author: Winokur, J.

text:
    HEARTLAND EXPRESS, INC. OF IOWA, a Foreign Corporation, Appellant, v. Mark FARBER, as Limited Guardian of the Property of Juan Torres, Appellee.
    No. 1D18-1305
    District Court of Appeal of Florida, First District.
    December 18, 2018
    James H. Wyman of Hinshaw & Culbertson, LLP, Coral Gables, for Appellant.
    Dennis R. Schutt and Jeffrey D. Devonchik of Schutt, Schmidt & Noey, Jacksonville, for Appellee.
   Winokur, J.

Heartland Express, Inc. of Iowa (Heartland) challenges the trial court's order finding that post-judgment interest began to accrue on the date of its original Final Judgment rather than when it issued an Amended Final Judgment. We agree with the trial court and affirm the ruling below.

I.

Juan Torres sought damages for injuries suffered as a result of a highway collision in Alabama involving an employee of Heartland. Both parties stipulated to the transfer of the case to Duval County, Florida, and to the application of Alabama substantive law. The trial court later substituted Mark Farber, as limited guardian of the property of Torres, as party plaintiff due to Torres' incapacitation.

The case proceeded to trial on the issues of proximate cause, compensatory damages, wantonness on the part of Heartland's employee, and punitive damages based on the employee's alleged wantonness. After a twelve-day trial, the jury found that Heartland's negligence was the proximate cause of Torres' injuries and awarded compensatory damages in the amount of $888,417.57. The jury, however, did not find that the employee's conduct was wanton and, as a result, made no finding as to punitive damages.

Farber then moved for new trial on the issue of wantonness and punitive damages. The trial court granted Farber's motion, and in December 2014 entered a Final Judgment in the amount of $888,417.57.

Heartland appealed both the trial court's order granting a new trial and the Final Judgment. This Court found that Farber was "not entitled to a new trial on the issues of wantonness and punitive damages" and reversed the new-trial order. Heartland Express, Inc. of Iowa v. Farber , 230 So.3d 146, 151 (Fla. 1st DCA 2017). The case was remanded to the trial court "for the reinstatement of the jury's verdict on the issue of wantonness." Id. at 153.

Both parties agreed that a new entry of final judgment was needed in light of the appellate decision, but Farber argued that he was entitled to post-judgment interest running from the entry of the December 2014 Final Judgment. Heartland argued that Farber was only entitled to post-judgment interest from the entry of an amended final judgment after remand.

In February 2018, the trial court ruled that this Court's remand "d[id] not affect or alter the underlying Final Judgment entered by this Court on December 23, 2014." Therefore, the court found that the post-judgment interest would accrue from the date of the December 2014 Final Judgment. Accordingly, the trial court entered an Amended Final Judgment finding that Farber was entitled to collect $888,417.57 from Heartland "with post-judgment interest at the statutory rate of interest running from December 23, 2014, for which sum let execution issue."

II.

A trial court's ruling regarding judgment interest is subject to de novo review. R.J. Reynolds Tobacco Co. v. Evers , 232 So.3d 457, 465 (Fla. 2d DCA 2017). Florida law provides that interest on a money judgment begins to accrue on the date the judgment is obtained. § 55.03(3), Fla. Stat.

III.

Heartland argues that Farber is only entitled to post-judgment interest from the date of the trial court's entry of its Amended Final Judgment. Heartland's argument hinges on its assertion that the order granting Farber's motion for new trial had the effect of vacating the December 2014 Final Judgment and, thus, rendering it a non-final order.

Heartland primarily relies on two cases for the proposition that an order granting new trial renders a final judgment a non-final order. In the first case, the Florida Supreme Court held that the granting of a motion for a new trial "ha[s] the effect of vacating any final judgment theretofore entered and completely revitaliz[es] the entire cause for further proceedings in the form of a new trial." Atl. Coast Line R.R. Co. v. Boone , 85 So.2d 834, 840 (Fla. 1956). In the second case, this Court held that "when a new trial is granted on less than all issues in the case, the order which either expressly or impliedly withdraws from jury consideration on a retrial of the cause a part of the issues is in the nature of a partial summary judgment." Johnson v. City of Pensacola , 164 So.2d 844, 845 (Fla. 1st DCA 1964). Boone does not apply in this case because the trial court in Boone granted a new trial as to the entire verdict. 85 So.2d at 838. As for Johnson , the trial court "specifically vacated and set aside" the jury verdict even though a new trial was only granted on the issue of damages. 164 So.2d at 845.

In this case, the trial court took no comparable action. In its order granting new trial, the court specifically stated that the new trial was solely on the issue of wantonness and punitive damages. Additionally, the order did not vacate or set aside the jury verdict as to compensatory damages. In short, whether a final judgment is rendered a non-final order depends not just on the entry of an order for a new trial, but rather whether the order expressly or implicitly vacates and sets aside the final judgment.

The trial court's order granting a new trial here only addressed the issue of wantonness and punitive damages and left the awarded compensatory damages intact. Furthermore, this Court remanded the case solely "for the reinstatement of the jury's verdict on the issue of wantonness ." Farber , 230 So.3d at 153 (emphasis added). Such a statement necessarily implies that the Final Judgment's award of compensatory damages was not vacated by the granting of the new trial. Accordingly, the December 2014 Final Judgment is a judgment for purposes of section 55.03(3), Florida Statutes (providing for post-judgment interest).

More importantly, both Boone and Johnson dealt with the effect of an order for new trial on a party's right to seek appellate review from a final judgment. On appeal, the final judgments were seen as interlocutory orders due to the entry of an order for a new trial and, as a result, there was no right to seek appellate review. As a result, these cases did not reach the issue in this case: the proper starting point of the administrative calculation of post-judgment interest.

In Haskell v. Forest Land & Timber Co., Inc. , this Court recognized the general rule that interest on a judgment runs from the date that the judgment is entered. 426 So. 2d 1251, 1253 (Fla. 1st DCA 1983). This Court also reiterated that "[t]he general rule regarding the commencement of interest does not apply where a trial court judgment is overturned by an appellate court on grounds that it was improper or excessive." Id. at 1253-54.

The Fourth District addressed this issue in St. Cloud Utilities v. Moore , 355 So.2d 446 (Fla. 4th DCA 1978). In Moore , an earlier appeal resulted in the court "remand[ing] the case for the sole purpose of having the trial judge reapportion the damages which he did by way of an amended final judgment." Id. at 447. The trial court subsequently ruled that "interest on a judgment modified by appellate decision commences from the date of the original jury verdict." Id . Back on appeal, the Fourth District reversed the trial court and held that "the interest should run from the date of the original judgment entered" reasoning that "[n]o further judicial labor was required and the act mandated was purely ministerial." Id .

In other words, if an appellate court leaves an underlying final judgment intact then interest begins to accrue from the date of the final judgment even if the trial court on remand entered an amended final judgment. In this case, the December 2014 Final Judgment was not overturned on appeal for being improper or excessive. Additionally, this Court did not modify the compensatory damages awarded. This Court simply reversed the trial court's granting of a new trial and "affirm[ed] the final judgment without further comment." Farber , 230 So.3d at 148. Accordingly, no further judicial labor was required and the subsequent Amended Final Judgment constitutes a purely ministerial act. Therefore, post-judgment interest began to accrue when the trial court issued its initial Final Judgment.

IV.

In conclusion, Farber obtained a Final Judgment on compensatory damages that was affirmed on appeal where this Court only reversed the order granting a new trial on the discrete issue of wantonness and punitive damages. The trial court's subsequent Amended Final Judgment simply affirmed this Court's mandate and reinstated the jury's original finding as it related to punitive damages. As a result, the trial court correctly concluded that post-judgment interest began to accrue when it issued its December 2014 Final Judgment.

AFFIRMED .

Lewis and Wetherell, JJ., concur.

      Florida law provides that post-judgment interest runs from the date of judgment. § 55.03(3), Fla. Stat.; Amerace Corp. v. Stallings , 823 So.2d 110 (Fla. 2002). Because neither party claimed that Alabama law controls the computation of post-judgment interest, we do not consider the issue.

      See Johnson , 164 So.2d at 847 (dismissing appellee's cross-appeal because the order granting a new trial rendered the final judgment a "partial summary judgment [and] no appeal may be taken from a partial summary judgment entered in a law action"); Boone , 85 So.2d at 839 (noting that "where a new trial has been granted and the entire case is re-opened, there is no order from which an appeal can be taken"). It should be noted that both Boone and Johnson were overruled on this issue. Bowen v. Willard , 340 So.2d 110, 112 (Fla. 1976) (holding that "appeals taken from new trial orders shall be treated as appeals from final judgments to the extent possible, and that the appellate courts have the authority to deal with other appealable issues"). Bowen has been codified in Florida Rule of Appellate Procedure 9.110(h). This holding of Bowen , however, does not affect our analysis in this case.


source: Caselaw Access Project

author: Wetherell, J.

license: Public Domain

text:
    Michael HALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1446
    District Court of Appeal of Florida, First District.
    December 18, 2018
    Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Wetherell, J.

Appellant was convicted of felony child abuse for whipping his 11-year-old son with a belt. On appeal, he argues that (1) the trial court erred in denying his motion for a judgment of acquittal, (2) the trial court committed fundamental error by not instructing the jury on the parental-discipline affirmative defense, and (3) defense counsel's failure to request this instruction was ineffective assistance of counsel on the face of the record. We find no merit in any of these arguments and write only to address the claim of fundamental error in the jury instructions.

The material facts were not in dispute. Appellant and the child's mother got into an argument while driving home from Publix. Appellant's son, who was also in the car, grabbed Appellant's balled-up fist and put his hand on Appellant's shoulder to prevent Appellant from hitting his mother. Upon arrival at the house, Appellant snatched the child out of the car, took him into the house, and gave him "a few licks" with his belt. The belt broke the child's skin causing him to bleed and left marks that were visible several days later.

The trial court gave the jury the standard instruction for child abuse. See Std. Jury Instr. (Crim.) 16.3. However, defense counsel did not request, and the court did not give, the instruction on the parental-discipline affirmative defense, which states: "It is not a crime for a parent of a child to impose reasonable physical discipline on a child for misbehavior under the circumstances even though physical injury resulted from the discipline." Id.; see also Raford v. State , 828 So.2d 1012, 1020 (Fla. 2002) (rejecting argument that child abuse by a parent is not a crime, but explaining that "a parent may assert as an affirmative defense his or her parental right to administer 'reasonable' or 'nonexcessive' corporal punishment").

The jury found Appellant guilty as charged. The trial court adjudicated Appellant guilty and sentenced him as a habitual felony offender to five years in prison followed by five years of probation.

On appeal, Appellant argues that the trial court committed fundamental error by not instructing the jury on the parental-discipline affirmative defense. We disagree.

Where, as here, the trial court fails to instruct the jury on an affirmative defense, fundamental error occurs only when the defendant is deprived of a fair trial. See Martinez v. State , 981 So.2d 449, 455 (Fla. 2008). A defendant is deprived of a fair trial if the omitted instruction "[1] divests the defendant of his or her 'sole, or ... primary, defense strategy' and [2] that defense is supported by evidence adduced at trial that could not be characterized as 'weak.' " McCoy v. State , 56 So.3d 37, 40 (Fla. 1st DCA 2010) (quoting Martinez , 981 So.2d at 455-56 ) (emphasis added).

Here, although Appellant's sole defense was that the child's injuries occurred while Appellant was disciplining him, that defense was extremely weak because there was no evidence that the child committed any misbehavior that would arguably justify discipline. Rather, the undisputed evidence showed that the child was given a whipping for trying to prevent Appellant from hitting his mother in the car. The parental-discipline affirmative defense affords no protection to Appellant under these circumstances. See Julius v. State , 953 So.2d 33, 35 (Fla. 2d DCA 2007) (affirming mother's child abuse conviction where evidence showed that she beat her children as an outlet for her own frustration not as a legitimate form of discipline to punish some specific misbehavior).

For these reasons, we affirm Appellant's conviction and sentence.

AFFIRMED.

Wolf and Lewis, JJ., concur.


author: LOGUE, J.

text:
    Manuel CHIONG-CORTES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1794
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018
    Carlos J. Martinez, Miami, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Tallahassee, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

Manuel Chiong-Cortes appeals his conviction of burglary of an unoccupied conveyance and petit theft as well as his sentence as a habitual offender to eight years in prison followed by two years of probation. We affirm the conviction without further comment, but reverse the sentence and remand for resentencing.

At the end of the sentencing hearing, the trial court stated: "I'll tell you, Mr. Chiong-Cortes, I've heard a lot of excuses from you and I have seen the pattern of criminal conduct for close to 30 years. And the one thing I haven't heard is any remorse, just excuses." The trial court later said: "And that is really the biggest concern here."

These comments indicating the trial judge considered Appellant's lack of remorse in fashioning the sentence constitute reversible error. As we have previously explained:

Although a defendant's expression of remorse and acceptance of responsibility are appropriate factors for the court to consider in mitigation of a sentence, a lack of remorse, the failure to accept responsibility, or the exercise of one's right to remain silent at sentencing may not be considered by the trial court in fashioning the appropriate sentence.

Green v. State, 84 So.3d 1169, 1171 (Fla. 3d DCA 2012). See Mentor v. State, 44 So.3d 195, 196 (Fla. 3d DCA 2010) ("A review of the sentencing hearing indicates that the trial judge impermissibly considered Mentor's protestation of innocence and lack of remorse."); A.S. v. State, 667 So.2d 994, 995-96 (Fla. 3d DCA 1996) (reversing disposition in juvenile case where trial court's comments indicated reliance on child's protestation of innocence).

Here, even though Chiong-Cortes made an extended presentation to request mitigation, the trial court did not expressly limit his comments regarding Appellant's lack of remorse to its rejection of the request for mitigation. In light of the trial court's own statements, we are compelled to conclude that Appellant's lack of remorse was one of the factors considered in entering the sentence. See Soto v. State, 874 So.2d 1215, 1217 (Fla. 3d DCA 2004).

Accordingly, we reverse the sentence and remand for a new sentencing hearing. As we have in the past, in an abundance of caution, we direct the new sentencing hearing be conducted by a different circuit court judge. T.R. v. State, 26 So.3d 80, 83 (Fla. 3d DCA 2010). The new judge has the discretion to enter any legal sentence. See Price v. State, 838 So.2d 587, 588-89 (Fla. 3d DCA 2003) ; State v. Swider, 799 So.2d 388, 390-91 (Fla. 4th DCA 2001) ; Palmer v. State, 182 So.2d 625, 626 (Fla. 4th DCA 1966).

Conviction affirmed; sentence reversed; case remanded.


text:
    BANK OF NEW YORK, etc., Appellant, v. Peter W. OBERMEYER, et al., Appellees.
    No. 3D18-700
    District Court of Appeal of Florida, Third District.
    Opinion filed December 26, 2018
    DeLuca Law Group, PLLC, and Shawn Taylor (Fort Lauderdale), for appellant.
    Gregg Horowitz (Sarasota), for appellees.
    Before EMAS, LOGUE, and SCALES, JJ.
   LOGUE, J.

In this foreclosure case, Bank of New York appeals the trial court's order denying its verified Motion to Vacate Order of Sanctions filed pursuant to Florida Rule of Civil Procedure 1.540. We affirm.

Trial was set in this case on three different dates, April 28, 2014, July 10, 2014, and December 12, 2014. Each time, the borrowers' counsel drove from his office in Sarasota to the Key West courthouse in Monroe County. Each time, the Bank inexplicably failed to appear. The case was dismissed without prejudice on December 16, 2014, and that order was not appealed.

Meanwhile, the borrowers moved for sanctions in the form of costs and attorney's fees including the time expended by their counsel in driving from Sarasota to Key West for the trials that the Bank failed to attend. The Bank also failed to attend the hearing on that motion. Not surprisingly, the motion was granted. The Bank subsequently moved under rule 1.540(b) to vacate the sanctions order and costs, which the trial court denied. The Bank timely appeals.

Having carefully reviewed the arguments of the parties, including the arguments in the Bank's late-filed initial brief, we find nothing improper or illegal in the trial court's decision to require the payment of the borrower's counsel travel costs in addition to the usual costs and fees in these unusual circumstances. See Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co., 132 So.3d 858, 862 (Fla. 4th DCA 2014) (quoting Eve's Garden, Inc. v. Upshaw & Upshaw, Inc., 801 So.2d 976, 979 (Fla. 2d DCA 2001) ("Although travel time is generally not compensable, travel time may be awarded as part of a sanction under certain circumstances, such as where a party was aware that his actions could result in unnecessary litigation.") ); see, e.g., Consultech of Jacksonville, Inc. v. Dep't of Health, 876 So.2d 731, 736 (Fla. 1st DCA 2004) (finding no abuse of discretion in an attorney's fees award of travel time as a sanction for failure to attend a deposition).

Affirmed.


author: Per Curiam.

text:
    Tommy Lee GAINES, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    No. 1D17-2197
    District Court of Appeal of Florida, First District.
    December 21, 2018
   Per Curiam.

Petitioner's Petition for Writ of Certiorari is DENIED on the merits.

B.L. Thomas, C.J., and Wolf and Ray, JJ., concur.


author: LAGOA, J.

text:
    Adonis LOSADA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1758
    District Court of Appeal of Florida, Third District.
    Opinion filed December 26, 2018.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before LAGOA, LOGUE, and SCALES, JJ.
   LAGOA, J.

Adonis Losada ("Losada") appeals his final judgment of conviction and sentence, arguing that a new trial is required as the trial court erred on two separate grounds. Specifically, Losada contends that the trial court erred by (1) failing to make an independent determination of Losada's competency to stand trial at his competency hearing and (2) failing to apply the correct legal standard in determining that Losada was not competent to waive his Sixth Amendment right to counsel. For the reasons discussed below, we agree on both grounds and reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 28, 2009, Detective Charles Ramos ("Ramos"), a Special Investigator for the Palm Beach State Attorney's Office, was working in an undercover capacity in an online chatroom primarily used by individuals seeking to have sexual relations with young children when Losada sent an image of child pornography from his computer to Ramos in Palm Beach County. On September 14, 2009, Losada again sent numerous images depicting child pornography to Ramos. After tracking the IP address of Losada's computer, the Miami Beach Police Department executed a search warrant on Losada's Miami Beach apartment and seized his computer. Additional images depicting child pornography were found on Losada's computer.

Losada was charged in Miami-Dade County with numerous counts of possession and transmission of materials depicting sexual performance by a child in violation of sections 827.071(5) and 775.0847(2) - (3), Florida Statutes (2009). Losada was also charged in Palm Beach County in case number 2009CF11930AXX (the "Palm Beach action"), with charges arising from the same undercover investigation. In October 2012, during the proceedings of the Palm Beach action, the Palm Beach circuit court found Losada not competent to proceed to trial based on a report written by Dr. Jeff Dalia ("Dr. Dalia"). On October 22, 2013, the trial court in the instant case relied upon Dr. Dalia's report to adjudicate Losada incompetent to stand trial below.

After several experts appointed by the Palm Beach circuit court found Losada was restored to competency, Losada was returned to the Palm Beach County jail. After the Palm Beach circuit court concluded that Losada was restored to competency, trial in the Palm Beach action commenced in January 2014. At the conclusion of that trial, Losada was found guilty and received a sentence of ten years. See State v. Losada, 175 So.3d 911, 912, 915 (Fla. 4th DCA 2015) (affirming Losada's conviction and sentence).

Losada was subsequently transferred to Miami-Dade County, where the trial court ordered the appointment of two psychologists-Dr. Laura Artiles ("Dr. Artiles") and Dr. Merry Haber ("Dr. Haber")-to evaluate Losada's competency to proceed to trial and to waive his right to counsel in the instant case. Dr. Artiles and Dr. Haber opined in separate, written reports dated October 31, 2013, and November 14, 2013, respectively, that Losada was competent to proceed to trial. Neither psychologist made any finding that Losada suffered from "any cognitive or mental impairment" or "major mental illness."

At a December 3, 2013, pretrial status hearing, defense counsel for Losada stated that: "[Losada has] been evaluated by two different doctors. At this time both finding that he is competent. I will stipulate to the reports." Based upon the defense counsel's stipulation to the expert reports, the trial court found Losada competent to proceed to trial. The trial court neither issued a written order on its competency determination nor indicated that it had reviewed the reports.

At the same hearing, Losada requested to waive his counsel and represent himself at trial. On December 5, 2013, the trial court conducted a Faretta hearing, where Losada, a non-native English speaker, was assisted by the court interpreter. At the beginning of the Faretta hearing, Losada stated he was "making a waiver of [his] rights to standby counsel." The trial court then had the following exchange with Losada during the Faretta colloquy:

THE COURT: ... Mr. Losada, is it your desire to represent yourself at trial?
THE DEFANDANT: I invoke my right to be represented without anybody speaking for me in this courtroom.
THE COURT: So do you intend to represent yourself?
THE DEFENDANT: I do not know what that is called, your Honor. I simply, if you need to talk to me it's going to be me. All decisions and actions to be taken will be taken by me, under my own responsibility.
THE COURT: Here is my question, are you going to hire another lawyer?
THE DEFENDANT: I am waiving my right to standby counsel.
THE COURT: I didn't ask you that. I asked you if you're going to hire another lawyer. I'm asking for that now.
THE DEFENDANT: I can not hire any other lawyer because I am in jail.
THE COURT: Thank you. Thank you.
THE DEFENDANT: You're not letting me answer, your Honor.
THE COURT: Thank you. Would you like me to appoint another lawyer for you?
THE DEFENDANT: No.
THE COURT: So you want to represent yourself?
THE DEFENDANT: I do not know what's that called, your Honor. I'll make my decisions by myself. Any decision will be my decision. Any action will be my own action and I repeat that I want to exercise my right to remain silent.

The trial court then asked Losada if he understood the nature of the crimes of which he was charged and their potential sentences, explained that counsel would be appointed if Losada could not afford a lawyer, and warned of the risks of self-representation. The trial court reserved ruling on Losada's request.

On March 5, 2014, the trial court denied in a written order Losada's request to represent himself, finding that: (1) Losada suffered from "severe mental illness"; (2) Losada's waiver was not unequivocal due to "wildly bizarre" "answers to straightforward questions" during the hearing; and (3) the Sixth Amendment does not guarantee self-representation to a defendant who "refuses to defend himself." In its written order, the trial court specifically found that Losada's "bizarre or self-destructive behavior," e.g., refusing to eat, to communicate with staff, or to take his medications, and being placed on suicide watch, throughout the proceedings of the Palm Beach trial was evidence of severe mental illness. The trial court also expressed concerns that failing to appoint counsel to Losada would not "preserve the orderly and dignified nature of the proceedings," rendering them "a 'trial' in name only." The trial court subsequently appointed the Public Defender's Office to represent Losada.

In April 2016, the case proceeded to trial. The jury found Losada guilty on fifty-one of the counts, and the trial court sentenced Losada to a term of imprisonment of three years for each count to run consecutive with the conviction in the Palm Beach trial for a total of 153 years in state prison. This timely appeal ensued.

II. STANDARD OF REVIEW

We review a trial court's determination of whether a defendant is competent to stand trial for an abuse of discretion. McCray v. State, 71 So.3d 848, 862 (Fla. 2011). "A trial court's decision regarding a determination of competency is subject to review for abuse of discretion, and the trial court's resolution of factual disputes will be upheld if supported by competent, substantial evidence." Larkin v. State, 147 So.3d 452, 464 (Fla. 2014). An abuse of discretion occurs when "the trial court applie[s] the incorrect legal standard" in assessing whether a defendant is not competent to waive his right to counsel. Loor v. State, 240 So.3d 136, 142 (Fla. 3d DCA 2018) ; see also Williams v. State, 163 So.3d 694, 697 (Fla. 4th DCA 2015).

III. ANALYSIS

On appeal, Losada argues that the trial court abused its discretion on two grounds: (1) by not making an independent determination of his competency to stand trial; and (2) by denying his request to waive counsel and exercise his right to self-representation. We agree on both grounds.

A. Losada's Competency to Stand Trial

The U.S. Supreme Court has long "recognized that 'the failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.' " Dougherty v. State, 149 So.3d 672, 676 (Fla. 2014) (quoting Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ). Florida Rule of Criminal Procedure 3.210(a) provides that "[a] person accused of an offense ... who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent." If there is "reasonable ground to believe that the defendant is not mentally competent to proceed," the trial court, on either its own motion or on motion of parties' counsel, shall set "a hearing to determine the defendant's mental condition" and "may order the defendant to be examined by no more than 3 experts." Fla. R. Crim. P. 3.210(b). In evaluating the defendant's competence to stand trial, the appointed experts shall consider "whether the defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the defendant has a rational, as well as factual, understanding of the pending proceedings." Fla. R. Crim. P. 3.211(a)(1).

After the competency hearing, the trial court must make its own "independent legal determination regarding whether the defendant is competent, after considering the expert testimony or reports and other relevant factors." Shakes v. State, 185 So.3d 679, 682 (Fla. 2d DCA 2016) ; accord Fla. R. Crim. P. 3.212(b) ("The court shall first consider the issue of the defendant's competence to proceed. If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed."). The experts' written reports are only advisory to the court, as the trial court retains ultimate responsibility for determining the defendant's competence. See Dougherty, 149 So.3d at 678 (noting that the purpose of expert reports is " 'to aid and assist the Court, so as to enable the Court wisely to determine' " a defendant's competence (quoting Brown v. State, 245 So.2d 68, 71 (Fla. 1971), vacated in part on other grounds, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972) ) ). Indeed, "[e]ven in a situation where all the experts opine that a defendant is competent, the trial court could presumably disagree based on other evidence such as the defendant's courtroom behavior or attorney representations." Id.

Conversely, a trial court cannot adjudicate a defendant competent solely based on the parties' stipulation, as it "improperly absolves the trial court from making an independent determination" of competency. Id.; see also Rumph v. State, 217 So.3d 1092, 1094 (Fla. 5th DCA 2017) ("The parties may stipulate to deciding competency based on the written expert reports rather than live expert testimony, but the defendant and the other parties may not stipulate to competency itself, ... as the trial court must make an independent determination on the issue."). Indeed, Florida appellate courts consistently reverse competency findings when it is not clear from the record whether the trial court read the expert reports before accepting a stipulation of a defendant's competency based on those reports. See, e.g., Rumph, 217 So.3d at 1095-96 ("One requirement of a proper [competency] hearing is that the trial court actually reviews the expert reports and other evidence."); Presley v. State, 199 So.3d 1014, 1018-19 (Fla. 4th DCA 2016) ("In fact, it is unclear from the record whether the trial court actually reviewed the expert's report declaring appellant competent to proceed."); Zern v. State, 191 So.3d 962, 965 (Fla. 1st DCA 2016) ("The record in this case establishes that the trial court relied on the stipulation of defense counsel and the preponderance of the experts' ultimate opinions to make its competency determination, without having read all the evaluations. It does not show an independent finding."); Shakes, 185 So.3d at 681 ("[T]he trial court did not ... make an independent determination of competency ... [and] gave no indication that it had reviewed the report submitted by the psychologist.").

A review of the record establishes that the trial court did not make an independent legal determination as to whether Losada was competent to stand trial. Rather, the trial court relied on defense counsel's stipulation to the expert reports of Dr. Artiles and Dr. Haber finding Losada competent without giving any indication that it had reviewed the expert reports. Moreover, no written order finding competency was ever issued. See Shakes, 185 So.3d at 682 ("In addition, the trial court never entered a written finding of competency, further indicating that the trial court did not make an independent competency determination."). Because the issue of a defendant's competency "is a legal question and not a medical question," we find that the trial court abused its discretion by not making its own legal determination that Losada was competent to proceed to trial. See Dougherty, 149 So.3d at 678.

Generally, the remedy for a trial court's failure to conduct a proper competency hearing is for the defendant to receive a new trial, if deemed competent to proceed on remand. Id. at 678-79. The State, however, contends that this Court should remand only for the trial court to conduct a nunc pro tunc competency hearing. It is true that there are situations where a new trial is unnecessary if the trial court can make a retrospective competency determination on remand, based on evidence available at the time of the trial. See id. at 679. Indeed, "a nunc pro tunc competency evaluation could be done where 'there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing.' " Id. (quoting Mason v. State, 489 So.2d 734, 737 (Fla. 1986) ) ). The trial court's focus, therefore, "must be on the defendant's mental state at the time of the proceeding in question, not at some time in the past, and stale mental health reports will not support an adjudication of incompetency." In re Commitment of Reilly, 970 So.2d 453, 455 (Fla. 2d DCA 2007). As such, the "United States Supreme Court has cautioned that determining competency to stand trial retrospectively is inherently difficult, even under the most favorable circumstances." Dougherty, 149 So.3d at 679 ; see also Drope, 420 U.S. at 183, 95 S.Ct. 896.

We find that the facts of this case will not support a retroactive determination of Losada's competency to proceed to trial. Significantly, the competency hearing was not contemporaneous with the trial. The trial court made its competency ruling in December 2013, but Losada did not go to trial until April 2016. Almost five years have passed since the competency hearing.

Moreover, as the Florida Supreme Court has concluded, " '[t]he chances of conducting a meaningful retrospective competency hearing decrease when experts must rely on a cold record.' " Dougherty, 149 So.3d at 679 (quoting Jones v. State, 740 So.2d 520, 523 (Fla. 1999) ). The only evidence available to the trial court and any newly appointed experts in making a nunc pro tunc competency evaluation would be the 2013 reports of Dr. Artiles and Dr. Haber. However, neither of these doctors examined or observed Losada "contemporaneous with the trial," as the trial occurred in April 2016. As such, any retrospective competency hearing based on the 2013 reports of Dr. Artiles and Dr. Haber would not satisfy the Florida Supreme Court's requirement.

Additionally, in its written order denying Losada's request to waive counsel, the trial court repeatedly emphasized Losada's "bizarre or self-destructive behavior" while he was adjudicated incompetent by the Palm Beach circuit court, noting that Dr. Dalia found Losada suffered from "mental illness, specifically psychosis NOS, catatonia." However, a review of the reports in the record appears to show Dr. Artiles and Dr. Haber were unaware of Losada's medical history or behavioral difficulties. Specifically, Dr. Artiles noted that Losada "denie[d] any history of mental illness or psychiatric treatment" while Dr. Haber noted that "Losada denied any psychiatric history; any history of psychiatric evaluation and/or any taking of psychotropic medication"-denials that were blatantly untrue.

The State contends that two recent Florida cases where the trial court remanded for a limited nunc pro tunc competency hearing or order apply to the instant case. We find these cases, however, distinguishable. In Sallee v. State, 244 So.3d 1143 (Fla. 2d DCA 2018), the Second District Court of Appeal remanded for a nunc pro tunc order where "the record reflect[ed] that defense counsel explained the contents of the experts' reports," which had found the defendant competent, "defense counsel left it to the trial court to assess [the defendant's] competency based upon the reports," and the defendant was present in the courtroom. Id. at 1146. In the instant case, the trial court never received any explanation of the reports beyond defense counsel stating that they found Losada competent, Losada was not present at the competency hearing, and the competency determination occurred more than two years before trial.

In Saunders v. State, 242 So.3d 1149 (Fla. 4th DCA 2018), the trial court failed to hold a competency hearing or make a competency determination at all. Id. at 1150. The Fourth District Court of Appeal remanded for a nunc pro tunc competency determination if possible , i.e., " 'if "a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial" are available.' " Id. at 1150-51 (quoting Silver v. State, 193 So.3d 991, 993-94 (Fla. 4th DCA 2016) ). The court, however, noted that "if the [trial] court finds ... that an evaluation of [the defendant's] competency at the time of trial cannot proceed in a way that ensures [the defendant's] due process rights, then the court should adjudicate h[is] current competency and, if [he] is competent, conduct a new trial on all counts." Id. at 1151 (quoting Baker v. State, 221 So.3d 637, 641-42 (Fla. 4th DCA 2017) ). Given the facts in the instant case, we find that a nunc pro tunc competency determination would not ensure that Losada's constitutional due process rights are met, and a new trial is therefore warranted if Losada is deemed competent to proceed on remand See Dougherty, 149 So.3d at 678-79.

B. Losada's Request to Waive Counsel

Because we find that a new trial is warranted as a result of the trial court's failure to make an independent competency determination, we address the trial court's denial of Losada's request to waive counsel in the event Losada renews his request to waive his right to counsel. The Supreme Court has "held that the Sixth Amendment guarantees a criminal defendant the right to proceed without counsel when he 'voluntarily and intelligently elects to do so.' " Loor, 240 So.3d at 139 (quoting Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ). "If a defendant prior to trial makes an unequivocal demand to represent himself, the trial court must conduct a Faretta inquiry," i.e., "whether the defendant knowingly and intelligently waive[d] his constitutional right." Rodriguez v. State, 982 So.2d 1272, 1274 (Fla. 3d DCA 2008). "When conducting a Faretta inquiry, the 'trial court should inquire into, among other things: defendant's age, mental status, and lack of knowledge and experience in criminal proceedings,' ... the defendant must be made aware of the dangers and disadvantages of self-representation[,] and the trial court must determine that the defendant knowingly and intelligently waived his or her constitutional right." Id. (quoting Johnston v. State, 497 So.2d 863, 868 (Fla. 1986) ).

The Supreme Court subsequently qualified the Sixth Amendment right to self-representation recognized by Faretta in Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), holding that states may "insist upon representation by counsel for those competent enough to stand trial ... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Id. at 175, 178, 128 S.Ct. 2379 (emphasis added). In light of Edwards, the Florida Supreme Court adopted this limitation to the right to waive counsel in cases where a defendant suffers from severe mental illness. See Fla. R. Crim. P. 3.111(d)(3) ; see also In re Amendments to Fla. Rule of Criminal Procedure 3.111, 17 So.3d 272, 272 (Fla. 2009).

As we discussed in Loor, "courts have narrowly interpreted what qualifies as severe mental illness." 240 So.3d at 140 ; e.g., Larkin, 147 So.3d at 465-66. As a result, Florida courts have consistently reversed lower court efforts to bar self-representation without a finding of severe mental illness. See, e.g., Williams v. State, 163 So.3d 694, 698 (Fla. 4th DCA 2015) ("Nor did the court find that Defendant suffered from a 'severe mental illness' ... so as to fall within the exception ... in Edwards."); Neal v. State, 132 So.3d 949, 951 (Fla. 1st DCA 2014) ("Nor did the trial court find that Mr. Neal suffered from 'severe mental illness' ... so as to fall within the exception to the general rule explicated in Edwards."); Thompson v. State, 37 So.3d 939, 940 (Fla. 2d DCA 2010) ("The record in this case contains nothing to suggest that Thompson fell within this exception to the general rule.").

Here, the record shows that the trial court applied the incorrect legal standard in denying Losada's request to waive counsel. First, the trial court did not rely on competent, substantial evidence to find that Losada suffered from severe mental illness. Neither Dr. Artiles nor Dr. Haber found evidence that Losada suffered from any mental illness at all, let alone severe mental illness. While the trial court found Losada's "bizarre or self-destructive behavior" during the Palm Beach action-refusing to eat, communicate, or take medication, and at one time, being placed on suicide watch-as evidence of severe mental illness, these actions alone do not rise to the level of severe mental illness. See Loor, 240 So.3d at 140 (discussing cases where a defendant's actions or mental condition did not rise to the level of severe mental illness); see also United States v. Barajas-Cuevas, 492 F. App'x 745, 748 (9th Cir. 2012) (determining that the defendant's "perplexing" behavior and inability to present legal arguments did not constitute severe mental illness). The trial court also found significant Losada's apparent lack of defense in his self-representation at the trial of the Palm Beach action. This finding, however, is irrelevant to whether Losada suffered from severe mental illness. Indeed, a trial court may not inquire "into whether the defendant 'could provide himself with a substantively qualitative defense,' for it is within the defendant's rights, if he or she so chooses, to sit mute and mount no defense at all." State v. Bowen, 698 So.2d 248, 251 (Fla. 1997) (quoting Bowen v. State, 677 So. 2d 863, 864 (Fla. 2d DCA 1996) ); accord Hooker v. State, 152 So.3d 799, 802 (Fla. 4th DCA 2014) ("The likelihood that a defendant would incompetently represent himself is not a valid reason to deny his unequivocal request for self-representation."); see also Muehleman v. State, 3 So.3d 1149, 1160 (Fla. 2009).

The trial court further erred in finding that Losada's waiver was not unequivocal. Losada is neither an attorney nor possesses any legal education. He is not a native English speaker and had the assistance of a court interpreter at his Faretta hearing. Losada referring to the public defender as "standby counsel," and Losada not knowing the proper legal term for self-representation does not make his waiver equivocal. At the hearing, Losada made the following statements: (1) "I'm making a waiver of my rights to standby counsel"; (2) "I make that decision voluntarily, intelligently"; (3) "I invoke my right to be represented without anybody speaking for me in this courtroom"; (4) "All decisions and actions to be taken will be taken by me, under my own responsibility"; (5) "I will waive the standby counsel"; (6) "I will take actions and decisions on my behalf"; (7) "I am not going to be represented by an attorney"; and (8) "I rather not have an attorney." Thus, we find that Losada knowingly and intelligently made an unequivocal waiver of his right to counsel.

Finally, as we noted in Loor, the trial court's concern that Losada's self-representation might turn the trial into a "street festival" and disturb "the orderly and dignified nature of the proceedings" is not a valid reason for the denial of his right to self-representation. See 240 So.3d at 142. In addition, if Losada were to become disruptive in the courtroom, "the trial court has the power to terminate a defendant's self-representation if he continues to abuse the court system." McCray, 71 So.3d at 868.

We, therefore, find that by failing to apply the legal standard set forth in Edwards and rule 3.111(d)(3), the trial court abused its discretion in denying Losada's request to waive counsel and to represent himself at trial.

IV. CONCLUSION

Accordingly, we reverse Losada's conviction and sentence and remand for a new trial. On remand, the trial court shall make an independent legal determination on whether Losada is competent to proceed to trial. If the trial court determines Losada is competent to proceed, the trial court shall then conduct a proper Faretta inquiry if Losada renews his request to waive his right to counsel.

Reversed and remanded.

      Losada was initially charged with sixteen counts of possession and transmission of said materials, but the Assistant State Attorney amended the information on March 23, 2012, to include additional charges for a total of fifty-two counts.

      Nearly two years after he was charged in Palm Beach County, Losada moved to transfer venue to Miami-Dade County to consolidate his charges. Although the Palm Beach circuit court granted Losada's motion, this Court granted the State's petition for writ of certiorari to reinstate the information filed in Palm Beach County. See State v. Losada, 89 So.3d 1104, 1107 (Fla. 3d DCA 2012).

      The trial court entered this order nunc pro tunc to December 12, 2012.

      See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      The State nolle prossed Count 31 in the amended information.

      The conviction and sentence in the Palm Beach trial became final in 2015. See State v. Losada, 175 So.3d 911 (Fla. 4th DCA 2015).


text:
    Willie Allen LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3290
    District Court of Appeal of Florida, First District.
    December 27, 2018 Rehearing Denied January 17, 2019
    Andy Thomas, Public Defender, and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

A jury convicted Willie Allen Lynch of selling crack, and the court sentenced him to eight years in prison. Lynch now appeals, raising a host of issues. We affirm.

I.

In late 2015, undercover officers bought crack cocaine from someone who called himself "Midnight." The officers later identified Lynch as the seller, and the State brought charges. At trial, Lynch's sole defense was misidentification-that he was not the man known as Midnight. To prove otherwise, the State introduced testimony of the two undercover officers, both of whom positively identified Lynch as the man who sold them crack.

The officers routinely drove into high-crime areas, posing as drug buyers looking for drug sellers. As they drove one night, a man abruptly flagged them down, identified himself as Midnight, and asked if they "were good." One undercover officer responded that he needed "$50 hard," meaning $50 worth of crack. After Midnight retrieved crack from a nearby building, the officer gave Midnight some money, and Midnight gave the officer crack.

Typically, the officers captured transactions like these using a special recording system. But because Midnight had approached them so suddenly, the officers were unable to activate the system. One officer, though, used his cell phone to surreptitiously snap photos of Midnight leaning into the car. Then, after completing the transaction-and to avoid revealing themselves as undercover operatives-the officers left without arresting Midnight.

Sometime later, the officers sent the cell phone photos, along with the name Midnight, to a crime analyst. In response, that analyst provided the officers Lynch's name and photo. The analyst told the officers Lynch was a possible match to the man in the cell phone photos, and the officers promptly concluded that Lynch and Midnight were indeed one and the same.

At a pre-trial deposition, the crime analyst testified about the process that led her to make the match. She said she was emailed a photograph (one from the cell phone), the street address where the sale occurred, and the name "Midnight." Turning to law-enforcement databases, she looked up those who had been previously arrested at the address. When that yielded nothing, she searched for those with a nickname "Midnight." She found several people with that alias, but she found none who looked like the man the officers photographed. She then used a facial-recognition program that compared the photo officers took against photos in law-enforcement databases. She described the facial-recognition search process this way:

I took the image [of Midnight], uploaded into the computer program. There are certain selections. You can let it be an open ended search. In this case I know the race and I know the gender, this case being a black male, and I also wanted to only consider Duval County booking photos....
So those selections were chosen in this case with a photo and then just hit search and it gives you a photo-(unintelligible)-almost like a photo line-up.

She went on to say that "the analyst makes a judgment as to whether or not this is the individual and sends that information back to the detective that requested it." She also said the software would assign a number of stars indicating the likelihood of a match, but she did not know how many stars were possible or how the program worked. She did remember though that Lynch's photograph had only one star next to it, but it was the highest ranked match. After identifying Lynch as a potential match, she forwarded his information-along with his entire rap sheet-to the officers. The officers then positively identified him as the man they knew as Midnight, the man who sold them the crack.

II.

The case went to trial, and the undercover officers testified, but the crime analyst did not. Shortly before trial, Lynch (then proceeding pro se) moved for a continuance, arguing he was not prepared to go to trial because he had only recently been allowed to represent himself. The court denied the request. Lynch moved to incur costs for a private investigator, which the court granted. Lynch also moved to suppress evidence of the officers' earlier identification, as well as to preclude any in-court identification. The court agreed to hear that motion during trial and later denied it. Following jury selection, part of which featured Lynch in jail attire and shackles, the court heard Lynch's pro se motion seeking to compel the State to produce the photographs of the other "Midnights" contained in the database, as well as the other photographs the facial-recognition program returned. The court denied the request, ultimately concluding the photos were not relevant. Finally, after jury selection but before the trial began, the trial court revoked Lynch's self-representation, reappointing the public defender who conducted the trial.

III.

A.

Lynch's first argument on appeal is that he should have had access to the other photos the facial-recognition system returned as possible matches, the ones the analyst deemed nonmatches and did not forward to the detectives. Lynch contends that those other photos would have cast doubt on the State's case and that by not providing those photos, the State violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We reject this argument.

To prevail under Brady , Lynch had to show "that there is a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Strickler v. Greene , 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (marks omitted). He has not made that showing here. First, because he cannot show that the other photos the database returned resembled him, he cannot show that they would have supported his argument that someone in one of those photos was the culprit. Second, his attorney stated on the record that she did not want to call the analyst who evaluated the photos because the analyst's testimony that Lynch was the man in the officers' photos would only corroborate the officers' testimony. And third, the jury convicted only after comparing the photo the officers took to Lynch himself and to confirmed photos of Lynch. Under these circumstances, we cannot conclude that Lynch met his burden to demonstrate prejudice under Brady .

B.

Lynch also argues that the trial court should have suppressed the officers' in-court and out-of-court identifications. We review only for an abuse of discretion, Jenkins v. State , 96 So.3d 1110, 1112 (Fla. 1st DCA 2012) ; Thomas v. State , 748 So.2d 970, 981 (Fla. 1999), and we reject Lynch's argument. Use of an identification obtained through unnecessarily suggestive procedures violates a defendant's due process rights. Perry v. New Hampshire , 565 U.S. 228, 232, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). But a suggestive pre-trial identification is admissible if "despite its suggestive aspects, the out-of-court identification possesses certain features of reliability." Grant v. State , 390 So.2d 341, 343 (Fla. 1980) (citing Manson v. Brathwaite , 432 U.S. 98, 110, 97 S.Ct. 2243, 53 L.Ed.2d 140, (1977) ). The admissibility of an out-of-court identification is controlled by a two-part test that requires the court to determine "(1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification; and (2) if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification." Id. For in-court identifications, the analysis is slightly different, but the focus remains on the totality of the circumstances. Edwards v. State , 538 So.2d 440, 443 n.6 (Fla. 1989). "An in-court identification may not be admitted unless it is found to be reliable and based solely upon the witness' independent recollection of the offender at the time of the crime, uninfluenced by any intervening illegal confrontation." Hicks v. State , 189 So.3d 173, 175 (Fla. 4th DCA 2016) (marks omitted) (citing Fitzpatrick v. State , 900 So.2d 495, 519 (Fla. 2005) ).

Here, even assuming there was an unnecessarily suggestive procedure, we are convinced-considering the totality of the circumstances-that there was no substantial likelihood of irreparable misidentification. In reaching this conclusion, we have considered the five " Biggers factors":

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Grant , 390 So.2d at 343 (quoting Neil v. Biggers , 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ). Here, detectives viewed the suspect for only a few minutes, but they were face-to-face with him for much of that time. Cf. Perez v. State , 648 So.2d 715, 719 (Fla. 1995) (identification was reliable where witness saw suspect for one minute from a distance of eight to ten feet). And the facts suggest the detectives were attentive during their interaction, even snapping photos. One of the officers testified that he was certain that Lynch was the suspect, and the other testified to having seen Lynch in the area before the offense. Only about eight days passed from the drug purchase to the time officers identified Lynch as the culprit.

We also find this case factually similar to Manson v. Brathwaite , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In that case, an undercover officer purchased heroin from someone at a suspected drug house. Id. at 98-101, 97 S.Ct. 2243. The officer viewed the suspect for two or three minutes from a couple feet away. Id. After the exchange, the officer drove to police headquarters and gave a description of the drug seller. Id. Another officer then produced a photo of a person he believed matched the description and left it with the first officer to review. Id. Two days later, the first officer viewed the photo and positively identified the suspect. Id. The Supreme Court determined that the procedure was unduly suggestive and proceeded to weigh the five Biggers factors. Id. Ultimately, the Court determined the officer's identification was reliable considering the circumstances and noted that "[j]uries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature." Id. at 117, 97 S.Ct. 2243. The same is true here. We find no abuse of discretion in the court's admission of the in-court and out-of-court identifications.

C.

Lynch next argues that the trial court was wrong to revoke his right to self-representation, an issue we review for an abuse of discretion. Kearse v. State , 605 So.2d 534, 537 (Fla. 1st DCA 1992). Criminal defendants have a Sixth Amendment right to self-representation, Indiana v. Edwards , 554 U.S. 164, 170-71, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), but the right is not absolute and certainly "is not a license to abuse the dignity of the court or to frustrate orderly proceedings." Brown v. State , 45 So.3d 110, 115 (Fla. 1st DCA 2010). In this case, the court allowed Lynch to represent himself for a portion of the proceedings, but after concluding Lynch could not behave properly, the court revoked the self-representation and appointed counsel. The court specifically found that Lynch was "unwilling to or incapable of abiding by the rules of the court and procedure, and therefore has shown [ ] that he is not competent to represent himself." That conclusion was supported by the record, which showed Lynch continually interrupted the judge, made outbursts, and even had to be removed from the courtroom for a short time. (The court also heard from Lynch's sister, who told the court that she did not think Lynch was capable of representing himself adequately.) Considering all relevant circumstances, we find no abuse of discretion.

D.

Finally, Lynch argues that the cumulative effect of several errors deprived him of his right to a fair trial. He cites a reference in the State's opening argument to the officers' operating in high-crime areas and the officers' later testimony to the same point. We agree with the State that these comments and testimony-individually or combined with everything else-do not warrant a new trial. Similarly, we conclude that the officer's testimony that Lynch's photo was in a "known database"-alone or combined with the other testimony-did not deprive Lynch of a fair trial.

As part of his cumulative-error argument, Lynch also notes that he appeared in jail clothes and shackles during part of jury selection. Lynch conducted the jury instruction himself, proceeding pro se at the time. To avoid unfair prejudice and to protect the presumption of innocence, criminal defendants have a general right to appear unshackled and in non-prison clothes whenever the jury is present. See Bryant v. State , 785 So.2d 422, 428 (Fla. 2001) ; Heiney v. State , 447 So.2d 210, 214 (Fla. 1984). But a defendant's appearance in shackles or prison clothes does not automatically warrant a new trial. Here, Lynch asked the trial court in the middle of jury selection whether the court could remove the shackles. The court responded that "the sheriff's office controls the security," and Lynch made no further inquiry about the shackles. As to the clothes, Lynch asked after a lunch break whether he could change clothes. The court noted it was the "first time [it] heard from [Lynch] that [he] would like to be in some other clothes," and the court allowed Lynch to change.

We conclude that Lynch's limited appearance in shackles and prison garb at jury selection does not warrant a new trial. Lynch did not ask to strike the jury panel that saw him, and he accepted the jury as selected. When he raised the shackle issue, he made no further inquiry after the court apparently deferred to the sheriff's office. Counsel in this case acquiesced to proceeding without further inquiry. See Finney v. State , 660 So.2d 674, 683 (Fla. 1995) (noting that where "[n]o objection was made to the court's decision to defer to the sheriff on the matter," the issue was not preserved for appeal); Eberhardt v. State , 550 So.2d 102, 104 (Fla. 1st DCA 1989) ("Although we conclude that it was error for the court to permit the venire to see [defendant] in the courtroom in prison clothes, defense counsel did not properly preserve this objection as a basis for reversal.").

IV.

We have considered and rejected Lynch's remaining arguments, including his argument that the trial court held an insufficient Richardson hearing, his argument that the trial court abused its discretion in denying his motion for a continuance, and his argument that the trial court should have granted a mistrial. We have carefully considered all arguments presented, and we conclude that none presents a basis for reversal.

AFFIRMED .

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


text:
    Marvin E. NOACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-5620
    District Court of Appeal of Florida, First District.
    December 27, 2018 Rehearing Denied January 15, 2019
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Marvin Noack appeals the judgment and sentence following his second trial, at which he was again convicted of second-degree murder and attempted second-degree murder. We reject Noack's argument that he was entitled to discharge because the State failed to try him within ninety days of the reversal of his convictions from his first trial. Noack also argues that his convictions must be reversed due to the trial court's erroneous admission of double-hearsay testimony. We agree and reverse his second-degree murder conviction, but affirm his conviction for attempted second-degree murder.

I. Speedy Trial

After the State charged Noack in 2008, he waived the speedy-trial time limits set forth in Florida Rule of Criminal Procedure 3.191(a). Noack was convicted, but we reversed his convictions on appeal. Noack v. State , 61 So.3d 1208 (Fla. 1st DCA 2011). The State petitioned for review, which the supreme court denied. State v. Noack , 135 So.3d 290 (Fla. 2014). Ninety-three days after the supreme court denied review, Noack filed a notice of expiration of time for speedy trial under Rule 3.191(h), claiming that the State failed to try him within the ninety-day period after appeal set forth in Rule 3.191(m). The trial court struck the notice and denied Noack's subsequent motion for discharge.

Noack argues that his 2008 waiver no longer applied following the appellate mandate ordering a new trial and that the State was required to try him within ninety days under Rule 3.191(m). He cites State v. Wilkes , 694 So.2d 127 (Fla. 5th DCA 1997), as support and requests we adopt Judge LaRose's view expressed in Bryant v. State , 918 So.2d 331 (Fla. 2d DCA 2005) (LaRose, J., concurring). We review this issue de novo. See Williams v. State , 946 So.2d 1163, 1164 (Fla. 1st DCA 2006).

A waiver of Rule 3.191 rights continues to apply even after an appeal and remand to the trial court. Accordingly, if the accused waived the Rule 3.191 time limits before trial, and on appeal the case is remanded for trial, the ninety-day post-appeal speedy-trial provision of Rule 3.191(m) does not apply. See Koshel v. State , 689 So.2d 1229, 1230 (Fla. 5th DCA 1997) ; see also State v. Bowers , 1 So.3d 1120, 1121 (Fla. 1st DCA 2009) (pre-trial waiver applies after mistrial); State v. Ryder , 449 So.2d 398 (Fla. 2d DCA 1984) (same); State ex rel. Gibson v. Olliff , 452 So.2d 110 (Fla. 1st DCA 1984) (same). This rule of law plainly applies to Noack, and demonstrates that the trial court did not err in concluding that Noack's post-appeal motion for discharge was foreclosed by his pre-appeal waiver.

In spite of this clear rule of law, Noack argues that Wilkes entitles him to discharge because, even though Wilkes waived the time limits under Rule 3.191(a), the district court still held that the State had ninety days to try Wilkes after the mandate. 694 So.2d at 128. We disagree that Wilkes requires reversal. Wilkes moved for discharge pursuant to Rule 3.191prior to the appeal; in fact, the propriety of the trial court's denial of the discharge motion was the issue on appeal. Rule 3.191(j) states, "If the court finds that discharge is not appropriate ..., the pending motion for discharge shall be denied, provided, however, that trial shall be scheduled and commence within 90 days of a written or recorded order of denial. " In other words, if the trial court denies a motion for discharge because the defendant had waived the time limits, the motion itself revokes the waiver and requires the state to try the defendant ninety days from the order denying the motion. In such a circumstance, there is no reason to apply the pre-trial waiver after the appeal. The district court in Wilkes did not, ordering that Wilkes had to be tried within the period permitted by Rule 3.191(m) after the appeal. Nothing of the sort occurred here (or in Koshel, Bowers , Ryder , or Olliff ). Noack did not move for discharge under Rule 3.191 before his first trial, so his waiver of the Rule 3.191(a) time limits remained in place after his appeal.

We also decline to adopt the concurrence in Bryant , which would require the State to try the defendant within ninety days of a mandate reversing for new trial even if the defendant had previously waived the Rule 3.191 time limits. 918 So.2d at 331. This view is inconsistent with Olliff , 452 So.2d at 112, and Bowers , 1 So.3d at 1121, which bind us. But even if we were not bound, we would not adopt this view for two reasons. First, neither Rule 3.191 nor waiver of its time limits affects the constitutional right every defendant has to a speedy trial. See State ex rel. Butler v. Cullen , 253 So.2d 861, 863 (Fla. 1971). Second, even after waiver of the time limits under Rule 3.191, "the defendant still retains the right to demand a speedy trial within sixty days[.]" Butterworth v. Fluellen , 389 So.2d 968, 970 (Fla. 1980). Rule 3.191(b) affords defendants "the right to demand a trial within 60 days, by filing with the court a separate pleading entitled 'Demand for Speedy Trial,' and serving a copy on the prosecuting authority." A defendant who wishes to revoke a pre-appeal waiver of the Rule 3.191 time limits may file a demand after the appeal, which puts the State on notice that it must comply with the time limits of Rule 3.191. This procedure is preferable to one where the defendant can announce an intent to revoke an earlier waiver by springing a notice of expiration on the State and compelling it to try the defendant within the recapture period. Accordingly, we decline Noack's request to reverse our binding precedent. The trial court did not err in striking Noack's notice and denying his motion for discharge.

II. Trial

In this drug deal gone bad, Noack and Nelonza Pugh went into a bedroom to sell marijuana to Fieshiton Smith and Cordell Marcus. Shots were fired from at least two guns inside the bedroom, and responding officers found Marcus shot and transported him to the hospital. Smith fled with a gun in hand, as well as Noack's large bag of marijuana, which he hid at a friend's house before going to the hospital due to his own gunshot wounds. Smith later died due to complications following surgery. Noack and Pugh, who was also shot in his finger, fled the house in their car and returned to Orlando. Marcus, who had nine prior felony convictions at the time of trial, testified that he attempted to purchase a small amount of marijuana from Noack, and Noack was so upset with the size of the purchase that he pulled out a gun and began shooting Marcus. Marcus testified that he did not see Noack shoot Smith and denied seeing Smith attempt to rob Noack or in possession of a gun. Pugh, who was previously convicted of being an accessory to second-degree murder in this incident, also testified for the State. Pugh testified that Smith pulled out a gun to rob Noack and himself, and that Pugh struggled over the gun with Smith, eventually getting shot when it discharged. Pugh denied ever having seen Noack with a gun and did not know how or by whom Smith was shot. Pugh testified that he and Noack immediately drove four hours to Orlando upon fleeing, but could not remember the content of any conversations during this drive.

The State called Kyle Troop, a homicide investigator at the time of the incident who had interviewed Pugh, with counsel present, after finding his DNA at the scene. The prosecutor asked Investigator Troop if, during this interview, Pugh had told him that Noack admitted to shooting Smith. Noack's counsel objected to the question as hearsay within hearsay, arguing that there was no exception for the second link-Pugh's statement to Investigator Troop-and this testimony could at most come in as impeachment evidence with a limiting instruction. The State argued that this testimony came in at Noack's first trial and was necessary as a result of Pugh's untruthful testimony regarding his conversations with Noack following the incident. After counsel reiterated his objection and requested a limiting instruction at minimum, the trial court overruled the objection. Investigator Troop then testified that Pugh had in fact told him that Noack told Pugh that Noack had shot Smith.

III. Hearsay Within Hearsay

We review a trial court's admission of evidence for abuse of discretion; however, this discretion is limited by the evidence code and precedent. See State v. Crofoot , 97 So.3d 866, 868 (Fla. 1st DCA 2012). Noack argues that the trial court erred in allowing double hearsay to be admitted into evidence, specifically that Pugh's statement to Investigator Troop was inadmissible hearsay.

" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. "Hearsay within hearsay" is admissible if "each part of the combined statements conforms with an exception to the hearsay rule[.]" § 90.805, Fla. Stat.; see also Gosciminski v. State , 994 So.2d 1018, 1026 (Fla. 2008). There is no dispute that Noack's statement to Pugh is admissible as an admission by Noack. § 90.803(18), Fla. Stat. However, we find no hearsay exception for Pugh's statement to Investigator Troop, and the State has never presented a valid reason that this statement is admissible. Thus, the statement could not be admitted as substantive evidence of Noack's guilt. Pugh's statement to Investigator Troop may have been admissible as impeachment evidence, but this question does not need to be answered, for two reasons. First, the trial court denied Noack's request for an instruction limiting the use of the evidence to impeachment of Pugh. See Henderson v. State , 135 So.3d 472, 478 (Fla. 2d DCA 2014) ("Because the trial court erred in admitting the [double hearsay] testimony as substantive evidence, the trial court also erred in denying the defense's request for a limiting instruction."). Second, the State did use the testimony as evidence of Noack's guilt in closing argument, not just to impeach Pugh's testimony.

IV. Harmless Error

The State presents no argument that any error is harmless. "That said, we have an obligation to conduct an independent harmless error analysis." Raymond v. State , 257 So.3d 624, 629, 2018 WL 5726146 (Fla. 5th DCA Nov. 2, 2018). Noack presented two defenses at trial: 1) he was not one of the shooters, and 2) if he was a shooter, his actions were justified because Smith attempted to rob him. The jury's finding of guilt demonstrates that it did not believe Smith attempted to rob Noack, and the disputed testimony does not implicate this defense. However, there was no direct evidence that Noack shot Smith aside from the erroneously-admitted testimony of Investigator Troop. Marcus did not see Noack shoot Smith, and Pugh testified that he never saw Noack with a gun, further stating that Smith's gun discharged (at least once) while he and Smith fought over it. In closing arguments, Noack's counsel admitted that Noack was present at the scene to sell marijuana, but disputed that he was the shooter. The State told the jury that Noack "told Mr. Pugh that he was the one who shot [Smith] in the house that day. That's the statement [Noack] made to his friend." We cannot conclude that the double-hearsay testimony was harmless as to the second-degree murder conviction of Smith. In contrast, this testimony as to Smith's shooter was harmless as to the attempted second-degree murder conviction of Marcus, particularly considering Marcus' testimony that Noack shot him multiple times and frank admission that he did not see Noack shoot Smith.

V. Conclusion

We reject Noack's argument that the trial court should have discharged him despite his prior waiver because his Rule 3.191 speedy trial rights "spring anew" upon an appellate mandate ordering a new trial. But we agree that the trial court erred in allowing the admission of double-hearsay testimony by Investigator Troop and in denying Noack's request for a limiting instruction. We find this error harmful as to the second-degree murder conviction and REVERSE this conviction, but find it harmless as to the attempted second-degree murder conviction and AFFIRM this conviction.

Bilbrey and Jay, JJ., concur.

      We affirm without comment as to the other three arguments Noack raises.

      See Stewart v. State , 491 So.2d 271, 272 (Fla. 1986) (holding that a request for continuance prior to the expiration of the applicable time period under Rule 3.191 constitutes a waiver of the time limits under the rule).

      We reject Noack's argument that we should treat pre-trial waiver differently for an appellate mandate ordering a new trial than following a mistrial, as both are treated equally under Rule 3.191(m).

      We cannot find Pugh "unavailable" due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State argued at trial that Pugh was being untruthful (not that he did not remember) and the trial court consequently made no findings as to Pugh's memory. See Charles W. Ehrhardt, Ehrhardt's Florida Evidence § 804.1 at 1225 (2018 ed.) (Professor Ehrhardt explaining that "[m]erely asserting a claim of a lack of memory is not sufficient," and the trial court is required "to find that the witness has suffered lack of memory before unavailability results."). Moreover, even had Pugh been unavailable, it does not appear any applicable exception under section 90.804(2) exists.

      The fact that the State introduced this testimony without objection at the earlier trial does not permit its admission here. The second basis, argued at trial and now on appeal, is that the statement was necessary due to Pugh's untruthful testimony. See Rodriguez v. State , 753 So.2d 29, 42 (Fla. 2000) (discussing the "opening the door" concept). However, the testimony that the State contends opened the door was elicited by the State on direct-examination of Pugh, its own witness. The State has not explained why it should be able to open its own door, and cannot. See Brunson v. State , 31 So.3d 926, 928 (Fla. 1st DCA 2010) ("This principle is triggered when one party's evidence presents 'an incomplete picture' and fairness demands the opposing party be allowed to 'follow up in order to clarify ... and make it complete.' " (quoting Hudson v. State , 992 So.2d 96, 110 (Fla. 2008) (emphasis supplied) ) ).


text:
    Timothy BRADLEY, M.D., Appellant, v. FORT WALTON BEACH MEDICAL CENTER, INC., Appellee.
    No. 1D17-0930
    District Court of Appeal of Florida, First District.
    December 27, 2018
    Jeffrey M. Stephens of the Stephens Law Firm, P.A., Destin, for Appellant.
    Walter J. Tache and Ivonne Barroso of Tache, Bronis, Christianson, and Descalzo, P.A., Miami, for Appellee.
   Per Curiam.

Appellant, a hand and plastic surgeon, raises six issues in his appeal of a number of the trial court's orders stemming from a breach of contract case against Appellee, Fort Walton Beach Medical Center ("the Hospital"). Although we affirm as to all issues, we write briefly to address the Hospital's Motion for Summary Judgment.

This case arose from a lease agreement between Appellant and the Hospital, pursuant to which Appellant was to rent medical space a few days a week and, in return, pay the Hospital a monthly rent. The Hospital sued Appellant for breach of contract, alleging he failed to pay the monthly sums. Appellant filed an Amended Answer raising thirteen affirmative defenses as well as a number of counterclaims. In response, the Hospital filed a Motion for Summary Judgment. Following a hearing, the trial court granted summary judgment in part, which effectively precluded Appellant from asserting any affirmative defenses and counterclaims at trial other than those strictly related to the breach of the written contract. At trial, the jury found in favor of the Hospital and awarded damages. Appellant filed this appeal challenging, among other issues, the trial court's partial grant of the Hospital's request for summary judgment.

"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130-31 (Fla. 2000) (internal citation omitted); ATC Logistics Corp. v. Southeast Toyota Distributors, LLC , 188 So.3d 96, 99 (Fla. 1st DCA 2016).

In the summary judgment context, the movant initially tenders "competent evidence to support the motion." Landers v. Milton , 370 So.2d 368, 370 (Fla. 1979). To oppose the motion, a party " 'must come forward with counterevidence sufficient to reveal a genuine issue.' " The Fla. Bar v. Mogil , 763 So.2d 303, 307 (Fla. 2000) (quoting Landers v. Milton , 370 So.2d 368, 370 (Fla. 1979) ). "It is not enough for the opposing party merely to assert that an issue does exist." Id. "[T]he existence of disputed issues of fact must be demonstrated by either presenting evidence of countervailing facts or justifiable inferences from the facts presented." Woodruff v. Gov't Emps. Ins. Co. , 669 So.2d 1114, 1115-16 (Fla. 1st DCA 1996) ; see also Fla. Bar v. Tipler , 8 So.3d 1109, 1117 (Fla. 2009). Here, Appellant is required to do more than generally disagree. Mogil , 763 So.2d at 307. Appellant's general allegations and legal argument do not constitute evidence of disputed issues of material fact. Accordingly, he failed to meet his burden. See also Woodruff , 669 So.2d at 1115.

For these reasons, the trial court's partial granting of the Hospital's Motion for Summary Judgment is AFFIRMED .

Jay and M.K. Thomas, JJ., concur; Winsor, J., concurs in judgment.


author: PER CURIAM.

text:
    Jermetras WATSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2610
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 28, 2018
    Jermetras Watson, Lake Butler, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm, without further discussion, the postconviction court's order summarily denying Appellant's Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Appellant also raised several issues in his Initial Brief that were not presented below and thus were not preserved for review. See Tillman v. State , 471 So.2d 32, 35 (Fla. 1985) ("In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.").

Appellant is not precluded from filing a successive rule 3.800(a) motion to correct illegal sentence to raise issues discussed in his Initial Brief that were not argued in his present motion. See State v. McBride , 848 So.2d 287, 290-91 (Fla. 2003) (holding that the phrase "at any time" in rule 3.800(a) allows defendants to file successive motions but that principles of collateral estoppel bar a defendant from raising in a successive motion to correct illegal sentence the same issue raised by the defendant in an earlier motion). We take no present position as to the merits, if any, of these potential claims.

AFFIRMED.

ORFINGER, EVANDER, and LAMBERT, JJ., concur.


text:
    Stephen WAMLEY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3838
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 28, 2018
    Rachael E. Reese, O'Brien Hatfield, P.A., Tampa, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 2, 2018 order denying Petitioner's motion for postconviction relief, filed in Case No. 2013-CF-2600 in the Eighteenth Judicial Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Michael SONNEMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2344
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 28, 2018
    James S. Purdy, Public Defender, Kristen D. Dukes and Andrew Mich, Assistant Public Defenders, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Michael Sonneman (the defendant) appeals the denial of his motion to conduct a post-verdict juror interview following his convictions for two counts of lewd or lascivious battery of a child and one count of interfering with the custody of a child. We affirm.

During jury selection, one prospective juror apprised the prosecutor that the case "kind of hits close to home with a family-related case." Referencing this statement from the prospective juror, the prosecutor later asked, "Does anybody else have family or friends that have been involved or impacted by sexual abuse?" One prospective juror responded that her grandson had been abused at camp. The prospective juror who made the earlier disclosure also responded. No other prospective jurors responded to this question.

During his opportunity to question the jury pool, defense counsel briefly followed up with these two prospective jurors. However, he never asked the jury pool whether any of them had personally been sexually abused, nor did he ask if any of them had ever been the victim of any crime.

Ultimately, the jury found the defendant guilty as charged. Less than a week after the jury returned the verdicts, the defendant filed a motion to interview the jury's foreperson, arguing that she committed misconduct by not disclosing that she had been sexually abused as a teenager. In support of the motion, the defendant attached Facebook posts allegedly authored by the foreperson. The Facebook user indicated that, like the victim in the defendant's criminal case, she too had been sexually abused at the age of fourteen and that she found personal justice through the verdicts against the defendant. Additionally, in response to a question concerning how the defendant pled, the Facebook user stated, "NOT GUILTY. Did not take the stand in his own defense." However, the Facebook user elsewhere noted that the State's evidence overcame the defendant's presumption of innocence.

At an evidentiary hearing on the motion, defense counsel argued that the foreperson committed juror misconduct by concealing the fact that she was a victim of sexual abuse. Additionally, defense counsel asserted that the Facebook posts revealed that the foreperson improperly held the defendant's decision to not testify against him.

After taking the matter under advisement, the trial court denied the motion, finding that the foreperson did "not conceal the fact that she was a sexual abuse victim" and that the "failure to disclose the information was attributable to the defense's failure to ask about her past experiences." As support for these findings, the court noted, "A review of the transcript reveals that neither the State nor defense ever asked any of the jurors if they personally had ever been the victim of sexual abuse."

Following the entry of the order denying a juror interview, the trial court entered judgment consistent with the jury's verdicts and sentenced the defendant to a combined twenty years in prison. This appeal follows.

Rule 3.575 of the Florida Rules of Criminal Procedure allows a party who has reason to believe that the verdict may be subject to legal challenge to move the court for permission to conduct a juror interview. However, the rule also provides, "[I]f no reason is found to believe that the verdict may be subject to challenge, the court shall enter its order denying permission to interview." Fla. R. Crim. P. 3.575. The trial court's decision to deny a motion for a juror interview is reviewed for an abuse of discretion. Anderson v. State, 18 So.3d 501, 519 (Fla. 2009).

On appeal, the defendant argues that the trial court abused its discretion in denying his motion to interview the foreperson because she improperly considered his decision to not testify and committed misconduct by failing to disclose her history of sexual abuse. We disagree.

The defendant's claim concerning the foreperson's improper consideration of his decision to not testify does not support reversal. A juror may not be interviewed concerning matters that inhere in the verdict, Reaves v. State, 826 So.2d 932, 943 (Fla. 2002), and the Florida Supreme Court has held that "a jury's consideration of a defendant's failure to testify ... is a matter which essentially inheres in the verdict itself." Sims v. State, 444 So.2d 922, 925 (Fla. 1983) (citations omitted); see also Gadison v. State, 158 So.3d 615, 617 (Fla. 5th DCA 2013). Accordingly, the foreperson's alleged consideration of the defendant's decision to not testify cannot serve as a basis for a juror interview.

We then consider the foreperson's alleged non-disclosure of her own personal experience with sexual assault. The Florida Supreme Court has approved a three-part test for considering whether a juror's non-disclosure during voir dire warrants a juror interview or new trial. De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995). "First the complaining party must establish that the information is relevant and material to jury service in the case. Second that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party's lack of diligence." Id. at 241. To meet the second prong of this test, the information must be directly asked for and not provided. Wiggins v. Sadow, 925 So.2d 1152, 1155 (Fla. 4th DCA 2006). Further, to overcome the third prong, due diligence must be demonstrated by the defense as it relates to questioning the jurors. See Hampton v. State, 103 So.3d 98, 113 (Fla. 2012).

In this case, the foreperson did not conceal information related to a direct question asked during the voir dire examination. In fact, neither the prosecutor nor defense counsel asked the panel if any of them had personally been sexually assaulted, nor was the panel asked if any among them was a victim of any crime at all. The prosecutor only inquired as to friends or family members affected by sexual assault, and defense counsel limited his voir dire inquiry on this subject to the two prospective jurors who responded to the prosecutor's question. Based upon the record presented, the trial court acted within its discretion in finding that the defendant did not prove the concealment prong or the due diligence prong of the De La Rosa test.

Thus, for the reasons given above, we AFFIRM.

TORPY, HARRIS and GROSSHANS, JJ., concur.


text:
    Emmanuel Forrest LOCKHART, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2661
    District Court of Appeal of Florida, First District.
    December 31, 2018
    Andy Thomas, Public Defender, and Joanna A. Mauer, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Benjamin Hoffman, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Emmanuel Forrest Lockhart, appeals from a judgment and sentence for attempted first-degree murder with a firearm, attempted robbery with a firearm, and burglary while armed. He raises three issues on appeal, as to the first two of which we affirm without discussion.

In his third issue, Appellant asserts that his sentences violate the constitutional prohibition on excessive punishments and we should extend the Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), line of cases to adult offenders. Appellant urges us to require sentencing courts to focus on offenders' actual mental age on a case-by-case basis given the rationales of the Graham line of cases and the neurological research showing that the brain continues to develop until the mid-twenties. We affirm on the authority of Romero v. State , 105 So.3d 550 (Fla. 1st DCA 2012). See also McCray v. State , 247 So.3d 721 (Fla. 1st DCA 2018) ; Wilson v. State , 249 So.3d 800 (Fla. 1st DCA 2018) ; Jean-Michel v. State , 96 So.3d 1043 (Fla. 4th DCA 2012).

AFFIRMED .

Wolf, Lewis, and Wetherell, JJ., concur.


text:
    Chasen Allen OTT, Appellant, v. STATE of Florida, Appellee.
    Chasen Allen Ott, Appellant, v. State of Florida, Appellee.
    Case No. 5D17-3767 Case No. 5D18-0436
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 28, 2018
    Amanda C. Micallef, of Law Office of Amanda C. Micallef, Ocala, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Patterson v. State, 188 So.3d 913, 915 (Fla. 5th DCA 2016) (finding defendant failed to preserve claim that trial court erred when it relied on affidavit to find he did not comply with plea agreement because he failed to make contemporaneous objection at sentencing hearing and did not move to withdraw his plea).

TORPY, BERGER and GROSSHANS, JJ., concur.


text:
    Preston PAMPHILE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3281
    District Court of Appeal of Florida, First District.
    December 31, 2018
    Preston Pamphile, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg and Jason W. Rodriguez, Assistant Attorneys General, Tallahassee, for Respondent.
   Per Curiam.

This timely sworn petition seeks belated appeal of a September 18, 2017, order declaring Petitioner competent to proceed nunc pro tunc to the time of trial. We dismiss the petition because of a jurisdictional issue.

After a jury trial, Petitioner was found guilty and judgments and sentences were rendered on December 2, 2014, in Leon County Circuit Court case number 2014-CF-1428. In 2016, Petitioner filed a petition alleging ineffective assistance of appellate counsel raising four grounds. The petition was granted in part, the judgments and sentences were reversed, and the cause was remanded for further proceedings on the question of establishing Petitioner's competency at the time of trial. See Pamphile v. State , 216 So.3d 765 (Fla. 1st DCA 2017). On remand, the circuit court issued a nunc pro tunc order on the competency issue, but did not re-enter the judgments and sentences. An order on competency is not independently reviewable under rule 9.140(b), Florida Rules of Appellate Procedure.

Because no appealable order has been rendered by the circuit court, the petition for belated appeal is dismissed.

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


text:
    SIGNTRONIX, INC., a California Corporation, Appellant, v. ANNABELLE'S INTERIORS, INC., a Florida Corporation, Appellee.
    No. 1D18-2184
    District Court of Appeal of Florida, First District.
    December 31, 2018
    Stacey S. Fisher and Steven Sprechman of Sprechman and Fisher, P.A., Miami, for Appellant.
    Robert Aguilar of Aguilar & Sieron, P.A., Orange Park, for Appellee.
   Per Curiam.

Signtronix, Inc., a California corporation, appeals an order denying a motion to dismiss for improper venue and lack of jurisdiction. We reverse.

After Annabelle's Interiors, Inc. sued Signtronix in Florida, related to its purchase of goods, Signtronix moved to dismiss the case under the venue provision of the parties' sales agreement, which reads:

The parties expressly consent and submit to the jurisdiction of the Courts of the State of California and agree the proper forum and venue for any and all suits, actions or other proceedings arising out of this agreement are the State or Federal Courts located in Los Angeles County, California, and the parties expressly waive any objection to venue in such Court.

"[O]rders concerning venue [fall] within the limited class of nonfinal orders that are subject to review by appeal before the final judgment." Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc. , 743 So.2d 627, 630 (Fla. 1st DCA 1999) ; Fla. R. App. P. 9.130(a)(3)(A). We review de novo the trial court's denial of Signtronix's motion to dismiss. Mgmt. Computer Controls, Inc., 743 So.2d at 630.

Parties to a contract are free to establish venue in a particular forum in the event of a contract dispute. See Baker v. Econ. Research Servs., Inc. , 242 So.3d 450 (Fla. 1st DCA 2018). Venue selection clauses are considered mandatory where the plain language of the contract indicates exclusivity. Michaluk v. Credorax (USA), Inc. , 164 So.3d 719, 722 (Fla. 3d DCA 2015). But in the absence of words of exclusivity, a venue clause is deemed to be permissive. Id. In this case, Annabelle's Interiors argues, and the trial court agreed, that the venue provision in the contract was permissive because it was preceded by the following sentence: "At the option of Signtronix, this agreement may be governed by the laws of the State of California." Through the lens of this sentence, Annabelle's Interiors argues that its case could have been brought in California, but that Signtronix cannot require it. See Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A. , 509 So.2d 273, 274-75 (Fla. 1987) (recognizing permissive clauses to be nothing more than a consent to jurisdiction and venue, without excluding jurisdiction or venue in any other forum).

We disagree with Annabelle's Interiors's reading of the contract. The agreement's venue term provides for the exclusivity California courts on its face, stating: "the proper forum and venue for any and all suits, actions or other proceedings arising out of this agreement are the State or Federal Courts located in Los Angeles County, California, and the parties expressly waive any objection to venue in such Court ." (Emphasis added.) We see no ambiguity here. Annabelle's Interiors has agreed that the "proper" venue is in California and has waived any objection. See Golf Scoring Sys. Unlimited, Inc. v. Remedio , 877 So.2d 827, 829 (Fla. 4th DCA 2004) (holding that the phrase "the proper venue" was limiting language that effectively excluded all others).

We haven't missed Annabelle's Interiors's view and argument that the choice of law provision overrides these venue terms. But the contract's choice of law and venue provisions are different and distinct terms. For there to be differences between them is not unusual. See, e.g. , Corp. Creative Enter., LLC v. Brian R. Fons Attorney at Law P.C. , 225 So.3d 296, 298 (Fla. 4th DCA 2017) (affirming an agreement's provision applying Illinois law in Florida's courts); SAI Ins. Agency, Inc. v. Applied Sys., Inc. , 858 So. 2d 401 (Fla. 1st DCA 2003) (upholding an Illinois venue as to a claim brought under Florida's Deceptive and Unfair Trade Practices Act). An optional choice of law provision in a contract does not render permissive an explicitly mandatory venue provision. We therefore reverse and remand for dismissal.

REVERSED and REMANDED .

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


text:
    CDC CAPITAL INVESTMENTS, LLC as Trustee, Appellant, v. MTGLQ INVESTORS, L.P., Appellee.
    No. 1D17-3896
    District Court of Appeal of Florida, First District.
    December 31, 2018
    Ian P. Hudson of King Hudson, PLLC, St. Petersburg, for Appellant.
    Dariel Abrahamy of Greenspoon Marder, P.A., Boca Raton, for Appellee.
   Per Curiam.

Because Appellant has failed to file the transcript of the bench trial and failed to carry its burden of showing reversible error, we affirm the final judgment. The lack of an adequate record of the proceedings below prevents us from determining whether the trial court abused its discretion in admitting evidence at trial. Therefore, we must affirm. Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979).

AFFIRMED.

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