text:
    Robbie William JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-935
    District Court of Appeal of Florida, Fourth District.
    [September 20, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

The appellant, Robbie William Johnson, appeals his judgment and sentence, contending the trial court erred in five ways. We affirm on four of the issues without discussion. However, we agree with his contention that the trial court erred by failing to make a competency determination prior to trial. On that issue, we reverse and remand for further proceedings.

Background

The State charged Johnson with eighty-seven counts of sexual battery by a person with familial or custodial authority on a victim aged twelve or older but less than eighteen, for various sexual acts committed from January 2009 through July 2012.

Prior to trial, the trial court granted defense counsel's motion to appoint an expert to evaluate Johnson's competence.

However, the order did not set a hearing date to determine competency. The appointed expert submitted a report finding Johnson competent to proceed. Trial counsel did not schedule a hearing on the motion, and the parties failed to address Johnson's competency at various pre-trial hearings.

A jury convicted Johnson on all counts as charged. The trial court entered a judgment and sentence imposing eighty-seven consecutive life sentences. Johnson gave notice of appeal.

Appellate Analysis

The issue of whether the trial court fundamentally erred in failing to hold a competency hearing "presents a pure question of law and thus is subject to de novo review." Presley v. State , 199 So.3d 1014, 1017 (Fla. 4th DCA 2016).

Both parties acknowledge that the trial court did not hold a competency hearing after ordering a competency evaluation.

A court must conduct a competency hearing if, at any material stage of the criminal proceeding, it has "reasonable ground to believe that the defendant is not mentally competent to proceed." Fla. R. Crim. P. 3.210(b). "[T]he trial court has the responsibility to conduct a hearing for competency to stand trial whenever it reasonably appears necessary, whether requested or not, to ensure that a defendant meets the standard of competency." Lane v. State , 388 So.2d 1022, 1025 (Fla. 1980). Florida Rule of Criminal Procedure 3.210(b) provides:

(b) Motion for Examination. If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant's mental condition, which shall be held no later than 20 days after the date of the filing of the motion , and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing. Attorneys for the state and the defendant may be present at any examination ordered by the court.

(emphasis added).

Johnson argues that because the trial court was required to conduct a competency hearing within twenty days of entering its order appointing an expert and a competency hearing was not conducted in conformity with Rule 3.210(b), reversal is required.

The State argues that "[i]n order to trigger the hearing requirement, the court must have a reasonable belief that Defendant may be incompetent to proceed." The State points out that the trial court's order does not indicate that it had a reasonable belief Johnson may be incompetent. The State alleges that the motion did not provide reasonable belief to the court, and "the order for evaluation may have been entered in an abundance of caution, merely in response to the filing of the motion."

However, speculation on the trial court's reasonable belief is unnecessary, because "a trial court's appointing experts to evaluate a defendant's competency suggests there were reasonable grounds to do so." Silver v. State , 193 So.3d 991, 993 (Fla. 4th DCA 2016). The trial court's "order granting counsel's motion for a competency evaluation on its own compelled a competency hearing." Baker v. State , 221 So.3d 637, 641 (Fla. 4th DCA 2017).

"Here, the trial court did not hold the necessary competency hearing and make an independent determination of appellant's competency ...." Presley , 199 So.3d at 1018. However, as Johnson concedes, he is not automatically entitled to a new trial. "A new trial is not always necessary where the issue of competency was inadequately determined prior to trial; a retroactive determination of competency is possible." Dougherty v. State , 149 So.3d 672, 679 (Fla. 2014).

On remand, the trial court should make a finding as to whether it can determine Johnson's competency nunc pro tunc . Presley , 199 So.3d at 1019. As we directed in Baker ,

[I]f the [trial] 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 [trial] 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 [trial] court should adjudicate [his] current competency and, if [he] is competent, conduct a new trial on all counts.

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

Affirmed in part, reversed in part, and remanded for further proceedings.

Levine and Forst, JJ., concur.

      Johnson contends the trial court erred by (1) failing to conduct a competency hearing before proceeding to trial; (2) permitting evidence of his religious beliefs; (3) overruling his relevancy objection to evidence of his religious practices; (4) overruling his objection to the victim's testimony regarding the discovery of her mother's death; and (5) denying his motion for mistrial based on improper closing argument by the State.


source: Caselaw Access Project

author: Artau, Edward L., Associate Judge.

license: Public Domain

text:
    Desmond D. SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2489
    District Court of Appeal of Florida, Fourth District.
    [September 20, 2018]
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Artau, Edward L., Associate Judge.

Appellant, Desmond Sanders, challenges his conviction and sentence for first-degree murder in the shooting death of Carlos Bradwell. We affirm on all issues but write to address appellant's argument that the trial court erred by allowing the jury to hear evidence that, within two hours after Bradwell's death, a shooting occurred at appellant's home.

The evidence at trial established that at about 3:00 a.m. on November 28, 2015, police were called to the House of Meat (a grocery store and after-hours club) in Fort Pierce to respond to reports of a shooting. Several police officers met with a witness who testified that she saw an individual she subsequently identified as appellant with a gun earlier in the night, she later saw him walk in front of her vehicle, and shortly thereafter, she heard gunshots. However, she did not see the shooting. The witness described the person who walked in front of her vehicle as a young, black male with short hair and gold teeth, who went by the name "Des."

While still at the House of Meat, one officer was called at about 5:00 a.m. to respond to reports of a shooting at a home on Kerr Street, which was about three miles away. During her search for evidence at the home, the officer encountered a young black male with short hair and gold teeth, who said his name was "Des." The witness would later identify him as the same person who had walked in front of her vehicle at the House of Meat.

At trial, there was a dispute about whether the reason for the call to the Kerr Street home was to be allowed into evidence. The trial judge had preliminarily ruled that certain testimony about the Kerr Street shooting, including testimony about the shell casings and bullet holes found there, was not admissible, but that it could be relevant and admissible if the state could show a connection between the Kerr Street incident and the House of Meat shooting.

Before the officer testified, the prosecutor instructed her not to mention the evidence found, nor the reason for the call to the Kerr Street home. On cross-examination, however, defense counsel asked the officer questions about the thoroughness of her investigation at the Kerr Street home, including whether she had found any guns or ammunition there, and implied that she had gone to the Kerr Street home for no reason other than to wake a peaceful, quiet family at 5:00 a.m. To avoid violating the prosecutor's pre-testimony instructions, the officer responded by stating that she was asked not to speak about the evidence found at Kerr Street. Despite the officer's reluctance to answer the questions based on the admonition she had previously received from the prosecutor, defense counsel pushed on, asking her to confirm that the ammunition found at Kerr Street belonged to a .410 shotgun and not a .45 caliber gun, which was the type that was removed from the body of the House of Meat shooting victim.

The court then allowed, over objection, appellant's mother to testify that she called the police to her Kerr Street home, and that the reason for the call was that her home had been "shot up." The court ruled that based on defense counsel's strategy to ask about the evidence found at the Kerr Street home, calling into question the thoroughness of the police's investigation and the motives of law enforcement in going to the Kerr Street home at 5:00 a.m., the defense had opened the door. Otherwise, the defense would have been allowed to mislead the jury into believing that the responding officer had failed to conduct a thorough investigation and had randomly showed up at the Kerr Street home while the occupants were sleeping. The court found that the two incidents were inextricably intertwined, and that the Kerr Street incident was relevant for the jury to receive a complete picture as to why the police showed up to a home about three miles away and coincidentally encountered the House of Meat suspect.

After trial, the jury found appellant guilty of first-degree murder, as charged in the indictment. The court sentenced him to life in prison with review after twenty-five years and credit for 587 days.

Appellant argues on appeal that evidence of the Kerr Street shooting was not relevant, and even if it was, any probative value was substantially outweighed by the risk of unfair prejudice. Appellant also argues that the two shootings were not inextricably intertwined and that the jury did not need to know the reason why police were called to appellant's home.

The state contends that the Kerr Street shooting evidence was relevant to show the chronological sequence of events leading to the identification of the House of Meat suspect. The state also argues that the testimony about why the police responded to appellant's home within two hours and just three miles from the House of Meat shooting did not involve hearsay or accusations against appellant. Furthermore, the probative value of the evidence was not substantially outweighed by the prejudicial effect where the evidence was limited to show that after having responded to the call about the shooting at appellant's home, an officer recognized appellant as someone matching the description of a suspect involved in the House of Meat shooting.

We agree with the state.

A trial court's admission of evidence is reviewed for an abuse of discretion, limited by the rules of evidence. Gaines v. State , 155 So.3d 1264, 1271 (Fla. 4th DCA 2015). The prerequisite for the admissibility of evidence is relevance. Castanon v. State , 162 So.3d 52, 54 (Fla. 4th DCA 2014) (citing § 90.402, Fla. Stat.). Evidence is relevant if it tends to prove or disprove a material fact. § 90.401, Fla. Stat. (2017).

Although relevant evidence is ordinarily admissible, there is an exception where the evidence is precluded by law. § 90.402, Fla. Stat. (2017). For example, "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." Castanon , 162 So.3d at 54 (citing § 90.403, Fla. Stat.). "In weighing the probative value against the unfair prejudice, it is proper for the court to consider the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter ...." Rubinger v. State , 98 So.3d 659, 663 (Fla. 4th DCA 2012) (quoting Taylor v. State , 855 So.2d 1, 22 (Fla. 2003) ).

The admission of otherwise inadmissible evidence under the concept of "opening the door" requires that "the defense must offer misleading testimony, or make a specific factual assertion which the state should be able to correct so that the jury will not be misled." Fiddemon v. State , 858 So.2d 1100, 1102 (Fla. 4th DCA 2003). When the defense questions the thoroughness of the police's investigation, the door may be opened to additional information that the police had uncovered. Id. However, the door is not opened to acts that are not relevant for any reason other than the opening of the door. Id.

In Tillman v. State , 964 So.2d 785, 787 (Fla. 4th DCA 2007), on which appellant relies, the defendant was charged with aggravated assault, fleeing or eluding, and resisting arrest without violence. We held there that the contents of two police BOLO ("be on the lookout") reports were inadmissible hearsay and prejudicial where the reports involved information about an armed kidnapping by a suspect last seen in a white Dodge Intrepid, a crime not charged against the defendant. Id. at 786. Officers located a vehicle matching the BOLO description and observed the defendant nearby. Id. The subsequent events (assault, fleeing, and resisting arrest) led to the defendant's charges. Id. at 786-87. We likened Tillman to Conley v. State , 620 So.2d 180 (Fla. 1993), where the Florida Supreme Court found that the contents of a police dispatch report were hearsay and not relevant to establish a sequence of events; that the reason why officers arrived at the scene was not a material issue; and that the inherently prejudicial effect of the contents of the hearsay report outweighed the probative value. Id. at 789.

Here, the admitted evidence did not consist of hearsay reports portraying appellant as the perpetrator of an uncharged crime, which could potentially prejudice appellant as to the charged crime. Appellant and his family were the victims of the Kerr Street shooting. The evidence did not consist of a bad deed committed by appellant that would make the jury more likely to convict him of first-degree murder. Moreover, the details of what happened at Kerr Street were relevant to establish the sequence of events that led up to police arriving at Kerr Street and identifying appellant, particularly where defense counsel had opened the door by portraying the police as not having conducted a thorough investigation and implying that the police just showed up to disrupt a sleeping family.

Accordingly, we find that the instant case is more akin to Collier v. State , 701 So.2d 1197 (Fla. 3d DCA 1997), wherein the Third District held that it was not error to admit the contents of a police BOLO report that contained a description of a particular car but no accusatory information. Id. at 1198. The Third District concluded that the information in the BOLO was not elicited for the truth of the matter, but only to demonstrate to the jury why police were initially drawn to the particular vehicle in which the defendant was riding and to establish the sequence of events that followed. Id. (citing Kearse v. State , 662 So.2d 677, 684 (Fla. 1995) (no error in the admission of a police dispatch tape where it was not offered to prove truth of the matter asserted, but to establish the sequence of events and to explain why police investigation focused on defendant as perpetrator) ).

Similarly, the evidence regarding the circumstances of the Kerr Street home shooting was not introduced to establish that appellant had anything to do with the shooting there. No one implied or suggested that appellant would have shot at his own home. In addition, the trial court admonished the state not to make the Kerr Street shooting a feature of the trial. Instead, the Kerr Street shooting evidence was introduced to demonstrate why police were drawn to the home where they found appellant and to establish a complete sequence of events in the face of misleading information initiated by the defense about the investigation leading up to the identification of appellant as the House of Meat suspect.

Therefore, we affirm the trial court's admission of the testimony about the Kerr Street shooting. Defense counsel opened the door for testimony about the evidence found and the reason for the call to Kerr Street. Defense counsel also presented a misleading and incomplete picture to the jury about the investigation at the Kerr Street home and why the police disturbed what was portrayed as a peaceful and sleeping family. Upon opening the door, the testimony was relevant to provide a logical sequence of events that led police to identify appellant as the House of Meat suspect after encountering him at the Kerr Street home. Under these circumstances, we cannot find the trial court's decision to allow testimony about the Kerr Street shooting to be an abuse of discretion. See Pierre v. State , 246 So.3d 545, 547 (Fla. 4th DCA 2018) ("[B]ecause reasonable minds may differ as to whether the [admitted evidence] was relevant to the issues of the state's or the defense's case, we find no abuse of discretion in the trial court's determination of relevance.").

Affirmed.

Levine and Forst, JJ., concur.


author: Levine, J.

text:
    AVANT CAPITAL, LLC, d/b/a Avant Recovery Fund, Appellant, v. Elsa GOMEZ, Appellee.
    No. 4D17-1014
    District Court of Appeal of Florida, Fourth District.
    [September 20, 2018]
    Mark A. Levy of Brinkley Morgan, Fort Lauderdale, for appellant.
    No brief filed for appellee.
   Levine, J.

The issue presented for our review is whether the omission of the word "Corporation" from the lender's name on the promissory note rendered the note invalid. We find that the trial court erred in granting summary judgment because of this omission and incorrectly found the note invalid as a matter of law. We reverse the summary judgment.

Avant Capital filed a complaint against appellee for breach of a promissory note. The complaint alleged that appellee and Providian Mortgage of South Florida entered into a loan which was ultimately transferred and assigned to Avant Capital. Avant Capital claimed that it was the owner and holder of the note and in possession of the original note.

The copy of the note attached to the complaint listed Providian Mortgage of South Florida as the lender. An allonge to the note contained an endorsement by Providian Mortgage of South Florida to American Brokers Conduit who, in turn, endorsed the note to Trinity Financial Services. A second allonge contained an endorsement by Trinity Financial to Avant Capital.

Appellee moved for summary judgment, arguing that Avant Capital lacked standing because "Providian Mortgage of South Florida" was a nonexistent entity. Appellee submitted certificates from the Florida Department of State and Florida Office of Financial Regulation in support. Appellee argued that the note and mortgage were void and that endorsements from a nonexistent entity are a nullity.

In opposition to the motion, Avant Capital submitted a certificate from the Florida Office of Financial Regulation showing that a mortgage broker license existed for "Providian Mortgage Corporation of South Florida." (emphasis added).

The trial court entered summary judgment and dismissed the complaint, stating:

A party's rights that flow from another, are limited to those rights the original party possesses. The original party pled throughout this case by the plaintiff, "Providian Mortgage of South Florida," does not exist. Assignment of rights originating from a nonexistent entity is no assignment at all. Because the party pled concededly did not exist, plaintiff has no standing to enforce the claimed rights of what was conceded to be a nonexistent entity.

An order granting summary judgment is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. "All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available." E. Qualcom Corp. v. Glob. Commerce Ctr. Ass'n , 59 So.3d 347, 350 (Fla. 4th DCA 2011) (citation omitted).

We find that the trial court erred in entering summary judgment based entirely on the omission of the word "Corporation" from the original lender's name. We note that section 694.12, Florida Statutes (2017), provides:

All deeds of conveyance, bills of sale, mortgages, or other transfers of real or personal property within the limits of this state, heretofore made and received bona fide and upon good consideration by any corporation, or to any corporation, in which the name of said corporation shall be incorrectly set out in such deed, bill of sale, mortgage or other instrument by omitting a word from the corporate name, or by adding a word thereto, or by misspelling any part of the name of said corporation, and the identity of said corporation shall plainly appear from the contents of said instrument, or otherwise, such deed, bill of sale, mortgage or other instrument, shall be taken and deemed valid and effectual as though the name of said corporation were correctly set out in said deed, bill of sale, mortgage or other instrument, and the same shall, notwithstanding such irregularity or defect, be deemed and taken as properly executed.

"[S]light departures from the name used by the corporation, such as the omission of a part of its name or the inclusion of additional words, generally will not affect the validity of contracts or other business transactions as long as the identity of the corporation can be reasonably established from the evidence." Presley v. Ponce Plaza Assocs. , 723 So.2d 328, 330 (Fla. 3d DCA 1998) (Cope, J., specially concurring) (emphasis omitted) (citing 6 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 2444, at 156-58 (perm. ed. rev. vol. 1996) ). See also Sweet v. Ranger Realty Co. , 108 Fla. 249, 146 So. 199, 200 (1933) (affirming denial of motion to dismiss suit brought to foreclose a tax certificate issued to "Covington Bank & Trust Company" instead of "Covington Trust and Banking Company"); accord Laws v. Ranger Realty Co. , 110 Fla. 149, 148 So. 583, 583 (1933).

In the instant case, omission of the word "Corporation" from Providian's name on the note did not affect the validity of the loan or Providian's endorsement because, taking the evidence in the light most favorable to the non-moving party, one could identify Providian Mortgage of South Florida as being the same entity as Providian Mortgage Corporation of South Florida. Because this issue of material fact remained, the trial court erred in finding as a matter of law that the two entities could not be the same. As such, we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

Gerber, C.J., and Ciklin, J., concur.


author: Per Curiam.

text:
    Dennis W. GLYNN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0101
    District Court of Appeal of Florida, First District.
    March 27, 2018
    Michael B. Cohen, Ft. Lauderdale, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


text:
    Roberto LABORI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0104
    District Court of Appeal of Florida, First District.
    March 27, 2018
    Roberto Labori, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.141(c)(5)(A).

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


text:
    Jonathan B. BLUNTSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1076
    District Court of Appeal of Florida, First District.
    June 13, 2018
    Jonathan B. Bluntson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Ray, and Kelsey, JJ., concur.


text:
    John NORFLEET, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0620
    District Court of Appeal of Florida, First District.
    June 13, 2018
    John Norfleet, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Roberts, Ray, and Kelsey, JJ., concur.


text:
    Theophus DAVISON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1411
    District Court of Appeal of Florida, First District.
    June 13, 2018
    Theophus Davison, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

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


author: Winokur, J.

text:
    Berta Cantera CHAVIANO and Toni L. Villaverde, Petitioners, v. GREATER MIAMI CATERERS, INC., d/b/a Master Host, et al., Respondents.
    No. 1D17-3029
    District Court of Appeal of Florida, First District.
    June 22, 2018
    Toni L. Villaverde of Toni L. Villaverde, PLLC, Coral Gables, for Petitioners.
    Wendy E. Knecht of Miller, Kagan, Rodriguez and Silver, P.L., West Palm Beach, for Respondents.
   Winokur, J.

Petitioners, a worker's compensation claimant and her attorney, seek a writ of prohibition to disqualify a Judge of Compensation Claims (JCC) in three different workers' compensation cases. We dismiss the petition as moot.

In one case, the JCC entered an order denying a motion for disqualification as legally insufficient. Petitioners then filed this petition for writ of prohibition, seeking the JCC's disqualification. This Court then stayed proceedings below. See Fla. R. App. P. 9.100(h). The JCC left the bench before this Court ruled on this petition. The JCC did not rule on the motions to disqualify in the two other cases before he left.

After the JCC left office, Petitioners filed a motion for clarification as to the extent of this Court's stay. In the motion, Petitioners state that a new JCC was appointed, and that the issue of the prior JCC's refusal to grant Petitioners' motion for disqualification is now moot. As a result, this Court ordered Petitioners to show cause why it should not dismiss this action as moot.

In their response, Petitioners repeated a list of complaints about the prior JCC's actions and how they allegedly demonstrated bias against the claimant. Petitioners requested "clarification amounting to reversal as to JCC's denial of his recusal as to the matter and not just a dismissal as moot," and requested this Court to "remand the matter to the newly appointed judge to preside over this matter de novo so that all perceptions of bias and taint is removed for good."

It is difficult to understand Petitioners' position. In their motion for clarification, Petitioners asserted that the issue regarding the prior JCC's refusal to disqualify himself is moot. This is correct and should end the inquiry. See James Mitchell & Co. v. Gallagher , 651 So.2d 700, 701 (Fla. 1st DCA 1995) (holding that motion to disqualify an official is moot when the official is no longer in office). The fact that the prior JCC will no longer preside over Petitioners' cases renders a petition to disqualify him unnecessary.

However, Petitioners also ask this Court to reverse all of the prior JCC's interlocutory orders upon which they base their claims of bias. Because a writ of prohibition is preventative, not corrective, it should not be used as a substitute for an appeal. See generally Sparkman v. McClure , 498 So.2d 892 (Fla. 1986) ; S. Records & Tape Serv. v. Goldman , 502 So.2d 413 (Fla. 1986). The current JCC is not bound by orders of the prior JCC. See Booth v. Booth , 91 So.3d 272, 274 n. 1 (Fla. 1st DCA 2012) (holding that "[p]rior to final judgment, a successor judge has the power to vacate or modify a predecessor's interlocutory rulings") (quoting Hull & Co. v. Thomas , 834 So.2d 904, 905 (Fla. 4th DCA 2003) ); Strominger v. AmSouth Bank , 991 So.2d 1030, 1034 (Fla. 2d DCA 2008) (holding that "a nonfinal or temporary order may be revisited by a judge at any time before the conclusion of the case, even by a successor judge"). An incorrect ruling may serve as a basis for appeal. For this reason, a writ of prohibition is inappropriate to require the current JCC to revisit orders of the prior JCC, and such action would be beyond the scope of the petition.

DISMISSED.

WETHERELL and RAY, JJ., concur.


text:
    Kentwynon DAVIS, Petitioner, v. Sheriff Walt MCNEIL, and State of Florida, Respondents.
    No. 1D18-1869
    District Court of Appeal of Florida, First District.
    June 21, 2018
    Andy Thomas, Public Defender, and Elizabeth Vallejo, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondents.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Rowe, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Leon J. NICELY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4044
    District Court of Appeal of Florida, First District.
    July 9, 2018
    Leon J. Nicely, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This court issued an order on May 2, 2018, directing Appellant to show cause why sanctions should not be imposed against him in light of his having instituted numerous repetitive, meritless proceedings in this court. See State v. Spencer , 751 So.2d 47 (Fla. 1999). We have reviewed Appellant's response and determined it does not provide a legal basis to justify withholding imposition of sanctions.

Appellant is hereby prohibited from filing any pro se filings in this court challenging his conviction and sentence imposed in Duval County case number 16-1996-CF-8172. The Clerk of this court is directed to not accept any filings in this case unless they are signed by a member in good standing of the Florida Bar. Additionally, we find this appeal is a frivolous proceeding brought before this court by a state prisoner. See § 944.279(1), Fla. Stat. (2017). We direct the clerk to forward a certified copy of this opinion to the appropriate institution or facility within the Florida Department of Corrections for disciplinary procedures pursuant to department rules.

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


text:
    Christopher Nathaniel BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4135
    District Court of Appeal of Florida, First District.
    June 22, 2018
    Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Patricia Kyser, Assistant Regional Counsel, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Steve Woods, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition is DENIED without prejudice to Petitioner's ability to raise the affirmative defense of self-defense at trial. See Mederos v. State , 102 So.3d 7, 11 (Fla. 1st DCA 2012).

Lewis, Roberts, and Jay, JJ., concur.


author: LINDSEY, J.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY as trustee FOR CERTIFICATEHOLDERS OF the MORGAN STANLEY ABS CAPITAL 1 INC. TRUST 2003-NC1O, Appellant, v. Cesar Garcia DEL BUSTO a/k/a Cesar Garcia, et al., Appellees.
    No. 3D17-2631
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018
    Holland & Knight LLP, and Katherine M. Joffe, and Brian K. Hole (Ft. Lauderdale), for appellant.
    No appearance for appellees.
    Before LAGOA, SCALES, and LINDSEY, JJ.
   LINDSEY, J.

Deutsche Bank National Trust Company as Trustee for Certificateholders of the Morgan Stanley ABS Capital 1 Inc. Trust 2003-NC10 ("Deutsche Bank") appeals the trial court's postjudgment order vacating a final judgment of foreclosure entered against Cesar Garcia Del Busto ("Borrower"). Because there was no legal basis for vacating the final judgment, we reverse and remand for reinstatement of the final judgment of foreclosure.

On June 22, 2015, a final judgment of foreclosure (the "final judgment") was entered in favor of Deutsche Bank. More than two years later, on August 18, 2017, Borrower filed a motion to vacate the final judgment (the "motion to vacate"). In the motion to vacate, Borrower asserted that the parties had entered into a repayment plan wherein the terms of loan had been modified and that Borrower was in compliance with the repayment plan schedule. Although the repayment plan was not attached to the motion to vacate, Borrower claimed that the repayment plan was a mutual resolution between Borrower and Deutsche Bank and therefore the final judgment should be vacated.

After the trial court subsequently denied the motion to vacate on September 28, 2017, Borrower filed a motion for reconsideration and rehearing (the "motion for reconsideration") on October 3, 2017. The trial court granted the motion for reconsideration and set the motion to vacate to be heard on October 24, 2017. At the October 24, 2017 hearing, counsel for Deutsche Bank stated that, while the parties had entered into a stipulation in April of 2017, it was not yet a permanent payment plan and that no valid reason existed under Florida Rule of Civil Procedure 1.540 to vacate the final judgment. Although Borrower's counsel suggested to the trial court that the repayment plan was not temporary, the first sentence of the repayment plan provides that Borrower was "approved for a temporary repayment plan to assist you in making payments."

A continuation of the October 24, 2017 hearing was held on October 31, 2017, at which a witness for Deutsche Bank explained that the case had not been resolved and that the loan had not been modified. Additionally, Deutsche Bank's counsel indicated that Borrower had not made all of the scheduled payments as of October 31, 2017, which was in direct violation of the repayment plan's terms and grounds for cancelation. Nonetheless, the trial court determined that the case had been settled and granted Borrower's motion to vacate on October 31, 2017. The instant appeal ensued.

"Except as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or vacate an order or judgment." Miami-Dade County v. Second Sunrise Inv. Corp., 56 So.3d 82, 85 (Fla. 3d DCA 2011) (quoting Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1, 3 (Fla. 1970) ). This Court generally reviews a trial court's ruling on a rule 1.540(b) motion for relief from judgment for abuse of discretion. See Nationstar Mortg., LLC v. Diaz, 227 So.3d 726, 729 (Fla. 3d DCA 2017) (citation omitted).

Here, "[w]e find no part of rule 1.540 which could be applied to provide the relief granted in this case." Second Sunrise Inv. Corp., 56 So.3d at 85. (determining that the motion was untimely under rule 1.540(b)(1), (2), and (3), while provision (b)(4) was inapplicable because there was no allegation that the underlying judgment was void). As in Second Sunrise Investment Corp., the motion to vacate was untimely under rule 1.540(b)(1), (2), and (3), and rule 1.540(b)(4) was inapplicable because there is no allegation that the final judgment was void. Id.

In regards to rule 1.540(b)(5), we further conclude that the final judgment had not been satisfied by full compliance with the repayment plan. Additionally, Borrower's failure to seek relief under rule 1.540(b), on its own, is sufficient to compel reversal of the trial court's order vacating the final judgment. See Bank of New York Mellon v. Peterson, 208 So.3d 1218, 1222 (Fla. 2d DCA 2017) ("Here, the Estate's motion did not allege a basis for relief from the final judgment under rule 1.540, nor did the Estate argue entitlement to relief under rule 1.540 at the hearing on its motion.").

While Borrower claimed in the motion to vacate and at the two hearings in October of 2017 that the final judgment should be vacated because the terms of the loan had been modified and that the parties "reached a mutual resolution" that satisfied the final judgment, the record demonstrates that the repayment plan was temporary and that Borrower had failed to make all of the required payments as of October 31, 2017. Furthermore, Deutsche Bank's witness explained to the trial court, and the language of repayment plan makes clear, that the terms of the loan were not modified.

Because Borrower failed to provide any basis under rule 1.540 upon which to vacate the final judgment, the trial court was without authority to grant the motion to vacate. Accordingly, we reverse and remand for the trial court to reinstate the final judgment.

Reversed and remanded.

      Borrower did not allege a basis for relief from the final judgment under Florida Rule of Civil Procedure 1.540 in the motion to vacate or at any subsequent hearing.

      The repayment plan makes clear that the terms of the original loan were not modified. Under a paragraph entitled "Terms Not Modified," the repayment plan reads in pertinent part: "All terms and conditions of the current mortgage documents pertaining to this account remain in full force and effect ...."


text:
    Jerry Neil ALFRED, Appellant, v. John A. BARFIELD, Appellee.
    No. 1D17-2358
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Jerry Neil Alfred, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, and Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   Per Curiam.

This Court issued an order on May 9, 2018, directing Appellant to show cause why sanctions should not be imposed against him in light of his having instituted repetitive, meritless proceedings in this Court. See State v. Spencer , 751 So.2d 47 (Fla. 1999).

We have reviewed Appellant's response and determined that it does not provide a legal basis to justify withholding imposition of sanctions.

Appellant is hereby prohibited from filing any pro se filings in this Court challenging his conviction and sentence in Dade County case number 98-35550. The clerk of this Court is directed not to accept any filing in this case unless it is signed by a member in good standing with the Florida Bar. Appellant is warned that any filings that violate the terms of this opinion may result in a referral to the appropriate correctional institution for disciplinary proceedings.

AFFIRMED .

Roberts, Rowe, and Winokur, JJ., concur.


author: SCALES, J.

text:
    Juan Pablo SALGADO, Appellant, v. Karla SUYAPA-JIMENEZ, Appellee.
    No. 3D17-1286
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018
    Law Office of Luis E. Reynoso, P.A., and Luis E. Reynoso, for appellant.
    Corona Law Firm, P.A., and Ricardo R. Corona, Coral Gables, and Nina Tarafa, Miami, for appellee.
    Before ROTHENBERG, C.J., and EMAS and SCALES, JJ.
   SCALES, J.

Juan Pablo Salgado, the petitioner below, appeals a May 5, 2017 trial court order ("May 5, 2017 Order") denying Salgado's post-trial motion seeking rehearing of a March 15, 2017 Order on Father's Petition to Establish Paternity and for Related Relief ("March 15, 2017 Order"). While we affirm all issues on appeal without further comment, we write only to address briefly the appellee's erroneous contention that we lack jurisdiction to review the March 15, 2017 Order.

Relevant Facts and Procedural Background

In April 2016, Salgado filed a Petition to Determine Paternity, Custody, Visitation, Child Support and for Related Relief in the family division of the circuit court. The matter proceeded to final hearing on February 3, 2017, after which the trial court rendered the March 15, 2017 Order. Therein, the trial court effectively resolved all of the issues raised in Salgado's petition with respect to paternity of the parties' minor children, the minor children's relocation to Texas with the appellee, the establishment of a parenting plan, and the establishment of a timesharing schedule.

Salgado then timely filed his motion for rehearing, alleging that, in rendering the March 15, 2017 Order, the trial court erred by failing to consider certain required factors regarding the best interest of the child and by failing to follow the recommendations of the guardian ad litem. Salgado's rehearing motion also alleged that new evidence had come to light since the final hearing that warranted further hearing of the matter. In her response - wherein the appellee repeatedly acknowledged that the March 15, 2017 Order was a final judgment - the appellee argued that Salgado's rehearing motion should be denied for failure to set forth any appropriate ground for seeking rehearing of the March 15, 2017 Order (i.e., an error, omission or oversight).

On May 5, 2017, the trial court, without a hearing, entered the May 5, 2017 Order denying Salgado's rehearing motion and, on June 3, 2017, Salgado filed a notice of appeal with this Court, designating the May 5, 2017 Order as the order being appealed. Then, on June 12, 2017, for reasons that are not clear from the record, the trial court rendered a Final Judgment on Father's Petition to Establish Paternity and for Related Relief ("June 12, 2017 Order"). This June 12, 2017 Order is identical to the March 15, 2017 Order, save for the change to the title (from "Order" to "Final Judgment"). At no time did Salgado seek to amend his June 3, 2017 notice of appeal to include the June 12, 2017 Order or to designate the March 15, 2017 order as the order being appealed.

Jurisdictional Analysis

The appellee contends that this Court lacks jurisdiction to review either the March 15, 2017 Order or the June 12, 2017 Order, and that Salgado's appeal should be dismissed. Specifically, the appellee argues that the March 15, 2017 Order was a non-final, non-appealable order, and therefore, that Salgado's rehearing motion directed to same was unauthorized. The appellee also argues that Salgado never sought appellate review of the final judgment rendered in this case, i.e., the June 12, 2017 Order. We disagree.

In sum, despite its title, the March 15, 2017 Order ended the judicial labor in the case, and was a final, appealable order because it resolved all pending issues in Salgado's petition, thereby satisfying the test of finality. Salgado's timely filed motion for rehearing directed toward the March 15, 2017 Order was authorized under rule 12.530(a), and tolled the rendition of the March 15, 2017 Order, thereby extending the thirty-day appellate period of this order until the trial court rendered an order disposing of Salgado's rehearing motion. See Fla. R. App. P. 9.020(i)(1) ; Dann v. Dann, 24 So.3d 791, 791 (Fla. 5th DCA 2009) (recognizing that a timely filed rule 12.530 motion for rehearing of a final order will suspend rendition of the final order pursuant to rule 9.020 ). Because the May 5, 2017 Order (disposing of Salgado's rehearing motion) is not separately reviewable from the March 15, 2017 Order to which it was directed, see Florida Rule of Appellate Procedure 9.130(a)(4), irrespective of Salgado's erroneous characterization of the order appealed, we properly treated Salgado's notice of appeal - purporting to appeal the May 5, 2017 Order - as appealing the March 15, 2017 Order, i.e., the final order to which Salgado's rehearing motion was directed. This Court therefore has jurisdiction to review this matter.

Finally, as for the June 12, 2017 Order - which the trial court labeled as a "Final Judgment" despite having previously entered an identical "judgment" - it appears this order is a nullity. Once a party files a notice of appeal from a final order in a family law matter, the trial court is divested of jurisdiction to vacate or modify the very order under consideration by the appellate court. See Campbell v. Campbell, 100 So.3d 763, 764-65 (Fla. 4th DCA 2012) (concluding that the trial court lacked jurisdiction to vacate a final order setting forth the parties' parenting plan while an appeal of the final order was pending before the appellate court); Adams v. Adams, 676 So.2d 526, 526-27 (Fla. 4th DCA 1996) (concluding the trial court was without jurisdiction to modify child support obligations awarded in a final judgment after the notice of appeal of the judgment was filed).

Affirmed.

      Florida Family Law Rule 12.530(a) provides:
      (a) Jury and Non-Jury Actions . A new trial or rehearing may be granted to all or any of the parties and on all or a part of the issues. On a motion for rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.

      Rule 12.530(f) provides:
      (f) Hearing on Motion. When any motion for rehearing or new trial is filed, the court must initially make a determination if a hearing on the motion is required. If a hearing is required, the court must provide notice of the hearing on the motion for rehearing or new trial. If the court determines that a hearing is not required, then the court must enter an order granting or denying the motion in accordance with this rule.

      The trial court even entered the June 12, 2017 Order nunc pro tunc to the same date as the March 15, 2017 Order.

      "Generally, the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected." S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla. 1974) (footnote omitted). The title of the order, judgment or decree is not controlling. See Bank of N.Y. Mellon for Certificateholders of CWABS, Inc. v. Swain, 217 So.3d 226, 227 (Fla. 5th DCA 2017) (providing that when applying the test of finality, the focus is on what the court order does, not on how the order is labeled); GMI, LLC v. Asociacion del Futbol Argentino, 174 So.3d 500, 501 (Fla. 3d DCA 2015) ("An appropriate order dismissing a case could be captioned 'Final Order Dismissing the Case [or Complaint],' although the caption is not controlling."); Boyd v. Goff, 828 So.2d 468, 469 (Fla. 5th DCA 2002) ("This case is a good example of why it is important to understand what a court order does and not focus only on how the order is labeled.").

      Rule 9.020(i)(1) provides:
      (i) Rendition (of an Order). An order is rendered when a signed, written order is filed with the clerk of the lower tribunal. However, unless another applicable rule of procedure specifically provides to the contrary, if a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion ... for rehearing ..., the following exceptions apply:
      (1) If such a motion or motions have been filed, the final order shall not be deemed rendered as to any existing party until the filing of a signed, written order disposing of the last of such motions.

      Tunstall v. Folsom, 616 So.2d 1123, 1124 (Fla. 1st DCA 1993) ("We also find that appellant's mistake in identifying the order on rehearing, rather than the [final] order of September 2, as the order to be reviewed, is not a jurisdictional defect. If the notice of appeal gives sufficient information from which it can be determined, with a reasonable degree of certainty, which order is being appealed, technical defects in the notice that neither affect jurisdiction nor mislead or prejudice the appellee do not require dismissal."); see also Ratner v. Miami Beach First Nat'l Bank, 362 So.2d 273, 274 (Fla. 1978) ("[D]efects in the notice of appeal are not to be considered jurisdictional defects, or grounds for dismissal, unless the complaining party was substantially prejudiced."); Eisman v. Ross, 664 So.2d 1128, 1129 (Fla. 3d DCA 1995) ("When Rule 9.110(d) (providing for notice of appeal) was crafted, it was 'intended that defects in the notice would not be jurisdictional or grounds for disposition unless the complaining party was substantially prejudiced.' " (quoting Fla. R. App. P. 9.110(d) 1977 Committee Note) ); cf. Fla. R. App. P. 9.040(h) (providing that the "[f]ailure of a ... party timely to file ... the conformed copy of the order or orders designated in the notice of appeal shall not be jurisdictional").