text:
    Reginald T. JONES, Appellant, v. Mark S. INCH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D17-4810
    District Court of Appeal of Florida, First District.
    January 25, 2019 Rehearing Denied March 15, 2019
    Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Gregory MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3113
    District Court of Appeal of Florida, First District.
    January 22, 2019 Rehearing Denied March 15, 2019
    Affirmed.


text:
    Russell Thomas TAYLOR, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0586
    District Court of Appeal of Florida, First District.
    January 16, 2019 Rehearing Denied March 15, 2019
    Affirmed.


text:
    Tracy D. NEWTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2296
    District Court of Appeal of Florida, First District.
    December 27, 2018 Rehearing Denied March 25, 2019
    AFFIRMED.


text:
    Bennie HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4484
    District Court of Appeal of Florida, First District.
    February 15, 2019 Rehearing Denied March 26, 2019
    Affirmed.


text:
    Dennis CHRISTENSEN, Appellant, v. Judy Kay VINZ, Appellee.
    No. 1D18-1257
    District Court of Appeal of Florida, First District.
    February 8, 2019 Rehearing Denied March 15, 2019
    Affirmed.


text:
    Kenneth NEWSOME, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2666
    District Court of Appeal of Florida, First District.
    February 8, 2019 Rehearing Denied March 26, 2019
    Affirmed.


text:
    Isaac WILDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3962
    District Court of Appeal of Florida, First District.
    January 25, 2019 Rehearing Denied March 15, 2019
    Affirmed.


text:
    Vanessa SHARP, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3960
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Affirmed.


text:
    CALIPER SYSTEMS, INC., Appellant/Cross-Appellee, v. DEPARTMENT OF TRANSPORTATION, Appellee and PTV America, Inc., Appellee/Cross-Appellant.
    No. 1D18-2452
    District Court of Appeal of Florida, First District.
    February 21, 2019 Rehearing Denied March 25, 2019
    AFFIRMED.


text:
    Donald Adam DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4514
    District Court of Appeal of Florida, First District.
    February 15, 2019 Rehearing Denied March 25, 2019
    AFFIRMED.


text:
    Charity CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5025
    District Court of Appeal of Florida, First District.
    January 8, 2019 Rehearing Denied March 26, 2019
    AFFIRMED.


text:
    Tony Paul HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3622
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Affirmed.


text:
    Christopher REDDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3578
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Affirmed.


text:
    Anthony K. GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0668
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Affirmed.


text:
    Breontay MCMILLON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0565
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Affirmed.


text:
    Aaron C. DAVENPORT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0547
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Affirmed.


text:
    Aaron C. DAVENPORT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0404
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Affirmed.


text:
    Richard L. BELL, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3236
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Affirmed.


text:
    Roy Anthony VANCE Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0641
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Affirmed.


text:
    Ibtisam OJAYMI, Appellant, v. ADVANTAGE SALES & MARKETING, LLC and Sedgwick Claims Management Services, Appellees.
    No. 1D18-0452
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Date of Accident: March 11, 2017.
    Affirmed.


text:
    William Thomas LANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5206
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Affirmed.


text:
    Dominic Rarphell BENSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4539
    District Court of Appeal of Florida, First District.
    March 15, 2019
    Dismissed.


text:
    Juan MEZA-MEDINA, Appellant, v. RAYMOND BUILDING SUPPLY, LLC and Sedgwick CMS, Appellees.
    No. 1D18-3493
    District Court of Appeal of Florida, First District.
    March 15, 2019
    Date of Accident: March 5, 2016.
    Affirmed.


text:
    Arben CIPI, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and BX Survivor Inc., Appellees.
    No. 1D18-1595
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Affirmed.


text:
    David HENRY, Appellant, v. Tony TAYLOR, Appellee.
    No. 1D18-880
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Affirmed.


text:
    Nicholas PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-468
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Affirmed.


text:
    John SKINNER, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D17-5265
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Denied.


text:
    Mayceo Tylik WILSON, II, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-3443 1D17-3445
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Affirmed.


text:
    Irene PICCA, Appellant, v. FLORIDA BOARD OF ACCOUNTANCY, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 1D17-527
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Affirmed.


text:
    Johnny Ray STRICKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2175
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Affirmed.


author: Per Curiam.

text:
    Valerie PASSLEY, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Southwest Airlines Co., Appellees.
    No. 1D18-1882
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Valerie Passley, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Katie Elisabeth Sabo, Appellate Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   Per Curiam.

AFFIRMED.

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


text:
    Earl Raymond CAMPOS, Appellant, v. Joana CAMPOS, Appellee.
    No. 1D18-2321
    District Court of Appeal of Florida, First District.
    March 26, 2019
    Affirmed.


text:
    Lee Edward JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1808
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Affirmed.


text:
    Steven Frederick FISHEL, Appellant, v. PUBLIX SUPERMARKETS and Publix Risk Management, Appellees.
    No. 1D18-3427
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Date of Accident: May 22, 2017.
    Affirmed.


text:
    Andrea PETERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2164
    District Court of Appeal of Florida, First District.
    March 25, 2019
    Denied.


text:
    Michael Alan MCCALLUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2227
    District Court of Appeal of Florida, First District.
    March 26, 2019
    Affirmed.


text:
    A.M., Father of N.M., a Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-4997
    District Court of Appeal of Florida, First District.
    March 26, 2019
    Affirmed.


text:
    Anthony Scott RYALS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4078
    District Court of Appeal of Florida, Second District.
    Opinion filed December 7, 2018
    Affirmed.


text:
    Albert M. ROBINSON, Appellant, v. SECTION 23 PROPERTY OWNER'S ASSOCIATION, INC. ; Nancy Peraine; Joseph Wilfred Harris; Nicholas Theiss; Victoria Craig ; Charles Donald Peters; Ronald Daugherty; Kathleen Gill ; Harvey Goldstein; Peer Builders ; Carlson & Soforth ; Earle Jay Carlson; Ronald E. Woods ; Karen Lynne Perry; and Teresa Lynn Boucher, Appellees.
    Case No. 2D18-130
    District Court of Appeal of Florida, Second District.
    Opinion filed November 9, 2018
    Affirmed.


text:
    Christina PAYLAN, Appellant, v. Brian BISHOP, in His Individual Capacity, and Mark Detrio, in His Individual Capacity, Appellees.
    Case No. 2D17-4117
    District Court of Appeal of Florida, Second District.
    Opinion filed January 4, 2019.
    Affirmed.


text:
    Damien Delon JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2570
    District Court of Appeal of Florida, Second District.
    Opinion filed January 4, 2019
    Affirmed.


text:
    Xavier THOMAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4352
    District Court of Appeal of Florida, Second District.
    Opinion filed January 4, 2019
    Affirmed.


text:
    B.R., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4537
    District Court of Appeal of Florida, Second District.
    Opinion filed December 14, 2018.
    Affirmed.


text:
    Andrea GUNTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1592
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019.
    Affirmed.


text:
    Tyrone TERRY, DOC# 527778, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1120
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Affirmed.


text:
    In the INTEREST OF V.A. and J.G., Children.
    S.H., Petitioner, v. Department of Children and Families and Guardian Ad Litem Program, Respondents.
    Case No. 2D18-4386
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Denied.


text:
    Robert J. RECKLEIN and Curtis B. Recklin, Appellants, v. The BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION FKA The Bank of New York Trust Company, N.A., as Successor to JP Morgan Chase Bank, N.A. as Trustee for RAMP 2004RS2; Wachovia Bank, National Association; and The Orchards Community Association, Inc., Appellees.
    Case No. 2D18-947
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Affirmed.


text:
    Donald Stewart ROYCE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3570
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019.
    Affirmed.


text:
    In the INTEREST OF A.A.G., A.G.G., and B.T.G., Children.
    J.G. and K.C., Appellants, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-3136
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019.
    Affirmed.


text:
    Patricia M. BUTZ, Appellant, v. Stanley K. SMITH and Nancy J. Smith, Appellees.
    Case No. 2D18-334
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019.
    Affirmed.


text:
    Brooke GARDNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1187
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019.
    Affirmed.


text:
    Erin PICHE-PITTS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1303
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Affirmed.


text:
    Riley N. MITCHELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-5155
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Affirmed.


text:
    Rebecca A. SCHWARTZ, Petitioner, v. James A. SCHWARTZ, as Administrator Ad Litem for the Estate of Steven P. Schwartz, Deceased, Respondent.
    Case No. 2D18-3406
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019.
    Denied.


text:
    Jimmy W. ODUM, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2430
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    Affirmed.


text:
    Isaac E. ABRAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3028
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    Affirmed.


text:
    In the INTEREST OF M.S., a Child.
    Adoption Services, Inc., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-2923
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Affirmed.


text:
    James A. SCHWARTZ, Petitioner, v. MORTON PLANT HOSPITAL ASSOCIATION, INC., Respondent.
    Case No. 2D18-2260
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019.
    Denied.


text:
    Walter BRANUM and Karen Branum, Appellants, v. Pat FRANK, as Clerk of the Circuit Court for Hillsborough County, Florida, Appellee.
    Case No. 2D17-3706
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    Affirmed.


text:
    Freud PROPHETE and Kiwana Prophete, Appellants, v. Pat FRANK, as Clerk of the Circuit Court for Hillsborough County, Florida, Appellee.
    Case No. 2D17-3810
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019.
    Affirmed.


text:
    Michael SHELTON AS TRUSTEE OF the 8712 MCADAM RESIDENTIAL LAND TRUST, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION; Steven D. Cragg; Kimberly R. Cragg; Unknown Tenant I; Unknown Tenant IL; Copperfield at Tampa Homeowners' Associaton, Inc.; Citibank, National Association, Successor by Merger with CFSB, National Association, Successor by Merger with Citibank Federal Savings Bank; the Unknown Beneficiaries of the 8712 McAdam Residential Land Trust; Unknown Spouse of Michael Shelton, and Any Unknown Heirs, Devisees, Grantees, Creditors, and Other Unknown Persons or Unknown Spouses Claiming by, Through and Under Any of the Above-Named Defendants, Appellees.
    Case No. 2D17-4836
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019.
    Affirmed.


text:
    In the INTEREST OF M.C., a Child.
    M.C., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-4264
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    Affirmed.


text:
    Dwayne Jarrel JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5474
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Maria KAZOURIS, Petitioner, v. The CITY OF TARPON SPRINGS, Respondent.
    Case No. 2D18-3327
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    Denied.


text:
    TEXAS HOLD'EM, LLC, and Squeeze Me Inn, LLC, Petitioners, v. TOWN OF FORT MYERS BEACH, Respondent.
    Case No. 2D18-3603
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019.
    Denied.


text:
    Rufus L. ADAMS, DOC #S04955, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2033
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Pedro L. ALARCON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3093
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Ricky Bernard TAYLOR, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4551
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Randall MCCOY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D18-3419
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Denied.


text:
    Kraig Richard CONSTANTINO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-50
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Ronnie ATMORE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-735
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Christopher O. SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5333
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019.
    Affirmed.


text:
    Larry Bernard PACE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3518
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


author: PER CURIAM.

text:
    Erick Andre NUNN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4007
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA, VILLANTI, and ATKINSON, JJ., Concur.


text:
    Harrison REES, Appellant, v. NICOSIA CONSULTING INTERNATIONAL LLC, Appellee.
    Case No. 2D17-4450
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019.
    Affirmed.


text:
    Erik Michael FINSTAD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-273
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Thomas John NELSON, DOC #H08275, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-385
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    ALL CRANE RENTAL OF FLORIDA, LLC, Appellant, v. Norman HUDDY, James Dandridge, and Maxim Crane Works, L.P., Appellees.
    Case No. 2D18-676
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Larry Bernard PACE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3516
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Larry Bernard PACE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3517
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Edward KNAPP, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3644
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    April Danielle SHEFFIELD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4710
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Santiago MARTINEZ and Cynthia Martinez, Appellants, v. Pat FRANK, as Clerk of the Circuit Court for Hillsborough County; Mortgage Electronic Registration Systems, Inc.; Q Lending, Inc. f/k/a Equity Financial Group, Inc.; and Renaissance Villas Condo Assn. Inc., Appellees.
    Case No. 2D17-4817
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Cole William RUCKER, Appellant, v. Helena Raquel ROTH, Appellee.
    Case No. 2D18-1656
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Lonnie Wayne GREER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1666
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    Tyrone GRIMES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1663
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Roberto VALLE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3914
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Lavar Clifford MCNAIR, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D18-3432
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Dismissed.


text:
    Malcolm PORTER, DOC #Y37365, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-929
    District Court of Appeal of Florida, Second District.
    Opinion filed February 13, 2019
    Affirmed.


text:
    William HAMMESFAHR, Appellant, v. Gina Presson HAMMESFAHR, n/k/a Gina Presson, Appellee.
    Case No. 2D17-4106
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Michael Lee JACKSON, III, DOC #Y14095, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4983
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Kyle Joseph GREBENOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-598
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Robert DAVIS, a/k/a Robert Lee Davis, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2403
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Anthony Arnett JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-82
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    J.S., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1222
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Heyward Conrad HOPKINS, DOC #R26214, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1357
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Juan Francisco VEGA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2487
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Charles Douglas NAPIER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2752
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    Gloria M. PINO, Appellant, v. Craig D. BLUME, Appellee.
    Case No. 2D17-5167
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    John M. HOWELL, Appellant, v. MAGNIFY CREDIT UNION f/k/a Community First Credit Union; Peter Hanson, a/k/a Peter Hansen, Appellee.
    Case No. 2D18-2056
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Joseph Andrew SYKES Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-167
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Affirmed.


text:
    Kathy Lou ROBERTS, DOC #H49321, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1026
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    Christopher LEHNING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3236
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    Edward WEBB, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3249
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    Nathan KOZIOL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-339
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    James F. BARRON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1862
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    Phillip Steve STAVRAKIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-251
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    Maikel GALLO-SURERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1395
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    W. Mark SANDERS, Individually and as Beneficiary of the 10730 Cory Lake Drive Land Trust; Strong Portfolio Holdings, LLC; Diversified Funds, LLC; International Investments of N. America, Inc.; and Brooke Sloane Properties, LLC, Appellants, v. WELLS FARGO BANK, N.A.; Cory Lake Isles Property Owners Association John Greeson ; James Scott; and Unknown Beneficiaries of 10730 Cory Lake Drive Land Trust, Appellees.
    Case No. 2D18-1561
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    Garrett P. MITCHELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3166
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    CHELSEA OAKS MANAGEMENT COMPANY, INC., and Chelsea Oaks Leasing, LLC, Appellants, v. CHELSEA OAKS TOWNHOMES HOMEOWNERS ASSOCIATION, INC., Charles Berliner, Jeff Keith, Robert Paz, April Williams, and Mark Winchester. Appellees.
    Case No. 2D18-3318
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    Gene Hinton FOLDS, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-87
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019.
    Affirmed.


text:
    Jacob BUCKIUS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-196
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    K.W.B., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-840
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Jermaine Bernard WALLS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-889
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Tonaryaze GRAY, DOC #H52399, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1734
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Cynthia G. FREY, Appellant, v. GREEN TREE SERVICING LLC; Christopher G. Frey; Foxwood at Trinity Community Association, Inc.; Trinity Communities Master Association, Inc.; Bank of America, N.A.; Unknown Tenant in Possession 1 n/k/a Brittany Frey, Appellees.
    Case No. 2D18-3054
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Affirmed.


text:
    David ROLON, DOC #T64080, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3536
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    William MONROE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4498
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Markus LOCKE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1013
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Terry Lee HILL, DOC #762155, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1536
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Robert Lee COON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1708
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Robert Lee COON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1749
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Latosha Latisha SPAULDING, DOC #Y15348, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2009
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Geoffrey JOE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4541
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Kimberly R. MOORE, aka Kimberly W. Jennings, DOC #155070, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4698
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    John Robert CLIFTON, DOC #761493, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1457
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Oscar DOPICO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1495
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Andres HERNANDEZ, a/k/a Andres Hernandez, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1600
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Bryan Dean MCDOWELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-559
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Stephen Alan WINGO, DOC #H51221, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4609
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Marla ROWELL, Doc # T76573, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1527
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Thomas P. FLEMING, DOC #C08434, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1599
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Robert O'TOOLE, Appellant, v. Iris BEAUGRAND, Appellee.
    Case No. 2D18-1935
    District Court of Appeal of Florida, Second District.
    Opinion filed February 27, 2019.
    Affirmed.


text:
    Eugene HARRIS, DOC #533148, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1615
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Alexander BURGOS, DOC# T70414, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2223
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2019
    Affirmed.


text:
    Terrance L. MCCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3176
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    Affirmed.


text:
    Fritz ALISME, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2987
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2019]
    Affirmed.


text:
    Chad Landry KITTLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3265
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    Affirmed.


text:
    Lloyd T. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3383
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    Affirmed.


text:
    Edward KEELER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3043
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    Affirmed.


text:
    Kenneth Bernard HALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3318
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2019]
    Affirmed.


text:
    Angel RIOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3459
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2019]
    Affirmed.


text:
    Gerald T. RAINEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3556
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    Affirmed.


text:
    Robin REID, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3586
    District Court of Appeal of Florida, Fourth District.
    [January 24, 2019]
    Affirmed.


text:
    Alisha C. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2976
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019 Rehearing Denied March 21, 2019
    AFFIRMED.


text:
    Melvin PEREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2764
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019 Rehearing Denied March 21, 2019
    AFFIRMED.


text:
    Travious D. MOZIE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3049
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019 Rehearing Denied March 15, 2019
    AFFIRMED.


text:
    Roderick Maurice DUNSTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2830
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 5, 2019 Rehearing Denied March 18, 2019
    AFFIRMED.


text:
    Pearl MOYER, Appellant, v. NATIONSTAR MORTGAGE, LLC., Kenneth R. Moyer, and MTGLQ Investors, L.P., Appellees.
    Case No. 5D18-7
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 26, 2019 Rehearing Denied April 2, 2019
    AFFIRMED.


text:
    Peter Allen ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3520
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 19, 2019 Rehearing Denied March 20, 2019
    AFFIRMED.


text:
    Paul A. VIERA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-18
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019 Rehearing Denied March 21, 2019
    AFFIRMED.


text:
    Thomas Arthur KAHLOW, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3896
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 12, 2019 Rehearing Denied March 21, 2019
    AFFIRMED.


text:
    Vitaly TSABAK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1868
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    AFFIRMED.


text:
    Micah DAVIDSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3790
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    AFFIRMED.


text:
    Edward Juan LYNUM, Appellant, v. Aliya Karam KILLION, Appellee.
    Case No. 5D18-2708
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    AFFIRMED.


text:
    Jude Bernardo LAHENS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1478
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 26, 2019 Rehearing Denied April 2, 2019
    AFFIRMED.


text:
    George Garland WOOD, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-758
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    AFFIRMED.


text:
    Steven Louis KAUFMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-375
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    AFFIRMED.


text:
    Charles PATTEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-584
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    AFFIRMED.


text:
    Heeralall PURAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-38
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    AFFIRMED.


text:
    Mildred GOODE, James Cambron, Jean E. Ouimette, Waedene Masters, Molly Perry, Bart Gawlikowski, Christel Lukasik, Charles E. Martin, Brenda Gawlikowski , Ryan Williams, Jerry Balke, et al., Appellants, v. CITY OF LAKE HELEN, a Municipality of the State of Florida, Appellee.
    Case No. 5D18-1887
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019
    AFFIRMED.


text:
    Joshua CROSBY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2953
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    AFFIRMED.


text:
    Charles PATTEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-954
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    AFFIRMED.


text:
    Franklin Andre NELSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3518
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    AFFIRMED.


text:
    Alberto MAYEA, Appellant, v. ESTATE OF Alexander Mayea MAYEA, Appellee.
    Case No. 5D18-1366
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019
    AFFIRMED.


text:
    Kenneth D. ARY, Appellant, v. Sabrina D. ARY, Appellee.
    Case No. 5D18-878
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019
    AFFIRMED.


text:
    Marlon A. SMIKLE, Appellant, v. WFTV, INC., Channel 9 News, Appellee.
    Case No. 5D18-1753
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019
    AFFIRMED.


text:
    Rhonda K. MILLER and Edward D. Miller, Appellants, v. BANK OF AMERICA, N.A., JPMorgan Chase Bank, N.A. and Ormond Lakes Homeowners' Association, Inc., Appellees.
    Case No. 5D18-449
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019
    AFFIRMED.


text:
    Susan DANNELLY, Appellant, v. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    Case No. 5D17-3932
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019
    AFFIRMED.


text:
    BONIFACE-HIERS CYCLES, INC., Appellant, v. CAPE PUBLICATIONS, INC., d/b/a/ Florida Today, Gannett Co., Inc., and Wayne Price, Appellees.
    Case No. 5D17-3534
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 2, 2019
    AFFIRMED.


text:
    Franklin J. NERO, Appellant, v. MAYAN MAINSTREET INVESTORS I, LLC and Margaret Nero A/K/A Margaret M. Nero, Appellees.
    Case No. 5D18-1051
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 22, 2019 Rehearing Denied March 22, 2019
    AFFIRMED.


author: Warner, J.

text:
    Johntavius GOODEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-323
    District Court of Appeal of Florida, Fourth District.
    [March 13, 2019]
    Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Jonathan P. Picard, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges his conviction for the charge of felon in possession of a firearm. He raises multiple issues. We address only one which requires reversal. During closing argument, the prosecutor made improper comments, shifting the burden of proof and arguing facts not in evidence. The court erred in overruling the defense counsel's objections to these arguments. Because we cannot conclude that they were harmless beyond a reasonable doubt, we reverse.

Evidence at trial showed that two Palm Beach County deputies were called to assist in an investigation of a crime at a local park in Belle Glade. (The crime was a homicide, but through a motion in limine, the State agreed that this fact would not be mentioned at appellant's trial, as he was not implicated in that crime). When the officers arrived at the scene, they exited their vehicle dressed in tactical gear and told the group of people in the area that they were not free to leave. Almost immediately, a man, who one of the deputies identified as appellant, began to run away. That deputy chased after appellant on foot and never lost sight of him. Another officer, a homicide detective, saw the two deputies approach the appellant, and the detective paralleled the chase by vehicle. The deputy and detective testified that they found appellant lying on his belly on the ground behind a sedan, and his hand was behind the car's rear tire on the driver's side. One officer handcuffed him and found a firearm under the sedan right where they had observed appellant's hand.

The detective testified consistent with the deputy who chased appellant on foot, but he added additional details. He took the lead in the chase, never losing sight of the appellant. He observed him attempting to hold something in his waistband, which the officer was concerned might be a gun. He also saw appellant with a gun in his hand, which he placed underneath the sedan. On cross-examination, the detective was impeached with his deposition, in which he testified that he had lost sight of appellant for a brief time. The detective also revealed that the appellant had been interviewed at the police station after his arrest.

A forensic scientist with the firearms unit of the Palm Beach County Sheriff's Office testified that he received the firearm for testing. He tested the firearm for latent fingerprints and swabbed for DNA. He did not find any fingerprints. The DNA swabs were not tested, although a detective could request testing. The scientist test-fired the gun, finding that it was functional. After this testimony, the State rested its case. The defense moved for a judgment of acquittal, which was denied.

Appellant testified in his defense. He admitted that he was convicted of a felony on four occasions. He also admitted that he ran from the officers, but he thought that they had a warrant for his arrest for unpaid child support. He was wearing jeans, but no belt, and he was holding his pants. He was carrying his phone in his hand. He did not have a gun. When he ran towards the house where the car was parked, he turned a corner that was sloped, and he lost his footing and fell directly behind the car. The only thing in his hand was his phone. He did not notice the gun under the car because he was focused on the officer, who was pointing a gun at him. The defense then rested its case.

During closing argument, the prosecutor commented on appellant's testimony and argued:

[PROSECUTOR]: He told you that when he was running, he was holding his waistband, just like the officer said. The officer said that he believed it was because [appellant was] trying to prevent a firearm from falling out of his waistband. Now, the Defendant said well, that's not true because I was wearing jeans and I didn't have a belt. More importantly, the officer was never asked about that. And think about that. Wouldn't it be very important to ask the officer, listen, you just testified that you think the firearm was in his waistband. Didn't you also notice he wasn't wearing a belt? Couldn't that be a completely reasonable basis --
[DEFENSE COUNSEL]: Objection, shifting of burden.
THE COURT: Overruled.
[PROSECUTOR]: Couldn't that be an explanatory reason for why he is holding on to his waistband? No, they didn't ask him about that. He also said he had a cell phone in his hand. They didn't ask the officer, didn't you also notice he had a black cell phone in his hand? They didn't ask him those details. They only [inaudible] from the Defendant. It's because they are not factually true.

After the State finished, defense counsel began her argument by noting for the jury the absence of DNA evidence:

[DEFENSE COUNSEL]: Thank you, Your Honor. Four hundred and eighty-seven days, ladies and gentlemen. Four hundred and eighty-seven days between when that gun was swabbed for DNA and today. Four hundred and eighty-seven days between August 8, 2016 and today. Four hundred and eighty-seven days that critical evidence sat in an evidence locker at the Palm Beach County Sheriff's Office. Four hundred and eighty-seven days that the only unbiased evidence in this case sat in an evidence locker collecting dust.

To respond to the State's argument that the defense didn't cross-examine the officers with respect to the appellant's attire, the defense argued to the jury:

We also have from [the deputy], or [the detective], that you should convict Mr. Gooden because he was holding up his waistband when he was running. And apparently it's my duty to present to you that Mr. Gooden didn't have a belt that day. Well, it's not because the Judge explicitly told you that it's not my duty to present evidence. The State could have recalled those officers and asked them was Mr. Gooden wearing a belt, but they didn't want to do that because that would corroborate Mr. Gooden's story.

Defense counsel also argued that the State's case had many holes in it and that there was a lack of competent evidence to support the State's case. She repeatedly argued the lack of DNA evidence, even though swabs were taken from the gun.

On rebuttal, the prosecutor told the jury, over the defense objection, that

[PROSECUTOR]: The defense attorney indicated, and spent a lot of time talking about the DNA in this case. Members of the Jury, the Palm Beach County Sheriff's Office is a large agency, it's a large organization, but they can't do everything. Like all agencies, they have funding and they have to prioritize certain cases. And when they prioritize cases, that takes into account every type of case here in Palm Beach County. The murder cases --
[DEFENSE COUNSEL]: Objection, facts not in evidence.
THE COURT: Overruled. It's argument. Go ahead.
[PROSECUTOR]: The murder cases, sexual battery cases and the like. When they are making determinations as to what cases are going to be going front of the line on an expedited basis for purposes of DNA analysis. Unfortunately, the DNA analysis in this case was not conducted. The State is not hiding anything from you. There is no secret report. It doesn't exist because it didn't happen.

Following closings, the jury began deliberating. The jury eventually indicated that it could not come to a unanimous decision, and the court gave an Allen instruction over appellant's objection. The jury later requested to re-hear the testimony of the two law enforcement officers, and the court allowed the playback.

The jury found appellant guilty of being a felon in possession of a firearm, finding that he actually possessed the weapon. The court entered a conviction and sentence, prompting this appeal.

We review a trial court's ruling on closing arguments for an abuse of discretion. Jackson v. State , 89 So.3d 1011, 1018 (Fla. 4th DCA 2012). While attorneys are afforded wide latitude during closing arguments, they "must 'confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.' " Id. (quoting Hosang v. State , 984 So.2d 671, 672 (Fla. 4th DCA 2008) ). A prosecutor's closing argument "should be examined in the context in which it [was] made." Id. (alteration added) (quoting Lubin v. State , 963 So.2d 822, 824 (Fla. 4th DCA 2007) ). Thus, when determining whether a defendant was denied his or her right to a fair trial, we consider the cumulative effect of all improper arguments, including both objected-to and unobjected-to closing arguments. Evans v. State , 177 So.3d 1219, 1235 (Fla. 2015), receded from on other grounds by Johnson v. State , 252 So.3d 1114, 1117-18 (Fla. 2018).

The prosecutor made three arguments which were objected to by the defense: 1) comment on postarrest silence; 2) shifting the burden of proof; and 3) arguing facts not in evidence. We conclude that the court erred in overruling the objections regarding shifting the burden of proof and arguing facts not in evidence. We cannot conclude that the cumulative effect of these arguments was harmless beyond a reasonable doubt. Therefore we reverse.

As to the first objectionable argument, the prosecutor told the jury that the defendant was presenting his story for the first time at trial. This did not amount to a comment on silence because the defense had elicited from the detective that appellant had been interviewed after his arrest. "[W]here a defendant does not remain silent at the time of arrest, the constitutional right to remain silent has been found not to have been exercised." Joyner v. State , 979 So.2d 1246, 1248 (Fla. 4th DCA 2008). Thus, while the State cannot use a defendant's postarrest silence , regardless of whether the silence was induced by Miranda warnings, see State v. Hoggins , 718 So.2d 761, 768-70 (Fla. 1998), the appellant was not silent. Therefore, the court did not err in overruling appellant's objection to the prosecutor's statement in closing argument.

The prosecutor's repeated comments regarding the defense's failure to cross-examine the law enforcement officers improperly shifted the burden of proof to appellant. "[T]he state cannot comment on a defendant's failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence." Jackson v. State , 575 So.2d 181, 188 (Fla. 1991) (footnote omitted). Only where the defendant asserts some affirmative defense or relies on facts not equally available to the State does the defendant have a burden of proof. Id.

In Ramirez v. State , 1 So.3d 383, 384 (Fla 4th DCA 2009), the defendant in a battery on a law enforcement officer case testified that she had been injured in a fracas with the officers during which they had roughed her up. On cross-examination, the State asked her, over objection, if she had pictures of her injuries, but she had neither pictures nor any medical evidence. Id. at 385. Then in closing, the prosecutor emphasized that the only pictures of the defendant for the jury to view were ones taken by the police, which showed no injuries. Id. The prosecutor then told the jury that the evidence supported only the State's version of the altercation. Id. Our court reversed, concluding that the prosecutor had engaged in improper burden shifting. Id. at 385-86. "The trial court abused its discretion when it allowed the State to shift that burden to the defendant through its questions and comments that implied the defendant should have produced photographic evidence and medical reports to support her version of events." Id. at 386.

Similarly, in this case, by castigating the defense for not cross-examining the officers about details of appellant's version of events to support his account, the prosecutor shifted the burden to the appellant to provide corroborating evidence for his testimony and implied that the jury could not otherwise accept the appellant's version as true. Thus, the court erred in overruling appellant's objection to this argument.

Finally, during closing, defense counsel stressed that the State did not present any DNA evidence that linked appellant to the gun. The prosecutor responded that Palm Beach County was subject to budget restrictions, which is why DNA testing was never conducted in this case. Appellant argues there was no evidence of how the State prioritized its cases for DNA testing or any testimony about why testing was not conducted. Although attorneys are afforded wide latitude during closing arguments, they "must 'confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.' " Hosang v. State , 984 So.2d 671, 672 (Fla. 4th DCA 2008) (quoting Knoizen v. Bruegger , 713 So.2d 1071, 1072 (Fla. 5th DCA 1998) ). "Arguing facts that are not supported by the record is clearly improper." McKenzie v. State , 830 So.2d 234, 238 (Fla. 4th DCA 2002). In McKenzie , defense counsel in a possession of cocaine trial argued that the defendant did not know that the substance in a glass tube was cocaine. Id. at 237. In response, the prosecutor argued that the defendant had said, "I don't smoke crack" when she was found with the glass tube, thus showing knowledge of what was in the tube. Id. However, no one testified that the defendant made that statement. Id. at 238. We held that the prosecutor erred in arguing these facts which were not in evidence, even though the prosecutor was responding to the defense argument. Id.

Likewise in this case, the prosecutor responded to the defendant's argument to the jury on the lack of DNA evidence by introducing facts not in evidence regarding the department's priorities in testing DNA. It is error, and this argument neutralized a significant portion of the defense through the use of non-record facts in closing argument.

Even though the court erred in overruling the objections, we must determine whether these cumulative errors necessitate a new trial. In State v. DiGuilio , 491 So.2d 1129, 1139 (Fla. 1986), the court placed the burden on the State to prove an error was harmless beyond a reasonable doubt. It explained:

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Id. While the officers provided eyewitness testimony of what occurred, and the detective stated that he saw the appellant with a gun in his hand, the defense was able to show discrepancies in some of the testimony of the officers. Although the appellant countered that testimony with his own explanation of what occurred, the prosecutor's argument may have made the jury believe, erroneously, that corroboration of appellant's testimony was required in order for it to be believed. The State did not provide additional inculpatory evidence, including DNA evidence, the lack of which figured prominently in the closing argument. The prosecutor's non-record explanati on of why no DNA testing occurred reduced the effectiveness of the defense strategy which had been to attack the lack of evidence. This error may not have been harmful beyond a reasonable doubt by itself, but it must be considered cumulative with the more significant burden-shifting comments. The jury deadlocked at first, and only after the court gave an Allen charge and testimony was replayed to the jurors, did they find appellant guilty. We cannot say beyond a reasonable doubt that the errors in closing argument did not affect the verdict.

For these reasons, we reverse the conviction and remand for a new trial.

Damoorgian and Levine, JJ., concur.

      Allen v. U.S. , 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).


text:
    Daniel Eugene GIBBS, Sr., Petitioner, v. Mark S. INCH, Secretary, Florida Department of Corrections, and Florida Commission on Offender Review, Respondents.
    No. 1D17-5324
    District Court of Appeal of Florida, First District.
    January 25, 2019 Rehearing Denied March 26, 2019
    Daniel Eugene Gibbs, Sr., pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee; Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondents.
   Per Curiam.

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

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


text:
    Robert E. STAHR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1409
    District Court of Appeal of Florida, First District.
    November 15, 2018 Rehearing Denied January 2, 2019
    Robert E. Stahr, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    AP ATLANTIC, INC., a North Carolina Corporation Successor by Assignment From AP Gulf States, Inc., a Texas Corporation, d/b/a Adolfson & Peterson Construction, Appellant, v. SILVER CREEK ST. AUGUSTINE, LLLP, a Florida Limited Partnership, Appellee.
    Case No. 5D18-1656
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019
    Lauren V. Purdy and William E. Adams, Jr., of Gunster, Yoakley & Stewart, P.A., Jacksonville, for Appellant.
    Robert J. Hauser, of Pankauski Hauser PLLC, West Palm Beach, Frederick R. Brock, of Gartner, Brock and Simon, Jacksonville, and Robert A. Sweetapple, of Sweetapple, Broeker & Varkas, PL, Boca Raton, for Appellee.
   PER CURIAM.

Appellant, AP Atlantic, Inc., a non-signatory to a construction contract, appeals the denial of its motion to compel arbitration after the trial court concluded that the contract's arbitration provision did not apply to non-signatories. The construction contract was signed by Appellee, Silver Creek St. Augustine, LLLP, and Appellant's affiliate, AP Gulf States, Inc. We reverse because a non-signatory may enforce an arbitration provision when a signatory makes a claim against the non-signatory that arises out of the contract.

Generally, "a non-signatory to a contract containing an arbitration agreement ... cannot compel a signatory to submit to arbitration." Koechli v. BIP Int'l, Inc. , 870 So.2d 940, 943 (Fla. 1st DCA 2004). However, an exception to this rule is "when the claims relate directly to the contract and the signatory is relying on the contract to assert its claims against the non-signatory." Id. at 944 (citations omitted).

In this case, Appellee is a signatory and has alleged claims below against Appellant directly related to both performance and payment under the contract. In these rare circumstances, Florida courts have determined that a non-signatory to the contract may enforce an arbitration provision against a signatory. See, e.g. , Roman v. Atl. Coast Constr. & Dev., Inc. , 44 So.3d 222, 224 (Fla. 4th DCA 2010) ; Koechli , 870 So.2d at 945 ; Cuningham Hamilton Quiter, P.A. v. B.L. of Miami, Inc. , 776 So.2d 940, 943 (Fla. 3d DCA 2000). Accordingly, we reverse the order denying Appellant's motion to compel arbitration and remand with directions that the trial court grant the motion.

REVERSED and REMANDED.

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


author: WALLIS, J.

text:
    Kelli GILLILAND, Appellant, v. Michael GILLILAND, Appellee.
    Case No. 5D17-4100
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019
    Alex Finch, of Finch Law Firm, Longwood, for Appellant.
    Stephanie Vollrath, of Vollrath Law, P.A., Oviedo, for Appellee.
   WALLIS, J.

Kelli Gilliland (Wife) appeals the Final Judgment dissolving her long-term marriage to Michael Gilliland (Husband). While Wife raises several arguments on appeal, we only find merit in two. We agree that the trial court erred in failing to award Wife permanent periodic alimony and in reducing Wife's requested attorney's fees without making findings of fact in the Final Judgment. Therefore, we reverse and remand with instructions on these issues. We affirm in all other respects without further discussion.

First, Wife argues it was error to award her durational alimony instead of permanent periodic alimony in this long-term marriage. There is a rebuttable presumption that permanent periodic alimony is appropriate after a long-term marriage. Motie v. Motie, 132 So.3d 1210, 1213 (Fla. 5th DCA 2014). "Neither age nor a spouse's ability to earn some income will alone rebut the presumption" that permanent periodic alimony is appropriate after a long-term marriage. Id. Also, the "[d]isparate earning capacity of the parties is 'a significant factor' in deciding whether permanent ... alimony is warranted." Cerra v. Cerra, 820 So.2d 398, 401 (Fla. 5th DCA 2002) (quoting Young v. Young, 677 So.2d 1301, 1306 (Fla. 5th DCA 1996) ). However, disparity in income alone does not justify awarding permanent periodic alimony. Nousari v. Nousari, 94 So.3d 704, 706 (Fla. 4th DCA 2012).

Generally, an appellate court will not overturn an award of durational alimony instead of permanent periodic alimony in a long-term marriage if it is clear the trial court considered the factors in section 61.08(2), Florida Statutes, and that the evidence shows a party does not have a need for support on a permanent basis. Fichtel v. Fichtel, 141 So.3d 593, 595 (Fla. 4th DCA 2014). However, when a dissolution judgment gives no guidance as to why permanent periodic alimony is inappropriate in a long-term marriage and why durational alimony was awarded, reversal is proper. Taylor v. Taylor, 177 So.3d 1000, 1004 (Fla. 2d DCA 2015).

Here, the trial court made detailed findings of fact regarding the parties' finances, concluding that Wife had a monthly alimony need of $ 1150 with Husband having an ability to pay the same. After discussing the standard for awarding durational alimony, the trial court stated that:

The fact that Husband's income substantially exceeds Wife's does not justify permanent alimony. The purpose of permanent alimony is not to divide future income to establish financial equality. Wife is middle aged, in good health, and has the education and work experience to be self-supporting. Awarding permanent alimony is improper where the evidence fails to show a permanent inability of Wife to sustain herself. Contrary to Wife's argument, the parties' standard of living is not a super-factor which trumps all others when setting the amount of alimony.

The court did not further discuss alimony until it ordered Husband to pay Wife $ 1150 per month in durational alimony for thirty months. The Final Judgment does not further explain its rationale for awarding durational alimony instead of permanent periodic alimony.

Although the court found that Wife is middle aged, in good health, and has the education and work experience to be self-supporting, it made no finding regarding whether Wife had an ongoing need for support on a permanent basis as required by section 61.08(7), Florida Statutes (2012). Additionally, it is unclear from the Final Judgment whether the trial court found that circumstances would change in the next thirty months that would allow Wife to support herself on a permanent basis without Husband's financial assistance.

Based on the Final Judgment, it appears the court relied solely on Wife's age, good health, and current income to find she was not entitled to permanent periodic alimony. Our Court has held these factors alone are insufficient to rebut the presumption that permanent periodic alimony is appropriate in a long-term marriage. See Motie, 132 So.3d at 1213 ; Cerra, 820 So.2d at 401. Under these circumstances, it was error to award Wife durational alimony instead of permanent periodic alimony. See Griffitts v. Griffitts, 263 So.3d 220 (Fla. 5th DCA Jan. 11, 2019) (reversing award of durational alimony instead of permanent periodic alimony in long-term marriage where evidence showed wife had a need for permanent alimony).

Second, Wife argues that the court committed reversible error when it awarded her attorney's fees without including findings of fact in the Final Judgment. As Wife correctly argues, a trial court must make findings of fact in the Final Judgment when awarding attorney's fees in a dissolution proceeding. Simpson v. Simpson, 780 So.2d 985, 988 (Fla. 5th DCA 2001). "In addition to findings of the need for and ability to pay attorney's fees, '[t]he trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors.' " Duke v. Duke, 211 So.3d 1078, 1081 (Fla. 5th DCA 2017) (quoting Giovanini v. Giovanini, 89 So.3d 280, 282 (Fla. 1st DCA 2012) ). The fact that there is competent, substantial evidence supporting the trial court's award does not obviate the need for specific factual findings in the judgment. Powell v. Powell, 55 So.3d 708, 709 (Fla. 4th DCA 2011).

In the Final Judgment, the court notes that Wife testified she owes her attorney $ 20,000. Thereafter, the court ordered Husband to "contribute $ 10,000 to Wife's attorney towards fees and costs." Although the court subsequently sets forth the way Husband should pay Wife's attorney, there is no explanation for the court's rationale in awarding Wife half of the attorney's fees she requested. The Final Judgment also lacks any factual findings regarding Wife's need for fees, Husband's ability to pay those fees, Wife's attorney's hourly rate, the number of hours he expended, whether that number of hours was reasonable, or whether any factors support reducing or enhancing the fee amount. The failure to include these findings requires reversal of the attorney's fees award for the trial court to hear evidence and make the required findings in support of its ruling. See Duke, 211 So.3d at 1082 (reversing attorney's fees award where trial court failed to set forth specific findings of fact in final judgment about hourly rate and number of hours); Powell, 55 So.3d at 709-10 (reversing attorney's fees award where judgment did not contain findings regarding number of hours reasonably expended and appropriateness of reduction or enhancement factors).

For these reasons, we reverse the portion of the Final Judgment awarding Wife durational alimony and a portion of her attorney's fees and affirm in all other respects. On remand, the trial court shall enter an amended final judgment that classifies Husband's alimony obligation as permanent, not durational. In addition, the trial court shall hear evidence regarding attorney's fees and make the required findings in support of its ruling and include those findings in its order regarding attorney's fees.

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

ORFINGER and BERGER, JJ., concur.

      See Hedden v. Hedden, 240 So.3d 148, 153 (Fla. 5th DCA 2018) ; see also Stark v. Stark, 192 So.3d 632, 633 (Fla. 5th DCA 2016).


author: Winsor, J.

text:
    Richard DAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1063
    District Court of Appeal of Florida, First District.
    March 18, 2019
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Frank X. Moehrle, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

In 1978, Richard Day pleaded guilty to a murder he committed shortly before his eighteenth birthday. According to Florida Parole Commission records, Day went to the victim's home, crushed her skull with a broken-off table leg, and stabbed her twenty times. The court sentenced Day to life in prison.

In 1991, Day was paroled and left prison. He later violated the terms of his parole by absconding and failing to pay costs. He returned to prison in 1994 but was paroled again in 1995. The State then transferred his supervision to Alabama, where Day chose to live. But he violated parole there too, this time by testing positive for drugs. He returned to prison in 2000, where he remains.

Day moved for postconviction relief, arguing that his original life sentence violated Miller v. Alabama , which held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). He argues that he is entitled to a new sentence under Florida's recently revised juvenile sentencing laws, which the Legislature enacted in response to Miller and Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). See § 921.1401, Fla. Stat.; see also Horsley v. State , 160 So.3d 393, 394 (Fla. 2015). The trial court denied relief, and Day now appeals.

The Florida Supreme Court has held that Miller can apply even when the life sentence was not mandatory. See Landrum v. State , 192 So.3d 459, 460 (Fla. 2016). The juvenile in Landrum , like Day, was convicted of second-degree murder, meaning the life sentence was discretionary. Id. Nonetheless, Day cannot succeed because he cannot show his sentence precluded any meaningful opportunity for release in his lifetime. As the Florida Supreme Court recently held, Florida's parole process "fulfills Graham 's requirement that juveniles be given a 'meaningful opportunity' to be considered for release during their natural life based upon 'normal parole factors.' " Franklin v. State , 258 So.3d 1239, 1241 (Fla. 2018) (citation omitted) (quoting Virginia v. LeBlanc , --- U.S. ----, 137 S.Ct. 1726, 1729, 198 L.Ed.2d 186 (2017) ). Indeed, Florida's parole process led to Day's actual release-more than once. Cf. Currie v. State , 219 So.3d 960, 960 (Fla. 1st DCA 2017) ("Appellant was afforded a meaningful opportunity to obtain release and, in fact, was released on parole when he was 25 years old."); see also State v. Michel , 257 So.3d 3, 7 (Fla. 2018) (plurality) ("Michel's sentence does not violate Graham or Miller because Michel was not sentenced to life without the possibility of parole."); Wright v. State , 225 So.3d 360, 361 (Fla. 1st DCA 2017) (for successful postconviction motion based on Graham , appellant must "allege that he has never been released and has no meaningful opportunity to obtain release within his lifetime" (citing Currie ) ).

Day argues that his case is different because the violations that ended his parole were "technical violations." But the issue is not what led to a paroled offender's return to prison, but whether the original sentence was lawful. And the original sentence was lawful if it afforded a meaningful opportunity for release within Day's lifetime, which it did. We reject any contention that the specifics of Day's subsequent parole violations undermine the legality of his original sentence. See Franklin , 258 So.3d at 1241. Therefore, the trial court correctly denied relief.

AFFIRMED .

Rowe and Bilbrey, JJ., concur.

      Although not at issue here, Miller does not categorically bar life-without-parole sentences for juveniles guilty of homicide. See 567 U.S. at 479, 132 S.Ct. 2455.


text:
    John W. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3358
    District Court of Appeal of Florida, First District.
    March 21, 2019
    John W. White, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Fla. R. Crim. P. 3.850(b).

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


text:
    Mia Joy TORRES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1932
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the revocation of Appellant's community control, but remand with directions that the trial court enter a written order that conforms to its oral pronouncement finding violations of conditions five and nine. See Smith v. State, 49 So.3d 833, 834 (Fla. 1st DCA 2010) ("A written order must conform to the trial court's oral pronouncements, and the oral pronouncements control." (citing Williams v. State, 604 So.2d 8, 9 (Fla. 1st DCA 1992) ) ).

AFFIRMED and REMANDED with Instructions.

BERGER, WALLIS and EISNAUGLE, JJ., concur.


text:
    Donald James KELLY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1841
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    James S. Purdy, Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellant.
    Donald James Kelly, Bristol, pro se.
    Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence rendered against Donald James Kelly after he pled guilty to aggravated assault with intent to commit a felony in violation of section 784.021(1)(b), Florida Statutes (2017). However, we remand for correction of a scrivener's error in the judgment, which erroneously cites to section 784.021(1)(a), corresponding to aggravated assault with a deadly weapon without intent to kill.

AFFIRMED; REMANDED for correction of scrivener's error.

EDWARDS, EISNAUGLE, and SASSO, JJ., concur.


author: EISNAUGLE, J.

text:
    STATE of Florida, Appellant, v. Mark Leroy PHILLIPS, Sr., Appellee.
    Case No. 5D17-4041
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and George D. E. Burden, Assistant Public Defender, Daytona Beach, for Appellee.
   EISNAUGLE, J.

The State of Florida appeals an order suppressing evidence obtained from a probationary search of Appellee's, Mark Leroy Phillips, Sr., cell phones, arguing that the search was reasonable pursuant to the Fourth Amendment. We agree and conclude that the search was reasonable because the government's interest in supervising Appellee while he was on probation for sex offenses against a child outweighed Appellee's privacy interest in his cell phone data. We therefore reverse the order of suppression.

The Probationary Search in this Case

In 1994, Appellee pled guilty to attempted sexual battery on a child, lewd and lascivious conduct upon a child, and sexual activity with a child by a person in familial or custodial authority. He was sentenced to ten years in prison followed by fifteen years of probation. The express terms of Appellee's probation included:

The Court retains custody over your person and authorizes any officer to search you at any time and search all vehicles and premises concerning which you have legal standing to give consent to search.
No contact with minor children without supervision of [an] adult.
You will promptly and truthfully answer all inquiries directed to you by the Court or Community Control/Probation Officer and allow the Officer to visit in your home, at your employment site or elsewhere ....

Although Appellee's terms of probation were expansive, they did not include an express authorization to search Appellee's cell phone data.

After his release from prison, and while he was registered as a sexual offender, Appellee's probation officer visited his home and conducted a forensic download of his cell phones. The officer did not have a warrant to search electronic devices, nor did she have reasonable suspicion to believe Appellee had violated his probation or otherwise committed any crime.

A search of the cell phones' data revealed two online identifiers that Appellee had allegedly failed to report in violation of section 943.0435(4)(e), Florida Statutes (2017). As a result, the State charged Appellee with violating his probation and instituted a new criminal proceeding charging Appellee with failure of a sex offender to report. The State later dropped the new charges and proceeded only on the violation of probation.

Appellee filed a motion to suppress evidence of the online identifiers, arguing inter alia , that the probationary search was unreasonable because he had a high privacy interest in the contents of his cell phones, the express conditions of his probation order did not authorize a search of any cell phone, and the search was not supported by reasonable suspicion. The trial court granted the motion, and this appeal follows.

The Fourth Amendment and Warrantless Searches

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Amend. IV, U.S. Const. "As the text makes clear, 'the ultimate touchstone of the Fourth Amendment is reasonableness.' " Riley v. California , 573 U.S. 373, 381-82, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (quoting Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). Therefore, courts generally employ a balancing test to determine the reasonableness of a warrantless search "by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." United States v. Knights , 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (quoting Wyoming v. Houghton , 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) ).

Under the conformity clause of Florida's Constitution, Florida courts are bound by the Fourth Amendment jurisprudence of the United States Supreme Court. Soca v. State , 673 So.2d 24, 27 (Fla. 1996). "However, when the United States Supreme Court has not previously addressed a particular search and seizure issue which comes before us for review, we will look to our own precedent for guidance." Id. (citations omitted).

While we have identified no Florida or United States Supreme Court case deciding the reasonableness of a suspicionless probationary search of cell phone data, we find that the Florida Supreme Court's analysis in Grubbs v. State , 373 So.2d 905 (Fla. 1979), and the United States Supreme Court's decisions in Knights and Riley , guide our analysis. These cases together establish that (1) a probationer has a substantially diminished expectation of privacy, and (2) there is a heightened privacy interest in a person's cell phone data.

A Probationer's Diminished Privacy Interest

In Grubbs , our supreme court held that a warrantless search of a probationer's person and residence, for use in probationary proceedings, is reasonable even where there is no express search condition in the order of probation. 373 So.2d at 907, 909-10. In so doing, the court recognized a probationer's diminished privacy interests, stating that "the probationer is entitled to some but not all due process rights" and that a probationer's protection under the Fourth Amendment is "qualified." Id. at 907.

On the other hand, the court reasoned that the government has a significant interest in a probationary search. The court recognized that a probationer is necessarily under the supervision and control of the State, and that Florida law "inherently includes the duty of the probation supervisor to properly supervise the individual on probation to ensure compliance with the probation order." Id. at 908. According to the court, "it would be unreasonable to require a probation supervisor to supervise an individual on probation in the absence of such authority." Id. Importantly, the Grubbs court expressly declined to extend the use of evidence discovered during a warrantless probationary search to new criminal proceedings. Id. at 910.

In Knights , the United States Supreme Court confirmed that a probationer has a diminished privacy interest-even where evidence from a search conducted by law enforcement officers is used in new criminal proceedings. In that case, a detective searched the probationer's apartment after obtaining reasonable suspicion to believe that the probationer was guilty of vandalizing a power company's facilities. 534 U.S. at 115, 122 S.Ct. 587. The district court granted the probationer's motion to suppress the incriminating evidence found during the search, and the circuit court of appeals affirmed. Id. at 116, 122 S.Ct. 587.

The United States Supreme Court reversed, however, holding that "the warrantless search of [the probationer], supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment." Id. at 122, 122 S.Ct. 587. In reaching its conclusion, the Court observed that "[i]nherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled." Id. at 119, 122 S.Ct. 587 (citation and internal marks omitted).

On the other side of the balance, the Court focused on the government's interest in "apprehending violators of the criminal law" and reasoned that the government's interest in "protecting potential victims ... justifi[ed] focus on probationers in a way that it does not on the ordinary citizen." Id. at 121, 122 S.Ct. 587.

The Heightened Privacy Interest in Cell Phone Data

In Riley , the United States Supreme Court recognized that cell phone data carries with it a heightened privacy interest.

573 U.S. at 393-97, 134 S.Ct. 2473. In that opinion, the Court reviewed two cases in which officers searched a cell phone without a warrant incident to arrest. Id. at 378-82, 134 S.Ct. 2473. In both cases, the search of the cell phone resulted in the discovery of evidence that implicated the defendants in other crimes, and both defendants moved to suppress the evidence discovered as a result of the searches. Id. The motions were denied. Id. at 379-81, 134 S.Ct. 2473.

On review, the Court concluded that the warrantless search of a cell phone incident to arrest is unreasonable. Id. at 401, 134 S.Ct. 2473. In so doing, the Court observed that the government's interests supporting a search incident to arrest-avoiding harm to officers and destruction of evidence-are not implicated by cell phone data. Id. at 387-92, 134 S.Ct. 2473. Specifically, the Court noted that "[d]igital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape." Id. at 387, 134 S.Ct. 2473. Likewise, "once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone." Id. at 388, 134 S.Ct. 2473.

On the other hand, the Court reasoned that the defendants had an especially strong privacy interest in cell phone data because "[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." Id. at 393, 134 S.Ct. 2473. According to the Court, "[t]he sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet." Id. at 394, 134 S.Ct. 2473.

Moreover, a cell phone's internet "search and browsing history ... could reveal an individual's private interests or concerns," and its history of location information could "reconstruct someone's specific movements down to the minute." Id. at 395-96, 134 S.Ct. 2473. The Court observed that the search of an internet enabled cell phone could reach beyond the data stored on the phone and could "access data located elsewhere, at the tap of a screen." Id. at 397, 134 S.Ct. 2473. In sum, the Court concluded that "a cell phone search would typically expose to the government far more than the most exhaustive search of a house" because a cell phone "contains a broad array of private information never found in a home in any form." Id. at 396-97, 134 S.Ct. 2473.

The Totality of the Circumstances in this Case

Having considered the diminished privacy interest of a probationer and the heightened interest in cell phone data generally, we now turn to the balancing analysis in this case. We start our analysis from the premise that our supreme court has already decided that the search of a probationer's residence, even without an express search condition or individual suspicion, is reasonable where the results of the search are only used in probation proceedings. Grubbs , 373 So.2d at 907, 909-10.

That said, we are mindful that Appellee's interest in his cell phone is also high and that the privacy interests implicated by the search of a cell phone were not considered in Grubbs or Knights . In fact, given Riley 's statement that "a cell phone search would typically expose to the government far more than the most exhaustive search of a house," Appellee's interest is likely greater in his cell phone data than in his home.

Likewise, Grubbs did not consider the government's interest in supervising a sex offender on probation for offenses against a child. Therefore, our task is to place these unique considerations on the scales already prepared for us in Grubbs .

Appellee's Interest in his Cell Phone Data

We conclude that although a cell phone likely carries with it a greater privacy interest than even one's residence, it does not tip the scales much in Appellee's favor. Indeed, we observe that long before the advent of cell phones, a person's privacy interest in his or her residence was of central importance. Riley seems to acknowledge as much by its reference to Judge Learned Hand's statement that it is "a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him." 573 U.S. at 396, 134 S.Ct. 2473 (citation omitted). While a cell phone may contain information that was previously unavailable even in one's home, in our view, a cell phone's data does not wholly overwhelm the privacy interest a person historically held in his or her residence.

Appellee's Underlying Offenses against a Child

The government's legitimate interest in searching a probationer's cell phone data is critical in this digital age, at least where the underlying offense is for sexual abuse of a minor. Where a child predator once searched for victims in person, the internet offers a much more effective, efficient, and dangerous tool for identifying minor victims.

Thus, we conclude that the seriousness of Appellee's underlying offenses against a child, combined with the new opportunities to find child victims presented by today's technology, drastically increased the government's interest in conducting a probationary search of Appellee's cell phone data. Compare United States v. King , 736 F.3d 805, 810 (9th Cir. 2013) (search reasonable where underlying offense was violent), with United States v. Lara , 815 F.3d 605, 610-14 (9th Cir. 2016) (search unreasonable where underlying offense not "serious and intimate"). In this context, as in Grubbs , we find it would be unreasonable to require a probation supervisor to supervise an individual on probation for sex offenses against a child in the absence of authority to search the probationer's cell phone. Cf. Grubbs , 373 So.2d at 908.

Conclusion

Considering the totality of the circumstances and balancing the interests on both sides, we hold that the suspicionless search of Appellee's cell phone data for use in probation proceedings was reasonable and did not violate the Fourth Amendment.

We also certify the following question of great public importance to our supreme court:

DOES THE SEARCH OF A PROBATIONER'S CELL PHONE DATA BY A PROBATION OFFICER VIOLATE THE FOURTH AMENDMENT WHERE THERE WAS NO INDIVIDUALIZED SUSPICION FOR THE SEARCH AND THE PROBATIONARY SEARCH CONDITIONS, ALTHOUGH BROAD, DID NOT EXPRESSLY AUTHORIZE A SEARCH OF CELL PHONE DATA, BUT THE PROBATIONER IS A SEX OFFENDER, HIS UNDERLYING OFFENSES ARE FOR SEXUAL ABUSE OF A MINOR, AND THE RESULTS OF THE SEARCH ARE ONLY USED IN VIOLATION OF PROBATION PROCEEDINGS?

REVERSED and REMANDED for further proceedings; QUESTION CERTIFIED.

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

      We note that cell phones were not internet enabled at the time the trial court initially rendered the terms of Appellee's probation.

      Article I, Section 12, of the Florida Constitution similarly enshrines "[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means." Art. I, § 12, Fla. Const.

      A warrantless search is also reasonable "when 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' " Griffin v. Wisconsin , 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (quoting New Jersey v. T.L.O. , 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring in judgment) ). This "special needs" analysis presents a separate test pursuant to which a search may be deemed reasonable. See United States v. Payne , 588 F. App'x 427, 431 (6th Cir. 2014) ("If a warrantless search is reasonable under either Knights or Griffin , it need not pass muster under the other."); United States v. Herndon , 501 F.3d 683, 688 (6th Cir. 2007) ("Grif [f ]in and Knights represent two distinct analytical approaches under which a warrantless probationer search may be excused."); United States v. Freeman , 479 F.3d 743, 746 (10th Cir. 2007) ("The Supreme Court has created two exceptions to the Fourth Amendment's warrant requirement in the context of parolee searches."). We evaluate the instant search pursuant to the general totality of the circumstances test in Knights because our supreme court has determined that Griffin 's analysis is not applicable to Florida's probationary system. See Soca v. State , 673 So.2d 24, 27 (Fla. 1996) ("[W]e reject the State's argument ... that Florida's statutory scheme regulating probation supervision ... is sufficiently analogous to the Wisconsin regulation at issue in Griffin [ ] so as to make the holding in Griffin controlling here.").

      Our supreme court reaffirmed Grubbs in Soca , 673 So.2d at 28.

      Unlike Knights and Grubbs , Riley did not involve a probationary search.

      Although Grubbs did not expressly hold that a probationary search is reasonable in the absence of individualized suspicion, we conclude that it implicitly did so. Accord Harrell v. State , 162 So.3d 1128, 1132 (Fla. 4th DCA 2015) ("[T]he parties do not dispute that there was no reasonable suspicion to search; therefore, Grubbs is controlling."). Notably, Grubbs expressly required a traditional exception to the warrant requirement (for example, reasonable suspicion to support a Terry stop and frisk) if the evidence is used in new criminal proceedings. Grubbs , 373 So.2d at 907, 910. However, it referenced no such requirement when evidence is used solely in probation proceedings. Id. Regardless, we would conclude that the search in this case was reasonable based on a totality of the circumstances even if it were not already factored into the analysis in Grubbs . Cf. United States v. King , 736 F.3d 805 (9th Cir. 2013) (search reasonable despite lack of suspicion where probationer's underlying offense was violent).


text:
    Joshua BOUIE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3901
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    Joshua Bouie, Crawfordville, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant appeals the trial court's dismissal of his petition for writ of habeas corpus in Seminole County Circuit Court Case No. 2007-CF-5701-A. We affirm the trial court's order and caution Appellant that abusive, repetitive, malicious, or frivolous filings directed to the identified lower court case number may result in sanctions such as a bar on pro se filing in this Court and referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See § 944.279(1), Fla. Stat. (2018) ; State v. Spencer , 751 So.2d 47 (Fla. 1999).

AFFIRMED.

COHEN, WALLIS and EDWARDS, JJ., concur.


text:
    Antonio CONILL-VALDES, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2826
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    Antonio Conill-Valdes, Orlando, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Petitioner's "Amended Petition for Writ of Habeas Corpus for Discretionary Belated Appeal" of the lower court's June 27, 2018 order denying his successive motion for postconviction relief, filed under Florida Rule of Criminal Procedure 3.850, is denied on the merits. See Dawson v. State , 847 So.2d 601, 601 (Fla. 5th DCA 2003) ; Peterson v. State , 746 So.2d 1208, 1209 (Fla. 1st DCA 1999).

AMENDED PETITION DENIED.

LAMBERT, EISNAUGLE, and HARRIS, JJ., concur.


text:
    Clovis MOSS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1506
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Clovis Moss, appeals the final order entered by the postconviction court denying his motion for postconviction relief. See Fla. R. Crim. P. 3.850. In the motion, Appellant argued that counsel was ineffective for failing to call a witness at trial that would have undermined the victim's credibility. In summarily denying this ground, the postconviction court noted that the trial court had excluded the testimony referenced by Appellant and, therefore, counsel had no basis to call the witness. However, the record attached to the summary denial does not conclusively refute Appellant's claim as it does not reveal the source, nature, or extent of the trial court's evidentiary ruling.

Therefore, we reverse the summary denial of this ground for relief and remand for the postconviction court to either attach sufficient records to support the summary denial or to hold an evidentiary hearing. See Hird v. State, 204 So.3d 483, 485 (Fla. 5th DCA 2016) (citing Burgos v. State, 181 So.3d 572 (Fla. 5th DCA 2015) ).

REVERSED and REMANDED.

ORFINGER, HARRIS, and GROSSHANS, JJ., concur.


text:
    William E. RUSSELL, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1470
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    James S. Purdy, Public Defender, David M. Dixon, and Nancy Ryan, Assistant Public Defenders, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this Anders appeal, William E. Russell, Jr., appeals the judgment and sentence entered after he pled, with the assistance of counsel, no contest to burglary of a dwelling. Although we affirm, one issue merits discussion. Russell did not expressly reserve the right to appeal the denial of a motion to suppress his post- Miranda statements, nor was there a finding by the court that the suppression issue was dispositive of the case. See Fla. R. App. P. 9.140(b)(2)(A) (providing that defendant may not appeal from no contest plea except where defendant "expressly reserve[s] the right to appeal a prior dispositive order of the lower tribunal"). As such, we affirm without prejudice for Russell to timely seek postconviction relief on the suppression issue.

AFFIRMED.

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

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

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


text:
    T.L.D., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1315
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Raleigh , 686 So.2d 621, 622-23 (Fla. 5th DCA 1996) (rejecting argument that section 800.04, Florida Statutes, is unconstitutional as applied to defendant because it precluded the defense of consent of minor victim, observing that "[i]t cannot be of any constitutional or logical significance to the child victim if the perpetrator is only seventeen-sixteen ... or ten").

WALLIS, LAMBERT, and GROSSHANS, JJ., concur.