text:
    Philip Reginald SNEAD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1247
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Philip Reginald Snead, Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Philip Reginald Snead appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In that motion, he argues that he was prejudiced by ineffective assistance of his trial counsel, who failed to object to the jury instructions and verdict form and thus permitted the jury to improperly convict him of a similar but uncharged offense. The records attached to the postconviction court's order denying Snead's motion do not conclusively refute his claim. Accordingly, we reverse and remand for further proceedings.

In his motion Snead alleged that, along with other offenses, he was charged by information with aggravated battery with a deadly weapon, but convicted of felony battery. He notes that aggravated battery can be committed either by causing "great bodily harm, permanent disability, or permanent disfigurement," or by using a deadly weapon. See § 784.045(1)(a), Fla. Stat. (2013). However, the information only charged aggravated battery involving a deadly weapon. Snead also notes that while some variants of felony battery involve causing "great bodily harm, permanent disability, or permanent disfigurement," none of those require proving use of a weapon.

Snead argues that the version of felony battery for which he was convicted was not actually a lesser included offense of the version of aggravated battery with which he was charged. Therefore, Snead urges that his conviction was error, and trial counsel was ineffective for failing to object to the jury instructions and jury verdict forms which permitted the jury to improperly convict him. Snead alleges prejudice because counsel's inaction led to an erroneous conviction and lack of preservation of the issue for direct appeal.

The lower court denied Snead's claim without a hearing, ruling that the elements for aggravated battery encompass the elements of felony battery. The court noted that the evidence at trial showed that Snead struck the victim multiple times and concluded that there was sufficient evidence to support the conviction for felony battery. However, while the testimony cited by the court indicated that the victim suffered a fractured rib, the crime Snead was charged with alleged use of a deadly weapon, not great bodily harm. See §§ 784.03(2), 784.041, 784.045(1)(a), Fla. Stat. (2013).

The relationship between the elements of aggravated battery and felony battery, in situations like Snead's, has been recently addressed by two other district courts. In V.C. v. State , the Third District found error in the withheld adjudication of a minor as delinquent for felony battery when the minor had been charged with aggravated battery with a deadly weapon. 63 So.3d 831, 833 (Fla. 3d DCA 2011). That court noted that category one lesser included offenses are necessarily included in the charged offense, while category two lesser included offenses require proof of their elements, but also allegation of their own elements in the accusatory pleading. Id. at 833-34. The Third District observed that the standard jury instruction for aggravated battery does list "felony battery" as a "category one" lesser offense. However, that standard instruction also includes a comment explaining that "[t]he lesser included offense of Felony Battery is only applicable if element 2a [intentionally or knowingly causing great bodily harm, permanent disability, or permanent disfigurement] is charged and proved." Id. at 834 (citing Fla. Std. Jury Instr. (Crim.) 8.4). The Third District concluded that fundamental error occurred based on its finding that defense counsel did not receive notice that the State was pursuing any other form of felony battery than what was charged. Id. at 834-35.

The First District considered a similar situation in Kirkland v. State , 225 So.3d 920 (Fla. 1st DCA 2017). That court noted that the defendant had been charged with two counts of aggravated battery with a deadly weapon, against different victims, but convicted of felony battery on one count. The State conceded that there was no evidence of the requisite great bodily harm. The court noted that the lack of evidence supporting the felony battery conviction was "not itself grounds for reversal." Id. at 921-22. However, the court held that because not all of the elements of felony battery were charged in the information, the defendant's "due process right to be notified of the specific charges against him" had been violated. Id. at 922. The First District agreed with V.C. and rejected the State's argument that V.C. was limited to juvenile cases, which lacked juries and instructions. Id. at 923. In Kirkland , the First District found that the elements of felony battery were not charged, neither side argued for a felony battery conviction, and the error was not invited. Therefore, the court reversed for fundamental error. Id.

There is no clear way to distinguish the instant case from V.C. or Kirkland . Here, the charge was the same-aggravated battery with a deadly weapon. The jury was instructed on aggravated battery by great bodily harm and felony battery by great bodily harm. The jury acquitted Snead of almost everything, and convicted him only of felony battery. However, the documents attached to the postconviction court's order do not suggest that Snead was given any notice that he faced the possibility of conviction of felony battery prior to settling on jury instructions and verdict forms during the charge conference. Nor do the attached documents explain why counsel failed to object when that possibility arose. To the extent that the evidence might have supported a finding of great bodily harm (if not permanent injury or disfigurement) because of the victim's fractured rib, this does not excuse the apparent violation of Snead's due process right to notice. Therefore, fundamental error may have occurred here.

The possibility of invited error was not addressed in the record attachments to the order summarily denying the motion for postconviction relief. Therefore, we reverse and remand for the postconviction court either to attach additional records conclusively refuting the claim, or to hold an evidentiary hearing. See Mitchell v. State , 238 So.3d 411, 412 (Fla. 5th DCA 2018).

REVERSED AND REMANDED with instructions.

COHEN, C.J., EDWARDS and EISNAUGLE, JJ., concur.

      Snead was charged with three crimes: robbery with a firearm; burglary of a dwelling while armed; and aggravated battery with a deadly weapon. Taking his allegations as true, he was acquitted of the first two charges, and convicted only of the lesser included offense on the third.


source: Caselaw Access Project

author: LAMBERT, J.

license: Public Domain

text:
    Richard C. SOLOMON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1228
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Richard C. Solomon, Defuniak Springs, pro se.
    No Appearance for Appellee.
   LAMBERT, J.

Richard C. Solomon appeals the postconviction court's order summarily denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Following a jury trial, Solomon was convicted in July 2008 of armed burglary of a dwelling, robbery with a firearm, and first-degree felony murder. The trial court sentenced Solomon to life imprisonment on each count. The sentences on the first two counts were run concurrently, but the life sentence on the third count for first-degree felony murder was ordered to run consecutively to the life sentence imposed in count two. Additionally, pursuant to section 775.087(2), Florida Statutes (2006), the court imposed a twenty-five-year minimum mandatory provision as part of Solomon's sentence for the robbery with a firearm conviction in count two.

Solomon raises two grounds for relief. He contends that the twenty-five-year minimum mandatory provision in count two is illegal based upon the failure of the charging document to allege the grounds for enhancement in this count and the subsequent lack of specific factual findings by the jury regarding these grounds. Solomon separately argues that his sentences on counts one and three are illegal because despite the jury's findings on these counts, the trial court failed to also include the required ten-year minimum mandatory provisions for each count when imposing the respective life sentences. For the reasons explained below, we reverse and remand for resentencing.

Section 775.087(2), commonly referred to as the "10-20-Life" statute, provides in pertinent part:

(a)1. Any person who is convicted of a felony ..., regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
a. Murder;
....
c. Robbery;
d. Burglary;
....
and during the commission of the offense, such person actually possessed a "firearm" ..., shall be sentenced to a minimum term of imprisonment of 10 years ....

The statute further provides for a minimum mandatory prison term of twenty years if a person convicted of one of its enumerated felonies discharged a firearm during the commission of the crime and for twenty-five-years' imprisonment if the discharge of the firearm results in death or great bodily harm inflicted upon any person. See § 775.087(2)(a) 2.-3., Fla. Stat. (2006).

Solomon is correct that the twenty-five-year minimum mandatory provision in his life sentence for robbery with a firearm is illegal because the indictment did not allege nor did the jury find that he discharged a firearm that caused death or great bodily harm during the commission of this offense. To pursue an enhanced mandatory sentence under the 10-20-Life statute, "the state must allege the grounds for the enhancement in the charging document, and the jury must make factual findings regarding those grounds." Bienaime v. State , 213 So.3d 927, 929 (Fla. 4th DCA 2017) (citing Lane v. State , 996 So.2d 226, 227 (Fla. 4th DCA 2008) ). In the present case, the allegations contained in this count of the indictment merely state that in the course of committing the robbery, Solomon or an accomplice carried a firearm. Although the indictment did allege in count three that Solomon or an accomplice did shoot the victim with a firearm thereby causing his death, the State cannot rely on grounds alleged in that count to support an enhanced mandatory sentence on a different count. See id. (citing Bryant v. State , 744 So.2d 1225, 1226 (Fla. 4th DCA 1999) ).

The jury found that Solomon personally carried a firearm during the commission of the robbery. However, because the jury did not separately find that Solomon also discharged a firearm that caused the death or great bodily harm of another, we reverse that part of his sentence on count two that requires Solomon to serve a twenty-five-year minimum mandatory sentence on this count and remand with directions that the trial court instead impose a ten-year minimum mandatory provision as part of Solomon's overall sentence on this count, consistent with the jury's express findings. See Allen v. State , 853 So.2d 533, 535-37 (Fla. 5th DCA 2003) (affirming trial court's order entered under rule 3.800(a) correcting the length of the previously imposed minimum mandatory provision of the sentence); Parker v. State , 921 So.2d 812, 812-13 (Fla. 4th DCA 2006) (reversing enhanced twenty-five-year minimum mandatory sentence imposed pursuant to section 775.087(2)(a) 3. absent a clear jury finding that a firearm was discharged); Muldrow v. State , 842 So.2d 240, 242 (Fla. 2d DCA 2003) (reversing twenty-year mandatory minimum sentence because the jury finding of possession of a firearm does not equate to a finding that the firearm had been discharged).

Solomon next argues that his sentences on counts one and three are illegal because the trial court failed to also include a ten-year minimum mandatory provision as part of the life sentences that he received on each count. Although it would seem counterintuitive for a defendant, postconviction, to move for an enhanced sentence, rule 3.800(a) provides Solomon recourse as it plainly states, in pertinent part, that "[a] court may at any time correct an illegal sentence imposed by it ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief." Thus, while "[m]otions seeking to impose mandatory minimums are typically filed by the State ... nothing [in the rule] prohibits a defendant from filing such a motion." Burks v. State , 237 So.3d 1060, 1062 n.1 (Fla. 3d DCA 2017) (quoting Vargas v. State , 188 So.3d 915, 916 n.1 (Fla. 5th DCA 2016) ).

Solomon was convicted in count one of armed burglary of a dwelling and in count three of first-degree felony murder. Both crimes are among those listed in section 775.087(2)(a) to require the imposition of a minimum mandatory sentence by the trial court when a firearm is found to have been used in the commission of the offense. "[T]he imposition of a mandatory minimum sentence under section 775.087(2) is a non-discretionary duty of a trial court where the record reflects that the defendant qualifies for mandatory minimum sentencing." Johnson v. State , 53 So.3d 360, 362 (Fla. 5th DCA 2011). Here, based upon the jury's express findings in counts one and three that Solomon personally carried a firearm during the commission of these offenses, the trial court had no discretion but to impose ten-year minimum mandatory conditions as part of the life sentences imposed on each count. Its failure to do so makes each sentence illegal under this rule, see Vargas , 188 So.3d at 916 (citing State v. Row , 478 So.2d 430, 431 (Fla. 5th DCA 1985) ; State v. Fulton , 878 So.2d 485, 485 (Fla. 1st DCA 2004) ), and those sentencing errors can be remedied without violating double jeopardy principles, even though Solomon has already been serving his sentences. See Dunbar v. State , 89 So.3d 901, 906-07 (Fla. 2012).

Accordingly, we reverse and remand for the trial court to impose ten-year minimum mandatory provisions to the sentences on counts one and three.

Lastly, because the record is clear that Solomon committed all three offenses during one criminal episode, there is only one victim, and the jury did not find that Solomon personally discharged his firearm on any of the counts, the minimum mandatory provision of all three sentences must be run concurrently. See Valentin v. State , 963 So.2d 317, 319-20 (Fla. 5th DCA 2007) (recognizing that "the imposition of consecutive minimum mandatory sentences under section 775.087(2)... is improper where the offenses occurred during a single criminal episode unless the defendant discharges the firearm and injures multiple victims or causes multiple injuries to one victim") (citing State v. Christian , 692 So.2d 889 (Fla. 1997) ; State v. Thomas , 487 So.2d 1043 (Fla. 1986) ; Palmer v. State , 438 So.2d 1 (Fla. 1983) ).

In sum, we reverse the order on appeal and remand for the trial court to correct Solomon's sentences on each count to provide for concurrent ten-year minimum mandatory provisions for each life sentence. Although Solomon candidly acknowledged in his motion that his requested sentence correction "will not change the composite term for [his life] sentence[s]," a defendant's due process rights are violated when mandatory minimum terms are added to a sentence without the defendant's presence. Dunbar , 89 So.3d at 907. Accordingly, Solomon is to be brought back before the trial court for the imposition of these concurrent minimum mandatory sentences and counsel should be appointed to represent him, if Solomon still qualifies for appointed counsel.

REVERSED and REMANDED for resentencing consistent with this opinion.

COHEN, C.J., and PALMER, J., concur.

      In Dunbar , Chief Justice Canady dissented from that part of the court's decision remanding for a sentencing proceeding with the defendant present where "given the mandatory duty of the sentencing court, there is no way in which [the defendant's] presence 'would contribute to the fairness of the procedure.' " Id. at 908. (Canady, C.J., concurring in part, and dissenting in part) (quoting Kentucky v. Stincer , 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) ). This observation appears appropriate here where the nunc pro tunc imposition of the ten-year minimum mandatory provisions in counts one and three will have no practical impact because Solomon has been in prison for more than ten years and has essentially already served the concurrent ten-year minimum mandatory sentences now to be imposed on each count.


author: PER CURIAM.

text:
    Damian David SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3394
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Damian David Santiago, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Damian David Santiago appeals the final order entered by the trial court granting in part and denying in part his motion seeking post-conviction relief, filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. We affirm the order in all aspects, except one. The trial court erred in modifying Santiago's sentence without holding a resentencing hearing.

Santiago was sixteen years old at the time he committed his offenses. He entered a plea to the offense of second-degree murder with a firearm and was sentenced to a term of thirty-five years' imprisonment. He filed a post-conviction motion arguing that, due to his status as a juvenile offender, his sentence was unconstitutional and, thus, he was entitled to receive judicial review of his sentence as well as a full resentencing hearing. The trial court granted the motion in part, amended the sentencing documents to allow for a juvenile sentence review hearing, but denied the request for a resentencing hearing based upon the conclusion that the sentence was not unconstitutional because it was not a de facto life sentence. The court erred in so ruling because the constitutionality of a juvenile offender's lengthy term-of-years sentence is not solely dependent on whether a de facto life sentence has been imposed. See Peterson v. State, 193 So.3d 1034, 1038 (Fla. 5th DCA 2016), rev. denied, SC16-1211, 2017 WL 2705649 (Fla. June 23, 2017) (holding that a term-of-years sentence, which does not afford a non-homicide juvenile offender a meaningful opportunity for early release based on demonstrated maturity and rehabilitation, violates the Eighth Amendment, requiring resentencing); accord Tarrand v. State, 199 So.3d 507 (Fla. 5th DCA 2016). We have also held that it is error to modify a juvenile defendant's sentence to allow for a review hearing without also holding a resentencing hearing. See Katwaroo v. State, 237 So.3d 446 (Fla. 5th DCA 2018).

Accordingly, we affirm the trial court's ruling amending the sentencing documents to provide for a judicial review hearing, but reverse and remand for the court to conduct a full resentencing hearing. We also certify conflict with Pedroza v. State, 244 So.3d 1128 (Fla. 4th DCA 2018) which certified conflict with Katwaroo and Tarrand.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions. CONFLICT CERTIFIED.

ORFINGER, PALMER and EDWARDS, JJ., concur.


text:
    Prentice STRINGFIELD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2798
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    James S. Purdy, Public Defender, and Alexandra K. Galvin, and Edward J. Weiss, Assistant Public Defenders, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Prentice Stringfield appeals the orders revoking his probation and sentencing him to fifteen years in prison. The trial court revoked Appellant's probation upon finding that he committed a new law violation by driving a motor vehicle while his license was suspended. Because there was no evidence that Appellant knowingly drove with a suspended or revoked license in violation of and as defined by section 322.34, Florida Statutes (2017), we find that the State failed to prove a willful, substantial violation of probation. Accordingly, we reverse and remand with instructions to reinstate Appellant's probation.

"A violation of probation must be both willful and substantial before a defendant's probation may be revoked," and "the state must establish a willful and substantial violation by the greater weight of the evidence." Stanley v. State , 922 So.2d 411, 413-14 (Fla. 5th DCA 2006). A lower court's finding of a willful and substantial violation of probation must be supported by competent, substantial evidence. Knight v. State , 187 So.3d 307, 310 (Fla. 5th DCA 2016). To prove the crime of driving with a suspended license, the State must establish three elements: (1) the defendant's driver's license was suspended at the relevant time, (2) the defendant's knowledge of the license suspension, and (3) the defendant was actually driving. Prater v. State , 161 So.3d 489, 491 (Fla. 5th DCA 2014).

While the State proved the first and third elements, it failed to prove Appellant's knowledge of the license suspension. "The element of knowledge is satisfied if the person has been previously cited ... or the person admits to knowledge of the cancellation, suspension, or revocation; or the person received notice ...." § 322.34(2), Fla. Stat. (2017). The State does not argue that Appellant was previously cited or that he admitted to knowledge. The State hypothesized that Appellant should have been notified of the suspension in one of several ways; however, it failed to offer competent, substantial evidence that notice was provided through any of the means suggested by the State. Thus, the State failed to prove Appellant's knowledge of the license suspension, and, consequently, failed to establish a new law violation. Therefore, the lower court erred in revoking Appellant's probation. We reverse and remand with instructions for the lower court to restore Appellant to probation.

REVERSED AND REMANDED WITH INSTRUCTIONS.

EVANDER, LAMBERT and EDWARDS, JJ., concur.


text:
    Michael Anthony THOMAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1933
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant's convictions and sentences but remand for entry of a corrected order with citations to the statutory authority for the costs imposed. See J.S. v. State , 920 So.2d 752, 753 (Fla. 5th DCA 2006).

AFFIRMED and REMANDED with INSTRUCTIONS.

PALMER, LAMBERT and EISNAUGLE, JJ., concur.


text:
    AGAPE CHARTER SCHOOL, INC., Agape Christian Academy & Preschool, Inc., Agape Assembly Baptist Church, Appellants, v. SUMMIT CHARTER SCHOOL, INC., Appellee.
    Case No. 5D16-3419
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    James Sweeting, III, Law Office of James Sweeting, III, Churchville, Maryland, for Appellants.
    Justin Eisele, of Gagnon Eisele, P.A., Winter Park, for Appellee.
   PER CURIAM.

Agape Assembly Baptist Church, Inc. (Agape Baptist), Agape Christian Academy & Preschool, Inc. (Agape Christian Academy), and Agape Christian Academy High School Vocational Trade & Business Technology, Inc. (Agape Vocational) (collectively, Appellants) appeal the order denying their Florida Rule of Civil Procedure 1.540(b) motion for relief from the default final judgment entered in favor of Summit Charter Schools, Inc. (Summit) in a landlord-tenant dispute. The default final judgment was entered after Appellants' attorney, Dean F. Mosley, withdrew and their pleadings were stricken. We reverse because Mosley's motion to withdraw and the notice of hearing did not comply with the mandatory requirements in Florida Rule of Judicial Administration 2.505(f)(1). As a result, Appellants did not receive notice of Mosley's withdrawal or any papers or pleadings filed thereafter, including Summit's motion for a default judgment. Thus, we conclude the trial court abused its discretion in failing to grant Appellants' motion for relief from judgment under rule 1.540(b).

Florida Rule of Judicial Administration 2.505(f)(1) contains a mandatory requirement that an attorney filing a motion to withdraw timely serve both the motion and the notice of hearing on his or her client at the client's last known address. See Coldiron v. Seminole Cty. Sheriff's Dep't, 974 So.2d 1199, 1200 (Fla. 5th DCA 2008) ; Garden v. Garden, 834 So.2d 190, 192 (Fla. 2d DCA 2002) ; Saenz v. Pena, 754 So.2d 826, 827 (Fla. 3d DCA 2000). That was not done here. "The notice requirement implicates due process concerns of notice and opportunity to be heard; obviously, then, the notice and motion must be timely and must afford the client an opportunity to respond." Garden, 834 So.2d at 192. These due process implications mean that a violation of rule 2.505(f)(1) is fundamental error. See Nationstar Mortg., LLC v. Weiler, 227 So.3d 181, 184-85 (Fla. 2d DCA 2017) (citing Withers v. Blomberg, 41 So.3d 398, 401 (Fla. 2d DCA 2010) ).

Sworn proof of the violation of rule 2.505(f)(1) is not required when the violation of rule 2.505(f)(1) is apparent on the face of the record. Saenz, 754 So.2d at 827 (finding violation of rule where certificate of service on motion to withdraw did not state that client was served). The face of the record, here, does not contain a notice of hearing on the motion to withdraw. Neither does the motion to withdraw provide the last known addresses of the various corporate Appellants. The certificate of service on the trial court's order requiring a hearing on the motion to withdraw did not set a date for the hearing and did not state that it was served on Appellants.

Even if the violation of the rule had not been apparent on the face of the record, the presumption of receipt created by the certificate of service was rebutted by sworn testimony and affidavits. See Fla. R. Civ. P. 1.080(a) ; Fla. R. Jud. Admin. 2.516(f) ; Camerota v. Kaufman, 666 So.2d 1042, 1045 (Fla. 4th DCA 1996) (citing Allstate Ins. Co. v. Eckert, 472 So.2d 807, 809 (Fla. 4th DCA 1985) ); see also JPMorgan Chase Bank, Nat'l Ass'n v. Bigley, 120 So.3d 1265 (Fla. 3d DCA 2013). At the evidentiary hearing on the rule 1.540(b) motion, Richard Bishop, the pastor of Agape Baptist and a corporate officer for all three Appellants, was the sole witness. Bishop denied that Appellants had any knowledge of Mosley's withdrawal and testified that Appellants did not receive the motion to withdraw, the notice of hearing, the order on that motion, or any of the subsequent court filings. He testified that the address listed in the certificate of service on the motion to withdraw had never been used as a mailing address in Appellants' previous dealings with Mosley. That erroneous address was thereafter utilized by Summit and the trial court. Summit did not present any witnesses or affidavits to contradict Bishop's testimony and admitted only the writ of execution and the sheriff's levy into evidence through Bishop. Summit did not call Mosley as a witness to testify about his unsworn assertions contained in the motion to withdraw that he had discussed withdrawal with his clients. See Faircloth v. Bliss, 917 So.2d 1005, 1006-07 (Fla. 4th DCA 2006) (quoting Leon Shaffer Golnick Advert., Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982) ).

We conclude the trial court abused its discretion in denying Appellants' motion for relief from judgment. Accordingly, we reverse the order denying Appellants' rule 1.540(b) motion for relief from judgment and remand for the trial court to enter an order granting Appellants' motion for relief from judgment and to vacate the order striking Appellants' pleadings and entering default final judgment as to liability, the default final judgment on damages, the writ of execution, the sheriff's sale, and the sheriff's deed.

REVERSED AND REMANDED.

SAWAYA, ORFINGER and BERGER, JJ., concur.

      Agape Charter School, Inc. was not named in the complaint or the default final judgment. It appears for the first time in the rule 1.540(b) motion for relief from judgment.

      Garden and Saenz involve an earlier version of the rule on motions to withdraw as counsel.

      Appellants also supported their motion with affidavits.

      The unsworn but stipulated statement by Summit's counsel that he had never had mail sent by his law firm after the withdrawal motion was granted to the address used by Mosley in the motion returned as undeliverable is not relevant as neither Summit's counsel nor his firm mailed the motion to withdraw, the order requiring a hearing, or the notice of hearing.


text:
    Antwan T. MANN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-245
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Antwan T. Mann appeals his judgment and sentence for felony battery. Mann contends that the trial court erred in continuing the case to trial without holding a hearing or entering an order to determine his competency after his public defender filed a suggestion of mental incompetency to stand trial. The State concedes error. We agree and remand for the trial court to conduct a retroactive competency evaluation.

It is reversible error for a trial court to continue with criminal proceedings without making a competency determination where it has reasonable grounds to believe that a defendant is incompetent to proceed. See Carrion v. State, 859 So.2d 563, 565 (Fla. 5th DCA 2003) ("[T]he trial judge had been presented with reasonable grounds to question the mental competency of Mr. Carrion at a pretrial stage. Once having come to this conclusion, he was required by the rule to follow the prescribed procedure and to hold a competency hearing."). The Fourth District Court has explained the appropriate procedure after a case has been remanded for a trial court to make a retroactive determination of competency:

Thus, on remand, if the court can make a nunc pro tunc finding as to appellant's competency based upon the existence of evaluations performed contemporaneous with trial and without relying solely on a cold record, and can do so in a manner which abides by due process guarantees, then it should do so and enter a corresponding written order.

Baker v. State, 221 So.3d 637, 641 (Fla. 4th DCA 2017) ; accord Holland v. State, 185 So.3d 636, 637 (Fla. 2d DCA 2016) ("Accordingly, we remand the case to the trial court for entry of a nunc pro tunc order finding Holland competent to stand trial."). In making this determination, "[t]he parties may agree to the use of the previous evaluators' written reports, which shall be filed with the court and placed in the record." Sheheane v. State, 228 So.3d 1178, 1181 (Fla. 1st DCA 2017). If the trial court determines that Mann was competent at the time of trial, it must enter a nunc pro tunc written order without altering his judgment. See Zern v. State, 191 So.3d 962, 965 (Fla. 1st DCA 2016). "If the trial court finds that [the defendant] was incompetent or that a retrospective determination is not possible in this case, it must hold a new trial, as long as [the defendant] is and remains competent on remand." Id.

We therefore remand this case for the trial court to make a retroactive competency determination consistent with this opinion.

REMANDED.

SAWAYA, WALLIS and LAMBERT, JJ., concur.


text:
    Vantice L. BESHEARS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4360
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Vantice L. Beshears, appeals his convictions of burglary of a structure, grand theft of an automobile, grand theft of property worth over $300, and driving without a valid license after a jury trial. Specifically, Appellant argues the trial court erred when it denied his pro se motions to appoint an expert to evaluate a possible insanity defense after he was prescribed several medications while at the hospital the night before, and the night of, the offense. We agree and reverse.

Appellant represented himself from the inception of this case. Several months before trial, Appellant filed a "Motion to Set Hearing (on) and (for) Motion for [Psych]ological Examination" itemizing his reasons for believing that he was legally insane at the time of the incident and requesting the appointment of an expert to assess the viability of an insanity defense at trial, to suppress any statements made, and to request an exam by a psychologist or neuropsychologist.

Two months later, and without a ruling on his motion, Appellant filed a second motion, again requesting appointment of an expert and referring to his original motion. Appellant then filed a third motion requesting a hearing on his previously filed motions for an expert to assist in the preparation of his insanity defense.

Three days before trial, the trial court denied Appellant's motions, reasoning:

A pro se defendant who was actually legally insane at the time of an offense would, virtually by definition, be unable to meaningfully consult with an expert in the preparation of a defense. The Court having observed and communicated with [Appellant] on two (2) different occasions in open court finds no basis to conclude that [Appellant] suffers from any mental infirmity other than an exceedingly grandiose, and misplaced, opinion of his own knowledge of the law and his abilities to act as a lawyer.

Without an expert witness and unable to present an insanity defense, Appellant proceeded to trial where he was convicted as charged.

On appeal, Appellant argues that his prescription medications caused him to be legally insane on the night of the incident and that he was entitled to the appointment of an expert pursuant to Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), in order to develop this defense for trial. The State properly concedes that the denial of Appellant's motions was error, but argues that the error was harmless because Appellant was not taking the medications as prescribed. We conclude that the trial court erred and that the error was not harmless.

An indigent criminal defendant who makes a preliminary showing that his "sanity at the time of the offense" is likely to be a "significant factor" at trial is entitled to have access to independent psychiatric assistance. Ake , 470 U.S. at 82-83, 86-87, 105 S.Ct. 1087. A pro se defendant, pursuant to Ake , need only make a preliminary showing and is obviously not required to present the trial court with a fully developed insanity defense before he or she is entitled to an appointed expert. In most cases, it would be difficult or impossible to fully develop and present an insanity defense to the jury without the benefit of an expert. Id. at 80, 105 S.Ct. 1087 ("[T]he assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense."). In this case, as the State concedes, Appellant made a sufficient preliminary showing to require appointment of an expert.

The State insists, however, that the error was harmless because Appellant was not taking his medications as prescribed. For instance, the State argues that there was evidence that Appellant was intoxicated at the time of his arrest and cites to medical websites for the proposition that Appellant's medications cannot be taken with alcohol.

While the State is correct that an insanity defense is unavailable to a defendant who consumes medications other than as prescribed, see, for example, Stimus v. State , 995 So.2d 1149, 1151 (Fla. 5th DCA 2008), there is simply no evidence in our record to support the State's contention. It is axiomatic that "[a]ppellate review is limited to the record as made before the trial court at the time of the entry of a final judgment or orders complained of." Rosenberg v. Rosenberg , 511 So.2d 593, 595 n.3 (Fla. 3d DCA 1987). The problem here, of course, is that the websites relied upon by the State do not appear in our record at all-let alone as evidence. As such, we are without authority to consider them and cannot conclude that the denial of Appellant's motions was harmless.

Accordingly, we reverse Appellant's sentences and convictions and remand for further proceedings.

REVERSED and REMANDED.

BERGER, EDWARDS and EISNAUGLE, JJ., concur.

      Appellant also argues, citing to Velcofski v. State , 96 So.3d 1069, 1070 (Fla. 4th DCA 2012) and Hardy v. State , 655 So.2d 1245, 1247-48 (Fla. 5th DCA 1995), and the State concedes, that the trial court erred in admitting Appellant's unredacted driving record into evidence and in failing to offer the assistance of counsel prior to sentencing. Given our disposition, we do not reach these issues.

      We recognize that Florida Rule of Criminal Procedure 3.216 establishes a separate and distinct standard for the appointment of an expert. However, because we find that Appellant's motion was sufficient to require the appointment of an expert pursuant to Ake , we need not reach Appellant's additional argument that he was entitled to the appointment of an expert pursuant to rule 3.216 even though he was self-represented rather than represented by a member of The Florida Bar.


author: WALLIS, J.

text:
    BREVARD ACHIEVEMENT CENTER, INC., Petitioner, v. Lauren C. CAMP, Individually and as Guardian Advocate of E.L.F., Respondent.
    Case No. 5D18-468
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Angela C. Flowers, of Kubicki Draper, P.A., Ocala, for Petitioner.
    Arnold R. Ginsberg, of Arnold R. Ginsberg, P.A., Miami, and S. Sammy Cacciatore, Of Nance, Cacciatore, Hamilton, Barger, Nance & Cacciatore, Melbourne, for Respondent.
   WALLIS, J.

Petitioner, Brevard Achievement Center, Inc., seeks certiorari review of an order granting Respondent, Lauren C. Camp, leave to amend her complaint to include a claim for punitive damages. Because the trial court departed from the essential requirements of the law when it evaluated Respondent's punitive damages claim, we grant the petition and quash the order in question.

Petitioner, a non-profit corporation, operates a facility providing services to persons with developmental disabilities. Respondent, the guardian advocate of E.L.F., a person with developmental disabilities and a client of Petitioner, alleges that Petitioner failed to protect E.L.F. from sexual abuse that occurred on its premises. Respondent later sought leave to amend the complaint to include a claim for punitive damages, and the trial court granted the motion. Petitioner argues that the trial court erred in allowing the amendment because it applied the wrong legal standard when it evaluated the punitive damages claim. We agree.

"Certiorari review is available to determine whether the trial court complied with all applicable requirements and analysis before granting a motion to amend pleadings to assert claims for punitive damages." Varnedore v. Copeland, 210 So.3d 741, 744 (Fla. 5th DCA 2017) (citing Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla. 1995) ; Tilton v. Wrobel, 198 So.3d 909, 910 (Fla. 4th DCA 2016) ; Munroe Reg'l Health Sys., Inc. v. Estate of Gonzales, 795 So.2d 1133, 1134 (Fla. 5th DCA 2001) ).

"[A]pplicable statutes and controlling judicial precedent" govern the legal standard with which to assess a claim for punitive damages based on abuse of the developmentally disabled. § 768.735(1), Fla. Stat. (2018). Florida's developmental disabilities statutory scheme, chapter 393, Florida Statutes, does not provide for punitive damages. See generally Ch. 393, Fla.

Stat. (2018). Therefore, judicial precedent, holding that gross negligence is the standard necessary to sustain a claim for punitive damages, controls. See Carraway v. Revell, 116 So.2d 16, 20 n.12 (Fla. 1959) ("The character of negligence necessary to sustain an award of punitive damages must be of 'a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects ... wantonness or recklessness ....' ").

Instead of applying gross negligence when evaluating Respondent's punitive damages claim, the trial court blended standard negligence and the statutory requirements applicable to nursing homes, chapter 400, Florida Statutes (2018). This blended standard is evident in the trial court's finding that: (1) Petitioner's employees "engaged in conduct to create a 'foreseeable zone of risk' and 'the law generally will recognize a duty placed upon the defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that risk poses' "; and (2) Petitioner "ratified or condoned the conduct of the employees through control and oversight of day to day policies, procedures, and operations."

This was error because Petitioner's facility does not fall under the purview of chapter 400, and the degree of negligence required to support a claim for punitive damages, in the context of abuse of the developmentally disabled, is far greater than standard negligence. See § 400.021(7), Fla. Stat. (2018) (defining "facility" as a place that cares for those with an illness, physical infirmity, or advanced age); see also Carraway, 116 So.2d at 20 n.12. Under these circumstances, the trial court departed from the essential requirements of the law by applying this blended standard, subjecting Petitioner to harm that cannot be remedied in a later plenary appeal. See § 768.735, Fla. Stat. (2018) ; Carraway, 116 So.2d at 20 n.12 ; see also King, 658 So.2d at 520. Accordingly, we grant the petition and quash the order in question.

PETITION GRANTED, ORDER QUASHED, and REMANDED for Further Proceedings.

ORFINGER and BERGER, JJ., concur.

      Under Chapter 400, "[a] defendant may be held liable for punitive damages only if ... defendant actively and knowingly participated in intentional misconduct or engaged in conduct that constitutes gross negligence." § 400.0237(2), Fla. Stat. (2018). Moreover, in the context of vicarious liability, the employer may only be liable for punitive damages "if [it] condoned, ratified, or consented to the specific conduct." Id. § 400.0237(3).

      As the plaintiff below seeks to obtain punitive damages from a corporate defendant, the standard established in Schropp v. Crown Eurocars, Inc., 654 So.2d 1158, 1161 (Fla. 1995), must also be established by a proffer of admissible evidence.


author: ORFINGER, J.

text:
    Jonathan TAPLIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3135
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    James S. Purdy, Public Defender, and Brittany N. O'Neil, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Jonathan Taplin appeals the trial court's order denying his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b). The State concedes error. We reverse.

Taplin pled guilty to failure to register as a sexual offender as required by section 943.0435(7), Florida Statutes (2017). At sentencing, the primary issue was whether Taplin was required to wear an electronic monitor since he was seventeen years old at the time of the underlying qualifying offense. Over Taplin's objection, the trial court ruled that electronic monitoring was mandatory pursuant to section 948.30(3)(c), Florida Statutes (2017), which reads:

(3) Effective for a probationer or community controllee whose crime was committed on or after September 1, 2005, and who:
....
(c) Has previously been convicted of a violation of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older ,
the court must order , in addition to any other provision of this section, mandatory electronic monitoring as a condition of the probation or community control supervision .

(Emphasis added); see ch. 2005-28, § 20, Laws of Fla.

A plain reading of section 948.30 compels us to conclude that the age restriction language-"the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older"-applies to all the crimes listed in section 948.30(3)(c), not just section 847.0145 as the trial court determined. Accord Harroll v. State, 960 So.2d 797, 797-98 (Fla. 3d DCA 2007) ("Under section 948.30, Florida Statutes (2006), the trial court is required to impose mandatory electronic monitoring as a condition of probation for defendants previously convicted of unlawful sexual activity involving a victim fifteen years of age or younger where the offender is eighteen years of age or older.").

For these reasons, we reverse and remand with directions that the trial court strike the electronic monitoring from his probation order, as it is not mandatory. However, as the State points out, electronic monitoring could later be applied under section 948.30(2)(e), Florida Statutes, but only when deemed necessary by the "probation officer and his or her supervisor, and ordered by the court at the recommendation of the Department of Corrections." See Blue v. State, 73 So.3d 358, 360 (Fla. 4th DCA 2011) ("While the trial court could have imposed electronic monitoring under section 948.30(2), it did not make the requisite findings that Blue's probation officer and his supervisor deemed electronic monitoring necessary, and that the Department of Corrections made such a recommendation.").

REVERSED and REMANDED.

LAMBERT, J., concurs.

EISNAUGLE, J., concurs, with opinion.

I concur with the majority concerning mandatory electronic monitoring pursuant to section 948.30(3)(c), Florida Statutes (2017). However, I would not reach the separate issue of electronic monitoring pursuant to section 948.30(2)(e), Florida Statutes (2017).


author: FERNANDEZ, J.

text:
    The STATE of Florida, Appellant, v. Kristina SISCO, Appellee.
    No. 3D16-2474
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018 Rehearing Denied September 5, 2018
    Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler and Shannon Hemmendinger, Assistant Public Defenders, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ, and LUCK, JJ.
    ON MOTION FOR REHEARING OR CLARIFICATION
   FERNANDEZ, J.

This cause is before us on the State's Motion for Rehearing or Clarification. We deny the motion for rehearing and grant the motion for clarification. Accordingly, the opinion issued on May 30, 2018 is withdrawn, and the following opinion is substituted in its place.

The State appeals the trial court's downward departure sentence, which ordered the defendant, Kristina Sisco, to serve six months in prison, then fifteen months of community control, followed by five years of probation, instead of twenty-one months in prison for her conviction for burglary of a dwelling. We affirm, finding sufficient evidence in the record to support the trial court's decision not to impose a guidelines sentence, as well as the trial court's determination that there was "domination," according to section 921.0026(2)(g), Florida Statutes (2015).

Sisco was charged in the amended information with burglary of a dwelling. At trial, she admitted that she was guilty of trespassing, but that she had no part in the commission of the burglary of the dwelling. She claimed the crime was committed by her boyfriend at the time, Daniel Rodriguez, who stayed with her at the dwelling in question.

The evidence at trial revealed that thirty-six-year-old Sisco was the housekeeper/groundskeeper of a home in Key West in Monroe County, Florida, owned by Mr. John and Mrs. Nancye Buckner. The couple lived part of the year in Kentucky and part of the year in their second home in Key West. The Buckners hired Sisco to watch over their Key West home whenever they were away and to take care of their dog when they were in town. Sisco had worked for the Buckners for over eight years without any problems and did not have a criminal record.

In April 2015, Mrs. Buckner left Key West to join her husband in Kentucky and once again hired Sisco to watch the house while she and her husband were away. Mrs. Buckner left Sisco a key to get in the house but told her she was not authorized to sleep at the house. Sisco's boyfriend at the time, co-defendant Daniel Rodriguez, was a convicted felon who was also a drug addict. Rodriguez pressured Sisco into allowing him to sleep at the house and convinced her to stay there with him while the Buckners were away.

While at the house, Rodriguez took property from the house and pawned it. He also took a check from Sisco, without her knowledge, and two checks from the Buckners and tried to pass off the forged checks. Although Rodriguez, who was already convicted of the theft, testified that Sisco played no role in taking any of the property from the house, the jury found Sisco guilty of burglary of a dwelling.

After the trial, at Sisco's sentencing hearing, the defense sought a downward departure because Sisco did not have any prior criminal record, conducted the burglary in an unsophisticated manner, and showed remorse for the crime. Sisco's mother testified at the sentencing hearing that she lives with her husband of forty-two years and her elderly parents in a rented apartment. Sisco's son, a teenager at the time of the sentencing, was in the custody of her brother. Sisco's mother explained that because she is disabled, she decided it was best for Sisco's son to live with Sisco's brother. She testified that if Sisco got out of jail, Sisco would live with her and be under her authority. Sisco was not living with her mother when the events took place. Sisco's mother and her family moved to Key West from New York in 1995, and Sisco finished high school in Key West in 1997. She told the court that Sisco was never in any trouble during high school, finished high school, and went to work. Sisco's attorney argued that Sisco was a good candidate for probation and had always been employed since graduating from high school.

The trial court considered the following evidence and testimony that was submitted at trial: the pre-sentence investigation report, Sisco's post-arrest statements made to the police, Sisco's statement at the sentencing hearing, Sisco's mother's testimony at the sentencing hearing, the defense's motion for downward departure, and the arguments made by the State and the defense. The trial court rejected Sisco's contention that the crime was committed in an unsophisticated manner, that it was an isolated incident, and that she had shown remorse. Instead, the trial court found that Sisco qualified for a downward departure sentence pursuant to section 921.0026(2)(g), Florida Statutes (2015), because Sisco acted "under the domination of another person." The trial court stated:

I sat here. I listened to it. And I am quite convinced by the requisite degree that what does apply here -- let me find it -- is 921.0026(g), the defendant acted under extreme duress. No. Or under the domination of another person.
And, frankly, I listened to that trial and I am completely convinced that the reason this happened after eight years of it not happening was because of Daniel Rodriguez. And, frankly -- well, neither here nor there. I'm surprised it wasn't brought up. But, nevertheless, as I said, I don't have to sit here and when I sentence to be oblivious to evidence that I heard and law that I believe it applies.
Eight years, you're a loyal trusted employee. You're working with these people. You're going above and beyond the call of duty and all of a sudden it changes. Why? Because you had a boyfriend. And my guess is that -- and "guess" maybe isn't the right word. My belief is that, you know, this is how should I put this? The father of your child is no longer in your life. You weren't going with anybody else. And all of a sudden you have this man, and he is a criminal, as we all know, multiple times over. And all of a sudden you are acting in ways that you've never acted before. He was the one who stole things. He was the one who, according to him, snuck the key or saw whatever the means of entrance.
So the bottom line is I am fine that this particular ground for downward departure, that you acted under the domination of another person, is a ground for downward departure that has been established, that does apply and it is appropriate and give you a downward departure sentence.

The trial court later entered a written order explaining the reasons for the downward departure. The order states, in pertinent part:

1. A ground for downward departure has been proven in this case by virtue of the evidence presented at trial and during the sentencing hearing. Specifically, the Court finds that a downward departure is warranted pursuant to Section 921.0026(1)(g), Florida Statutes in that the Defendant acted under the domination of another person.
2. The Defendant has no prior criminal history. She worked for the victim for eight years and acted in an honest, responsible, and trustworthy manner with respect to their home and property throughout that entire period of time. The Court finds that the burglary of the victims' home which the Defendant committed in this case was the product of the Defendant being dominated, controlled, and manipulated by her new boyfriend and codefendant, Daniel Rodriguez, a drug addict and multiple time convicted felon.

The state attorney's scoresheet calculated that Sisco should be sentenced to twenty-one months to fifteen years in jail. The trial court sentenced her to six months in county jail, with credit for time already served, followed by fifteen months of community control/house arrest, followed by five years of probation.

On appeal, the State argues that the record lacks evidence that Sisco's boyfriend "dominated" her. We disagree. The test for the imposition of a downward departure sentence is:

A downward departure sentence must be supported by valid reasons. The trial court must first determine whether there is a valid legal basis for its departure sentence that is supported with facts proven by a preponderance of the evidence. The trial court's determination involves a mixed question of law and fact, and it will be sustained on review provided the trial court applied the correct rule of law and competent substantial evidence supports the trial court's ruling.
The trial court must further determine whether a departure sentence represents the best sentencing option for the defendant. The trial court is required to weigh the totality of the circumstances, including aggravating and mitigating factors. The decision to depart falls within the sound discretion of the trial court and will be sustained on review absent an abuse of discretion.

State v. Johnson, 193 So.3d 32, 34 (Fla. 3d DCA 2016) (citations omitted).

The trial court did not err in relying on the statutory mitigating circumstance that Sisco was under the substantial domination of Rodriguez during the burglary of the dwelling. "A trial court may reject a [defendant's] claim that a mitigating circumstance has been established provided that the record contains competent, substantial evidence to support the rejection." Connor v. State, 803 So.2d 598, 611 (Fla. 2001). See also Nibert v. State, 574 So.2d 1059, 1062 (Fla. 1990). "[W]hether a mitigating factor has been proven by the evidence is a question of fact subject to the competent substantial evidence standard." Zack v. State, 753 So.2d 9, 19 (Fla. 2000).

Based on the record before us, we cannot say the trial court abused its discretion in sentencing Sisco. The ground the trial court relied on for the departure is authorized by statute. See § 921.0026(2)(g), Fla. Stat. (2015). Subsection (2)(g) states: "The defendant acted under extreme duress or under the domination of another person." The testimony presented to the trial court showed that Sisco was the Buckners' trusted employee for almost eight years. Sisco was their housekeeper, took care of their pets, did their yardwork, and never had any issues during the time she was employed by the Buckners. The evidence indicated that Sisco is the thirty-six-year-old, unmarried mother of a fourteen-year-old boy; she is a high school graduate; this was her first arrest and has no prior criminal record; she had always been employed after she graduated from high school; she had the support of her parents and brother/sister-in-law, who would provide her and her son with a home and help after she gets out of jail so that she can take care of her son again, which is what she wanted to do. The evidence also indicated that Sisco was not involved with drugs or alcohol, and she was a good candidate for rehabilitation.

Rodriguez testified at trial that he pressured Sisco to let him stay at the house. Rodriguez had a long criminal history, was a multiple-time convicted felon, and was a drug addict who needed to pawn the items he took from the house in order to buy drugs. Rodriguez testified, "So I brought it upon myself to ask her about going to stay over there. She was very adamant saying, 'No, you know, we shouldn't stay there. It's not a good idea.' And I kept pushing it and pressing the issue, you know, 'Just one night; just one night.' So, basically, I kept pressing the issue, and she finally agreed, because we were basically getting into an argument about it." Rodriguez might not have used the word "demand," but it was clear there was no option for Sisco to say no to Rodriguez under the circumstances. The evidence and testimony in the record reflect that Rodriguez was the primary motivator of the criminal episode. He played the dominant role in the crime. The trial court thus found that Sisco acted under the domination of Rodriguez. Based on the totality of the circumstances, the trial court, in its discretion, believed the only reason the crimes happened was due to Sisco's domination at the time of the incident by her then boyfriend, Rodriguez. The record contains competent substantial evidence to make this finding.

Merriam-Webster's Dictionary defines "domination" as: "1.) Supremacy or preeminence over another[;] 2.) Exercise of master or ruling power[;] 3.) Exercise of preponderant, governing, or controlling influence." Under this definition of "domination," the trial court did not abuse its discretion in finding that Sisco was under the domination of Rodriguez, thus supporting the downward departure in Sisco's sentence.

We thus affirm the trial court's downward departure sentence.

Affirmed.

      In addition, although the defense did not argue this mitigating factor, the trial court can still base its ruling on it, but because the issue was not raised on appeal, we are not deciding it. See Williams v. State, 967 So.2d 735, 750 (Fla. 2007) (finding a trial court may base an evidentiary ruling on an alternative basis that was not suggested by the parties).


author: ROTHENBERG, C.J.

text:
    Patrick SULLIVAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2019
    District Court of Appeal of Florida, Third District.
    Opinion filed September 05, 2018
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   ROTHENBERG, C.J.

Patrick Sullivan ("the defendant") appeals his dual convictions for attempted felony murder and armed robbery and his sentence to life in prison after he entered an open plea to the trial court. The defendant contends that the State improperly relied on the same intentional act, the fact that the defendant shot the victim, in order to convict him for armed robbery and attempted felony murder. We disagree.

Although the defendant alleges that his double jeopardy rights were violated by his conviction for both offenses, the substance of his arguments on appeal, along with the cases cited to in his initial brief, relate primarily to the "intentional act" requirement found in the text of the attempted felony murder statute. See § 782.051(1), Fla. Stat. (2014) (stating that, to be guilty of attempted felony murder, the defendant must commit, aid, or abet "an intentional act that is not an essential element of the [underlying] felony").

We note, however, that there is no double jeopardy violation in this case because the armed robbery statute and the attempted felony murder statute each contains an element not found in the other. See § 812.13, Fla. Stat. (2014) (stating that robbery "means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear"); § 782.051(1) ("Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree ...."); Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009) (stating that "there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments"); Gordon v. State, 780 So.2d 17, 20 (Fla. 2001) ("[A]bsent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger [ ]'same-elements' test ... is the sole method of determining whether multiple punishments are double-jeopardy violations.") (quoting Gaber v. State, 684 So. 2d 189, 192 (Fla. 1996) ) (receded from on other grounds by Valdes v. State, 3 So.3d 1067 (Fla. 2009) ). Indeed, a defendant may even be convicted for both attempted felony murder and the underlying felony. George v. State, 509 So.2d 972, 973 (Fla. 5th DCA 1987) (stating that "under Florida law a person may be convicted of attempted felony murder ... [and] the underlying felony, here, attempted armed robbery"); see also Holt v. State, 146 So.3d 1223, 1224 (Fla. 3d DCA 2014) (stating that "governing law 'does not prohibit a defendant from being separately convicted and sentenced for felony murder and the qualifying felony' ") (quoting Lukehart v. State, 776 So. 2d 906, 922 (Fla. 2000) ).

We next turn to the defendant's argument that the same intentional act, the shooting of the victim, was relied upon by the State in order to establish both armed robbery and attempted felony murder. See, e.g., Milton v. State, 161 So.3d 1245, 1250 (Fla. 2014) (holding that "[the defendant's] single act of discharging a firearm did not satisfy the 'intentional act' element of attempted felony murder, as it was an essential element of the underlying attempted second-degree murder"). In the instant case, the defendant's argument lacks merit because the State did not predicate its attempted felony murder charge solely on the fact that the defendant shot the victim in the course of a robbery. In order to prove attempted felony murder, the State alleged both robbery and attempted robbery as the underlying felony. See Newbhard v. State, 237 So.3d 1075, 1078 (Fla. 3d DCA 2017) (stating that "in order to prove attempted felony-murder, the State was not required to establish that Newbhard successfully completed the underlying robbery; rather, the attempted felony-murder offense could be established by proof that Newbhard committed or attempted to commit the underlying robbery") (emphasis in original).

The State presented evidence that the defendant attempted to rob the victim of his gold chain by grabbing the victim's gold chain, by pulling the gold chain with such force that it cut the victim's finger down to the bone as the victim attempted to hold on to the chain, and by threatening the victim by pointing a gun at his face and demanding the gold chain. These facts are sufficient to prove the underlying felony of attempted armed robbery. They are independent from the intentional act of shooting the victim, an act which forms the predicate for the defendant's armed robbery conviction. As this Court succinctly stated in Newbhard:

Newbhard's actions of pointing the gun at Montesino and demanding the gold chain; later grabbing the daughter and pointing the gun at her head while demanding the chain; and still later then turning the gun on Garcia while demanding the chain, are separate and distinct acts, any one of which would alone suffice to establish the use of force element for the underlying attempted robbery. The fact that Newbhard later shot Montesino, and by the use of such force was able to successfully complete the robbery, did not serve to convert that subsequent act of shooting into an essential element of the underlying attempted robbery.

Id. at 1080. Accordingly, we find no error below. We also find the defendant's remaining argument to be without merit and decline to discuss it further. Accordingly, we affirm.

Affirmed.

      Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: Per Curiam.

text:
    Lue Ethel RUSS, as personal representative of the estate of Roosevelt Sutton, Petitioner, v. PHILIP MORRIS USA, INC., and R.J. Reynolds Tobacco Co., Respondents.
    No. 1D17-1847
    District Court of Appeal of Florida, First District.
    September 5, 2018
    James L. Ferraro and Juan P. Bauta, II, of the Ferraro Law Firm, Miami, for Petitioner.
    Frances Daphne O'Connor of Arnold & Porter Kaye Scholer, LLP, Washington D.C., and Christopher P. Nease and Connor J. Sears of Shook, Hardy & Bacon, LLP, Kansas City, Missouri, for Respondent Philip Morris USA, Inc.
    Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, and Jason T. Burnette of Jones Day, Atlanta, Georgia, for Respondent R.J. Reynolds Tobacco Co.
   Per Curiam.

Lue Ethel Russ petitions for a writ of certiorari, contending the trial court departed from the essential requirements of law when it disqualified the law firm representing her. The suit below is a wrongful death suit against tobacco companies, including the Respondents here: Philip Morris USA, Inc., and R.J. Reynolds. We conclude that the trial court did not disregard any clearly established principle of law, so we deny the petition.

In the trial court, Respondents moved for an order disqualifying the Ferraro Law Firm, which had been representing Russ. The Respondents' motion explained that Paulo Lima, then an attorney with the Ferraro Firm, previously represented Philip Morris when he worked for Hunton & Williams. Respondents accused Lima of "switching sides" and alleged that his move created a conflict of interest that not only disqualified Lima but also imputed the conflict to the Ferraro Firm. In support, Respondents filed (among other things) copies of Lima's time records from Hunton & Williams and an affidavit from a Hunton & Williams partner who said Lima's work on Philip Morris's Engle -progeny cases included review of confidential company materials.

About a year after Respondents filed their motion, the trial court held a hearing on it. By then, the Fourth District had decided Philip Morris v. Caro , which also related to a disqualification order directed at Lima and the Ferraro Firm in a tobacco case. 207 So.3d 944 (Fla. 4th DCA 2016). In Caro , on essentially the same facts presented below, the district court concluded that Lima and the firm should have been disqualified. Id. at 950-51. Russ argued that Caro was distinguishable because when it was decided, Lima remained with the firm. After Caro issued-and some four days before the hearing in Russ's case-the Ferraro Firm terminated Lima's employment. Thus, Russ argued, the termination cured the conflict, and Lima's disqualification no longer precluded the firm's representation.

Respondents argued that Lima's termination was too little, too late. According to them, the conflict did not go away "just because you terminate the lawyer that created the imputation problem to begin with." The trial court agreed, concluding that Lima's departure "does not attenuate the taint." The court granted the motion to disqualify Lima and the firm. Russ then filed her certiorari petition.

"Certiorari is the appropriate remedy to review an order granting a motion to disqualify counsel." Anheuser-Busch Cos., Inc. v. Staples , 125 So.3d 309, 311 (Fla. 1st DCA 2013). But we grant certiorari only "when a lower court has departed from the essential requirements of the law," Williams v. Oken , 62 So.3d 1129, 1132 (Fla. 2011), and that means there must be "something more than a simple legal error." Allstate Ins. Co. v. Kaklamanos , 843 So.2d 885, 889 (Fla. 2003). There must be "a violation of a clearly established principle of law resulting in a miscarriage of justice." Id. Without any controlling precedent, we cannot grant relief because we could not say the "circuit court violated a clearly established principle of law." Id. (alterations omitted) (quoting Ivey v. Allstate Ins. Co. , 774 So.2d 679, 682 (Fla. 2000) ).

The issue of the firm's disqualification is complicated, and it does not turn on any clearly established legal principles. Indeed, other courts have disagreed on the merits of Russ's arguments-in cases that involve the same conflicted attorney and the same law firm. For example, in Canta v. Philip Morris USA, Inc. , 245 So.3d 813 (Fla. 3d DCA 2017), the Third District held that the Rules Regulating the Florida Bar only allow formerly conflicted law firms to represent new clients after a conflicted attorney leaves a firm, likening " '[u]nimputing' a conflict" to "unringing a bell, unscrambling an omelet, or pushing toothpaste back into the tube." Id. But in Balaban v. Philip Morris USA Inc. , 240 So.3d 896, 900 (Fla. 4th DCA 2018) (on rehearing), the Fourth District took a different approach, holding that once the disqualified attorney leaves the firm, the rules allow for continued representation by the formerly conflicted law firm in some circumstances. And in Caro itself, the court noted that "the same or similar issues on disqualification have been brought before other circuit and district courts with varying results." 207 So.3d at 950. As these cases illustrate, there is not yet any clearly established principle of law that would have compelled the trial court to deny the disqualification motion. Accordingly, certiorari relief is unavailable.

DENIED .

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


author: Forst, J.

text:
    Daniel MEDINA, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-358
    District Court of Appeal of Florida, Fourth District.
    September 5, 2018
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant, Daniel Medina, appeals his conviction and life sentence for the first-degree premediated murder of Alphonso Grier. Appellant argues that he is entitled to a new trial based on an erroneous Stand Your Ground jury instruction, and the improper admission of certain statements he made at a pre-trial hearing. We disagree, and affirm as to both issues.

Background

Four eyewitnesses testified for the prosecution at trial. All of the witnesses saw Appellant drive by the victim's house several times in his truck before Appellant sped towards the victim in an apparent attempt to hit him. The victim had a metal bar in his hand and threw it at Appellant's vehicle as he jumped out of the way. The bar struck and damaged Appellant's windshield. Appellant got out of his truck with a gun, shot the victim, and then drove off.

According to the witnesses, when Appellant stopped his truck, the victim did not approach him, move toward his truck, or charge him. The witnesses also said the victim was unarmed and did not have anything in his hands when Appellant shot him. Police did not find any glass from Appellant's windshield inside his vehicle.

Appellant recounted the events differently, changing his story several times. During his initial police interview, he denied shooting the victim or even having a gun. Later, at a competency examination, Appellant claimed to have hallucinations and no recollection of the shooting. Appellant told a third version of the events at his Stand Your Ground immunity hearing. He testified that the victim jumped "out of nowhere" and threw an object at him, shattering his windshield. Appellant said that "[g]lass went in [his] face and in [his] eyes" and he "could no longer drive away," so he stopped the truck and opened the door to clean his face off. At that time, the victim and two of the victim's friends approached him with weapons in hand. Thinking the victim was going to kill him, Appellant grabbed a gun out of the glove compartment. The victim and his friends were about twenty feet away from Appellant when he started shooting. Initially, Appellant said he shot at the victim, but later said he was not aiming at anyone; he "was just trying to scare them."

From October 2005 until June 2014 (the offense occurred in 2013), two different provisions of the Stand Your Ground law permitted a defendant to use deadly force without retreating, under certain circumstances. Section 776.013(3), Florida Statutes (2013) permitted the use of deadly force to prevent death or great bodily harm, so long as the defender was not engaged in unlawful activity. Section 776.012(1), Florida Statutes (2013) lacked the unlawful activity element, but required that the threat be imminent.

The jury instruction here tracked both sections:

The use of deadly force is justifiable only if Daniel Alfonso Medina reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself ....
...
If the defendant was not engaged in unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

(Emphases added). Appellant did not object to the instruction. On appeal he argues the instruction was erroneous because the law in effect at the time of the shooting did not require him not to be engaged in an unlawful activity. Appellant also argues the trial court erred in admitting testimony from the pre-trial Stand Your Ground immunity hearing in which Appellant admitted that he lied to doctors during his competency evaluation.

Analysis

With respect to the first issue, the State agrees that the jury instruction was improper because the law in effect at that time of the offense did not impose a duty to retreat before using deadly force, even if the defendant was engaged in an unlawful activity at the time. See § 776.012(1), Fla. Stat. (2013) ; see also Little v. State , 111 So.3d 214, 221 (Fla. 2d DCA 2013) (noting that a defendant engaged in unlawful activity could seek Stand Your Ground immunity under section 776.012 even though the unlawful activity would preclude immunity under section 776.013 ).

However, because Appellant did not object to the jury instruction, it "can be raised on appeal only if fundamental error occurred." State v. Delva , 575 So.2d 643, 644 (Fla. 1991) ; accord Dorsey v. State , 149 So.3d 144, 146 (Fla. 4th DCA 2014). "For jury instructions to constitute fundamental error, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Barnett v. State , 121 So.3d 643, 646-47 (Fla. 4th DCA 2013) (citation omitted).

"[W]here ... a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant's only defense, it is fundamental error and highly prejudicial to the defendant." Rios v. State , 143 So.3d 1167, 1171 (Fla. 4th DCA 2014) (alterations in original) (quoting Williams v. State , 982 So.2d 1190, 1194 (Fla. 4th DCA 2008) ). We have previously found the existence of fundamental error where the defendant's sole defense at trial was that he acted in self-defense, and incorrect jury instructions on the duty to retreat effectively negated that defense. Dorsey , 149 So.3d at 147.

In the instant case, Appellant maintains that his "sole defense" was that he had no duty to retreat at all if he reasonably believed such force was necessary to prevent imminent death or great bodily harm. He contends that the jury instructions, which included the reference to "engaged in unlawful activity," could have led the jury to conclude that he had engaged in unlawful activity when he attempted to run over the victim, and thus, he was required to retreat. As a result, Appellant argues "his sole defense of self-defense" was negated.

In making this argument, Appellant relies on cases in which the defendant was incontrovertibly engaged in unlawful activity at the time of using deadly force, and the jury was put on notice of this unlawful activity. See Dorsey , 149 So.3d at 145 (trial court instructed jury to consider whether defendant had a duty to retreat if he "was engaging in an unlawful activity or was attacked in a place where he did not have the right to be," and then specifically instructed that "a felon in possession of a firearm constitutes unlawful activity."). See also Andujar-Ruiz v. State , 205 So.3d 803, 807 (Fla. 2d DCA 2016) ("State elicited testimony that Andujar-Ruiz was illegally possessing a firearm at the time of the offense and that he had a prior conviction for felon in possession of a firearm. Because this evidence made clear that Andujar-Ruiz was unlawfully possessing a firearm at the time of the alleged offense, the trial court's instruction that he had a duty to retreat if he was engaged in unlawful activity still had the effect of negating Andujar-Ruiz's self-defense claim."); Rios v. State , 143 So.3d 1167, 1169 (Fla. 4th DCA 2014) (trial court ruled that the defendant was engaged in unlawful activity by carrying a concealed firearm when he shot the victims).

In contrast, here the jury instruction did not negate Appellant's sole defense because he was not engaged in unlawful activity and was in a place where he had a right to be when he used deadly force. As defense counsel repeatedly emphasized during the trial, Appellant was on a public road where he had a right to be when he stopped his truck and got out. And, as the defense also emphasized, it was not unlawful for Appellant to possess a firearm. The State did not contest these assertions and, in fact, never argued, during the trial or in the jury instructions, that Appellant was engaged in unlawful activity at the time of the shooting. Therefore, unlike in the cases he cites, Appellant was not deprived of his sole defense.

We also reject Appellant's second claim of error, regarding the admission of testimony from the pre-trial Stand Your Ground immunity hearing in which Appellant admitted he lied to doctors during his competency exam when he said he had hallucinations. "We review evidentiary rulings under the standard of abuse of discretion, which is limited by the rules of evidence." Martinez v. State , 125 So.3d 985, 988 (Fla. 4th DCA 2013).

Appellant admitted to lying to police during his initial interview (because he was scared) as well as "intentionally lying" to doctors during a competency evaluation (he believed the doctors would help him). Appellant argues these admissions had no relevance to any issues at trial and were "extremely prejudicial" to his defense. We disagree. Appellant's acknowledgment of "intentionally lying" showed his consciousness of guilt and evinced an attempt to defeat or avoid prosecution. "Evidence of a defendant's acts or statements calculated to defeat or avoid his prosecution is admissible against him as showing consciousness of guilt." Brown v. State , 391 So.2d 729, 730 (Fla. 3d DCA 1980).

Furthermore, Appellant's admissions were relevant to the jury's assessment of his credibility. Appellant gave an admittedly false statement to police in which he denied shooting the victim, denied having a gun during the incident, and denied even owning a gun. He then gave an admittedly false statement to doctors in which he claimed he was hallucinating. Despite these false statements, he wanted the jury to believe the testimony he gave during the Stand Your Ground immunity hearing. His credibility was therefore critical.

Conclusion

Appellant was given a full opportunity to assert his theory of self-defense at trial, and his argument that the jury instructions nullified his sole defense is belied by the fact that the State never indicated that Appellant was engaged in "unlawful activity" at the time of the shooting (outside of the shooting itself). Accordingly, Appellant has failed to demonstrate fundamental error necessitating a new trial. Nor has Appellant established an abuse of discretion concerning the admission of his statements at the competency evaluation and subsequent admission of "intentionally lying." These statements were admissible to show consciousness of guilt and probative of credibility. Finding no reversible error, the judgment and sentence are affirmed.

Affirmed.

Taylor and Levine JJ., concur.

      Shell casings were found 187 feet away from the victim's bloodstains found in the roadway.

      Section 776.012 has since been amended to require that a shooter not be engaged in criminal activity. See § 776.012, Fla. Stat. (amended 2014).


text:
    WELLS FARGO BANK, N.A., Appellant, v. Joseph B. ELKIND, a/k/a Joseph Elkind, Timothy M. Donovan, Badabra, LLC, and United States of America, Department of the Treasury, Appellee.
    No. 4D17-1213
    District Court of Appeal of Florida, Fourth District.
    September 5, 2018
    Michael K. Winston and Dean A. Morande of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellant.
    Bruce K. Herman of The Herman Law Group, P.A. Fort Lauderdale, for appellee, Joseph B. Elkind a/k/a Joseph Elkind.
    ON MOTION FOR REHEARING
   Per Curiam.

We grant appellant's motion for rehearing, withdraw our opinion dated July 18, 2018, and substitute the following.

The bank filed a verified complaint to foreclose a mortgage against the borrower, who raised several affirmative defenses, including lack of standing. Thereafter, the bank voluntarily dismissed the complaint without prejudice, but gave no reason for the dismissal.

The borrower moved for prevailing party attorney's fees and costs pursuant to the loan documents and section 57.105, Florida Statutes. The bank argued in opposition that the borrower was precluded from recovering attorney's fees based on the note or mortgage after taking the position that the bank lacked standing. Following a hearing, the trial court entered a final order awarding the borrower $35,880 in attorney's fees and costs.

On appeal, the bank contends that the trial court erred by awarding prevailing party attorney's fees and costs to the borrower because the borrower failed to demonstrate that both he and the bank were entitled to enforce the note and mortgage, emphasizing that the borrower argued to the contrary below by raising the affirmative defense that the bank lacked standing.

The bank relies on Nationstar Mortgage LLC v. Glass , 219 So.3d 896, 899 (Fla. 4th DCA 2017), which held that "[a] party that prevails on its argument that dismissal is required because the plaintiff lacked standing to sue upon the contract cannot recover fees based upon a provision in that same contract."

However, there is a difference between prevailing on the merits on a standing issue and an undifferentiated voluntary dismissal of a lawsuit prior to any merits determination. The bank's voluntary dismissal took this case out of Glass . Standing was never litigated below and the trial court never made a finding that the bank or the borrower were not parties to the contract. Because the borrower did not prevail on his argument that dismissal was required because the bank lacked standing to sue on the contract, he is not precluded from recovering fees based on a provision in the same contract. Glass , 219 So.3d at 899. Accordingly, we affirm the order awarding fees. We leave for another day the issue of whether the borrower's victory on the attorney's fee issue here would collaterally estop him from raising standing in a future foreclosure on the same mortgage and note.

Gross, Conner and Klingensmith, JJ., concur.


text:
    Rakim J. WATSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4099
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2018
    Kimberly Nolen Hopkins, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Rakim Watson appeals his convictions for charges stemming from a drive-by shooting in which several individuals were wounded. He argues that the evidence presented was insufficient to establish his identity as the shooter and that the trial court erred in denying his motion for mistrial made when the court, in its preliminary instructions, inadvertently informed the jury that Watson had a prior conviction. We affirm.

Many of the individuals in this case have previously been involved with the criminal justice system. At trial, there were inconsistencies among the witnesses' accounts and in prior witness statements. While the identities of the shooters were disputed, it was undisputed that shots were fired from a vehicle Watson was in and several people were injured. Furthermore, at least one victim testified that Watson fired shots from the vehicle. Thus, there was sufficient evidence, despite the inconsistencies, to support Watson's convictions. Cf. Slater v. State, 769 So.2d 512 (Fla. 5th DCA 2000). Ultimately, it is within the jury's purview to make credibility determinations among conflicting testimony. Id. at 512 ("The validity of the [victim] identification testimony was for the jury."); see also Bradshaw v. State, 744 So.2d 1095, 1097 (Fla. 5th DCA 1999) (explaining that evidence regarding defendant's "identity as the shooter was a question for the jury").

Further, we find the trial court's error in informing the jury that Watson had a prior conviction to be harmless under the circumstances of this case. During the preliminary instructions, the court read the charges Watson faced, including, "possession of a firearm by a convicted in-state-." Watson moved for a mistrial, and the court reserved ruling. However, Watson later chose to testify and freely stated that he had previously been convicted of several felonies. Thus, Watson himself placed his status as a convicted felon before the jury, rendering the court's inadvertent disclosure harmless. Cf. Wyatt v. State, 641 So.2d 1336, 1338 (Fla. 1994) (finding trial court's mention of defendant's prior conviction during voir dire harmless where defendant later testified that he was a convicted felon).

AFFIRMED.

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

      Following a jury trial, Watson was found guilty of four counts of principal aggravated battery, one count of discharging a firearm from a vehicle, and one count of possession of a firearm by a convicted felon.

      While the court stopped before saying the word "felon," the jury would likely have gathered that Watson had been previously convicted of a crime.


text:
    Randall A. RALICKI and William C. Mawhinney, Appellants, v. 998 SW 144 COURT RD, LLC, Sarah K. Lovejoy and Sheryl Tinoco, as Trustees of the 998 144th Court, Appellees.
    Case No. 5D17-3288
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2018 Rehearing Denied October 10, 2018
    Randall A. Ralicki and William C. Mawhinney, Ocala, pro se.
    Elizabeth Cruikshank, of Cruikshank Ersin, LLC, Atlanta, GA, for Appellee, 998 SW 144 Court Rd, LLC.
    No Appearances for other Appellees.
   PER CURIAM.

Randall A. Ralicki and William C. Mawhinney appeal an emergency motion for injunctive relief granted ex parte in favor of 998 SW 144 Court Rd, LLC ("998"). They argue that the trial court erred in issuing the injunction because 998's motion failed to state facts sufficient to support granting the injunction, a non-lawyer filed the motion, and the court issued the injunction without a bond. We affirm the issuance of the injunction but remand for the trial court to hold an evidentiary hearing regarding the appropriate amount of bond 998 must post.

In February 2011, 998 filed a complaint to foreclose on property Ralicki and Mawhinney owned. As with far too many of these cases, its path through the court system has been long and tortured. In May 2015, the trial court entered final summary judgment in favor of 998 to allow it to foreclose on the property. However, Ralicki and Mawhinney filed a notice of removal to federal court before the trial court rendered the final summary judgment. Following the entry of final summary judgment, 998 moved for a writ of possession. Ralicki and Mawhinney responded by inundating the trial court with numerous pleadings. 998 moved for a second writ of possession, which the trial court issued in September, and 998 executed in October. Ralicki and Mawhinney continued to flood the trial court with pleadings and notices of appeal. The federal court eventually remanded the case to the trial court.

In April 2017, this Court was compelled to reverse and remand the 2015 final summary judgment because the trial court lacked jurisdiction when it rendered the judgment after Ralicki and Mawhinney filed their notice of removal to federal court and before the federal court remanded. Mawhinney v. 998 SW 144th Court Rd, LLC, 212 So.3d 468, 468 (Fla. 5th DCA 2017). In remanding the case, we noted that "the trial court has the discretion to assess sanctions against Ralicki and Mawhinney if it determines that the case was removed to federal court as a delay tactic." Id. at 469. In June 2017, the trial court did so by issuing an order striking Ralicki and Mawhinney's pleadings filed after April 5, 2017, finding their conduct to be "improper," "purely a dilatory tactic," and to "evidence[ ] fraud and purposeful delay." 998 thereafter continued its attempt to foreclose on the property.

In September 2017, 998 filed an emergency motion for injunctive relief ex parte on the basis that Ralicki and Mawhinney had stolen keys and access codes to the property, continued to enter the property, removed fixtures, appliances, the air conditioning unit, and the main electrical box, as well as caused extensive damage to the property. The trial court granted the injunction, and Ralicki and Mawhinney appealed.

The first two issues Ralicki and Mawhinney raise on appeal are meritless. However, they correctly present that the trial court failed to set a hearing to determine an appropriate bond 998 must post upon issuance of the injunction. Generally, temporary injunctions require the posting of a bond, see Fla. R. Civ. P. 1.610(b), and bond must be set after both parties have had an opportunity to present evidence regarding the appropriate amount. See Dickerson v. Senior Home Care, Inc., 181 So.3d 1228, 1229 (Fla. 5th DCA 2015). Contrary to Ralicki and Mawhinney's position, though, the failure to set a bond does not invalidate the injunction. See Offshore Marine Towing, Inc. v. Sea Tow Servs. Int'l, Inc., 778 So.2d 510 (Fla. 4th DCA 2001) (affirming the issuance of the temporary injunction order but remanding "for the trial court to hold an evidentiary hearing on the amount of the bond"). Accordingly, we affirm the injunction in favor of 998 but remand for an evidentiary hearing regarding the appropriate amount of bond it must post.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

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

      Under the circumstances of this case, it would be appropriate for the trial court to require 998 to post a minimal amount of bond.


text:
    Tayon L. ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1977
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2018
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Tayon L. Alexander appeals his judgment and sentence for aggravated child abuse. He argues, in part, that the trial court erred by failing to conduct a competency hearing and enter a competency order. The State concedes error. We agree and reverse in part. We affirm all other issues on appeal without discussion.

Prior to trial, defense counsel moved for a competency determination pursuant to Florida Rule of Criminal Procedure 3.210(b). The trial court granted the motion and appointed an expert to examine Alexander. However, the record does not indicate that any competency hearing was held or contain an order adjudicating competency. The State correctly concedes that the trial court fundamentally erred by failing to conduct a competency hearing and make a competency determination. See Dougherty v. State, 149 So.3d 672, 677-78 (Fla. 2014) ; Deferrell v. State, 199 So.3d 1056, 1060-61 (Fla. 4th DCA 2016).

Whether the court can remedy the error by conducting a retrospective competency determination depends on the circumstances of each case. See Dougherty, 149 So.3d at 679. This case is similar to the situations addressed in Baker v. State, 221 So.3d 637 (Fla. 4th DCA 2017), and Silver v. State, 193 So.3d 991 (Fla. 4th DCA 2016), where the defendants proceeded to trial after the trial courts appointed experts for competency evaluations but did not make independent determinations regarding the defendants' competence. Baker, 221 So.3d at 639 ; Silver, 193 So.3d at 992-93. In those cases, the Fourth District remanded to conduct a retrospective examination, if possible, recognizing that a nunc pro tunc evaluation can be done in certain limited circumstances. Baker, 221 So.3d at 641 ; Silver, 193 So.3d at 993-94. Specifically, the Florida Supreme Court has held that "a nunc pro tunc competency evaluation [can] be done where 'there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing.' " Dougherty, 149 So.3d at 679 (quoting Mason v. State, 489 So.2d 734, 737 (Fla. 1986) ).

Consequently, we reverse Alexander's conviction and sentence. We remand for further proceedings with the same instructions given in Baker:

[O]n remand, if the court can make a nunc pro tunc finding as to appellant's competency based upon the existence of evaluations performed contemporaneous with trial and without relying solely on a cold record, and can do so in a manner which abides by due process guarantees, then it should do so and enter a corresponding written order. However, if the court finds, for any reason, that an evaluation of appellant's competency at the time of trial cannot proceed in a way that ensures appellant's due process rights, then the court should adjudicate h[is] current competency and, if [he] is competent, conduct a new trial on all counts.

221 So.3d at 641-42 (citations omitted).

AFFIRMED in part; REVERSED in part, and REMANDED with instructions for proceedings consistent with this opinion.

ORFINGER, TORPY and BERGER, JJ., concur.