author: SCALES, J.

text:
    Christopher G. VENEZIA, Appellant, v. WELLS FARGO BANK, etc., Appellee.
    No. 3D18-516
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    TP Murphy's Law, P.A., and Thomas P. Murphy; Jay M. Levy, P.A., and Jay M. Levy, Miami, for appellant.
    Weitz & Schwartz, P.A., and Sarah T. Weitz (Fort Lauderdale), for appellee.
    Before LAGOA, LOGUE and SCALES, JJ.
   SCALES, J.

Appellant, defendant below, Christopher Venezia, challenges a February 21, 2018 trial court order scheduling a foreclosure sale. The trial court scheduled the foreclosure sale pursuant to a final foreclosure judgment entered by the trial court on September 19, 2012, which was affirmed by this Court in Venezia v. Wells Fargo Bank, N.A., 133 So.3d 941 (Fla. 3d DCA 2014) (table). Because we lack jurisdiction to review the trial court's non-final, non-appealable order scheduling a foreclosure sale, we dismiss the appeal and we deny Venezia's alternate request that we treat his appeal as a petition for certiorari review.

I. Relevant Facts and Procedural Background

In 2005, Venezia executed a mortgage in favor of Wells Fargo's predecessor, Banker Mortgage Trust, Inc., to secure a promissory note. The mortgage encumbered one lot in Plantation Key, an unincorporated area of Monroe County. Sometime in 2006, Venezia, who also owned an adjoining lot not encumbered by the mortgage, and without the joinder of the mortgagee, recorded a unity of title document with Monroe County, effectively combining the two lots.

While not entirely clear from the record, it appears that Venezia then constructed a home on the unified lot. Sometime thereafter, Venezia defaulted on the note's repayment terms, and Wells Fargo (which had been assigned the note and mortgage) brought a foreclosure action against Venezia in 2009, seeking to foreclose on the property secured by its mortgage. Despite the unity of title document having been of record at the time Wells Fargo filed its complaint, Wells Fargo's foreclosure action did not seek to vacate the unity of title.

Instead, the record reflects that, despite being aware of the unity of title, Wells Fargo nevertheless obtained its final judgment foreclosing only on the property encumbered by its 2005 mortgage. This judgment was affirmed by this Court on appeal. Id.

Several years later, Wells Fargo sought to vacate its own final judgment by filing a Florida Rule of Civil Procedure 1.540(b)(5) motion, which the trial court denied. Wells Fargo did not appeal the trial court's denial of its rule 1.540(b) motion. Several years later, the trial court then entered the challenged order, setting a foreclosure sale for the encumbered property only.

Venezia filed a notice of appeal with this Court characterizing the trial court's order as a non-final order "affecting possession of real property," which we would have jurisdiction to review pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). Wells Fargo filed a motion to dismiss Venezia's appeal, arguing that the trial court's order scheduling the foreclosure sale is a non-final, non-appealable order, citing to Pridgen v. First Union Bank, 879 So.2d 21 (Fla. 2d DCA 2004). Venezia responded by asserting that, even if the order is non-appealable, given the unique facts and circumstances of this case, the trial court's order departs from the essential requirements of law causing irreparable harm, and therefore, we should treat his appeal as a petition seeking certiorari relief. A separate panel determined that Wells Fargo's motion should be "carried with the case" (i.e., determined by the merits panel after further merits briefing).

II. Analysis and Conclusion

At the outset, we agree with the Second District that the subject order, merely scheduling a foreclosure sale pursuant to a valid final foreclosure judgment, "is a purely administrative, interlocutory step in the judicial sales process," and therefore, is neither an appealable final order under Florida Rule of Appellate Procedure 9.110, nor an appealable, non-final order under rule 9.130. Id. at 21.

Furthermore, we are unpersuaded by Venezia's arguments that the unique circumstances of this case somehow warrant certiorari review. No doubt, as conceded by both Wells Fargo and Venezia, a successful purchaser at the scheduled foreclosure sale may encounter a host of unique challenges. Such potential challenges, though, pose no irreparable harm to Venezia. Indeed, at oral argument Venezia's counsel could identify no harm, irreparable or otherwise, that Venezia would suffer if Venezia were the successful bidder at the sale.

For harm resulting from a non-final order to be irreparable, so as to provide this Court with certiorari jurisdiction, the harm must be such that it could not be remedied on plenary appeal. Bedoyan v. Samra, 237 So.3d 1102, 1103-04 (Fla. 3d DCA 2017) ; Sardinas v. Lagares, 805 So.2d 1024, 1025 (Fla. 3d DCA 2001) ("The writ of certiorari is reserved for those situations where the order results in a material injury which cannot be corrected on appeal and departs from the essential requirements of the law."). In this case, the alleged harm - the asserted "nonexistence" of the encumbered property - existed at the time the foreclosure judgment was entered in this case. If such harm truly made the foreclosure impossible, as Venezia now argues, Venezia could have made that challenge on plenary appeal.

Additionally, the subject order merely schedules a foreclosure sale so, at this stage in the proceedings, any harm from a foreclosure sale is speculative and remote. Irreparable harm cannot be established on speculation. Mayport Hous. P'ship, Ltd. v. Albani, 244 So.3d 1176, 1177 (Fla. 1st DCA 2018). As mentioned earlier, Venezia could be the successful buyer at the foreclosure sale, thereby eliminating any harm. Similarly, a buyer could purchase the property at the sale, and post-sale proceedings could obviate any alleged harm. Thus, Venezia has not established that the subject order causes the type of irreparable harm that warrants certiorari jurisdiction.

Finally, with regard to certiorari review, we note that, even if Venezia somehow were able to establish the requisite necessary harm in order to invoke this Court's certiorari jurisdiction, Venezia, to be entitled to relief, would have to establish that the trial court's scheduling order constituted a departure from the essential requirements of law. Chessler v. All Am. Semiconductor, Inc., 225 So.3d 849, 852 (Fla. 3d DCA 2016). We would be hard-pressed to conclude that the subject order - merely scheduling a foreclosure sale pursuant to a judgment that has been affirmed on appeal - would constitute any departure from the essential requirements of law.

In short, despite the potential challenges a foreclosure sale buyer might face at the scheduled foreclosure sale of the property identified in the judgment, the unconventional procedural history of this case does not provide a basis for this Court to exercise either appellate or certiorari jurisdiction to review the challenged order.

Appeal dismissed.

      In its rule 1.540(b) motion, Wells Fargo alleged that, based on "new evidence" (presumably the unity of title), Wells Fargo was entitled to have its judgment vacated so it could file an amended foreclosure action to foreclose on the entire parcel, rather than on only the property encumbered by its mortgage. The trial court rejected this argument, specifically finding that Wells Fargo was well aware of Venezia's unity of title filing several years before bringing its rule 1.540(b)(5) motion.

      In pertinent part, rule 9.130(a)(3)(C)(ii) provides: "Appeals to the district courts of appeal of non-final orders are limited to those that ... determine ... the right to immediate possession of property ...."

      Venezia's principal argument is that a foreclosure sale of the property encumbered by the 2005 mortgage is impossible because the lot identified in the mortgage - the property subject to the foreclosure sale - no longer "exists." According to Venezia, the property identified in the mortgage has been "unified" with another parcel, and neither of the pre-unity parcels have a separate existence subject to foreclosure.


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    Warren W. LOVELL, et al., Appellants/Cross-Appellees, v. Martiniano J. PEREZ, et al., Appellees/Cross-Appellants.
    No. 3D18-337
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    Easley Appellate Practice PLLC, and Dorothy F. Easley, Coral Gables; Juan Gabriel Miguel, for appellants/cross-appellees.
    Shook, Hardy & Bacon LLP, and Sergio E. Pagliery, Miami, for appellees/cross appellants.
    Before SUAREZ, LOGUE, and LINDSEY, JJ.
   LOGUE, J.

Warren and Leslie Lovell appeal a May 21, 2018 final judgment declaring that Martiniano J. and Sofia Perez were not liable to indemnify the Lovells for the real estate commission of the Lovells' listing agent. The judgment also awarded the Perezes $226,240 in attorney's fees. We affirm.

This dispute resulted from the Lovells' sale of their property to the Perezes for $12.4 million. To sell the property, the Lovells entered into a listing agreement with the real estate brokerage firm of One Sotheby's International Realty. As a result of the listing, the Perezes were shown the property by the real estate brokerage firm of Esslinger-Wooten-Maxwell, Inc. During early negotiations, the Lovells were represented by Sotheby's and the Perezes by Esslinger-Wooten. After becoming dissatisfied with Sotheby's services, however, the Lovells canceled their listing agreement with Sotheby's. The parties then agreed to the sale of the property and the sale closed.

The Perezes paid the real estate commission of their real estate broker, Esslinger-Wooten. The Lovells, however, did not pay the commission claimed by Sotheby's. Sotheby's sued the Lovells for the commission. The Lovells wrote a letter demanding that the Perezes indemnify them for Sotheby's claim. The Perezes then intervened in the lawsuit seeking a declaration that they were not liable to indemnify the Lovells. The Lovells counterclaimed against the Perezes. A jury found the Lovells liable for Sotheby's commission. The trial judge entered a judgment on the pleadings for the Perezes on their suit against the Lovells. The judge also entered a summary judgment for the Perezes on the Lovells' counterclaim against the Perezes. Ultimately, the trial court entered the final judgment at issue. The Lovells timely appealed.

This appeal turns on the provision of the sales contract regarding real estate broker's commissions which required the Lovells, as sellers, to indemnify the Perezes, as buyers, in certain circumstances, and the Perezes, as buyers, to indemnify the Lovells, as sellers, in circumstances. The two critical sentences read:

If a real estate agent/broker claims a commission by virtue of having a listing agreement with the SELLERS, whether on or before the closing date, or by virtue of a verbal or other agreement, SELLERS will indemnify and hold the BUYERS harmless for all fees and costs, including the fee of BUYERS' attorney of choice should BUYERS or either of them be joined in any suit or subpoenaed as a witness or otherwise or if BUYERS must set forth BUYERS' position to such agent/broker by letter or otherwise upon contact by such agent/broker. If a real estate agent/broker claims a commission by virtue of showing the subject property to BUYERS or being a "procuring cause" of the purchase then BUYERS will indemnify and holder [sic] SELLERS harmless for all fees and costs, including the fee of SELLERS' attorney of choice should SELLERS or either of them be joined in any suit or subpoenaed as a witness or otherwise or if SELLERS must set forth SELLERS' position to such agent/broker by letter or otherwise upon contact by agent/broker. The terms of the Paragraph along with Paragraph 15 of the Contract will survive the closing for five (5) years.

The first sentence of this provision clearly establishes that the Lovells, as sellers, will indemnify the Perezes, as buyers, from the claims for commissions based on "a verbal or other agreement." The gravamen of count 1 of Sotheby's complaint claim against the Lovells was their listing agreement. The Lovells contend, however, this provision was never triggered because the language "joined in any lawsuit" does not encompass the Perezes' voluntarily joining Sotheby's lawsuit against the Lovells. We reject this argument because we find the language broad enough to include a situation, like here, where the Perezes joined the lawsuit only because they received a demand letter from the Lovells.

The Lovells next argue that their right to indemnification as sellers contained in the second sentence was triggered because it refers to a claim by a broker who was a "procuring cause" and the jury found that their broker, Sotheby's, was a procuring cause. Accordingly, the Lovells maintain, the indemnity provision gives them the right to be indemnified by the Perezes from a claim based on the Lovells' own wrongful failure to pay their broker. The Lovells essentially interpret the second sentence making the Perezes responsible for both parties' real estate commissions. We reject this strained interpretation for three reasons.

First, it would essentially render into a nullity the first sentence of this provision which clearly provides the Lovells will indemnify the Perezes under certain circumstances. See Philip Morris Inc. v. French, 897 So.2d 480, 488 (Fla. 3d DCA 2004) ("Courts are required to construe a contract as a whole and give effect, where possible, to every provision of the agreement."). Second, it runs counter to the law that, in the absence of clear and unequivocal contract language to the contrary, an indemnity agreement regarding broker's commissions does not encompass one party's wrongful failure to pay its own broker. Cordis Corp. v. Baxter Healthcare Corp., 678 So.2d 847, 848-49 (Fla. 3d DCA 1996). Finally, it is contrary to the patent intent of the contracting parties, in light of the Lovells' decision to cancel Sotheby's services while the parties were already negotiating the sale, to provide that each party be responsible for its own broker's commission. Courts deciding commercial disputes cannot ignore the obvious commercial realities underlying a contract.

Affirmed.


author: SUAREZ, J.

text:
    Stephen A. LEVIN, Alfonso Fernandez, Gold Coast Beverage Distributors, Inc., n/k/a RMET Holdings, Inc., Eran Holdings, Inc., and Gold Coast Holdings, Inc., Petitioners, v. Wilbur B. PRITCHARD, III, Respondent.
    No. 3D17-2711
    District Court of Appeal of Florida, Third District.
    Opinion filed October 31, 2018
    Greenberg Traurig, P.A., and Hilarie Bass, Elliot H. Scherker, Brigid F. Cech Samole, and Ian M. Ross, for petitioners.
    Rennert Vogel Mandler & Rodriguez, P.A., and Thomas S. Ward, for respondent.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

Petitioners seek certiorari relief from the trial court's order granting Respondent Wilbur Pritchard's ("Pritchard") motion to amend his complaint to assert a claim for punitive damages pursuant to section 768.72, Florida Statutes (2018). Because we find that the trial court applied the correct law and complied with the procedural requirements of section 768.72, we are compelled to deny the petition.

This case stems from Pritchard's retirement from Gold Coast, a Florida beer distributor. In May 2012, Pritchard, who was Gold Coast's Vice President of Facilities, notified Gold Coast of his intention to retire. Pritchard and Gold Coast executed a separation agreement in June 2012. While Pritchard worked for Gold Coast, he was granted units in an equity plan. Upon retirement, Pritchard was awarded over one million dollars for those units.

In 2014, Reyes Group, a national beer distributor, approached Gold Coast about an acquisition. Gold Coast had rejected earlier acquisition attempts in 2010 and 2012, but this time, the parties entered into an asset purchase agreement whereby a wholly owned subsidiary of Reyes would acquire Gold Coast. When Pritchard learned of the acquisition, he sued Gold Coast, other corporate defendants (Eran and GC Holdings), and individuals Stephen Levin and Alfonso Fernandez because they did not notify him of Reyes Group's acquisition attempts before he retired. He claims that he would not have retired had he known about the prior negotiations since his equity plan units would have been worth much more if he had remained.

In July 2017, Pritchard filed a motion to amend his complaint with a claim for punitive damages pursuant to section 768.72. The trial court held two hearings and ultimately granted Pritchard's motion to amend. Petitioners now seek to quash the trial court's order, alleging that the court failed to comply with the requirements of section 768.72.

Generally, certiorari relief is appropriate only if a petitioner establishes a departure from the essential requirements of the law resulting in material injury that cannot be remedied on appeal. See Robins v. Colombo, 253 So.3d 94, 95-96, 2018 WL 3747891 (Fla. 3d DCA Aug. 8, 2018) ; Nieves v. Viera, 150 So.3d 1236, 1238 (Fla. 3d DCA 2014). Because section 768.72 creates "a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages ... a plenary appeal cannot restore a defendant's statutory right under section 768.72...." Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla. 1995). We therefore have certiorari jurisdiction to review an order granting leave to amend a complaint to include punitive damages. Id. at 519 ; TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So.3d 516, 519 (Fla. 3d DCA 2016) ; see also Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011) (holding that material injury that cannot be remedied on appeal is a jurisdictional requirement that must be analyzed before considering whether the trial court departed from the essential requirements of the law").

In determining whether the trial court departed from the essential requirements of the law when it granted Pritchard's motion to amend, we must limit our review to whether the court complied with the procedural requirements of section 768.72. Globe, 658 So.2d at 520 ; Robins, 253 So.3d at 95-96 ; TRG Desert Inn Venture, 194 So.3d at 519 ; Royal Caribbean Cruises, Ltd. v. Doe, 44 So.3d 230, 233 (Fla. 3d DCA 2010). Moreover, we are not permitted "to review the sufficiency of the evidence considered by the trial court in granting leave to amend the complaint to add a claim for punitive damages." Robins, 253 So.3d at 96 (quoting SAP Am., Inc. v. Royal Flowers, Inc., 187 So.3d 946 (Fla. 3d DCA 2016) ); see also Globe, 658 So.2d at 520. Finally, certiorari relief is only appropriate "when the record establishes that a trial court applied the incorrect law; certiorari relief is not available to remedy an incorrect application of the correct law." TRG Desert Inn Venture, 194 So.3d at 519.

Based on our review of the record below, we are unable to find that the trial court failed to comply with the procedural requirements of section 768.72. Pritchard's motion to amend contained a detailed table outlining the record evidence and sworn declarations that provided the basis for his punitive damages claim. Moreover, the trial court conducted two hearings on the motion and requested supplemental memoranda as to the evidentiary basis for punitive damages against the corporate defendants. Further, Petitioners presented their arguments against Pritchard's motion to amend in their written opposition, during both hearings, and in their response to Pritchard's court-ordered supplemental memorandum. It is also clear from the record that the trial court applied the correct law. The court, in its order granting the motion to amend, found-based on Pritchard's motion, the supplemental memoranda, and the arguments presented during the two hearings-that Pritchard "made the requisite showing by evidence in the record or proffered by plaintiff that would support a reasonable basis for recovery of punitive damages as required by Fla. Stat. § 768.72 against defendants ...."

Although we may disagree that there was sufficient evidence to provide a reasonable basis for Pritchard's punitive damages claim, our narrow standard and scope of review prevent us from quashing the trial court's order on that basis. We therefore deny the petition for writ of certiorari.

Petition denied.

      Stephen A. Levin; Alfonso Fernandez; Gold Coast Beverage Distributors, Inc. ("Gold Coast"); n/k/a RMET Holdings, Inc.; Eran Holdings, Inc. ("Eran"); Gold Coast Holdings, Inc. ("GC Holdings").

      Levin was Gold Coast's majority owner and Chairman; Fernandez was its Chief Operating Officer.

      Section 768.72(1)"requires a plaintiff to provide the court with a reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in plaintiff's complaint." Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla. 1995).

      As this Court observed in TRG Desert Inn Venture, "the granting of a motion for leave to amend a complaint to add a punitive damages claim can be a 'game changer' in litigation. Allowing a plaintiff to proceed with a punitive damages claim subjects the defendant to financial discovery that would otherwise be off limits ... and potentially subjects the defendant to uninsured losses." 194 So.3d at 520 n.5 (citations omitted). Consequently, review by interlocutory appeal rather than by way of a petition for writ of certiorari would perhaps be more appropriate. See id. ("We urge the Florida Bar's Appellate Court Rules Committee to review rule 9.130(a)(3) of the Florida Rules of Appellate Procedure to consider whether to include in the rule's catalogue of appealable, non-final orders a trial court's order granting a motion for leave to add a punitive damages claim.").


author: Per Curiam.

text:
    Wilson Brandon SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2992
    District Court of Appeal of Florida, First District.
    November 6, 2018 Rehearing Denied December 12, 2018
    Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges his conviction for sexual battery raising various grounds for error. We affirm and write only to address Appellant's contention that the trial court improperly sentenced him to a first degree felony under section 794.011(5)(a), Florida Statutes, and improperly assessed an adult-on-minor sentence points multiplier under section 921.0024(2), Florida Statutes, in absence of a jury verdict specifying the victim's age.

The age of the victim increased the maximum sentence faced by Appellant and was therefore an element of the crime which needed to be proven. See Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ; Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ; Insko v. State , 969 So. 2d 922 (Fla. 2007) ; see also Coggins v. State , 921 So.2d 758 (Fla. 1st DCA 2006). However, any error here is subject to a harmless error analysis. "Where an Apprendi / Blakely error has occurred, the harmless error analysis asks, 'whether the record demonstrates beyond a reasonable doubt that a rational jury would have found [the facts at issue].' " DeLaFe v. State , 124 So.3d 293, 294 (Fla. 1st DCA 2013) (quoting Galindez v. State , 955 So.2d 517, 523 (Fla. 2007) ); see also Perritte v. State , 912 So.2d 332 (Fla. 5th DCA 2005) (holding that since defendant's age was not in dispute there was no error in failing to instruct the jury on that element).

The issues in dispute at trial were whether the incidents happened and whether the victim was under Appellant's custodial authority. The victim and her mother testified to the victim's age, and it was not in dispute. Further, during closing arguments defense counsel called the victim "[a] 16 year old." If any error occurred here, it was harmless beyond a reasonable doubt. Therefore, the judgment and sentence are AFFIRMED .

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

      The possibility of jury pardon is not a consideration in conducting this harmless error analysis.


author: LINDSEY, J.

text:
    Stevenson CHARLES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0361
    District Court of Appeal of Florida, Third District.
    Opinion filed November 7, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.
   LINDSEY, J.

A jury found Stevenson Charles guilty of first-degree murder (Count I), armed robbery (Count II), and grand theft auto (Count III) on January 26, 2017. The trial court sentenced Charles to consecutive life sentences for Counts I and II, and to a concurrent five-year sentence for Count III. On appeal, Charles contends that the trial court abused its discretion by denying his motion for a mistrial based on two improper comments made by the prosecutor. We disagree and for the reasons set forth below, affirm.

On November 28, 2008, Martin Sprung was shot and killed inside the pawnshop he owned in North Miami. On the day of the incident, Charles and Passion Carr went to Sprung's pawnshop together and were inside at the time of the shooting. Both Charles and Carr testified at trial, with each blaming the other for shooting Sprung. On appeal, Charles asserts that the following comments made by the prosecutor were improper:

[PROSECUTOR]: Okay. So you looked for girls, and you exploit them; right?
[CHARLES]: You could say that.
[PROSECUTOR]: You could say that. In fact, you indicated on direct, your very first words, is I'm a hustler; right?
[CHARLES]: Yes, ma'am.
[PROSECUTOR]: And you're trying to hustle this jury with that testimony that you just gave to your defense counsel. You're trying to hustle them, that you hustled those girls, and like you tried to hustle Martin Sprung; isn't that right?
[CHARLES]: Wrong.
[PROSECUTOR]: Okay. So let's talk about what you told him on direct because I'm not going to let you hustle this jury.
[DEFENSE COUNSEL]: Objection -
[PROSECUTOR]: All right.
[DEFENSE COUNSEL]: Objection, Judge. She can ask questions, not make comments.
[PROSECUTOR]: I'll ask questions. I'll keep going.
THE COURT: Sustained.

Shortly thereafter, the prosecutor questioned Charles about his connection to the victim's stolen vehicle. After Charles repeatedly denied any knowledge about the stolen car, the prosecutor asked, "[y]ou expect this jury to believe that?" Defense counsel's contemporaneous objection was sustained by the trial court. A sidebar conference was subsequently held and defense counsel moved for a mistrial, explaining that multiple objections were made to the prosecutor's "speaking arguments." Defense counsel further explained that the cumulative nature of the prosecutor's speaking arguments were so improper that a mistrial was warranted. The trial court denied the motion for a mistrial, reasoning that it had sustained defense counsel's objections and that the prosecutor moved on to different questions.

On appeal, Charles asserts that a new trial is warranted based on the prosecutor's improper comments and questions that were designed to attack his integrity. The State argues that the objected-to remarks were not properly preserved for appellate review because Charles raises a different legal ground for the objection on appeal than the "speaking arguments" basis provided at trial. We agree.

It has long been settled law in Florida that "[t]o be preserved for appeal, 'the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.' " Chamberlain v. State, 881 So.2d 1087, 1100 (Fla. 2004) (quoting Spann v. State, 857 So.2d 845, 852 (Fla. 2003) ). Accordingly, a party must satisfy the following three components to properly preserve an issue for appellate review: "(1) a timely, contemporaneous objection; (2) a legal ground for the objection and; (3) '[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.' " Fleitas v. State, 3 So.3d 351, 355 (Fla. 3d DCA 2008) (quoting Harrell v. State, 894 So.2d 935, 940 (Fla. 2005) ). "The purpose of this rule is to place the trial court on notice that an error may have been committed and therefore provide the trial court with an opportunity to rectify the error prior to any appellate review." Id. at 355.

At trial, defense counsel stated that the first objection was based on the prosecutor making comments instead of asking questions. Defense counsel made no assertion that the legal ground for objecting to the prosecutor's "hustle" comments was because it improperly attacked Charles's integrity. During a subsequent exchange about the victim's stolen vehicle, defense counsel objected after the prosecutor asked Charles whether "[y]ou expect this jury to believe that?" During a sidebar discussion, defense counsel again stated that the legal ground for the objection was the prosecutor's "speaking arguments" and that the cumulative nature of the errors warranted a mistrial.

On appeal, however, Charles raises a different legal basis, now arguing that a new trial is required because the prosecutor's comments were an improper attack on his integrity. Because Charles asserts a different legal basis from that presented below, the objected-to remarks were not properly preserved for appellate review. See Murray v. State, 3 So.3d 1108, 1117 (Fla. 2009) ("For an issue to be preserved for appeal, it must be presented to the lower court, and the specific legal argument or ground to be argued on appeal must be part of that presentation." (quoting Doorbal v. State, 983 So.2d 464, 492 (Fla. 2008) ) ). "While no magic words are needed to make a proper objection, the articulated concern must be sufficiently specific to inform the court of the perceived error." Id. at 1117 (internal quotations and citations omitted). Here, it was not.

Further, even if the objected-to comments had been properly preserved, we find Charles' argument without merit.

"A ruling on a motion for mistrial is within the sound discretion of the trial court, and we review the denial of that motion under a standard of abuse of discretion." Wellons v. State, 87 So.3d 1223, 1225 (Fla. 3d DCA 2012) (citing Salazar v. State, 991 So.2d 364, 372 (Fla. 2008) ). Here, the prosecutor made two improper comments. However, the trial court properly sustained defense counsel's objections, the comments were isolated and not pervasive, and no curative instruction was requested. See Ledea v. State, 121 So.3d 88, 89 (Fla. 3d DCA 2013) (concluding that the denial of the defendant's motion for mistrial was not an abuse of discretion where the objections were properly sustained, the defendant declined the trial court's invitation to give a curative instruction, the objected-to question was isolated, and the jury was properly instructed at the close of the evidence).

Moreover, the evidence of guilt was overwhelming: (i) Carr testified that she was with Charles when he shot and killed Sprung; (ii) Charles' fingerprint was found on a piece of paper underneath the victim's body; (iii) Charles was in possession of the victim's firearm when arrested by police on December 8, 2008; (iv) the State proffered testimony connecting Charles to the victim's stolen vehicle; and (v) the medical examiner testified that the victim suffered a gunshot entry wound consistent with a trajectory from Charles' height and inconsistent with Carr's height. Accordingly, there is no reasonable probability that the two isolated comments made by the prosecutor affected the verdict, and therefore any "such error is harmless and does not require reversal." Braddy v. State, 111 So.3d 810, 837 (Fla. 2012) (citing Hitchcock v. State, 755 So.2d 638, 643 (Fla. 2000) ). See also Mora v. State, 211 So.3d 308, 310 (Fla. 3d DCA 2017) (holding that reversal was not required because the prosecutor's improper "comments were isolated and not pervasive" and the "evidence of guilt was overwhelming") (internal quotation omitted).

Based on the foregoing, we conclude that the trial court did not abuse its discretion in denying Charles' motion for a mistrial.

Affirmed.

      Carr was also arrested and charged with first-degree murder, armed robbery, and grand theft of a motor vehicle in connection with Sprung's killing. Carr ultimately pleaded guilty to accessory after the fact in exchange for testifying against Charles.

      Fundamental error is the only recognized exception to the preservation requirements. See § 924.051(3), Fla. Stat. (2016) ; Cherisma v. State, 86 So.3d 1195, 1197 (Fla. 3d DCA 2012). However, to be fundamental, the error must be one that "reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Caraballo v. State, 39 So.3d 1234, 1249 (Fla. 2010) (citations omitted).


author: PER CURIAM.

text:
    Janis FLEMING, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-1647
    District Court of Appeal of Florida, Third District.
    Opinion filed November 7, 2018
    Law Offices of Grey and Mourin, and Jason Grey and Lana Cucchiella, for petitioner.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for respondent.
    Before EMAS, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Although the trial court properly decided the other issues on review, the circuit court departed from the essential requirements of law when it ruled it was legally barred from viewing the videotape of the altercation at the heart of this matter, as the State commendably concedes. Precisely because the county court expressly based its factual finding on a determination that the videotape contradicted the testimony of the defendant, the circuit court should have included a review of the videotape in deciding whether the county court's fact finding was supported by any competent substantial evidence.

Petition granted.


text:
    Dennis HEGSTROM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2669
    District Court of Appeal of Florida, Third District.
    Opinion filed November 7, 2018.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before LAGOA, SCALES and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See State v. Michel, 257 So.3d 3, 2018 WL 3613383 (Fla. July 12, 2018) ("[W]e hold that juvenile offenders' sentences of life with the possibility of parole after 25 years do not violate the Eighth Amendment of the United States Constitution as delineated by the United States Supreme Court in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Virginia v. LeBlanc, --- U.S. ----, 137 S.Ct. 1726, 198 L.Ed.2d 186 (2017) ; Romero v. State, 105 So.3d 550, 552-53 (Fla. 1st DCA 2012) ("[A]ppellant was not a juvenile at the time of the offense. He urges us to overlook this fact by focusing on the juvenile nature of his mental and emotional development. He argues, in essence, that he was a juvenile in all but age. ... Graham[ v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ] is not controlling for an adult defendant.").


text:
    Ashley GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4120
    District Court of Appeal of Florida, First District.
    November 7, 2018 Rehearing Denied December 20, 2018
    Ashley Griffin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied. See Fla. R. App. P. 9.141(c)(5)(A).

Wetherell, Makar, and Winsor, JJ., concur.


author: HARRIS, J.

text:
    Daniel LEBLANC, Appellant, v. Yuliya Markoa ACEVEDO, M.D. and Access Healthcare, Appellees.
    Case No. 5D17-2174
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2018 Rehearing Denied December 10, 2018
    Marie A. Mattox, and Gautier Kitchen of Marie A. Mattox, P.A. Tallahassee, for Appellant.
    Dinah S. Stein, Sharon R. Vosseller, John W. Bocchino, and Mark Hicks of Hicks, Porter, Ebenfeld & Stein, PA, Miami, for Appellees.
   HARRIS, J.

Daniel LeBlanc appeals the final judgment and underlying order granting Yuliya Acevedo, M.D. and Access Healthcare's motion for summary judgment. LeBlanc argues that the trial court erred in holding that he could not bring a claim for breach of fiduciary duty and that he failed to demonstrate a causal link between Acevedo's negligence and his injury. We agree and reverse on both counts.

LeBlanc worked as a correctional officer for the Department of Corrections (DOC) from 1994 until his employment was terminated in 2011. In 2010, while still employed, LeBlanc sought treatment from Acevedo for high blood pressure and was prescribed high blood pressure medication. Acevedo also recommended that LeBlanc take time off of work due to his blood pressure and that he see a psychiatrist. Beginning in September 2010, LeBlanc took leave under the Family Medical Leave Act (FMLA) in part to deal with his high blood pressure. He visited Acevedo for a second and final time in November 2010, at which point Acevedo determined that LeBlanc's blood pressure was stable and that he could return to work. LeBlanc disagreed and refused to return to work.

Soon thereafter, DOC sent a questionnaire to Acevedo regarding LeBlanc's fitness to return to work. Included with that correspondence was a blank medical release form for LeBlanc to sign. Without receiving or even requesting LeBlanc's authorization, Acevedo returned the questionnaire to DOC, noting that while LeBlanc was medically stable, he needed a psychiatric evaluation before he could resume his duties as a corrections officer. Acevedo attached some of LeBlanc's medical records to her response to DOC.

Upon receipt of LeBlanc's medical records, including those sent by Acevedo, DOC referred LeBlanc to a psychiatrist for a fitness for duty evaluation. The psychiatrist found LeBlanc unfit to return to work, and in February 2011, DOC terminated LeBlanc's employment. LeBlanc appealed his termination to the Public Employees Relation Commission (PERC) which ultimately determined that DOC's decision to terminate LeBlanc's employment was appropriate. However, it was during the PERC hearing that LeBlanc first learned that Acevedo had released his medical records without his authorization. LeBlanc subsequently sued Acevedo and her office, Access Healthcare, alleging common law claims of breach of fiduciary duty and negligence.

In the first count of his complaint, LeBlanc alleged that the doctor-patient relationship he had with Acevedo created a fiduciary duty owed by Acevedo to LeBlanc. LeBlanc further alleged that Acevedo breached that duty by disclosing his confidential medical records without his consent and that this breach resulted in damages to LeBlanc. Despite sufficiently stating a cause of action for common law breach of fiduciary duty, the trial court concluded that LeBlanc was not authorized to bring a claim under section 456.057, Florida Statutes, as that statute does not provide a private right to a cause of action. Contrary to the lower court's conclusion, LeBlanc brought his claim against Acevedo under the common law and never claimed that section 456.057 created a private cause of action.

Breach of fiduciary duty is a common law tort requiring proof of "the existence of a fiduciary duty, and the breach of that duty such that it is the proximate cause of the plaintiff's damages." Gracey v. Eaker, 837 So.2d 348, 353 (Fla. 2002). LeBlanc alleged a relationship of trust and confidence between him and Acevedo that was sufficient to establish the basis of a common law fiduciary duty. While not suing specifically under section 456.057, LeBlanc correctly points out that statutory confidentiality requirements can give rise to fiduciary duties.

In Gracey, the Florida Supreme Court held that section 419.0147, Florida Statutes (1999), which provides that all communication between licensed clinicians, counselors and psychotherapists shall be confidential, "created a clear statutory duty that, if violated, generated a viable cause of action in tort, specifically a cause of action for breach of fiduciary duty." 837 So.2d at 353.

Here, Acevedo was LeBlanc's doctor and, under Florida law, any information he disclosed to her was confidential. Section 456.057(8), provides that "information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential." In Gracey, the supreme court held that the psychotherapist-patient confidentiality statute "unambiguously indicates the intent of the Legislature to protect from unauthorized disclosure the confidences reposed by a patient in his or her psychotherapist." 837 So.2d at 355. Similarly, section 456.057 indicates an intent to protect patients from "unauthorized disclosure," and just as the supreme court reasoned that a psychotherapist's "duty not to disclose is therefore actionable under the common law cause of action for breach of fiduciary duty," so should a breach of the physician's duty not to disclose be actionable in tort on the same principle. Id. Like the statutorily imposed psychotherapist-patient confidentiality requirements, the requirement of doctor-patient confidentiality creates "a relation of trust and confidence ... between the parties" giving rise to a fiduciary duty, the breach of which is actionable in tort. Id. at 352.

Because the violation of a statutorily-imposed duty of confidentiality is actionable under the common law, the trial court erred when it held that LeBlanc could not bring a claim for breach of fiduciary duty based on Acevedo's unauthorized disclosure of LeBlanc's medical records.

In his second count, LeBlanc alleged that Acevedo owed him a duty to exercise reasonable and ordinary care to keep his medical records confidential and that her negligence in failing to do so caused damages including the loss of LeBlanc's employment. Concluding that LeBlanc would be unable to prove "under any theory" that Acevedo's negligence was the proximate cause of his damages, the trial court granted Acevedo's motion for summary judgment. This was error.

In negligence cases, Florida courts follow the "more likely than not" rule regarding causation and require proof that the negligence probably caused the plaintiff's injury.

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla. 1984) (quoting Prosser, The Law of Torts § 241 (4th ed. 1971) ).

However, "the question of whether defendant's negligence was the proximate cause of the injury is generally one for the jury unless reasonable men could not differ in their determination of that question." Helman v. Seaboard Coast Line R.R., 349 So.2d 1187, 1189 (Fla. 1977) ; Cooper v. Fenton Brace & Limb Co., 350 So.2d 1106, 1107 (Fla. 3d DCA 1977) ("[Q]uestions of ... negligence causation are peculiarly questions of fact which should be permitted to go to the jury.").

Granting summary judgment is improper "based on a finding that the plaintiff has not come forward with any evidence of causation," as such a finding "improperly shifts the burden to the non-movant to establish causation." Pitcher v. Zappitell, 160 So.3d 145, 148 (Fla. 4th DCA 2015) ; O'Malley v. Ranger Constr. Indus., 133 So.3d 1053, 1056 (Fla. 4th DCA 2014) ("[S]ummary judgment should not be granted based on a non-movant's failure to meet its trial burden of proof on the issue of causation.").

Thus, in this case, to succeed on a motion for summary judgment based on lack of causation, Acevedo had the burden to conclusively establish that, even with every reasonable inference from the evidence drawn in favor of LeBlanc, LeBlanc would be unable to prove that the unauthorized disclosure of his medical information more likely that not caused his termination. See Sweet v. Sheehan, 932 So.2d 365, 368-69 (Fla. 2d DCA 2006). If there was "even the slightest doubt concerning a material issue of fact," or if the trial court judge was required to "determine factual issues or consider ... the weight of the conflicting evidence," then summary judgment was error. Wal-Mart Stores Inc. v. Tracz, 799 So.2d 413, 414-15 (Fla. 5th DCA 2001) ; Lane v. Talloni, 626 So.2d 316, 317 (Fla. 5th DCA 1993) ("[A] trial court cannot weigh the evidence on a motion for summary judgment." (citing Jones v. Stoutenburgh, 91 So.2d 299, 302 (Fla. 1956) ) ).

In its order granting summary judgment, the trial court made several findings of fact from which it ultimately determined that, as a matter of law, Acevedo's negligence was not the cause of LeBlanc's termination. It was error for the trial court to make these factual determinations in light of the conflicting evidence and testimony and the repeated speculation as to what would likely have occurred had Acevedo not disclosed his medical information. See Tracz, 799 So.2d at 414-15 ; Lane, 626 So.2d at 317.

Resolving all conflicting evidence in this case in favor of the non-moving party, the issue of causation should have been submitted to a jury. It is certainly plausible that LeBlanc could have shown that Acevedo's improper release of his medical information caused DOC to order a psychiatric evaluation which then led to the decision to terminate LeBlanc's employment.This theory is not unreasonable, and where reasonable people can differ on the issue of causation, the issue is not properly decided by the trial court as a matter of law. Hoffman v. Bennett, 477 So.2d 43, 44 (Fla. 3d DCA 1985).

REVERSED and REMANDED.

ORFINGER and WALLIS, JJ., concur.


author: SILBERMAN, Judge.

text:
    T.A.K., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3378
    District Court of Appeal of Florida, Second District.
    Opinion filed November 9, 2018
    Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

T.A.K. appeals a disposition order withholding adjudication of delinquency for the offense of trespass in an unoccupied conveyance and placing him on juvenile probation. Because the State failed to prove that T.A.K. knew or should have known that the car the police found him in was stolen, we reverse the disposition order and remand for an order of dismissal.

The State presented the following evidence. The owner of the stolen vehicle woke up to find her car missing. The victim did not give T.A.K. or anyone else permission to be in her car.

The car was tracked to an apartment building by use of the car's OnStar system and was found backed into a parking space. When Officer Stanek initially approached the car, she saw one male who was reclining in the driver's seat, but she could not identify the person. She used the victim's extra key to lock the car doors before approaching the car. No one entered or left the car while she and Officer Damon were observing it. While she did see movement in the vehicle, when the officers made contact no one was in the driver's seat.

Officer Stanek approached the passenger side, found L.R. in the front passenger seat, and ordered him out of the car at gunpoint. Officer Damon opened the driver's door and saw T.A.K. lying on the floor "squished" down "[i]n between the two back seats." When Officer Damon opened the door, T.A.K. was awake and was looking at the officer. He was cooperative. The keys were found in the center console next to L.R., and the car had no damage that would indicate it had been stolen.

T.A.K. moved for a judgment of dismissal at the end of the State's case and argued that the State had failed to prove that he knew or should have known the car was stolen. The trial court stated that the officers saw "movement within the vehicle but no one exited" and that "the position that [T.A.K.] was found to be laying in awake is not one the court customarily finds people position themselves in the vehicle when using it in an appropriate way." The trial court further found "that the positioning in the car, laying in the car, parked in an area, all of these things are unconventional, unusual ways of using the vehicle if in fact using it a lawful way." The court denied the motion.

Our review of the denial of a motion for judgment of dismissal is de novo, and we consider the evidence in the light most favorable to the State. A.L.H. v. State, 205 So.3d 782, 783 (Fla. 2d DCA 2016). A judgment of dismissal is proper if the State fails to present sufficient evidence to establish a prima facie case. Fla. R. Juv. P. 8.110(k) ; E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003). Sufficient evidence to support an adjudication exists when "a rational trier of fact could find that the elements of the crime have been established beyond a reasonable doubt." K.W. v. State, 983 So.2d 713, 715 (Fla. 2d DCA 2008) (quoting E.A.B., 851 So.2d at 310 ). In reviewing the denial of a motion for judgment of dismissal at the end of the State's case, we recognize that a juvenile's testimony given later during the defense case is not before the trial court "and cannot satisfy the State's burden of proof." E.A.B., 851 So.2d at 310 (citing Fla. R. Juv. P. 8.110(k) ).

The delinquent act of trespass of a conveyance requires that the trespass be willful. See § 810.08(1), Fla. Stat. (2016) ; A.L.H., 205 So.3d at 783. When the conveyance is a stolen vehicle, for the trespass to be willful the State must prove that a passenger in the vehicle knew or should have known that the vehicle was stolen. A.L.H., 205 So.3d at 783 ; A.H. v. State, 151 So.3d 48, 50 (Fla. 4th DCA 2014). Evidence that a person who was in a stolen vehicle fled from law enforcement is, by itself, insufficient to prove the knowledge element. E.A.B., 851 So.2d at 310 ; A.H., 151 So.3d at 50 ; D.L. v. State, 138 So.3d 499, 501 (Fla. 3d DCA 2014).

Here, the keys to the car were found in the center console next to L.R., and the car had no damage indicating that it had been stolen. Taken in the light most favorable to the State, a reasonable interpretation of T.A.K.'s position in the car when he was found is that he was hiding. For the purpose of analyzing whether an individual has knowledge of whether a vehicle is stolen, we cannot make a meaningful distinction between fleeing from a stolen vehicle and hiding in the back seat of a stolen vehicle. Had T.A.K. left the back seat and fled upon the officers' approach, that evidence would be insufficient to prove that he knew or should have known that the car was stolen. Of course, just as there are many reasons why a juvenile might flee from law enforcement, those reasons would apply to hiding as well. If fleeing is insufficient to establish the knowledge element, then so too is hiding.

Because the State failed to present sufficient evidence that T.A.K. knew or should have known the car was stolen, the trial court should have granted the motion for judgment of dismissal. See Fla. R. Juv. P. 8.110(k). Therefore, we reverse the disposition order withholding adjudication and placing T.A.K. on juvenile probation and remand for an order granting his motion for judgment of dismissal.

Reversed and remanded.

KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Patrick CAMPBELL, Appellant, v. Steve SIMM, et al., Appellees.
    No. 3D18-1062
    District Court of Appeal of Florida, Third District.
    Opinion filed November 14, 2018.
    Campbell Legal Group, P.L.L.C., and Debbie R. Campbell, for appellant.
    Law Offices of William C. Ruggiero, and William C. Ruggiero (Fort Lauderdale) for appellees.
    Before LAGOA, EMAS and LUCK, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).


text:
    M.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-104
    District Court of Appeal of Florida, Third District.
    Opinion filed November 14, 2018
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).


author: LaROSE, Chief Judge.

text:
    CHERNOFF DIAMOND & CO., LLC, Appellant, v. GALLIN ASSOCIATES, INC., d/b/a Gallin Associates, Appellee.
    Case No. 2D18-1891
    District Court of Appeal of Florida, Second District.
    Opinion filed November 14, 2018
    Christopher L. DeCort of Johnson & Cassidy, P.A., Tampa, for Appellant.
    Sheila Skellie of the Law Office of David J. Kurland, Largo, for Appellee.
   LaROSE, Chief Judge.

Chernoff Diamond & Co., LLC, appeals the trial court's nonfinal order setting aside the final default judgment entered against Gallin Associates, Inc. We have jurisdiction, Fla. R. App. P. 9.030(b)(1)(B) ; Fla. R. App. P. 9.130(a)(5), and reverse.

We review the trial court's order for gross abuse of discretion. See United Capital Funding Corp. v. Technamax, Inc., 946 So.2d 63, 64 (Fla. 2d DCA 2006). To set aside the final default judgment, Gallin had to show: "(1) that the failure to file a responsive pleading was the result of excusable neglect; (2) that it has a meritorious defense; and (3) that it acted with due diligence in seeking relief from the default." See Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 301 (Fla. 2d DCA 2004) (citing Goodwin v. Goodwin, 559 So.2d 109 (Fla. 2d DCA 1990) ).

Gallin failed to prove excusable neglect. The record demonstrates that Gallin's president, Lawrence Gallin, was served with the complaint and knew he had to respond. Yet, he put the complaint and summons in a drawer, left for vacation, and forgot about the lawsuit until he received notice of the entry of a final judgment.

We are constrained to reverse and remand for the trial court to reinstate the final default judgment. See Bethesda Mem'l Hosp., Inc. v. Laska, 977 So.2d 804, 807 (Fla. 4th DCA 2008) ("[A] default will not be set aside where the defaulted party or his attorney (1) simply forgot or (2) intentionally ignored the necessity to take appropriate action; that is to say, where the conduct could reasonably be characterized as partaking of gross negligence or as constituting a willful and intentional refusal to act." (quoting Jeyanandarajan v. Freedman, 863 So.2d 432, 433-34 (Fla. 4th DCA 2003) ) ); see, e.g., Orlando Partners, Ltd. v. Classic Tour Lines, 492 So.2d 1117, 1117 (Fla. 3d DCA 1986) (holding there was no excusable neglect where wife stated she told her husband about receipt of summons but forgot to tell him about hearing on motion for entry of default and husband did not recall knowledge of summons).

Reversed and remanded.

SILBERMAN and ATKINSON, JJ., Concur.


text:
    In the INTEREST OF A.S., a Child.
    Guardian Ad Litem Program, Appellant, v. A.S. and R.S.; and Department of Children and Families, Appellees.
    Case No. 2D18-2625
    District Court of Appeal of Florida, Second District.
    Opinion filed November 21, 2018
    Sara Elizabeth Goldfarb, Tallahassee, for Appellant.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellee A.S.
    Toni A. Butler of Alderuccio & Butler, LLC, Naples, for Appellee R.S.
    Meredith K. Hall, Bradenton, for Appellee Department of Children and Families.
   PER CURIAM.

Affirmed.

KELLY, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Rafael LESENDE, DOC# Y63264, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4157
    District Court of Appeal of Florida, Second District.
    Opinion filed November 14, 2018.
    Lee Hollander of Law Offices of Hollander and Hanuka, Naples, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Rafael Lesende challenges his convictions and sentences for perjury (count one), possession of a vessel with a missing or altered hull identification number (count two), and possessing a part-a boat engine-with a missing or altered identification number-an engine serial number (count three). We affirm Mr. Lesende's convictions and sentences without prejudice to any right he may have to seek postconviction relief under Florida Rule of Criminal Procedure 3.850 or Florida Rule of Appellate Procedure 9.141(d) on the question of whether, with respect to count three, the possession of a part of a vessel with a missing or altered serial number, as opposed to a missing or altered vessel or hull identification number, is actually criminalized by section 328.07(4)(b), Florida Statutes (2016).

Affirmed.

LaROSE, C.J., and KELLY and SALARIO, JJ., Concur.


text:
    Blasino FALCON, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, Appellee.
    No. 3D17-1799
    District Court of Appeal of Florida, Third District.
    Opinion filed November 21, 2018
    Legal Services of Greater Miami, Inc., and Jacqueline C. Ledon and Jeffrey M. Hearne, for appellant.
    Kelley Kronenberg, and Jacqueline Costoya (Fort Lauderdale), for appellee.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   LOGUE, J.

The Borrower, Blasino Falcon, appeals the trial court's entry of a final judgment in favor of the Lender, Wilmington Savings Fund Society, FSB. Because the judicial default was entered against the Borrower without allowing the Borrower a meaningful amount of time to respond to the motion for default, we reverse.

Factual Background

The Lender filed a foreclosure action against the Borrower on January 17, 2017. Thereafter, the Borrower, asserting that he was in the process of obtaining counsel, filed a pro se motion for extension of time to respond to the complaint. The Lender did not oppose the extension of time and, as a result, the response to the complaint became due on March 23, 2017. Approximately six days after the due date, on March 29, 2017, the Borrower's counsel filed a notice of appearance. However, counsel neither moved for another extension of time nor filed a responsive pleading.

On March 31, 2017, roughly one week after the responsive pleading was due pursuant to the extension, the Lender moved for judicial default. The motion for default was filed at 7:08 a.m. on the morning of March 31, 2017. At approximately 9:30 a.m. that same day, the trial court entered the default. Based upon the certificates of service, copies of the motion and the order of default were served upon the Borrower's counsel.

On May 4, 2017, the trial court entered a sua sponte order setting the trial in the case for July 7, 2017. The Borrower, on June 8, 2017, filed his motion to set aside the default, arguing that the default had been entered in violation of his due process rights. The Borrower did not provide an explanation for his delay in moving to vacate the default.

The following week, the Lender filed its motion for summary judgment and request for attorney's fees. The trial court heard the motion to set aside the default on July 6, 2017, but denied the motion. At the final hearing on July 7, 2017, the trial court, given the prior default, entered the final judgment of foreclosure against the Borrower. This appeal follows.

Under Florida law, "[i]t is fundamental that when a party against whom affirmative relief is sought has appeared in an action by filing or serving papers, that party shall be served with notice of the application for default as required by Florida Rule of Civil Procedure 1.500(b)." Yellow Jacket Marina, Inc. v. Paletti, 670 So.2d 170, 171 (Fla. 1st DCA 1996) ; see Int'l Energy Corp. v. Hackett, 687 So.2d 941, 943 (Fla. 3d DCA 1997) ("[W]hen a party against whom affirmative relief is sought has appeared in the action by filing or serving any papers, no default may be entered against such party without prior notice."). The Lender argues that "it is undisputed that the technical requirements of notice were accomplished," and therefore, the trial court did not err in entering the default. We disagree.

As we have held previously, "it is obvious that the 'notice of application' provided by 1.500(b) would be purposeless unless given in sufficient time to permit some meaningful action to be taken upon it after its receipt." Cohen v. Barnett Bank of S. Fla., 433 So.2d 1354, 1355 (Fla. 3d DCA 1983). In Cohen, we reversed a default and consequent judgments where the default order was entered two days after the application for default was served by mail. Id. Citing the five-day mailing period under Florida Rule of Civil Procedure 1.090(e), we acknowledged that "[s]ince the two day period in the notice given by the bank was less than that, and was patently insufficient even without reference to the rule, it is plain that the plaintiff did not comply with Fla. R. Civ. P. 1.500(b)." Cohen, 433 So.2d at 1355 (emphasis added).

Here, the time elapsed between the service and filing of the application for default and the entry of the default was roughly two-and-a-half hours, strikingly less than the already "patently insufficient" time period in Cohen. Accordingly, it was error for the trial court to enter the default against the Borrower. We therefore reverse the order of default and consequent judgment, and remand for further proceedings.

Reversed and remanded.


author: VILLANTI, Judge.

text:
    Ronald Edward MARTIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3503
    District Court of Appeal of Florida, Second District.
    Opinion filed November 28, 2018
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Ronald Edward Martin appeals the summary denial of claim two of his motion for postconviction relief, contending that the claim was facially sufficient and not conclusively refuted by the record attachments to the postconviction court's order. This claim has merit and requires us to reverse and remand for further proceedings.

The record shows that police responded to Martin's house based on an anonymous tip that methamphetamine was being sold out of the house. When the police arrived, there were five adults in the house, including Martin, Shannon Hoben, Genevieve Wallace, Reagan Stamper, and Charles Castillo. Upon seeing the police, Hoben locked herself in the master bathroom. Martin consented to a search of the home, which started while the police were obtaining a warrant. Hoben finally left the master bathroom once the warrant was obtained, and the police subsequently found twenty-six grams of methamphetamine in a clear plastic baggie inside of a black zippered case that was hidden under trash in the master bathroom trash can. Martin was charged with trafficking in methamphetamine based on his alleged possession of the drugs found in the trash can.

At trial, Martin's defense was that he did not know about the drugs in the trash can and that they belonged to one of the other occupants of the house. To that end, he called Castillo as a defense witness. Castillo testified that Hoben went into the master bathroom when the police arrived. He also testified that Wallace had gone into the master bedroom to retrieve her laptop and that Wallace regularly used the master bathroom rather than the hall bathroom. But Castillo did not testify to the ownership of the drugs found in the trash can. Martin was subsequently convicted as charged.

In his timely motion for postconviction relief, Martin alleged that trial counsel provided ineffective assistance by failing to investigate and call Hoben as a witness in addition to Castillo. He alleged that Hoben would have testified that the drugs in the master bathroom trash can belonged to Stamper and that Martin had no knowledge of the drugs. He alleged that Hoben was available to testify and that she would have testified on his behalf because the charges against her arising from the incident had been resolved before Martin was tried. Martin also attached an affidavit from Hoben in which she alleged that she was at the courthouse on the day of Martin's trial and that she was available and willing to testify for Martin.

The postconviction court summarily denied relief on this claim on the basis that the testimony Hoben would have given was cumulative of that given by Castillo and that trial counsel is not ineffective for failing to present cumulative evidence. Martin now appeals, contending that he was entitled to an evidentiary hearing on this claim.

The supreme court has "held that counsel does not render ineffective assistance by failing to present cumulative evidence." Diaz v. State, 132 So.3d 93, 109 (Fla. 2013) (quoting Farina v. State, 937 So.2d 612, 624 (Fla. 2006) ); see also Kilgore v. State, 55 So.3d 487, 504 (Fla. 2010) (same); Solorzano v. State, 25 So.3d 19, 26 (Fla. 2d DCA 2009) (same). Therefore, if Hoben's testimony was, in fact, cumulative of that given by Castillo, trial counsel would not have provided ineffective assistance by failing to call her to testify.

Here, however, a review of the portions of the transcript attached to the postconviction court's order shows that Castillo's testimony was not cumulative of Hoben's anticipated testimony. Castillo testified only that Hoben and Wallace had both been in the master bathroom on the day in question. He did not testify as to who owned the drugs that were found in the master bathroom trash can. Martin alleged that Hoben would have testified to the ownership of those drugs; specifically that the drugs in question belonged to Stamper rather than Martin and that Martin did not know about them. While a portion of Hoben's anticipated testimony might have been cumulative to that given by Castillo, other portions were noncumulative and helpful to Martin's defense. Hence, the attachments to the postconviction court's order do not conclusively refute Martin's allegations, and its decision to summarily deny relief on this basis was improper. See, e.g., Green v. State, 827 So.2d 1060, 1061 (Fla. 2d DCA 2002) (reversing summary denial and remanding for further proceedings when the attachments to the postconviction court's order did not show that the proffered testimony would have been cumulative); Odom v. State, 770 So.2d 195, 197 (Fla. 2d DCA 2000) (same), disapproved on other grounds by Nelson v. State, 875 So.2d 579 (Fla. 2004).

Accordingly, we must reverse and remand for further proceedings on claim two of Martin's motion. On remand, the postconviction court must either attach portions of the trial transcript that conclusively establish that Hoben's testimony would have been cumulative or hold an evidentiary hearing on this claim.

Reversed and remanded for further proceedings.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.

      Martin did not seek review of the trial court's ruling on claim one of his motion, which was denied after an evidentiary hearing.


text:
    Maurice SYMONETTE and Mack Wells, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D18-0391
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    Maurice Symonette and Mack Wells, in proper persons.
    Blank Rome LLP, and Daniel S. Hurtes, and Nicole R. Topper (Fort Lauderdale), for appellee.
    Before EMAS, FERNANDEZ, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).


text:
    FIVE SEAS INVESTORS, INC., Appellant, v. Armando GUZMAN, et al., Appellees.
    No. 3D17-2271
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018.
    Saul Ewing Arnstein & Lehr LLP, and Franklin L. Zemel, Alan R. Poppe, and Ariel R. Deray (Fort Lauderdale), for appellant.
    Ritter Chusid, LLP, and Shawn R. Horwick and Gary S. Rosner (Coral Springs); Isriel Ponzoli, P.A., and Ronald J. Isriel ; Shutts & Bowen LLP, and Steven M. Ebner, Stephen T. Maher, Miami, and Jamie B. Wasserman, Fort Lauderdale, for appellees.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   LOGUE, J.

Five Seas Investors, Inc. ("the Hotel"), which owns the Newport Beachside Hotel, appeals the trial court's order dismissing with prejudice its counterclaim against the La Perla Condominium Association, Inc. (the "Condominium") and third party complaint against various individual unit owners at the La Perla Condominium. We reverse.

Background

La Perla Condominium is a 326-unit residential condominium located in Sunny Isles Beach, Florida. It is situated on land previously owned by the Hotel. When the Hotel sold the portion of its land on which the Condominium was developed, the Hotel granted the Condominium the right to balloon the sides of the Condominium tower, apparently to allow the floors containing the parking garage to project over the air space of the Hotel. In exchange, the Hotel was granted non-exclusive easements for using the Condominium's driveway for commercial deliveries, garbage removal, valet parking, and similar matters.

This understanding was reflected in an easement agreement. As constructed, the Condominium had balconies.

In May 2016, approximately a decade after the construction of the Condominium, the Condominium sued the Hotel for breach of the reciprocal easements and trespass. The complaint alleged the Hotel improperly exceeded the scope of the easement agreement by, among other things, converting certain of the Condominium's common elements for the Hotel's exclusive use and clandestinely using the Condominium's electrical supply. One year into the litigation, the Hotel filed the counterclaim and the third party complaint against the individual unit owners at issue in this appeal. The counterclaim and third party complaint alleged that the Condominium's balconies on floors 39 to 43 encroached upon the Hotel's air rights. Five Seas filed a lis pendens against the affected units.

The Condominium and the individual unit owners moved to dismiss the counterclaim and the third party claims. They argued (1) the four-year statute of limitations had run on the trespass claims because the balconies were constructed in 2006 and the claims were not asserted until 2017; and (2) the easement agreement between the parties permitted the extension of the balconies over the Hotel's property. On October 16, 2017, the trial court entered an order granting the motions to dismiss with prejudice.

On May 7, 2018, the court entered a subsequent order denying the Hotel's motion for reconsideration and clarifying the prior dismissal order. The court clarified that its dismissal was not based on the statute of limitations argument but was based solely on its holding that the Hotel's claims "are plainly negated by the Easement Agreement." This appeal followed.

Analysis

Our review of the trial court's interpretation of the easement agreement is de novo. Tarafa v. Takach, 934 So.2d 524, 526 (Fla. 3d DCA 2005) (citing Langner v. Binger, 503 So.2d 1362, 1363 (Fla. 3d DCA 1987) ). It is well settled that "[w]hen determining whether an easement conveys a particular right, the rules of contract interpretation apply, giving effect to the plain meaning of the terms as stated." Buie v. Bluebird Landing Owner's Ass'n, Inc., 172 So.3d 519, 521 (Fla. 1st DCA 2015) (citing Sandlake Residences, LLC v. Ogilvie, 951 So.2d 117, 119 (Fla. 5th DCA 2007) ).

The easement agreement provides in pertinent part:

(a) Five Seas' Grant of Easements to the La Perla Property. Five Seas, as the owner of the Five Seas Property, hereby subjects the Five Seas Property to the following perpetual non-exclusive easements, which are hereby granted for the use and benefit of the owners and occupants from time to time of the La Perla Property, including (without limitation) the Unit Owners and the Condominium Association, and, their respective guests, tenants, contractor and invitees:
(i) Non-exclusive easements, for subjacent and overhead support, encroachments and air rights, for any portions of the Condominium which may extend over, under or upon the Five Seas Property including, (without limitation ), those portions of the Condominium which may now or hereafter overhang and extend above that portion of the Newport Hotel described as "Easement A," only to the extent such portions of the Condominium are located within the area shown in the sketch and legal description attached hereto as Exhibit "4," which rights shall be exclusive to the La Perla Property with respect to "Easement A," and any other encroachment which may hereafter occur as a result of field conditions, settling or shifting of the Condominium, or otherwise, whether in connection with the initial construction thereof or any alteration or repair thereof after damage by fire or other casualty or any taking of all or any portion of the Condominium by condemnation or eminent domain proceedings.

(Emphasis added).

The trial court apparently accepted the argument of the Condominium and the unit owners that this agreement granted them air rights to build over "any portion" of the Hotel's property "without limitation." This far-reaching interpretation would grant the Condominium the right to build over all of the Hotel's air space. We cannot read the agreement so expansively. In particular, this broad interpretation fails to give adequate consideration to the explicit language limiting the grant of rights "only to the extent such portions of the Condominium are located within the area shown in the sketch and legal description attached hereto as Exhibit '4.' "

The sketch and legal description contained in Exhibit 4 clearly delineate the highest and lowest elevation of the air rights granted. It limits the air rights granted to "[t]he ... described perimetrical boundaries lying within the elevation of +45.75 feet and +115.00 feet relative to the National Geodetic Vertical Dotum of 1929. And containing 3.401 [sic] square feet, or 0.078 acres more or less." Here, the balconies at issue are built from the 39th to 43rd floors of the tower -- well above the 115-foot maximum elevation of the easement granted in Exhibit 4.

Accordingly, we reverse the dismissal of the counterclaim and the third party claims and remand for further proceedings. In so ruling, we do not reach the statute of limitations defense because it was not considered by the trial court. Also we are not foreclosing the possibility that a defense could be raised under the language of the easement agreement which permits "any other encroachment which may hereafter occur as result of field conditions, settling or shifting of the Condominium, or otherwise, whether in connection with the initial construction [or in certain other situations]." But such a factually based defense is not before us when considering the grant of the subject motion to dismiss.

Reversed and remanded.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

      The individual unit owners are appellees, Armando and Miriam Guzman, Sophia Barchenko as Trustee of the Sophia Barchenko Trust, Samer El Fashby and Nada Nisevic, Justin Fuhrmann, and Gary Miselevich.


text:
    Luckner Junior PIERRE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3464
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Robert Wesley, Public Defender, Orlando, and Javier Chavez, Assistant Public Defender, Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 2, 2018 judgment and sentence rendered in Case No. CF15-8442, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, EVANDER and LAMBERT, JJ., concur.


text:
    Andres PEREZ, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3463
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Robert Wesley, Public Defender, and Javier Chavez, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 31, 2017 judgments and sentences rendered in Case Nos. 2014-CF-6361-D and 2014-CF-6595-D, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, EVANDER and EISNAUGLE, JJ., concur.


text:
    Charles STOKES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2727
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Charles Stokes, Bushnell, pro se.
    No appearance for Appellee.
   PER CURIAM.

This court issued an order on October 16, 2018, directing Appellant to show cause why sanctions should not be imposed against him in view of his having instituted numerous frivolous and meritless proceedings in this court. See State v. Spencer , 751 So.2d 47 (Fla. 1999).

We have reviewed and accept Appellant's response, but caution him that any further frivolous appellate filings challenging the judgment and sentence imposed in Lake County Judicial Circuit Cases Nos. 1983-CF-716, 1986-CF-1104 and 2006-CF-385 may result in imposition of sanctions. See Isley v. State , 652 So.2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough.").

COHEN, C.J., WALLIS and GROSSHANS, JJ., concur.


text:
    Joseph Raymond FOLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4064
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Because the judgment recites that Appellant was convicted after a plea, rather than after trial, we remand for correction of this scrivener's error. We otherwise affirm, without discussion, Appellant's judgment and sentence.

AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENER'S ERROR.

EVANDER, BERGER and GROSSHANS, JJ., concur.


text:
    Mack Reed TEDDER, II, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1579
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Mack Reed Tedder, II, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We issued a Spencer show cause order directing Tedder to demonstrate "why he should not be prohibited from filing any appeal, petition, pleading or motion pertaining to the conviction and sentence rendered in Hernando County Case No. 74-26-CF." Having carefully considered Tedder's response, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, we prohibit Tedder from filing with this Court any further pro se pleadings concerning Hernando County Fifth Judicial Circuit Case No. 74-26-CF. The Clerk of this Court is directed not to accept any further pro se filings concerning the judgment and sentence in this case. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing with The Florida Bar. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2017) ; Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

Future Pro Se Filings PROHIBITED.

ORFINGER, EVANDER and WALLIS, JJ., concur.

      State v. Spencer, 751 So.2d 47 (Fla. 1999).


text:
    Arthur WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2065
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 7, 2018
    Arthur Williams, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Arthur Williams, appeals the summary denial of his motion for postconviction relief alleging newly discovered evidence filed pursuant to Florida Rule of Criminal Procedure 3.850(b)(1). In his motion, Appellant argues that the affidavits of two inmates who allegedly witnessed the murders for which Appellant was convicted are newly discovered and that the inmates' testimonies would have led to an acquittal at trial.

The trial court summarily denied the motion finding that the affidavits are not exculpatory and referenced portions of the trial transcripts. However, the portions of the transcripts designated by the trial court do not appear in our record. We are therefore unable to review the trial court's denial. See Fowler v. State , 67 So.3d 1073, 1074 (Fla. 1st DCA 2011).

As such, we reverse and remand for the trial court to attach records that conclusively refute Appellant's allegations or to hold an evidentiary hearing.

REVERSED and REMANDED.

BERGER, EISNAUGLE and HARRIS, JJ., concur.


text:
    Michael KOFFARNUS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1819
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 30, 2018
    Lisabeth Fryer, of Lisabeth J. Fryer, P.A., Lake Mary, and Whitney S. Boan, of Whitney S. Boan, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We dismiss, in part, Appellant's appeal as to his first issue raised for reversal and affirm as to his second ground for relief. We do so without prejudice to Appellant's right to seek appropriate and timely postconviction relief in the trial court.

AFFIRMED, in part; DISMISSED, in part, without prejudice.

ORFINGER, LAMBERT, and EISNAUGLE, JJ., concur.


text:
    Ronald James RICHARDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2704
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 7, 2018
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Ronald Richards appeals his violation of probation sentence arguing that the trial court erred in imposing costs of investigation in the absence of a request from the State or any evidence from the investigating agency. We agree. See Taylor v. State, 242 So.3d 1203-1204 (Fla. 5th DCA 2018) ; Foulkes v. State, 221 So.3d 789, 790 (Fla. 5th DCA 2017). We therefore remand for the trial court to strike these costs from the judgment, noting that the State should be given the opportunity to request the imposition of investigative costs. See McCarthy v. State, 893 So.2d 689, 690 (Fla. 5th DCA 2005).

REVERSED and REMANDED.

TORPY, LAMBERT, and HARRIS, JJ., concur.


text:
    Marcus Earl GRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2682
    District Court of Appeal of Florida, First District.
    December 7, 2018
    Marcus Earl Gray, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Winokur, and Jay, JJ., concur.


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

text:
    Eric Vincent HILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3441
    District Court of Appeal of Florida, First District.
    December 10, 2018
    Eric Vincent Hill, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges the summary denial of his postconviction motion asserting, inter alia, that his trial counsel provided ineffective assistance. Appellant asserts that his trial counsel failed to inform him that the State's evidence was legally insufficient to support a conviction of accessory after the fact to a homicide, a second-degree felony punishable by up to fifteen years' imprisonment, which is the sentence the trial court imposed. Appellant argues that he would not have pled guilty to the crime had he been so informed. We reject all other arguments raised by Appellant, but reverse and remand for an evidentiary hearing on this claim.

Appellant's guilty plea does not foreclose his later argument that trial counsel provided ineffective assistance under the Sixth Amendment to the United States Constitution by allegedly failing to inform Appellant that the State could not obtain a conviction based on the facts and evidence.

At his plea colloquy, Appellant withdrew his plea of not guilty and entered a plea of guilty. Appellant informed the trial court that he had had adequate time to speak to defense counsel about the plea. Appellant swore that he had been "advised of all other facts essential to a full and complete understanding of all offenses with which [he had] been charged" and that he waived "the right to require the State to prove its case against [him] beyond a reasonable doubt." Defense counsel informed the trial court that it hoped to persuade the court to sentence Appellant as a youthful offender, but Appellant confirmed that he understood he could be sentenced up to fifteen years in prison and that he was waiving his right to trial or to appeal the trial court's decision. The postconviction court summarily denied Appellant's rule 3.850 motion, ruling that Appellant's claim was a challenge to the sufficiency of the evidence and was thus barred by Appellant's voluntary guilty plea.

Analysis

This Court reviews a summary denial (of a claim of ineffective assistance of counsel under Rule 3.850) without an evidentiary hearing de novo and will affirm only where the appellant's claims are facially invalid or conclusively refuted by the record. Where no evidentiary hearing is held below, this Court also accepts the defendant's factual allegations to the extent they are not refuted by the record.

Flagg v. State , 179 So.3d 394, 396 (Fla. 1st DCA 2015) ; see also Wilson v. State , 871 So.2d 298, 299 (Fla. 1st DCA 2004) (holding that the record must " 'conclusively' rebut an otherwise cognizable claim if it is to be denied without a hearing") (quoting State v. Leroux , 689 So.2d 235, 237 (Fla. 1996) ).

A criminal defendant states a cognizable ineffective assistance of counsel claim by alleging that counsel failed to advise him that the State's evidence was insufficient to support a conviction, and had he been so advised, he would not have entered into a guilty plea. Golden v. State , 509 So.2d 1149, 1153-54 (Fla. 1st DCA 1987). Such deficient performance, if true, affects the voluntariness of the guilty plea, thereby satisfying the prejudice prong of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id. at 1154.

A court is not permitted to go behind a plea, and where a defendant freely and voluntarily enters a guilty plea, he is "barred from attacking events before entry of the pleas." Stano v. Dugger , 524 So.2d 1018, 1019 (Fla. 1988) (citing Stano v. State , 520 So.2d 278, 280 (Fla. 1988) ). But a voluntary guilty plea will not refute a later claim that counsel misadvised the defendant to plead guilty, based on insufficient evidence of guilt. See Webster v. State , 744 So.2d 1033, 1033 (Fla. 1st DCA 1999). In Webster , the defendant claimed his attorney failed to advise him that alcohol consumption alone could not support a conviction for manslaughter by culpable negligence. Id. At the plea colloquy, the defendant stated that he was guilty, he "agreed he was entering his plea freely and voluntarily, and he stated he was satisfied with his attorney's representation." Id. at 1034. Although made voluntarily, this court held that these statements "did not, however, conclusively refute, or even adequately meet, the present allegations of affirmative misadvice concerning the proof necessary to support the elements of the crime with which appellant was charged." Id.

Here, Appellant alleged that defense counsel knew that being at the scene and not calling 911 was insufficient evidence to prove accessory after the fact to a homicide. See Bowen v. State , 791 So.2d 44, 52 (Fla. 2d DCA 2001) (recognizing that "[a]lthough the common law recognized the crime of misprision of a felony for failing to report a felony to authorities, the substantive law of Florida does not recognize such a crime."). The postconviction court summarily denied Appellant's claim, concluding that the "allegations are based on sufficiency of the evidence" and that the claim "is not cognizable under rule 3.850, and is, therefore, procedurally barred."

We must accept Appellant's factual allegations as true, as they are not conclusively refuted by the record. See Flagg , 179 So.3d at 396. Although Appellant's voluntary guilty plea is conclusive as to his guilt , it is not conclusive as to whether his attorney gave him improper advice in violation of the Sixth Amendment to the United States Constitution. Golden , 509 So.2d at 1153-54. Such claims may be precluded, however, where a trial court thoroughly ensures a factual predicate for the criminal conduct is established.

Accordingly, we reverse the postconviction court's order summarily denying Appellant's claim that defense counsel misadvised him to plead guilty. We remand for an evidentiary hearing or record attachments conclusively refuting the allegations.

AFFIRMED in part, REVERSED in part, and REMANDED .

Makar and Winsor, JJ., concur.


text:
    Mannelo DOTSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2960
    District Court of Appeal of Florida, First District.
    December 7, 2018
    Mannelo Dotson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia C. Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . Cf. Rivera v. Dep't of Health , 177 So.3d 1 (Fla. 1st DCA 2015).

Makar, Osterhaus, and Winsor, JJ., concur.


text:
    Gerard L. BROOKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2818
    District Court of Appeal of Florida, First District.
    December 7, 2018
    Gerard L. Brookins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Bradley W. FREILICH, Appellant, v. Wesley Drew FRAHM, Appellee.
    Case No. 5D18-1962
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 11, 2018
    Bradley W. Freilich, Winter Park, pro se.
    Sharon C. Degnan, of Kubicki Draper, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

TORPY, BERGER, and WALLIS, J.J., concur.


text:
    David FORGACH, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2914
    District Court of Appeal of Florida, First District.
    December 14, 2018
    Stacy A. Scott, Public Defender; Deborah A. Phillips and Rachael O'Brien, Assistant Public Defenders, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . Cf. Rivera v. Dep't of Health , 177 So.3d 1 (Fla. 1st DCA 2015).

Lewis, Winokur, and Jay, JJ., concur.


text:
    Walter B. HARVEY, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0288
    District Court of Appeal of Florida, First District.
    December 12, 2018
    Walter B. Harvey, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee; Rana Wallace, General Counsel, and Thomas A. Klein, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Venture MORSE, Appellant, v. The State of Florida DEPARTMENT OF REVENUE, O/B/O Rebbie MORSE, Appellee.
    Case No. 5D18-1016
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 11, 2018
    Venture Morse, Apopka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1980).

WALLIS, LAMBERT and GROSSHANS, JJ., concur.


author: PER CURIAM

text:
    STATE of Louisiana v. Timothy MOLL
    No. 2018-KK-1520
    Supreme Court of Louisiana.
    December 17, 2018
    ON SUPERVISORY WRITS TO THE 23RD JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. JAMES
   PER CURIAM

Writ Granted . Under the particular facts of this case, the trial court abused its discretion in excluding the August 9, 2012 Scientific Analysis Report issued by the Louisiana State Police Crime Lab as a sanction for the State's failure to produce the subpoenaed evidence. Importantly, the trial court's continuance of trial has cured any prejudice to defendant caused by the State's failure to timely produce the requested documentation, and the trial court has modified the defendant's pre-trial status to home incarceration. Since the State has once again failed to comply with its discovery obligations by not producing color copies of the requested documentation, we remand to the trial court to provide the State with the opportunity to fully comply with the trial court's order or risk imposition of sanctions. See La. C.Cr.P. art. 729.5(A).


text:
    IN RE: Layne C. HILTON
    NO. 2018-B-1679
    Supreme Court of Louisiana.
    December 17, 2018
    Applying For Joint petition to extend conditional admission
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

It is ordered that the conditional admission of Layne C. Hilton, Louisiana Bar Roll number 36990, be and hereby is extended for a period of two years, which shall commence from the date respondent and the Office of Disciplinary Counsel execute a new monitoring agreement. During the extended period of conditional admission, respondent shall comply with all of the terms and conditions of the new monitoring agreement, and shall remain subject to all conditions set forth in our judgment of June 28, 2016. It is further ordered that the petition to revoke respondent's conditional admission filed by the Office of Disciplinary Counsel on October 11, 2018 be and hereby is denied as moot.


text:
    IN RE: James Paul JOHNSON
    NO. 2018-B-1660
    Supreme Court of Louisiana.
    December 17, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

In November 2010, respondent pleaded no contest to simple battery and violation of a protective order in New Orleans Municipal Court. In April 2017, respondent pleaded guilty to misprision of felony in the United States District Court for the Eastern District of Louisiana. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that James Paul Johnson, Louisiana Bar Roll number 29271, be and he hereby is disbarred, retroactive to May 24, 2017, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

Hughes, J., dissents and would order a lesser sanction.