source: Caselaw Access Project

author: WELCH, Judge.

license: Public Domain

text:
    Monica Nyree HARRIS v. STATE of Alabama
    CR-17-0185
    Court of Criminal Appeals of Alabama.
    September 7, 2018
    Stephen F. Brown, Decatur, for appellant.
    Steve Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   WELCH, Judge.

Following a jury trial, the appellant, Monica Nyree Harris, was convicted in the Morgan Circuit Court of child abuse, see § 26-15-3, Ala. Code 1975, for leaving her six-week-old baby, N.R., unattended in a vehicle while Harris was in a store. Harris was sentenced to one year and one day in prison, which was suspended, and she was ordered to serve 18 months of supervised probation. This appeal followed.

The State's evidence tended to show that on August 24, 2016, police were dispatched to the Committee of Church Cooperation ("CCC") facility in Decatur in response to a 911 emergency call that there was an unattended child in a vehicle. Officer Walter Segars with the Decatur Police Department testified that when he arrived he located a small white car, that the windows were up, that there was a fleece blanket in the backseat, and that the child was no longer in the vehicle. Harris was holding her six-week-old son. Officer Segars testified that it was very hot that day and that the baby was sweating "very badly," but Harris was not. (R. 127.) He took Harris into custody. Police testimony showed that the temperature at approximately the time the baby was left in the car was 91 degrees.

Teresa Martin testified that on August 24, 2016, she went with a friend to CCC. She said that when they got out of the car at CCC they immediately heard "[a] child hollering" and "screaming and crying." (R. 41.) Martin testified: "After I looked in there, in the car, I couldn't see the baby. It was covered up. I couldn't see it, but I knew it was in there. And I was hollering at [my friend]: There's a baby crying." (R. 42.) The baby, she said, was lying flat and was covered with a baby blanket from head to toe. The windows of the car, she said, were all up and the engine of the car was not running. (R. 43.) Martin said that she ran into the center and started "holler[ing]" and that a woman ran out to the car and opened the door and got the baby out. (R. 43.) The baby was wearing a long-sleeve shirt and jeans.

Leslie Williams testified that she is an intake processor at CCC, that she determines what services are requested, and that CCC maintains a clothing closet for those in need. On August 24, 2016, she said, Harris came in with her baby about 9:00 a.m. She told Harris that the hours for the CCC clothing closet had passed, that children were not allowed in the facility, and that she would need to get a babysitter and come back at 1:00 p.m. that day. Williams said that Harris came back that day at around 12:45 p.m., got in line, and was there about 20 or 30 minutes before "the commotion started." (R. 83.) Williams said: "Two ladies came into the office stating that they heard noise from a car. I then, remembered that that was the car that [Harris] got out of and there's no partition separating my office part from the clothing closet. So she must have heard, and she went outside." (R. 83.) Martin said that Harris brought the baby inside the facility and that Martin took the baby to the break room where it was cooler. The baby, she said, was hot to the touch.

Derrell Willis, a paramedic with the City of Decatur, testified that he was dispatched to CCC in response to a report that a baby had been locked in a car. He said that the child looked to be about one month old and that he was crying and was sweaty. He transported the child to Decatur General Hospital.

Dr. Robert H. Williams, an emergency-room doctor at Decatur General, testified that he treated N.R. for heat-related issues. He stated that, by the time he saw the child, the child was doing better because he had been in air conditioning and had been given a lot of water. Dr. Williams stated that he diagnosed the child with hyperthermia, a nonlife-threatening diagnosis.

Officer Jarrod Birchfield with the Decatur Police Department testified that he questioned Harris after she was taken into custody. He testified that he read Harris her Miranda rights, that he went over those rights with her, and that Harris indicated that she was willing to talk, and she signed a rights-waiver form. Harris made the following statement to Officer Birchfield:

"This morning I went to the Committee for Church Cooperation, the CCC, to get clothes for me and [N.R.]. I was told by a worker there that I could not get clothes until later that day. Around 1:15 p.m. I went back to the CCC to get the clothes. I was driving my white Nissan Altima. I brought my six-week-old child back with me because I didn't have anyone to watch him. I knew when I got there that I could not take him inside with me.
"I turned my car off, left the windows up, and left [N.R.] inside the car. There was a blanket draped over his car seat to keep the sun out of his eyes. I knew that it was hot outside, and it would get dangerous hot inside the car where [N.R.] was. I wasn't thinking like a mother should and went into the store to get the clothes. I got some outfits for [N.R.] and some pants for me. It took me about 20 minutes inside the store. I would look out the windows of the store at my car but couldn't directly see [N.R.].
"I finished getting our clothes and went back to the car. I got [N.R.] out of the car seat. He was sweating and crying. I put him in the front seat with me and made him a bottle. A black lady that works at the CCC came out to the car and asked if she could take [N.R.] inside and cool him off. I let her take him inside.
"We went inside and the black lady took him to a room with a white door. I eventually asked for my son back and the black lady opened the white door and gave him back. As I was leaving, the cops showed up. I waited with paramedics while they checked [N.R.] They took him to the hospital. The cop arrested me and took me to the police department."

(R. 191-92.)

Harris testified at trial that N.R. was her first child, that she was 29 years of age, and that she had a college degree. Harris said that on the day she left N.R. in the car she left one of the back windows of her car "cracked" because it was hot. (R. 223.) She said that she did not believe it would harm her son to be in the car "for a short period of time." (R. 235.)

I.

Harris first argues that the evidence was insufficient to support her conviction; therefore, she says, the circuit court erred in denying her motion for a judgment of acquittal. Specifically, Harris argues that the State failed to prove "any injury to the child rising to the level of torture, willful abuse, cruel beating, or otherwise willful maltreatment." (Harris's brief, at p. 28.) She further argues that there was no evidence indicating that her conduct was intentional. (Harris's brief at p. 29.)

Harris was convicted of violating § 26-15-3, Ala. Code 1975. That section provides:

"A responsible person, as defined in Section 26-15-2, who shall torture, willfully abuse, cruelly beat, or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be guilty of a Class C felony."

Section 26-15-2, Ala. Code 1975, defines a "responsible person" as: "A child's natural parent, stepparent, adoptive parent, legal guardian, custodian, or any other person who has the permanent or temporary care or custody or responsibility for the supervision of a child."

"In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala. Cr. App. 1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala. Cr. App. 1980), cert. denied, 387 So.2d 283 (Ala. 1980). The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala. Cr. App. 1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala. Cr. App. 1983) ; Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969) ; Willis v. State.'
" Breckenridge v. State, 628 So.2d 1012, 1018 (Ala. Crim. App. 1993). In addition,
" ' "[c]ircumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant's guilt. Ward v. State, 557 So.2d 848 (Ala. Cr. App. 1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So.2d 871 (Ala. Cr. App. 1978), cert. denied, 368 So.2d 877 (Ala. 1979).' "
" Lockhart v. State, 715 So.2d 895, 899 (Ala. Crim. App. 1997) (quoting Ward v. State, 610 So.2d 1190, 1191-92 (Ala. Crim. App. 1992) )."

Graham v. State, 210 So.3d 1148, 1153-54 (Ala. Crim. App. 2016).

This Court in Woods v. State, 724 So.2d 40 (Ala. Crim. App. 1997), considered the term "willful maltreatment" contained in the child-abuse statute:

" 'The willful maltreatment of a child is encompassed in the definition of child abuse set out in § 26-15-3, Ala. Code 1975. While the statute does not define the term 'willfully maltreat,' that term, like the other terms used in the statute, such as 'torture' and 'willfully abuse,' can be defined by general or common usage and provides an appropriate yardstick for a jury to measure certain conduct. See Chambers v. State, 364 So.2d 416 (Ala. Cr. App.), cert. denied, 364 So.2d 420 (Ala. 1978). This court has held that the child abuse statute encompasses acts of omission as well as those of commission. Phelps v. State, 439 So.2d 727 (Ala. Cr. App. 1983). Thus, willful maltreatment may result from a willful act or omission that evidences such a serious disregard of the consequences as to cause harm or to threaten harm to a child's health or welfare. See § 26-14-1, Ala. Code 1975. This may include a willful denial of medial care."

724 So.2d at 48, (emphasis added). In Woods, this Court held that evidence of the "willful omission of medial care" presented sufficient evidence to support a conviction for child abuse.

Furthermore, "the question of appellant's criminal intent was properly left to the jury to resolve." Phelps v. State, 439 So.2d 727, 735 (Ala. Crim. App. 1983). "When there is legal evidence from which the factfinders can by fair inference find the accused guilty, this court will not disturb the verdict." 439 So.2d at 735.

As the Missouri Court of Appeals stated in State v. Todd, 183 S.W.3d 273 (2005) :

"The undisputed evidence here ... showed that Todd left her nine-year-old son alone in a locked mini-van in a casino parking lot in the summer sun in 94-degree heat while she gambled. We hold these facts are sufficient, in the totality of the circumstances, for a fact finder to conclude that Todd's conduct presented a substantial risk to the life, body, and health of the child. The risks stemming from leaving children to their own devices, in a vehicle, with the keys, for indeterminate periods of time, in public parking lots, in hot summer sun are self-evident, and the evidence sufficed for the fact finder to conclude that the risk was substantial."

183 S.W.3d at 279. See State v. Morton, 138 Ohio App. 3d 309, 741 N.E.2d 202 (2000) ("Morton first argues that leaving a three-week-old child locked in a van for thirty to forty minutes on a hot summer day did not constitute recklessness. This contention is not supported by the record.").

There was sufficient evidence presented by the State to present the case to the jury for its consideration. The circuit court did not err in denying Harris's motion for a judgment of acquittal. Harris is due no relief on this claim.

II.

Harris next argues that the circuit court erred in refusing to instruct the jury on what she argues is the lesser-included offense of endangering the welfare of a child.

The record shows that Harris moved the circuit court to charge the jury on the offense of endangering the welfare of a child as set out in § 13A-13-6, Ala. Code 1975. (C. 23.) The court expressed concerns whether endangering the welfare of a child was a lesser-included offense of the crime of child abuse. (R. 208.) At this time the court indicated that it would consider the question after hearing the remainder of the testimony. Later, the circuit court ruled that endangering the welfare of a child was not a lesser-included offense of the offense of child abuse and that it would not give the requested instruction.

" 'A person accused of the greater offense has a right to have the court charge on lesser included offenses when there is a reasonable theory from the evidence supporting those lesser included offenses.' MacEwan v. State, 701 So.2d 66, 69 (Ala. Crim. App. 1997). '[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however, weak, insufficient, or doubtful in credibility.' Chavers v. State, 361 So.2d 1106, 1107 (Ala. 1978). An accused has the right to have the jury charged on 'any material hypothesis which the evidence in his favor tends to establish.' Ex parte Stork, 475 So.2d 623, 625 (Ala. 1985). ' "A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.' " Williams v. State, 675 So.2d 537, 540-41 (Ala. Crim. App. 1996), quoting Anderson v. State, 507 So.2d 580, 582-83 (Ala. Crim. App. 1987).
" ' "Whether a crime constitutes a lesser-included offense is to be determined on a case-by-case basis." Aucoin v. State, 548 So.2d 1053, 1057 (Ala. Crim. App. 1989). "In determining whether one offense is a lesser included offense of the charged offense, the potential relationship of the two offenses must be considered not only in the abstract terms of the defining statutes but must also ... in light of the particular facts of each case." Ingram v. State, 570 So.2d 835, 837 (Ala. Crim. App. 1990) (citing Ex parte Jordan, 486 So.2d 485, 488 (Ala. 1986) ; emphasis in original). See also Farmer v. State, 565 So.2d 1238 (Ala. Crim. App. 1990).'
" Ford v. State, 612 So.2d 1317, 1318 (Ala. Crim. App. 1992)."

McNabb v. State, 887 So.2d 929, 973-74 (Ala. Crim. App. 2001).

"Lesser-included offenses encompass, among other things, offenses that are 'established by proof of the same or fewer than all the facts required to establish the commission of the offense charged' or offenses that 'differ[ ] from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, to a lesser kind of culpability suffices to establish its commission.' § 13A-1-9(a)(1), (a)(4), Ala. Code 1975."

Barrett v. State, 33 So.3d 1287, 1289 (Ala. Crim. App. 2009).

As stated above, Harris was indicted for violating § 26-15-3, Ala. Code 1975, quoted in Part I. Endangering the welfare of a child is defined in § 13A-13-6, Ala. Code 1975, which provides:

"(a) A man or woman commits the crime of endangering the welfare of a child when:
"(1) He or she knowingly directs or authorizes a child less than 16 years of age to engage in an occupation involving a substantial risk of danger to his life or health; or
"(2) He or she, as a parent, guardian or other person legally charged with the care or custody of a child less than 18 years of age, fails to exercise reasonable diligence in the control of such child to prevent him or her from becoming a 'dependent child' or a 'delinquent child,' as defined in Section [12-15-102]"

(Emphasis added.)

The State asserts in its brief that, in this case, endangering the welfare of a child is not a lesser offense of child abuse. We agree.

The indictment against Harris stated as follows:

"The Grand Jury of said County ... charges that before the finding of this indictment, Monica Nyree Harris, whose name is to the Grand Jury otherwise unknown, who had the permanent or temporary care or custody or responsibility for the supervision of [N.R.], a child under the age of 18 years, did torture, willfully abuse, cruelly beat or otherwise willfully maltreat [N.R.] by leaving him in a car with the windows and doors closed when the car was not running and no air conditioning was running, when the temperature was in excess of ninety (90) degrees, a further and better description of said means being to the Grand Jury otherwise unknown, in violation of Section 26-15-3 of the Code of Alabama, against the peace and dignity of the State of Alabama."

Endangering the welfare of a child in § 13A-13-6(a)(1) requires that the accused "knowingly directs or authorizes a child ... to engage in an occupation involving a substantial risk of danger to his life or health." As the State correctly argues in brief such conduct is "not possible with a six-week-old baby." (State's brief, at p. 23.) Endangering the welfare of a child in § 13A-13-6(a)(2) occurs when the accused "fails to exercise reasonable diligence in the control of such child to prevent him or her from becoming a dependant child." This section requires an element, preventing a child from becoming a dependent child, that is not required by the child abuse statute.

The Missouri Court of Appeals in State v. Hines, 377 S.W.3d 648 (Mo. Ct. App. 2012), considered whether the crime of endangering the welfare of a child was a lesser-included offense of child abuse. The statutes involved in Hines are similar to the Alabama statutes at issue in this case. The Missouri Court of Appeals stated:

"The statute under which Defendant was charged provides, '[a] person commits the crime of abuse of a child if such person: (1) Knowingly inflicts cruel and inhuman punishment upon a child less than seventeen years old.' Section 568.060.1(1). The State had to prove that Defendant (1) knowingly inflicted; (2) cruel and inhuman punishment; (3) on a child younger than seventeen years old. [State v.] Biggs, 333 S.W.3d [472] 479 [ (Mo. 2011) ].
"Section 568.050.1(1) provides: 'A person commits the crime of endangering the welfare of a child in the second degree if: (1) He or she with criminal negligence acts in a manner that creates a substantial risk to the life, body or health of a child less than seventeen years old[.]' To convict a defendant of this offense, the State must show that the defendant (1) acted with criminal negligence, (2) in a manner that creates a substantial risk to the life, body, or health, (3) to a child less than seventeen years old.
"Comparing the elements of each offense demonstrates that the crime of second-degree child endangerment is not a lesser-included offense of abuse of a child because that crime contains an element-creating a substantial risk to the life, body, or health of a child -- that is not present in the offense of abuse of a child. This element 'is intended to prevent any and all types of conduct that involve substantial risk to a child[,]' which encompasses 'many types of conduct other than punishment and abuse [.]' [State v.] Dunson, 979 S.W.2d [237] 243 [ (Mo. Ct. App. 1998) ]. Similarly, the crime of abuse of a child contains an element -- cruel and inhuman punishment -- that is not found in the crime of second-degree child endangerment. This element 'prohibits cruel and inhuman punishment even if it does not create a substantial risk to the life, body or health of a child.' Id. Neither element is a subset of the other, id., and for this reason, second-degree child endangerment under section 568.050.1(1) is not a lesser-included offense of abuse of a child under section 568.060.1(1). The trial court correctly declined to instruct the jury on endangering the welfare of a child in the second degree."

377 S.W.3d at 658.

Here, the circuit court committed no error in denying Harris's motion to instruct the jury on endangering the welfare of a minor because that crime was not a lesser-included offense of child abuse. Harris is due no relief on this claim.

III.

Harris last argues that the child-abuse statute, § 26-15-3, Ala. Code 1975, is unconstitutionally vague.

The State asserts that this issue is not preserved for appellate review because, it argues, this issue was not raised in the circuit court. A review of the record shows that Harris failed to argue the constitutionality of the child-abuse statute in the lower court. Therefore, this issue is not preserved for appellate review. "Even constitutional issues must be properly preserved for appellate review." Byrd v. State, 10 So.3d 624, 626 (Ala. Crim. App. 2008).

In her reply brief, Harris argues that the Alabama Supreme Court in Davis v. State, 168 So.3d 1210 (Ala. 2015), recognized that this Court could consider the constitutionality of a statute if " 'the act is so palpably void on constitutional grounds that the court, for the protection of public interests, deems it wise to sound the alarm by calling attention to such status.' " 168 So.3d at 1210 n. 1 (quoting Cooper v. Hawkins, 234 Ala. 636, 638, 176 So. 329, 330 (1937) ).

However, the quote cited by Harris is from a dissenting opinion written by a Justice to the denial of a petition for a writ of certiorari. The quote from Cooper, decided in 1937, has not been relied on or cited before the dissenting opinion quoted from it.

For the above reasons, we affirm Harris's conviction for child abuse.

AFFIRMED.

Windom, P.J., and Kellum, Burke, and Joiner, JJ., concur.

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

      Harris cites the case of Pearson v. State, 601 So.2d 1119 (Ala. Crim. App. 1992), to support this argument. However, this Court in Pearson stated: "[W]e need not specifically address that question [whether endangering the welfare of a child is a lesser offense of child abuse] because the State's evidence was legally insufficient to prove either offense, and we reverse on the basis of evidentiary insufficiency." 601 So.2d at 1125.


author: PER CURIAM.

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2018-13.
    No. SC18-2029
    Supreme Court of Florida.
    June 6, 2019
    Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize new and amended standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending standard criminal jury instructions 3.6(a) (Insanity), 3.6(e)(1) (Involuntary Intoxication Negating Specific Intent), 3.6(e)(2) (Involuntary Intoxication Resulting in Insanity), and 3.6(j) (Entrapment). In addition, the Committee proposes the following new instructions: 3.14 (Scoresheet Findings); 7.7(b) (Unnecessary Killing to Prevent an Unlawful Act); and 7.7(c) (Assisted Self-Murder). All of the proposals were published in The Florida Bar News . No comments were received by the Committee. After the Committee filed its report, the Court did not publish the proposals for comment.

Having considered the Committee's report, we amend the standard jury instructions as proposed by the Committee and authorize for publication and use new and amended instructions 3.6(a), 3.6(e)(1), 3.6(e)(2), 3.6(j), 3.14, and 7.7(c). We discuss the more significant amendments below. We do not authorize proposed instruction 7.7(b) for publication and use at this time and will separately refer this instruction back to the Committee for further consideration at a later date.

First, instruction 3.6(a) is updated to ensure that the jurors understand that the insanity defense applies to lesser-included crimes as well by deleting the phrase "the crime" and replacing it with "(crime alleged or lesser-included crimes of the crime alleged)."

Next, instructions 3.6(e)(1) and 3.6(e)(2) are revised to reflect that intent is an essential element of not only the crime charged but also an appropriate lesser-included offense and that the defenses of involuntary intoxication negating specific intent and involuntary intoxication resulting in insanity may also apply to a lesser-included offense.

In instruction 3.6(j), language is added to reflect that the defense of entrapment applies to applicable lesser-included offenses as well as the offense charged, and a definition for "inducement" is added based upon Farley v. State , 848 So. 2d 393, 395 (Fla. 4th DCA 2003), and Marreel v. State , 841 So. 2d 600, 603 (Fla. 4th DCA 2003).

New instruction 3.14, Scoresheet Findings, is added in recognition of the necessity for certain findings of fact, i.e., those which increase the required minimum sentence, be made by the jury. See Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

Lastly, new instruction 7.7(c) is added to instruct upon the offenses of assisting self-murder. See § 782.08, Fla. Stat. (2018).

The amended criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use. New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.

APPENDIX

3.6(a) INSANITY

An issue in this case is whether (defendant)was insane when the crime allegedly was committed.

A person is considered to be insane when:

1. [He] [She] had a mental infirmity, disease, or defect.
2. Because of this condition
a. [he] [she] did not know what [he] [she] was doing or its consequences or
b. although [he] [she] knew what [he] [she] was doing and its consequences, [he] [she] did not know it was wrong.

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

In determining the issue of insanity, you may consider the testimony of expert and nonexpert witnesses. The question you must answer is not whether the defendant is insane today, or has ever been insane, but whether instead the defendant was insane at the time the crime allegedly was committed.

Give if applicable.

A defendant who believed that what [he] [she] was doing was morally right is not insane if the defendant knew that what [he] [she] was doing violated societal standards or was against the law.

Give if applicable.

Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person is overcome by passion or temper.

*Give if applicable and if requested.

Although insanity is a defense, mental or psychiatric conditions not constituting insanity are not defenses to any crime in this case. Unless there is clear and convincing evidence that (defendant)was insane at the time of the crime(s) alleged, any evidence of mental illness, an abnormal mental condition, or diminished mental capacity may not be taken into consideration to show that [he] [she] lacked the specific intent or did not have the state of mind essential to proving that [he] [she] committed the crime[s] charged [or any lesser crime].

Give if applicable.

If the evidence establishes that the defendant had been adjudged insane by a court, and has not been judicially restored to legal sanity, then you should assume the defendant was insane at the time of commission of the alleged crime, unless the evidence convinces you otherwise.

Give in all cases.

If you find that (defendant)committed the crime(crime alleged or lesser-included crimes of the crime alleged) but you find by clear and convincing evidence that the defendant was insane, then you should find [him] [her] not guilty by reason of insanity.

If your verdict is that the defendant is not guilty by reason of insanity, that does not necessarily mean [he] [she] will be released from custody. I must conduct further proceedings to determine if the defendant should be committed to a mental hospital, or given other outpatient treatment or released.

Comments

*This paragraph should be read only where it is applicable and appropriate under the facts of the case. "[D]iminished capacity is not a viable defense in Florida."Evans v. State, 946 So.2d 1, 11 (Fla. 2006);Lukehart v. State, 70 So.3d 503, 515 (Fla. 2011). Evidence of an abnormal mental condition not constituting legal insanity is inadmissible "for the purpose of proving either that the accused could not or did not entertain the specific intent or state of mind essential to proof of the offense, in order to determine whether the crime charged, or a lesser degree thereof, was in fact committed."Chestnut v. State, 538 So.2d 820 (Fla. 1989). In some cases, however, such evidence, or something that jurors might interpret as such evidence, might be admitted presumably for another purpose or might simply be obvious or apparent from the facts of the case. In such cases, it could be appropriate in the court's discretion to give this instruction to avoid the possibility of juror confusion.

SeeSee Instruction 3.6(p) for an instruction regarding abnormal mental conditions not constituting insanity.

Factual or logical inconsistencies, other than true inconsistent verdicts, are permissible in Florida. A jury may therefore find a defendant not guilty by reason of insanity for one crime and guilty for another crime, even though the two crimes were committed during the same episode. State v. Cappalo, 932 So.2d 331 (Fla. 2d DCA 2006). As a result, in cases where the defense is insanity, each count should have its own place on the verdict form for the option of not guilty by reason of insanity.

This instruction was adopted in 1982 [431 So._2d 600], and was amended in 1986 [483 So._2d 428], 1994 [636 So._2d 502], 2006 [939 So.2d 1052],and 2017 [ 213 So.3d 680], and 2019.

3.6(e)(1) INVOLUNTARY INTOXICATION NEGATING SPECIFIC INTENT

§ 775.051 Fla. Stat.

Voluntary intoxication is not a defense. A person is voluntarily intoxicated if he or she knowingly consumed a substance that he or she knew or should have known could cause intoxication.

However, a defense asserted in this case is that the defendant was involuntarily intoxicated to the point that [he] [she] could not form [a premeditated design to kill] [the intent to (specific intent charged)]. This defense applies when:

Give a or b as applicable.

a. § 775.051, Fla. Stat.; Lucherini v. State, 932 So.2d 521 (Fla. 4th DCA 2006); Cobb v. State, 884 So.2d 437 (Fla. 1st DCA 2004).
1. (Defendant) was lawfully prescribed [(name of Chapter 893 substance)] by a practitioner.
2. (Defendant) [used] [consumed] [injected] [(name of Chapter 893 substance)] as it was prescribed and directed by the practitioner.
3. As a result of taking [(name of Chapter 893 substance)] as prescribed, (defendant) was so intoxicated that [he] [she] could not form [a premeditated design to kill] [the intent to (specific intent charged)] at the time of the offense.
b. Carter v. State, 710 So.2d 110 (Fla. 4th DCA 1998).
1. (Defendant), without any fault on [his] [her] part, [unknowingly ingested an intoxicating liquor, drug, or other substance] [knowingly ingested an intoxicating liquor, drug, or other substance because of force, fraud, duress, or trickery].
2. As a result, (defendant) was so intoxicated that [he] [she] could not form [a premeditated design to kill] [the intent to (specific intent charged)] at the time of the offense.

Give if applicable.

In determining the issue of involuntary intoxication, you may consider the testimony of expert and non-expert witnesses.

§§ 775.051, 893.02(21 3 )Fla. Stats.

"Practitioner" means a physician licensed pursuant to chapter 458, a dentist licensed pursuant to chapter 466, a veterinarian licensed pursuant to chapter 474, an osteopathic physician licensed pursuant to chapter 459, an advanced practice registered nurse licensed under chapter 464, a naturopath licensed pursuant to chapter 462, a certified optometrist licensed under chapter 463, a psychiatric nurse,* or a podiatric physician licensed pursuant to chapter 461, or a physician assistant licensed under chapter 458 or chapter 459 provided such practitioner holds a valid federal controlled substance registry number.

Give in all cases.

The [use of medication] [consumption of an intoxicating liquor, drug, or other substance] that merely arouses passions, diminishes perceptions, releases inhibitions, or clouds reason and judgment does not excuse the commission of a crime.

However, where a certain mental state is an essential element of a crime and a person was involuntarily intoxicated to the extent [he] [she] was incapable of forming that mental state, the mental state would not exist and therefore the crime could not be committed.

As I have told you, [a premeditated design to kill] [the intent to (specific intent charged)] is an essential element of (crime charged or appropriate lesser-included offenses ).

Therefore, if you find that the defendant was involuntarily intoxicated to the extent of being incapable of forming [a premeditated design to kill] [the intent to (specific intent charged)], or if you have a reasonable doubt about it, you should find the defendant not guilty of (crime charged or appropriate lesser-included offenses ).

Comments

Thel Legislature eliminated voluntary intoxication as a defense effective October 1, 1999.

*If necessary, define "psychiatric nurse" from § 394.455, Fla. Stat.

This instruction was adopted in 2013 [ 122 So.3d 302], and amended in 2019.

3.6(e)(2) INVOLUNTARY INTOXICATION RESULTING IN INSANITY

§ 775.051 Fla. Stat.

Voluntary intoxication is not a defense. A person is voluntarily intoxicated if he or she knowingly consumed a substance that he or she knew or should have known could cause intoxication.

However, a defense asserted in this case is that the defendant was involuntarily intoxicated to the point of insanity at the time the crime was allegedly committed. A person is considered involuntarily intoxicated to the point of insanity when:

Give a or b as applicable.

a. § 775.051, Fla. Stat.; Brancaccio v. State, 698 So.2d 597 (Fla. 4th DCA 1997); Cobb v. State, 884 So.2d 437 (Fla. 5th[1st] DCA 2004).
1. (Defendant) was lawfully prescribed [(name of Chapter 893 substance)] by a practitioner.
2. (Defendant) [used] [consumed] [injected] [(name of Chapter 893 substance)] as it was prescribed and directed by the practitioner.
3. As a result of taking [(name of Chapter 893 substance)] as prescribed:
a. (defendant) did not know what [he] [she] was doing or its consequences or
b. (defendant) knew what [he] [she] was doing and its consequences, but did not know it was wrong.
b. Carter v. State, 710 So.2d 110 (Fla. 4th DCA 1998).
1. (Defendant), without any fault on [his] [her] part, [unknowingly ingested an intoxicating liquor, drug, or other substance] [knowingly ingested an intoxicating liquor, drug, or other substance because of force, fraud, duress, or trickery].
2. As a result of consuming an intoxicating liquor, drug, or other substance:
a. (defendant) did not know what [he] [she] was doing or its consequences or b. (defendant) knew what [he] [she] was doing and its consequences, but did not know it was wrong.

Give if applicable.

A defendant who believed that what [he] [she] was doing was morally right was not insane if [he] [she] knew that what [he] [she] was doing violated societal standards or was against the law.

Give if applicable.

§§ 775.051, 893.02(21 3 ) Fla. Stats.

"Practitioner" means a physician licensed pursuant to chapter 458, a dentist licensed pursuant to chapter 466, a veterinarian licensed pursuant to chapter 474, an osteopathic physician licensed pursuant to chapter 459, an advanced practice registered nurse licensed under chapter 464, a naturopath licensed pursuant to chapter 462, a certified optometrist licensed under chapter 463, a psychiatric nurse,* or a podiatric physician licensed pursuant to chapter 461, or a physician assistant licensed under chapter 458 or chapter 459 provided such practitioner holds a valid federal controlled substance registry number.

In determining the issue of involuntary intoxication to the point of insanity, you may consider the testimony of expert and non-expert witnesses.

Give in all cases.

The [use of medication] [consumption of an intoxicating liquor, drug, or other substance] that merely arouses passions, diminishes perceptions, releases inhibitions, or clouds reason and judgment does not excuse the commission of a crime.

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

If you find that (defendant)committed the crime charged [or any lesser-included offenses] but you find that [he] [she] proved by clear and convincing evidence that [he] [she] was involuntarily intoxicated to the point of insanity, you should find [him] [her] not guilty.

Comments

Thel L egislature eliminated voluntary intoxication as a defense effective October 1, 1999.

*If necessary, define "psychiatric nurse" from § 394.455, Fla. Stat.

This instruction was adopted in 2013 [122 So.3d 302], and amended in 2019.

3.6(j) ENTRAPMENT

§ 777.201, Fla. Stat.

The defense of entrapment has been raised. (Defendant)was entrapped if:

1. [he] [she] was, for the purpose of obtaining evidence of the commission of a crime, induced or encouraged to engage in conduct constituting the crime of (crime charged or any applicable lesser-included offense), and
2. [he] [she] engaged in such conduct as the direct result of such inducement or encouragement, and
3. the person who induced or encouraged [him] [her] was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer, and
4. the person who induced or encouraged [him] [her] employed methods of persuasion or inducement which created a substantial risk that the crime would be committed by a person other than one who was ready to commit it, and
5. (defendant) was not a person who was ready to commit the crime.

When claim of entrapment no defense.

It is not entrapment if (defendant) had the predisposition to commit the (crime charged). Entrapment is not a defense to a crime if (defendant) had the predisposition to commit that crime. (Defendant)had the predisposition if before any law enforcement officer or person acting for the officer persuaded, induced, or lured (defendant),[he] [she] had a readiness or willingness to commit (crime charged or any applicable lesser-included offense )if the opportunity presented itself.

It also is not entrapment merely because a law enforcement officer, in a good faith attempt to detect crime,

Give a, b, and/ or c as applicable.

a. [provided the defendant the opportunity, means, and facilities to commit the offense, which the defendant intended to commit and would have committed otherwise.]
b. [used tricks, decoys, or subterfuge to expose the defendant's criminal acts.]
c. [was present and pretending to aid or assist in the commission of the offense.]

On the issue of entrapment, the defendant must prove to you by the greater weight of the evidence that a law enforcement officer or agent induced or encouraged the crime charged. Greater weight of the evidence means that evidence which is more persuasive and convincing. If the defendant does so, the State must prove beyond a reasonable doubt that the defendant was predisposed to commit the (crime charged or any applicable lesser-included offense ).The State must prove defendant's predisposition to commit the (crime charged or any applicable lesser-included offense )existed prior to and independent of the inducement or encouragement.

Definition. Farley v. State, 848 So.2d 393 (Fla. 4th DCA 2003); Marreel v. State, 841 So.2d 600, 603 (Fla. 4th DCA 2003).

"Inducement" is defined as any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship. Neither mere solicitation nor the creation of opportunities to commit an offense constitutes inducement.

Give if applicable.

An informant is an agent of law enforcement for purposes of the entrapment defense.

If you find that the defendant was entrapped, you should find the defendant not guilty of (crime charged or any applicable lesser-included offense ). If, however, you find that the defendant was not entrapped, you should find the defendant guilty if all of the elements of the charge have been proved.

Comments

This instruction is to be used for offenses occurring on or after October 1, 1987. There may be instances where the defense of entrapment will apply to the crime charged but will not apply to a lesser-included offense. The trial judge should consult with the parties to determine whether the defense of entrapment applies to any lesser included offenses.

This instruction should be given only if there is some evidence of the defendant's lack of predisposition to commit the crime.See Munoz v. State, 629 So._2d 90 (Fla. 1993).

This instruction was adopted in 1981 and was amended in 1989 [543 So.2d 1205], and 1998 [723 So.2d 123], and 2019.

3.14 SCORESHEET FINDINGS

Give any of the following where necessary but only if alleged in the State's charging document. See Comment.

Victim Injury Points

(Section III on the Criminal Punishment Code scoresheet)

If you find (defendant) guilty of (name of crime [or relevant lesser-included offenses ]), you must then answer the following question[s]:

Did the State prove beyond a reasonable doubt that (victim) died as a direct result of the (name of crime [or relevant lesser-included offenses])?

Yes No

Did the State prove beyond a reasonable doubt that (victim) suffered severe physical injury as a direct result of the (name of crime [or relevant lesser-included offenses])?

Yes No

Did the State prove beyond a reasonable doubt that (victim) suffered moderate physical injury as a direct result of the (name of crime [or relevant lesser-included offenses])?

Yes No

Did the State prove beyond a reasonable doubt that (victim) suffered slight physical injury as a direct result of the (name of crime [or relevant lesser-included offenses])?

Yes No

For sex crimes, physical injury points (if physical injury occurred) must be scored in addition to points scored for either sexual contact or sexual penetration. § 921.0022(7), Fla. Stat.

Pursuant to § 921.0022(7), Fla. Stat., sexual contact or sexual penetration points cannot be scored for violations of § 944.35(3)(b)2., Fla. Stat., or § 872.06, Fla. Stat.

Did the State prove beyond a reasonable doubt there was sexual penetration between (victim) and (defendant) during the commission of the (name of crime [or relevant lesser-included offenses])?

Yes No

Did the State prove beyond a reasonable doubt there was sexual contact between (victim) and (defendant) during the commission of the (name of crime [or relevant lesser-included offenses])?

Yes No

Firearm/Semi-Automatic or Machine Gun Points

(Section VII on the Criminal Punishment Code scoresheet)

Firearm points may only be scored if the defendant is found guilty of committing or attempting to commit a felony other than those enumerated in § 775.087(2), Fla. Stat.

Semi-automatic or machine gun points may be scored only if the defendant is found guilty of committing or attempting to commit a felony other than those enumerated in § 775.087(3), Fla. Stat.

If you find (defendant) guilty of (name of crime [or relevant lesser-included offenses]), you must then answer the following question:

Did the State prove beyond a reasonable doubt that while [attempting to commit] [committing] (name of crime [or relevant lesser-included offenses]), the defendant possessed a [firearm] [semi-automatic firearm] [machine gun]?

Yes No

Use for firearm points. § 790.001(6), Fla. Stat.

A "firearm" means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;]. [The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime. An antique firearm is (insert definition in § 790.001(1), Fla. Stat. ] [A destructive device is (insert definition in § 790.001(4), Fla. Stat.].

Use a shortened definition of firearm for semi-automatic or machine gun points.

§ 790.001(6), Fla. Stat.

A "firearm" means any weapon which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer].

§ 775.087(3), Fla. Stat.

"Semiautomatic firearm" means a firearm which is capable of firing a series of rounds by separate successive depressions of the trigger and which uses the energy of discharge to perform a portion of the operating cycle.

§ 790.001(9), Fla. Stat.

"Machine gun" means any firearm which shoots, or is designed to shoot, automatically more than one shot, without manually reloading, by a single function of the trigger.

Possession.

To prove (defendant) "possessed" a [firearm] [semi-automatic firearm] [machine gun], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [firearm] [semi-automatic firearm] [machine gun] and b) intentionally exercised control over it.

Give if applicable.

Control can be exercised over a [firearm] [semi-automatic firearm] [machine gun] whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to a [firearm] [semi-automatic firearm] [machine gun] does not establish that the person intentionally exercised control over it in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the [firearm] [semi-automatic firearm] [machine gun] or the present ability to direct its control by another.

Joint possession.

Possession of a [firearm] [semi-automatic firearm] [machine gun] may be sole or joint, that is, two or more persons may possess it.

Criminal Gang Offense

(Section IX on the Criminal Punishment Code scoresheet)

If you find (defendant) guilty of (name of primary offense [or relevant lesser-included offenses that would still be the primary offense]), you must then answer the following question:

Did the State prove beyond a reasonable doubt the defendant committed the crime for the purpose of benefiting, promoting, or furthering the interests of a criminal gang?

Yes No

§ 874.03, Fla. Stat.

"Criminal gang" means a formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols, including, but not limited to, terrorist organizations and hate groups.

Domestic Violence in Presence of a Child Under 16

(Section IX on the Criminal Punishment Code scoresheet)

If you find (defendant) guilty of (name of primary offense [or relevant lesser-included offenses that would still be the primary offense]), you must then answer the following questions:

Did the State prove beyond a reasonable doubt the (name of primary offense [or relevant lesser-included offenses that would still be the primary offense]) was a crime of domestic violence?

Yes No

Did the State prove beyond a reasonable doubt the (name of primary offense [or relevant lesser included offenses that would still be the primary offense]) was committed in the presence of a child under 16 years of age who was a family or household member of either the defendant or the victim?

Yes No

§ 741.28, Fla. Stat.

"Domestic violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Comments Alleyne v. United States, 570 U.S. 99 (2013), requires that any fact that increases the required minimum sentence must be found by the jury. Accordingly, it is probably necessary to have a jury finding in order to add scoresheet points for facts that do not inhere in the verdict where that would change the minimum or maximum allowable or mandatory sentence. However, because Apprendi v. New Jersey, 530 U.S. 466 (2000), exempts recidivism from jury fact-finding, it is unlikely that scoresheet points related to recidivism factors require a jury finding.

This instruction need not be given in cases where the verdict regarding the crime itself makes clear that particular injury points should be applied. For example, if a defendant is found guilty of a homicide, scoresheet points for death can be added based solely on the verdict. Similarly, a conviction for crimes such as aggravated battery causing great bodily harm or DUI causing serious bodily injury would probably allow for the addition of scoresheet points for severe physical injury.

In addition, unless these scoresheet findings could result in increasing the minimum or maximum allowable or mandatory sentence beyond what could otherwise be imposed, submission of these matters to the jury may be unnecessary.

But a guilty verdict for sexual battery may not allow for sexual penetration points in the absence of a jury finding that penetration occurred, since sexual battery may be committed by sexual contact. Blair v. State, 201 So.3d 800 (Fla. 4th DCA 2016). Also, the scoresheet multiplier for a crime of domestic violence committed in the presence of a child requires a jury finding if it would result in increasing the minimum allowable sentence. Cartagena v. State, 237 So.3d 417 (Fla. 4th DCA 2018). Similarly, designating someone as a dangerous sexual felony offender and imposing a mandatory minimum sentence requires a jury finding. Britten v. State, 181 So.3d 1215 (Fla. 1st DCA 2015).

This verdict form was adopted in 2019.

7.7(c) ASSISTED SELF-MURDER

§ 782.08, Fla. Stat.

To prove the crime of Assisted Self-Murder, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) is dead.
2. (Victim) committed self-murder.
3. (Defendant) deliberately assisted in the self-murder of (victim).

Definitions.

§ 782.081(1)(b), Fla. Stat.

"Self-murder" means the voluntary and intentional taking of one's own life.

Lesser Included Offenses

No lesser-included offenses have been identified for this offense.

Comment

This instruction was adopted in 2019.

      The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www.floridasupremecourt.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


text:
    Larry R. WETZEL, Petitioner, v. STATE of Florida, Respondent.
    No. SC19-7
    Supreme Court of Florida.
    June 6, 2019
    Larry R. Wetzel, pro se, Navarre, Florida, for Petitioner
    No appearance for Respondent
   PER CURIAM.

This case is before the Court on the pro se petition of Larry R. Wetzel for a writ of quo warranto. We have jurisdiction. See art. V, § 3(b)(8), Fla. Const. By order dated March 4, 2019, we dismissed Wetzel's petition pursuant to Logan v. State , 846 So. 2d 472, 479 (Fla. 2003). See Wetzel v. State , No. SC19-7, 2019 WL 1922374 (Fla. Mar. 4, 2019). Concurrent with the dismissal of the petition, we expressly retained jurisdiction to pursue possible sanctions against Wetzel. Id. ; see Fla. R. App. P. 9.410(a) (Sanctions; Court's Motion).

Wetzel is currently charged with five counts of filing a false statement against real or personal property in pending Santa Rosa County case number 572014CF001456CFAXMX. Since 2017, Wetzel has filed five pro se petitions with this Court seeking relief related to those criminal charges. Each of Wetzel's petitions has been accompanied by a plethora of documents that are rambling, indecipherable, and irrelevant to his pending criminal case. Two of those petitions were voluntarily dismissed by Wetzel, but the remainder, including the instant petition for writ of quo warranto, have been dismissed as unauthorized because Wetzel is currently represented by counsel in the above-noted criminal matter and is not entitled to combine self-representation with representation by counsel. See Logan v. State , 846 So. 2d 472, 475 (Fla. 2003). Furthermore, based on Wetzel's vexatious filing history, we issued an order directing him to show cause why he should not be prohibited from filing any further pro se documents in this Court related to circuit court case number 572014CF001456CFAXMX.

Wetzel filed a response to the order to show cause in which he argues that the order is moot and void because this Court lacks subject matter jurisdiction over his case. Upon due consideration of his response, we conclude that Wetzel has failed to show cause why sanctions should not be imposed. Based on his persistent history of filing pro se petitions that are frivolous, meritless, or otherwise inappropriate for this Court's review, Wetzel has abused the judicial process and burdened this Court's limited judicial resources.

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Larry R. Wetzel that are related to case number 572014CF001456CFAXMX unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Wetzel's behalf if counsel determines that the proceeding may have merit and can be brought in good faith.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.


author: PER CURIAM. LABARGA, J., dissenting.

text:
    D.M., etc., Petitioner, v. M.D., etc., Respondent.
    No. SC18-1372
    Supreme Court of Florida.
    June 6, 2019
    Michael M. Brownlee of The Brownlee Law Firm, P.A., Orlando, Florida, for Petitioner
    Elizabeth Siano Harris of Harris Appellate Law Office, Mims, Florida, for Respondent
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the Fifth District Court of Appeal in D.M. v. M.D. , 247 So. 3d 713 (Fla. 5th DCA 2018), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. After further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

NO MOTION FOR REHEARING WILL BE ALLOWED.

CANADY, C.J., and POLSTON, LUCK, and MUÑIZ, JJ., concur.

LAWSON, J., concurs specially with an opinion, in which LAGOA, J., concurs.

LABARGA, J., dissents with an opinion.

LAWSON, J., concurring specially.

I fully agree with Justice Labarga that the trial court's failure to make written findings in this case rendered meaningful appellate review impossible and was therefore not harmless. However, the Fifth District's error in concluding otherwise under the particular facts of this case does not create express and direct conflict with any decision of this Court or another district court of appeal. To the extent there is such conflict, it is not apparent on the face of the Fifth District's opinion and, therefore, cannot serve as a basis for our jurisdiction. See Reaves v. State , 485 So. 2d 829, 830 (Fla. 1986).

Initially, I voted to accept jurisdiction based upon the petitioner's argument that the Fifth District's application of a harmless error standard conflicted with cases from other district courts of appeal applying a per se rule of reversal whenever written findings required by law were not made, and where the issue was preserved for appellate review. See Callwood v. Callwood , 221 So. 3d 1198, 1201 (Fla. 4th DCA 2017) ; Dep't of Children & Families v. J.S. , 183 So. 3d 1177, 1183 (Fla. 4th DCA 2016) ; Kennedy v. Kennedy , 60 So. 3d 466, 469 (Fla. 2d DCA 2011) ; Farley v. Farley , 800 So. 2d 710, 711-12 (Fla. 2d DCA 2001) ; Shoffner v. Shoffner , 744 So. 2d 1157, 1157-58 (Fla. 1st DCA 1999) ; Staton v. Staton , 710 So. 2d 744, 745 (Fla. 2d DCA 1998). Upon closer examination, however, all of the purported conflict cases are silent as to whether the harmless error test was considered, and none expressly state that a per se reversal rule is being applied. Because I conclude that there is no conflict apparent on the face of the opinion below and a decision of another district court of appeal, or our Court, I agree with the majority that we do not have jurisdiction.

LAGOA, J., concurs.

LABARGA, J., dissenting.

I dissent to discharge of this case because the error that occurred was not harmless. The decision below provides, in pertinent part:

D.M. appeals a final order denying her petition to terminate the parental rights of M.D., the biological father of their two children, in conjunction with a proceeding for a stepparent adoption under chapter 63, Florida Statutes (2015). D.M. argues that the trial court erred in failing to set forth specific findings of fact to support its conclusion that M.D. had not abandoned his children....
D.M.'s petition sought to terminate M.D.'s parental rights based on his ninety-seven-month term of incarceration in prison followed by ten years of sex offender probation. D.M. alleged that M.D.'s term of incarceration constituted a significant portion of the children's minority. Alternatively, she contended that continuing the parental relationship with M.D. would be harmful to the children and, for this reason, termination of M.D.'s parental rights would be in the best interests of the children. See § 63.089(4)(b)1. & 3., Fla. Stat. (2015).
Following an evidentiary hearing, the trial court denied D.M.'s petition. As D.M. correctly observes, the trial court's order does not include written findings addressing the criteria set forth in section 63.089(4), as required by section 63.089(5). However, the failure to make the required findings can constitute harmless error when, as here, our review is not hampered by their absence.

D.M. v. M.D. , 247 So. 3d 713, 713-14 (Fla. 5th DCA 2018) (footnote omitted). The Fifth District affirmed the denial order, concluding the lack of the required written findings constituted harmless error. Id. at 714.

While I agree with the Fifth District that the failure to make the required written findings under section 63.089(5) is subject to harmless error review, the error here cannot be deemed harmless. In the civil context, where a claim is preserved:

To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.

Special v. W. Boca Med. Ctr. , 160 So. 3d 1251, 1256 (Fla. 2014). Here, the trial court's failure to make the statutorily required written findings hampered meaningful appellate review, such that it was not possible for the district court to evaluate whether the error was harmful under the applicable standard. Indeed, the absence of these findings renders it impossible to determine upon what the trial court based its conclusion that abandonment was not proven, or if the reasoning underlying that decision was proper.

Accordingly, I would keep jurisdiction, quash D.M. , and remand to the Fifth District with instructions that this case further be remanded to the trial court to make the statutorily required written findings. See e.g. , Williams v. Williams , 923 So. 2d 606, 608 (Fla. 2d DCA 2006) (concluding in a dissolution of marriage proceeding that the failure to make the required statutory findings did not constitute harmless error because, without the findings, the appellate court could not determine why the trial court did not award alimony to the former spouse or whether the decision was a proper exercise of the trial court's discretion).

      The mother properly challenged the sufficiency of the trial court's denial order, noting the lack of the statutorily required written findings.


author: Per Curiam.

text:
    Decarlo Antuann MITCHELL, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3270
    District Court of Appeal of Florida, First District.
    May 16, 2019
    Andy Thomas, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Laquareious Jahmichael GRANDISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1602
    District Court of Appeal of Florida, First District.
    May 16, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Decarlo Antuann MITCHELL, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3271
    District Court of Appeal of Florida, First District.
    May 16, 2019
    Andy Thomas, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Michael Jerome LEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2300
    District Court of Appeal of Florida, First District.
    May 16, 2019
    Andy Thomas, Public Defender, and Greg Caracci, Assistant Public Defender, for Appellant; Michael Jerome Lee, pro se.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

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


text:
    Christopher Demetrius SIMPKINS Jr, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3381
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Robert Emory TORRENCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3688
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Dylan Edward SIZEMORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1449
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Laquareious Jahmichael GRANDISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1601
    District Court of Appeal of Florida, First District.
    May 16, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Shebeyonne Latrice GARNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3925
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Fred ELLIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3559
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Christopher Demetrius SIMPKINS Jr, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3383
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Robert Earl HAYES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2983
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Robert Earl Hayes, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Peter Aurelien BILLIOT Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2149
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Darryl Ray GEER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1665
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Brandon M. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3899
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Brandon M. Carter, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Christopher Demetrius SIMPKINS Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3382
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Robert Emory TORRENCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3687
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Joseph Edward HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2512
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Danny V. SELLERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2163
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Danny V. Sellers, pro se, Appellant.
    Ashley Moody, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Joseph SELLERS, Petitioner, v. FLA. DEP'T. OF CORRECTIONS, Respondent.
    No. 1D17-4448
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Joseph Sellers, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED .

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Reginald SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3785
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Reginald Smith, pro se, Appellant.
    Ashley Moody, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Christopher Demetrius SIMPKINS Jr, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3269
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Dylan Edward SIZEMORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1450
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Melissa SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2601
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Kevin ROJAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5436
    District Court of Appeal of Florida, First District.
    May 31, 2019
    Andy Thomas, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    James L. RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0742
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Everly S. LIPPWE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2928
    District Court of Appeal of Florida, First District.
    March 21, 2019 Rehearing Denied May 28, 2019
    Everly S. Lippwe, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Roberts, Ray, and Jay, JJ., concur.


text:
    Jean CENECHARL, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-754
    District Court of Appeal of Florida, First District.
    March 5, 2019 Rehearing Denied May 28, 2019
    Jean Cenecharl, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

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


text:
    Marcus Darnell EBRON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4544
    District Court of Appeal of Florida, First District.
    April 2, 2019 Rehearing Denied May 28, 2019
    Marcus Darnell Ebron, pro se, Petitioner.
    Ashley Moody, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DENIED .

Makar, Osterhaus, and Jay, JJ., concur.


text:
    Stacey RUSSO, Appellant, v. BOCA RATON COMMUNITY HOSP. and PMA Management Corp., Appellees.
    No. 1D18-3812
    District Court of Appeal of Florida, First District.
    March 29, 2019 Rehearing Denied June 12, 2019
    Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Kimberly J. Fernandes of Kelley Kronenberg, P.A., Tallahassee, for Appellees.
   Per Curiam.

AFFIRMED .

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


text:
    Samuel J. CHESTNUT, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D18-1616
    District Court of Appeal of Florida, First District.
    March 29, 2019 Rehearing Denied May 28, 2019
    Samuel J. Chestnut, pro se, Appellant.
    Eric Salvatore Giunta, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Lewis, Rowe, and Makar, JJ., concur.


text:
    Levory HICKMON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-936
    District Court of Appeal of Florida, First District.
    March 27, 2019 Rehearing Denied May 28, 2019
    Levory W. Hickmon, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Jennifer Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

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


text:
    Bryan PIKE, Petitioner, v. Florida Department of Corrections, Secretary, Mark S. INCH, Respondent.
    No. 1D18-4185
    District Court of Appeal of Florida, First District.
    April 15, 2019 Rehearing Denied May 28, 2019
    Bryan Pike, pro se, Petitioner.
    No appearance for Respondent.
   Per Curiam.

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

Wetherell, Osterhaus, and Winokur, JJ., concur.


text:
    CITY OF ORLANDO and Relation Insurance Services, Appellants, v. John BEST, Appellee.
    No. 1D18-2902
    District Court of Appeal of Florida, First District.
    Date of Accident: November 23, 2011 April 15, 2019 Rehearing Denied June 4, 2019
    Kristen L. Magana of Broussard, Cullen & Blastic, P.A., Orlando, for Appellants.
    Lawrence H. Hornsby of Hornsby Law, Winter Park, and Wendy S. Loquasto of Fox & Loquasto, LLC, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

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


text:
    Michel Adib ABDALLAH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2304
    District Court of Appeal of Florida, First District.
    April 11, 2019 Rehearing Denied May 28, 2019
    William Mallory Kent, Jacksonville, for Appellant.
    Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

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


text:
    Dahlia HARRISON, Appellant, v. The DELTONA CORPORATION, Appellee.
    No. 1D18-1215
    District Court of Appeal of Florida, First District.
    April 11, 2019 Rehearing Denied May 28, 2019
    Dahlia Harrison, pro se, Appellant.
    H. Matthew Fuqua of Fuqua & Milton, P.A., Marianna, for Appellee.
   Per Curiam.

AFFIRMED .

Wolf, Bilbrey, and Winsor, JJ., concur.


text:
    Travis THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2107
    District Court of Appeal of Florida, First District.
    April 30, 2019
    Travis Thomas, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

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


text:
    Malik GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2053
    District Court of Appeal of Florida, First District.
    April 30, 2019
    Malik Green, pro se, Appellant.
    Ashley Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

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


text:
    William Henry BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1012
    District Court of Appeal of Florida, First District.
    April 30, 2019
    William Henry Brown, pro se, Appellant.
    Ashley Moody, Attorney General, for Appellee.
   Per Curiam.

AFFIRMED .

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


text:
    Deborah J. WINFREE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3725
    District Court of Appeal of Florida, First District.
    April 30, 2019
    Deborah J. Winfree, pro se, Appellant.
    Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

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


text:
    Mark MCKENZIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1095
    District Court of Appeal of Florida, First District.
    April 30, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

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


text:
    Karl BARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0192
    District Court of Appeal of Florida, First District.
    April 30, 2019
    Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

B.L. Thomas, C.J., and Kelsey and M.K. Thomas, JJ., concur.


text:
    Isreal WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-1086
    District Court of Appeal of Florida, First District.
    April 30, 2019
    Isreal Williams, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED .

Wolf and Winokur, JJ., concur; Kelsey, J., concurs in result.


text:
    Terrance EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3179
    District Court of Appeal of Florida, First District.
    April 30, 2019
    Terrance Edwards, pro se, Appellant.
    Ashley Moody, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Roberts, Ray, and Jay, JJ., concur.


text:
    Myles DIXON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-1063
    District Court of Appeal of Florida, First District.
    May 7, 2019
    Alex Christiano, Tallahassee, for Petitioner.
    Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

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

Ray, Osterhaus, and Winokur, JJ., concur.


text:
    Willie WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-1295
    District Court of Appeal of Florida, First District.
    May 7, 2019
    Amanda Edge and Richard G. Currey, Assistant Regional Conflict Counsel, Pensacola, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED .

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Pamela GOODMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2636
    District Court of Appeal of Florida, First District.
    April 30, 2019
    Pamela Goodman, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

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


text:
    William Henry BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-362
    District Court of Appeal of Florida, First District.
    April 30, 2019
    William Henry Brown, pro se, Appellant.
    Ashley Moody, Attorney General, Jennifer Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

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


text:
    Sarah WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2945
    District Court of Appeal of Florida, First District.
    May 8, 2019
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DENIED .

Wolf, Bilbrey, and Winsor, JJ., concur.


text:
    Marvin L. HAGGINS, a/k/a Marvin Lavan Haggins, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2349
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    Marvin L. Haggins, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

SILBERMAN, KELLY, and VILLANTI, JJ., Concur.


text:
    Artie PERKINS, a/k/a Carl Allen, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4559
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    Artie Perkins, a/k/a Carl Allen, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA, LUCAS, and SALARIO, JJ., Concur.


text:
    Arnold CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-325
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019.
    Howard L. Dimmig, II, Public Defender, and Stephania A. Gournaris, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

BLACK, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    James Leslie KELLY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1213
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    James Leslie Kelly, pro se.
   PER CURIAM.

Affirmed.

NORTHCUTT, BLACK, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Mandingo BOOBYYAA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2068
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    Mandingo Boobyyaa, pro se.
   PER CURIAM.

Affirmed.

VILLANTI, KHOUZAM, and SALARIO, JJ., Concur.


text:
    Djakarta BURTON, DOC #140889, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4330
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019.
    Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed.

BLACK, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Ramon VENEGAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-37
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019.
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa; and Cynthia Richards, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
   PER CURIAM.

Affirmed.

BLACK, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Gerald T. WALDEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4398
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    Howard L. Dimmig, II, Public Defender, and Rachel Roebuck, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Bilal Ahmed Faruqui, Assistant Attorney General, Tampa; and Allison C. Heim, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA, MORRIS, and BLACK, JJ., Concur.


text:
    Alexandre R. TALUY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-392
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    Howard L. Dimmig, II, Public Defender, and Jean-Jacques A. Darius, Special Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA, and MORRIS and BLACK, JJ., Concur.


text:
    John Harvey TAYLOR, III, DOC #Y32333, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-980
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA, MORRIS, and BLACK, JJ., Concur.


text:
    Jimmy VELASQUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-635
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed.

SILBERMAN, KELLY, and VILLANTI, JJ., Concur.


text:
    Yohan Eba MCEWEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3750
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2019
    Anthony M. Candela of Candela Law Firm, P.A., Riverview, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

VILLANTI, BLACK, and ATKINSON, JJ., Concur.


text:
    Rodrecius A. HAMILTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3433
    District Court of Appeal of Florida, Second District.
    Opinion filed April 3, 2019
    Howard L. Dimmig, II, Public Defender, and Benedict P. Kuehne, Special Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General; and Cynthia Richards, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
   PER CURIAM.

Affirmed.

SILBERMAN, LUCAS, and ATKINSON, JJ., Concur.


text:
    Walter DUNN, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-537
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019
    Walter Dunn, III, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Tonja Vickers Rook, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

SILBERMAN, KELLY, and VILLANTI, JJ., Concur.


text:
    Rajai Akeem RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3165
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

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


text:
    Tony R. NAVARRO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4966
    District Court of Appeal of Florida, Second District.
    Opinion filed April 12, 2019
    Tony R. Navarro, pro se.
   PER CURIAM.

Affirmed.

SILBERMAN, VILLANTI and ATKINSON, JJ., Concur.


text:
    Donald P. BERNAICHE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1847
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019
    Donald P. Bernaiche, pro se.
   PER CURIAM.

Affirmed.

LaROSE, C.J., and MORRIS and SMITH, JJ., Concur.


text:
    Randy L. ROUNDTREE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2368
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019
   PER CURIAM.

Affirmed.

NORTHCUTT, KELLY, and KHOUZAM, JJ., Concur.


text:
    Patrick O. CLARKE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1065
    District Court of Appeal of Florida, Second District.
    Opinion filed April 10, 2019.
    Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Chelsea Alper, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

LaROSE, C.J., and KHOUZAM and SLEET, JJ., Concur.


text:
    Willie Lee MCGEE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4107
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019.
   PER CURIAM.

Affirmed.

CASANUEVA, SILBERMAN, and ATKINSON, JJ., Concur.


text:
    Anton WATKINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2338
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    Anton Watkins, pro se.
    Ashley Moody, Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

KELLY, SLEET, and LUCAS, JJ., Concur.


text:
    Lumberfious Deandre ARNOLD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-911
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, MORRIS, and ATKINSON, JJ., Concur.


text:
    Chunsi William VINES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-5094
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    Jason B. Blank of Haber Blank, LLP, Fort Lauderdale, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Rachel Kamoutsas, Assistant Attorney General, Miami, for Appellee.
   PER CURIAM.

Affirmed.

VILLANTI, KHOUZAM, and BADALAMENTI, JJ., Concur.


text:
    Willie Lee MCGEE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4167
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019.
   PER CURIAM.

Affirmed.

CASANUEVA, SILBERMAN, and ATKINSON, JJ., Concur.


text:
    Willie Lee MCGEE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4168
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
   PER CURIAM.

Affirmed.

CASANUEVA, SILBERMAN, and ATKINSON, JJ., Concur.


text:
    Valencia GARNER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D18-4809
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
    Julianne M. Holt, Public Defender, Tampa, for Petitioner.
    Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Denied.

LaROSE, C.J., and VILLANTI and ATKINSON, JJ., Concur.


text:
    Richard Don CUTHBERTSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4056
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
   PER CURIAM.

Affirmed. See § 775.084(1)(d), (3)(c)(5), Fla. Stat. (2014) ; Johnson v. State, 60 So. 3d 1045 (Fla. 2011) ; Smith v. State, 909 So. 2d 972 (Fla. 2d DCA 2005) ; Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA 2004).

CASANUEVA, SILBERMAN, and ATKINSON, JJ., Concur.


text:
    Jerry V. MARINO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4091
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
    Jerry V. Marino, pro se.
   PER CURIAM.

Affirmed. See Fla. R. Crim. P. 3.801(b) ; Brito v. State, 194 So. 3d 522 (Fla. 3d DCA 2016).

CASANUEVA, SILBERMAN, and ATKINSON, JJ., Concur.


text:
    Cornelius C. CANADY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3589
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
    Cornelius C. Canady, pro se.
   PER CURIAM.

Affirmed.

CASANUEVA, MORRIS, and SALARIO, JJ., Concur.


text:
    Mark BODGE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3995
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
   PER CURIAM.

Affirmed. See Keene v. State, 500 So. 2d 592 (Fla. 2d DCA 1986) ; Harris v. State, 483 So. 2d 111 (Fla. 2d DCA 1986).

CASANUEVA, SILBERMAN, and ATKINSON, JJ., Concur.


text:
    George WHIDDEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4012
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
   PER CURIAM.

Affirmed. See Reeves v. State, 957 So. 2d 625 (Fla. 2007) ; Chapman v. State, 968 So. 2d 583 (Fla. 2d DCA 2007).

CASANUEVA, SILBERMAN, and ATKINSON, JJ., Concur.


text:
    Gerardo MARTINEZ, Appellant, v. Ruebin A. MARTIN, Appellee.
    Case No. 2D18-1565
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019.
    David A. Papa of Papa & Gipe, P.A., Clearwater, for Appellant.
    Anthony J. Russo and Mihaela Cabulea of Butler, Weihmuller Katz Craig LLP, Tampa; and Mark S. Ramey of Ramey & Kampf, P.A., Tampa, for Appellee.
   PER CURIAM.

Affirmed.

SILBERMAN, VILLANTI, and MORRIS, JJ., Concur.


text:
    Niyke D. ECHAVARRIA, a/k/a Niyke Deangelo Echavarria, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1952
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019.
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed.

LaROSE, C.J., and VILLANTI and ATKINSON, JJ., Concur.


text:
    Henry Kevin MALONE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2235
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
    Henry Kevin Malone, pro se.
   PER CURIAM.

Affirmed.

LaROSE, C.J., and NORTHCUTT and ATKINSON, JJ., Concur.


text:
    SCOTTSDALE INSURANCE COMPANY, a Foreign Corporation, Appellant, v. BAY AREA PARTNERS, LTD., a Florida Limited Partnership, Appellee.
    Case No. 2D18-2343
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019.
    Darius N, Kandawalla and Sabrina Haurin of Bailey Cavalieri LLC, Columbus, Ohio; and Laura Besvinick of Stroock & Stroock & Lavan, LLP, Miami, for Appellant.
    William L. Petros and Brett J. Novick of William Petros Law, Coral Gables, for Appellee.
   PER CURIAM.

Affirmed.

SILBERMAN, VILLANTI, and SMITH, JJ., Concur.


text:
    Troy Anthony CHARLES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3879
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
   PER CURIAM.

Affirmed. See § 775.082(1), Fla. Stat. (2012) ; Williams v. State, 707 So. 2d 683 (Fla. 1998) ; Orjales v. State, 758 So. 2d 1157 (Fla. 2d DCA 2000).

CASANUEVA, SILBERMAN, and ATKINSON, JJ., Concur.


text:
    Rico S. YOUNG, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3965
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
   PER CURIAM.

Affirmed. See Clark v. State, 790 So. 2d 1030 (Fla. 2001) ; Brinson v. State, 851 So. 2d 815 (Fla. 2d DCA 2003) ; Smith v. State, 151 So. 3d 44 (Fla. 1st DCA 2014).

CASANUEVA, SILBERMAN, and ATKINSON, JJ., Concur.