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

text:
    Christopher Allen TEACHMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-759
    District Court of Appeal of Florida, First District.
    January 2, 2019 Rehearing Denied February 27, 2019
    Andy Thomas, Public Defender, Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant was convicted of sexual battery and lewd and lascivious molestation of a child. Before trial, Appellant provided a confession during an interview with a police investigator. At trial, the victim testified in detail about the molestation and forced sexual activity, which began when she was eight years old and continued until she was fifteen years old. Appellant now argues on appeal that the trial court erred in denying a motion to suppress his confession to law enforcement. In addition, he asserts that reversible error occurred when the trial court excluded evidence of the victim's consensual sexual relationship with her boyfriend.

I. The Confession

" 'A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the [reviewing] court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.' " Rodriguez v. State , 187 So.3d 841, 845 (Fla. 2015) (quoting Terry v. State , 668 So.2d 954, 958 (Fla. 1996) ). Where there is no dispute over the statements made, we must "review de novo the trial court's conclusion that the officer's statements did not render Appellant's statements involuntary." Ramirez v. State , 15 So.3d 852, 855 (Fla. 1st DCA 2009) ; see also State v. Teamer , 151 So.3d 421, 425 (Fla. 2014) (holding that the trial court's application of law to the facts is reviewed de novo).

Appellant came to the police interview voluntarily, and his confession was taken in a non-custodial setting. Before the interview began, the investigator told Appellant that he was not under arrest, did not have to answer questions, could leave at any time, and could request an attorney at any time. Appellant was never threatened with harm, and the interview lasted less than thirty minutes. Although the investigator told Appellant that things would be easier for him if he told the truth, and the investigator would tell the prosecutor if Appellant was cooperative, these comments were neither improper nor coercive. See Caraballo v. State , 39 So.3d 1234, 1247 (Fla. 2010).

Although "[i]t is well-settled that statements obtained through direct or implied promises are involuntary and, thus, inadmissible at trial," there must be "a causal connection between the improper conduct and the statement." Ramirez , 15 So.3d at 855-56. Moreover, although some promises may require suppression, "an interrogating officer may, without rendering a confession involuntary, promise to make a suspect's cooperation known to the prosecutor or advise the suspect that 'it would be easier on him' if he cooperated." Id. at 856 (quoting Blake v. State , 972 So.2d 839, 844 (Fla. 2007) ); see Caraballo , 39 So.3d at 1247. In Caraballo , the supreme court noted that the facts of Ramirez regarding the offers of help by law enforcement were "much more excessive" than the facts surrounding Caraballo's confession and did not require reversal of the trial court's ruling admitting the statements. 39 So.3d at 1247. Here, the investigator's offers to inform the prosecutor that Appellant cooperated were not excessive and not similar to the "unique circumstances" this court described in Ramirez . 15 So.3d at 857.

Appellant also argues that his confession was involuntary, because he had met the investigator years earlier, when Appellant was himself a victim of sexual abuse. Appellant asserts that the bond of trust established by that encounter lowered his resistance to threats, promises, and misrepresentations of law.

In Spano v. New York , 360 U.S. 315, 319, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), law enforcement officers ordered a defendant's close childhood friend to use false pretenses to encourage the defendant to confess. The officers kept sending the friend in to "play on [the defendant]'s sympathies" until the defendant finally confessed after eight straight hours of questioning. Id. The Supreme Court held that the use of the friend was a factor in determining that the confession was involuntary, observing that "[t]here was a bond of friendship between them going back a decade into adolescence. It was with this material that the officers felt that they could overcome [the defendant]'s will." Id. at 323, 79 S.Ct. 1202.

Here, the investigator, who was not Appellant's close childhood friend, informed Appellant that the purpose of the interview was to investigate the alleged sexual offenses. It was Appellant, not the investigator, who first brought up the past encounter, stating that he regretted refusing the investigator's offer of psychological counseling years ago. The investigator then essentially minimized that past encounter and returned to the instant allegations, telling Appellant, "Well, we're all indestructible when we're young, and then we have to grow up, and we have to mature. So [the victim] is not telling lies; is she?"

The investigator did not manipulate the encounter to exploit Appellant or diminish his ability to decline to answer questions. While later in the interview the investigator offered to help Appellant get counseling assistance, he did so only after Appellant confessed: When Appellant finished describing the incidents of molestation, the investigator said, "All right. I want to get you that help, but I do have to arrest you. Okay?" The investigator never suggested that this post-confession offer was contingent on getting anything in return from Appellant. Thus, the offer did not induce the confession.

Appellant also asserts that the investigator's remarks regarding allegations that Appellant's wife told the victim to lie to police improperly induced his confession. After describing the seriousness of the allegations against Appellant's wife, the investigator told Appellant, "It's very damaging that three people heard, two people heard and [the victim] confirms that [your wife] said to lie to the investigator." The investigator then told Appellant:

That's what you and [your wife] are facing, because y'all are not telling me the truth. You're telling part of the truth, but you're not telling the whole truth. And I think you can tell me the truth to keep her out of trouble . I'm not after her. I want to leave her out. The kids [have] got to have somebody....
So what I'm throwing out to you and [your wife] is we can continue with this lie, but ... [i]f y'all don't tell me the truth today I have no choice but to type my paperwork and file charges on both of y'all.

(Emphasis added.) Shortly thereafter, Appellant stopped denying the allegations against him.

Although the State argues that these comments were merely asking for information that might exonerate Appellant's wife, a plain reading of the transcript indicates an implied promise: Confess to the allegations and the charges against Appellant's wife will go away and one parent will remain home. But the record does not support a conclusion that these statements rendered Appellant's confession involuntary. Johnson v. State, 696 So.2d 326, 331 (Fla. 1997) (finding preponderance of evidence sufficient to demonstrate voluntariness of confession). Appellant never expressed any fear or concern about what would happen to his wife or children if he did not admit to the sexual acts with his stepdaughter.

At the end of the interview, when the investigator asked if any promises were made in exchange for the confession, Appellant made no mention of leniency for his wife. Appellant was given an opportunity to say that he confessed in hopes of protecting his wife, but instead, he only asked for counseling help. Accordingly, we reject Appellant's arguments that his confession was involuntarily obtained.

II. The Excluded Evidence

Appellant argues that the trial court erred in granting the State's motion in limine to exclude evidence of the victim's sexual relationship with her boyfriend. A proffer of the evidence being excluded is necessary to preserve a claim of improperly excluded evidence "because an appellate court will not otherwise speculate about the admissibility of such evidence." Lucas v. State , 568 So.2d 18, 22 (Fla. 1990) ; see also Goodwin v. State, 751 So.2d 537, 544 (Fla. 1999) ("if it is alleged that evidence has been improperly excluded and the appellate record does not establish that a proffer has been made, the lack of an adequate record will be grounds to affirm.").

Florida's rape shield law bars the admission of evidence of consensual sexual activity between a victim and any person other than the accused, unless it is established in camera that the evidence is relevant to consent by a similar pattern of conduct, or that the accused is not the source of semen, pregnancy, injury, or disease. § 794.022, Fla. Stat.; Gomez v. State , 245 So.3d 950, 953 (Fla. 4th DCA 2018). The rape shield law does not exclude evidence that would otherwise be admissible under the Florida Evidence Code; instead, section 794.022 is a codification of Florida's relevance rules as applied to the sexual behavior of victims of sexual crimes. Carlyle v. State , 945 So.2d 540, 546 (Fla. 2d DCA 2006) ; Kaplan v. State , 451 So.2d 1386, 1387 (Fla. 4th DCA 1984) ; see also § 90.403, Fla. Stat.

A defendant's "right to full and fair cross-examination, guaranteed by the Sixth Amendment, may limit [ section 794.022 ]'s application when evidence of the victim's prior sexual conduct is relevant to show bias or motive to lie." Kaplan , 451 So.2d at 1387 ; see also Lewis v. State , 591 So.2d 922, 923 (Fla. 1991) (holding that the defendant's right to a full and fair defense was infringed where the victim's consensual sexual relationship with a third person was relevant). In Lewis , 591 So.2d at 923, the defense proffered evidence that the minor victim was concealing her consensual sexual activity from her mother, and that a scheduled medical examination would have revealed the concealment. The supreme court held that this proffered evidence was admissible as highly probative to the defense theory that the victim fabricated rape charges against the defendant in order to avoid being caught in a lie about having sex with her boyfriend. Id.

Here, there was no proffer of evidence at trial, so the question is whether there is an adequate record of the excluded evidence to put the trial court on notice of the potential error. See Goodwin , 751 So.2d at 544.

At the hearing on the State's motion in limine, defense counsel mentioned that a family member believed the victim "made the allegations up because [she] and her boyfriend got caught doing what they weren't supposed to be doing" and he "might want to go into that" at trial. Defense counsel generally agreed that the victim's chastity should not be discussed, but asserted:

[A]t the same time we need to explore the motive of possibly of why - again, why [the victim] is making these allegations and it might have something to do with her boyfriend. So again, I haven't deposed [the victim] yet, so I'm going to address some of this in depositions and flesh it out.
But I think that - right, attacking her chastity, that's improper, but the nature of the relationship with her boyfriend, [Appellant's] approval of it, I think that could explain as part of a possible motive for her making these accusations.

No mention was made of the victim hiding her sexual relationship or that an upcoming medical examination would uncover such; the excluded evidence was that Appellant caught the victim with her boyfriend in an inappropriate behavior. But without additional facts such as those in Lewis , where the sexual nature of the victim's relationship with her boyfriend was critical to the theory of defense, here the probative value of the minor victim's sexual activity is substantially outweighed by the risk of unfair prejudice and is precluded from admission under section 794.022, Florida Statutes. Therefore, the trial court did not abuse its discretion in excluding the evidence.

We note that our review is limited to the facts presented at the motion in limine hearing. Although defense counsel surmised at the hearing that upcoming depositions might produce additional relevant information, this does not constitute an "adequate record" sufficient to put the trial court on notice that the as-yet-unknown evidence would be admissible at trial. See Goodwin , 751 So.2d at 544 ; Lucas , 568 So.2d at 22.

AFFIRMED.

Kelsey, J., concurs; Winokur, J., concurs with opinion.

Winokur, J., concurring.

While I agree with the majority that we should affirm the conviction below, I write to expand upon the effect that "promises" from police to a suspect during an interrogation have on a confession's admissibility. I believe we should emphasize that a promise only renders a confession involuntary and inadmissible when the promise overbears the free will of a suspect to choose whether to confess. "The test to determine whether a confession is voluntary-in other words, not coerced-is whether it was the product of free will and rational choice." Martin v. State , 107 So.3d 281, 298, 315 (Fla. 2012) (deciding whether officers' interrogation tactics "overbore [the suspect's] free will such that he was unable to make a rationale choice with regard to confessing"). The mere existence of a promise by the officer or a "quid pro quo" agreement between the officer and suspect does not, in itself, render the confession involuntary. I question the continuing viability of cases suggesting that it does.

The standard to determine whether a confession is voluntary is well-settled: "In order for a confession to be voluntary, the totality of the circumstances must indicate that such confession is the result of free and rational choice." Blake v. State , 972 So.2d 839, 843-44 (Fla. 2007) (quoting Johnson v. State , 696 So.2d 326, 329 (Fla. 1997) ). This standard focuses on the suspect's state of mind, specifically on the effect that any particular police tactic during interrogation has upon the suspect. In other words, the mere existence of a promise alone, even a "quid pro quo" agreement, should not render any confession involuntary. See Miller v. Fenton , 796 F.2d 598, 608 (3d Cir. 1986) (holding that "it does not matter that the accused confessed because of the promise, so long as the promise did not overbear his will.").

A different line of cases suggests otherwise, holding that a promise alone may render a confession involuntary. These cases stem from Bram v. United States , 168 U.S. 532, 542-43, 18 S.Ct. 183, 42 L.Ed. 568 (1897), which held that a confession "must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." The United States Supreme Court has repudiated this rule from Bram , see Arizona v. Fulminante , 499 U.S. 279, 285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (holding that this statement from Bram "does not state the standard for determining the voluntariness of a confession"), which the Florida Supreme Court has acknowledged. See Martin , 107 So.3d at 313-14. Nonetheless, some Florida cases continue to follow the rejected rule that a confession "obtained by any direct or implied promises" is per se involuntary, including Ramirez v. State , 15 So.3d 852 (Fla. 1st DCA 2009), cited in the majority opinion. See id. at 855 ("It is well-settled that statements obtained through direct or implied promises are involuntary and, thus, inadmissible at trial."). See also Walker v. State , 771 So.2d 573, 575 (Fla. 1st DCA 2000) ("A confession or inculpatory statement is not freely and voluntarily given if it has been elicited by direct or implied promises, however slight."). To the contrary, a promise to a suspect unaccompanied by a showing that the promise overbore the suspect's will does not render a confession involuntary. The suggestion that any promise that induces a confession automatically renders a confession involuntary, no matter how inconsequential and no matter whether it deprived the defendant of the ability to make a rational choice, should be finally and explicitly rejected.

      At the end of the interview, the investigator did ask Appellant if anything had been promised "to make you tell these statements---" and Appellant replied "No, sir.... Other than getting me help." The investigator then acknowledged Appellant's assertion. Without context, this acknowledgement suggests that a quid pro quo promise was made. The transcript itself, however, refutes that interpretation, as the offer was made after Appellant confessed.

      Of course, Teachman never testified that his will was overborne by officer promises. The Maryland Court of Appeals addressed this point in Lee v. State , 418 Md. 136, 12 A.3d 1238, 1253 (2011) (citation omitted):
      To be sure, the State has the burden to prove voluntariness. We cannot help but note, nonetheless, that Petitioner did not testify at the suppression hearing. Therefore, we do not have even his word that [the officer's] improper comment overbore his will and produced his confession.... [A] mere promise, whether it be of leniency or, as here, confidentiality, without more, will not render a confession involuntary, for federal (or state) constitutional purposes.
      The same is true here. Teachman details numerous allegations of promises and threats issued by Detective Musgrove, but presents only conjecture that these promises and threats overbore his will to make a rational choice.

      This observation applies equally to the oft-stated rule that any "quid pro quo" agreement between the police and the suspect automatically renders a confession involuntary. See, e.g., Ramirez , 15 So.3d at 856 ("the presence of an express 'quid pro quo' bargain for a confession will render the confession involuntary as a matter of law"). The "express quid pro quo" rule directly contradicts the proper voluntariness rule, which looks at the totality of the circumstances to determine whether police misconduct overbore the suspect's free will and made it impossible for the defendant to make a rational choice as to whether to confess.


source: Caselaw Access Project

author: Long, Jr., Robert E., Associate Judge.

license: Public Domain

text:
    Jason Wilson WALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-5881
    District Court of Appeal of Florida, First District.
    January 8, 2019 Rehearing Denied February 26, 2019
    Michael Ufferman, Tallahassee, for Appellant.
    Ashley Brooke Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Long, Jr., Robert E., Associate Judge.

Jason Wilson Wall appeals his judgment of conviction for DUI manslaughter, DUI causing serious bodily injury, and two counts of driving with a suspended and revoked license. These convictions followed a single car crash which left one occupant of the vehicle dead.

Wall raises two issues on appeal. First, he argues the trial court erred in admitting a statement by one of the four occupants of the vehicle involved in the crash. At the time of the crash one of the occupants was Wall's girlfriend, Christine Arnold. Immediately following the crash, Arnold told a law enforcement officer who responded to the crash scene that Wall was the driver of the vehicle. The statement was admitted at trial by way of testimony from the law enforcement officer recounting Arnold's statement. Arnold testified at trial that she had no memory of who was driving the car at the time of the crash.

Wall argues the admission of Arnold's statement through the law enforcement officer qualified neither as a statement of identification nor as an excited utterance, the two theories proffered by the State below. We need not reach either issue. Not only were the arguments raised on appeal not made below, trial defense counsel conceded the statement met the evidentiary criteria for admission as an excited utterance. Therefore, the questions were not preserved for appellate review and will not be addressed further. See Tillman v. State , 471 So.2d 32 (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.").

Second, Wall argues the judgment of conviction erroneously indicates he went to trial on four counts when in fact he pled no contest to the two charges of driving with a suspended or revoked license. A remand for entry of a corrected judgment is therefore required.

Remand is also required for the trial court to cite the applicable county ordinance for a $65 fine imposed pursuant to section 939.185, Florida Statutes. See Carter v. State , 173 So.3d 1048, 1051 (Fla. 1st DCA 2015).

Therefore, Wall's convictions are AFFIRMED , but the cause is REMANDED for correction of the judgment and sentence. Wall does not need to be present for the ministerial task of correcting the judgment and sentence.

B.L. Thomas, C.J., and Jay, J., concur.


author: Winokur, J.

text:
    Connie L. MIELKE and Blair C. Mielke, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2005-MTR1, Asset-Backed Certificates, Series 2005-MTR1, Appellee.
    No. 1D17-4265
    District Court of Appeal of Florida, First District.
    January 10, 2019
    Robert J. Powell, Clark Partington, Pensacola, for Appellants.
    Allison Morat and Teris A. McGovern of Pearson Bitman, LLP, Maitland, for Appellee.
   Winokur, J.

Connie and Blair Mielke appeal the trial court's Final Judgment of Foreclosure in favor of Deutsche Bank National Trust Company (Deutsche Bank). The Mielkes argue that the complaint was time-barred because the statute of limitations had run on the bank's ability to enforce a lost note. Because we find that the requirements for enforcing a lost note pursuant to section 673.3091, Florida Statutes, do not create an independent cause of action triggering a separate statute of limitations on a mortgagee's right to foreclose, we affirm.

I.

In 2005, the Mielkes executed a mortgage on a condominium in Destin. In May 2008, Deutsche Bank filed a foreclosure complaint against the Mielkes alleging they defaulted on their February 2008 mortgage payment and all subsequent payments. The complaint also contained a count to reestablish the lost promissory note. In 2010, the trial court dismissed the complaint without prejudice. As a result, the trial court never determined whether Deutsche Bank was permitted to enforce the lost note.

In 2016, Deutsche Bank filed a two-count complaint against the Mielkes. The first count was entitled "Foreclosure of Mortgage" and alleged that the Mielkes defaulted on their March 2011 mortgage payment and all subsequent payments. The foreclosure count stated that Deutsche Bank was not in possession of the promissory note, but that it was entitled to enforce it. The second count was entitled "Reestablishment of Lost Promissory Note." Deutsche Bank attached an affidavit to the complaint attesting that the promissory note had been lost, but asserting that the note had not been transferred to another party or cancelled.

In their answer, the Mielkes alleged that Deutsche Bank was barred by the statute of limitations on its count to reestablish the lost note. The Mielkes later moved for summary judgment, arguing that Deutsche Bank was aware of the lost promissory note during its previous 2008 complaint. Consequently, the Mielkes claimed that the current complaint was time-barred pursuant to section 95.11(2)(b), Florida Statutes. Deutsche Bank responded that its count to reestablish the lost note was ancillary to its mortgage foreclosure count.

The trial court denied summary judgment, finding that section 673.3091, Florida Statutes, "clearly contemplates that an action to re-establish a lost note is filed in connection with an action to enforce the [n]ote." Accordingly, the trial court held that an "action under section 673.3091 is connected to an action for Mortgage Foreclosure, and not a standalone cause of action."

The Mielkes reasserted their statute of limitations defense at trial. The trial court issued a Final Judgment of Foreclosure in Deutsche Bank's favor. The Final Judgment also denied the Mielkes' Motion for Involuntary Dismissal and adopted the reasoning of its order denying the summary judgment motion.

II.

Review of statute of limitation issues relating to mortgage foreclosures is de novo. Virginia Ins. Reciprocal v. Walker , 765 So.2d 229, 231 (Fla. 1st DCA 2000), approved , 842 So.2d 804 (Fla. 2003).

A plaintiff has five years to bring a mortgage foreclosure action once a borrower has defaulted. § 95.11(2)(c), Fla. Stat. Florida courts have consistently held that a foreclosure action is not time-barred where the plaintiff alleges and proves the existence of a continual default. Bartram v. U.S. Bank Nat'l Ass'n , 211 So.3d 1009, 1019 (Fla. 2016) ; Forero v. Green Tree Servicing, LLC , 223 So.3d 440, 445 (Fla. 1st DCA 2017). As a result, "with each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage." Bartram , 211 So.3d at 1019.

In this case, the Mielkes do not dispute Deutsche Bank's ability to foreclose on their property after their subsequent default, but argue instead that the bank lacks standing because its related action to reestablish the lost promissory note is time-barred. This issue has not been addressed by Florida courts.

The Mielkes' argument hinges on their assertion that an action for reestablishing a lost note accrues when the party becomes aware of the note's loss or destruction. Thus, the issue for this Court is whether the ability to enforce a lost note accrues when the plaintiff discovers that the note is lost.

III.

A statute of limitations "set[s] a time limit within which an action must be filed as measured from the accrual of that cause of action, after which time obtaining relief is barred." Hess v. Philip Morris USA, Inc. , 175 So.3d 687, 695 (Fla. 2015) (quoting Merkle v. Robinson , 737 So.2d 540, 542, n.6 (Fla. 1999) ). Accordingly, "[a] cause of action accrues when the last element constituting the cause of action occurs." § 95.031(1), Fla. Stat.

The Mielkes contend that the last element in seeking the enforcement of a lost note pursuant to section 673.3091 is the plaintiff's awareness that the note is lost. We reject this interpretation. Section 673.3091 provides as follows:

(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person's right to enforce the instrument.

(emphasis added).

The language of section 673.3091 demonstrates that it is not intended to create a cause of action to reestablish a lost note. Rather, it only recognizes that an entity not possessing an instrument is still entitled to enforce it if the entity meets certain conditions. The cause of action is the enforcement itself; section 673.3091 only sets forth special requirements if the plaintiff does not possess the instrument.

This interpretation is bolstered by the language of section 673.3011, Florida Statutes. The statute defines a person entitled to enforce an instrument to include "[a] person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091...." § 673.3011(3), Fla. Stat. Accordingly, sections 673.3011 and 673.3091 make clear that the right to enforce a lost note, in the foreclosure context, travels with the breach that triggers the need to seek enforcement-default by a mortgagor. As a result, section 673.3091 does not create a standalone cause of action apart from a breach.

The Mielkes' argument conflates the requirements of section 673.3091 with the right to reestablish a lost document under section 71.011, Florida Statutes. Unlike section 673.3091, section 71.011 does create a standalone cause of action:

A person desiring to establish any paper, record or file, except when otherwise provided, shall file a complaint in chancery setting forth that the paper, record or file has been lost or destroyed and is not in the custody or control of the petitioner, the time and manner of loss or destruction, that a copy attached is a substantial copy of that lost or destroyed, that the persons named in the complaint are the only persons known to plaintiff who are interested for or against such reestablishment.

§ 71.011(5), Fla. Stat. This statute does not merely acknowledge that a person who does not possess a document may enforce it and describe the conditions for such enforcement; it actually sets out a procedure for an entity to reestablish a lost document, starting with the filing of a complaint demonstrating an entitlement to it.

Deutsche Bank did not rely on section 71.011 in its foreclosure complaint. The complaint simply exercised Deutsche Bank's right to enforce its promissory note due to the Mielkes' default. Pursuant to section 673.3011, Deutsche Bank had to demonstrate that it was the proper holder of the note before they could foreclose on the Mielkes' condominium. Since they did not possess the original note, Deutsche Bank had to demonstrate that it complied with section 673.3091 to show that it was the holder of the note pursuant to section 673.3011(3). Therefore, the right to enforce the lost note did not accrue until the Mielkes defaulted.

IV.

Section 673.3091, Florida Statutes, does not create a cause of action separate from a mortgagee's right to foreclosure. The right to enforce a promissory note accrues when the default occurs, regardless of whether the plaintiff possesses the note. As a result, the trial court did not err in entering Final Judgment in favor of Deutsche Bank.

AFFIRMED .

Makar and Winsor, JJ., concur.

      The Florida Supreme Court's reasoning in Bartram was predicated on the "recognition of the unique nature of the mortgage obligation and the continuing obligations of the parties in that relationship [and that] [i]f res judicata prevented a mortgagee from acting on a subsequent default even after an earlier claimed default could not be established, the mortgagor would have no incentive to make future timely payments on the note." Singleton v. Greymar Assocs. , 882 So.2d 1004, 1007 (Fla. 2004).

      The Second District alluded to this issue in Peters v. Bank of New York Mellon , 227 So.3d 175, 177 (Fla. 2d DCA 2017). In Peters , one of the issues raised by the appellants was "that the Bank's claim to reestablish the lost note is barred by the applicable statute of limitations." Id. at 178. The Second District reversed the trial court finding that the Bank "failed to establish its ownership of the lost note." Id. at 180. As a result, the court did not address the statute of limitations issue, but it cited the trial court's reasoning for rejecting the argument:
      [T]he loss or discovery of the lost instrument is not a claim. It's an event. It's nothing that gives rise to a claim that would give rise to [a] cause of action. The only time that there's going to be a claim resulting from a lost instrument is when it needs to be enforced and that is when it goes into default.
      Id. at 177 (emphasis added).


author: Per Curiam.

text:
    Tanya L. CAIRNS, Appellant, v. State of Florida, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM and Aaron Evans, Appellees.
    No. 1D18-443
    District Court of Appeal of Florida, First District.
    January 10, 2019
    Tanya L. Cairns, pro se, Appellant.
    Ashley Brooke Moody, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee Department of Revenue.
   Per Curiam.

Tanya Cairns appeals a final order denying the Department of Revenue's proposed order to modify an administrative child support order. She contends the administrative law judge incorrectly calculated the father's child support obligation and effectively modified the parents' time-sharing arrangement by finding that the father had visitation with the child eighty percent of the time. Cairns' arguments appear to be based on a misreading of the child support guidelines worksheet. In calculating the child support obligation, the judge multiplied the father's basic support obligation by eighty percent, which represents the percentage of the other parent's overnight stays with the child. See § 61.30(11)(b)3., Fla. Stat. The judge did not find that the father had visitation eighty percent of the time. Nor did the order modify, in any way, the existing time-sharing plan. Because the judge's findings are supported by competent, substantial evidence, we affirm.

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


author: KHOUZAM, Judge.

text:
    Maurice Arsenio VIDANA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-5061
    District Court of Appeal of Florida, Second District.
    Opinion filed January 16, 2019.
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Maurice Arsenio Vidana appeals his conviction and sentence for direct criminal contempt arising from his failure to participate in depositions. Because the court failed to make findings that would support an adjudication of direct criminal contempt, we reverse and remand with directions to vacate Vidana's conviction.

Vidana was twice subpoenaed to attend a deposition in a case where he was an alleged victim of a shooting. On both occasions, he refused. At the hearing on the order to show cause why Vidana should not be held in contempt, several witnesses testified. An attorney testified that Vidana was an alleged victim in the case against his client. Twice the attorney had a subpoena issued to depose Vidana, and twice Vidana failed to show up to the scheduled deposition. An investigator with the State Attorney's Office testified that he personally served Vidana, who was in jail at the time, with both subpoenas. A court reporter testified that she was hired for one of the depositions, and the deposition did not happen because the witness refused to come. Three deputies who worked at the jail testified that they attempted to take Vidana to the depositions but he refused. The first time he stated that he was ill, but nursing staff concluded that he was physically able to go.

Based on this evidence, the court found Vidana guilty of direct criminal contempt. The contempt order stated that "[t]he [c]ourt, after receiving physical evidence, hearing testimony, and the argument of counsel, found the Defendant [g]uilty as charged." The written order did not-and, considering the evidence presented, could not-recite specific facts that would support the adjudication of guilt for direct criminal contempt.

Florida Rule of Criminal Procedure 3.830 addresses direct criminal contempt and provides, in relevant part:

A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based.

"The supreme court [has] explained that for conduct to be considered direct criminal contempt, 'all of the acts underlying the contemptuous conduct must be committed in open court in the presence of the judge.' " Brown v. State, 226 So.3d 369, 372 (Fla. 2d DCA 2017) (quoting Plank v. State, 190 So.3d 594, 606 (Fla. 2016) ). "If the judge needs to rely on statements and testimony from others regarding their knowledge about the contemptuous acts, the misconduct is no longer considered direct criminal contempt because additional testimony or explanation is necessary." Id. (quoting Plank, 190 So.3d at 606 ). In other words, "[w]henever a judge must take testimony during a criminal contempt proceeding or rely on additional evidence not directly observed by the trial judge, the proceeding is no longer direct criminal contempt but becomes indirect criminal contempt." Id. (quoting Plank, 190 So.3d at 607 ).

The evidence in the instant case could not support Vidana's conviction for direct criminal contempt-even if the court had made factual findings as required by rule 3.830. Vidana's contemptuous conduct took place at the jail, not in open court or in the judge's presence. The court did not see or hear the conduct. Rather, the court took testimony from the attorney who had the subpoena issued, the investigator that served Vidana with the subpoenas, the deputies who tried to take Vidana to the depositions, and the court reporter who was hired for one of the depositions. It was this testimony on which the court relied to find Vidana guilty. Because the trial judge did not directly observe Vidana's allegedly contemptuous conduct but rather needed to rely on others' testimony, it was an abuse of discretion to find Vidana in direct criminal contempt. Accordingly, we reverse and remand with directions to vacate Vidana's conviction.

Reversed and remanded with directions.

BADALAMENTI, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.


author: Per Curiam. Wetherell, J., concurring.

text:
    STATE of Florida, Agency for Health Care Administration, Appellant, v. Michael Lee SMATHERS, II, Appellee.
    No. 1D17-4239
    District Court of Appeal of Florida, First District.
    January 22, 2019 Rehearing Denied February 27, 2019
    Ashley Brooke Moody, Attorney General, and Elizabeth Teegen, Assistant Attorney General, Tallahassee, for Appellant.
    John H. Pelzer of Greenspoon Marder LLP, Fort Lauderdale, for Appellee.
   Per Curiam.

After Michael Lee Smathers obtained a settlement in a personal injury lawsuit, the Agency for Health Care Administration (AHCA) asserted a lien against the settlement proceeds for reimbursement of medical assistance provided to Smathers under the Medicaid program. Smathers filed a petition with the Division of Administrative Hearings (DOAH) to contest the amount of the lien. The administrative law judge (ALJ) concluded that DOAH lacked jurisdiction and entered a final order dismissing the petition.

AHCA appealed, arguing that the ALJ erred in concluding that he was required to dismiss the petition for lack of jurisdiction. Because it appeared that AHCA did not have standing to appeal, and because Smathers did not cross-appeal, we ordered the parties to show cause why the appeal should not be dismissed.

Both parties conceded that the final order did not adversely affect AHCA. Because the final order was wholly favorable to AHCA, the agency lacked standing and we must dismiss the appeal. See § 120.68(1)(a), Fla. Stat. (2018) ; Fla. Dep't of Envtl. Prot. v. Fla. Reemployment Assistance Appeals Comm'n , 123 So.3d 1154, 1154-55 (Fla. 1st DCA 2012) (dismissing an appeal where the order on appeal was wholly favorable to the state agency seeking review of the order); Dep't of Health v. Fresenius Med. Care Holdings, Inc. , 935 So.2d 636, 637 (Fla. 1st DCA 2006) ("An appeal of a wholly favorable judgment must be dismissed."); Fla. Comm'n on Hurricane Loss Projection Methodology v. Dep't of Ins. , 716 So.2d 345, 346 (Fla. 1st DCA 1998) ("We decline to examine an administrative law judge's rationale for a ruling at the behest of the party in whose favor the administrative law judge ruled.").

DISMISSED.

Rowe and Winokur, JJ., concur; Wetherell, J., concurs with opinion.

Wetherell, J., concurring.

I fully concur in the dismissal of this appeal. I write separately to make three points.

First, although AHCA was not adversely affected by the final order because the effect of the order was to allow AHCA to recover the full amount of its lien, Smathers was adversely affected by the order and could have appealed it. But, inexplicably, he failed to do so. By not appealing the final order (or filing a notice of joinder or cross-appeal after AHCA filed its appeal), Smathers waived his opportunity to obtain a reversal of the order and, ultimately, a reduction in the lien upon remand. Smathers' suggestion that he can now obtain relief from the lien in the circuit court is meritless because a party who does not exhaust all available avenues to remedy an erroneous administrative decision cannot thereafter obtain relief in a judicial forum. See Robinson v. Dep't of Health , 89 So.3d 1079, 1081 (Fla. 1st DCA 2012) ("As a general rule, exhaustion of administrative remedies includes pursuing an appeal from an administrative ruling where a method of appeal is available.").

Second, although there is no question that ALJs have the authority (if not the duty) to independently consider whether they have jurisdiction over a dispute, that authority does not permit the ALJ to ignore a statute that explicitly grants DOAH jurisdiction over a dispute-like section 409.910(17)(b), Florida Statutes, does-simply because, in the ALJ's view, the statute is "inoperative," ineffectual, or otherwise invalid. See Communications Workers of America, Local 3170 v. City of Gainesville , 697 So.2d 167, 170 (Fla. 1st DCA 1997) ("The Administrative Procedure Act does not purport to confer authority on administrative law judges or other executive branch officers to invalidate statutes on constitutional or any other grounds."). Indeed, so long as the dispute falls within the scope of the statute and all jurisdictional prerequisites have been met (e.g. , timely-filed by a person with standing), the ALJ is duty-bound to adjudicate the merits of the dispute.

Third, our dismissal of this appeal should not be viewed as an approval of the ALJ's novel conclusion that DOAH lacked jurisdiction to adjudicate the merits of Smathers' petition. This conclusion was based on the ALJ's view that the federal district court's decision in Gallardo v. Dudek "substantially undermines the superficially available administrative remedy" in section 409.910(17) to the point that it leaves DOAH with no remedy to offer to petitioners such as Smathers, but that conclusion finds no support in the court's decision. Indeed, on rehearing, the court expressly recognized that DOAH would continue to have a role in determining the proper amount of AHCA's lien. See 2017 WL 3081816, at **8-9. Moreover, even if the ALJ's view about the unavailability of a remedy was correct, that still would not have justified dismissal of the petition for lack of jurisdiction; at most, it would have justified denial of the petition on the merits.

With these additional observations, I join the majority opinion.

      In his reply to AHCA's response to our order to show cause why AHCA had standing to appeal the final order, Smathers did not argue that AHCA had standing. Rather, he suggested that AHCA "may come to a different conclusion regarding whether it is aggrieved by the ALJ's dismissal in this case" because the dismissal "eliminates the rationale relied upon by the circuit court for the Eleventh Circuit in Miami-Dade County to decline Smathers['] request to adjudicate AHCA's lien." Smathers continued:
      Thus, the circuit court's order declining to exercise its jurisdiction can be vacated, potentially pursuant to Florida Rule of Civil Procedure 1.540(b)(5) if necessary, so that the circuit court can exercise its traditional role to adjust AHCA's lien. As a court of general jurisdiction, in the absence of any alternative mandatory forum, the circuit court can and should decide the issues regarding adjudication of AHCA's lien on Smathers' proceeds.

      263 F.Supp.3d 1247 (N.D. Fla. 2017) (Walker, J.) (holding that section 409.910, Florida Statutes, is preempted by the federal Medicaid Act insofar as the statute (1) allows AHCA to seek reimbursement of its past Medicaid payments from the portion of the Medicaid recipient's tort recovery that represents future medical expenses, and (2) requires proof by clear and convincing evidence when the recipient challenges the amount of AHCA's statutorily-calculated lien), clarified on rehearing sub nom, Gallardo v. Senior , 2017 WL 3081816 (N.D. Fla. July 18, 2017), appeal filed , No. 17-13693 (11th Cir. Aug. 17, 2017). Accord Giraldo v. Agency for Health Care Admin. , 248 So.3d 53, 56 (Fla. 2018) (holding that "federal law allows AHCA to lien only the past medical expenses portion of a Medicaid beneficiary's third-party tort recovery to satisfy its Medicaid lien").


text:
    Jesse A. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4805
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Jesse A. Johnson, Petitioner, pro se
    Ashley Brooke Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Jesse A. Johnson raises numerous claims asserting that his appellate counsel handled his previous appeal in an ineffective manner. In 2015, we affirmed Mr. Johnson's conviction for burglary of a dwelling with a battery, child abuse, battery, and petit theft. See Johnson v. State , 177 So. 3d 254 (Fla. 1st DCA 2015). In one respect, we agree with Mr. Johnson that his appellate counsel was ineffective. We grant the petition because appellate counsel did not address the trial court's failure to hold a hearing, or to rule on Mr. Johnson's competency. We otherwise deny the petition.

During the trial court proceedings, the judge on his own motion ordered that Mr. Johnson be evaluated for competency. See Florida Rule of Criminal Procedure 3.210(b). When a court has reasonable grounds to question a defendant's competency, "the rules of criminal procedure require the trial court to hold a hearing." Reynolds v. State , 177 So.3d 296, 297 (Fla. 1st DCA 2015). See also McCants v. State , 395 So.2d 278, 279 (Fla. 1st DCA 1981) ("[T]he trial court has the responsibility to conduct a hearing for competency to stand trial whenever it reasonably appears necessary, whether requested or not."). If a court fails to hold a competency hearing under these circumstances, reversal is required. Brooks v. State , 180 So.3d 1094, 1095 (Fla. 1st DCA 2015).

Here, the record shows that after raising concerns about Mr. Johnson's competency, the trial court ordered a competency evaluation. But the court did not hold the requisite hearing, or make an independent competency determination as required by Rule 3.210(b) and the cases. At a subsequent hearing, the court asked whether the competency evaluation had been completed, but it never held a competency hearing, or made a finding that Mr. Johnson was competent to proceed. This was reversible error. Brooks , 180 So.3d at 1095. Also, under our cases, the failure to raise this meritorious claim on appeal constitutes ineffective assistance of appellate counsel. See Pamphile v. State , 216 So.3d 765 (Fla. 1st DCA 2017). Accordingly, we grant the petition on this issue. On remand, the court may make a nunc pro tunc determination of competency that Mr. Johnson was in fact competent to stand trial. If the court cannot make such a nunc pro tunc determination, however, then it shall grant a new trial.

Accordingly, we GRANT the petition as to the competency issue and REMAND for further proceedings. The petition is otherwise DENIED.

Makar, Osterhaus, and Jay, JJ., Concur.


text:
    Kristopher A. JOYNER, Appellant, v. Christy J. WORLEY, Appellee.
    No. 1D17-3540
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Casey P. Waterhouse, Waterhouse Law Firm P.A., Shalimar, for Appellant.
    Gillis E. Powell Jr., Powel, Powell, and Powell, Crestview, Gary L. Printy of Law Office of Gary Lee Printy, Tallahassee, for Appellee.
   Per Curiam.

Kristopher and Christy Worley married in 1999 but divorced six years later. The final judgment of dissolution incorporated a marital settlement agreement that provided for child-support payments. In 2012, the father petitioned to reduce child support based on his economic circumstances. The mother counter-petitioned to increase child support based on the children's increased needs. The court ultimately increased the monthly child-support obligation, found the father substantially in arrears, and ordered the father to pay for certain past medical expenses for the children. The court also awarded the mother some $140,000 in attorney's fees. The father now appeals, raising several issues.

Our review is hindered by the lack of a transcript. Some of the father's appellate arguments are facially plausible, but without a transcript we cannot determine whether many of the asserted errors were preserved for appeal and-if they were-whether they were indeed errors. See Burkett v. Burkett , 155 So.3d 478 (Fla. 1st DCA 2015) ("The former husband has also raised our suspicions concerning substantive error in the decision to award attorney's fees, in the amount of attorney's fees awarded, and in the inclusion of all the attorney's fees in the income deduction order. However, we are again constrained to affirm because the former husband has represented that no transcript is available for the relevant hearing. Without a transcript, we cannot know what evidence the court heard beyond the documents that were filed in the record, and we cannot know what issues were preserved for review." (citations omitted) ). In addition, the father raises some claims that were not preserved because they were not raised in a motion for rehearing. See Simmons v. Simmons , 979 So.2d 1063, 1064 (Fla. 1st DCA 2008) ("[A] party is not entitled to complain that a judgment in a martial and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing.").

Nevertheless, we reverse in part. We agree with the father that the trial court erred in awarding attorney's fees and costs without first conducting a hearing and offering the father the opportunity to dispute the reasonableness of the fees claimed. See Newman v. Newman , 121 So.3d 661, 662 (Fla. 1st DCA 2013) ; Giovanini v. Giovanini , 89 So.3d 280, 282 (Fla. 1st DCA 2012) (holding that absent stipulation, the reasonableness of attorney's fees must be determined at an evidentiary hearing).

Other than as discussed above, we affirm the order on appeal.

AFFIRMED in part; REVERSED in part.

Wolf, Jay, and Winsor, JJ., concur.

      We entered an order directing that the father file transcripts, if available, and supplement the record on appeal. The father's counsel subsequently reported that transcripts were not available and would not be filed.


author: CASANUEVA, Judge.

text:
    Michael C. SUTTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4073
    District Court of Appeal of Florida, Second District.
    Opinion filed January 23, 2019.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa; and Bilal Ahmed Faruqui, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
    ORDER RELINQUISHING JURISDICTION
   CASANUEVA, Judge.

Michael C. Sutton appeals his judgments and sentences for attempted second-degree murder and possession of a firearm by a convicted felon following his nolo contendere plea to the charges. Mr. Sutton argues, and the State correctly concedes, that the trial court erred by failing to conduct a competency hearing and by failing to enter a competency order. Therefore, this case must be remanded for the trial court to determine, if it is able, whether Mr. Sutton was competent at the time he entered the plea and to enter a competency order reflecting its finding.

Prior to Mr. Sutton's plea, his attorney successfully moved for an order appointing mental health experts to examine Mr. Sutton to determine if he was mentally competent to proceed to trial. Two experts examined Mr. Sutton and one expert found that he was not competent to proceed, while the other expert found that he was competent to proceed.

At the change of plea hearing, the trial court asked Mr. Sutton if he was "suffering today or in the past from any mental health disorder that effects your thinking?" Mr. Sutton replied in the affirmative and his attorney stated "In the past." The trial court then inquired:

THE COURT: Alright, you feel like you know what you're doing here today?
THE DEFENDANT: Yes, Sir.
THE COURT: Your responses appear to [be] appropriate to the questions posed. Are you taking any medication now?
THE DEFENDANT: No, Sir.
THE COURT: And do you feel like your mind's clear?
THE DEFENDANT: Yes, Sir.
....
THE COURT: Alright. Has he previously been declared incompetent?
[DEFENSE COUNSEL]: No Sir, he was evaluated was um--rehabilitated or uh--re-reintroduced into the system as competent. We actually had a independent evaluation done afterwards. It came back competent as well.

There is no indication in the record that the trial court was given the opportunity to review the experts' reports.

Florida Rule of Criminal Procedure 3.212(b) requires a trial court to enter a written order if the court finds the defendant competent to proceed. Further, a trial court may not accept a stipulation from the parties regarding a defendant's competency to stand trial because doing so "improperly absolves the trial court from making an independent determination." Dougherty v. State, 149 So.3d 672, 678 (Fla. 2014).

Although the trial court, when the parties agree, may decide the issue of competency on the basis of written reports alone, it cannot dispense with its duty to make an independent determination about a defendant's competency, and must enter a written order if the defendant is found competent to proceed.

Id. at 679.

There are three recent cases from this court addressing this issue: Sallee v. State, 244 So.3d 1143 (Fla. 2d DCA 2018), Carrion v. State, 235 So.3d 1051 (Fla. 2d DCA 2018), and Moulton v. State, 230 So.3d 934 (Fla. 2d DCA 2017). In each case, the trial court appointed experts to evaluate the defendant's competency to proceed, and at a competency hearing, the defense attorney recounted the findings of the experts and conceded that the defendant had been found competent. The trial court in each case never entered a written order in which it made an independent finding that the defendant was competent. Sallee, 244 So.3d at 1145 ; Carrion, 235 So.3d at 1053 ; Moulton, 230 So.3d at 936 ; see also Golloman v. State, 226 So.3d 332, 335 (Fla. 2d DCA 2017) (holding that the trial court improperly relied on stipulation of counsel that the appellant's competency had been restored, because after a reason for a competency hearing has arisen, a "defendant has a due process right to an independent finding of competency").

In Sallee, 244 So.3d at 1146-47, where the trial court had instructed defense counsel to prepare an order finding the defendant competent, but no such order was in the record, this court merely remanded the case for the trial court to enter a nunc pro tunc order finding the defendant competent. However, in Carrion, 235 So.3d at 1053-54, where the trial court never made a determination regarding the defendant's competency, this court remanded the case for a new competency hearing, noting that "a retroactive determination of competency may be possible and legally permissible because there were two pre-plea psychological evaluations performed." This court further held that if the trial court finds that the defendant was competent when he entered his plea, it should enter a nunc pro tunc order and the judgment and sentence would remain. Id. at 1054. On the other hand, this court instructed that if a retroactive determination cannot be made or if the trial court finds that the defendant was incompetent when he entered his plea, the trial court should allow the defendant to withdraw his plea if he is presently competent. Id. This court outlined the same procedure in Moulton, 230 So.3d at 939.

Accordingly, we relinquish jurisdiction to the trial court for sixty days to conduct a competency hearing, at which Mr. Sutton must be present. See Carrion, 235 So.3d at 1054. "At the competency hearing, a retroactive determination of competency may be possible and legally permissible because there were two pre-plea psychological evaluations performed." Id.

If the trial court finds that Mr. Sutton "was competent at the time of the plea hearing, it must enter a nunc pro tunc order, and the judgment and sentence need not change." See id. (quoting Sheheane v. State, 228 So.3d 1178, 1181 (Fla. 1st DCA 2017) ). However, if the trial court finds that Mr. Sutton was incompetent at the time of the plea hearing or if it cannot make a retroactive determination, the court must allow Mr. Sutton to withdraw his plea, so long as Mr. Sutton is competent to do so. See id. At the end of the relinquishment period, counsel for the parties shall file a status report with this court to indicate the outcome of the competency hearing and to advise this court of the need for further proceedings.

Jurisdiction relinquished with directions.

KELLY and LUCAS, JJ., Concur.


author: BLACK, Judge. LaROSE, Chief Judge, Dissenting.

text:
    EASTWOOD SHORES PROPERTY OWNERS ASSOCIATION, INC., Appellant, v. DEPARTMENT OF ECONOMIC OPPORTUNITY, Appellee.
    Case No. 2D17-3467
    District Court of Appeal of Florida, Second District.
    Opinion filed January 25, 2019
    Tiffany A. Grant of Cianfrone, Nikoloff, Grant & Greenburg, P.A., Dunedin, for Appellant.
    Peter L. Penrod, General Counsel, and Ross Marshman, Jon F. Morris, and Christina A. Shideler, Assistant General Counsels, Tallahassee, for Appellee.
   BLACK, Judge.

In this appeal from a final agency order, Eastwood Shores Property Owners Association, Inc., challenges the Department of Economic Opportunity's determination that the Association is not entitled to revive its declaration of covenants and restrictions pursuant to the covenant revitalization statutes, §§ 720.403-.407, Fla. Stat. (2016), because it is not a "homeowners' association" as defined by the Marketable Record Titles to Real Property Act (MRTA), §§ 712.01-.11, Fla. Stat. (2016). We reverse.

I. Background

In April 1979, Eastwood Shores Condominiums recorded its declaration of covenants and restrictions in the public record of Pinellas County. The Association is the Florida not-for-profit corporation which maintains and operates various properties and improvements within Eastwood Shores, as stated in Eastwood Shores' declaration and in the Association's articles of incorporation. The Association is comprised of unit owners in Eastwood Shores.

By operation of MRTA, specifically section 712.02, Eastwood Shores' declaration of restrictions and covenants ceased to govern one or more of the units within the community in 2009. Pursuant to the covenant revitalization statutes, the Association sought approval from the Department of Economic Opportunity (the Department) of a proposal to revive Eastwood Shores' declaration, submitting the documents required by section 720.406.

The Department denied the proposed revival, finding that "the parcels in the Association are classified as condominiums," that chapter 720 does not apply to the Association, and that therefore the Association may not revive the declaration of covenants and restrictions under the covenant revitalization statutes. The Association sought review of the Department's decision.

Following an administrative hearing, the hearing officer recommended that the Department affirm the denial of the Association's proposal to revive its declaration of covenants and restrictions, finding that the Association did not dispute that it is governed by chapter 718, Florida Statutes (2016), Florida's Condominium Act; that chapter 720, Florida Statutes (2016), Florida's Homeowners' Association Act, does not apply to the Association through application of section 720.302; that the Association "does not fall within the definition of 'homeowners' association' as defined by MRTA" such that section 712.11 of MRTA applies; and that, therefore, the Association is not entitled to seek revival of its declaration under chapter 720.

The Department adopted the recommended order and issued its final order. It is that order which we review.

II. Analysis

The issue before us is whether the Association, whose members are unit owners within a condominium community, is a "homeowners' association" as defined by MRTA and is therefore entitled to revive its declaration of covenants and restrictions pursuant to sections 720.403-.407. The issue presented is one of statutory interpretation, and our review is de novo. Lutheran Servs. Fla., Inc. v. Dep't of Children & Families, 199 So.3d 286, 288 (Fla. 2d DCA 2015) ("An appellate court may set aside an agency action where the court finds that the agency erroneously interpreted a provision of law and a correct interpretation compels a particular result." (citing Metro. Dade Cty. v. Dep't of Envtl. Prot., 714 So.2d 512, 515 (Fla. 3d DCA 1998) ) ); see also § 120.68(7)(d), Fla. Stat. (2016).

The Association does not dispute that it is governed by chapter 718 or that section 720.302(4) unambiguously states that chapter 720 applies to associations regulated by chapter 718 only when a provision of chapter 718 has been "expressly incorporated into [chapter 720] for the purpose of regulating homeowners' associations." The Association maintains, however, that it is eligible to seek revival of its declaration pursuant to the covenant revitalization sections of chapter 720 by virtue of a specific provision in MRTA, section 712.11.

MRTA provides for marketable record title to estates in land "free and clear of all claims" except as to those exclusions expressly set forth. § 712.02. However, MRTA also recognizes that covenants and restrictions can be revived: "[a] homeowners' association not otherwise subject to chapter 720[, the Homeowners' Association chapter,] may use the procedures set forth in [ sections] 720.403 - 720.407 to revive covenants that have lapsed under the terms of [MRTA]." § 712.11. MRTA defines a homeowners' association as (1) "a homeowners' association as defined in [section] 720.301, or [ (2) ] an association of parcel owners which is authorized to enforce use restrictions that are imposed on the parcels." § 712.01(4). There is no dispute that MRTA effectively terminated the declaration as to certain units within Eastwood Shores. Whether MRTA also permits revival of the declaration is at issue. In that respect, the Association does not contend that it is a homeowners' association as defined in section 720.301; only the latter definition of homeowners' association in section 712.01(4) is at issue. Thus, in order for the Association to be eligible to seek revival of Eastwood Shores' declaration of covenants and restrictions, the Association must be comprised of owners of residential real property which is subject to exclusive ownership.

MRTA does not define "parcel owner"; it does, however, define a "parcel" as "real property which is used for residential purposes that is subject to exclusive ownership and which is subject to any covenant or restrictions of a homeowners' association." § 712.01(5). There is no dispute that Eastwood Shores is a residential community. Section 718.103, the definitions section of Florida's Condominium Act, defines a condominium "unit" as "a part of the condominium property which is subject to exclusive ownership." § 718.103(27), Fla. Stat. (2016). A condominium unit within Eastwood Shores is therefore-by definition-a residential property subject to exclusive ownership. And because Eastwood Shores' declaration of covenants provides that "[e]very person or entity who is a record fee simple Owner of a Unit ... shall be a member of the Association," that "[m]embership shall be appurtenant to, and may not be separated from, ownership of any Unit," and that the Association is authorized to enforce the covenants and restrictions of Eastwood Shores, the Association is a homeowners' association as defined in section 712.01.

Although "[e]ach unit owner owns a proportionate undivided share of the common elements appurtenant to the unit" that he owns, Ocean Trail Unit Owners Ass'n v. Mead, 650 So.2d 4, 7 (Fla. 1994) (citing § 718.103(10), (24), Fla. Stat. (1987) ), the ownership of an undivided share of the common elements does not change that the unit is subject to exclusive ownership and that the association is comprised of unit owners, see § 718.103(2) (defining "association" to include "any entity responsible for the operation of common elements owned in undivided shares by unit owners"). The Association is an association of owners of "real property which is used for residential purposes that is subject to exclusive ownership and which is subject to any covenant or restriction of [the] association." See § 712.01(4), (5). That unit owners have nonexclusive ownership of appurtenant condominium property-the common elements-in addition to exclusive ownership of their units does not remove an association made up of those unit owners from the definition of homeowners' association under chapter 712. There is no requirement in the definitions of homeowners' association or parcel in section 712.01 that parcel owners only own the property which renders them subject to the definitions. Reading the statutes in such a way as to exclude from MRTA's definition of a homeowners' association an association made up of owners of residential property subject to exclusive ownership because those owners also have nonexclusive property ownership interests requires the addition of words, and in this case the addition of a requirement, to the statutes. The courts are not at liberty to add language to statutes.

Gordon v. Fishman, 253 So.3d 1218, 1221 (Fla. 2d DCA 2018).

Our reading of MRTA is reinforced by the language of the covenant revitalization statutes themselves. Section 720.404 provides that "[p]arcel owners in a community are eligible to seek approval from the [Department] to revive a declaration of covenants" if the statutory requirements are met. Section 720.405 states that "[t]he proposal to revive a declaration of covenants ... under the terms of this act shall be initiated by an organizing committee consisting of not less than three parcel owners located in the community that is proposed to be governed by the revived declaration." § 720.405(1). Chapter 720 defines "parcel owner" as "the record owner of legal title to a parcel." § 720.301(12). And "parcel" is defined as

a platted or unplatted lot, tract, unit, or other subdivision of real property within a community, as described in the declaration:
(a) Which is capable of separate conveyance; and
(b) Of which the parcel owner, or an association in which the parcel owner must be a member, is obligated:
1. By the governing documents to be a member of an association that serves the community; and
2. To pay to the homeowners' association assessments that, if not paid, may result in a lien.

§ 720.301(11).

By the express language of sections 720.404 and 720.405, eligibility for revival is not determined by the definition of association. The parcel owners are eligible to seek revival of the declaration of covenants and restrictions. And a condominium unit is a parcel under the definition of section 720.301(11): the condominium unit is capable of conveyance separately from the whole of the condominium property in the same way that a chapter 720 parcel is separately conveyed from the whole of the community, compare § 718.103(13) (defining "condominium property"), with § 720.301(3) (defining "community"); the unit owners must be members of the association, per the declaration of covenants and restrictions, see §§ 718.103(2), .111(1)(a); and the failure to pay association assessments may result in a lien on the unit, see §§ 718.103(1), .116(5). Therefore, had the unit owners formed an organizing committee and prepared and submitted the necessary documents to the Department, see § 720.405, the Department would have been unable to deny the proposed revival on the basis that the organizing committee is not eligible to seek revival because it is not subject to chapter 720.

Finally, we agree with the Association that the purposes served by covenant revitalization in residential communities governed by chapter 720 are no less applicable to condominium properties and communities:

Preserv[ing] existing residential communities, promot[ing] available and affordable housing, protect[ing] structural and aesthetic elements of the[ ] residential community, and, as applicable, maintain[ing] roads and streets, easements, water and sewer systems, utilities, drainage improvements, conservation and open areas, recreational amenities, and other infrastructure and common areas that serve and support the residential community by the revival of a previous declaration of covenants and other governing documents that may have ceased to govern some or all parcels in the community.

§ 720.403(1).

Because the Department erroneously interpreted the applicable sections of MRTA and chapters 718 and 720, we reverse the order determining that the Association does not qualify as a "homeowners' association" and therefore is not entitled to revive its declaration of covenants. On remand the Department shall review the substance of the Association's proposed revived declaration and supporting documents in accordance with the covenant revitalization statutes.

Reversed and remanded.

BADALAMENTI, J., Concurs.

LaROSE, Chief Judge, Dissents with opinion.

LaROSE, Chief Judge, Dissenting.

I respectfully dissent. The Association was not a "homeowners' association" entitled to use sections 720.403-.407 to revive its lapsed declaration of covenants under MRTA, section 712.11. I would affirm.

We address a narrow issue: whether the Association is a "homeowners' association" comprised of "parcel owners" entitled to revive its declaration of covenants under chapter 712. The Association argues that it is a "homeowners' association" whose members own condominium units that are "parcels" under MRTA. The Department, in contrast, contends that the Association is not a chapter 712 "homeowners' association" because its parcels are comprised of both condominium units and undivided ownership in common elements; thus the parcels are not exclusively owned as required by section 712.01(4).

My disagreement with the majority is one of statutory construction. "The interpretation of a statute is an issue of law that we review de novo." City of Oldsmar v. Trinh, 210 So.3d 191, 205 (Fla. 2d DCA 2016) (citation omitted). When construing a statute, we first look to the statute's plain language for legislative intent. State v. Burris, 875 So.2d 408, 410 (Fla. 2004). When the statute's plain language is clear and unambiguous, we look no further. Id."[T]he statute's plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent." Id. (citing Lee Cty. Elec. Coop., Inc. v. Jacobs, 820 So.2d 297, 303 (Fla. 2002) ). "If the legislature did not intend the results mandated by the statute's plain language, then the appropriate remedy is for it to amend the statute." Whitney Bank v. Grant, 223 So.3d 476, 479 (Fla. 1st DCA 2017) (quoting Overstreet v. State, 629 So.2d 125, 126 (Fla. 1993) ).

Section 712.11 provides that "[a] homeowners' association not otherwise subject to chapter 720 may use the procedures set forth in [ sections] 720.403 - 720.407 to revive covenants that have lapsed under the terms of this chapter." Section 712.01(4) defines "homeowners' association," in part, as "an association of parcel owners which is authorized to enforce use restrictions that are imposed on the parcels." Section 712.01(5) defines "parcel" as "real property which is used for residential purposes that is subject to exclusive ownership and which is subject to any covenant or restriction of a homeowners' association." (Emphasis added.) Section 712.01(5) unambiguously, and indisputably, requires the "parcel" to be "subject to exclusive ownership." A person has exclusive ownership when the person has "[o]wnership free from any kind of legal or equitable interest in any one else," or a fee simple title to property. See Exclusive Ownership, Black's Law Dictionary (6th ed. 1990); see also City of Miami v. Osborne, 55 So.2d 120, 122 (Fla. 1951) ("A fee simple title assumes that all claims against the lands have been cleared."); Exclusive Ownership, Black's Law Dictionary (10th ed. 2014) ("See fee simple."); Fee Simple, Black's Law Dictionary (10th ed. 2014).

The Association's members own their respective condominium units in fee simple and each unit is subject to exclusive ownership. See § 718.103(27) (defining a condominium "unit" as "a part of the condominium property which is subject to exclusive ownership"). But each member also owns an undivided interest in the condominium's common elements, which the members may use and enjoy. See § 718.103(12), (28). Thus, a member's ownership in the common elements is not free from any kind of legal or equitable interest in any one else.

Moreover, the members cannot convey the ownership in their condominium units separate from their undivided interest in the common elements. See Vill. of Doral Place Ass'n v. RU4 Real, Inc., 22 So.3d 627, 630 (Fla. 3d DCA 2009) ("Under the plain language of section 718.107, a separate sale of a condominium's common elements is prohibited."). In point of fact, the members own an indivisible and hybrid property interest consisting of exclusive ownership of a condominium unit and a nonexclusive interest in the common elements. See Iezzi Family Ltd. P'ship v. Edgewater Beach Owners Ass'n, Inc., 254 So.3d 584, 585 n.1 (Fla. 1st DCA 2018) ("The condominium is a hybrid estate in property law whereby an individual obtains fee simple ownership of a unit and shares with other unit owners an undivided interest in the common elements." (quoting Rogers & Ford Constr. Corp. v. Carlandia Corp., 626 So.2d 1350, 1352 (Fla. 1993) ) ).

The majority ignores the hybrid nature of the condominium parcel. Rather, the majority's cabined analysis rests on the unit owners having exclusive ownership of their respective units. Section 712.11 applies to associations of owners who own real property "subject to exclusive ownership." See § 712.01(4), (5). I cannot agree that section 712.01 extends to an association whose members own an indivisible and hybrid property interest in the units and the common elements. See § 718.103(12), (28) ; Rogers & Ford Constr. Corp., 626 So.2d at 1352.

The Association's claim that it was established "in 1979 in such a manner that it would be considered a [c]hapter 720 homeowners['] association" does not compel a conclusion that it is a chapter 712 "homeowners' association," especially given that it concedes it is subject to chapter 718. The Association's comparison of its members' interest in the common elements to hypothetical joint tenants' interest in a lot is also unavailing because it ignores the fact that the members' interest is nonexclusive.

Further, the Association has failed to demonstrate that the statute's plain language would lead to an unreasonable result or a result clearly contrary to legislative intent. The Association argues that the statute's plain language would lead to an absurd result because it would leave the Association without recourse to prevent or cure the extinguishing effects of MRTA. The Association overstates its plight. There is a way to prevent the extinguishment: referencing the declaration of covenants in the condominium deeds. See § 712.03(1) (stating that MRTA shall not extinguish "easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title"); Gary A. Poliakoff & Donna D. Berger, The Reinstatement of Covenants, Conditions, and Restrictions Extinguished by the Marketable Record Title Act, 79 Fla. B.J. 14, 15 n.4 (2005) (noting that generally MRTA does not extinguish a condominium association's declaration of covenants because condominium deeds reference the declaration, and thus, the declaration "is considered part of the 'root of title' "); see, e.g., Sunshine Vistas Homeowners Ass'n v. Caruana, 623 So.2d 490, 491-92 (Fla. 1993) (holding that the thirty-one-year-old restriction was preserved when the muniments in the chain of title identified the recorded restriction).

Finally, the Association has not presented, and I have not found, any indication that the legislature intended for section 712.11 to apply to condominium associations. If the legislature wishes to apply section 712.11 to facts like those in this case, "it certainly has the capacity to do so with clarity and specificity." See Clark v. Bluewater Key RV Ownership Park, 197 So.3d 59, 60, 62 (Fla. 3d DCA 2012) (adopting en haec verba the trial court's order). "[W]e will not expand the statute to include language the [l]egislature did not enact." See Brindise v. U.S. Bank Nat'l Ass'n, 183 So.3d 1215, 1219 (Fla. 2d DCA 2016).

I would affirm the Department's final order.

      The units for which the declaration of covenants and restrictions are no longer governing are those in which the "muniments of title," the deeds, do not reference the declaration of covenants and restrictions. See § 712.03(1) (providing that MRTA does not extinguish "easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title").

      Section 720.302(4) provides, in pertinent part: "This chapter does not apply to any association that is subject to regulation under chapter 718 ... except to the extent that a provision of chapter 718 ... is expressly incorporated into this chapter for the purpose of regulating homeowners' associations."

      Interestingly, although the Association's declaration of covenants is titled "Declaration of Covenants and Restrictions for Eastwood Shores Condominiums," the declaration does not reference chapter 718 or its predecessor, chapter 711. Nonetheless, the Association appears to have conceded that although the Association was created in 1979 as a chapter 720 association, it is governed by chapter 718.

      The Association alternatively argues that MRTA is unconstitutional as applied to it. Because the constitutional issue was not sufficiently raised below and our resolution based on the plain language of the applicable statutes renders it unnecessary, we do not address the Association's constitutional question. See In re Holder, 945 So.2d 1130, 1133 (Fla. 2006) ("[W]e avoid considering a constitutional question when the case can be decided on nonconstitutional grounds.").

      Had the Association argued that it meets the definition of a homeowners' association as provided by section 720.301, reversal would still be required. Section 720.301(9) defines a "homeowners' association" or "association" as "a Florida corporation responsible for the operation of a community ... in which the voting membership is made up of parcel owners ... and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel." For the reasons discussed later in this opinion, the Association is comprised of parcel owners as defined in chapter 720.

      We recognize that the recent amendments to MRTA, effective October 1, 2018, render much of this opinion inapplicable moving forward. See ch. 2018-55, §§ 2, 5-6, Laws of Fla. (2018). The amendments include replacing the term "homeowners' association" with "property owners' association," and defining "property owners' association" to include "an association of parcel owners which is authorized to enforce a community covenant or restriction that is imposed on the parcels." § 712.01(5), Fla. Stat. (2018) ; ch. 2018-55, § 2. The amendments also eliminate the exclusive ownership requirement in the definition of parcel, instead defining parcel as "any real property that is subject to any covenant or restriction of a property owners' association." § 712.01(3), Fla. Stat. (2018) ; ch. 2018-55, § 2; see also §§ 720.3032, Fla. Stat. (2018) (providing that "[a]ny property owners' association desiring to preserve covenants from potential termination after 30 years by operation of chapter 712 may record in the official records of each county in which the community is located a notice specifying ... [t]he names of the affected subdivision plats and condominiums or, if not applicable, the common name of the community"), .403(3) ("[Part III of this chapter] is intended to provide mechanisms for the revitalization of covenants or restrictions for all types of communities and property associations and is not limited to residential communities."). We also note that there is no prohibition against successive proposals to revive a declaration of covenants; that is, an association or an organizing committee of parcel owners may seek to revive a declaration of covenants under the 2018 amendments to MRTA regardless of the outcome of prior attempts to revive the declaration.

      "Condominium property," in turn, is defined as "the lands, leaseholds, and personal property that are subjected to condominium ownership, whether or not contiguous, and all improvements thereon and all easements and rights appurtenant thereto intended for use in connection with the condominium." § 718.103(13).

      "Appurtenances are things belonging to another thing as principal and which pass as incident to the principal thing." Blok Builders, LLC v. Katryniok, 245 So.3d 779, 783 n.1 (Fla. 4th DCA 2018) (quoting Chackal v. Staples, 991 So.2d 949, 955 (Fla. 4th DCA 2008) ). A proportionate undivided interest in the common elements pass as incident to the unit, which may be exclusively owned.

      Exclusive ownership is not synonymous with ownership in fee simple. Jointly owned land and undivided interests in land may be held in fee. See In re Estate of Cleeves, 509 So.2d 1256, 1258 (Fla. 2d DCA 1987) ("[S]everal types of estates or interests, joint or several, may exist in the same fee. A tenancy in common is one such type of joint interest or concurrent ownership that may exist in a fee." (citation omitted) ); Restatement (First) of Property §§ 14, 48 (Am. Law. Inst. 1936) ; see also Bank One, Dayton, N.A. v. Sunshine Meadows Condo. Ass'n, 641 So.2d 1333, 1335 (Fla. 1994) ("The declaration provided that the fee simple title to each condominium parcel would include both the unit and an undivided interest in the common elements, that any attempt to separate title to a unit from the common elements appurtenant to that unit would be 'null and void,' and that the common elements shall remain undivided so long as the condominium exists."); Daytona Dev. Corp. v. Bergquist, 308 So.2d 548, 549 (Fla. 2d DCA 1975) (affirming order "adjudg[ing] appellees to be the owners in fee simple of an undivided interest in the Recreation Unit to the extent of their ownership in the common elements of Harbour Club Condominium No. 2"); Tower House Condo., Inc. v. Millman, 410 So.2d 926, 930 (Fla. 3d DCA 1981) ("Because a unit owner's undivided share in the parking area is appurtenant to the unit, Section 718.106(2)(a), Florida Statutes, supra, and part of the fee simple, Article V, Declaration of Condominium, supra, the parking area itself is necessarily appurtenant to the unit, even if regulated by the Association.").

      A "condominium parcel" is the "unit, together with the undivided share in the common elements appurtenant to the unit." § 718.103(12). "Common elements" are those "portions of the condominium property not included in the units." § 718.103(8). When the unit is conveyed, its appurtenant percentage share of the common elements is simply conveyed with it. §§ 718.103(11), (12), .104, .107(1). Whether the common elements, or the appurtenant undivided share in them, are capable of separate conveyance is not at issue. Cf. § 718.107(2) ("The share in the common elements appurtenant to a unit cannot be conveyed or encumbered except together with the unit.").

      The parties refer to the portions of the condominium property not included in the units as the "common area." "Common area" is a term used in chapter 720 for homeowner associations. See § 720.301(2). However, because the parties agree that chapter 718 applies, "common elements" is the appropriate term. See § 718.103(8) (" 'Common elements' means the portions of the condominium property not included in the units.").

      As the majority recognizes, section 712.01(4) also defines "homeowners' association" as "a homeowners' association as defined in [section] 720.301." The Association does not argue on appeal that it was a homeowners' association as defined by section 720.301(9). I see no need for the majority to conclude in footnote 5 that the Association might have been successful on that argument had it made it. See Manatee Cty. Sch. Bd. v. NationsRent, Inc., 989 So.2d 23, 25 (Fla. 2d DCA 2008) (explaining that it is inappropriate "to depart from our role as a neutral tribunal and to become an advocate by developing arguments that" an appellant chose not to make).

      To the contrary, the House of Representatives Staff Analysis noted that the law prior to section 712.11 did not permit nonmandatory homeowner associations to revitalize covenants under chapter 720, and then explained that section 712.11 "would allow homeowners' associations that are not regulated by [chapter 720] to utilize the covenant revitalization procedures available to mandatory homeowners' associations." Fla. H.R. Comm. on Cts. HB 433 (2007), Staff Analysis (Mar. 7, 2007), available at http://www.leg.state.fl.us/data/session/2007/House/bills/analysis/pdf/h0433a.CTS.pdf. The legislature was concerned that nonmandatory homeowners' associations would not be able to revitalize their covenants. It made no mention of condominium associations when discussing covenant revitalization.

      In fact, the legislature amended MRTA during the pendency of this appeal to "expand[ ] the effect of MRTA laws on preservation and revitalization of covenants or restrictions to cover commercial associations." Fla. H.R. Comm. on Civ. Justs. & Claims Subcomm. HB 617 (2018), Staff Analysis (Feb. 1, 2018), available at https://www.flsenate.gov/Session/Bill/2018/617/Analyses/h0617e.JDC.PDF; see also ch. 2018-55, §§ 2, 5-6, Laws of Fla. (2018).


author: CHASE, M., Associate Judge.

text:
    Jose Luiz RECCO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2648
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019 Rehearing Denied February 28, 2019
    William R. Ponall, of Ponall Law, Maitland, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   CHASE, M., Associate Judge.

Appellant, Jose Luiz Recco, appeals his convictions and sentence on three counts of lewd or lascivious molestation, one count of lewd or lascivious exhibition, and one count of lewd or lascivious conduct. He argues that the trial court improperly limited his right to fully cross-examine the alleged victim by denying him the opportunity to inquire into, or demonstrate, prior inconsistent statements. We agree, and accordingly, reverse.

FACTUAL BACKGROUND

In August of 2016, Appellant, a family friend, babysat the five-year-old alleged victim, S.B. Soon after, S.B. told her mother that she had seen Appellant naked in the bathroom and that they had played a game involving the removal of clothes. When asked on subsequent occasions about the events of that day, S.B. offered differing versions. Her descriptions of what occurred varied when questioned by her father, during a later forensic interview, a videotaped deposition, and finally at trial. Because there was no physical evidence and no eyewitnesses other than Appellant and S.B., the defense sought to call S.B.'s credibility into question by, among other things, placing before the jury the differing accounts she had given.

The court ruled that it would not follow the normal impeachment procedure of confronting S.B. with her prior inconsistent statements because the court found she lacked the intellectual and emotional capacity to understand that process. Instead, the trial court advised that it would allow the defense to play for the jury's consideration any portion of S.B.'s videotaped deposition that contradicted her trial testimony.

After completing the truncated cross-examination of S.B., Appellant showed the court several statements in S.B.'s deposition testimony that directly conflicted with her trial testimony. Appellant argued that S.B.'s descriptions of the alleged criminal episode included variations on who initiated the game-playing, where each person was located, whether clothing was worn or had been removed, as well as her descriptions of Appellant's anatomy. After considering the discrepancies, the trial court found that the statements dealt with collateral matters rather than material issues and did not permit the defense to play any portion of the deposition for the jury. Despite the fact that these discrepancies encompassed several aspects of how this alleged criminal episode occurred, Appellant was left with neither an opportunity to explore the inconsistencies with the accuser on the witness stand, nor the chance to fully demonstrate to the jury the extent of the inconsistencies between her current and prior testimony.

The jury found Appellant guilty as charged on all five counts. The trial court adjudicated him guilty and sentenced Appellant to twenty-five years in prison followed by life on sex offender probation for the first three counts and twelve years for the fourth and fifth counts. Appellant timely appealed, raising four issues. Because we reverse on the first, the remaining issues are moot.

ANALYSIS

Appellant argues that the trial court abused its discretion by completely precluding him from cross-examining the alleged victim with prior inconsistent statements. The State argues that if the trial court's actions constituted error, it was harmless error. A court's decision to limit the scope of cross-examination is subject to an abuse of discretion standard. Moore v. State , 701 So.2d 545, 549 (Fla. 1997).

This Court has previously held that "[a] criminal defendant should be afforded wide latitude to cross-examine the State's witnesses, especially when cross-examining a key prosecution witness." Elmer v. State , 114 So.3d 198, 201 (Fla. 5th DCA 2012). The cross-examination process is important as it is often "the principal means by which the believability of a witness" is tested. Id. at 202 (quoting Davis v. Alaska , 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) ). The trial court does have broad discretion to limit any examination to protect a witness from repetitive or unduly harassing interrogation. It may impose reasonable limits on cross-examination when the court is concerned about, "among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Moore , 701 So.2d at 549 (quoting Delaware v. Van Arsdall , 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ).

Here, the trial court sought to provide protection for the child witness. The trial court deemed the cross-examination process, and specifically the laying of a foundation for impeachment, to be beyond S.B.'s capacity to understand. The limitation on cross-examination went beyond the issue of laying a foundation, however, and the court further denied Appellant's request to publish all or parts of the inconsistent deposition testimony. The ruling was based on the trial court's finding that the inconsistencies involved collateral rather than material issues. However, "cross examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief." Docekal v. State , 929 So.2d 1139, 1143 (Fla. 5th DCA 2006) (citing Chandler v. State , 702 So.2d 186, 195 (Fla. 1997) ). The alleged victim's credibility was a central issue in this case and Appellant's ability to challenge that credibility was unduly encumbered.

The jury instructions given in this case expressly directed the jury to consider whether the witness seemed to have an accurate memory and whether the witness made any prior statement inconsistent with her trial testimony. Had the trial court allowed Appellant to publish the inconsistent deposition statements to the jury, Appellant would not have been materially prejudiced by the trial court's elimination of the usual steps followed in laying the foundation for impeachment using prior inconsistent statements. Because Appellant was not able to show the jury that S.B.'s trial testimony and deposition testimony were inconsistent in certain regards, the jury did not have all the evidence on whether S.B.'s memory was accurate and whether she had given inconsistent statements at other times. The trial court erred by not permitting Appellant to follow the normal impeachment process and by not allowing him to publish S.B.'s inconsistent deposition testimony.

The trial court concluded that barring the defense from playing the deposition did not prevent it from arguing to the jury that S.B.'s story had changed through time, as that had already been established in the record by other means. While there might have been other examples of S.B.'s story changing through time, the trial court unduly limited Appellant's "absolute right to conduct a full and fair cross-examination of the witnesses called by the State." See Arrascue v. State , 42 So.3d 927, 928 (Fla. 5th DCA 2010). The credibility of a testifying witness is always the proper subject for cross-examination, especially here, when the witness is the State's key witness in a case that otherwise lacks corroborating evidence. For the foregoing reasons, we conclude that the limitation on Appellant's right to confront witnesses against him constituted an abuse of discretion and was not harmless error. Accordingly, we reverse and remand to the trial court for a new trial.

REVERSED and REMANDED.

ORFINGER and EDWARDS, JJ., concur.