DCA 2015) ("[B]ecause there was no evidence presented to the trial court to support the findings it made, the trial court departed from the essential requirements of the law by ordering commitment.").

PETITION GRANTED; ORDER QUASHED.

ORFINGER, BERGER and GROSSHANS, JJ., concur.

      After examining Ross, Dr. Bursten concluded that he was not incompetent due to mental illness, but rather was pretending to be incompetent, otherwise known as "malingering."


text:
    John Walter DABBELT, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., Mortgage Asset-Backed Pass-Through Certificates, Series 2007 QH6, and Shannon Homeowners Association Inc., Appellees.
    Case No. 5D18-191
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Linda Lee Wynn, of The Law Offices of Linda Lee Wynn, P.A., Tampa, for Appellant.
    Nancy M. Wallace and Ryan D. O'Connor, of Akerman LLP, Tallahassee, and William P. Heller, of Akerman LLP, Fort Lauderdale, for Appellee, Deutsche Bank Trust Company Americas, as Trustee for Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2007 QH6.
    No Appearance for Appellee, Shannon Homeowners Association, Inc.
   PER CURIAM.

We affirm, on the merits, the final judgment of foreclosure entered in this case but remand to the trial court to enter an amended final judgment to show Appellee, Deutsche Bank Trust Company Americas, as Trustee for Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2007 QH6, as the plaintiff.

AFFIRMED; REMANDED with directions.

COHEN, LAMBERT, and EDWARDS, JJ., concur.


text:
    Juan Pablo SANCHEZ, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3251
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Juan Pablo Sanchez, Bristol, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 6, 2018 judgments and sentences rendered in Case No. 2015-CF-016607-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EDWARDS and GROSSHANS, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Jason Darryl HARRIS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-0105
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Patrick Michael Megaro of Halscott Megaro, P.A., Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 2, 2018 order regarding Petitioner's motion for postconviction relief, filed in Case No. 05-2014-CF-16780-A-X, Eighteenth Judicial Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

BERGER, EISNAUGLE and GROSSHANS, JJ., concur.


text:
    Alfred J. BELNIAK and Marlene M. Belniak, Appellants, v. Raymond C. MCWILLIAMS, Individually and as Personal Representative of the Estate of Linda A. McWilliams, and David A. Belniak, Appellees.
    Case No. 5D18-2171
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Debra B. Tuomey, of Debra B. Tuomey, Attorney at Law, LLC, Spring Hill, for Appellants.
    Maureen M. Deskins, of Knopik Deskins Law Group, Tampa, for Appellees.
   EVANDER, C.J.

Appellants, Alfred Belniak and Marlene Belniak, were the prevailing parties at trial below. They appeal an order denying their motion to tax costs for an expert witness. The expert testified at trial and also testified at the costs hearing as to the reasonableness of his fees. The trial court found an expert witness fee of $ 3962.50 to be appropriate, but denied the motion on the ground that Appellants had failed to call "another expert qualified in the same field" to testify as to the reasonableness of the requested fee. We reverse. A prevailing party's burden at an evidentiary cost hearing to recover an expert witness fee is to present substantial competent evidence of the services performed and the reasonable value of those services. Powell v. Barnes , 629 So.2d 185, 186 (Fla. 5th DCA 1993). That evidence can come from the individual experts whose charges are at issue or another qualified expert in the same field. Id. ; see also Oak Square Joint Venture v. U.S. Bank Nat'l Ass'n , 143 So.3d 971, 972 (Fla. 1st DCA 2014). There is no requirement that the prevailing party provide testimony from both the expert witness whose charges are at issue and a second expert. On remand, the trial court shall award costs for the expert witness fees to Appellants in the amount of $3962.50.

REVERSED and REMANDED.

BERGER and GROSSHANS, JJ., concur.


author: HARRIS, J.

text:
    COACHWOOD COLONY MHP, LLC, Appellant, v. KIRONI, LLC, Appellee.
    Case No. 5D17-3551
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Patrick M. Chidnese, and Stacy D. Blank, of Holland & Knight LLP, Tampa for Appellant.
    William G. Osborne, of William G. Osborne, PA, Orlando, for Appellee.
   HARRIS, J.

Coachwood Colony MHP, LLC ("Coachwood") timely appeals a final summary judgment entered in favor of Kironi, LLC ("Kironi"), granting permanent injunctive relief. Coachwood argues that the trial court erred in granting summary judgment because it failed to consider the conduct of both Coachwood and Kironi in applying the "reasonable use" rule and failed to consider Coachwood's affirmative defenses. We agree and reverse.

This is a dispute between two neighboring landowners. Kironi owns and operates a commercial storage business, while Coachwood owns and operates a residential mobile home property. Coachwood is the adjacent upper landowner to Kironi's lower property. In its complaint, Kironi alleged that around June 2009, it discovered a washout on its property from the discharge of water, sand, and debris from the Coachwood property after heavy rain. Kironi argued that the discharge from the Coachwood property adversely affected its property due to increased water flow, constituted a continuing nuisance, and interfered with the use and enjoyment of its property. Kironi sought damages and permanent injunctive relief.

Coachwood filed its answer, denying the allegations and raising, among others, the affirmative defense of comparative negligence. Coachwood alleged that Kironi was careless and negligent in the development, construction, design, engineering, and maintenance of its premises, and that such carelessness and negligence was the sole proximate cause of its damages. Coachwood further alleged that the use of its property was reasonable and, therefore, Kironi was barred from recovery.

Extensive discovery revealed the following material and undisputed facts: Coachwood's stormwater drainage traveled across Kironi's property ending in Kironi's retention areas. The water carried with it sand and other debris and caused Kironi to spend time cleaning the washout material each time it occurred. At some point, Kironi placed two-by-twelve boards as well as grass seed, topsoil, sand bags, concrete blocks, and erosion control plants on its property to minimize the effects of the discharge.

After each side completed its discovery, competing motions for summary judgment were filed. Kironi's motion relied on the affidavit and deposition testimony of its expert, who concluded that Coachwood's use of its property, with respect to water diversion, was unreasonable. The expert made no attempt to analyze the reasonableness of Kironi's own attempts to control the water runoff across its property.

At the conclusion of the hearing, the trial court granted Kironi's motion for summary judgment, finding as a matter of law that the diversion of water from Coachwood's property to Kironi's was unreasonable. A final judgment was entered, granting Kironi permanent injunctive relief and ordering Coachwood to significantly re-engineer and reconstruct its stormwater system. However, the trial court failed to compare or analyze the conduct of each landowner, bypassing the factual analysis mandated under the "reasonable use" rule announced in Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So.2d 959, 963 (Fla. 1989) ("Use your property in such a manner as not to injure that of another.") (citations omitted).

As in this case, Westland involved two properties in which there was surface water naturally flowing from the higher elevation property to the lower elevation property. Id. at 959. A car dealership was built on the lower land and a skating center was built on the upper land. Id. During heavy rain fall, water traveled downward into the car dealership, which caused damage to the cars, notwithstanding the skating center's compliance with applicable building codes. Id. The dealership constructed an eight-foot-high, two-foot-deep wall to stop the flow of water from the higher land property. Id. Soon thereafter, the skating center began noticing that its wooden skating floor had significant water intrusion damage and that the floor was rising as surface water was accumulating behind the wall during heavy rainfall. Id. The skating center filed an action against the car dealership for damages and for a mandatory injunction to remove the wall, and obtained a partial summary judgment in its favor. Id. On review, the Florida Supreme Court held:

The principle that an upper landowner enjoys an easement across the lower tract for all naturally occurring surface water continues to apply to land in its natural state. However, when any party improves his land, thereby causing surface waters to damage his neighbor's property, the reasonable use rule shall be applied in order to settle the controversy. The rule applies not only in cases involving the conduct of the upper owner but also to improvements by the lower owner, such as the construction of dams designed to protect against the natural flow of surface waters across the lower land. Regardless of whether a counterclaim has been filed when both parties have made improvements, the reasonableness of the conduct of each will be in issue and may be compared in order to arrive at a fair determination.

Id. at 963 (citations omitted). The Westland court reversed the trial court's order granting partial summary judgment because the trial court failed to consider the reasonableness of the upland property owner's conduct. Id. at 964.

Like in Westland, here too, flooding occurred from the upland property to the lower property and the low land property owner attempted to divert the water by using various methods to stop the flow of discharge onto its property. Also as in Westland, the court in the instant case did not consider the reasonableness of the actions of both property owners, but instead relied heavily on the deposition of Kironi's expert witness. The expert witness never analyzed Kironi's own drainage system to see whether it was adequate, nor did it consider Kironi's actions in diverting water using cinder blocks, wood boards, or top soil outlined in its expert's report. Because the trial court failed to consider the reasonableness of Kironi's conduct, a material issue of fact remained, precluding summary judgment.

Coachwood also correctly argues that the trial court erred by not considering its affirmative defense of comparative negligence. The evidence Kironi relied on was wholly insufficient to disprove Coachwood's affirmative defense of comparative fault. At the summary judgment hearing, Kironi merely argued that the trial court must grant summary judgment because Coachwood did not have an expert to prove comparative negligence. Kironi had the burden of disproving Coachwood's affirmative defense or establishing its legal insufficiency. See Helping Hand Private Found., Inc. v. Ocean Palms Beach Club, Inc., 77 So.3d 896, 897 (Fla. 5th DCA 2012) (holding that where affirmative defenses are raised, the movant for summary judgment has the burden of either disproving them or establishing their legal insufficiency). It did neither, and for this reason as well, summary judgment was improperly entered.

REVERSED and REMANDED.

COHEN and GROSSHANS, JJ., concur.


text:
    Wayne Louis HUTSELL, Appellant, v. Ellen Davis HUTSELL, Appellee.
    No. 1D17-2124
    District Court of Appeal of Florida, First District.
    February 4, 2019
    Luke Newman, Luke Newman, P.A., Tallahassee, for Appellant.
    Ellen Davis Hutsell, pro se, Appellee.
   Per Curiam.

Wayne Louis Hutsell appeals the final judgment of injunction for protection against domestic violence entered against him under § 741.30, Florida Statutes (2016), based upon a petition filed by his former wife, Ellen Davis Hutsell. We reverse because the evidence presented at the hearing on the petition was legally insufficient to support the injunction.

For the trial court to issue an injunction for protection against domestic violence, the party seeking the injunction must establish that he or she has an objectively reasonable fear that he or she is in "imminent danger of becoming the victim of any act of domestic violence." § 741.30(1)(a), Fla. Stat.; see also Randolph v. Rich , 58 So.3d 290, 291 (Fla. 1st DCA 2011). In this case, the evidence supporting the injunction stems from Mr. Hutsell's e-mail address having been registered to the in-vehicle safety and security system account for Ms. Hutsell's truck. The OnStar® equipment and capability was factory installed on the truck he helped her purchase in 2014, and his e-mail address was on the account. Because the system's activation button in her truck had been engaged, Ms. Hutsell alleged that Mr. Hutsell could receive text and e-mail notifications by which he could monitor her truck's location, fuel and oil levels, air pressure of the tires, and even lock and unlock its doors. His apparent access to her truck's electronic data frightened Ms. Hutsell.

Ms. Hutsell's domestic violence case asserted that Mr. Hutsell had stalked her based on her belief that he was tracking her truck. The definition of domestic violence includes "stalking," § 741.28(2), Fla. Stat., which is defined in section 784.048(2) to encompass when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." Because records from the truck's safety/security system were not admitted into evidence, and we do not know whether Mr. Hutsell actually accessed, used, or misused the truck's electronic records, there was not a basis for finding following- or cyberstalking-based violations of this statute. Regarding harassment, Florida law defines "harass" in section 784.048(1)(a) to mean "engag[ing] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose."

Ms. Hutsell's evidence focused on two alleged incidents of harassment. By statutory definition, "stalking requires proof of repeated acts." Pickett v. Copeland , 236 So.3d 1142, 1144 (Fla. 1st DCA 2018) (quoting Lukacs v. Luton , 982 So.2d 1217, 1219 (Fla. 1st DCA 2008) ). Ms. Hutsell argued that the first incident occurred one Valentines' Day morning when Mr. Hutsell showed up at the same Tallahassee restaurant where Ms. Hutsell was eating with one of Mr. Hutsell's relatives. Mr. Hutsell entered the restaurant and sat down at a table. He did not speak or attempt any interaction with Ms. Hutsell. But she immediately left the restaurant when he arrived. Mr. Hutsell then ate and left the restaurant sometime later.

The second incident related to Ms. Hutsell's work. In a text-message conversation between the parties, Mr. Hutsell made comments that led Ms. Hutsell to believe that he was tracking her whereabouts at work. These comments related to her response to a specific police call that Ms. Hutsell made to a neighborhood in the course of her work (Ms. Hutsell works for the police department). Earlier in the text-message string, however, Ms. Hutsell had herself identified the location of the call to Mr. Hutsell before he had referred to it. Because Ms. Hutsell alluded to her location first, these text messages didn't tend to show that Mr. Hutsell gleaned her location information via her truck's electronic safety/security system.

After hearing the evidence, the trial court took the matter under advisement. It later issued a ruling granting the injunction that did not make specific findings. The final order included only a conclusory recitation from the form injunction order:

After hearing the testimony of each party present and of any witnesses, or upon consent of Respondent, the Court finds, based on the specific facts of this case, that Petitioner is a victim of domestic violence or has reasonable cause to believe that he/she is in imminent danger of becoming a victim of domestic violence by Respondent.

To receive an injunction, it was incumbent on Ms. Hutsell to prove her case with competent, substantial evidence. Pickett , 236 So.3d at 1146. Viewing the evidence in her favor, we cannot conclude that competent, substantial evidence supports the conclusion that she was either a victim of domestic violence arising from these incidents and the tracking allegations, or had reasonable cause to believe that she was in imminent danger of becoming a victim of domestic violence. For these reasons, we reverse the decision of the lower court and remove the injunction against Mr. Hutsell.

REVERSED.

Osterhaus and Jay, JJ., concur; Makar, J., concurs with opinion.

Makar, J., concurs.

I concur, but highlight that this is a case of evidentiary insufficiency, not legal sufficiency. Allegations that OnStar® tracking or other means of surveillance were used surreptitiously and unlawfully to stalk a victim state a viable legal theory for relief under the statute. Here, insufficient evidence was presented to prove this theory of stalking, raising only a suspicion of improper behavior. This case again highlights the importance of legal counsel because the movant acted pro se at trial and did not file a pro se answer brief on appeal. See Mitchell v. Brogden , 249 So.3d 781, 783 n.2 (Fla. 1st DCA 2018) (Makar, J., dissenting from denial of rehearing en banc).


text:
    Anthony Q. LIZZMORE, Husband, Appellant, v. Tonia E. LIZZMORE, Wife, Appellee.
    No. 1D17-1734
    District Court of Appeal of Florida, First District.
    February 4, 2019
    David P. Grigaltchik and Boris Galustov of Grigaltchik & Galustov, P.A., Jacksonville, for Appellant.
    Tonia Lizzmore, pro se, Appellee.
   Per Curiam.

Appellant challenges the lower court's final judgment of dissolution of marriage, arguing that the permanent periodic alimony award exceeded Appellant's ability to pay, and also exceeded Appellee's need and the amount requested by Appellee in her petition for dissolution.

In June 2015, following the parties' thirty-six year marriage, Appellee filed an amended petition for dissolution of marriage, requesting permanent periodic alimony of $ 1,000 per month, and the parties filed financial affidavits. Appellee's financial affidavit listed unemployment income of $ 1,100 per month and $ 1,614.82 in monthly expenses, resulting in a $ 514.82 deficit. Appellant's financial affidavit listed a net monthly income of $ 2,999.58 and monthly expenses of $ 5,937.36, which included $ 3,622.36 in household expenses, $ 792 in expenses for maintaining three automobiles, $ 202 for insurance, and $ 377 in miscellaneous expenses.

At the final hearing, Appellant testified that he was currently working forty hours per week and earning $ 13 per hour as a valet, and was also working part time and earning approximately $ 260 per month. He also received social security benefits of $ 1,501 per month, with his health insurance of $ 275 taken out of those benefits, and he maintained a 401(k) account. He testified that he was not paying the mortgage and property taxes listed as expenses on his financial affidavit due to the home's foreclosure.

Evidence was also presented that Appellee had been living with friends and family, but had just begun work after being unemployed for several years and was earning $ 1,900 per month, whereas in 2015 she had been receiving unemployment income of $ 1,100 per month. Appellee testified that her expenses had also increased in the two years since filing her financial affidavit.

The trial court found that Appellant earned $ 2,999.58 in net monthly income and that he had access to a 401(k) account and other assets. The court excluded $ 1,553 from Appellant's listed household expenses, as those amounts were in foreclosure and were not being paid. The court found that Appellee earned $ 1,764 per month but had monthly expenses of $ 1,694, including $ 729 in rent, $ 290 for a car payment, $ 200 in insurance, and a medical bill of $ 837. The court also noted that Appellee "appears to be in poor physical condition." The court concluded that Appellee had a need and Appellant had an ability to pay, and ordered Appellant to pay permanent periodic alimony in the amount of $ 1,250 per month.

Analysis

Appellant argues that the trial court abused its discretion, as the alimony award exceeded both Appellant's ability to pay and Appellee's need. We note that this was a marriage of thirty-six years, that Appellee was in poor physical condition and had minimal assets compared to Appellant, and that Appellant was earning more income per month. We therefore find that the trial court did not abuse its discretion in finding that Appellee had a need and Appellant had an ability to pay. See Gray v. Gray , 103 So.3d 962, 966 (Fla. 1st DCA 2012) ; Askegard v. Askegard , 584 So.2d 47, 50 (Fla. 1st DCA 1991) ; see also Herzog v. Herzog , 346 So.2d 56, 57 (Fla. 1977) (declaring that in divorce cases, it is not the function of the appellate court to re-evaluate the testimony and evidence).

Appellant also argues that the trial court erred in increasing Appellee's award to more than what was requested in her petition. We agree and modify the alimony award from $ 1,250 per month to $ 1,000 per month.

In Ward v. Ward , 364 So.2d 815, 817 (Fla. 3d DCA 1978), the husband did not attend the hearing, and the trial court awarded the wife $ 125 per week in permanent periodic alimony, despite the wife only requesting $ 100 per week in her pleading. On appeal, the Third District modified the award to $ 100 per week "because the husband had a right to rely on the claim in the pleading ... and there was no testimony before the chancellor requesting an amendment to the pleadings nor evidence which sought an amount in excess of that sought by the pleadings." Id. The Third District held:

This opinion is not to be construed as preventing a chancellor (when a party fails to show up for a duly noticed final hearing) from entering an award which may be greater than that sought in the pleadings, but under the circumstances of the instant case (where there was nothing in the evidence to justify the increase in the periodic alimony from that sought in the pleadings) we think the husband had a right to rely on the pleadings and it was error for the chancellor to increase this amount.

Id. ; cf. Viscito v. Viscito , 214 So.3d 736, 739 (Fla. 3d DCA 2017) (holding that the husband was "confined by his pleadings to a claim for permanent periodic alimony" and could not demand another form not prayed for in the pleadings).

Here, in her amended petition for dissolution, Appellee requested $ 1,000 in permanent periodic alimony, yet the Final Judgment awarded her an amount in excess of the requested amount. Although Appellant, unlike the husband in Ward , attended the final hearing and presented evidence on his behalf, Appellee never asked to amend her petition to seek a higher amount. She described having higher expenses, but she did not ask the court to award her anything greater than what she sought in her pleading, and she never suggested that $ 1,000 per month would not suffice. See Ward , 364 So.2d at 817.

Moreover, the evidence presented at the final hearing did not justify an award greater than that sought in the pleadings. Although Appellee began incurring higher expenses in the two years since she filed her financial affidavit, the trial court found that her monthly need at the time of dissolution was $ 1,694, an amount only $ 79.18 greater than the expenses she declared in 2015; however, her monthly net income had increased $ 664 since 2015. Appellee's changed circumstances therefore resulted in a net increase of $ 584.82 per month since the filing of the petition and financial affidavit. We hold that the trial court erred in awarding alimony in excess of what Appellee requested in her petition, as Appellee was in a better position than at the time she filed her pleadings.

Accordingly, we affirm the final judgment, but remand for the trial court to reduce the periodic alimony award provided in the final order from $ 1,250 per month to $ 1,000 per month.

AFFIRMED but REMANDED for modification.

B.L. Thomas, C.J., and Kelsey and Winokur, JJ., concur.


text:
    Benjamin MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3255
    District Court of Appeal of Florida, First District.
    February 4, 2019
    Benjamin Montgomery, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Benjamin Montgomery challenges the trial court's denial of his motion for postconviction relief. The trial court determined that Montgomery's motion was untimely, successive, and an abuse of process. We agree, and caution Montgomery that repetitive, malicious, or frivolous filings in this Court will result in sanctions such as a bar on pro se filing in this Court or referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See State v. Spencer , 751 So.2d 47 (Fla. 1999) ; § 944.279(1), Fla. Stat (2018).

AFFIRMED .

Rowe, Ray, and Osterhaus, JJ., concur.


text:
    Robert E. SWAN, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Certificate Trustee on Behalf of Bosco Credit II Trust Series 2010-1 and Doris F. Swan, Appellees.
    No. 1D18-3375
    District Court of Appeal of Florida, First District.
    February 4, 2019
    Robert E. Swan, pro se, Appellant.
    No appearance for Appellees.
   Per Curiam.

DISMISSED for lack of jurisdiction.

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


text:
    Edgar Jerome GIVENS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2917
    District Court of Appeal of Florida, First District.
    February 4, 2019
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We affirm this appeal in all regards, but remand for entry of a conformed order of revocation of probation. The revocation order found that the Appellant had violated condition (5) of his probation by committing the offenses of resisting an officer with violence and retail theft. This was in error as the lower tribunal only orally found a violation of condition (5) for resisting an officer with violence. Accordingly, this case is remanded for entry of a written order that conforms to the oral pronouncement of the lower tribunal. See Leggs v. State , 27 So.3d 155 (Fla. 1st DCA 2010) ; see also Baldwin v. State , 855 So.2d 1180 (Fla. 1st DCA 2003).

AFFIRMED in part and REMANDED in part for entry of a conformed order.

B.L. Thomas, C.J., and Roberts and Osterhaus, JJ., concur.


text:
    Michael ALFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2657
    District Court of Appeal of Florida, First District.
    February 4, 2019
    Michael Alford, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Kokal v. State , 901 So.2d 766, 777 (Fla. 2005) ("We have repeatedly held that claims of ineffective assistance of postconviction counsel are not cognizable.").

Rowe, Ray, and Osterhaus, JJ., concur.


text:
    Firuza SARAZIN, Appellant, v. Ratko John SARAZIN, Appellee.
    No. 1D17-5237
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Charles F. Beall, Jr., of Moore, Hill, & Westmoreland, P.A., Pensacola, and Nicole Kessler Ferry of Ferry & Ferry, P.A., Pensacola, for Appellant.
    Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.
   Per Curiam.

Firuza and Ratko Sarazin ended their fifteen-year marriage in 2017. They agreed about some aspects of the dissolution-the parenting plan for their two children, for example-but they turned to the court to resolve certain financial disagreements. The trial court entered a final judgment equitably distributing the marital assets, awarding the wife alimony and child support, and addressing the issue of attorney's fees. Firuza Sarazin (the wife) now appeals, raising several issues. We affirm in part and reverse in part.

I.

The wife first challenges the court's decision to exclude from the equitable distribution analysis $80,000 the husband sent his parents in Croatia shortly before she petitioned for dissolution. The court found marital assets of approximately $360,000 and essentially no marital debt. But the total available for distribution would have been approximately $440,000 had the husband not sent his parents $80,000, and the wife argues that the $440,000 should have been the starting point. The husband testified he gave his parents the money to help with their home and that the wife was fully on board with it and approved the gift. The wife testified that she never approved it, and the trial court rejected the husband's contrary testimony. The trial court found, though, that the husband was unaware of the imminent dissolution. The marriage had been struggling for a while, and the wife had long threatened divorce, but the husband testified he was nonetheless blindsided, not believing any filing was imminent.

We review a trial court's equitable distribution ruling only for an abuse of discretion. Stough v. Stough , 18 So.3d 601, 604 (Fla. 1st DCA 2009). Under section 61.075(1)(i), Florida Statutes, courts must consider "intentional dissipation ... of marital assets" in deciding whether to depart from "the premise that the distribution should be equal." Here, the trial court explicitly concluded that the husband's $80,000 transfer to his parents did not constitute "intentional dissipation of marital assets," and we cannot conclude otherwise. The wife argues that the trial court erred by relying solely on its finding that the husband was unaware that a dissolution petition was imminent when he transferred the money. The wife argues that the correct inquiry is not whether a filing was imminent but whether the transfer came "at a time when the marriage is undergoing an irreconcilable breakdown." Walker v. Walker , 85 So.3d 553, 555 (Fla. 1st DCA 2012) (quoting Belford v. Belford , 51 So.3d 1259, 1260-61 (Fla. 2d DCA 2011) ). But it is not clear that the trial court based its decision solely on when the husband learned of his wife's intentions-or that it found an "irreconcilable breakdown" existed at the time of the transfer. Indeed, the husband had testified he was trying to work things out with his wife. Moreover, the trial court could not have distributed the $80,000 without an explicit finding of the husband's misconduct, see Jones v. Jones , 239 So.3d 211, 212-13 (Fla. 1st DCA 2018), and the court made no such finding. "As a general rule, expenditures and investment decisions which do not rise to the level of misconduct will not support an unequal distribution of marital assets." Branch v. Branch , 775 So.2d 406, 407 (Fla. 1st DCA 2000). Perhaps this record could have supported such a finding, but we cannot say the trial court was obligated to make a finding of misconduct. Cf. Spence v. Spence , 669 So.2d 1110, 1111 (Fla. 1st DCA 1996) (finding misconduct where "[t]here is competent, substantial evidence in the record to support the trial court's finding that Former Wife, in effect, deceived Former Husband into the transfer"). We therefore affirm the court's decision to exclude the transfer from the equitable distribution.

II.

Next, the wife argues that the trial court erred by considering gifts from her family in determining the alimony award. The wife's mother and brothers regularly gave her substantial gifts, and the trial court found that these gifts were likely to continue after the marriage ended. The court allocated $4,261 per month in income, reflecting the anticipated future gifts based on what the family had given her in the past-nearly $470,000 over the past decade or so. The wife now argues that there was no evidence to show that these gifts would continue.

We must reverse. This court has held that "[g]ifts which have not yet been received are purely speculative in nature, mere expectancies, and as such are not properly included in the calculation of income for purposes of determining the need for, or the ability to provide, support." Shiveley v. Shiveley , 635 So.2d 1021, 1022 (Fla. 1st DCA 1994) (noting "[w]e are also required to reverse the decision of the trial court to impute income to [former wife] based upon past gifts from her parents"); accord Bedell v. Bedell , 583 So.2d 1005, 1008 (Fla. 1991) ("We reject the husband's contention that the wife does not really need more alimony because her mother is assisting in her support. For the purpose of demonstrating need in dissolution or modification proceedings, the fact that one of the parties is surviving through the largess of her family is legally irrelevant."); Gardner v. Gardner , 692 So.2d 245, 245-46 (Fla. 1st DCA 1997) ("The trial court abused its discretion in failing to award alimony based on the monetary gifts appellee's parents had given in the past but were under no obligation to give in the future."). The wife testified her family helped her when she had needs, and it may be logical to conclude-as the trial court did-that her family would continue to help her when she had post-marriage needs. But our precedent does not allow such a conclusion to affect alimony determinations. On remand, the court should not consider family gifts in determining alimony.

III.

Last, the wife argues that the trial court abused its discretion by refusing to award her attorney's fees. The trial court denied her request for fees, finding "it is not appropriate to order the Husband to pay the Wife's attorney's fees that have already been paid by her family due to the lack of proof that she needs to repay them." The wife argues this was error, citing Burrill v. Burrill , 701 So.2d 354 (Fla. 1st DCA 1997). In Burrill , this court held that "[i]n assessing whether a fee award is appropriate, the court must 'determine the parties' financial ability to pay fees based only upon the financial resources of the parties and not to financial assistance of family or friends.' " Id. at 356 (quoting Bromante v. Bromante , 577 So.2d 662, 662 (Fla. 1st DCA 1991) ). But the denial in Burrill "was predicated on a finding that both parties borrowed money from their parents to pay their attorney's fees and costs." Id. Here, the court found that the wife's fees were paid by her family, that she had no obligation to repay, and that she therefore had no financial need relating to fees. See Burnett v. Burnett , 237 So.3d 447, 450 (Fla. 1st DCA 2018) ("The primary considerations for an award of attorney's fees under section 61.16, Florida Statutes, are the party's need and the other party's ability to pay."); Abbott v. Abbott , 187 So.3d 326, 329 (Fla. 1st DCA 2016) ("An order to pay a portion of the spouse's attorney's fees must be based on the requesting party's need and the other party's ability to pay the fees."). We cannot conclude that the trial court's finding regarding the wife's lack of need was not supported by competent, substantial evidence. The wife did not need assistance from her former husband to secure quality counsel. See Abbott , 187 So.3d at 328 ("[T]he purpose of section 61.16 is to ensure that both parties will have a similar ability to obtain competent legal counsel." (marks omitted) ). We therefore affirm the denial of fees.

AFFIRMED in part; REVERSED in part.

Roberts, Ray, and Winsor, JJ., concur.

      The wife testified below that her family's payments were not gifts, but loans she would have to repay. The court rejected this testimony, finding no repayment obligation. The wife has not challenged this fact-finding on appeal, so we will consider the payments gifts.

      The wife separately challenges the child-support calculations, again arguing that the court wrongly considered her family gifts. We reverse the child-support calculation for the same reason we reverse the alimony calculation. On remand the trial court should recalculate child support without considering any anticipated gifts from the wife's family.


author: Winsor, J.

text:
    Shamar Lavone MCCULLUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3928
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Shamar Lavone McCullum, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee for Appellee.
   Winsor, J.

Shamar McCullum appeals the denial of his motion to correct illegal sentence. We affirm.

In 2006, McCullum pleaded guilty to armed robbery and attempted second-degree murder. The court sentenced McCullum-a juvenile at the time of the crime-to concurrent terms of life imprisonment without the possibility of parole. McCullum appealed his sentence, and this court affirmed without opinion. McCullum v. State , 41 So.3d 896 (Fla. 1st DCA 2010) (table).

Later, McCullum filed a motion under Florida Rule of Criminal Procedure 3.800(a), arguing his life sentences were unconstitutional under Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The trial court denied the motion, but this court reversed and remanded for resentencing. McCullum v. State , 60 So.3d 502 (Fla. 1st DCA 2011). On resentencing, McCullum got concurrent fifty-year sentences, and he again appealed. While that appeal was pending, McCullum was resentenced yet again (on an unrelated basis), receiving the sentence he is currently serving: fifty years for armed robbery and twenty-five years (concurrent) for attempted second-degree murder.

In 2015, this court affirmed McCullum's current sentences. McCullum v. State , 173 So.3d 1056 (Fla. 1st DCA 2015). McCullum had argued that his sentence still violated Graham because it precluded any possibility of release for fifty years. He also argued that he should be eligible for sentence review under section 921.1402-Florida's post- Graham juvenile sentencing statute. He acknowledged that the statute said it would apply prospectively only and that it was enacted after his crime. But he nonetheless argued the statutory process should apply to his sentence.

This court affirmed through a citation PCA. McCullum , 173 So.3d at 1056. We cited two cases: Abrakata v. State , 168 So.3d 251 (Fla. 1st DCA 2015) and Thomas v. State , 78 So.3d 644 (Fla. 1st DCA 2011). Id. The first case ( Abrakata ) held that "absent a violation of Graham , there is no legal basis to retroactively apply section 921.1402." 168 So.3d at 252. The second case ( Thomas ) concluded that a fifty-year sentence was not a life sentence under Graham . 78 So.3d at 646-47.

More than a year after we affirmed McCullum's sentences, the Florida Supreme Court decided Kelsey v. State , 206 So.3d 5 (Fla. 2016). The court held that for "a narrow class of juvenile offenders, those resentenced from life to term-of-years sentences after Graham , for crimes committed before [section 921.1402]'s July 1, 2014, effective date," resentencing is appropriate. Id. at 11. Before Kelsey , McCullum had petitioned the Florida Supreme Court for review of our decision in his case. After the supreme court decided Kelsey , it denied McCullum's petition. McCullum v. State , SC15-1770, 2017 WL 24756, at *1 (Fla. Jan. 3, 2017). Two Justices dissented, citing Kelsey and other cases and concluding that this court's decision conflicted with supreme court precedent and that McCullum was entitled to another resentencing.

After all of that, McCullum filed another motion to correct illegal sentence. Again, McCullum argues that he is entitled to resentencing under Graham , and he now further argues that he is entitled to relief under Kelsey . But the law-of-the-case doctrine precludes our readdressing issues McCullum already pursued unsuccessfully, including his argument about Kelsey . See State v. McBride , 848 So.2d 287, 290-91 (Fla. 2003) (explaining law-of-case doctrine). We find that the law-of-the-case's manifest-injustice exception is inapplicable here, so we affirm.

AFFIRMED .

Roberts and Ray, JJ., concur.


text:
    Naim STEWART, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D16-3644 1D16-3646
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Candice K. Brower, Criminal Conflict & Civil Regional Counsel, Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In these Anders appeals, we affirm the orders revoking Appellant's probation and imposing sentence. However, we remand for correction of the written orders of revocation to specify the conditions Appellant was found to have violated. See Davis v. State , 218 So.3d 507 (Fla. 1st DCA 2017) (affirming revocation of probation in Anders appeal but remanding for court to enter written revocation order specifying conditions of probation violated). Appellant need not be present. See Williams v. State , 145 So.3d 984 (Fla. 1st DCA 2014).

AFFIRMED and REMANDED .

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

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Jonathan RAHMING, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D18-4840
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Jonathan Rahming, pro se, Petitioner.
    Rana Wallace, General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

Because Petitioner has not shown irreparable harm, we dismiss the petition for writ of certiorari for lack of jurisdiction. See Bailey v. State , 245 So.3d 1015 (Fla. 1st DCA 2018).

Wolf, Lewis, and Wetherell, JJ., concur.


text:
    Robert ULM, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D18-4792
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Robert Ulm, pro se, Petitioner.
    Rana Wallace, General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

Because Petitioner has not shown irreparable harm, we dismiss the petition for writ of certiorari for lack of jurisdiction.

See Bailey v. State , 245 So.3d 1015 (Fla. 1st DCA 2018).

Wolf, Lewis, and Wetherell, JJ., concur.


text:
    Henry James LAGI, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4681
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Henry James Lagi, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of an order denying his motion for psychological evaluation. The order on appeal is not within the scope of Florida Rule of Appellate Procedure 9.140(b), which lists the types of orders a criminal defendant may appeal. Accordingly, the appeal is dismissed for lack of jurisdiction.

Wolf, Lewis, and Wetherell, JJ., concur.