author: ROTHENBERG, C.J.

text:
    Carlos G. BERTONATTI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1647
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018.
    Fischer Redavid PLLC, and Jordan Redavid, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   ROTHENBERG, C.J.

Carlos G. Bertonatti ("Bertonatti") appeals the trial court's order denying his motion to vacate his guilty plea to: (1) one count of manslaughter while driving under the influence and failing to render aid, a first degree felony; (2) two counts of resisting a law enforcement officer without violence, first degree misdemeanors; and (3) one count of fleeing or attempting to elude a law enforcement officer where lights and sirens had been activated, a third degree felony, which was filed pursuant to Florida Rule of Criminal Procedure 3.850 on the basis of ineffective assistance of trial counsel. Because we conclude that Bertonatti has failed to demonstrate a reasonable probability that, but for the claimed errors, he would not have pled guilty and would have insisted on going to trial, we affirm. See Grosvenor v. State, 874 So.2d 1176, 1181 (Fla. 2004).

Summary of the Evidence

At approximately 8:00 a.m., Bertonatti veered his vehicle into the bicycle lane on Bearcut Bridge; struck and killed a bicyclist, Christophe Lecanne; failed to stop or attempt to render aid to Mr. Lecanne; and subsequently fled from the police when they pursued and tried to stop him with lights and sirens activated. The evidence revealed that the impact to the bicycle and to Mr. Lecanne was "horrific." When Bertonatti's vehicle struck Mr. Lecanne's bicycle, Mr. Lecanne was ejected, and his airborne body struck Bertonatti's vehicle itself, bounced, and then impacted the vehicle again before finally being thrown to the pavement. The hood of Bertonatti's vehicle was damaged and the front windshield was shattered by the impact of Mr. Lecanne's body. Mr. Lecanne's bicycle, which became lodged under the grill of the vehicle, was dragged two-and-one-half miles, making what was described by the witnesses as an "ungodly, loud scraping metal sound." Witnesses also described Bertonatti's attempts to dislodge the bicycle by making zigzag maneuvers with his vehicle. Mr. Lecanne, who was being attended to by civilian witnesses, died on the scene from grievous wounds.

Based on the numerous calls to the police by witnesses of Bertonatti's flight, law enforcement immediately responded and began pursuing Bertonatti with lights and sirens activated. Instead of stopping, Bertonatti increased his speed and fled from law enforcement, almost striking slower-moving vehicles along the ten-mile flight to his residence, where he was finally apprehended. Upon law enforcement's contact with Bertonatti, he exhibited all of the indicia of impairment. He had bloodshot watery eyes, his face was flushed, and his breath smelled of alcohol. When asked to perform the standard field sobriety exercises, Bertonatti agreed to do them and told Officer Slimack that he "had a few drinks and I'm taking some Tylenol stuff, everything was blurry." Officer Slimack testified that Bertonatti performed the field sobriety exercises "shockingly poorly" and that he was "very, very impaired."

After Bertonatti was transported to a fire station to withdraw his blood, he became very hostile. He refused to exit the transport vehicle and had to be physically removed. He refused to cooperate with the blood draw and had to be strapped to a board to allow collection of his blood. The toxicology evidence revealed that Bertonatti's blood alcohol level was .122 at approximately one hour after he struck and killed Mr. Lecanne. The evidence also revealed that Bertonatti was at a nightclub for several hours where he had purchased several alcoholic drinks and was on his way home when his vehicle struck Mr. Lecanne on his bicycle.

Prior to trial, Bertonatti informed his lawyers and the trial court that he did not wish to go to trial. Bertonatti's lawyers then informed the trial court that although they had been unsuccessful in reaching a negotiated plea to resolve the case with the State, Bertonatti, however, wished to enter an open plea of guilty to the charges and, after presenting mitigating evidence, to allow the trial court to determine the appropriate sentence. On February 12, 2013, the trial court conducted a preliminary colloquy of Bertonatti. Specifically, the trial court asked Bertonatti if he needed additional time to speak to his attorneys about any issue regarding his case and his decision to plead guilty to the charges. Bertonatti assured the trial court at least twice that he did not need to speak to his attorneys, and that he had sufficient time to consider his decision, which was made freely, voluntarily, and willfully. Importantly, the trial court told Bertonatti that the matter was going to be reset to allow the victim's family to travel from out of the country in order to be present for Bertonatti's plea and, thus, his decision to plead guilty was not irrevocable-that his actual plea would be taken on February 19, 2013.

On February 19, 2013, as agreed to by all of the parties and lawyers, Bertonatti formally entered his open plea of guilty to DUI manslaughter failing to render aid, two counts of resisting a law enforcement officer without violence, and fleeing or attempting to elude a law enforcement officer where lights and sirens had been activated. Based upon his plea, the State nolle prossed the charge of leaving the scene of a crash involving death because it would have constituted double jeopardy for Bertonatti to have been convicted of both that offense and DUI manslaughter failing to render aid. Prior to accepting Bertonatti's plea, the trial court conducted a very thorough plea colloquy. The victim's family members addressed the court, Bertonatti addressed the victim's family, and the trial court continued the hearing to allow Bertonatti to present evidence in mitigation for the trial court's consideration before imposing a sentence.

On September 9, 10, and 11, 2013, evidence was presented and arguments were made regarding the appropriate sentence, and on September 12, 2013, the trial court sentenced Bertonatti to twelve years of incarceration followed by two years of community control and eight years of probation and issued a very detailed sentencing order. The sentencing guidelines presented a sentencing range of 11.5 to 37 years incarceration.

Thereafter, Bertonatti appealed his convictions and sentence on the basis that his convictions for two counts of resisting a law enforcement officer without violence constituted double jeopardy. Because the record was insufficient to determine whether convictions of these two counts was barred by double jeopardy, this Court affirmed without prejudice for Bertonatti to raise the issue in a postconviction motion. Bertonatti has not pursued this claim. Instead, he filed the instant motion for postconviction relief.

Bertonatti's Postconviction Claims

Bertonatti moved to vacate his plea based on the following claims of ineffective assistance of counsel: (1) failure to inform him that by pleading guilty he would be waiving his right to seek postconviction DNA testing of the blood samples taken from him; (2) failure to have a DNA testing of his blood samples to determine if they were in fact collections of his blood; and (3) failure to inform the trial court that had Bertonatti's blood been DNA tested, there was a possibility he might have been exonerated. The State filed a response to these claims, and the trial court denied the motion and submitted a detailed order with its findings.

The trial court found that the record conclusively established that Bertonatti knowingly, voluntarily, and intelligently waived his right to DNA testing of his blood; there was independent evidence of Bertonatti's intoxication and impairment without the blood evidence; even if counsel provided ineffective assistance of counsel by failing to DNA test the blood samples, there was no prejudice to Bertonatti in light of the overwhelming evidence of his guilt; and there was no reasonable probability that but for the claimed errors, Bertonatti would not have pleaded guilty to the charges and would have insisted on going to trial. The record and the law support the trial court's findings.

I. Failure to inform Bertonatti that he was waiving postconviction DNA testing

The record reflects that Bertonatti was colloquied by the trial court regarding his waiver of postconviction DNA testing, and thus, any failure by his attorneys to address the issue was cured by the trial court. Although, when the trial court initially asked Bertonatti if he understood that he was giving up his right to have any evidence tested for DNA, and Bertonatti said he "did not know that," he informed the trial court that he still wished to plead guilty and that he did not need any additional time to speak with his attorneys about his waiver. He also stated under oath that he was pleading guilty to the charges (including DUI manslaughter) because he was in fact guilty and that he had sufficient time to discuss his case and the potential defenses to the charges with his attorneys prior to entering his plea:

THE COURT: Have you had sufficient time to speak with your attorneys regarding your case, all of the factual circumstances of your case and any potential defenses of your case; and your decision to enter a plea in this case?
THE DEFENDANT: Yes, I have.
THE COURT: Do you need any additional time to speak to your counsel regarding that decision?
THE DEFENDANT: I don't
....
THE COURT: Sir, do you understand you're giving up the right to have any evidence tested for DNA at this time in exchange for your plea?
THE DEFENDANT: I did not know that. But, okay.
THE COURT: Do you need any additional time to speak to your attorney regarding that?
THE DEFENDANT: No.
THE COURT: Are you pleading guilty because you are in fact guilty?
THE DEFENDANT: Yes.

The trial court additionally went over the rights Bertonatti was giving up by pleading guilty, including the right to make the State prove the charges beyond a reasonable doubt, and the trial court carefully questioned Bertonatti to make sure that he was intelligently, freely, and voluntarily giving up these rights. The record, therefore, establishes that when Bertonatti entered his plea, he was fully aware that he was giving up his right to have his blood DNA tested and to require the State to prove the accuracy and reliability of the toxicology results.

II. Failure to have the blood DNA tested

Bertonatti claims that his attorneys provided ineffective assistance of counsel by failing to have the blood draws that were relied on by the State tested to determine if they were in fact the blood drawn from his body on the morning of the crash. Essentially, this argument is a chain of custody argument.

To obtain relief on a claim of ineffective assistance of counsel, a defendant must first identify specific acts or omissions of counsel that are "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Next the defendant must establish prejudice by demonstrating a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. Further, because this was a plea, as opposed to a conviction after a trial, under the prejudice prong of the analysis, Bertonatti must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ; see also Lynch v. State, 2 So.3d 47, 57 (Fla. 2008) (holding that unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable).

Because Bertonatti has failed to meet his burden of establishing prejudice, we need not and do not address the deficient performance prong of the analysis. As to prejudice, we note the following. DUI manslaughter may be proven by either establishing that the defendant was driving or in actual physical control of a vehicle: (1) while "under the influence of alcoholic beverages ... to the extent that the person's normal faculties are impaired," § 316.193(1)(a), Fla. Stat.; or (2) while having "a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood," § 316.193(1)(b).

The evidence in this case reflects that the State did not need to rely on the blood alcohol results to convict Bertonatti of DUI manslaughter failing to render aid. The evidence, even without the blood alcohol evidence, was overwhelming. The incident occurred shortly after 8:00 a.m. on a Sunday morning while Bertonatti was attempting to make it home after spending several hours in a club. While driving on Bearcut Bridge, on a sunny clear day, Bertonatti swerved off the roadway into the bike path; struck the victim, who was riding his bicycle, with such force that the victim's body became airborne and struck the hood and roof of Bertonatti's vehicle, shattering the front windshield, before finally bouncing off Bertonatti's vehicle and hitting the pavement. Instead of stopping to render aid, Bertonatti kept driving while dragging the bicycle under the front grill of his vehicle for nearly three miles before he was able to dislodge the bicycle. He then continued to drive several more miles, nearly striking other vehicles along the way, and accelerating when the police, with sirens and lights activated, tried to pull him over. When he was eventually apprehended by the police, he exhibited all of the signs of being under the influence of alcohol and of impairment. He had bloodshot watery eyes, a flushed face, a strong odor of alcohol on his breath, and he failed every one of the roadside sobriety exercises. Officer Slimack testified that Bertonatti performed these exercises "shockingly poorly" and that he was "very, very impaired." These observations were confirmed by Detective Khan, the traffic homicide investigator, nearly three hours later.

Additionally, Bertonatti told Officer Slimack that he had "a few drinks and I'm taking some Tylenol stuff, everything was blurry." A receipt from the club reflected that Bertonatti had purchased several alcoholic beverages while there. There were also numerous eyewitnesses. These witnesses were listed by the State and deposed by defense counsel.

As the above recitation of the evidence clearly reflects, there was an abundance of evidence from which a jury could have found beyond all reasonable doubt that Bertonatti was under the influence of alcoholic beverages to the extent that his normal faculties were impaired when he swerved into the bike lane, struck the victim, and continued to drive erratically. Specifically, Bertonatti's breath smelled of alcohol, he failed the roadside sobriety exercises, and he exhibited all of the usual signs and characteristics of intoxication.

We additionally note that Bertonatti was also charged with leaving the scene of an accident involving death. The State nolled prossed that charge on double jeopardy grounds after Bertonatti pled guilty to DUI manslaughter failing to render aid. Had Bertonatti proceeded to trial, the State would have presented both charges to the jury and if the State was unable to prove either that Bertonatti had a blood alcohol level of 0.08 or higher or that he was under the influence of alcohol to the extent his normal faculties were impaired, then the State would have relied on the alternate charge of leaving the scene of an accident involving death. Since both offenses are first degree felonies punishable by thirty years of incarceration, a conviction as to either would have subjected Bertonatti to the same punishment.

It is therefore clear that Bertonatti failed to establish prejudice as there is no reasonable probability that but for the claimed errors, he would not have pled guilty and would have instead elected to go to trial. Hill, 474 U.S. at 59, 106 S.Ct. 366 ; see also Grosvenor, 874 So.2d at 1181-82 (holding that when determining whether a reasonable probability exists that the defendant would have insisted on going to trial, the court should consider the totality of the circumstances surrounding the plea, including whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court, and the difference between the sentence imposed and the maximum sentence the defendant was facing if he went to trial).

Based on the totality of the circumstances, the overwhelming evidence of guilt as to impairment and the alternate charge of leaving the scene of an accident involving death, and the difference between the twelve year sentence imposed versus the possibility of a thirty-seven year sentence, we conclude that there is objectively no reasonable probability that if Bertonatti's blood had been DNA tested, it would have had any bearing on whether Bertonatti would have elected to go to trial. See Hill, 474 U.S. at 60, 106 S.Ct. 366 (emphasizing that this determination should be made objectively, without regard for the "idiosyncrasies of the particular decisionmaker") (internal quotation omitted).

III. Failure to inform the trial court that had Bertonatti's blood been tested there was a possibility he might be exonerated

This claim has no merit. Bertonatti's appellate postconviction counsel contends that Bertonatti's trial counsel should have informed the trial court during the plea colloquy that he had not requested any DNA testing for Bertonatti's blood samples to verify that they actually belonged to Bertonatti. This claim is without merit because the trial court was made aware during the plea colloquy that Bertonatti's blood samples had not been DNA tested, and as already addressed, the trial court colloquied Bertonatti to make sure that he was aware that he was giving up his right to have the blood samples DNA tested by pleading guilty to the charges. Although appellate counsel speculates that DNA testing might have exonerated Bertonatti, there is no evidence to support his speculation. In fact, the evidence refutes such speculation.

First, there is the overwhelming evidence of Bertonatti's intoxication. Second, there is no evidence of tampering or mishandling of the blood evidence, which is well-documented by the chain of custody evidence. Third, Bertonatti himself confirmed that he had been drinking and that he was guilty of the charges. Fourth, even without consideration of the blood evidence, Bertonatti would not have been "exonerated" as he was clearly under the influence of alcohol to the extent his normal faculties were impaired when he struck and killed Mr. Lecanne, failed to stop and render aid, and/or left the scene of an accident involving death.

Conclusion

Based on the record evidence, which includes a great deal of discovery, a very thorough colloquy by the trial court, and Bertonatti's own admissions, we affirm the trial court's equally thorough and well-articulated order denying Bertonatti's motion for postconviction relief.

Affirmed.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    David SOLOMON, Appellant, v. Sofia Vasquez SOLOMON, Appellee.
    No. 3D17-1553
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018.
    Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for appellant.
    Cynthia J. Dienstag, P.A., and Cynthia J. Dienstag, for appellee.
    Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
   LAGOA, J.

David Solomon (the "husband") appeals from a Final Judgment of Dissolution of Marriage with Dependent or Minor Children (the "Final Judgment"), and he raises several arguments on appeal, only one of which warrants discussion. Because the Final Judgment does not set forth specific steps that the husband must take in order to obtain unsupervised time sharing with his children, we reverse and remand to the trial court for the limited purpose of setting forth such steps, and otherwise affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The husband and Sofia Vasquez (the "wife") were married on July 12, 2001. The husband and wife have two minor children from the marriage. The wife filed a petition for dissolution of marriage on January 25, 2016. With the filing of the petition for dissolution, the wife also obtained a temporary injunction for protection against domestic violence, which prevented the husband from having contact with the wife and the children. The husband filed a counter-petition for dissolution of marriage.

On April 19, 2016, the trial court entered an agreed order appointing Jerome H. Poliacoff, Ph.D. ("Poliacoff"), to examine the parties and the children and make recommendations pursuant to section 61.13, Florida Statutes (2016). Poliacoff rendered his report on July 11, 2016 (the "Poliacoff Report"). Poliacoff recommended supervised visitation between the husband and the children, which "should begin with a goal of ending in a short time frame." Under a section entitled "Review and Revision," Poliacoff recommended that the plan be reviewed every three months by a guardian ad litem with the stated goal of increasing access time for the husband with the children.

The husband states that on July 13, 2016, the parties agreed to extend the temporary injunction for a year and to amend the temporary injunction to provide that the husband have supervised time-sharing with the children in accordance with the Poliacoff Report. On August 15, 2016, the trial court entered an agreed order appointing Terilee Wunderman, Ph. D., as guardian ad litem for the children.

The matter proceeded to trial on April 20, 2017. On May 3, 2017, the trial court entered a Final Judgment, and attached to the Final Judgment were the Poliacoff Report and a Guardian ad Litem Status Report Update dated April 13, 2017 (the "Guardian's Status Report"). The Guardian's Status Report recommended that the husband continue with his individual therapy and that "[u]nsupervised visits between [the husband and the children] should be considered as the next step in this family's healing process."

Paragraph "5.C." of the Final Judgment, entitled "Parenting Plan," provides in relevant part:

The Court adopts the Evaluation of Jerome H. Poliacoff, PhD, attached as Exhibit B, and the Guardian Ad Litem Status Report Update dated April 13, 2017, attached as Exhibit C, as the Parenting Plan to be followed by the parties at this time. The Father's supervised time sharing shall continue .... Terrilee Wunderman shall continue her role as Guardian Ad Litem for the two minor children pursuant to previous court order. Individual therapy for the Husband shall continue .... The Wife and the children shall participate in family therapy on an as needed basis.

On May 18, 2017, the husband filed a Motion for Rehearing and/or Reconsideration. On June 9, 2017, the trial court denied the Motion for Rehearing and/or Reconsideration. This appeal followed.

II. ANALYSIS

"The failure to 'set forth any specific requirements or standards' for the alleviation of timesharing restrictions is error. This applies to both the prevention of timesharing altogether and to restrictions."

Witt-Bahls v. Bahls, 193 So.3d 35, 38 (Fla. 4th DCA 2016) (citation omitted) (quoting Ross v. Botha, 867 So.2d 567, 571 (Fla. 4th DCA 2004) ). Where a final judgment fails to set forth what steps a parent must take in order to establish unsupervised timesharing, the final judgment must be reversed and remanded for the trial court to identify such steps. Tzynder v. Edelsburg, 184 So.3d 583, 583 (Fla. 3d DCA 2016) (reversing and remanding for the trial court to identify the necessary steps for the parent to reestablish unsupervised timesharing with child where the final judgment restricted timesharing to supervised contact one time per week); see also Curiale v. Curiale, 220 So.3d 554, 555 (Fla. 2d DCA 2017) ; Perez v. Fay, 160 So.3d 459, 466 (Fla. 2d DCA 2015) (finding that "the amended supplemental final judgment is legally deficient on its face because it does not set forth what steps the Mother must take to regain primary residential custody and/or meaningful unsupervised time-sharing with her daughter"). But see Dukes v. Griffin, 230 So.3d 155, 157 (Fla. 1st DCA 2017) (stating that vesting trial courts with authority to enumerate steps to re-modify timesharing schedules and alleviate timesharing restrictions "appears contrary to § 61.13(3), Florida Statutes, which sets forth its own specific requirements for modifying parenting plans, including time-sharing schedules" and certifying conflict with Perez, 160 So.3d 459, and Witt-Bahls, 193 So.3d 35, and other cases addressing the issue).

Here, the trial court adopted the Poliacoff Report and the Guardian's Status Report as the parenting plan in the Final Judgment. The Poliacoff Report recommended that the supervised visitation between the husband and his children "begin with a goal of ending in a short time frame" and that the plan be reviewed every three months by a guardian ad litem with the stated goal of increasing access time for the husband with the children. The Guardian's Status Report, issued one month before the final judgment, recommended that "[u]nsupervised visits between [the husband and the children] should be considered as the next step in this family's healing process." Each report, therefore, stated that the supervised nature of the timesharing should not be permanent, but neither identified the steps necessary for the father to terminate supervised timesharing. In adopting the reports as the parenting plan, the trial court therefore failed to set forth specific benchmarks or identify for the husband the steps necessary to terminate the supervised timesharing. Although a trial court is not required to set forth "every minute detail of the steps to reestablish unsupervised timesharing[,] ... [t]he requirement is for the [husband] to walk out of the courtroom knowing that if [he] satisfactorily accomplishes relatively specific tasks, [he] will be able to reestablish unsupervised timesharing." Witt-Bahls, 193 So.3d at 39 (citation omitted).

We therefore reverse the Final Judgment to the extent it fails to provide the husband with the specific steps he must undertake in order to obtain unsupervised timesharing with his children. On remand, the trial court is instructed to amend the Final Judgment to identify such steps. See Tzynder, 184 So.3d at 583. The Final Judgment is otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

ROTHENBERG, C.J., and LOGUE, J., concur.

LAGOA, J., specially concurring,

I write separately to address section 61.13(3), Florida Statutes (2018). Our precedent in Tzynder v. Edelsburg, 184 So.3d 583 (Fla. 3d DCA 2016), as well as opinions from other district courts, Witt-Bahls v. Bahls, 193 So.3d 35 (Fla. 4th DCA 2016), and Perez v. Fay, 160 So.3d 459 (Fla. 2d DCA 2015), require the trial court to set forth in its final judgment or order the specific steps necessary to reestablish unsupervised timesharing, and the trial court's failure to include such steps render the judgment or order legally deficient. Because we are bound by our prior precedent, I join the majority's opinion.

These cases, however, appear to establish a judicially created requirement not supported by the statutory language of section 61.13(3). " '[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.' " Atwater v. Kortum, 95 So.3d 85, 90 (Fla. 2012) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ); see also DMB Inv. Tr. v. Islamorada, Village of Islands, 225 So.3d 312, 317 (Fla. 3d DCA 2017) (" 'The Legislature must be understood to mean what it has plainly expressed and this excludes construction. The Legislative intent being plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms.' " (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992) ) ). "Florida courts are 'without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.' " Brown v. City of Vero Beach, 64 So.3d 172, 174 (Fla. 4th DCA 2011) (emphasis omitted) (quoting Holly, 450 So.2d at 219 ).

The language of section 61.13(3) is clear and unambiguous, and sets forth specific requirements for modifying parenting plans including time-sharing schedules. While it is certainly understandable that a parent would want to know the specific steps necessary to restore time-sharing with his or her child, "it is not the prerogative of the courts to rewrite a statute," Westphal v. City of St. Petersburg, 194 So.3d 311, 321 (Fla. 2016), and section 61.13(3) does not mandate the inclusion of such steps in a trial court's judgment or order. Because section 61.13(3) contains no language mandating that a trial court set forth the specific steps a parent must take in order to reestablish time-sharing with a child, I therefore agree with the reasoning set forth in our sister court's decision in Dukes v. Griffin, 230 So.3d 155 (Fla. 1st DCA 2017), and would certify conflict.

      Section 61.13(3) states, in relevant part:
      (3) For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule , which governs each parent's relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:
      (a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
      (b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
      (c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
      (d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
      (e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
      (f) The moral fitness of the parents.
      (g) The mental and physical health of the parents.
      (h) The home, school, and community record of the child.
      (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
      (j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child's friends, teachers, medical care providers, daily activities, and favorite things.
      (k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
      (l ) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
      (m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
      (n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
      (o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
      (p) The demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities.
      (q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
      (r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
      (s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs.
      (t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
      § 61.13(3), Fla. Stat. (2018) (emphasis added).


author: BLACK, Judge.

text:
    CITY OF CLEARWATER, Appellant, v. BAYESPLANADE.COM, LLC, a Florida Limited Liability Company, Appellee.
    Case No. 2D17-2006
    District Court of Appeal of Florida, Second District.
    Opinion filed June 22, 2018. Rehearing Denied August 21, 2018
    Paul Richard Hull, Assistant City Attorney, Clearwater, for Appellant.
    Robert V. Potter and Sharon E. Krick of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellee.
   BLACK, Judge.

BayEsplanade.com, LLC, filed a complaint against the City of Clearwater to quiet title to 5.88 acres of submerged land below what is now known as Mandalay Channel, between Clearwater Beach and the islands that comprise Island Estates. BayEsplanade claimed title through a 1957 quitclaim deed. The City of Clearwater filed a counterclaim to quiet title, claiming title through a 1934 quitclaim deed. Following cross motions for summary judgment, final summary judgment quieting title was entered in favor of BayEsplanade. We reverse the judgment in favor of BayEsplanade and remand with instructions that judgment be entered quieting title in favor of the City of Clearwater. The language of the 1934 deed to the City of Clearwater is unambiguous, and the trial court erred in admitting extrinsic evidence to construe it.

The issue presented in the motions for summary judgment concerns whether the 1934 quitclaim deed from the Clearwater Island Bridge Company (the Bridge Company) to the City of Clearwater unambiguously conveyed all lands-including submerged land-within the boundaries described in the deed. A brief deraignment of title to the submerged land in dispute is necessary.

Prior to 1926, title to the submerged land was held by the Trustees of the Internal Improvement Fund of the State of Florida. In 1926, the Trustees conveyed approximately thirty-five acres of submerged land to the Bridge Company, which included the submerged land at issue in this case (the TIIF deed). The TIIF deed described the eastern boundary of the conveyed submerged land as "the West side of [the] channel between Sand Key and Ragged Key."

In 1934, the Bridge Company executed a quitclaim deed and release to the City of Clearwater, conveying the lands described as follows:

[1] Beginning on the shore of the Gulf of Mexico at a point where the North line of the tract of land designated as "Clearwater City Park" on a plat of Clearwater Beach as the same is recorded in Plat Book 5, Page 2 of the Public Records of Pinellas County, Florida, if prolonged West would intersect said Gulf shore, thence run Southerly along said shore line Four Hundred (400) feet; thence East parallel to the North line of said "Clearwater City Park" to the waters of Clearwater Bay as of the 17th day of May, 1917; thence Northeasterly along Clearwater Bay to a point where said line would intersect the North line of said "Clearwater City Park" if prolonged East; thence West to the point of beginning; [2] together with all lands lying between the North and South lines of said tract extended Eastwardly to the Channel of Clearwater Harbor; [3] together with all riparian rights.

The 1934 deed clearly conveys three interests: (1) the upland parcel described as beginning on the shore of the Gulf of Mexico and extending to the waters of Clearwater Bay (Parcel 1); together with (2) the parcel described as "all lands lying between the North and South lines of [Parcel 1] extended Eastwardly to the Channel of Clearwater Harbor"; together with (3) all associated riparian rights. See, e.g., Thrasher v. Arida, 858 So.2d 1173, 1174 (Fla. 2d DCA 2003) (describing a deed as conveying two parcels where the deed conveyed one described area together with a second area). There are no reservations or exceptions in the deed.

The Bridge Company had previously conveyed Parcel 1 and the appurtenant riparian rights to the City of Clearwater in a May 17, 1917, deed. At the time of the 1917 deed, a bridge spanned the Channel of Clearwater Harbor, connecting Clearwater Beach to the mainland. The description of Parcel 1 in the 1917 deed referenced the bridge:

Beginning on the shore of the Gulf of Mexico at a point where the North line of the tract of land designated as "Clearwater City Park" on a plat of Clearwater Beach as the same is recorded in the Land Records of Pinellas County Florida, if prolonged West would intersect said Gulf shore; thence run southerly along said shore line Four Hundred (400) feet; thence East parallel to the North line of said "Clearwater City Park" to the waters of Clearwater Bay; thence Northeasterly along Clearwater Bay to a point Twenty five (25) feet distant measured at right angle from the center of a bridge now located and constructed by the Clearwater Island Bridge Company; thence northwesterly along a curved line Twenty five (25) feet from the center of said bridge to a point on the North line of said "Clearwater City Park" extended eastwardly; thence West to the point of beginning. Together with all riparian rights.

The 1917 deed also contained restrictions on the use of Parcel 1, which were released in the 1934 deed. The bridge connecting Clearwater Beach to the mainland was destroyed in 1921 by a hurricane. Thus, the bridge is not referenced in the 1934 deed. Importantly, the 1917 deed does not convey any property east of the bridge and to the Channel of Clearwater Harbor.

In 1957, the Bridge Company conveyed by quitclaim deed to BayEsplanade's predecessor in interest, North Bay Company, a parcel bounded on the east by the "West side of [the] channel between Sand Key and Ragged Key" and on the west by the "average high water line on Sand Key," containing approximately thirty-five acres. North Bay Company quitclaimed the parcel to BayEsplanade in 2005.

In its motion for summary judgment, BayEsplanade sought a determination of whether the words used in the 1934 deed to the City of Clearwater "describe the Submerged Lands in Controversy or whether they describe other lands." BayEsplanade contended that the language of the deed conveying "all lands lying between the North and South lines of [Parcel 1] extended Eastwardly to the Channel of Clearwater Harbor" did not convey title to the submerged land lying within the described boundary. In its motion, BayEsplanade did not suggest what "other lands" the 1934 deed could be describing.

The City of Clearwater also filed a motion for summary judgment. The City contended that the 1934 deed was not ambiguous and not subject to attack by extrinsic or parol evidence. It argued that the deed conveyed all lands-whatever they might be-within the boundaries identified in the deed. The City further argued that its title was first in time and superior to any claim of title BayEsplanade may have.

In its order granting summary judgment and quieting title in favor of BayEsplanade, the trial court found that the language "together with all lands lying between the North and South lines of said tract extended Eastwardly to the Channel of Clearwater Harbor; together with all riparian rights" was either patently or latently ambiguous, such that consideration and examination of extrinsic evidence was warranted. Upon its consideration of the extrinsic evidence, the court determined that submerged land was not conveyed to the City of Clearwater in the 1934 deed. Rather, the court found that the Bridge Company retained ownership of the submerged land until it was conveyed to BayEsplanade's predecessor in title in 1957. The court determined that all lands except submerged lands were conveyed in the 1934 deed.

Our review of an order granting final summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). In a quiet title action, "the complainant must show with clearness, accuracy, and certainty the validity of [its] own title"; it "must rest upon the strength of [its] own title, and not upon the lack of right in the opposing party." Brickell v. Trammell, 77 Fla. 544, 82 So. 221, 229 (1919) (citing cases). As such, we review de novo whether a deed is ambiguous or unambiguous. Hastie v. Ekholm, 199 So.3d 461, 464 (Fla. 4th DCA 2016) (citing Am. Quick Sign, Inc. v. Reinhardt, 899 So.2d 461, 467 (Fla. 5th DCA 2005) ).

In our review of the language conveying "all lands" in the 1934 deed, we must "consider the language of the entire instrument in order to determine the intent of the grantor, both as to the character of estate and the property conveyed and to so construe the instrument as if legally possible to effectuate such intent." Thrasher, 858 So.2d at 1175 (quoting Reid v. Barry, 93 Fla. 849, 112 So. 846, 851 (1927) ). "If there is no ambiguity in the language employed [in a deed] then the intention of the grantor must be ascertained from that language." Saltzman v. Ahern, 306 So.2d 537, 539 (Fla. 1st DCA 1975). That is, "[w]hen the language of a deed is clear and certain in meaning and the grantor's intention is reflected by the language employed, there is no room for judicial construction of the language nor interpretation of the words used." Rogers v. United States, 184 So.3d 1087, 1095 (Fla. 2015) (quoting Saltzman, 306 So.2d at 539 ).

The 1934 deed conveyed three interests: Parcel 1; "all lands lying between the North and South lines of [Parcel 1] extended Eastwardly to the Channel"; and all associated riparian rights. Parcel 1 and the associated riparian rights are not at issue. Nor is there a dispute as to the boundaries described in the deed, including the boundaries of the conveyance of "all lands"; the east boundary of the conveyed "all lands" is clearly the Channel of Clearwater Harbor. See Bd. of Trs. of the Internal Improvement Tr. Fund v. Walker Ranch Gen. P'ship., 496 So.2d 153, 156 (Fla. 5th DCA 1986) ("A deed conveys all within the boundaries, but does not convey the boundary itself .... Bounded by the navigable water, the lake, or the stream, the law extends the boundary to the edge of the channel." (quoting Axline v. Shaw, 35 Fla. 305, 17 So. 411, 413 (1895) ) ); cf. Bd. of Trs. of the Internal Improvement Tr. Fund v. Lost Tree Vill. Corp., 805 So.2d 22, 25 (Fla. 4th DCA 2001) (discussing claim that deed was ambiguous as to the location of property). Rather, the dispute here is over the breadth or scope of "all lands."

"[A] riparian owner may separate his uplands from his submerged lands," conveying each to different grantees or selling one while withholding the other. Caples v. Taliaferro, 144 Fla. 1, 197 So. 861, 862 (1940). At the time the 1934 deed was executed, the Bridge Company held title to the submerged land at issue through the TIIF deed. "All lands" as used in the 1934 deed to describe the property conveyed eastward to the Channel of Clearwater Harbor "has a clear, unequivocal common meaning"; there is no uncertainty as to what lands are conveyed. See Dade City v. Simpson, 290 So.2d 530, 531 (Fla. 2d DCA 1974) ; cf. Syverson v. Jones, 10 So.3d 1123, 1125 (Fla. 1st DCA 2009) (concluding no latent ambiguity existed in prenuptial agreement based on the omission of a qualifier on the term "marriage"). The phrase "all lands" is not ambiguous, and when read with the remainder of the deed, there is no indication that all lands is lesser in scope than "all" or that lands means anything other than lands. Further, there is no argument presented that "all lands" is a term of art, and we have found no basis to conclude that it is. See Dade City, 290 So.2d at 531 ; Japanese Gardens Mobile Estates, Inc. v. Hunt, 261 So.2d 193, 196 (Fla. 2d DCA 1972) (" 'Owner' is not a term of art in a written real estate transaction; it can mean only one thing unless qualified in the writing itself. Clearly and unequivocally it means what it says, i.e., 'owner'; and to admit [e]xtrinsic evidence as to some other meaning ... would be both to [c]reate an ambiguity and to rewrite the contract of the parties. Neither is permissible."). There is no reservation or exception in the 1934 deed; the conveyance is not subject to any prior deed, easement, reservation, exception, or right. Cf. Rogers, 184 So.3d at 1100 ("The time for appellants to have declined voluntary relinquishment of subsurface mineral rights was when the fee simple sale was bargained and consummated ...." (quoting Holland v. State, 388 So.2d 1080, 1082 (Fla. 1st DCA 1980) ) ).

"When a deed is unambiguous and sufficient on its face to show the grantor's intent as to the property described and the estate conveyed, extrinsic evidence is not admissible to vary the terms." Rogers, 184 So.3d at 1100. Nonetheless, and notwithstanding our conclusion that the language of the deed is unambiguous, "[w]henever a party presents an arguable claim that a document contains a latent ambiguity, the court is obliged to consider the extrinsic evidence, at least to the extent necessary to determine whether the claimed latent ambiguity exists." Thrasher, 858 So.2d at 1175 (quoting Lost Tree Vill. Corp., 805 So.2d at 26 ). "This is so because a latent ambiguity is shown where the writing is otherwise clear and unambiguous on its face, but some collateral fact creates a necessity for interpretation." Lost Tree Vill. Corp., 805 So.2d at 26. However, in order for the trial court to have properly admitted parol evidence to construe the language of the 1934 deed, a latent ambiguity must first exist.

"A latent ambiguity in a deed description is said to exist when the deed, clear on its face, is shown by some extraneous fact to present an equivocation by being susceptible to two or more possible meanings." Lost Tree Vill. Corp., 805 So.2d at 25 ; accord Thrasher, 858 So.2d at 1175. A latent ambiguity arises when the words of a conveyance "apply to and fit without ambiguity" to more than one subject. Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1139 (Fla. 1998) (quoting Perkins v. O'Donald, 77 Fla. 710, 82 So. 401, 404 (1919) ). "In such cases [parol] evidence will be received to prove which of the subjects" was intended to be conveyed. Id. (emphasis added) (quoting Perkins, 82 So. at 404 ).

Although BayEsplanade contends that "all lands" is a phrase "normally used to convey 'all uplands,' " it provided no extrinsic evidence supporting that assertion. There is no ambiguity as to the quality of title conveyed. Cf. Thrasher, 858 So.2d at 1176 (discussing ambiguity as to legal description "with language limiting the quality of title or use of the property"). A subsequent conveyance of the identical property to BayEsplanade's predecessor in title is insufficient to establish a latent ambiguity. See Saltzman, 306 So.2d at 538.

And BayEsplanade presented no evidence of "alternative factual scenarios" to which "all lands" could apply. See Deni Assocs., 711 So.2d at 1139 (quoting Perkins, 82 So. at 404 ); cf. Ware Constr. Co. v. Thomas, 357 So.2d 452, 454 (Fla. 2d DCA 1978) ("While the language 'commercial, industrial or business places' is not defective, obscure, or insensible, it does consistently admit of two different interpretations; one encompassing the planned development and one not encompassing the planned development."); Lost Tree Vill. Corp., 805 So.2d at 26 (discussing latent ambiguity with regard to survey and placement of the property in a location different than that intended by the parties).

The language of the deed at issue here applies to only one subject: all lands, regardless of whether they are upland or submerged. None of the extrinsic evidence presented by BayEsplanade renders the phrase "all lands" equivocal. BayEsplanade presented no evidence that the phrase "all lands" means something less or more limited than what it says, such that it means only some of all lands. See Japanese Gardens Mobile Estates, 261 So.2d at 196 (stating that it is impermissible to create an ambiguity through extrinsic evidence where one otherwise does not exist). As a result, while the trial court may have properly considered parol evidence to determine whether the claimed latent ambiguity exists, the court incorrectly determined that the phrase "all lands" is ambiguous and therefore erred in admitting the parol evidence to construe it.

Had the deed conveyed Parcel 1 together with "lands eastward to the Channel," we might have concluded that the deed contains a latent ambiguity. Cf. Dade City, 290 So.2d at 531 (concluding that "all roads" is unambiguous but stating that "if the question to be answered by parol is whether a given piece of land described as a road in a written instrument is, in fact, being used as a 'road,' such evidence would of course be admissible to establish such fact"). But the singular qualification on the conveyance of the lands eastward to the Channel of Clearwater Harbor in 1934 deed was that it conveys all such lands. Parol evidence was inadmissible to establish that the phrase "all lands" really means "all lands except the submerged lands." See id.; see also State v. Good Times, Ltd., No. E2007-1172-COA-R3-CV, 2008 WL 4334894, at *4 (Tenn. Ct. App. Sept. 23, 2008) (stating, in the context of deed interpretation, that "[a]ll means all and not some, or a part, or a portion, or a few"). Moreover, giving "all lands Eastward to the Channel" the meaning that BayEsplanade suggests would render the word "all" meaningless. And "[w]here only one construction will give full effect to all of the words of the instrument, it should be followed." Thrasher, 858 So.2d at 1176 (citing Loveland v. CSX Transp., Inc., 622 So.2d 1120, 1121 (Fla. 3d DCA 1993) ).

We hold that the 1934 deed conveying "all lands ... to the Channel of Clearwater Harbor" to the City of Clearwater unambiguously conveyed all lands, including the submerged land within the boundaries described in the deed. Accordingly, we reverse the order granting final summary judgment quieting title in favor of BayEsplanade and reverse and remand with instructions to enter final summary judgment quieting title in favor of the City of Clearwater.

Reversed and remanded with instructions.

NORTHCUTT and MORRIS, JJ., Concur.

      The parties agree that the channel between Sand Key and Ragged Key is now known as Mandalay Channel and has previously been known as the Channel of Clearwater Harbor.

      Although the trial court stated that the language in the deed was either patently or latently ambiguous, given that the court admitted parol evidence to construe the deed's language, the court could not have found the language patently ambiguous. See Mendelson v. Great W. Bank, F.S.B., 712 So.2d 1194, 1196 (Fla. 2d DCA 1998) ("[I]f the instrument's description of the property is patently ambiguous, and the instrument furnishes no other information from which the parties' intention can be gleaned, the attempted conveyance is void, and parol evidence may not be employed to cure the deficiency."). We also note that nothing about the clause "together with all riparian rights" is ambiguous. Because it is a separate clause granting rights in addition to those conveyed in the first and second clauses of the deed, it is not, as the trial court found, "inconsistent" with the conveyance of submerged land. Even if the deed had not expressly conveyed riparian rights, they are appurtenant to the uplands conveyed in the deed. See, e.g., Haynes v. Carbonell, 532 So.2d 746, 748 (Fla. 3d DCA 1988).

      We note that "[w]hen an agreement contains a latent ambiguity[,] ... the issue of the correct interpretation of the agreement is an issue of fact which precludes summary judgment." Barrington v. Gryphon Invs., Inc., 32 So.3d 668, 671 (Fla. 2d DCA 2010) (alterations in original) (quoting Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659-60 (Fla. 2d DCA 2005) ). However, in this case, the parties agreed that no material facts beyond those presented at the summary judgment hearing existed, given that the conveyance at issue occurred in 1934.

      The validity of the TIIF deed conveying submerged land to the Bridge Company is not in question. Cf. Whetstone v. City of St. Augustine, 186 So.3d 34, 36 (Fla. 5th DCA 2016) ("Because the Whetstones' property never included submerged lands, their predecessor in title could not have reserved submerged lands he did not have ....").


author: PER CURIAM.

text:
    Eugene A. VERDON, Jr., Appellant, v. Dandan SONG, Appellee.
    Case No. 5D16-3577
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 29, 2018
    John W. Zielinski, of NeJame Law, P.A., Orlando, for Appellant.
    Brandon W. Banks, and Brian M. Walsh, of Walsh Banks, PLLC, Orlando, for Appellee.
   PER CURIAM.

Eugene A. Verdon, Jr., appeals from the trial court's order dismissing his two-count second amended complaint (the "complaint") with prejudice for failure to state a cause of action against his wife, Dandan Song. Husband argues that he sufficiently pled a cause of action for both abuse of process and malicious prosecution. We agree and reverse.

Husband's complaint alleged that his wife manufactured evidence and falsely accused him of domestic violence, leading to his arrest and criminal prosecution. Then, days after Husband was formally charged, Wife attempted to use Husband's credit card, but the transaction was declined.

As a result, Wife allegedly left a voicemail in which she attempted to extort Husband. In that voicemail, she said she would not feel guilty about pressing charges because Husband had restricted her use of the credit card, and that Husband should call her before she does something he "could not fix." The complaint goes on to allege that Wife subsequently filed a sworn affidavit in support of the criminal charges that contained numerous false statements and signed a request to prosecute.

Importantly, Husband alleged that the criminal proceeding ended with a bona fide termination in his favor when the State nolle prossed the charges against him because "the likelihood of a conviction at a criminal jury trial was slight." The complaint further alleged that the nolle prosequi "was not based on technical or procedural reasons, nor was it based on considerations other than the merits of the case."

The trial court dismissed Husband's complaint with prejudice, concluding that his allegations on the abuse of process action were conclusory and that he failed to allege an essential element of a malicious prosecution action as he "failed to assert there was a bona fide termination of the legal proceedings in his favor."

Standard of Review

"A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues." Minor v. Brunetti , 43 So.3d 178, 179 (Fla. 3d DCA 2010) (quoting The Fla. Bar v. Greene , 926 So.2d 1195, 1199 (Fla. 2006) ).

When reviewing an order dismissing a complaint, this court must confine its analysis to the four corners of the complaint, draw all inferences in favor of the pleader, accept all well-pled allegations as true and review the question of law de novo. Everidge v. Advantage Venture Partners, Ltd. , 880 So.2d 691 (Fla. 5th DCA 2004).

The Torts of Abuse of Process and Malicious Prosecution

Although abuse of process and malicious prosecution are two separate and distinct torts, they "have the common element of an improper purpose in the use of legal process, and there are many cases in which they overlap and either will lie." Aranson v. Schroeder , 140 N.H. 359, 671 A.2d 1023, 1027 (1995) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts 898 (5th ed. 1984) ). However, these torts serve different purposes as "[t]he tort of malicious prosecution is concerned with maliciously causing process to issue, whereas the tort of abuse of process is concerned with the improper use of process after it issues," Yoder v. Adriatico , 459 So.2d 449, 450 (Fla. 5th DCA 1984) (citations omitted), "for some wrongful and unlawful object or collateral purpose." Gause v. First Bank of Marianna , 457 So.2d 582, 584 (Fla. 1st DCA 1984) (citation omitted).

The United States Court of Appeals for the Third Circuit has explained the intersection as follows:

[I]f the defendant justifies issuance of process by untruthfully saying that the plaintiff solicited burglary and uses the process only to have him jailed , this is malicious use only [i.e. malicious prosecution]. It is not malicious abuse [i.e. abuse of process] because jailing is the purpose for which criminal process was intended. If the defendant has process issued based on the truthful statement that the plaintiff solicited burglary and then uses the threat of prosecution for purposes of extortion , this is malicious abuse only. Finally, if, as is alleged in the present case, the defendant has process served based on false statements and uses threat of prosecution for purposes of extortion, both torts will lie .

Jennings v. Shuman , 567 F.2d 1213, 1219 (3d Cir. 1977) (emphases added).

Husband's Abuse of Process Cause of Action

Wife argues that Husband's allegation of extortion "rings hollow" because the complaint did not allege that Wife expressly conditioned her continued prosecution of Husband upon failure to receive access to the credit card. We disagree.

A cause of action for abuse of process requires a plaintiff to plead that: "(1) the defendant made an illegal, improper, or perverted use of process; (2) the defendant had an ulterior motive or purpose in exercising the illegal, improper or perverted process; and (3) the plaintiff was injured as a result of defendant's action." Hardick v. Homol , 795 So.2d 1107, 1111 n.2 (Fla. 5th DCA 2001) (citation omitted). "The usual abuse of process claim involves some form of extortion-using a criminal prosecution to force payment of a civil debt." Bembry v. City of Tallahassee , 19 Fla. L. Weekly Fed. D 661 (N.D. Fla. Apr. 24, 2006) (citation omitted).

Here, Husband alleged that Wife referenced the criminal charges and implicitly demanded use of his credit card or she would do something that "he could not fix." The complaint alleged that she made this threat in an attempt to extort Husband after the State had filed formal charges against him, and that Wife thereafter filed a false affidavit and a request for prosecution.

These allegations sufficiently allege that Wife attempted to extort Husband by using the pending criminal proceedings to gain use of his credit card. Husband was not required to allege that Wife expressly connected the use of Husband's credit card to the pending criminal proceedings. Therefore, we conclude that the complaint sufficiently alleged a cause of action for abuse of process, and the trial court's order dismissing this claim with prejudice was in error.

Husband's Malicious Prosecution Cause of Action

Wife also argues, without citation to authority, that the malicious prosecution cause of action was properly dismissed because it did not allege that "there was no chance of a conviction or exculpatory evidence existed" and that the State did not admit that Husband was innocent of the criminal charges. We again disagree.

"It is axiomatic that a plaintiff in a malicious prosecution case must, as an essential element of that cause of action, establish that the prior litigation giving rise to the malicious prosecution suit ended with a 'bona fide termination' in that party's favor." Doss v. Bank Of Am., N.A. , 857 So.2d 991, 994 (Fla. 5th DCA 2003) (citations omitted). This means that the prior proceeding must end in a manner that indicates the plaintiff's innocence of the charges or allegations. Id. In other words, "suits that terminate because of technical or procedural reasons or considerations other than the merits of the first suit, are not 'bona fide terminations' and will not support a malicious prosecution suit." Id. at 995.

The complaint in this case alleged that the charges against Husband were nolle prossed "after a review of the merits" because the chance of a conviction was "slight" and that the nolle pros was not based upon any "technical or procedural reasons." Husband was not required to allege that the nolle prosequi was entered because "there was no chance of a conviction or exculpatory evidence existed." Likewise, the State was not required to explicitly affirm Husband's innocence before he could maintain a cause of action for malicious prosecution. As such, we find that the trial court erred when it dismissed Husband's complaint for failure to plead a bona fide termination of the criminal proceeding in his favor.

We therefore reverse the trial court's order dismissing the complaint with prejudice and remand for further proceedings.

REVERSED and REMANDED.

COHEN, C.J., TORPY, AND EISNAUGLE, JJ., concur.

      Our record indicates that the parties' dissolution proceeding remains pending.

      "In order to prevail in a malicious prosecution action, a plaintiff must establish that: (1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding." Alamo Rent-A-Car, Inc. v. Mancusi , 632 So.2d 1352, 1355 (Fla. 1994) (citations omitted).


text:
    Antonio NEELEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-0802
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Antonio Neeley, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   PER CURIAM.

Affirmed. See Gethers v. State, 838 So.2d 504, 508 (Fla. 2003) ; Cadet v. State, 239 So.3d 113, 115 (Fla. 3d DCA 2018).


author: SALTER, J.

text:
    Jose DIAZ, Appellant, v. Lino CALVO, Appellee.
    No. 3D17-1678
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Cohen Law and Danielle A. Cohen Higgins, for appellant.
    Waldman Barnett and Glen H. Waldman and Michael A. Azre, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   SALTER, J.

Jose R. Diaz Duahajre ("Mr. Diaz") appeals a final default judgment for $319,252.95 in trebled damages for civil theft, lesser amounts on other causes of action that are partially duplicative of the civil theft award, and prejudgment interest. We affirm the final judgment in all significant respects, but remand for the ministerial correction of a $21.00 error in computation.

Clear and convincing evidence supported the trial court's decision to strike Mr. Diaz's defenses and enter a default. Mr. Diaz was shown to have threatened a key witness and to have attempted to extort the witness into false testimony. The trial court's power to impose these extreme sanctions "is indispensable to the proper administration of justice, because no litigant has a right to trifle with the courts." Ramey v. Haverty Furniture Cos., Inc., 993 So.2d 1014, 1018 (Fla. 2d DCA 2008) (quoting Tri Star Invs., Inc. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981) (recognizing that the power should be exercised cautiously and sparingly). See also Willie-Koonce v. Miami Sunshine Transfer & Tours Corp., 233 So.3d 1271 (Fla. 3d DCA 2017).

Addressing Mr. Diaz's arguments that the damages claimed by the appellee should have been characterized as unliquidated rather than liquidated, we disagree. The underlying civil theft count claimed "$106,410.65 (71,500 euros)" in liquidated damages before trebling, itemized for each of three transactions. "Where a default is entered, the defaulting party admits entitlement to liquidated damages, but not unliquidated damages. Cellular Warehouse[, Inc. v. GH Cellular, LLC ], 957 So.2d [662,] 666 [ (Fla. 3d DCA 2007) ]. Damages are liquidated when the exact amount due may be determined from the pleadings."

1445 Washington Ltd. P'ship v. Lemontag, 19 So.3d 1079, 1081 (Fla. 3d DCA 2009). Before entry of the final default judgment, the appellee filed a notice that he would not seek or obtain any unliquidated damages on the counts of the complaint which did not specify an exact amount.

Trebling the "exact amount" specified in the civil theft count of the appellee's complaint produces a total of $319,231.95, rather than the $319,252.95 figure included within the final default judgment. For this reason, we remand the case to the trial court for the ministerial purpose of making the correction (and any necessary adjustment to the amount of prejudgment interest computed in the final judgment) and amending the judgment accordingly. In all other respects, we affirm the judgment.


text:
    Kevon GEORGE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-423
    District Court of Appeal of Florida, Third District.
    Opinion filed July 05, 2018
    Aubrey Webb, Coral Gables, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez and Marlon Weiss, Assistant Attorneys General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   ROTHENBERG, C.J.

The defendant appeals his various convictions and sentences following a jury trial. The defendant's claims on appeal are that the trial court: (1) abused its discretion by denying his motion for a mistrial due to the prosecutor allegedly pre-trying the case during voir dire; (2) abused its discretion by granting the State's motion in limine and ruling that the defense could not cross-examine the lead detective as to his pending criminal charges; (3) abused its discretion by allowing the State to introduce a statement made by the homicide victim just before he died; and (4) fundamentally erred by instructing the jury on first-degree premeditated murder where the evidence was allegedly legally insufficient to support a conviction for that offense. Finding no reversible error, we affirm.

FACTS

The defendant was charged with and convicted of: the first-degree murder of Steven Velez ("Velez") committed with a deadly weapon and with a premeditated design and/or while engaged in the perpetration of a robbery and/or a kidnapping (Count I); the kidnapping of Jose Manuel Martinez ("Martinez") with a firearm (Count II); the attempted armed robbery of Velez (Count III); falsely impersonating an officer (Count IV); giving a false name/identification after arrest (Count V); discharging a firearm from a vehicle (Count VI); and the aggravated assault of Martinez with a deadly weapon (Count VII). The charged offenses stem from the defendant's actions before, during, and after the attempted robbery of Velez-a drug supplier.

At trial, the State called several witnesses, including Michelle Lewis ("Ms. Lewis"), who participated in the crimes with the defendant but who had pled guilty to certain offenses; Martinez, the surviving victim; a neighbor who called 911; Ms. Alvarez; Detective Reid; Detective Casas; and Detective Ochoa. Their testimonies reflect the following.

The defendant and Ms. Lewis, a New York City Police Department administrative aide, drove to Miami Beach for a vacation. During their vacation, the defendant bought $5 worth of marijuana from Martinez. When the defendant told Martinez that he wanted to purchase two ounces of marijuana and half an ounce of cocaine, Martinez told the defendant that he would have to speak to Velez, who was Martinez's supplier. Martinez contacted Velez, and Velez and the defendant met and agreed to a price of $1500 for the drugs. The sale, however, was not consummated.

The following day, although the defendant did not actually have the money to purchase the drugs, he told Martinez that he had the money and asked him to come to his hotel. When Martinez entered the defendant's and Ms. Lewis's hotel room, the defendant pulled out a gun, pointed the gun at Martinez, showed Martinez a police identification card from New York, and identified himself as a New York City police officer. While holding Martinez at gunpoint, the defendant told Martinez that if he did not cooperate, he would put Martinez in jail. Martinez told the defendant to go ahead and put him in jail. When Martinez refused to "cooperate," the defendant beat and threatened to kill Martinez, and at one point, the defendant placed a gun in Martinez's mouth and threatened to kill Martinez and Martinez's family.

After being threatened for two hours, Martinez agreed to call Velez and set up a meeting with the defendant. The defendant told Martinez to place the call on speaker phone, to speak English, and to tell Velez that the defendant had the money to purchase the drugs. Martinez called Velez, and Velez agreed to meet the defendant at Velez's home. With Ms. Lewis driving, the defendant seated in the front passenger seat, and Martinez in the backseat with the child safety locks engaged, they drove to meet with Velez.

After arriving at the designated site, Velez entered the backseat of the car with a Foot Locker bag that contained a shoebox with the drugs inside. After Velez showed the defendant the drugs, the defendant instructed Ms. Lewis to show Velez the New York City police identification, and the defendant told Velez, "[Y]ou're not going to get out of this one even if you want to get out of this one." When Velez learned that the defendant did not have the money to purchase the drugs, Velez tried to open the car door. When Velez realized that the door was locked from the inside, he stuck his hand outside of the car window and opened the door. As Velez was exiting the car, the defendant warned Velez not to get out of the car, tried to grab the drugs from Velez, and shot Velez in the chest, in the back, and on his right side-with a two second break between the second and third shots. The medical examiner testified that one of the wounds was consistent with Velez being shot while in an upright position either turning or moving away from the defendant.

After the defendant shot Velez, Ms. Lewis drove away with Martinez still in the backseat. Martinez eventually jumped out of the window of the car and ran to a nearby church, where he made the following statement to Ms. Alvarez: "Oh my God, I just escaped from a murder. They killed my friend. They almost killed me so I had to run and I jumped from a running car."

Immediately after Velez was shot, a neighbor called 911. The 911 call reflects that Velez was in agony, was struggling to move, and had a lot of blood on both the back and the front of his body. Within three minutes of Velez being shot, Detective Reid arrived at the scene of the shooting and asked Velez who had shot him. In response, Velez stated: "A black man with dreads." Velez died within a few minutes of making this statement.

Following the shooting, the defendant and Ms. Lewis drove back to New York, but prior to leaving Miami Beach, the defendant threw the gun out of the car window while driving over a bridge. A few days later, the defendant and Ms. Lewis were arrested in New York, and Martinez positively identified both the defendant and Ms. Lewis in separate photographic lineups.

The jury found the defendant guilty as charged, and he was later sentenced. The defendant's appeal followed.

ANALYSIS

I. Whether the trial court abused its discretion by denying the defendant's motion for a mistrial based on the prosecutor allegedly pre-trying the case during voir dire

The defendant contends that the trial court abused its discretion by denying his motion for a mistrial based on the prosecutor allegedly pre-trying the case during voir dire. See Salazar v. State, 991 So.2d 364, 371 (Fla. 2008) (stating that an appellate court reviews a trial court's ruling on a motion for a mistrial for an abuse of discretion). Based on the following analysis, we find that the trial court did not abuse its discretion by denying the defendant's motion for a mistrial as a mistrial was not necessary to ensure that the defendant received a fair trial. Id. at 372 (noting that a motion for a mistrial should only be granted when it is necessary to ensure that the defendant receives a fair trial).

The defendant focuses on three primary questions, statements, and/or topics addressed by the prosecutor during voir dire: (1) notifying the jury that law enforcement did not recover a gun, and thus, no gun would be produced at trial, and asking the prospective jurors if they could still convict without the gun being introduced; (2) informing the prospective jurors that Ms. Lewis, who participated in the crimes with the defendant, had pled guilty and would be testifying as a State witness; and (3) telling the prospective jurors that they were going to hear from the surviving victim, and that he is a drug dealer. The law is clear, the State is prohibited from questioning "prospective jurors as to the kind of verdict they would render under any given state of facts or circumstances. " See Bell v. State, 108 So.3d 639, 652 (Fla. 2013) (quoting Smith v. State, 253 So.2d 465, 470 (Fla. 1st DCA 1971) ) (emphasis added).

A. Law enforcement's failure to recover the gun

During voir dire, the prosecutor asked the following question: "If the State proves to you beyond a reasonable doubt that a firearm was, in fact, used but we don't have it to show to you would you still come back with a conviction ?" (emphasis added). By asking this question, the prosecutor improperly attempted to question the prospective jurors as to the verdict they would render based on certain facts relevant to the defendant's case-law enforcement's failure to recover the gun. This was improper. See Renney v. State, 543 So.2d 420, 421 (Fla. 5th DCA 1989) (finding that it was improper for the prosecutor to ask the prospective jurors to commit to finding the defendant guilty if the State "prove[d] every element of the crime, but [did not] prove one particular fact").

Although the prosecutor's question was improper, we conclude that the trial court did not abuse its discretion by denying defense counsel's motion for a mistrial as a mistrial was not necessary to ensure that the defendant received a fair trial. Our conclusion is based on the fact that defense counsel immediately objected; the trial court sustained the objection; the prosecutor's attempt to obtain a commitment from the prospective jurors was unsuccessful; and, after sustaining the objection, the trial court, as requested by defense counsel, gave the prospective jurors a curative instruction. Thus, although the prosecutor's unanswered question was an improper attempt to pre-try the case, the error was harmless, and therefore, the trial court correctly denied the defendant's motion for a mistrial.

B. Informing the prospective jurors of Ms. Lewis's participation in the charged crimes and subsequent plea

The defendant also takes issue with the prosecutor's statements during voir dire regarding Ms. Lewis. The prosecutor informed the prospective jurors that Ms. Lewis: was the defendant's ex-girlfriend; participated in the crimes with the defendant;

had since cooperated with the State and had taken a plea; is a convicted felon; and would be called by the State as a witness. After informing the prospective jurors of Ms. Lewis's background, the prosecutor asked them if they would automatically not believe her because she is a convicted felon or if they would be willing to evaluate her testimony as they would any other witness. Importantly, the prosecutor did not ask the prospective jurors if they could or would convict the defendant based on the testimony of a cooperating witness or a convicted felon if the State proved its case beyond a reasonable doubt. Rather, the prosecutor's question was a permissible attempt to determine if the prospective jurors had any latent or concealed prejudgments as to cooperating witnesses and/or a witness who is a convicted felon. See Mendez v. State, 898 So.2d 1141, 1143 (Fla. 5th DCA 2005) (noting that "[t]he purpose of voir dire is to ensure a fair and impartial jury"; holding that a trial court "must allow counsel the opportunity to ascertain latent or concealed prejudgments by prospective jurors") (quoting Miller v. State, 683 So.2d 600, 602 (Fla. 2d DCA 1996) ); see also Figueroa v. State, 952 So.2d 1238, 1239 (Fla. 3d DCA 2007) ("While the trial court certainly has the discretion ... to preclude attorneys from pre-trying their cases or in obtaining a commitment on ultimate issues to be decided after hearing all the evidence, a trial judge must allow counsel to ascertain latent or concealed prejudgments by prospective jurors."). Thus, the question posed by the prosecutor was not improper, and the defendant's motion for a mistrial was properly denied.

C. Informing the prospective jurors that they were going to hear from the surviving victim and that he is a drug dealer

The defendant contends that the prosecutor's statement to the prospective jurors that they "will also hear from another witness who is a surviving victim who was a drug dealer," was improper, requiring a mistrial. However, the record reflects that immediately following this statement, and before the prosecutor could ask the jurors any questions regarding this information, the trial court called the prosecutor and defense counsel sidebar. Following the sidebar, the trial court instructed the prospective jurors on how to weigh the credibility of a witness. The trial court told the prospective jurors that some of the factors they should consider are: whether the witness had some interest in how the case should be decided; whether the witness had been offered or received any preferred treatment or benefit for his testimony; and whether the witness is a convicted felon. The trial court also instructed the prospective jurors that they should consider the testimony of a cooperating witness with more caution than the testimony of other witnesses; however, if the cooperating witness's testimony convinced them of the defendant's guilt beyond a reasonable doubt, then the defendant should be found guilty. After providing this instruction, the trial court questioned the prospective jurors as to whether, after explaining the law to them, they had any concerns.

We commend the trial court in the close attention it paid to the questioning, its quick and proactive responses, and its textbook-perfect handling of this issue thereby thwarting any possible attempt by the prosecutor to pre-try the case. Based on the trial court's quick reaction, the prosecutor was never given an opportunity to ask the prospective jurors for any sort of commitment, and based on the trial court's immediate instructions as to the law, the complained-of statement did not prejudice the defendant or require a mistrial.

II. Whether the trial court abused its discretion by precluding the defense from cross-examining the lead detective regarding his pending criminal charges

The defendant contends that the trial court abused its discretion by not permitting defense counsel to cross-examine Detective Ochoa about his pending criminal charges in order to probe his possible bias, motive, or self-interest regarding his trial testimony. We agree with the defendant that this was error.

Detective Ochoa had pending criminal charges in Broward County for sexual battery of a minor. The charges against Detective Ochoa were filed approximately two years after he had arrested the defendant, and the charges filed against Detective Ochoa were completely unrelated to the defendant's case.

Section 90.608, Florida Statutes (2016), provides that "[a]ny party, including the party calling the witness, may attack the credibility of a witness by: ... (2) Showing that the witness is biased." Although a defense witness may be impeached only by proof of convictions, "if a witness for the State were presently ... under actual ... criminal charges ..., a person against whom such witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination." Breedlove v. State, 580 So.2d 605, 607-608 (Fla. 1991) (quoting Fulton v. State, 335 So.2d 280, 283-84 (Fla. 1976) (quoting Morrell v. State, 297 So.2d 579, 580 (Fla. 1st DCA 1974) ) (internal quotation marks omitted). Such cross-examination is permitted "so that the jury will be fully apprised as to the witness' possible motive or self-interest with respect to the testimony he gives." Morrell, 297 So.2d at 580. As explained in Morrell:

Testimony given in a criminal case by a witness who himself is under actual or threatened criminal investigation or charges may well be biased in favor of the State without the knowledge of such bias by the police or prosecutor because the witness may seek to curry their favor with respect to his own legal difficulties by furnishing biased testimony favorable to the State .

Morrell, 297 So.2d at 580 (emphasis added).

This Court's decision in Bell v. State, 614 So.2d 562 (Fla. 3d DCA 1993), reflects that the trial court, within limits, should have allowed the defense to cross-examine Detective Ochoa regarding his pending criminal charges. In Bell, the State's witness, Otis Charles, had pending charges against him at the time of trial, charges which were completely unrelated to the charges against defendant Bell. Id. at 563. During cross-examination, defense counsel attempted to ask Charles several questions regarding the pending charges, but Charles refused to answer on the ground that if he answered the questions, he might incriminate himself. Id. Bell argued on appeal that the trial court erred by not requiring Charles to answer the following two questions: (1) "Is it a fact, Sir, you are currently incarcerated facing trial for an indictment charging you with the following crime[s]: Murder in the first degree, and attempted first degree murder-isn't that a fact, Sir?" and (2) "Isn't it a fact, Sir, that you hope to gain favor with the very state attorney's office that is prosecuting this case in order to help yourself with your pending charges." Id.

This Court held that the trial court erred by not requiring Charles to answer these questions because the answers to these questions would not have incriminated Charles. Id. Specifically, the answer to the first question was a matter of public record, and the answer to the second question would not have subjected Charles to criminal prosecution. Relying on Breedlove and other cases, this Court determined that the questions "were extremely relevant to Charles' credibility and were the proper subject of cross-examination," and therefore, the trial court should have required Charles to answer the questions. Id. at 563-64 ; see also Carlyle v. State, 945 So.2d 540, 546 (Fla. 2d DCA 2006) (holding that the defense should have been permitted to cross-examine the witness as to a pending probation violation because a "defendant has the absolute right to fully cross-examine adverse witnesses to discredit them by showing bias, prejudice, interest, or possible ulterior motive for testifying") (internal quotation omitted); Douglas v. State, 627 So.2d 1190, 1191 (Fla. 1st DCA 1993) ("When charges are pending against a prosecution witness at the time he testifies, the defense is entitled to present this fact to the jury to show bias, motive or self-interest."). Thus, in Bell, this Court found that the trial court abused its discretion by limiting defense counsel's cross-examination of Charles.

Although we conclude that the trial court abused its discretion by not permitting the defense to cross-examine Detective Ochoa regarding his pending criminal charges, we conclude that the error was harmless beyond a reasonable doubt. Any error in curtailing cross-examination of a State witness could be harmless error based on "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Livingston v. State, 565 So.2d 1288, 1291 (Fla. 1988) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ). Following our review of the record, including the overwhelming strength of the prosecution's case, which will be addressed in the following sections, we conclude that the error was harmless beyond a reasonable doubt.

III. Whether the trial court abused its discretion by allowing the State to introduce a statement made by the homicide victim just before he died

Within three minutes of Velez being shot, Detective Reid arrived at the scene of the shooting and asked Velez who had shot him. In response, Velez stated: "A black man with dreads." Recognizing that Velez's statement was hearsay, the State sought to admit Velez's statement under both the excited utterance and the dying declaration exceptions to the hearsay rule. The trial court found that the statement was admissible under both exceptions to the hearsay rule.

The defendant contends that the trial court abused its discretion by admitting Velez statement under both exceptions to the hearsay rule. As the statement was properly admitted under both the excited utterance exception and the dying declaration exception to the hearsay rule, we conclude that the trial court did not abuse its discretion by admitting the statement.

A. Excited Utterance-Section 90.803(2) of the Florida Statutes

As explained by the Florida Supreme Court, for a statement to qualify as an excited utterance under section 90.803(2) of the Florida Statutes, the following essential elements are necessary: "(1) there must be an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must be made while the person is under the stress of excitement caused by the event." State v. Jano, 524 So.2d 660, 661 (Fla. 1988) ; see also Beckman v. State, 230 So.3d 77, 90 (Fla. 3d DCA 2017). "An excited utterance is admissible as an exception to the hearsay rule because the declarant does not have the reflective capacity necessary for conscious misrepresentation. Thus, statements made by someone who is excited are spontaneous and have sufficient guarantees of truthfulness." Rogers v. State, 660 So.2d 237, 240 (Fla. 1995) (citing Charles W. Ehrhardt, Florida Evidence § 803.2 (1994 ed.) ).

As to the first prong, there was clearly an event startling enough to cause nervous excitement-Velez had been shot three times. As to the second prong, the statement was made before there was time for Velez to contrive or misrepresent. The evidence showed that Detective Reid arrived at the scene of the shooting within three minutes of Velez being shot three times. Prior to Detective Reid's arrival, one of Velez's neighbor called 911. The 911 call reflects that Velez was in agony, was struggling to move, and had a lot of blood on both the back and the front of his body. Finally, as to the third prong, given Velez's physical and mental condition at the time he made the statement to Detective Reid, it is clear that Velez made the statement while under the stress of excitement caused by the event. Thus, the trial court did not abuse its discretion by admitting the statement as an excited utterance.

B. Dying Declaration-Section 90.804(2)(b) of the Florida Statutes

Although we have concluded that the statement was properly admitted as an excited utterance pursuant to section 90.803(2), we also conclude the trial court did not abuse its discretion by determining that the statement qualified as a dying declaration admissible under section 90.804(2)(b).

In order for the dying declaration exception to apply, "the deceased must have known and 'appreciated his condition as being that of an approach to certain and immediate death,' although it is not necessary that the declarant 'make express utterances' that he would never recover." Hayward v. State, 24 So.3d 17, 30 (Fla. 2009) (quoting Henry v. State, 613 So.2d 429, 431 (Fla.1992) ). As discussed above, the evidence showed that immediately after being shot three times, Velez was in agony, was struggling to move, he was bleeding profusely, and he died within minutes of being shot. Thus, based on the totality of the circumstances, the trial court properly determined that Velez's statement qualified as a dying declaration.

IV. Whether the evidence was legally sufficient to support a jury instruction on premeditated murder

Although the defendant lodged no objection below, he contends the trial court fundamentally erred by instructing the jury on premeditated murder because he contends that the evidence was legally insufficient to support a conviction for first-degree premeditated murder. The defendant further contends that, because the general verdict form did not require the jury to specify which alternative theory of first-degree murder it was relying on in finding the defendant guilty-premediated murder and/or felony murder-the jury may have relied on the legally insufficient theory of first-degree premediated murder. As the evidence presented by the State was legally sufficient to establish that the defendant's murder of Velez was premeditated, we find no error.

Premeditation "is a fully formed conscious purpose to kill," which "may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act." Wilson v. State, 493 So.2d 1019, 1021 (Fla. 1986), receded from on other grounds, Evans v. State, 838 So.2d 1090 (Fla. 2002) ). Premeditation may be established by direct and/or circumstantial evidence. Circumstantial evidence of premeditation includes "the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted." Spencer v. State, 645 So.2d 377, 381 (Fla. 1994).

In the instant case, the State presented more than sufficient evidence of premeditation as to the charged offense of the first-degree murder of Velez. The evidence showed that the defendant intended to take the drugs from Velez without paying for them. Although the defendant's scheme to rob Velez, standing alone, does not show premeditation to commit murder, the evidence presented at trial demonstrates that the defendant intended to obtain the drugs at all costs-even murdering unwilling participants. The defendant held Martinez at gunpoint at the hotel room, threatened to kill him and his family, beat him, and, at one point, put the gun inside of Martinez's mouth and threatened to kill him. The defendant continued to threaten to kill Martinez during the drive to Velez's home. He activated the child safety locks and warned Martinez that he would shoot him if he attempted to exit the vehicle. After Velez entered the vehicle, the defendant told Velez: "[Y]ou're not going to get out of this one even if you want to get of this one." When Velez reached through the car door window and opened the locked backseat car door to escape, the defendant warned him not get out of the car and when he ignored the defendant's warning, the defendant shot Velez three times-(1) in the chest, (2) on Velez's right side, and (3) in the back, as Velez was attempting to flee. Importantly, there was a two-second break between the second and third shots, and one of the shots was consistent with Velez being in an upright position either turning or moving away from the defendant. Additionally, after the defendant shot Velez, the defendant continued to threaten to shoot Martinez if he tried to escape.

Based on the evidence presented, the State clearly introduced sufficient evidence to support a finding of premeditation when the defendant killed Velez-"a fully formed conscious purpose to kill" that "exist[ed] for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act." Wilson, 493 So.2d at 1021. Accordingly, the trial court did not err, let alone fundamentally err, by instructing the jury on first-degree premeditated murder.

CONCLUSION

Based on the above analysis, we find no reversible error. Accordingly, we affirm the defendant's convictions and sentences.

      The remaining arguments raised by the defendant lack merit and will not be discussed in this opinion.