text:
    R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA Inc., Petitioners, v. Guy CUDDIHEE, as Personal Representative of the Estate of Gil Cuddihee, Deceased, Respondent.
    No. 1D19-0385
    District Court of Appeal of Florida, First District.
    May 6, 2019
    Jason T. Burnette, Stephanie E. Parker, John M. Walker, and Edward M. Carter of Jones Day, Atlanta, and Charles R.A. Morse, Jones Day, New York, NY, for Petitioner R.J. Reynolds Tobacco Company; Laura Whitmore of Shook, Hardy & Bacon, L.L.P., Tampa, and J. Daniel Gardner of Shook, Hardy & Bacon, L.L.P, Miami, for Petitioner Philip Morris USA, Inc.
    David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Sarasota, for Respondent.
   Per Curiam.

R.J. Reynolds Tobacco Company and Philip Morris USA, Inc. seek a writ of prohibition following an order denying their motion to disqualify the trial judge from presiding over an Engle progeny trial. Because the motion to disqualify was legally sufficient, we grant the petition.

A party may move to disqualify a trial judge when the "party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge." Fla. R. Jud. Admin. 2.330(d)(1). The trial court reviews a motion to disqualify only for legal sufficiency and may not pass on whether the allegations of fact are true. Fla. R. Jud. Admin. 2.330(f). A legally sufficient motion must allege facts that "would place a reasonably prudent person in fear of not receiving a fair and impartial trial." Livingston v. State , 441 So. 2d 1083, 1087 (Fla. 1983).

In support of their unopposed motion to disqualify, Petitioners alleged the following facts concerning the trial judge's involvement in Engle progeny cases brought against Petitioners and/or their predecessors in interest:

• From as early as 2008 until 2016, before his appointment to the circuit court in 2017, he appeared as counsel of record for plaintiffs in nineteen cases where Petitioners were defendants;
• He served as trial counsel for plaintiffs in five of those cases;
• In one of the cases in which he served as trial counsel, he served as co-counsel with the Wilner firm, a firm representing the Respondent here;
• In one of the cases in which he served as trial counsel, the jury returned a $ 17 million verdict, including $ 11 million in punitive damages; and,
• He deposed five corporate representatives of tobacco companies (including representatives of Petitioners and/or their predecessors in interest) for use in Engle progeny trials in Duval County. Given the applicable procedures in Duval County Engle litigation, this raises the possibility that a jury could hear from the trial judge as both presiding judge and an examining lawyer.

The alleged facts, which we must take as true, demonstrate the trial judge's recent and extensive involvement in Engle progeny actions against Petitioners and/or their successors, including his role in developing evidence for use in Duval County Engle trials like the one here. We do not determine that the facts alleged in the motion to disqualify individually require disqualification, but viewed collectively, the facts alleged are legally sufficient to create a well-founded fear that Petitioners would not receive a fair and impartial trial. See Fla. R. Jud. Admin. 2.330(d) ; Port Everglades Pilots Ass'n v. Florida-Caribbean Cruise Ass'n , 170 So. 3d 952, 955 (Fla. 1st DCA 2015). We, therefore, grant the petition, but withhold formal issuance of the writ, confident that the judge will promptly issue an order of disqualification. We quash the order denying the motion to disqualify, and remand to the circuit court with directions that a new judge be assigned to preside over the case.

Rowe, Osterhaus, and Winokur, JJ., concur.

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

      Respondents did not oppose the motion to disqualify, but in their response to the petition for the writ of prohibition, argue that disqualification was not required.


source: Caselaw Access Project

author: Rowe, J.

license: Public Domain

text:
    Vonceil BRADFORD, Appellant, v. FLORIDA A & M UNIVERSITY BOARD OF TRUSTEES, Appellee.
    No. 1D18-4209
    District Court of Appeal of Florida, First District.
    May 6, 2019
    Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Appellant.
    Shira Thomas, Interim General Counsel; Angelique D.K. Hutchins and Ana M. Gargollo-McDonald, Associate General Counsel, Florida A & M University, Tallahassee, for Appellee.
   Rowe, J.

Vonceil Bradford is a student at the College of Pharmacy and Pharmaceutical Sciences at Florida Agricultural & Mechanical University. She filed a whistleblower complaint with the Florida Commission on Human Relations, alleging retaliation by certain FAMU professors after she lodged complaints against them regarding their grading practices and concerning their treatment of her. The Commission notified Bradford that her complaint was insufficient to trigger a whistleblower investigation and that she had the right to amend the complaint. Bradford did not amend, and the Commission dismissed the complaint. We affirm.

The purpose of Florida's public employee whistleblower statute is to "prevent agencies or independent contractors from taking retaliatory action against an employee who reports to an appropriate agency violations of law on the part of a public employer or independent contractor that create a substantial and specific danger to the public's health, safety, or welfare." § 112.3187(2), Fla. Stat. (2018) (emphasis added); see also Kogan v. Israel , 211 So.3d 101, 106 (Fla. 4th DCA 2017) ; Igwe v. City of Miami , 208 So.3d 150, 153 (Fla. 3d DCA 2016) ; Tillery v. Florida Dep't of Juvenile Justice , 104 So.3d 1253, 1254 (Fla. 1st DCA 2013). The statute defines an employee as a "person who performs services for, and under the control and direction of, or contracts with, an agency or independent contractor for wages or other remuneration." § 112.3187(3)(b), Fla. Stat. (2018). And it prohibits an agency from dismissing, disciplining, or taking any other adverse personnel action against an employee. § 112.3187(4), Fla. Stat. (2018).

The Commission dismissed the complaint because Bradford failed to allege any retaliatory action taken against her. This dismissal was proper. Bradford alleged that her professors prohibited her from attending classes and subjected her to a different grading standard and a hostile classroom environment. But none of these actions were "adverse personnel actions" within the meaning of the whistleblower statute. § 112.3187(4), Fla. Stat. (2018). Further, although FAMU is a public employer, Bradford did not allege that she was an employee of FAMU. She never alleged that she performed any service for the university or that she received wages or other remuneration from the university. Because Bradford failed to allege any employment relationship with FAMU and failed to allege any retaliatory personnel action, the Commission properly dismissed the complaint.

AFFIRMED .

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


author: M.K. Thomas, J.

text:
    Linda Byrd GOLEY, Appellant, v. Robert Anthony GOLEY, Appellee.
    No. 1D18-9
    District Court of Appeal of Florida, First District.
    May 6, 2019
    Lucas J. Taylor of Sellers, Taylor & Morrison, P.A., Live Oak, for Appellant.
    Thomas J. Schulte of Ausley McMullen, Tallahassee, for Appellee.
   M.K. Thomas, J.

Linda Goley, the former wife, appeals the trial court's award of an equity interest and claim in certain property and using the property interest as an offset against her claims for alimony and attorney's fees. Although the trial court erred in regarding the property as a marital asset, we affirm because the award is otherwise supported by the evidence.

I. Facts

The parties were married for twenty-one years before initiating dissolution proceedings. At the final dissolution hearing, both parties testified about marital assets and a property located in Ponce de Leon, Florida. The property is a 120-acre tract bordering land owned by the former wife's parents. The parties testified that they purchased the property with the parents. Specifically, the parents made a lump sum down payment of $15,000 and took out a loan on the property. The property was titled in the parents' names. The oral agreement, which was never committed to writing, entailed the parties making all payments on the property loan. Once the loan was paid off, the parents were to transfer title to half of the property to the parties. The parties made $45,000 in loan payments, and the loan was paid off in 2008. The former wife then requested that her parents transfer title as promised. However, the former wife's father refused. No lawsuit has been initiated to recover the payments or pursue title to the property.

The former husband claims the property is now worth $240,000. At the dissolution hearing, the former husband stated he would expect the property to be offset by any money owed to the parents. The former wife objected to consideration of the property as the trial court lacked jurisdiction to determine ownership because her parents were not parties to the dissolution action and were not called as witnesses. The former husband requested that the trial court consider the property a marital asset and contemplate its value for offset.

The trial court entered a final judgment, finding justification for an unequal division of the marital assets and liabilities based on the length of the parties' marriage and overall necessity to do equity between the parties. The trial court noted the former wife was receiving more of the assets regarding the parties' vehicles and further unequal division of the marital assets and debts in consideration of her claims for alimony, fees, and expenses.

Relevant to the issue on appeal, the trial court considered the property in Ponce de Leon a marital asset and determined the parties had an "equitable interest and a claim" in the property against the parents. The trial court assessed a value of $45,000 to the property and awarded the equity interest and claim on the property to the former wife. The trial court noted the unequal distribution of this asset was also made in consideration of the former wife's claim for alimony and payment of her attorney's fees and costs.

After discussion of the statutory factors and decision to perform an unequal distribution of marital assets and liabilities, the trial court awarded the former wife alimony and directed each party to pay his or her own attorney's fees and costs. The former wife now appeals the trial court's award to her of the equity interest and claim to the Ponce de Leon property and that the award also resulted in a reduction in her alimony and a denial of payment of her attorney's fees.

II. Analysis

" Section 61.075(1), Florida Statutes, 'requires that the trial court distribute marital assets and liabilities between the parties beginning with the premise that an equal distribution should occur.' " Hardee v. Hardee , 929 So. 2d 714, 715-16 (Fla. 1st DCA 2006) (quoting Hoirup v. Hoirup, 862 So. 2d 780, 782 (Fla. 2d DCA 2003) ). The trial court "may make an unequal distribution of assets, provided the court supplies a specific finding of fact to justify its unequal distribution." Id. ; see also § 61.075(1), Fla. Stat. But, the court should "ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be 'shortchanged.' " Canakaris v. Canakaris, 382 So. 2d 1197, 1204 (Fla. 1980). A trial court's equitable distribution scheme will be upheld absent an abuse of discretion. Winder v. Winder , 152 So. 3d 836, 838 (Fla. 1st DCA 2014).

The former wife contends the distribution award is improper because: (1) the Ponce de Leon property is not a marital asset; (2) neither party filed a claim against her father, thus, the father was never a party to the dissolution proceedings; and (3) as the parties do not have legal title to the property, the equity interest and claim in the property is an illusory asset. See Sandstrom v. Sandstrom , 617 So. 2d 327, 328 (Fla. 4th DCA 1993). We agree.

In the final judgment, the trial court found:

The Wife's father has refused to add the parties' names to the land title, despite the Wife's requests. While the parties do not have record legal title to the property, it appears that they do have an equitable interest and claim in the property against the Wife's parents which can be enforced in equity, and which is a marital asset.

The trial court erred in finding the Ponce de Leon property a marital asset and that the parties had an equity interest and claim to it. This award is illusory because the former wife has no right to participate in the future appreciation and may never even receive the property as the father, at least to date, has refused to transfer title. See Hicks v. Hicks , 580 So. 2d 876, 878 (Fla. 2d DCA 1991) ; Huttig v. Huttig, 530 So. 2d 1051 (Fla. 3d DCA 1988). It is, thus, apparent that the trial court awarded the former wife an asset "that was not in existence." Hoirup , 862 So. 2d at 782. Furthermore, the issue of property ownership or interest therein was not properly before the trial court as the property owners, the parents, were not parties to the litigation. See Couture v. Couture , 307 So. 2d 194, 194 (Fla. 3d DCA 1975). The trial court abused its discretion in finding an equitable interest existed at the time of dissolution, and there is no evidence it is likely to materialize in the future.

Nevertheless, we affirm the final judgment as it is otherwise supported by evidence, and the final judgment contains sufficient specificity to outline the trial court's intent in the equitable distribution scheme. See Maddox v. Maddox , 750 So. 2d 693 (Fla. 1st DCA 2000).

At the final hearing, the former wife presented evidence relating to her claim for permanent alimony. The two primary elements to be considered in an award of permanent alimony are the needs of the receiving spouse and the ability of the other spouse to provide the funds. See Canakaris , 382 So. 2d at 1201-02. The ability to pay alimony must be based on the party's net income. Conlin v. Conlin , 212 So. 3d 487, 489 (Fla. 2d DCA 2017). Here, the trial judge made detailed findings regarding the net income of both parties. These findings are not challenged on appeal. The trial judge found that the net incomes were similar and that the former husband did not have the ability to pay the former wife the $1,500.00 per month alimony she was seeking. The trial judge explained his calculation for awarding $500.00 per month in permanent alimony. Based on the uncontested evidence in the record, the former husband does not have the ability to pay the former wife more in alimony or to pay her attorney's fees, regardless of whether the property at issue was considered.

The uncontested findings of the trial court regarding the income of the parties demonstrate that the Ponce de Leon property did not affect the ultimate alimony award or the denial of attorney's fees. Accordingly, we find the trial court's error regarding the property harmless.

AFFIRMED .

Wetherell and Bilbrey, JJ., concur.

      Former Wife argues there is no viable cause of action against her father to force transfer of title pursuant to the statutes of fraud and limitations. See § 95.11, Fla. Stat.


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

text:
    Loren D. KING, II, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D17-4433
    District Court of Appeal of Florida, First District.
    May 6, 2019
    Loren D. King, II, pro se, Appellant.
    Christine E. Lamia, Chief Appellate Counsel, Katelyn R. Boswell, Assistant General Counsel, Florida Department of Health, Tallahassee, for Appellee.
    OPINION ON MOTION FOR WRITTEN OPINION
   B.L. Thomas, C.J.

We have before us Appellant's motion for written opinion. We grant Appellant's motion and, accordingly, withdraw our former opinion of March 1, 2019, and substitute this opinion in its place.

Appellant, a registered nurse, challenges the Board of Nursing's (the "Board") final order suspending his nursing license.

On April 17, 2017, the Department of Health (the "Department") filed an administrative complaint alleging that Appellant tested positive for marijuana on a confirmed preemployment drug screen, that Appellant did not provide a lawful prescription for marijuana, and that Appellant did not have a legitimate medical reason for using marijuana.

Appellant opted for an informal hearing on the administrative complaint conducted pursuant to section 120.57(2), Florida Statutes, stating that he did not dispute the allegations of material fact in the complaint.

At the hearing before the Board, Appellant stated that "I got a marijuana card coming," and counsel for the Department noted that in October 2015, the time of Appellant's drug screen, medical marijuana was not available in Florida, and did not become available until August 2016. At the hearing, Appellant stated, "It's my fault. I did something illegal and I'm sorry for it."

On September 21, 2017, the Board issued a final order adopting the findings of fact set forth in the administrative complaint and suspending Appellant's nursing license until he undergoes evaluation coordinated by the Intervention Project for Nurses ("IPN") and complies with any terms and conditions imposed by IPN.

"[A] reviewing court may set aside agency action only when it finds that the action is dependent on findings of fact that are not supported by substantial competent evidence in the record, material errors in procedure, incorrect interpretations of law, or an abuse of discretion." Henderson v. Dep't of Health, Bd. of Nursing , 954 So.2d 77, 81 (Fla. 5th DCA 2007) (quoting Malave v. Dep't of Health, Bd. of Med., 881 So.2d 682, 683 (Fla. 5th DCA 2004) ).

Section 456.072(1)(aa), Florida Statutes, provides that "[t]esting positive for any drug ... on any confirmed preemployment or employer-ordered drug screening when the practitioner does not have a lawful prescription and legitimate medical reason for using the drug" is grounds for discipline for a healthcare professional.

Section 456.072(2), Florida Statutes, states that, if a board finds that a person has violated subsection (1), it may enter an order suspending the person's license or restricting the license as "necessary for the protection of the public health, safety, and welfare."

Appellant did not dispute the facts alleged in the Department's administrative complaint, including the allegations that he "tested positive for marijuana on a confirmed preemployment drug screen," that he "did not provide a lawful prescription for marijuana" and "did not have a legitimate medical reason for using marijuana." At the hearing, and in his initial brief, Appellant did not contest that marijuana was in his system during the drug screen.

Appellant stated at the hearing that he would have a "marijuana card" at some point in the future, but never disputed the Department's allegation that he did not have a lawful prescription for marijuana or a legitimate medical reason for using marijuana at the time of the drug screen.

Competent, substantial evidence, in the form of the undisputed allegations in the Department's administrative complaint, support the finding that Appellant violated section 456.072(1)(aa), Florida Statutes. Section 456.072(2) allows the suspension imposed on Appellant if a board finds that Appellant violated section 456.072(1)(aa), Florida Statutes. The Board correctly interpreted section 456.072 and did not abuse its discretion in suspending Appellant's license until he is evaluated by IPN.

AFFIRMED .

Kelsey and Winokur, JJ., concur.


author: Winsor, J.

text:
    Henry SEGURA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-520
    District Court of Appeal of Florida, First District.
    May 6, 2019
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Ashley Moody, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Respondent.
   Winsor, J.

Petitioner Henry Segura was charged with four counts of first-degree murder. Segura's defense was that another person committed the murders, and at trial, he sought to introduce evidence that another man in fact confessed. The trial court excluded this evidence, and the trial ended with a hung jury and a mistrial. Because the same evidentiary issue will arise in Segura's next trial, Segura now seeks a writ of certiorari, essentially asking this court to direct the trial court to allow evidence about the purported confession.

We lack jurisdiction to grant the requested relief. Before we can issue a writ of certiorari, we must find that the petitioner will otherwise suffer irreparable harm. Jaye v. Royal Saxon, Inc. , 720 So.2d 214, 215 (Fla. 1998). Absent such a finding, we lack jurisdiction and must dismiss. Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc. , 104 So.3d 344, 351 (Fla. 2012). Here, the asserted harm is not irreparable. If a trial court erroneously admits or excludes evidence in a criminal trial, that error can be corrected on direct appeal. Indeed, in State v. Pettis , in which the Florida Supreme Court recognized that the State can seek certiorari relief because the State cannot seek review of a judgment of acquittal, the Court noted that "[t]he defendant does not suffer the same prejudice because he always has the right of appeal from a conviction in which he can attack any erroneous interlocutory orders." 520 So.2d 250, 253 & n.2 (Fla. 1988) ; see also Earnest v. State , 253 So.2d 458, 459 (Fla. 1st DCA 1971) (rejecting certiorari relief from pretrial evidentiary ruling because "[p]etitioner has not demonstrated that he will be denied a full, adequate and complete remedy by appeal after final judgment").

Segura argues that the general rule is inapplicable here based on his unique circumstances. He notes that he has been incarcerated since 2011 awaiting his first (and now second) trials. He contends that with the disputed evidence he would be acquitted and that without it he will likely face another mistrial. And he relies on Outdoor Resorts at Orlando, Inc. v. Hotz Management Company, Inc. , 483 So.2d 2 (Fla. 2d DCA 1985), to argue we should apply a balancing-of-the-harms test. In that case, the court "acknowledge[d] that normally the petitioner, were it not to [prevail at] trial, would be able to raise in a plenary appeal the question" at issue, but the court applied "a balancing of interests" and granted relief based on "the severity of the burden the petitioner would be required to meet if the question ... were to await the appeal stage." Id. at 3-4.

Segura's circumstances are indeed unusual, but none grants us jurisdiction for the pre-trial review of disputed evidentiary issues. Neither pretrial detention nor the possibility of another mistrial constitutes the type of irreparable harm necessary to support certiorari jurisdiction. Cf. Jaye , 720 So.2d at 215 (rejecting as insufficient harms "the time, effort, and expense of trying a case twice" among others). Any error in the exclusion of the disputed evidence is remediable on direct appeal, so under binding precedent, we lack jurisdiction and must dismiss the petition.

DISMISSED .

Roberts and Kelsey, JJ., concur.


author: EDWARDS, J.

text:
    Widaey DINNALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3497
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

Appellant, as a juvenile, pled no contest to attempted second-degree murder with a firearm. He is serving a twenty-five-year term of incarceration with a twenty-five-year firearm minimum mandatory coupled with a review hearing that will take place after twenty years. We affirm the postconviction court's summary denial of Appellant's Florida Rule of Criminal Procedure 3.800(a) motion. Contrary to Appellant's arguments, we have held and continue to hold that juveniles may permissibly be sentenced to mandatory minimum terms of imprisonment under these circumstances. See Montgomery v. State , 230 So. 3d 1256, 1263 (Fla. 5th DCA 2017).

AFFIRMED.

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


author: Per Curiam.

text:
    Joshua Troy DOOLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2455
    District Court of Appeal of Florida, First District.
    May 6, 2019
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The State properly concedes that the trial court lacked jurisdiction in this case to revoke Appellant's probation and resentence him because he had already served the statutory maximum time on probation before the filing of the probation violation affidavit. Tate v. State , 191 So.3d 535 (Fla. 1st DCA 2016). Accordingly, we reverse and remand with directions to discharge Appellant in Escambia County circuit court case number 2008-CF-006266-B. Id.

REVERSED and REMANDED with directions.

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


author: EVANDER, C.J.,

text:
    Brian K. MCKENZIE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2206
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    Terrence E. Kehoe, of Law Office of Terrence E. Kehoe, Orlando, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, C.J.,

Brian K. McKenzie appeals an order designating him as a sexual predator under section 775.21, Florida Statutes (2018). The order was entered after McKenzie had completed his sentence. We conclude that the trial court lacked jurisdiction to enter the order and, accordingly, reverse. In doing so, we certify conflict with Cuevas v. State , 31 So.3d 290 (Fla. 3d DCA 2010).

On October 28, 2009, McKenzie entered a nolo contendere plea to one count of engaging in sexual activity with a child while in a position of familial or custodial authority, in violation of section 794.011(8)(b), Florida Statutes (2009). Pursuant to a negotiated plea agreement, McKenzie was sentenced to six months' incarceration, followed by three years of sex offender community control, followed by two years of sex offender probation. The trial court further found that McKenzie qualified as a sex offender. Neither party appealed the judgment and sentence.

McKenzie served his jail time and successfully completed his community control and probation. The sentence was completed in April 2015, and McKenzie was notified by the Department of Corrections that he was no longer under supervision.

Three years later, the State filed a notice with the trial court, requesting that McKenzie be designated a sexual predator. After a hearing, and over McKenzie's objection, the trial court entered an order designating McKenzie a sexual predator and ordering him to comply with the registration requirements set forth in section 775.21, Florida Statutes (2018). At the time the trial court entered its order, Cuevas was the only Florida appellate court opinion directly addressing the issue of whether a sexual predator designation order may be entered after a defendant has completed his sentence. The trial court appropriately relied on Cuevas in entering its order. See Pardo v. State , 596 So.2d 665, 666 (Fla. 1992) ("The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision." (quoting State v. Hayes , 333 So.2d 51, 53 (Fla. 4th DCA 1976) )); see also Nader v. Fla. Dep't of High. Saf. & Motor Veh. , 87 So.3d 712, 724 (Fla. 2012) ("[T]here is a judicially imposed requirement that a circuit court must abide by precedent from another district court of appeal if no precedent exists from its own district.").

Section 775.21(4)(a), Florida Statutes, provides that a sexual offender who qualifies as a sexual predator "shall be designated as a 'sexual predator' ... and subject to registration ... and community and public notification." This provision means "that the trial court has no discretion to do otherwise." Kelly v. State , 795 So.2d 135, 136 (Fla. 5th DCA 2001). Furthermore, "the designation is neither a sentence nor a punishment." Id. at 138. Although section 775.21(5)(a) 2. contemplates that the trial court will designate a defendant as a sexual predator at sentencing, the designation may be entered after sentencing, but while the sentence is being served. See Almond v. State , 89 So.3d 1056, 1058 (Fla. 2d DCA 2012) (holding that where criminal court still has jurisdiction over defendant whose criminal record mandates court classify him as sexual predator, criminal court may designate defendant as sexual predator even though designation was overlooked at sentencing many years earlier).

The issue on appeal is whether the trial court had jurisdiction to designate McKenzie as a sexual predator where he had not been so designated at sentencing and where the State had not sought such designation prior to McKenzie completing his sentence.

"Subject matter jurisdiction is the 'power of a particular court to hear the type of case that is then before it' or 'jurisdiction over the nature of the cause of action and relief sought.' " Carbajal v. State , 75 So.3d 258, 262 (Fla. 2011). However, a court's jurisdiction over an action does not endure indefinitely. Franklin v. Bank of Am., N.A. , 202 So.3d 923, 925 (Fla. 1st DCA 2016). In criminal proceedings, a court's jurisdiction is invoked by indictment, information, or presentment, see Carbajal , 75 So.3d at 262 (quoting State v. Anderson , 537 So.2d 1373, 1374 (Fla. 1989) ), and "the trial court loses subject matter jurisdiction upon the expiration of the probationary sentence." Canchola v. State , 255 So.3d 442, 444 (Fla. 2d DCA 2018) ; see also Stambaugh v. State , 891 So.2d 1136, 1139 (Fla. 4th DCA 2005).

Here, it is undisputed that McKenzie's 2009 offense qualified him as a sexual predator and that had he been so designated at the time of sentencing, the designation would have been lawful. However, as discussed above, the felony division court no longer had jurisdiction over McKenzie's case because he had completed his sentence. See, e.g. , Almond , 89 So.3d at 1058 ("From the opinion in [ Cuevas ], it appears that the state filed its motion to designate the defendant as a sexual predator in a court that had ceased to have jurisdiction over the criminal case and over the defendant."). Accordingly, the State was required to argue an alternative jurisdictional basis to support the trial court's action below. As in Cuevas , the State argued that the trial court's jurisdiction was conferred by section 775.21(5)(c).

Before addressing section 775.21(5)(c), it is first necessary to discuss section 775.21(5)(a). That statute references three types of proceedings in which a trial court is to designate an otherwise qualified offender to be a sexual predator. Subsection 775.21(5)(a)1. sets forth the procedure to be followed when an offender is determined to be a sexually violent predator pursuant to a civil commitment proceeding under Chapter 394. Subsection 775.21(5)(a)2. sets forth the procedure to be followed when an offender is before the court for sentencing. Subsection 775.21(5)(a)3. sets forth the procedure to be followed when the offender was civilly committed or committed a similar criminal sexual offense in another jurisdiction, but has established or maintained a permanent, temporary, or transient residence in Florida. McKenzie was an offender who should have been, but was not, designated as a sexual predator at the time of sentencing. § 775.21(5)(a) 2., Fla. Stat. (2009).

Section 775.21(5)(c), the section relied upon by the State to confer jurisdiction, provides, in relevant part, as follows:

If the Department of Corrections, the department, or any other law enforcement agency obtains information which indicates that an offender meets the sexual predator criteria but the court did not make a written finding that the offender is a sexual predator as required in paragraph (a), the Department of Corrections, the department, or the law enforcement agency shall notify the state attorney who prosecuted the offense for offenders described in subparagraph (a)1., or the state attorney of the county where the offender establishes or maintains a residence upon first entering the state for offenders described in subparagraph (a)3. The state attorney shall bring the matter to the court's attention in order to establish that the offender meets the sexual predator criteria.

Notably, this section references subsections (5)(a)1. and (5)(a)3., but fails to reference subsection (5)(a)2.-the subsection applicable to McKenzie.

In Cuevas , the majority concluded that the failure of section (5)(c) to reference subsection (5)(a)2. did not mean that the State could not seek a belated designation of an individual who had not been so designated at sentencing, notwithstanding the fact that the defendant had completed his sentence:

A careful reading of the special language applicable to the two categories ( section 775.21(5)(a) 1. and 3.) reveals that those are special notice and venue rules for those special cases, not exclusive descriptions of the only circumstances in which the State can perform its duty after the defendant is sentenced.

Cuevas , 31 So.3d at 292. In support of its statutory interpretation, the majority referenced the extensive legislative findings regarding the "extreme threat to the public safety" posed by an individual who qualified as a sexual predator. Id.

In his dissent, Judge Shepherd argued that based on its plain language, section (5)(c) did not provide a "recapture" provision for offenders described in subsection (5)(a)2.

However, [ section 775.21(5)(c) ] ... is inapplicable on its face because subparagraph (a)1 pertains only to offenders who have been civilly committed under the Jimmy Ryce Act, § 394.910, Fla. Stat. (2000), and subparagraph (a)3 pertains to persons who have committed a similar violation in another jurisdiction. By its terms, this subsection does not include offenders described in section 775.21(a) 2, the category in which Cuevas falls.

Id. at 294. Judge Shepherd argued that where, as in the instant case, the language of the statute is plain and unambiguous, the statute should be interpreted in accordance with its plain language. Id.

We agree with the rationale set forth in Judge Shepherd's dissent. As Judge Shepherd aptly noted, "we must apply the law we have, not the law we wish we had." Id. at 295. Here, section 775.21(5)(c) did not grant authority to the trial court to belatedly designate McKenzie as a sexual predator.

REVERSED and REMANDED; CONFLICT CERTIFIED.

ORFINGER and EDWARDS, JJ., concur.

      Individuals designated as sex offenders are required to comply with the registration requirements set forth in section 943.0435, Florida Statutes.


author: BADALAMENTI, Judge.

text:
    Jose NEGRON GIL DE RUBIO, DOC #C01056, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2253
    District Court of Appeal of Florida, Second District.
    Opinion filed May 10, 2019
    Michelle Walsh, Law Offices of Walsh, P.A., Miami, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Jose Negron Gil de Rubio challenges the postconviction court's denial of his "motion for habeas corpus," which the court treated as a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse.

Procedural History

Negron was convicted by jury of one count each of racketeering, conspiracy to commit racketeering, conspiracy to traffic in cocaine, and money laundering. The trial court sentenced him to concurrent thirty-year prison terms on the first three counts and to a concurrent fifteen years on the last count. On direct appeal, this court vacated the conviction and sentence for conspiracy to commit racketeering, Negron Gil de Rubio v. State, 987 So. 2d 217, 219 (Fla. 2d DCA 2008), and the trial court entered an amended judgment and sentence. Then, as a result of an earlier postconviction proceeding, the trial court vacated the conviction for conspiracy to traffic in cocaine and set a new trial on that charge.

At a pretrial conference on October 15, 2013, the State announced a nolle prosequi of the conspiracy to traffic in cocaine charge. This left Negron to serve out the concurrent thirty- and fifteen-year sentences on the two remaining convictions for racketeering and money laundering. Of significance here, the trial court did not enter a new judgment and sentence indicating the remaining convictions and sentences for racketeering and money laundering.

Turning to the case before us, Negron filed a "motion for habeas corpus." He pointed out that no new scoresheet had been prepared for the October 15, 2013, pretrial conference. He contends that had a new scoresheet been prepared without the convictions for conspiracy to commit racketeering and conspiracy to traffic in cocaine, the scoresheet sentence would be reduced from 233.25 months (19.4 years) to 79.5 months (6.6 years). He requested a resentencing based on a corrected scoresheet, which was denied by the postconviction court.

In the final order on appeal, the postconviction court ruled that because Negron's motion did not satisfy the two-year deadline of Florida Rule of Criminal Procedure 3.850(b), the court was required to treat the motion as if filed pursuant to rule 3.800(a). Because the thirty-year sentence "could have been imposed" under a corrected scoresheet, the court denied the motion.

Discussion

A claim of scoresheet error apparent from the face of the record is cognizable under rule 3.850. Butdorf v. State, 150 So. 3d 849, 850 (Fla. 2d DCA 2014). Additionally, rule 3.800(a) is available to correct scoresheet errors apparent from the face of the record. Fla. R. Crim. P. 3.800(a)(1) ("A court may at any time correct ... an incorrect calculation made by it in a sentencing scoresheet[ ] when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief."). However, the determination of whether a defendant should be resentenced pursuant to such a claim is subject to a harmless error analysis, and the test is different depending on the rule under which the defendant files his postconviction motion.

A claim made under rule 3.850 must be filed within two years after the judgment and sentence become final, Fla. R. Crim. P. 3.850(b), absent a listed exception, none of which apply here. If the defendant timely files his motion under rule 3.850, the "would have been imposed" standard is used. That is, resentencing is required "unless the record conclusively shows that the same sentence would have been imposed using a correct scoresheet." State v. Anderson, 905 So. 2d 111, 112 (Fla. 2005).

In contrast, a motion filed under rule 3.800(a) may be filed "at any time." Fla. R. Crim. P. 3.800(a)(1). But if this rule is the basis of the motion, a stricter "could have been imposed" standard is applied. That is, if the existing sentence could have been imposed under a correct scoresheet, any error is harmless, such that no resentencing is required. Brooks v. State, 969 So. 2d 238, 243 (Fla. 2007).

Here, Negron filed a "motion for habeas corpus," requiring the postconviction court to decide between rule 3.850 and rule 3.800(a) as the appropriate vehicle for ruling on the motion. For the court to consider the motion under the less stringent "would have been imposed" standard applied to rule 3.850 motions, the court would have to find that the motion was filed timely under rule 3.850(b). Accordingly, we must determine whether this record contains a date from which the postconviction court can assess the timeliness of Negron's motion. The starting point should be the date the operative judgment and sentence became final. See Fla. R. Crim. P. 3.850(b).

The postconviction court chose two alternative dates to analyze the timeliness of Negron's motion pursuant to rule 3.850. As we will explain, neither date is correct. First, the court counted the two-year period starting from the date the mandate issued in Negron's earlier postconviction proceeding: August 13, 2013. We conclude that the date the mandate issued cannot be the starting point because the trial court did not render an amended judgment and sentence following that postconviction proceeding. See Fla. R. App. P. 9.020(h) ("An order is rendered when a signed, written order is filed with the clerk of the lower tribunal."). This left Negron without an appealable order. See Fla. R. App. P. 9.110(b) ("Jurisdiction of the court under this rule shall be invoked by filing a notice ... within 30 days of rendition of the order to be reviewed ....").

Alternatively, the postconviction court ran the two-year period from the State's oral announcement of the nolle prosequi on October 15, 2013, ruling that "the Defendant's judgment and sentence became final thirty (30) days following the State orally conceding a nolle prosse" on the charge of conspiracy to traffic in cocaine. The State endorses this approach. However, neither the court nor the State reference any legal authority for the proposition that an oral announcement of a nolle prosequi constitutes a judgment and sentence.

Although a written judgment must be filed following conviction by trial or plea, Fla. R. Crim. P. 3.670 ("If the defendant is found guilty, a judgment of guilty ... shall be rendered in open court and in writing, signed by the judge, filed, and recorded."), and upon revocation of community control if no written judgment had been entered earlier, Jackson v. State, 56 So. 3d 65, 67 (Fla. 2d DCA 2011) (Altenbernd, J., concurring) (citing § 948.06(2)(e), Fla. Stat. (2010) ), no specific authority requires the entry of a written judgment when a conviction is vacated as the result of a successful postconviction motion.

We conclude that for purposes of setting the two-year starting date for motions filed pursuant to rule 3.850, a trial court must enter a written amended judgment and sentence where the court's ruling on a postconviction motion results in the final vacation of a conviction and sentence. Cf. Stombaugh v. State, 704 So. 2d 723, 726 (Fla. 5th DCA 1998) ("Another scrivener-type error which must be corrected is the failure of the trial court to enter a written sentence in case number 93-3062, after orally pronouncing a sentence of time served."); Rogers v. State, 25 So. 3d 636, 637 (Fla. 1st DCA 2009) ("Where a court of this state grants relief to a defendant which ultimately results in an amended judgment being entered, as to any new issues raised by entry of the amended judgment, the time period for filing a rule 3.850 motion begins to run at the time of the amended judgment."). But the trial court did not enter an amended written judgment and sentence here. Without the filing of an amended written judgment and sentence, Negron's two-year time period to file a timely motion under rule 3.850 has yet to start.

Because the postconviction court erred in calculating the two-year deadline under Rule 3.850(b), we reverse.

Affirmed in part; reversed in part.

NORTHCUTT and KHOUZAM, JJ., Concur.

      Negron appealed other issues in the resulting postconviction order, which this court affirmed without opinion. See Gil de Rubio v. State, 118 So. 3d 228 (Fla. 2d DCA 2013). The mandate for that appeal issued on August 13, 2013.

      We acknowledge that not all successful postconviction proceedings involving a potential resentencing will result in the resetting of the rule 3.850(b) two-year clock. Compare Rogers, 25 So. 3d at 637, with Joseph v. State, 835 So. 2d 1221, 1222 n.3 (Fla. 5th DCA 2003) ("The two-year limitation is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered. An illegal sentence may be corrected at any time, and it would make no sense to allow a judgment to be attacked many years after the expiration of the two-year deadline simply because a sentence was corrected pursuant to a rule 3.800(a) motion."). We conclude that the present case is more like Rogers. See 25 So. 3d at 637 n.1.

      The procedural posture of this appeal prevents us from addressing the impact of the October 15, 2013, pretrial conference, where the State announced a nolle prosequi of the conspiracy to traffic in cocaine charge, and the trial court neglected to enter a new judgment and sentence reflecting such. Based on the unique circumstances presented here, we note that should Negron move the trial court to enter an amended judgment and sentence based on the results of the October 15, 2013, pretrial conference in a timely motion similar to that of his "motion for habeas corpus," the trial court shall not consider that motion to be successive.


text:
    Albert James HAYES, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3466
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Andy Thomas, Public Defender, Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant was sentenced to more than 90 years in prison. He argues that the trial court erred by declining to apply a downward-departure sentence. He also argues that the court erred in applying the adult-on-minor sex offense multiplier, which effectively doubled his lowest permissible sentence.

Facts

Following a jury trial, Appellant was found guilty of six counts of lewd or lascivious battery on a person older than age 12 but younger than age 16, with special findings of penetration as to each count. See § 800.04(4)(a), Fla. Stat. (2015). At the sentencing hearing, defense counsel asked for a downward-departure sentence, asserting that the acts were entirely consensual, that Appellant believed the victim was 17 years old, and that Appellant had little to no criminal record.

The State argued that there was no legal basis for a downward departure, as consent would not be a defense even if the victim was 17 years old. The State produced a sentencing scoresheet that applied a 2.0 multiplier for adult-on-minor sex offenses. See § 921.0024(1)(b), Fla. Stat. (2015). Without the multiplier, Appellant's sentencing points resulted in a 44.45-year lowest permissible sentence. With the multiplier, the subtotal sentencing points doubled. The trial court declined to depart from the lowest permissible sentence, applied the multiplier, and sentenced Appellant to an aggregate sentence of 90.59 years in prison. Appellant filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2), which the trial court denied.

Analysis

If a defendant asserts a valid basis for a downward departure and presents evidence to support that assertion, the trial court must then decide "whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant." Banks v. State , 732 So. 2d 1065, 1068 (Fla. 1999) (emphasis in original). "This second aspect of the decision to depart is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion." Id. When considering whether to apply a downward departure sentence, a trial court may consider introduced evidence that directly relates to the proposed basis for the downward departure. Barlow v. State , 238 So. 3d 416, 417 (Fla. 1st DCA 2018) (finding no error in the trial court considering uncharged conduct that rebutted the defendant's assertion that he was at low risk to reoffend).

Here, after considering defense counsel's argument that the acts were consensual, the trial court declared, "I'm not convinced from the testimony that I've heard that ... the victim was a willing participant." The 15-year-old victim did admit at trial to a generally consensual relationship with Appellant, but competent evidence was presented that the victim was not an entirely willing participant to the initial sex acts. She testified that she felt uncomfortable with the sexual activity and "wanted out." The trial court had the authority to rely on this evidence to reject Appellant's argument for a downward departure sentence.

Appellant's scoresheet included 74 points for the primary offense (one of the lewd and lascivious batteries), plus 185 points for the secondary offenses (the other five lewd and lascivious batteries, at 37 points each). The scoresheet then added 480 victim injury points (six sexual penetrations at 80 points each), plus 0.2 points for Appellant's prior record. This resulted in 739.2 "subtotal sentence points." See Fla. R. Crim. P. 3.990. The 2.0 adult-on-minor sex offense multiplier was then applied, doubling the 739.2 subtotal sentence points to 1,478.4 total sentence points, resulting in a lowest permissible sentence of more than 90 years.

Appellant argues that the limiting clause in the multiplier statute prohibited the use of the multiplier in this case. He also argues that the multiplier was not intended to enhance multiple offenses, and that the legislature only contemplated less serious crimes when creating the multiplier provision.

As an initial matter, the State makes an invited error argument, claiming that Appellant waived his challenges to the 2.0 multiplier. We hold that Appellant did not waive this issue for appellate review. Unlike in Bolen v. State , 943 So. 2d 855, 856 (Fla. 1st DCA 2006), where defense counsel affirmatively represented that the defendant had no objection to the facts underlying a sentencing enhancement, Appellant's counsel did not agree that a 90.59-year sentence was proper, or that the adult-on-minor sex offense multiplier should apply; counsel strongly argued against the sentence and multiplier. Defense counsel merely corrected the trial court's misstatement that the total under the scoresheet reflected a maximum sentence, when it actually represented the lowest permissible sentence.

We reject Appellant's argument that the legislature intended for the multiplier to apply only to less serious crimes. Appellant looks to the staff analysis for support, but the language of the statute itself clearly states that the multiplier applies to sexual batteries and other felony offenses. § 921.0024(1)(b), Fla. Stat. (2015). If the multiplier only intended to enhance lesser crimes, the legislature would not have written the statute to include far more serious crimes.

However, the multiplier provision contains a limiting clause, stating: "If applying the multiplier results in the lowest permissible sentence exceeding the statutory maximum sentence for the primary offense under chapter 775, the court may not apply the multiplier and must sentence the defendant to the statutory maximum sentence." § 921.0024(1)(b), Fla. Stat. (2015). Appellant argues that because his 90-year sentence with the multiplier applied exceeds the 15-year statutory maximum for his primary offense of lewd and lascivious battery, the trial court was not permitted to apply the multiplier and was instead required to sentence Appellant to a total of 15 years in prison, despite the recommended range of 44 to 90 years.

We interpret the limiting clause to provide that when the total result on the scoresheet, with the multiplier applied, exceeds the statutory maximum sentence for the primary offense, the sentencing court must not apply the multiplier and must impose the maximum sentence for the defendant's primary offense , here Count One. The court must then look to the subtotal sentencing points with all secondary offenses included, but without the multiplier, to determine the lowest permissible aggregate sentence.

Here, because the total resulting sentence with the multiplier applied exceeded the statutory maximum sentence for Appellant's primary offense, the multiplier could not be applied, and the statutory maximum had to be imposed on the primary offense. See § 921.0024(1)(b), Fla. Stat. (2015). Thus, with 739.2 subtotal sentence points (without the inapplicable multiplier), Appellant should have been sentenced to a total aggregate sentence of at least 44.45 years in prison - the lowest permissible sentence without the 2.0 multiplier - on Counts One through Six, inclusive, and to 15 years in prison on his primary offense, Count One.

Because the adult-on-minor sex offense multiplier should not have been applied here, we reverse and remand with instructions for the trial court to impose the maximum sentence of fifteen years in prison on Count One, and to impose a total aggregate sentence of no less than 44.45 years in prison, absent a downward-departure sentence. See Jackson v. State , 64 So. 3d 90, 93 (Fla. 2011) ("nothing within the CPC precludes the imposition of a downward departure sentence on resentencing following remand.").

AFFIRMED in part, REVERSED in part, and REMANDED with further instructions.

Wetherell and Winsor, JJ., concur.

      Absent the multiplier, with 739.2 subtotal sentence points, Appellant's lowest permissible sentence would be calculated as (739.2 - 28) × 0.75 = 533.4 months, or 44.45 years. See Fla. R. Crim. P. 3.990.

      We reject the State's argument that the "results in" language in the multiplier limitation means "directly caused by applying the multiplier." This interpretation would require courts to parse through scoresheet equations for the moment in the order of operations where some factor such as victim-injury points causes sentencing points to exceed the statutory threshold. Instead, we read the "results in" language to mean that after applying the multiplier, the court must look at the resulting lowest permissible sentence and see if that result exceeds the statutory maximum.

      The trial court must impose a separate sentence on each count. See Gibson v. Fla. Dep't of Corr. , 828 So. 2d 422, 428 (Fla. 1st DCA 2002) ("A general sentence for multiple offenses is improper.").


text:
    TELFER, FAHERTY & ANDERSON, P.L.L.C., Appellant, v. Kelly CAPLICK, Southeastern Grocers and Sedgwick CMS, Inc., Appellees.
    No. 1D18-1982
    District Court of Appeal of Florida, First District.
    May 16, 2019
    Robert J. Telfer of Telfer, Faherty & Anderson, P.L.L.C., Titusville, for Appellant.
    Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, and Brigitta Hawkins of Bogin, Munns & Munns, P.A., Titusville, for Appellees.
   Per Curiam.

After sustaining an injury at work, Kelly Caplick retained the law firm of Telfer, Faherty and Anderson to represent her in a worker's compensation case against her employer. Brigitta Hawkins was the TFA partner assigned to Caplick's case. When Hawkins left TFA for another firm, Caplick followed her to the new firm and entered into a contingency fee agreement with the firm.

The case settled while Caplick was represented by the new firm. A disagreement arose over how the attorney's fees obtained from the settlement should be allocated between the two law firms. TFA filed a verified petition seeking a charging lien against the settlement proceeds. TFA argued that it was entitled to 91% of the proceeds and Hawkins and her new firm were entitled to 9%, based on Hawkins' 9% equity ownership interest in TFA. In the alternative, TFA asserted that if the JCC were to allocate fees on a quantum meruit basis, TFA was entitled to 50% of the fee award for the value of the services rendered by TFA in Caplick's case. Hawkins argued that there was no agreement between her and TFA about how to split the fees in Caplick's case, so the JCC should allocate the fees only based on quantum meruit.

The JCC determined that it was not necessary to consider the contractual agreement between TFA and Hawkins when allocating the fees between TFA and Hawkins' new firm. Instead, the JCC concluded that quantum meruit was the proper basis for allocating the fees between the two firms. The JCC considered the benefits obtained by Caplick while represented by each firm and the time Hawkins spent on Caplick's behalf at each firm. After weighing the evidence and determining the credibility of the witnesses, the JCC determined that TFA was entitled to 10% of the fee award and that Hawkins and her new firm were entitled to 90% of the fee award. This timely appeal follows.

TFA presents two arguments for reversal. First, TFA argues that the JCC erred when it failed to consider the equity partnership agreement between TFA and Hawkins when it allocated the fees between the two law firms. Second, TFA argues that competent, substantial evidence does not support the JCC's award of 90% of the fee to Hawkins and her new firm on a quantum meruit basis. Because the JCC did not err in allocating the fees between the two law firms, we affirm.

In a dispute between law firms or attorneys over allocation of attorneys'

fees obtained in a settlement of a worker's compensation claim, a JCC has jurisdiction to determine fees owed to a law firm or attorney who once represented the claimant based on quantum meruit. Rosenthal, Levy & Simon, P.A. v. Scott , 17 So.3d 872, 876 (Fla. 1st DCA 2009) (recognizing the JCC's authority to determine the quantum meruit fee owed to the law firm that once represented claimant); Law Office of James E. Dusek v. T.R. Enters. , 644 So.2d 509, 510 (Fla. 1st DCA 1994) (holding that quantum meruit is the proper basis for fixing the amount of attorney's fees recoverable by a discharged attorney). In such cases, the JCC may determine the value of services provided by the former law firm or attorney and allocate the fees obtained in a settlement between a former law firm or attorney and a successor law firm or attorney. See Salzman v. Reyes , 198 So.3d 1068, 1069 (Fla. 1st DCA 2016) (concluding that a JCC had jurisdiction to resolve disputes between two unaffiliated law firms over quantum meruit fee sought by the firm that first represented claimant).

But where a former attorney or law firm and a successor attorney or law firm have entered into an employment agreement or formed a partnership or other legal relationship and the dispute involves claims for attorney's fees arising from those contractual arrangements, only circuit courts have jurisdiction to resolve the dispute. See McFadden v. Hardrives Constr. Inc. , 573 So.2d 1057, 1058-59 (Fla. 1st DCA 1991) (on motion for clarification) (concluding that JCC lacked jurisdiction to resolve a fee dispute between law firm and its former associate when the dispute required the application of tort or contract law); Watson v. State , 552 So.2d 970, 971 (Fla. 1st DCA 1989) (Zehmer, J., concurring) (explaining that a JCC had the power to allocate fees based on the services rendered during the respective periods of representation, but not the authority to resolve a dispute over the amount of work an attorney performed while an associate at a firm and the proper division of the fee earned during that period). Circuit courts also have exclusive jurisdiction when the law firms or attorneys entered into a settlement agreement or contract addressing attorney's fees. See Levine, Busch, Schnepper & Stein, P.A. v. Winn Dixie Stores, Inc. , 695 So.2d 798, 800 (Fla. 1st DCA 1997) (holding that JCC lacked jurisdiction "to consider whether [the two unaffiliated law firms] reached an agreement between themselves regarding attorney's fees").

Here, TFA argues that in allocating the fees between TFA and Hawkins' new firm, the JCC needed to consider the equity partnership agreement between TFA and Hawkins. We disagree. The JCC acted within its jurisdictional authority to resolve the dispute between TFA and Hawkins' new firm by allocating the fees on a quantum meruit basis. The JCC considered the benefits obtained by Caplick and the efforts expended by Hawkins while Caplick was represented by TFA. And the JCC considered the benefits obtained by Caplick and the efforts expended by Hawkins while Caplick was represented by the successor firm. This was the proper measure for the JCC to apply when allocating the fees between the two law firms. If TFA claims entitlement to any of the fees awarded by the JCC to Hawkins and her new firm that derive from the equity partnership agreement, those claims are within the exclusive subject matter of the circuit court.

As for TFA's remaining argument on appeal, competent, substantial evidence supports the JCC's allocation of fees between TFA and Hawkins. Prather v. Process Sys. , 867 So.2d 479, 481 (Fla. 1st DCA 2004) (noting that a JCC, as the trier of fact, has the authority to determine the credibility of witnesses). We, therefore, AFFIRM the order on appeal because the JCC applied the correct law to resolve the fee dispute and because the JCC's resolution is supported by competent, substantial evidence.

Rowe, Bilbrey, and Winsor, JJ., concur.


author: Osterhaus, J.

text:
    TALLAHASSEE MEMORIAL HEALTHCARE, INC., Petitioner, v. Cherelle DUKES, Respondent.
    No. 1D18-2426
    District Court of Appeal of Florida, First District.
    May 16, 2019
    S. Austin Cattani and Brandice D. Dickson of Pennington, P.A., Tallahassee, for Petitioner.
    Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Respondent.
   Osterhaus, J.

Tallahassee Memorial Healthcare, Inc. seeks certiorari review of an order granting Cherelle Dukes's motion to assert a punitive damages claim against it in her defamation suit. TMH argues that the order should be quashed because Ms. Dukes's claim and the evidence proffer supporting her motion didn't comply with the statutory requirements for alleging punitive damages. We agree and grant the petition.

I.

Ms. Dukes worked for TMH as a patient care assistant in the emergency room until she resigned in lieu of formal termination in September 2015. After resigning, she sued TMH for whistleblower retaliation and defamation. Ms. Dukes based her defamation claim on the conduct of an emergency room supervisor. The supervisor allegedly told co-workers that Ms. Dukes had been terminated for "stealing," and not that Ms. Dukes had resigned after being confronted about making personal long-distance calls using TMH's telephone codes.

In October 2018, Ms. Dukes filed a motion to amend her defamation count against TMH to assert a punitive damages claim. She attached an amended complaint alleging that the emergency room supervisor "as agent to a principal/employer, published caused to be published or allowed to be published false statements about Plaintiff to third parties." At a subsequent hearing, Ms. Dukes claimed that her motion should be granted because she had been defamed by the "director" of TMH's emergency room. TMH argued that the motion should be denied because Ms. Dukes didn't claim or proffer evidence that either TMH or its corporate management participated or condoned the alleged defamation. TMH argued that

you cannot equate the director of the emergency room, which is Ms. Dukes' second-level supervisor, to the board of directors or the CEO, which is what the case law holds. [To prevail under the statute,] [y]ou have to have the employee/alleged bad actor in addition to ratification by the corporation.

The court ultimately granted Ms. Dukes's motion to amend the complaint and add a punitive damages claim. TMH then timely filed a petition for writ of certiorari seeking to quash the trial court's order.

II.

Certiorari relief is available where the procedural requirements of the punitive damages statute aren't followed. Globe Newspaper Co. v. King , 658 So.2d 518, 519 (Fla. 1995) ; Fetlar, LLC v. Suarez , 230 So.3d 97, 99 (Fla. 3d DCA 2017). A defendant has a substantive legal right not to be subject to punitive damages claims if there is no reasonable basis for recovery. Globe Newspaper Co., 658 So.2d at 519. Our standard of review is de novo. Wayne Frier Home Center of Pensacola, Inc. v. Cadlerock Joint Venture, L.P. , 16 So.3d 1006, 1008 (Fla. 1st DCA 2009).

A plaintiff's ability to bring a punitive damages claim in a civil action in Florida is governed by § 768.72, Florida Statutes. A punitive damages claim can be added only after making a "reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." § 768.72(1), Fla. Stat.; Fla. R. Civ. P. 1.190(f). If a plaintiff wants to add a punitive damages claim against a corporate entity based on an employee's conduct, a reasonable showing must be made that:

(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;
(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or (c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

§ 768.72(3), Fla. Stat.

In this case, Ms. Dukes sought to add a punitive damages claim against TMH based upon the conduct of the "director" of the emergency room. Ms. Dukes argued that her motion should be granted because § 768.72(3)(b) specifically includes misconduct condoned by the "directors" of a corporation.

What is missing from Ms. Dukes's motion and proffer, however, is an allegation or evidence that corporate management knowingly condoned, ratified or consented to the alleged misconduct. Ms. Dukes didn't allege that the emergency room employee had a role in corporate management. Nor did she allege or provide evidence that corporate management knew about the alleged defamatory conduct by its emergency room director. On this basis, TMH argues that Ms. Dukes's punitive damages claim could not go forward in the absence of claiming or providing evidence that TMH's corporate management "knowingly condoned, ratified, or consented to [the] conduct," as required by § 768.72(3)(b). And we agree. Under these circumstances, Ms. Dukes's motion to add the punitive damages claim fails on its face to comport with the statute's requirements.

This case is similar to the Third District's opinion in Fetlar, LLC v. Suarez. There, plaintiffs also sought to add punitive damages claims against corporate defendants based upon allegations of misconduct by employees-construction managers, superintendents, and workers-"who were not, on the record before us, officers or managing members of the ... companies." Fetlar, LLC , 230 So. 3d at 100. The court found these allegations against non-management personnel to be contrary to the plain language of § 768.72 and quashed the trial court's order that had allowed punitive damages to be pleaded. Id. ; see also Coronado Condo. Ass'n. Inc. v. La Corte , 103 So.3d 239, 241 (Fla. 3d DCA 2012) (finding misconduct allegations against a property manager, workers, and a single unnamed board member to be insufficient in the absence of allegations that corporate management knowingly participated or consented to the misconduct); cf. Wayne Frier Home Center of Pensacola, Inc. , 16 So.3d at 1009 (concluding that the evidence could support a finding that management participated in or condoned an employee's misconduct).

Similarly, here, Ms. Dukes's motion failed to meet § 768.72(3)'s requirements for pleading a punitive damages claim. Because the motion in this case did not allege or cite evidence that corporate management knowingly condoned, ratified, or consented to the alleged defamation, Ms. Dukes's motion should have been denied.

III.

Accordingly, we grant the petition and quash the order granting leave to amend the complaint to include a claim for punitive damages.

PETITION GRANTED; ORDER QUASHED.

Rowe and Kelsey, JJ., concur.


text:
    Michael Jerome LEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1842
    District Court of Appeal of Florida, First District.
    May 16, 2019
    Andy Thomas, Public Defender, and Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Michael Jerome Lee, appeals his conviction and sentence for aggravated assault on a law enforcement officer, arguing that his trial counsel was ineffective for failing to request a jury instruction on reckless driving as a lesser included offense. "Claims of ineffective assistance of counsel are rarely addressed on direct appeal because they normally turn on questions of fact and both sides are entitled to present relevant evidence at an evidentiary hearing." Barnett v. State , 181 So. 3d 534, 536 (Fla. 1st DCA 2015). In order to prevail on an ineffectiveness claim on direct appeal, an appellant must demonstrate " 'ineffectiveness on the face of the record, indisputable prejudice, and an inconceivable tactical explanation for the conduct.' " Id. (citation omitted).

As the State argues, Appellant has failed to establish an inconceivable tactical explanation for trial counsel's action of not requesting the instruction at issue, especially in light of the fact that she sought a reckless driving instruction as a lesser included offense on another of Appellant's charged crimes. Indisputable prejudice has also not been established. See Sanders v. State , 946 So. 2d 953, 960 (Fla. 2006) (holding that "the possibility of a jury pardon cannot form the basis for a finding of prejudice" under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that "a claim alleging ineffective assistance of counsel for failure to request an instruction on a lesser-included offense may be summarily denied); see also Johnson v. State , 247 So. 3d 689, 697 (Fla. 1st DCA 2018) (citing Sanders for the proposition that as a matter of law, the possibility of a jury pardon cannot form the basis for a finding of prejudice under Strickland ).

Accordingly, we affirm Appellant's judgment and sentence.

AFFIRMED .

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


author: ATKINSON, Judge.

text:
    Samuel BRUNT, Appellant, v. Dawn BRUNT, Appellee.
    Case No. 2D18-3832
    District Court of Appeal of Florida, Second District.
    Opinion filed May 17, 2019.
    Michael J. Rozum of Michael J. Rozum, PLLC, Tampa, for Appellant.
    Jean M. Henne of Jean M. Henne, P.A., Winter Haven, for Appellee.
   ATKINSON, Judge.

We affirm the single order entered by the trial court titled "final judgment denying former husband's supplemental petition for modification of final judgment of dissolution of marriage; final judgment on former husband's supplemental petition as to modification of child support only; and final orders on former wife's multiple motions for contempt/enforcement." See Fla. R. App. P. 9.315(a). However, we grant the appellee's motion to dismiss and dismiss for lack of jurisdiction the portion of the appeal challenging the trial court's finding as to the wife's entitlement to attorney's fees. See McIlveen v. McIlveen, 644 So.2d 612 (Fla. 2d DCA 1994).

Affirmed in part and dismissed in part.

SILBERMAN and SLEET, JJ., Concur.


text:
    Tyler SHERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4464
    District Court of Appeal of Florida, First District.
    May 16, 2019
    Ethan Andrew Way of Gillis Way & Campbell, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
    ON REMAND FROM FLORIDA SUPREME COURT
   Per Curiam.

We twice earlier affirmed Appellant's separate convictions for solicitation (in violation of section 847.0135(3)(a), Florida Statutes ), and traveling to meet a minor after solicitation (in violation of section 847.0135(4)(a) ). See Sherman v. State , 160 So. 3d 494 (Fla. 1st DCA 2015) ; Sherman v. State , 247 So. 3d 663 (Fla. 1st DCA 2015). The Florida Supreme Court has now quashed our more recent decision, remanding for reconsideration in light of Lee v. State , 258 So. 3d 1297 (Fla. 2018). See Sherman v. State , No. SC18-949 (Fla. Apr. 16, 2019). In Lee , the court held that "to determine whether multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court should consider only the charging document." 258 So. 3d at 1299. Applying that rule here, we must reverse the lesser conviction. On remand, the trial court should resentence for the remaining conviction. We otherwise affirm.

REVERSED in part; AFFIRMED in part.

Wolf and Winsor, JJ., concur; Makar, J., concurs in result only.


author: SALARIO, Judge.

text:
    N.G.S., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4650
    District Court of Appeal of Florida, Second District.
    Opinion filed May 17, 2019
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   SALARIO, Judge.

N.G.S. appeals from a juvenile disposition order finding that he committed the delinquent acts of being a delinquent in possession of a firearm and being a delinquent carrying a concealed weapon. The order withheld adjudication and required N.G.S. to serve fifteen days in a juvenile detention center and twelve months of probation. He argues that the trial court erred in admitting his confession that the gun belonged to him without independent evidence of the corpus delicti of either delinquent act and that the court's finding of delinquency and withheld adjudication on both counts violated double jeopardy. We find the corpus delicti issue dispositive and reverse.

I.

On June 16, 2017, around 10:00 p.m., Clearwater Police Detective Harry Dodson was in his car behind N.G.S.'s residence when he saw N.G.S. sitting in a car nearby with three other young men. Detective Dodson knew N.G.S. was on probation and had an 8:00 p.m. curfew. He approached the car. N.G.S., who was sitting in one of the back seats, opened the door and told the detective: "I'm sorry. I'm sorry. I'm sorry." The smell of marijuana smoke emanated from the car. Detective Dodson and another detective began getting everyone out. As Detective Dodson was about to take N.G.S. from the back seat, he noticed "just the edge" of a pistol grip-what he also described as "just the very back of the backstrap" of a gun-sticking out underneath the seat in front of N.G.S. Detective Dodson reached down and removed what turned out to be a Smith & Wesson 9 mm handgun from under the seat in front of N.G.S.

Detective Dodson removed N.G.S. from the car and read him the standard Miranda warnings. N.G.S. said he understood. N.G.S. then confessed that he got the gun in St. Petersburg and brought it into the car with him that night. The State later filed a delinquency petition alleging that N.G.S. committed two delinquent acts: (1) delinquent in possession of a firearm, see § 790.23(1)(b), Fla. Stat. (2016), and (2) delinquent carrying a concealed weapon, see id.

At the adjudicatory hearing, the State asked Detective Dodson to testify about N.G.S.'s admission that the gun was his. N.G.S. objected, arguing that because the State had failed to prove the corpus delicti of either delinquent act, the confession was not admissible. The nub of N.G.S.'s argument was that the State was required but failed to prove, independent of N.G.S.'s admission, either (1) that all of the young men in the car had been adjudicated delinquent of felony offenses and were under the age of twenty-four, such that no matter who possessed or carried the gun, the delinquent acts had been committed or (2) that N.G.S. himself possessed and carried the firearm. See § 790.23(1)(b). The court overruled the objection and admitted N.G.S.'s statements into evidence. Detective Dodson later testified that the other young men in the vehicle were ages fourteen, seventeen, and eighteen. There was no evidence, however, that any of them had ever been found to have committed a felony delinquent act.

N.G.S. moved for a judgment of dismissal again raising the corpus-delicti issue and arguing, in part, that without his confession the evidence was insufficient to support a finding of delinquency for either offense. The trial court denied that motion and entered a disposition order finding N.G.S. delinquent and withholding adjudication on both counts. This timely appeal follows.

II.

N.G.S. argues that the trial court erred by allowing his admission that the gun was his into evidence in the absence of sufficient evidence proving the corpus delicti of either delinquent act with which he is charged. Our review is for abuse of discretion. See Tanzi v. State, 964 So.2d 106, 116 (Fla. 2007) (reviewing ruling on corpus delicti determination for abuse of discretion); J.B. v. State, 166 So.3d 813, 816 (Fla. 4th DCA 2014) ("The trial court's admission of a confession over a corpus delicti objection is reviewed for an abuse of discretion.").

A.

Corpus delicti is an old common law rule still followed in Florida that, simply stated, holds that a defendant's confession is not admissible to prove his or her guilt unless the State also introduces direct or circumstantial evidence independent of the confession to prove the corpus delicti or, in English, the body of the crime. Shelden v. State, 38 So.3d 214, 216 (Fla. 2d DCA 2010) ; see also J.B. v. State, 705 So.2d 1376, 1378 (Fla. 1998) (rejecting argument that the rule should be abolished in Florida). The gist of the rule is that before it can have the defendant's confession admitted, the State must establish "(1) that a crime of the type charged was committed; and (2) that the crime was committed through the criminal agency of another." Franqui v. State, 699 So.2d 1312, 1317 (Fla. 1997) (citing State v. Allen, 335 So.2d 823, 825 (Fla. 1976) ). The stated reason for the rule is that no one should be convicted when a confession is all there is to prove that a crime actually took place. See Shelden, 38 So.3d at 216 ("[T]he State is [obligated] to demonstrate, by evidence other than the defendant's admission, that the crime was in fact committed."); see also Allen, 335 So.2d at 825 (requiring proof "that a crime has been committed" to ensure that "no person be convicted out of derangement, mistake or official fabrication").

The corpus delicti rule does not require that the State prove the identity of the person who committed the crime, except in those uncommon circumstances where proof of identity is necessary to show that a crime was committed at all. See A.P. v. State, 250 So.3d 799, 802 (Fla. 2d DCA 2018) (describing circumstances in which "the identity of the guilty party and the proof that a crime occurred" are so intertwined that proof of corpus delicti and guilty agency are the same (quoting Spanish v. State, 45 So.2d 753, 754 (Fla. 1950) )); State v. Walton, 42 So.3d 902, 906-07 (Fla. 2d DCA 2010) (stating that the defendant's identity as the driver may become a part of the corpus delicti where the evidence does not establish a crime without it). Nor does it require that the body of the crime be proved beyond a reasonable doubt. Shelden, 38 So.3d at 216. Rather, it requires that the State produce "substantial evidence," which need not be "uncontradicted or overwhelming," to prove that a crime has in fact happened. Allen, 335 So.2d at 825 (quoting Tucker v. State, 64 Fla. 518, 59 So. 941, 941 (1912) ).

So what is the corpus delicti in this case? Both offenses of which N.G.S. was found delinquent were based on section 790.23(1)(b), which provides in relevant part as follows:

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:
....
(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age.

As to the count for delinquent carrying a concealed weapon, the statute makes it unlawful for a delinquent to "carry a concealed weapon, including a tear gas gun or chemical weapon or device." Id. For the purposes of chapter 790, "concealed weapon" is defined as "any dirk, metallic knuckles, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person." § 790.001(3)(a). We have previously held that a firearm does not meet the definition of a "concealed weapon" under chapter 790. See Baldwin v. State, 857 So.2d 249, 251 (Fla. 2d DCA 2003). But see Wiggins v. State, 253 So.3d 1196 (Fla. 1st DCA 2018).

The corpus delicti for this offense, then, would at least include some evidence, separate from N.G.S.'s admission, that someone covered by the statute (i.e., a delinquent with the requisite prior delinquency finding) carried something that met the definition of concealed weapon. The State's evidence in this case, however, showed that the only potentially-unlawful item Detective Dodson recovered during his interaction with N.G.S. was a gun. Because a gun cannot be a "concealed weapon" under chapter 790, it follows that the State's evidence does not establish the corpus delicti for delinquent carrying a concealed weapon.

We turn now to the possession charge. As concerns a delinquent's unlawful possession of a firearm, our court has held that the body of the crime is "that a firearm was possessed by an individual who is prohibited by the statute from possessing it"-as relevant here, an individual under twenty-four who has been found to have committed a delinquent act that would be a felony if committed by an adult. See A.P., 250 So.3d at 801 ; see also J.J.J. v. State, 235 So.3d 1014, 1016-17 (Fla. 2d DCA 2017) (holding that the State failed to establish the corpus delicti of minor in possession of a firearm where the only evidence that a minor possessed a firearm was inadmissible).

In determining whether the State actually proved the corpus delicti of the possession count, this much is not in dispute:

there was no evidence that all of the occupants of the car in which the gun was found had previously been found to have committed delinquent acts that would have been felonies had they been committed by adults. If these were the facts and the State had sufficiently proved them, this would be a no-brainer affirmance. It is entirely logical to infer from the facts that someone in the car possessed the gun Detective Dodson found under the seat. And if everyone in the car was a delinquent described by section 790.23(1)(b), then it is equally logical to infer that an individual described by the statute possessed a firearm. See, e.g., State v. Holzbacher, 948 So.2d 935, 937 (Fla. 2d DCA 2007) (holding that the State showed the corpus delicti for possession of a controlled substance where it "established the presence of a controlled substance in the car with no signs of authorization for possession of said substance" and "[t]he fact that the substance was found in an automobile shows that it was possessed by someone"). N.G.S.'s confession would then have been admissible to show that he was that individual. See, e.g., State v. Walton, 42 So.3d 902, 909-10 (Fla. 2d DCA 2010) (holding that the defendant's confession was admissible to establish identity in a prosecution for driving under the influence with serious bodily injury where independent evidence showed that all of the occupants of the vehicle that caused the crash had been drinking and were impaired).

Here, however, the only occupant of the car the State showed to have been covered by section 790.23(1)(b) was N.G.S. Thus, the only way for the State to have proved the corpus delicti of the possession offense was to have shown that N.G.S. himself possessed a firearm. See, e.g., A.P., 250 So.3d at 802 (dealing with minor in possession); J.J.J., 235 So.3d at 1016 (same). Put differently, this is one of those uncommon cases where, on the evidence the State presented, proof of the identity of the person who committed the offense was necessary to prove that a crime was committed at all.

B.

To determine whether the State proved the corpus delicti of the delinquent act of being a delinquent in possession of a firearm, we must ask whether N.G.S. possessed the gun Detective Dodson found. Possession of a firearm may be either actual or constructive. See Harrison v. State, 483 So.2d 757, 758 (Fla. 2d DCA 1986) (holding that there must be proof of actual or constructive possession of a firearm to prove the corpus delicti of felon in possession). A person actually possesses an item when it is in his hand, on his person, or within his reach and under his control. Sasser v. State, 67 So.3d 1150, 1152 (Fla. 2d DCA 2011). Under our analogous precedents, it seems quite clear that N.G.S. did not actually possess the gun. See, e.g., Smith v. State, 123 So.3d 656, 657 (Fla. 2d DCA 2013) (holding that evidence was legally insufficient to prove that the driver of a jointly occupied vehicle actually possessed drug paraphernalia in the driver's side visor, even where the driver was fumbling behind the visor at the time); Skelton v. State, 609 So.2d 716, 716 (Fla. 2d DCA 1992) (holding that evidence was legally insufficient to prove that the passenger in a jointly occupied vehicle actually possessed a bag of cocaine located under the passenger seat near where his feet had been). The State has not argued otherwise.

To prove the corpus delicti of the possession offense, then, the State had to prove that N.G.S. constructively possessed the gun independently of his confession. To establish that, the State needed to show that N.G.S. "knew of the presence of the [gun] and was able to exercise control over [it]." See Watson v. State, 961 So.2d 1116, 1117 (Fla. 2d DCA 2007). The State's only argument on this score is that it provided such proof because the evidence showed that the gun was found "in N.G.S.'[s] vicinity." But that argument is meritless because there were three other people in the car right before Detective Dodson found the gun, and our court has "repeatedly held that mere proximity to contraband in a jointly occupied car is not sufficient to sustain a conviction based on constructive possession." See A.P., 250 So.3d at 802 (applying this principle to determine whether the State had proved the corpus delicti of a firearm-possession offense); see also K.A.K. v. State, 885 So.2d 405, 407 (Fla. 2d DCA 2004) ("A defendant's mere proximity to the illegal items is insufficient to sustain a conviction."). In those circumstances, knowledge and the ability to exercise control must be established by independent proof. Watson, 961 So.2d at 1117 ; accord Hargrove v. State, 928 So.2d 1254, 1256 (Fla. 2d DCA 2006).

Here, the State's only proof of constructive possession independent of proximity is N.G.S.'s confession, which cannot be used to establish the corpus delicti of the crime. So absent some other evidence-a statement from one of the other young men in the car or N.G.S.'s fingerprints on the gun, for instance-the State is stuck. It has failed to prove the corpus delicti of the offense of delinquent in possession of a firearm so as to make his statement that the gun was his admissible evidence of his guilt of that delinquent act. See A.P., 250 So.3d at 802 (holding that the State failed to prove the corpus delicti of minor in possession of a firearm found in a jointly occupied vehicle where "the only independent proof ... to establish constructive possession is A.P.'s admission"); Powell v. State, 969 So.2d 1060, 1064 n.7 (Fla. 2d DCA 2007) (noting, in dictum, in a case involving constructive possession of cocaine in a jointly occupied home, a "possible corpus delicti issue" where "there was no evidence other than the unwarned statements Mr. Powell made to establish that a crime had been committed"), quashed on other grounds by State v. Powell, 66 So.3d 905 (Fla. 2011) ; Ras v. State, 610 So.2d 24, 25 (Fla. 2d DCA 1992) (reversing conviction for trafficking by possession of cocaine where the State's only evidence of the ability to control the cocaine was the defendant's admission).

III.

Because the State failed to prove the corpus delicti of the delinquent acts with which N.G.S. was charged, we are required to reverse. We remand with instructions to enter an order granting N.G.S.'s motion for a judgment of dismissal on both counts. See A.P., 250 So.3d at 803 ; J.J.J., 235 So.3d at 1017. This disposition renders it unnecessary for us to reach his double-jeopardy argument, and we therefore decline to do so.

Reversed and remanded with instructions.

BLACK, J., Concurs.

SILBERMAN, J., Concurs specially with opinion.

SILBERMAN, Judge, Concurring specially.

Based on the evidence and arguments presented, I agree with the majority's conclusion that N.G.S. is entitled to a judgment of dismissal. As to the charge of delinquent in possession of a firearm, the State failed to establish the corpus delicti as it failed to adduce evidence that N.G.S. possessed a firearm. See A.P. v. State, 250 So.3d 799, 801-02 (Fla. 2d DCA 2018). As to the concealed weapon charge, I recognize that this court is bound to follow its holding in Baldwin v. State, 857 So.2d 249, 251 (Fla. 2d DCA 2003), that a firearm does not meet the definition of a "concealed weapon" under chapter 790. However, I still have the same concerns about the propriety of the Baldwin majority's conclusion on this issue that I expressed in my special concurrence therein. See id. at 253-57 (Silberman, J., concurring specially); see also Wiggins v. State, 253 So.3d 1196, 1198-99 (Fla. 1st DCA 2018) (declining to follow the majority's decision in Baldwin and concluding that a firearm can be a concealed weapon under chapter 790), review granted, No. SC18-1766, 2019 WL 413764 (Fla. Feb. 1, 2019).

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Detective Dodson's testimony-given after N.G.S.'s confession was admitted-that each of the occupants of the car was eighteen or younger would enable us to say that the State proved the corpus delicti of unlicensed carrying of a concealed firearm, a delinquent act with which N.G.S. was not charged but that is related by subject matter to those with which he was charged. See §§ 790.01(2) (making it a third-degree felony to carry a concealed firearm without a license), .06(2)(b) (restricting concealed firearm licensure to persons twenty-one and older); see also Garmon v. State, 772 So.2d 43, 46 (Fla. 4th DCA 2000) (holding that while the corpus delicti should be proved before a defendant's confession is admitted, a subsequent showing can cure that defect). And there is some supreme court dictum to suggest that this proof of a substantively related but uncharged offense might be enough to get the State home. See Burks v. State, 613 So.2d 441, 444 n.4 (Fla. 1993) (stating that "[t]he crime of which the elements must be proven need not be the exact crime charged" and that "it is sufficient if the elements of the underlying crime are proven rather than those of the particular degree or variation of that crime which may be charged" (first citing Allen, 335 So.2d at 825 ; and then citing Hart v. State, 301 Ark. 200, 783 S.W.2d 40, 42 (1990) )). The State has not, however, made such an argument either in the trial court or in ours. And we have not found a case in which a Florida court has actually held that proof of a crime different from but related by subject matter to the crime charged suffices as proof of the corpus delicti of the crime charged. The correct resolution of this issue is sufficiently unclear that we decline to reach it without the benefit of briefing here. See Meyers v. State, 704 So.2d 1368, 1369 (Fla. 1997) ("The phrase 'corpus delicti' refers to proof independent of a confession that the crime charged was in fact committed." (emphasis added)); see also Powell v. State, 120 So.3d 577, 591 (Fla. 1st DCA 2013) (explaining that appellate courts may, but are not required to, address tipsy coachman grounds for affirmance that have not been briefed by the parties).


author: NORTHCUTT, Judge.

text:
    Ediol TOPALLI and Irida Topalli, Appellants, v. Eddie FELICIANO and Bay Colony Community Association, Inc., a Florida Corporation, Appellees.
    Case No. 2D17-3993
    District Court of Appeal of Florida, Second District.
    Opinion filed May 17, 2019.
    Richard W. Lavariere and James M. Moran of Marc L. Shapiro, P.A., Naples, for Appellants.
    Michael R. D'Lugo of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Appellees.
   NORTHCUTT, Judge.

The circuit court granted Ediol and Irida Topalli a continuance on the day trial was to begin in their personal injury lawsuit against Eddie Feliciano and Bay Colony Community Association, Inc. The court agreed to the continuance after the Topallis offered to pay the costs and attorney's fees incurred by the defendants as a result of the continuance. The court eventually entered separate judgments respectively awarding attorney's fees and costs to the defendants. In Topalli v. Feliciano, 267 So.3d 513, 2019 WL 1303053 (Fla. 2d DCA Mar. 22, 2019), this court reversed the attorney's fee judgment. In the instant appeal, the Topallis challenge the judgment for costs. We reverse the judgment and remand for a new hearing and the entry of a new order awarding costs. We affirm without comment the other issues raised on appeal.

We conclude, consistent with this court's holding in Topalli, that the Topallis were bound by their offer to pay costs. 44 Fla. L. Weekly at D794, 267 So.3d at ----, 2019 WL 1303053. However, the circuit court erred in two ways. First, it should not have entered an executable judgment for costs while the underlying case was still ongoing. See id. As this court noted in East Avenue, LLC v. Insignia Bank, 136 So.3d 659, 665 (Fla. 2d DCA 2014), "Permitting execution prior to completion of the litigation before the trial court has long been characterized as improper by the appellate courts."

Further, the circuit court abused its discretion by awarding the cost of items that clearly were not attributable to the continuance. See Ocean Club Cmty. Ass'n v. Curtis, 935 So.2d 513, 517 (Fla. 3d DCA 2006) (citing Thomas v. Perkins, 723 So.2d 293 (Fla. 3d DCA 1998) (noting that costs awards are reviewable for abuses of discretion)). In the final judgment taxing costs, the circuit court "determine[d] the amount of taxable costs to be paid by Plaintiffs due to their requesting and obtaining a continuance of the jury trial." It awarded $ 49,598.95, which was within $ 400 of the amount set forth in the defendants' exhibit submitted in support of their costs request. The overwhelming majority of the sums on that exhibit were for expenses that were necessarily incurred in the litigation and trial preparation generally and that bore no relationship to the continuance of the trial. For example, the defendants claimed an expense for medical records that were obtained well before the trial was continued and that, by their nature, would be of use regardless of when the trial took place. This is largely true of their claim for $ 39,297.28 in expert witness expenses, only $ 8825 of which were incurred in the ten days preceding the aborted trial. Similarly, the defendants' exhibit claimed investigative costs incurred months before the trial date.

We reverse the judgment and remand for entry of a proper, nonexecutable order awarding only costs that were directly attributable to the continuance.

Reversed and remanded for further proceedings.

VILLANTI and SALARIO, JJ., Concur.