text:
    David PENA, Appellant, v. Leydis RODRIGUEZ, Appellee.
    No. 3D18-0012
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019.
    Martinez-Scanziani & Associates Law, P.A., and Denise Martinez-Scanziani, for appellant.
    Francisco J. Vargas, P.A., and Francisco J. Vargas; Giel Family Law, P.A., and Michael M. Giel, (Jacksonville), for appellee.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   MILLER, J.

The father, David Pena, appeals a final judgment of paternity adjudicating issues of parental responsibility, timesharing, and child support. For the reasons set forth below, we conclude that the trial court improvidently relied upon proffered evidence in rendering the final judgment, thereby divesting the father of his procedural due process rights, thus, we reverse.

In 2010, the mother, Leydis Rodriguez, gave birth to a son. Although the mother was unmarried at the time, the father held himself out to be, and was recognized by all concerned as being, the natural father of the child. Accordingly, the parties amicably arranged an informal visitation schedule and the father provided intermittent child support.

The parents' relationship eventually deteriorated, and in 2017, the father filed a petition for determination of paternity. Thereafter, the mother filed an answer and counterpetition. Although paternity was not disputed, issues of parental responsibility, timesharing, and child support required resolution by the trial court. A court-ordered mediation was arranged, but the father failed to appear. Consequently, the trial court struck his pleadings and scheduled a final hearing on the remaining contested issues, as framed in the mother's counterpetition.

At the final hearing, the trial court expended valiant, yet unsuccessful efforts to effect a mutually agreed resolution of the disputed issues. The mother's counsel informally proffered the substance of her case. The father then addressed the court regarding his timesharing and employment history. Thereafter, the proceedings concluded without a settlement or any presentation of evidence. The trial court subsequently rendered a final judgment, adjudicating the issues of parental responsibility, timesharing, and child support. This appeal ensued.

On appeal, the father contends the trial court erroneously relied solely upon proffered evidence in rendering its final judgment of paternity. The mother asserts that a stipulation of settlement was tacitly reached, vitiating the necessity of presenting evidence. However, she commendably and properly confesses error as to "the final judgment's provision granting [her] ultimate responsibility over all decisions affecting the child should the parties be unable to agree." Fazzaro v. Fazzaro, 110 So.3d 49, 51 (Fla. 2d DCA 2013).

STANDARD OF REVIEW

A "trial court has broad discretion in child custody matters, and its decision in that regard is [typically] reviewed for an abuse of discretion." Miller v. Miller, 842 So.2d 168, 169 (Fla. 1st DCA 2003) (citations omitted); see Turnier v. Stockman, 139 So.3d 397, 400 (Fla. 3d DCA 2014) ("We review the trial court's final judgment establishing a parenting plan for an abuse of discretion." (citations omitted)); Smith v. Smith, 872 So.2d 397, 398 (Fla. 1st DCA 2004) (stating a "trial court's imputation of income," for purposes of determining a parent's child support obligation, is reviewed "for abuse of discretion" (citation omitted)). "An abuse of discretion appears when the record reveals a lack of competent, substantial evidence to sustain the findings of the trial court." Richardson v. Richardson, 442 So.2d 1005, 1005 (Fla. 3d DCA 1983) (citation omitted); see Schwieterman v. Schwieterman, 114 So.3d 984, 987 (Fla. 5th DCA 2012). We review a claim of deprivation of procedural due process de novo. A.B. v. Fla. Dep't of Children & Family Servs., 901 So.2d 324, 326 (Fla. 3d DCA 2005) ; see also Beroes v. Fla. Dep't of Revenue ex rel. Palacios, 958 So.2d 489, 492 (Fla. 3d DCA 2007) (discussing that where the issue was decided as a matter of law, and did not involve the resolution of any question of fact, review was de novo).

LEGAL ANALYSIS

"No State shall ... deprive any person of life, liberty, or property, without due process of law ..." Amend. XIV, § 1, U.S. Const.; see Art. I, § 9, Fla. Const. "The constitutional guarantee of due process requires that judicial decisions be reached by a means that 'preserves both the appearance and reality of fairness.' " Verizon Bus. Network Servs., Inc. v. Dep't of Corr., 988 So.2d 1148, 1151 (Fla. 1st DCA 2008) (citation omitted). Basic due process requires a party be provided notice and a meaningful opportunity to be heard, the denial of which constitutes fundamental error. See Nationstar Mortg., LLC v. Weiler, 227 So.3d 181, 184-85 (Fla. 2d DCA 2017) ; Slotnick v. Slotnick, 891 So.2d 1086, 1089 (Fla. 4th DCA 2004) (citation omitted). The guarantee of due process is implicated in determinations involving paternity and child support. See Little v. Streater, 452 U.S. 1, 5, 101 S. Ct. 2202, 2205, 68 L.Ed. 2d 627 (1981) (noting the federal due process clause ordinarily guarantees an evidentiary hearing to a defendant in a paternity action); Walters v. Petgrave, 248 So.3d 1202 (Fla. 4th DCA 2018) (reversing a final judgment establishing paternity, timesharing, and child support where the mother was denied her due process rights by being precluded from presenting her case-in-chief at the final hearing).

"One of the basic elements of due process is the right of each party to be apprised of all the evidence upon which an issue is to be decided, with the right to examine, explain or rebut such evidence." Matter of SAJ, 942 P.2d 407, 410 (Wyo. 1997) (citation omitted). Of particular significance is the right to cross-examine, as "[t]he partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony' ... the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 1110, 39 L.Ed. 2d 347 (1974) (internal citation omitted); see Goldberg v. Kelly, 397 U.S. 254, 269, 90 S. Ct. 1011, 1021, 25 L.Ed. 2d 287 (1970) ("In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." (citations omitted)).

In recognition of our binary, common law system of adversarialism, the argument or proffer of counsel, not rendered under oath, absent a clear stipulation, does not constitute admissible evidence. See Matrix Sys., Inc. v. Odebrecht Contractors of Fla., Inc., 753 So.2d 652 (Fla. 3d DCA 2000) ("In the absence of a clear stipulation of counsel, argument of counsel alone does not constitute evidence from which the trial court can determine the propriety, vel non, of granting injunctive relief." (quoting Brand v. Elliott, 610 So.2d 37, 38 (Fla. 5th DCA 1992) )); State v. T.A., 528 So.2d 974, 975 (Fla. 2d DCA 1988) ("[R]epresentations by counsel not made under oath and not subject to cross-examination, absent a stipulation, are not evidence." (citation omitted)). Accordingly, the reliance upon the representations of counsel, in an evidentiary context, undermines procedural due process guarantees by divesting the opposing party of a full, fair, and meaningful opportunity to be heard. See Haywood v. Bacon, 248 So.3d 1254, 1256 (Fla. 5th DCA 2018) (reversing a final judgment of modification as to a parenting plan, holding it was a denial of due process to enter a final order without allowing the mother to complete a cross-examination and present rebuttal evidence at an evidentiary hearing to determine the best interest of the children); Bielling v. Bielling, 188 So.3d 980, 981 (Fla. 1st DCA 2016) (reversing an order establishing a new parenting plan and suspending the father's child support obligation, finding the trial court's "entry of an order without allowing the parties to complete presenting evidence and argument constituted a denial of due process." (citations omitted)).

Here, the mother concedes that her presentation at the final hearing was restricted to the representations of counsel. Nonetheless, she contends the father waived an objection to the deficiency of the proceeding, as the court effectively negotiated an informal settlement between the parties. Although we are cognizant of the efforts expended by the trial court in seeking an efficient and conciliatory resolution of the matter, we are unpersuaded by this argument, as the record reflects the father repeatedly expressed his vehement disagreement with the characterization of the proffered evidence and the informal procedure employed by the trial court at the final hearing. In any event, "[a] denial of [procedural] due process constitutes fundamental error that may be raised for the first time on appeal." Chiu v. Wells Fargo Bank, N.A., 242 So.3d 461, 464 (Fla. 3d DCA 2018) (citations omitted).

CONCLUSION

We conclude the trial court deprived the father of procedural due process in relying solely upon the representations of counsel in support of its determinations of parental responsibility, timesharing, and child support. See Julia v. Julia, 146 So.3d 516, 520-21 (Fla. 4th DCA 2014) (holding that the wife was "denied a full, fair, and meaningful opportunity to be heard" at a final hearing, where the wife was not allowed to fully present her case); see also Minakan v. Husted, 27 So.3d 695, 699 (Fla. 4th DCA 2010) ("Even if [a party's] evidence would not have impressed the court, a party has the right to present evidence and to argue the case at the conclusion of all the testimony." (citation omitted)). Accordingly, we reverse final judgment of paternity and remand for a new adjudicatory hearing.

Reversed and remanded.

      The father is not an attorney and acted pro se in the proceedings below.

      The father was not administered an oath prior to addressing the trial court. See § 90.605(1), Fla. Stat. (2018) ("Before testifying, each witness shall declare that he or she will testify truthfully, by taking an oath or affirmation ..."); Houck v. State, 421 So.2d 1113, 1116 (Fla. 1st DCA 1982) ("An unsworn witness is not competent to testify.") (citing Crockett v. Cassels, 95 Fla. 851, 116 So. 865 (1928) ).

      In recognition of tenets of judicial restraint, we do not reach the remaining assignments of error. See PDK Labs., Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J. concurring) ("[I]f it is not necessary to decide more, it is necessary not to decide more.").


source: Caselaw Access Project

author: SCALES, J.

license: Public Domain

text:
    Steven K. SCHWARTZ, P.A., Petitioner, v. Miriam BANKS, Respondent.
    No. 3D19-839
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019
    Steven K. Schwartz, P.A., and Steven K. Schwartz, for petitioner.
    Miriam Banks, in proper person.
    Before LOGUE, SCALES and HENDON, JJ.
   SCALES, J.

In the guardianship proceedings below, petitioner Steven K. Schwartz, P.A. ("Schwartz") has been representing respondent Miriam Banks in her capacity as plenary guardian of Gerald Banks since June of 2018. On February 18, 2019, Schwartz filed a motion in the lower court seeking to withdraw as counsel for Ms. Banks, citing irreconcilable differences between them. The limited record before us reflects that Ms. Banks consented to the withdrawal. Schwartz set the withdrawal motion for hearing, but, according to Schwartz's petition, the trial court's judicial assistant cancelled the hearing. The trial court has not entered an order either cancelling the hearing or adjudicating Schwartz's withdrawal motion.

Schwartz now seeks in this Court, via certiorari petition, some type of order "remand[ing] the case with directions to the trial court to enter the order of withdrawal."

A district court may exercise certiorari jurisdiction only when the trial court causes a party irreparable harm by entering an order that departs from the essential requirements of law. Walgreen Co. v. Rubin, 229 So.3d 418, 420-21 (Fla. 3d DCA 2017). Indeed, when a district court grants a certiorari petition, the only relief available is a quashing of the lower court's order. See Broward Cty. v. G.B.V. Int'l, Ltd., 787 So.2d 838, 843-44 (Fla. 2001). In this instance, absent an order entered below, we lack certiorari jurisdiction to adjudicate Schwartz's petition.

Nonetheless, pursuant to Florida Rule of Appellate Procedure 9.040(c), we exercise our discretion and treat Schwartz's certiorari petition as a petition for a writ of mandamus. We grant the petition, but trusting that the trial court, in a timely manner, will adjudicate Schwartz's motion to withdraw, we withhold issuance of the writ.

Petition for writ of certiorari treated as petition for writ of mandamus, and granted; issuance of formal writ withheld.

      We express no opinion as to the merits of Schwartz's motion to withdraw.


author: KELLY, Judge.

text:
    MATLACHA CIVIC ASSOCIATION, INC., David McGugan, Gary Rehill, Robert C. Tomes, and J. Michael Hannon, Petitioners, v. CITY OF CAPE CORAL, Florida, Respondent.
    Case No. 2D18-419
    District Court of Appeal of Florida, Second District.
    Opinion filed May 22, 2019
    Matthew D. Uhle of Offices of Matthew D. Uhle, LLC, Ft. Myers, and Steven L. Brannock and Sarah C. Pellenbarg of Brannock & Humphries, Tampa, for Petitioners.
    Dolores D. Menendez, City Attorney, and Steven D. Griffin, Assistant City Attorney, Cape Coral, for Respondent.
   KELLY, Judge.

Matlacha Civic Association, Inc., and J. Michael Hannon (collectively the "Matlacha petitioners"), and David McGugan, Gary Rehill and Robert C. Tomes (collectively the "Cape Coral petitioners") seek second-tier certiorari review of the circuit court's dismissal of the petitioners' original certiorari petition. We conclude that with respect to the Cape Coral petitioners, the circuit court departed from the essential requirements of law in determining they did not have standing to challenge an annexation ordinance passed by the City of Cape Coral.

In 2012, the City of Cape Coral purchased six parcels of land located on the eastern edge of the island community of Matlacha in unincorporated Lee County. In 2016, the City Council of Cape Coral proposed Ordinance 57-16 to annex the property into the city limits of Cape Coral. Cape Coral used the "voluntary annexation" procedure pursuant to section 171.044, Florida Statutes (2017), because it owned the parcels.

When the Cape Coral City Council conducted a hearing on the proposed annexation, it was met with significant opposition. Hundreds of objecting citizens, including the Cape Coral and Matlacha petitioners, appeared at the hearing. Among the many objections raised was an assertion that under the annexation statute, it is improper for a municipality to purchase land outside its jurisdiction and then use the "voluntary annexation" procedure to annex those parcels into the city. Despite the objections, the City passed the ordinance.

The Matlacha petitioners and the Cape Coral petitioners filed a three-count action in the circuit court to challenge the annexation. At issue here is the first count which sought certiorari review of the ordinance pursuant to section 171.081(1). The petitioners challenged the ordinance on three fronts: (1) Cape Coral's use of voluntary annexation was not permitted under the plain language of the annexation statute; (2) even so, the City had not met the requirements of the annexation statute in that (a) the property to be annexed creates an illegal pocket or enclave, (b) there is no urban character to the property or to the surrounding wilderness land, (c) there is no reason or ability for the City to provide services to the property anytime soon, and (d) the property is not contiguous to Cape Coral; and (3) passage of the ordinance was not supported by competent substantial evidence. In response, the City argued that the petitioners lacked standing to challenge the ordinance. Ultimately, the trial court agreed with the City and dismissed the petition for lack of standing. The petitioners have asked this court to issue a writ of certiorari quashing the order of the circuit court.

Our review of a second-tier petition for writ of certiorari is limited to whether the circuit court afforded the petitioner procedural due process and whether it applied the wrong law; that is, whether it departed from the essential requirements of law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010). A departure from the essential requirements of law includes failure to comply with constitutional law and statutes that deal "with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision." Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003). Matters of statutory interpretation present a question of pure law and are subject to de novo review. Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1085 (Fla. 2008). Questions regarding standing are also pure questions of law to be reviewed de novo. Edgewater Beach Owners Ass'n v. Walton County, 833 So.2d 215, 219 (Fla. 1st DCA 2002), receded from on other grounds, Bay Point Club, Inc. v. Bay County, 890 So.2d 256 (Fla. 1st DCA 2004).

Section 171.081(1) provides for review of an annexation or contraction and states, in pertinent part:

Any party affected who believes that he or she will suffer material injury by reason of the failure of the municipal governing body to comply with the procedures set forth in this chapter for annexation or contraction or to meet the requirements established for annexation or contraction as they apply to his or her property may file a petition in the circuit court for the county in which the municipality or municipalities are located seeking review by certiorari.

Section 171.031(5) defines "parties affected" as "any persons or firms owning property in, or residing in, either a municipality proposing annexation or contraction or owning property that is proposed for annexation to a municipality or any governmental unit with jurisdiction over such area." The trial court found, and the City concedes, that the Cape Coral petitioners are "parties affected" as defined by section 171.031(5).

The City argued that standing under section 171.081(1) required more than being a "party affected." Not only must the petitioner be a "party affected," the petitioner must demonstrate he or she has suffered a present "material injury" as a direct result of the annexation. The trial court dismissed the petition after concluding the Cape Coral residents had not alleged they had suffered a present material injury. The petitioners argue that the trial court departed from the essential requirements of law by failing to abide by the plain language of section 171.081(1), the result of which was to deprive them of their statutory right to seek review of the annexation. We agree.

Section 171.081(1) authorizes any "party affected who believes that he or she will suffer material injury by reason of the failure" of a municipality to comply with the statutory procedure for annexation to seek certiorari review of the annexation. (Emphasis added). The trial court's conclusion that the petitioners had to allege a present material injury directly resulting from the annexation is contrary to the plain language of the statute. This was a departure from the essential requirements of law. See Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So.3d 712, 727 (Fla. 2012) ("[S]tatutes also constitute 'clearly established law,' meaning that a district court can use second-tier certiorari to correct a circuit court decision that departed from the essential requirements of statutory law." (citing Kaklamanos, 843 So.2d at 890 )). The Cape Coral petitioners asserted their belief that they will suffer material injury from the City's unlawful annexation, and this was sufficient to afford them the right to pursue their statutory right to seek review of the annexation. See City of Tampa v. Hillsborough County, 504 So.2d 10, 11 (Fla. 2d DCA 1986) (explaining that the trial court applied the correct principles of law when it based its standing determination on the fact that the petitioner demonstrated a belief that it would suffer a material injury).

The trial court determined, correctly, that the Matlacha petitioners are not "parties affected" as defined by section 171.031(5). Based on this determination, it concluded they lacked standing. Here, the Matlacha petitioners argue they have constitutional standing to challenge what they contend is the City's unconstitutional application or ultra vires use of the annexation statute and that they may use a writ of common law certiorari to pursue their challenge. They assert that because they are taxpayers and have suffered a special injury, they have standing to challenge the lawfulness of the City's purchase, ownership, and annexation of the parcels. They fault the trial court for failing to even address this issue and argue that by failing to address the issue, it deprived them of their common law right of certiorari. The City contends, among other things, that section 171.081 is the exclusive means to challenge an annexation.

We need not decide whether common law certiorari is available to the Matlacha petitioners and consequently whether the trial court deprived them of the right to proceed under a common law writ because we conclude that the issue was not properly before the trial court. The certiorari petition before the trial court alleges that it was brought pursuant to section 171.081(1). The petitioners reaffirmed that they were proceeding under the statute in their claim for attorney's fees pursuant to section 171.081(2), which entitles a party challenging an annexation under section 171.081(1) to recover fees. When challenged on standing in the trial court, the Matlacha petitioners sought to expand the statutory definition of "party affected" by asserting the City's actions were unlawful and that the definition "presupposes a lawful resort to the statute by the municipality." While the petitioners urged the trial court to find that they had standing based on what they argued was the City's unconstitutional application of the annexation statute, the only fair reading of the record is that they wanted to proceed under section 171.081. Under these circumstances, we find no departure from the essential requirements of law in the trial court's reliance on the definition of "parties affected" in section 171.031(5) to determine whether the Matlacha petitioners had standing to proceed under section 171.081(1).

Accordingly, we grant the petition for writ of certiorari and quash that portion of the circuit court's order finding that the Cape Coral petitioners did not have standing to challenge the City's annexation ordinance.

Petition granted, order quashed in part, and remanded.

SILBERMAN, J., and LENDERMAN, JOHN C., ASSOCIATE SENIOR JUDGE, Concur.

      In arguing that the petitioners must demonstrate a present material injury, the City, and subsequently the trial court, relied on this court's decision in City of Auburndale v. Town of Polk City, 898 So.2d 1101 (Fla. 2d DCA 2005). That case is inapposite because it does not involve the statutory definition of "parties affected." Polk City did not assert it was a party "affected" pursuant to section 171.031(5), Florida Statutes (2003), presumably because it did not come within the statutory definition. Instead, it relied on section 180.06, Florida Statutes (2003), and claimed that because the annexation would affect its rights under that statute, it was entitled to challenge the annexation. See City of Auburndale, 898 So.2d at 1103.


author: PER CURIAM.

text:
    Kristian BEAUCHAMP, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3381
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 24, 2019
    Kristian Beauchamp, Crestview, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Kristian Beauchamp petitions this court for a writ of habeas corpus, alleging ineffective assistance of appellate counsel. We grant the petition, holding that Beauchamp has established the requisite prejudice entitling him to relief. As a new appeal would be redundant, we also vacate Beauchamp's sentence and remand for resentencing by a different judge.

Following a jury trial, Beauchamp was convicted of aggravated battery on a law enforcement officer, trafficking in methamphetamine, burglary of a structure, and resisting a law enforcement officer without violence. Several witnesses testified at the sentencing hearing, including a pastor who spoke of Beauchamp's remorse. Beauchamp also testified, characterizing the battery as an accident. In light of this testimony, Beauchamp requested that the maximum sentence not be imposed. Following an exchange between the trial court and Beauchamp, the court stated:

And continuing to lie is not going to help. I'm trying to make up my mind what sort of sentence to give you. Your insistence on trying to diminish your culpability is not helping your situation. You would be much better off in my eyes and certainly everyone else's if you would just tell the truth ....

Defense counsel did not object to this statement.

Ultimately, the trial court sentenced Beauchamp to a total of fifteen years in prison. He appealed his judgment and sentence, and this court per curiam affirmed. Thereafter, Beauchamp timely filed this petition. His sole claim is that appellate counsel was ineffective for failing to argue that the trial court impermissibly utilized Beauchamp's alleged lack of remorse and truthfulness in sentencing him, resulting in fundamental error. We agree.

The test for ineffective assistance of appellate counsel is whether the petitioner establishes that appellate counsel's performance was deficient and that such deficient performance so prejudiced the petitioner as to undermine confidence in the result of the appeal. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000). "Where ... the claim of ineffective assistance revolves around appellate counsel's failure to argue an issue that had never been objected to ... [in the lower court], the petitioner must demonstrate a fundamental error." Thames v. State, 230 So.3d 566, 569 (Fla. 2d DCA 2017).

The Florida Supreme Court has established guidelines for determining whether fundamental error occurs during sentencing. See Cromartie v. State, 70 So.3d 559, 564 (Fla. 2011) ("In most cases, a fundamental sentencing error will be one that affects the determination of the length of the sentence such that the interests of justice will not be served if the error remains uncorrected."). When the trial court considers whether the defendant was truthful in his testimony or failed to show remorse, fundamental error or denial of due process may result. See Gage v. State, 147 So.3d 1020, 1022 (Fla. 2d DCA 2014) ; see also Ward v. State, 152 So.3d 679, 679 (Fla. 4th DCA 2014).

Here, the sentencing judge expressly indicated that he considered Beauchamp's untruthfulness and lack of remorse when determining the sentence to be imposed. This consideration was improper and resulted in fundamental error which appellate counsel should have raised on direct appeal. See Hampton v. State, 178 So.3d 921, 922 (Fla. 5th DCA 2015).

Accordingly, we grant the petition, vacate Beauchamp's sentence, and remand for resentencing before a different judge.

PETITION GRANTED; SENTENCE VACATED; AND CAUSE REMANDED.

EVANDER, C.J., WALLIS and GROSSHANS, JJ., concur.


author: EVANDER, C.J.,

text:
    SHP IV HARBOUR ISLAND, LLC., Love Management Company, LLC. d/b/a Allegro Management Company and Elizabeth Herendeen, Appellants, v. Gail B. BOYLAN, appellee.
    Case No. 5D18-423
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 24, 2019
    Thomas A. Valdez and Karen M. Shimonsky, of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Appellants.
    Joanna Greber Dettloff and Megan L. Gisclar, of Wilkes & McHugh, P.A., Tampa, for Appellee.
    REVISED
   EVANDER, C.J.,

In this assisted living facility negligence case, the defendants below appeal a nonfinal order denying their motion to compel arbitration. We have jurisdiction. Because the evidence supports the trial court's finding that Appellants waived their right to arbitration, we affirm.

Appellee, Gail Boylan, lived at the Allegro at Harbour Island assisted living facility for slightly more than one month. She sued the facility's owner, management company, and administrator (collectively "Appellants") for negligence and breach of fiduciary duty after suffering injuries from a fall during her stay at the facility. Appellants timely filed a motion to abate and compel arbitration based on an arbitration provision in Boylan's resident agreement with the facility. Pursuant to the parties' stipulation, the trial court entered an order authorizing the parties to conduct limited discovery regarding arbitration.

However, in a subsequent deposition of Appellee's daughter and attorney-in-fact, Appellants' counsel asked numerous questions that went to the merits of the underlying case. As a result, the trial court properly found that the deposition "cover[ed] matters extrinsic to the limited scope permitted by this Court's Order ... and consequently was inconsistent with the right to arbitrate."

"The right to arbitration, like any contract right, can be waived." Raymond James Fin. Servs., Inc. v. Saldukas , 896 So.2d 707, 711 (Fla. 2005) (quoting Nat'l Found. for Cancer Research v. A.G. Edwards & Sons, Inc. , 821 F.2d 772, 774 (D.C. Cir. 1987) ). Waiver is the "voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right." Id. (citing Major League Baseball v. Morsani , 790 So.2d 1071, 1077 n.12 (Fla. 2001) ). The right to arbitrate "must be safeguarded by a party who seeks to rely upon that right, and the party must not act inconsistently with the right." Id. In determining whether the right to arbitration has been waived, "[t]he essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right." Saldukas , 896 So.2d at 711.

This Court has expressly held that engaging in merits discovery is inconsistent with an arbitration request and constitutes a waiver of the right to arbitration. See Lion Gables Realty Ltd. v. Randall Mech., Inc. , 65 So. 3d 1098, 1101 (Fla. 5th DCA 2011) ("The law in Florida is clear that a party's participation in merits discovery constitutes a waiver of arbitration."); Olson Elec. Co. v. Winter Park Redev. Agency , 987 So.2d 178, 179 (Fla. 5th DCA 2008) (holding that party waived its contractual right to seek arbitration when it propounded discovery directed to merits of opposing party's claims). Other courts have held the same. See, e.g. , Green Tree Servicing, LLC v. McLeod , 15 So.3d 682, 687 (Fla. 2d DCA 2009) (holding that party waived its claimed right to arbitration by participating in discovery related to merits of pending litigation, even where that discovery occurred after filing motion to compel arbitration; further observing that there is no requirement for proof of prejudice for effective waiver of arbitration right).

Here, the record supports the conclusion that, under the totality of the circumstances, Appellants waived their right to arbitration. Accordingly, the trial court properly denied Appellants' motion to abate and compel arbitration.

AFFIRMED.

EDWARDS and HARRIS, JJ., concur.

      See Fla. R. App. P. 9.130(a)(3)(C)(iv).


author: Per Curiam.

text:
    Larry MUSSELWHITE, Appellant, v. FLORIDA FARM GENERAL INSURANCE COMPANY and Florida Farm Bureau Casualty Insurance Company, Joseph Hart, an individual, JODH3, Inc., d/b/a Bell Feed & Farm, Well & Pump, Appellees.
    No. 1D18-780
    District Court of Appeal of Florida, First District.
    May 28, 2019
    Daniel M. Bachi of Sellars, Marion & Bachi, P.A., West Palm Beach, for Appellant.
    Hinda Klein of Conroy Simberg, Hollywood, for Appellees Florida Farm General Insurance Company and Florida Farm Bureau Casualty Insurance Company.
   Per Curiam.

In this appeal from a final summary judgment in an action for declaratory relief, Appellant asserts that the trial court erred in concluding that two insurance policies did not provide coverage for personal injuries that Appellant sustained while drilling a water well for a residential customer of the insureds. In doing so, Appellant claims that (1) the declaration page's reference to the fictitious name of the insureds' feed store business did not limit coverage because a fictitious name is not a legal and insurable entity separate and apart from the named insured; and (2) the well drilling activity arose out of operations necessary or incidental to business conducted on the feed store premises. Finding both claims to be without merit, we affirm.

I.

Appellant filed a negligence action against JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump and its principal, Joseph Hart, for injuries he sustained after he had been hired to assist in a water well drilling project in Trenton, Florida. Subsequently, Appellees, Florida Farm General Insurance Company and Florida Farm Bureau Casualty Insurance Company, filed a complaint for declaratory relief seeking a determination that they had no duty under two commercial general liability policies to defend or indemnify JODH3 and Hart as to Appellant's claims against them.

The subject policies were first issued on August 19, 2011, and renewed annually without any changes. The declarations page to the first policy identified "JODH3, Inc. d/b/a Bell Feed & Farm" as the named insured and described the business as a "feed store." The declarations page of the second policy identified Joseph Hart and his wife as named insureds and also described the business as a "feed store." Both polices contained a specific endorsement limiting coverage to " 'bodily injury,' 'property damage,' 'personal injury,' 'advertising injury' and medical expenses arising out of ... [t]he ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises[.]" The schedule described the premises as follows:

1159 S PARIS ST BELL, FL 32619-2396FEED/GRAIN/HAY DEALERNON-COMBUSTIBLE

The second policy was issued because Hart and his wife owned the business premises-which they leased to JODH3-and might be subject to personal liability for claims arising out of their ownership of the premises.

During the 2014-2015 policy period, Hart began a new business that offered well drilling services under the fictitious name "JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump." Most of the well drilling-65 to 75 percent-was for residential customers. Hart continued to maintain the fictitious name "JODH3, Inc. d/b/a Bell Feed & Farm" for his feed store business. While both businesses were owned by JODH3, each business had separate banks accounts, email addresses, business cards, invoices, and phone numbers.

In 2015, Hart contacted his insurance agent, Ben Colson, to inquire about obtaining insurance for his new well drilling business, JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump. On May 26, 2015, Colson contacted an underwriter for Appellees and requested a quote for liability insurance covering the well drilling business. That same day, the underwriter informed Colson that Appellees did not insure well drilling operations. Colson then told Hart that he could not obtain the requested coverage from Appellees. On July 20, 2015, Colson obtained a quote for well drilling liability coverage from Atlantic Casualty Insurance Company with an effective date of June 22, 2015. When Colson communicated the quote to Hart, Hart responded that he did not have the cash on hand to pay the premium and chose not to obtain coverage at that time.

On January 28, 2016, Appellant was hired as an independent contractor by JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump and sustained injuries while drilling a well on a residential customer's property. The next day, Hart contacted Colson to obtain the liability policy that Colson previously quoted for his well drilling business. On February 2, 2016, Colson received an updated quote from Atlantic Casualty Insurance Company. Hart applied for the insurance in the name of "Bell Feed & Farm, Well & Pump" and obtained liability coverage for the well drilling business on June 3, 2016.

Appellant filed a motion for summary judgment in Appellees' declaratory judgment action. Specifically, he argued that since a fictitious name was not a viable legal entity separate from its principal, JODH3 should be insured under the "Bell Feed & Farm" policy for any type of business it operated because there was no express exclusion for well drilling in the policy. He also argued that the well drilling activity was incidental or related to the operation of the feed store.

Appellees filed a cross-motion for summary judgment on the grounds that the policies did not insure the well drilling business and Appellant's claims were entirely unrelated to the insured business premises, which had been described as a feed store. Specifically, Appellees asserted that while both the feed store and the well drilling operation were owned by the same legal entity, JODH3, the only insured business was the feed store as evidenced by the specification of the named insured as "JODH3, Inc. d/b/a Bell Feed & Farm" and Hart's application describing the business as a feed store with no mention of well drilling. Appellees also claimed that they never knowingly undertook the risk of insuring a well drilling business because they did not write coverage insuring that type of risk. Finally, they argued that it was undisputed that the well drilling operations were neither necessary nor incidental to the feed store premises.

After holding a hearing, the trial court denied Appellant's motion for summary judgment, granted Appellees' motion for summary judgment, and entered final judgment for Appellees. In doing so, the court concluded that the insurance policies did not provide coverage for claims arising out of the insureds' drilling operations, but only covered claims arising out of their business premises, which was described by the declaration's page as a "feed store." The court further found that well drilling operations were neither necessary nor incidental to the feed store business or its premises. This appeal followed.

II.

The interpretation of an insurance contract is a question of law subject to de novo review. Gov't Emps. Ins. Co. v. Macedo , 228 So.3d 1111, 1113 (Fla. 2017) ; Lee v. Montgomery , 624 So.2d 850, 851 (Fla. 1st DCA 1993). Where the language in an insurance contract is unambiguous, a court must interpret the contract in accordance with its plain meaning. Allstate Ins. Co. v. Orthopedic Specialists , 212 So.3d 973, 975-76 (Fla. 2017). "Policy language is considered to be ambiguous ... if the language 'is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.' " Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla. 2004) (quoting Swire Pac. Holdings, Inc. v. Zurich Ins. Co. , 845 So.2d 161, 165 (Fla. 2003) ). "[A]mbiguous insurance policy exclusions are construed against the drafter and in favor of the insured." Auto-Owners Ins. Co. v. Anderson , 756 So.2d 29, 34 (Fla. 2000). "To find in favor of the insured on this basis, however, the policy must actually be ambiguous." Penzer v. Transp. Ins. Co. , 29 So.3d 1000, 1005 (Fla. 2010) (emphasis omitted). "The ambiguity must be genuine, and the lack of a definition for an operative term 'does not, by itself, create an ambiguity.' " Macedo , 228 So.3d at 1113 (quoting Botee v. S. Fid. Ins. Co. , 162 So.3d 183, 186 (Fla. 5th DCA 2015) ). " 'When a term in an insurance policy is undefined, it should be given its plain and ordinary meaning, and courts may look to legal and non-legal dictionary definitions to determine such a meaning.' " Id.

A.

In this case, Appellant claims that the trial court erred in entering summary judgment for Appellees upon concluding that the insurance policies they issued to the insureds-JODH3 and Hart-did not provide coverage for the personal injuries Appellant suffered while drilling a water well for a residential customer of the insureds. First, he argues that since a fictitious name is not a viable legal entity separate from its principal, JODH3 should be insured under the "Bell Feed & Farm" policy for any type of business it operated because there is no express exclusion for well drilling in the policy. It is undisputed that the declarations page to the policy in question identified "JODH3, Inc. d/b/a Bell Feed & Farm" as the named insured and described the business as a "feed store." It is also undisputed that JODH3's well drilling business ("JODH3, Inc. d/b/a Bell Feed & Farm, Well & Pump") was not in existence when this policy was initially issued. Based on the above, the trial court concluded that under the plain language of the policy, JODH3 was insured under the policy only for the operation of its feed store business under the fictitious name "Bell Feed & Farm."

A number of courts in other jurisdictions have held that when a liability policy identifies a named insured as doing business under a fictitious name, coverage is limited only to business done under the fictitious name and does not extend to any other business operated by the insured. See Lincoln Gen. Ins. Co. v. Pacheco , No. EP-1 1-CV-482-DB, 2012 WL 12539325, at *5 (W.D. Tex. Mar. 2, 2012) ; Charter Oak Fire Ins. Co. v. Coleman , 273 F.Supp.2d 903, 913 (W.D. Ky 2003) ; Miller v. Hehlen , 209 Ariz. 462, 104 P.3d 193, 199 (Ariz. Ct. App. 2005) ; Fidelity & Deposit Co. v. Charter Oak Fire Ins. Co. , 66 Cal.App.4th 1080, 78 Cal. Rptr. 2d 429, 432 (Cal. Ct. App. 1998) ; Consol. Am. Co. Ins. v. Landry , 525 So.2d 567 (La. Ct. App. 1988) ; Hertz Corp. v. Ashbaugh , 94 N.M. 155, 607 P.2d 1173 (N.M. Ct. App. 1980) ; Budget Rent-A-Car Sys., Inc. v. Shelby Ins. Grp. , 197 Wis.2d 663, 541 N.W.2d 178, 181 (Wis. Ct. App. 1995). At least one Florida court appears to agree with this position. See Rosen v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa ., 249 So.2d 701 (Fla. 3d DCA 1971) (holding that an insurance policy did not cover an accident involving a vehicle owned by partner and driven by partner's daughter where the policy listed the named insured as partner doing business as Market Truck Stop). However, other courts have held to the contrary. See Providence Washington Ins. Co. v. Valley Forge Ins. Co. , 42 Cal.App.4th 1194, 50 Cal. Rptr. 2d 192, 195-96 (Cal. Ct. App. 1996) ; Hall v. Auto-Owners Ins. Co. , 265 Neb. 716, 658 N.W.2d 711, 720 (2003).

We conclude that the greater weight of authority supports the trial court's conclusion that the "d/b/a" designation limited liability to JODH3's feed store business operated under the fictitious name. To hold otherwise would frustrate the intent clearly expressed in the policy declarations, subject Appellees to open-ended exposure to liability for any new business operations that JODH3 might unilaterally decide to undertake, and force Appellees to insure risks that they never contracted to cover. JODH3 cannot be allowed to effectively rewrite the policy by requiring Appellees to insure risks arising from a well drilling business that did not exist when the policy terms were agreed upon.

B.

In addition, Appellant asserts the trial court erred in further finding that the policies provided no coverage for well drilling operations unrelated to the insureds' feed store premises. Both policies contained a specific endorsement limiting coverage to " 'bodily injury,' 'property damage,' 'personal injury,' 'advertising injury' and medical expenses arising out of ... [t]he ownership, maintenance or use of the premises shown in the Schedule and operations necessary or incidental to those premises[.]" The schedule described the premises as a "FEED/GRAIN/HAY DEALER."

In Union American Insurance Co. v. Haitian Refugee Center/Sant Refijie Ayisyin, Inc. , 858 So.2d 1076 (Fla. 3d DCA 2003), the Third District held that an identical endorsement in a commercial liability policy effectively converted the policy into the equivalent of a premises or owner's, landlord's and tenant's policy. Id. at 1078 n.1. As a result, the court held that the policy did not provide coverage for the shooting death of a bystander at a street rally sponsored by the insured that was held a mile away from the insured's headquarters. Id. at 1077-78. The court rejected the trial court's conclusion that coverage was provided because the event at which the decedent was killed was an operation necessary or incidental to the insured's business, explaining that this involved an improper judicial rewriting of the policy by substituting "business" for the policy word "premises." Id. at 1078. Based on this decision, the policies issued by Appellees would not provide coverage for Appellant's accident because it occurred away from the insureds' premises while Appellant was drilling a well on a third party's property, which did not concern an operation necessary or incidental to the insureds' premises as described in the schedule.

However, in Southeast Farms, Inc. v. Auto-Owners Insurance Co. , 714 So.2d 509 (Fla. 5th DCA 1998), the Fifth District came to a different conclusion in a case involving the same designated premises endorsement to a commercial general liability policy, holding that it provided coverage for an off-premises auto accident arising from the alleged negligence of the insured-a produce broker primarily brokering potatoes-in failing to inspect the delivery truck and driver. The court found that the endorsement created an ambiguity as to whether the policy was a general liability policy or a premises liability policy, requiring it to be construed in favor of the insured. Id. at 511. The court also noted that the insurer made the "surprising" assertion that the policy would cover operations necessary or incidental to the main business of the insured, even though the policy referred only to premises, which "pretty much gives the ball game away." Id. at 511 n.3. Based on this concession, the court concluded that the insurer recognized that " 'premises' includes the business operated on the premises." Id. at 512. The court further concluded that "the act of obtaining transportation for brokered potatoes is an incident of the brokering of potatoes." Id. at 511. Accordingly, the court reversed the entry of summary judgment for the insurer and remanded for judgment in favor of the insured. Id. at 512.

Citing this decision, federal courts have construed Florida law as providing that the endorsement's use of the term "premises" includes business operations conducted from the premises. See Evanston Ins. Co. v. Gaddis Corp. , 145 F.Supp.3d 1140, 1149-53 (S.D. Fla. 2015) ; Szczeklik v. Markel Int'l Ins. Co. , 942 F.Supp.2d 1254, 1262 (M.D. Fla. 2013) ; but see Nationwide Mut. Fire Ins. Co. v. Wilbon , 960 F.Supp.2d 263, 268-69 (D.D.C. 2013)

("There is no consensus among courts whether a 'limitation of liability to designated premises' provision limits insurance coverage to injury at only the specified insured premises or whether it extends insurance coverage to all business operations conducted from the insured premises, thereby covering off-site injuries.").

Assuming the designated premises endorsement in this case created an ambiguity and that the term "premises" includes the business operated on the premises, the trial court correctly found that the polices did not provide coverage for well drilling operations that were not necessary or incidental to the feed store business conducted on the premises. The schedule described the feed store premises as a "FEED/GRAIN/HAY DEALER." The plain or ordinary meaning of this description is that the business operated on the premises involved the sale of animal feed, particularly that for farm animals. An operation necessary or incidental to such a business might include the delivery of feed products to customers.

Contrary to Appellant's assertion, this very specific business description does not encompass the general sale of farm products and services, which could include well drilling for farming purposes. Because well drilling is not necessary or incidental to the business of selling animal feed, the trial court properly concluded that Appellant's off-premises injury was not covered by the policies issued to JODH3 and Hart. Furthermore, even if the business description encompassed the general sale of farm products and services, this would not include Appellant's drilling a well for a residential customer unrelated to farming.

III.

In short, we conclude that the trial court properly entered summary judgment for Appellees because Appellant's off-premises injury was not covered under the policies issued to JODH3 and Hart where (1) the "d/b/a" designation limited liability to JODH3's feed store business operated under the fictitious name; and (2) well drilling was not necessary or incidental to business conducted on the feed store premises. Accordingly, the final judgment is affirmed in all respects.

AFFIRMED .

Roberts, Ray, and Jay, JJ., concur.

      We also note that there is compelling extrinsic evidence further establishing that the policies issued to JODH3 and Hart did not cover well drilling operations. Despite this evidence, there is considerable doubt as to whether extrinsic evidence can still be used to construe insurance policies to the extent they contain any ambiguities. In Washington National Insurance Corp. v. Ruderman , 117 So.3d 943 (Fla. 2013), Justice Labarga in a plurality opinion (joined by two justices with one justice concurring in the result) opined that the ambiguous policy "must be construed against the insurer and in favor of coverage without resort to consideration of extrinsic evidence." Id. at 952. However, Chief Justice Polston in a dissenting opinion (joined by two justices) accused the plurality of silently receding from precedent providing that "an ambiguous contract is construed against the insurer only as a last resort, meaning only after all available construction aids, including extrinsic evidence, fail to resolve the ambiguity." Id. at 954-58 (citing case law). To the extent there was no actual majority opinion in Ruderman , it arguably does not constitute binding precedent prohibiting the consideration of extrinsic evidence when construing an ambiguous insurance contract in Florida. Even if consideration of extrinsic evidence is prohibited, the trial court properly found that the plain language of the policies did not cover off-premises well drilling activities.


author: Winsor, J.

text:
    Bernard COOLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4001
    District Court of Appeal of Florida, First District.
    May 28, 2019
    Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

The State charged Bernard Cooley with lewd and lascivious molestation of a child under twelve, and lewd and lascivious molestation of a child between twelve and sixteen. The victim as to each count was Cooley's daughter, who testified that Cooley had molested her for several years, sometimes in Florida and sometimes elsewhere. Cooley's first trial ended with a hung jury, but Cooley's second trial led to a conviction and this appeal.

Cooley presents two arguments on appeal. He first contends that the trial court should have granted his motion to suppress evidence about his post-arrest statements to a Child Protective Investigator (CPI). He argues that the interview was a custodial interrogation that required Miranda warnings. Second, Cooley argues that the court should not have allowed the State to present Williams rule evidence of certain instances of molestation that occurred outside Florida. See Williams v. State , 117 So. 2d 473 (Fla. 1960) ; see also § 90.404(2)(b)1., Fla. Stat. As to the custodial-interrogation issue, we conclude that the error, if any, was harmless beyond reasonable doubt, see State v. DiGuilio , 491 So. 2d 1129, 1138 (Fla. 1986). As to the Williams -rule issue, we find no abuse of discretion. We therefore affirm.

I.

After Cooley was arrested, the CPI interviewed him in jail. According to the CPI's testimony, it was her job-and her statutory duty, see § 39.201, Fla. Stat.-to investigate allegations of child abuse. She said reports of child sexual abuse are considered emergencies, typically requiring a response from an investigator within hours. In Cooley's case, she explained, her office received a report from law enforcement soon after Cooley was arrested. She promptly went to the jail to interview him; her purpose, she said, was to "find[ ] out the family dynamics in this situation." She said she was not acting at law enforcement's direction, although she acknowledged that she did ask Cooley questions about his case and that she discussed the case with a law enforcement investigator.

Before the interview, the investigator did not determine whether Cooley had legal counsel. (The public defender had been appointed by then.) And she did not advise Cooley of his right to counsel or his right to remain silent. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The interview took place in a small room at the prison, and although the door was open, a prison guard stood in the doorway throughout. Cooley later testified that he felt he could not leave.

The interview did not reflect well on Cooley. According to the CPI, Cooley seemed "distraught" and "extremely nervous." Cooley did not directly admit to the abuse, but he did not deny it either. He said he "simply doesn't remember" any abuse. He admitted he had a drinking problem and that sometimes he drinks too much and sleepwalks or does things he does not later remember. He also said that his daughter was a good girl and would not lie about something like that, that his daughter "must be telling the truth," and that he "must have done these things." He repeatedly referred to himself as a monster. ("I'm such a monster. But I don't remember and I don't know.").

Before trial, Cooley moved to suppress evidence about statements he made during this interview. He argued that his interview constituted a custodial interview by an agent of law enforcement. Although the court found that Cooley's statements to the CPI were made while Cooley was in custody, it concluded that the CPI was not acting on behalf of law enforcement when she conducted the interview. Accordingly, the court concluded, Cooley's Fifth Amendment rights were not implicated. The court thus denied the motion to suppress, and the case proceeded to trial.

The victim, by then thirteen, testified at trial that Cooley had molested her for approximately six years. She said she finally told her mother about the abuse in a February 2016 text message. She explained that the night before she sent the text, Cooley had come into her room and grabbed her buttocks over her clothing. He then tried to touch her under her clothes, but she resisted, and he eventually stopped. The victim also described several other instances of abuse that took place in Florida. Then, after the court gave jurors a Williams -rule instruction, the victim testified about times Cooley had molested her when she was living in New Mexico, around age seven, and when she lived in Georgia around age ten.

The victim's mother-Cooley's wife-testified that soon after she received the text disclosing the abuse, Cooley called her. Cooley was in the house with the victim at the time; to get him away from the victim, the mother asked Cooley to meet her at the bank. With Cooley then out of the house, the mother went to the house, gathered up the victim and her siblings, and went to police to report everything. While she was there, Cooley called and texted her several times. During at least one phone call, Cooley admitted to the allegations. Phone records and texts were admitted into evidence, and one of the texts said this:

I love you. Always have. My Demons won. Your (sic) great you are awesome. Keep being that person and I hope I don't and didn't ruin it for the next person. Get that next person great guy. You deserve it. I'm sorry for hurting the family. I wanted to say bye to you. But I don't deserve to speak to you. So I'm sorry. And. Good bye. Don't allow me to skew your vision of men. I'm a monster. If I had the strength of her, this would have never gone down. I wish we could [have] fixed this. But I understand. I love you and always will. Now it's time to say good bye and not end it with I love you. I ruin that. So I'll say good bye.

Cooley's niece then testified. After the court again gave a Williams -rule instruction, the niece explained that when she was around five she lived with Cooley, his wife, and their children. One night while Cooley's wife was out, Cooley put the other children to bed, brought the niece into the living room, and began watching pornographic videos. Cooley told the niece "to do what the people on the computer were doing." The niece complied in part until Cooley's wife returned home, leading Cooley to abruptly stop.

The State also introduced a video of a forensic interview the niece had given. In the video, the niece described the incident consistent with her in-court testimony. The State then introduced a video of a similar interview with the victim in this case. As with the niece's interview, the victim's interview statements were consistent with her in-court testimony.

Cooley testified in his own defense, denying that he had molested either child. He acknowledged that he said his demons had won and that he was a monster, but he said that he was referring to his drinking problem. He also said that some of the text messages he sent his wife were part of his attempt to get her to answer his calls and that he considered them to be a sort of suicide note.

After hearing all the evidence, the jury found Cooley guilty. The court then imposed a thirty-year prison sentence.

II.

Cooley first argues that his interview with the CPI constituted a Miranda violation, requiring suppression of his statements. To determine whether there was a Miranda violation in this context, courts must first decide whether there was a custodial interrogation that involved statements made to someone acting on behalf of law enforcement. Moore v. State , 798 So. 2d 50, 52 (Fla. 1st DCA 2001) (citing Rhode Island v. Innis , 446 U.S. 291, 298, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) ); Lewis v. State , 754 So. 2d 897, 900 (Fla. 1st DCA 2000) ("Where either the 'custody' or 'interrogation' prong is absent, Miranda does not require warnings."). It is clear that Cooley was in custody during the questioning; the real question is whether the court correctly determined that the CPI was not a state actor under Miranda .

In denying Cooley's motion, the trial court relied in part on Gresh v. State , in which this court noted that "the primary purpose of such an investigation is to protect the child rather than to gain probable cause to arrest." 560 So. 2d 1266, 1268 (Fla. 1st DCA 1990). That may be true as to the primary purpose, but it does not answer the question of whether the CPI in this case was acting as a state agent. Moreover, the investigators' purpose was not the principal issue in Gresh ; we held there was no custodial interrogation: "They interviewed appellant at his place of work in the parking lot and it is clear that appellant was free to refuse to participate in the interview. The interview did not take place in an inherently coercive custodial setting nor was there intimidation or coercion of appellant." Id.

The trial court also considered State v. Contreras , in which the defendant facing molestation charges sought to suppress the victim's statements to child protective investigators. 979 So. 2d 896 (Fla. 2008). The issue in Contreras was whether the interview was testimonial (for Confrontation Clause purposes), and the court noted that "the personnel of these [Child Protection Investigation] units have been treated as members of the extended prosecutorial team." Id. at 905 (quoting John F. Yetter, Wrestling with Crawford v. Washington and the New Constitutional Law of Confrontation , Fla. B.J., Oct. 2004). But like Gresh , Contreras is factually distinguishable: Law enforcement personnel were electronically connected to the investigator during the interview, and they were feeding questions in real time. Id. Our decision in Woods v. State , which Cooley argues is controlling, is likewise factually distinguishable. 538 So. 2d 122 (Fla. 1st DCA 1989). In Woods , the defendant asked for an attorney and refused to talk to a police detective. The detective then asked for a Department of Health and Rehabilitative Services investigator "so that he could obtain information for [the detective] or interview him for his purpose." Id. at 123. The detective then gave the HRS investigator keys to the locked interview room where the defendant was held. The defendant made incriminating statements to the HRS investigator, the investigator told the detective, and then the detective and investigator returned and asked questions together. Id. Under these circumstances, this court held that the HRS investigator "was acting as an agent of law enforcement when he improperly reinitiated interrogation of appellant shortly after he had invoked his constitutional rights." Id.

Ultimately, we need not decide whether the trial court's decision to allow evidence from the CPI interview was error. The harmless-error test still applies when there is a Miranda violation, Deviney v. State , 112 So. 3d 57, 79 (Fla. 2013), and after a careful review of the record, we conclude "that there is no reasonable possibility that the error contributed to the conviction." DiGuilio , 491 So. 2d at 1135. Several considerations lead to this conclusion.

First, the remaining evidence was extensive and consistent. The victim testified as to what happened, and the jury saw video of her earlier interview, which featured a consistent description of Cooley's acts. Cooley's niece, too, attested to similar acts, both through her in-person testimony and her forensic interview, which the jury watched. The mother testified that Cooley admitted the molestation. And officers found Cooley in a hotel, where he appeared distressed and immediately asked them how they found him.

Second, while the mother testified that Cooley confessed, the CPI repeatedly said he did not confess to her. She said he did not specifically deny the conduct but made clear that he did not admit it either.

Third, the most damaging points the CPI testified about were duplicative of other, properly admitted evidence. The CPI testified that Cooley repeatedly referred to himself as a monster, but that fact was never disputed. Text messages put into evidence said the same thing, and Cooley admitted in his own testimony that he called himself that, although he explained it by saying he was referring to his drinking. The CPI also testified that Cooley said his daughter was a good girl who would not lie about such matters. The testimony about Cooley's expressing such a sentiment, while surely damaging, was similar to text messages in which Cooley praised his daughter and maligned himself: "If I had the strength of her, this would have never gone down."; "I'm lost"; "I'm sick"; "I'm a monster"; "I'm a loser."

After "not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict," we conclude that the error, if any, was harmless. DiGuilio , 491 So. 2d at 1138.

III.

Cooley's second argument is that the court should not have permitted the victim to testify about certain uncharged acts, specifically molestation that took place outside Florida. We review only for an abuse of discretion. Whisby v. State , 262 So. 3d 228, 231 (Fla. 1st DCA 2018). Cooley does not argue that the evidence is irrelevant. Cf. id. at 232 (noting that collateral-crime evidence can be admissible to show propensity in certain sex-crime cases). Nor does he argue that the evidence was inadmissible under the relevant statute. See § 90.404(2)(b)1., Fla. Stat. ("In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant."). Cooley's argument instead is that the court should have found that the evidence's "probative value [was] substantially outweighed by the danger of unfair prejudice." § 90.403, Fla. Stat.; see also McLean v. State , 934 So. 2d 1248, 1260-61 (Fla. 2006) (noting applicability of 403 balancing to collateral-crime evidence).

We conclude that the trial court did not abuse its discretion. Considering the similarity of the allegations of out-of-state acts with the charged conduct; the fact that the victim was the same in both (Cooley has not challenged on appeal the trial court's separate decision to allow collateral-crime evidence regarding the niece); and the entirety of the record, we cannot say that any reasonable judge would have excluded the evidence under section 90.403.

AFFIRMED.

Roberts and Ray, JJ., concur.


author: SILBERMAN, Judge.

text:
    Heather Deroner HOROWITZ, Appellant, v. Michael E. HOROWITZ, Appellee.
    Case No. 2D18-2074
    District Court of Appeal of Florida, Second District.
    Opinion filed May 29, 2019
    Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant.
    Philip S. Wartenberg of Allen Dell, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Heather Deroner Horowitz, the Former Wife, seeks review of the final judgment dissolving her fifteen-and-a-half-year marriage to Michael E. Horowitz, the Former Husband. The issues on appeal all arise from the bridge-the-gap and durational alimony awarded to the Former Wife. She challenges (1) the denial of permanent periodic alimony, (2) the award of bridge-the-gap alimony as reimbursement rather than prepayment, (3) the immediate imputation of income to her, and (4) the amount and term of the durational alimony. We affirm as to issues one and two without comment. We reverse as to issues three and four and remand for the court to defer the imputation of income and reconsider the amount of the durational alimony award.

At the time of the parties' marriage in September 2001, the Former Wife was working full-time as an administrative assistant. The Former Wife left the workforce from 2005 until 2010 to raise the parties' children. While the Former Wife returned to the workforce in 2010, she failed to successfully maintain full-time employment and had trouble keeping part-time jobs. By the time of trial, the forty-two-year-old Former Wife was unemployed. She requested permanent periodic alimony, asserting that she was unable to maintain full-time employment due to certain physical and mental disorders. The Former Husband opposed the Former Wife's request, asserting that the Former Wife was physically and mentally capable of maintaining full-time employment.

The trial court ordered a vocational evaluation, and evaluator Lisa Jacobson concluded that the Former Wife was capable of handling full-time employment. Jacobson determined that with her qualifications the Former Wife would be able to find a job with an annual salary of between $ 22,000 and $ 35,000 within six months. However, Jacobson also recognized that the Former Wife suffered from situational depression due primarily to the parties' divorce. Jacobson concluded that the Former Wife needed therapy and life coaching to help her work through her depression and transition to full-time employment.

The trial court found Jacobson's vocational assessment "credible and consistent with the other credible evidence presented." The court imputed income to the Former Wife based on full-time employment earning $ 13/hour ($ 2253.33 monthly or $ 27,040 annually). The court denied the Former Wife's request for permanent periodic alimony and instead awarded her durational alimony of $ 2000/month for sixty-nine months. The court also awarded the Former Wife bridge-the-gap alimony of up to $ 500/month for twelve months to pay for the recommended therapy and life coaching. However, the court declined to defer the imputation of income and thus required the Former Wife to obtain employment immediately.

The Former Wife argues the trial court erred by imputing income effective immediately instead of giving her time to get the counseling she requires. She also argues that that the trial court's failure to make findings regarding the parties' monthly expenses requires reversal of the durational alimony award. We find merit in both arguments.

1. Imputation of Income

A dissolution court may impute income to a party upon finding that the party is voluntarily unemployed or underemployed and has not been diligent in finding employment. Velez v. Montalvo-Velez, 253 So.3d 117, 119 (Fla. 2d DCA 2018). The voluntary unemployment or underemployment must not be "due to a physical or mental incapacity or other circumstance beyond the [party's] control." McDuffie v. McDuffie, 155 So.3d 1234, 1236 (Fla. 1st DCA 2015). "A court may impute income if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts." Soria v. Soria, 237 So.3d 454, 461 (Fla. 2d DCA 2018) (quoting Alpert v. Alpert, 886 So.2d 999, 1001 (Fla. 2d DCA 2004) ). This court will affirm a decision to impute income if it is supported by competent, substantial evidence. Velez, 253 So.3d at 119.

The Former Wife argues that the trial court erred by imputing income effective immediately instead of giving her time to get the counseling she requires. She contends that the evidence established that her situational depression prevented her from obtaining employment without therapy or life coaching. We agree that the immediate imputation of income is not supported by competent, substantial evidence.

While Jacobson determined that the Former Wife was capable of handling full-time employment, Jacobson also recognized that the Former Wife needed therapy and life coaching to help her transition to full-time employment. In the vocational evaluation, Jacobson concluded

Clearly, the Wife's emotional issues will impede her ability to show-up and present herself in a way that is suitable for employment. With therapy, the Wife can work on beliefs (conscious and unconscious), the accuracy of her thoughts and self-destructive behavior patterns. In my opinion, it is critical for all parties to understand the importance of the Wife committing to therapy for her overall well-being and progress. Her present emotional state makes her a less than desirable candidate for employment. As a bare minimum, one must show up for an interview on time and present oneself in the best possible light. Further, therapy will help the Wife gain insight into character issues related to honesty and emotional issues related to blaming others instead of taking partial ownership.
Vocationally, the wife needs no additional training or certifications. More importantly, the Wife needs to work on her attitude of blame and entitlement. While the wife openly declares she wants only to work part time, and is of the belief that she is not capable of working full time, I disagree. If the Wife can overcome her sense of entitlement, and victimization, she has the potential to enjoy a full and gratifying career....
Further, with therapy the Wife can put entitlement and victimization behind her.

(Emphasis added.)

As indicated previously, the trial court expressly found Jacobson's opinions to be "credible and consistent with the other credible evidence presented." Moreover, the court recognized the need to improve the Former Wife's emotional state before she could maintain employment when making its oral pronouncements at the end of the trial. There was simply no evidence to support the court's decision to impute income immediately.

It appears that the court declined to defer the imputation of income because the Former Wife did not seek out therapy while the divorce was pending. The court noted as follows:

The Wife testified that she believed she needed some form of therapy to get back to work. Although the Husband was paying a considerable amount of temporary support and covering most of the Wife's expenses, the Wife never sought the therapy she testified she felt she needed. Meanwhile, the evidence showed that the Wife had disposable income during this time, which she did not use to seek therapy.

However, the Former Wife was not ordered to obtain full-time employment until the final judgment was entered. Until that point, she was claiming that her physical and mental infirmities prevented her from working full-time. Thus, her failure to obtain the counseling she needed to become employable full-time did not provide a reasonable basis to refuse to delay imputing income. See Stewart v. Rich, 664 So.2d 1145, 1149 (Fla. 4th DCA 1995) (reversing the court's decision to impute income to the former wife immediately because the evidence did not establish she had "the immediate ability to become partially self-supporting").

2. Durational Alimony

In the final judgment, the trial court made the following broad findings regarding the parties' need for and ability to pay alimony: "The Wife has a need for support in light of the standard of living during the marriage. The Husband has an ability to pay support. His net monthly income as of the time of the final hearing was $ 12,132.19." The court then awarded the Former Wife durational alimony of $ 2000/month for sixty-nine months, finding as follows: "The Husband has the present ability to pay durational alimony in the amount of $ 2,000 per month to the Wife. Taking into account the alimony award of $ 2,000 per month, the Wife's net monthly income is $ 3,703."

The court also made findings regarding each of the alimony factors enumerated in section 61.08(2), Florida Statutes (2016). The findings pertinent to need and ability to pay follow:

4. Financial Resources of Each Party
The Husband's financial affidavit reflected a monthly deficit to him. The Husband further testified to the increase of two separate mortgage payments (on his Downs Drive property and on the parties' Simms Road property) of approximately six hundred dollars ($ 600) per month in additional tax escrow payments. However, the Court finds that, at two thousand dollars ($ 2,000) per month ($ 24,000 annually), this level of alimony does not create an unreasonable financial burden on the Husband, given his present income at approximately $ 218,000 per year.
In considering the parties' financial resources, the Court considered the parties' actual and imputed incomes, assets and liabilities distributed in the equitable distribution scheme, and the equalizing payment that the Wife will receive.
....
9. All Sources of Income
The Court considered all of the evidence regarding the available sources of income.

(Emphasis added.)

The Former Wife argues that these findings are legally insufficient because they do not set forth the amount of her monthly living expenses and the amount of alimony the Former Husband is actually able to pay based on his monthly living expenses. Without such findings, the Former Wife argues, this court cannot determine how the trial court calculated the durational alimony award. The Former Wife argues that these omissions therefore preclude adequate appellate review of the amount of the award. We agree.

Section 61.08(2) provides, "In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance." The failure to make specific findings regarding need and ability to pay "may preclude meaningful appellate review[ ] and result in a case having to be reversed and remanded." Ruberg v. Ruberg, 858 So.2d 1147, 1155 (Fla. 2d DCA 2003) (quoting Walsh v. Walsh, 600 So.2d 1222, 1223 (Fla. 1st DCA 1992) ).

Thus, even when the court makes findings regarding each of the section 61.08(2) factors, its failure to make findings "to allow for meaningful review of the amount of alimony awarded" constitutes reversible error. Ketcher v. Ketcher, 188 So.3d 991, 993, 994 (Fla. 1st DCA 2016) ; see also Crick v. Crick, 78 So.3d 696, 698 (Fla. 2d DCA 2012) (reversing an alimony award because "although the report and recommendation contained findings as to the factors listed in section 61.08(2)(a)-(g), it did not contain the requisite findings as to the need of the former wife or the former husband's ability to pay").

Dissolution of marriage cases are unlike other civil litigation. The final dissolution judgment is often not the end of the litigation process. The final judgment establishes ground zero for the purpose of petitions for enforcement, modification, and contempt proceedings. Without the statutorily-required findings of fact, it is difficult, if not impossible, to review the record for evidentiary support of the judgment, to enforce a judgment, or to subsequently determine if there has been a material change in circumstances sufficient to justify a modification of that judgment.

Fox v. Fox, 262 So.3d 789, 793-94 (Fla. 4th DCA 2018) (en banc).

In this case, the trial court made some findings regarding the Former Husband's ability to pay. The court found that the Former Husband's monthly income was $ 12,132.19. The court also found that the Former Husband's financial affidavit showed that he had a monthly deficit. And the court noted that the Former Husband further testified that his mortgage escrow payments had increased $ 600/month.

But despite the court's finding that the Former Husband already had a monthly deficit, the court concluded that $ 2000/month "does not create an unreasonable financial burden on the Husband, given his present income at approximately $ 218,000 per year." This suggests that the court did not accept all of the monthly expenses claimed by the Former Husband. Indeed, the Former Wife asserts that the Former Husband's expenses reflect a much higher standard of living than is equitable. Or perhaps the court was considering the equitable distribution of particular assets or liabilities. Regardless, the court's lack of findings makes it impossible to review the issue. See Ketcher, 188 So.3d at 993-94 (holding that the court's decision to "note" that certain evidence was disputed without making specific findings regarding need and ability to pay hampered review on the issue).

As for the Former Wife's need, the court made findings regarding the section 61.08(2) factors and imputed income of approximately $ 2250/month to her but failed to make any findings regarding the amount of the Former Wife's monthly expenses. The Former Wife presented expert testimony that her monthly expenses totaled $ 5835. However, the $ 2000 monthly alimony award provides the Former Wife a total monthly income of $ 3703, which is well short of this number. The Former Husband asserts that the Former Wife's expenses are inflated and are only $ 3694. It is also possible that the court was considering the equitable distribution of particular assets or liabilities. However, the court's lack of all necessary findings makes it impossible to review the issue. See Beck v. Beck, 852 So.2d 934, 937 (Fla. 2d DCA 2003) ; O'Connor v. O'Connor, 782 So.2d 502, 504 (Fla. 2d DCA 2001) ; Burnett v. Burnett, 237 So.3d 447, 449 (Fla. 1st DCA 2018).

The Former Husband argues that any error in failing to make findings regarding the Former Wife's need is harmless because the trial court must have accepted the Former Husband's assertion that her need was $ 3694 and rejected her expert's testimony that her need was $ 5835. See Esaw v. Esaw, 965 So.2d 1261, 1264 (Fla. 2d DCA 2007) (recognizing that the failure to make specific findings in support of an alimony award is subject to harmless error review). But see Fox, 262 So.3d at 793 (contrasting Esaw ). The Former Husband points to the fact that the total of the monthly imputed income and durational alimony ($ 3703) was just over the amount of the Former Wife's monthly expenses as calculated by the Former Husband ($ 3694).

Under these circumstances, we cannot agree that the trial court's failure to make specific findings is harmless. The Former Husband disputed several of the Former Wife's monthly expenses, and without factual findings it is impossible to tell which values the court accepted. Furthermore, we are unable to determine how the court factored in the assets and liabilities that were equitably distributed. Finally, the question of the Former Husband's ability to pay still needs to be resolved. Accordingly, we reverse and remand for the court to reconsider the amount of durational alimony. The court should "consider the parties' then-current circumstances in determining the amount of alimony." Ruberg, 858 So.2d at 1155. And the court should make detailed factual findings in support of its determination of need and ability to pay.

In summary, we affirm the final judgment of dissolution with two limited exceptions.

Because the immediate imputation of income was not supported by the evidence, we reverse and remand for the court to defer the imputation of income for a period of time appropriate to allow the Former Wife to obtain the recommended therapy and life coaching. Because the findings regarding the Former Wife's need and the Former Husband's ability to pay are legally insufficient, we reverse and remand for reconsideration of the amount of the durational alimony award.

Affirmed in part, reversed in part, and remanded.

SALARIO and BADALAMENTI, JJ., Concur.


author: VILLANTI, Judge.

text:
    Adam T. THARP, a/k/a Adam Timothy Tharp, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4513
    District Court of Appeal of Florida, Second District.
    Opinion filed May 29, 2019
    Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   VILLANTI, Judge.

Adam Tharp appeals his convictions and sentences for two counts of lewd and lascivious exhibition. Tharp pleaded guilty to both charges in an open plea to the court. In this appeal, he does not challenge his convictions, but he contends that the trial court violated his due process rights by considering evidence of uncharged subsequent conduct when imposing his sentences. Because the record shows that the court did in fact consider this impermissible evidence at sentencing, we reverse Tharp's sentences and remand for resentencing before a different judge.

The record shows that Tharp committed a lewd act in the children's section of a Winter Haven library on May 10, 2016. At that time, a portion of the incident was captured on video, but Tharp was not identified or stopped before he left the library. The next day-May 11-Tharp was captured on video walking around in the children's section of a library in Lakeland; however, no illegal or improper conduct was captured on the video. The day after that-May 12-Tharp was identified as the perpetrator of the May 10 incident based on the video evidence from both Winter Haven and Lakeland, and he was arrested and charged with that offense. No charges were ever brought based on his odd but benign May 11 visit to the Lakeland library. Tharp was also later charged with another lewd act that had occurred in 2015.

Tharp ultimately entered an open guilty plea to both charges of lewd and lascivious conduct-the one from 2015 and the one from May 10, 2016. At his sentencing hearing, the State sought to introduce the video of him in the Lakeland library on May 11, 2016, even though that video showed no criminal conduct and even though Tharp was not charged with any crimes based on his conduct in that library. The State argued that it should be permitted to introduce the video, and that the court was entitled to rely on it at sentencing, because it was relevant to prove Tharp's lewd intent and a lack of mistake. The State also argued that the video was relevant to show that Tharp was unable to conform his conduct to what society would expect because he went to the Lakeland library the day after the incident at the Winter Haven library. The State further contended that the court could consider the video as an "illustration of ... well, it's very, very similar to the behavior he exhibited the day before."

In response, Tharp argued that he had already pleaded guilty to the charges against him, and therefore the issues of intent and lack of mistake were not relevant. He also pointed out that the video was not relevant to prove that he could not conform his conduct to what society expected because he had not been arrested on any charge before he went to the Lakeland library. Finally, he specifically objected to the court considering the video since it was nothing more than evidence of subsequent uncharged conduct.

After entertaining these arguments, the trial court admitted the video on the theory that it was relevant to rebut any argument that Tharp did not pose a danger to the community and to establish that Tharp was not amenable to supervision or treatment. The court specifically stated that it was "appropriate to consider" the video in making its sentencing determination. And then, even though the lowest permissible sentence was any nonstate prison sanction, the trial court sentenced Tharp, who had no prior record, to ten years in prison followed by fifteen years' probation. Tharp now appeals the sentences imposed.

The sole issue raised in this appeal is the propriety of the trial court considering the video of the events that occurred in the Lakeland library the day after the events that resulted in the charges against Tharp. As this court has repeatedly held,

"incidents of misconduct occurring after the charged offense, some of which did not result in charges or arrests, [are] impermissible sentencing factors." Love v. State, 235 So. 3d 1037, 1039 (Fla. 2d DCA 2018) ; see also N.D.W. v. State, 235 So. 3d 1001, 1002 (Fla. 2d DCA 2017) (reversing and remanding for a new disposition hearing when the State relied on uncharged misconduct to support its recommended sentence); Mosley v. State, 198 So. 3d 58, 60 (Fla. 2d DCA 2015) (same); Hernandez v. State, 145 So. 3d 902, 905 (Fla. 2d DCA 2014) ("[U]ncharged crimes cannot be considered when determining a sentence."); Nusspickel v. State, 966 So. 2d 441, 445 (Fla. 2d DCA 2007) ("[U]nsubstantiated allegations of misconduct or speculation that the defendant probably committed other crimes may not be relied upon by a trial court in imposing sentence.").

Lundquist v. State, 254 So. 3d 1159, 1160 (Fla. 2d DCA 2018) (alterations in original); cf. Norvil v. State, 191 So. 3d 406, 410 (Fla. 2016) (adopting a bright line rule that trial courts may not consider a subsequent arrest without conviction during sentencing for the primary offense). If the trial court does, in fact, impermissibly consider such uncharged conduct or relies on speculation that the defendant has committed or may commit other crimes based on its view of the uncharged conduct, the trial court violates the defendant's due process rights. Lundquist, 254 So. 3d at 1160 ; see also Love, 235 So. 3d at 1039 (holding that the trial court may not rely on evidence of subsequent misconduct, whether or not that misconduct resulted in an actual arrest); N.D.W., 235 So. 3d at 1002 ; Nusspickel, 966 So. 2d at 445.

Here, there is no question that the trial court relied on the video of Tharp's visit to the Lakeland library on May 11-the day after the charged offense occurred-when making its decision concerning Tharp's sentences. Thus, if the video constituted evidence of uncharged misconduct, it was improperly considered by the court and Tharp would be entitled to be resentenced.

In the trial court, and again in its appellate brief, the State contends that the video did not constitute evidence of uncharged misconduct because it did not depict any criminal conduct by Tharp. However, the law precludes consideration of subsequent misconduct or bad acts; not just subsequent criminal conduct. See Love, 235 So. 3d at 1039. Further, the State specifically relied on the video in an effort to prove lewd intent and lack of mistake and argued that the video showed that Tharp was unable to control his conduct and therefore was not amenable to placement on probation. Essentially, the State's position was that Tharp's odd conduct as depicted in the video proved that he would offend again if not imprisoned. As such, the video was used by the State to argue for an enhanced sentence based on Tharp's commission of uncharged bad acts-the exact reason found improper by the supreme court in Norvil and by this court in Lundquist. Therefore, the video of Tharp's activities in the Lakeland library, which at most constituted nothing more than evidence of subsequent uncharged bad acts, should not have been admitted or relied upon by the trial court in making its sentencing decision.

Accordingly, we must reverse Tharp's sentences and remand for resentencing. Such resentencing should take place before a different judge. See Love, 235 So. 3d at 1040 ; see also Fernandez v. State, 212 So. 3d 494, 497 (Fla. 2d DCA 2017) (remanding for resentencing before a different judge when the trial court considered impermissible factors at sentencing); Gray v. State, 964 So. 2d 884, 885 (Fla. 2d DCA 2007) (same); Schwartzberg v. State, 215 So. 3d 611, 616 (Fla. 4th DCA 2017) (remanding for resentencing before a different judge "to preclude any perception on [appellant's] part that the resentencing may not be conducted in a completely fair and impartial manner" (alteration in original) (quoting Mirutil v. State, 30 So. 3d 588, 591 (Fla. 3d DCA 2010) )). In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded for resentencing before a different judge.

KHOUZAM and BADALAMENTI, JJ., Concur.