author: M.K. Thomas, J.

text:
    Christopher MORRIS, Appellant, v. Sean MORRIS, Appellee.
    No. 1D16-4695
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Kyle J. Benda of the Law Office of Knellinger, Jacobson & Associates, Gainesville, for Appellant.
    M. Michael O'Steen of M. Michael O'Steen, P.A., Cross City, for Appellee.
   M.K. Thomas, J.

The biological father appeals an order granting temporary custody of the minor child to the step-father and denying his Emergency Verified Motion for Pick-Up Order. He argues the trial court applied the incorrect legal standard for the determination of a contested petition for temporary custody by an extended family member under to section 751.03, Florida Statutes (2016). Because we agree, the order on appeal is reversed and the matter is remanded to the trial court for further action consistent with this opinion.

Following the tragic and unexpected death of the biological mother, the step-father filed a Petition for Ex Parte Emergency Custody by Extended Family Member pursuant to section 751.03. In response, the father filed an Emergency Verified Motion for Child Pick-up Order and challenged the temporary custody request of the step-father. At the time of the temporary custody proceedings, the minor child was sixteen years of age and living in Florida with her step-father and younger brother. The father lived in Germany with his wife and the children born of that marriage.

By way of history, the biological parents began the dissolution of their marriage in 2002 when the minor child was approximately eighteen months of age. The parents entered into a mediated settlement agreement in 2002, which named the mother as the primary residential parent. The dissolution of marriage was finalized in 2007. Subsequently, the mother married the father's brother (the minor child's "uncle" and following the marriage, also her "step-father"). For the next fourteen years, the minor child was raised by the mother and step-father and continuously resided with them in Florida.

The father has served in the military, mostly abroad, since the minor child was four years of age. There were periods of years where the father and the minor child had no in-person contact. Visitation between the father and the minor child over the last fourteen years has been sporadic, at best.

The father now desires to exercise full parental responsibility and relocate the minor child to Germany, where he is currently stationed. The step-father petitioned for custody to allow the minor child to remain in Florida and living in the family home where she was raised. The minor child unequivocally expresses her desire to remain living with the step-father and her younger brother. Her plea is that custody be granted to her step-father so she can remain "at home" with the step-father and her younger brother, finish high school with her friends, and be near her older sister who attends college in Florida.

Following an in-depth temporary custody hearing at which multiple witnesses testified, including the teenaged minor child, the trial court granted temporary custody to the step-father; the trial court explicitly based this determination on the best interest of the child standard outlined in section 61.13, Florida Statutes. Giving great weight to the minor child's desires to remain in this country with the step-father and her siblings and to complete her schooling, the trial court ultimately determined that granting temporary custody to the step-father was in the minor child's "best interests." The trial court further reasoned that it "would be detrimental, cause mental, physical or emotional harm to uproot [minor] from her home and send her to the other side of the world when her schooling and her friends are so much a part of her life and her world and what she relies on for stability in this difficult time."

As the step-father is not a natural parent, the trial court's use of the best interest of the child standard to determine temporary custody was error. Preference to the natural parents prevails despite the fact that third persons are capable and willing to provide better financial and social benefits to the child. See In re Marriage of Matzen, 600 So.2d 487 (Fla. 1st DCA 1992). This parental preference rule, which is premised on the widely held view that the family unit should be preserved, derives from the seminal case of In re Guardianship of D.A. McW., wherein the court stated that "[w]hen the custody dispute is between a natural parent and a third party ... the test must include consideration of the right of a natural parent 'to enjoy the custody, fellowship and companionship of his offspring ... This is a rule older than the common law itself.' " 460 So.2d 368, 370 (Fla. 1984) (quoting State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957) ).

This Court has explained that in custody disputes between a natural parent and a third party, courts should give deference to the natural parent pursuant to the common law parental preference rule, " 'unless and until there is sufficient proof to establish parental unfitness or substantial threat of significant and demonstrable harm to the child.' " Corona v. Harris , 164 So.3d 159, 160 (Fla. 1st DCA 2015) (quoting LiFleur v. Webster , 138 So.3d 570, 574 (Fla. 3d DCA 2014) ). Thus, the biological father should have been awarded custody of the minor child unless the step-father proved either: (1) the biological father was unfit; or (2) remaining with the biological father would result in demonstrable harm to the minor child.

Here, the step-father filed for temporary custody under chapter 751, Florida Statutes. Section 751.05(3)(b), governs a temporary custody request by an extended family member over the objection of a natural parent and provides for the preference of a natural parent to retain custody unless the natural parent is proven to be unfit:

If one of the minor child's parents objects to:

(b) The petition for temporary custody, the court shall grant the petition only upon a finding, by clear and convincing evidence, that the child's parent or parents are unfit to provide for the care and control of the child. In determining that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined in Chapter 39.

See also Landinguin v. Carneal , 837 So.2d 525, 527 (Fla. 4th DCA 2003).

Here, the trial court found the biological father fit. We agree with the trial court's finding, as there is no legally sufficient evidence in the record to support allegations of abuse, abandonment, or neglect.

In addition to fitness, the common law rule of parental preference provides that "where the custody dispute is between the parents and a third person, the rights of the parents are paramount unless there is a showing ... that, for some substantial reason, custody in either or both of the parents would be detrimental to the child's welfare." Hammond v. Howard , 828 So.2d 476, 478 (Fla. 5th DCA 2002) (quoting Daugharty v. Daugharty, 571 So.2d 85, 86 (Fla. 5th DCA 1990) ). " '[D]etriment refers to circumstances that produce or are likely to produce lasting mental, physical or emotional harm.' " Murphy v. Markham-Crawford , 665 So.2d 1093, 1094 (Fla. 1st DCA 1995) (quoting In re Marriage of Matzen , 600 So.2d at 490 ).

This Court has addressed detriment in cases requiring a child's relocation, finding " 'the detriment which must be established ... before a natural parent's request for custody may be denied involves something much more serious than the discomfort normally experienced by a child when moved from a familiar environment into one engulfed by the fear and uncertainty associated with the unknown ...' " Seilkop v. Barker , 148 So.3d 865, 868 (Fla. 1st DCA 2014) (quoting Murphy , 665 So.2d at 1094 ). Rather, "[i]t contemplates a longer term adverse effect that transcends the normal adjustment period in such cases." Filter v. Bennett , 554 So.2d 1184, 1185 (Fla. 2d DCA 1989).

Here, the trial court found the minor child's relocation to Germany to live with her biological father would be detrimental. However, we are unable on the record before us to determine if the trial court properly analyzed detriment in the context of relocation of a child. Because the trial court applied an erroneous legal standard in granting the step-father's petition for temporary custody and its findings are incomplete with regard to detriment, we remand.

REVERSED and REMANDED with directions.

Roberts and Winokur, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    James MCCAMPBELL, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    Case No. 2D16-177
    District Court of Appeal of Florida, Second District.
    May 30, 2018
    BY ORDER OF THE COURT:
   Upon consideration of the Appellant's motion for rehearing, rehearing en banc, and request to certify conflict filed on February 23, 2018, and the Appellee's motion for rehearing/reconsideration/clarification of order granting Appellant's motion for attorney's fees incurred on appeal filed on February 26, 2018,

IT IS ORDERED on the court's own motion that the opinion dated February 14, 2018, is hereby withdrawn and the attached opinion is substituted therefor. Both the Appellant's motion for rehearing, rehearing en banc, and request to certify conflict and the Appellee's motion for rehearing/reconsideration/clarification of order granting Appellant's motion for attorney's fees incurred on appeal are denied. No further motions for rehearing will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

Attachment

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

JAMES McCAMPBELL, Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.

Case No. 2D16-177

Opinion filed May 30, 2018.

Appeal from the Circuit Court for Sarasota County; Lee Haworth, Judge.

Mark P. Stopa of Stopa Law Firm, Tampa, for Appellant.

Robert R. Edwards of Choice Legal Group, P.A., Fort Lauderdale, for Appellee.

CASANUEVA, Judge.

In this appeal from a final judgment of foreclosure, James McCampbell contends that the trial court erred in admitting copies of his loan modification agreement, and Federal National Mortgage Association (Fannie Mae) concedes that the admission of the copies was improper. Accordingly, we reverse.

On October 26, 2007, Mr. McCampbell signed the original mortgage and promissory note on the property, and on July 14, 2010, an agreement modifying the original loan and all of the original loan documents was executed. At trial, Fannie Mae called one witness to testify and that witness did not produce the original loan modification agreement nor did the witness explain its absence. Rather, Fannie Mae sought the admission of a copy of the agreement. Over objection, the trial court admitted the copy.

During this appeal, Fannie Mae conceded that the admission in evidence of the copy of the loan modification agreement, without an explanation by Fannie Mae as to its failure to produce the original, was error. For purposes of this appeal, we accept Fannie Mae's concession of error.

We note that since the oral argument of this matter, the Fourth District Court of Appeal has clarified its prior holding in Rattigan v. Central Mortgage Co., 199 So.3d 966 (Fla. 4th DCA 2016). In Liukkonen v. Bayview Loan Servicing, LLC, No. 4D16-4193, 243 So.3d 981, 983, 2018 WL 1517240, at *2 (Fla. 4th DCA Mar. 28, 2018), the court held that "[a] copy of a modification is admissible to the same degree as an original, as it is not a negotiable instrument as defined in section 673.1041."

We reverse and remand for a new trial. See Heller v. Bank of Am., NA, 209 So.3d 641, 645 (Fla. 2d DCA 2017) (reversing and remanding final judgment of foreclosure for a new trial where trial court improperly allowed the bank's witness to give hearsay testimony regarding content of business records which had not been admitted into evidence).

Reversed and remanded for further proceedings.

SALARIO and BADALAMENTI, JJ., Concur.

      We do not find merit in Fannie Mae's argument that the appeal should be affirmed based on the tipsy coachman doctrine because, although the trial court took judicial notice of certain bankruptcy pleadings, no other pleading accompanied the judicial notice request.


text:
    Mary WILLIAMS, Former Wife, Appellant, v. Ronald H. SAPP, Former Husband, Appellee.
    No. 1D17-1490
    District Court of Appeal of Florida, First District.
    May 31, 2018
    Michael M. Giel of Giel Family Law, P.A., Jacksonville, for Appellant.
    Ronald H. Sapp, pro se, Appellee.
   M.K. Thomas, J.

Appellant, the former wife, appeals a Consent Final Judgment for Dissolution of Marriage and the denial of her Motion for Rehearing. She asserts reversible error claiming the trial court, through its sua sponte modification of the parties' mediation settlement agreement without providing her notice and the opportunity to be heard, violated her due process rights. We agree and reverse and remand for further proceedings.

Following years of protracted litigation in this family law matter, the parties attended court-ordered mediation on January 11, 2017. After mediating for nine hours, the parties reached a successful resolution of all issues and generated a sixteen-page document setting forth the negotiated terms, including, but not limited to, time-sharing, parental responsibility, child support, asset distribution, insurance, tax exemptions, and attorney's fees and costs. The parties meticulously initialed and executed all pages of the agreement. The court-appointed mediator and parties filed the executed settlement agreement, entitled "Consent Final Judgment for Dissolution of Marriage," with the trial court. The mediator also filed a notice advising the trial court of an agreement reached for "total resolution."

The trial court had previously scheduled and noticed a "[f]ive-minute" status conference to occur the day after mediation. Following mediation and before the status conference, the former wife filed a waiver in which she: (1) stated that the parties had reached a complete resolution and requested the trial court to enter a final order in conformance with the Consent Final Judgment as executed by the parties the previous day; (2) "waive[d] notice of any and all hearings, waive[d] the formal setting of this cause for final hearing, and waive[d] the necessity of the Court entering an order Setting the Cause for Trial"; and (3) requested to be provided "Notice of the Final Hearing."

Neither the former wife nor her attorney attended the status conference. Counsel for the former husband appeared and purportedly presented the executed mediation agreement to the trial court (in the form of a Consent Final Judgment for Dissolution of Marriage) and requested approval. Scheduled as a status conference, the event was not recorded. The trial judge did not approve the executed settlement agreement reached at mediation, but instead initiated a sua sponte reworking of the agreement-striking through provisions, inserting handwritten amendments, and initialing the edits. The modifications directly contradicted the parties' mediation agreement by granting shared parental responsibility, rather than sole parental responsibility to the former wife, and providing the former husband a tax exemption for one of the minor children, instead of tax exemptions to the former wife for both children. The trial court then entered the final order approving its altered version of the Consent Final Judgment.

Upon receipt of the Final Judgment and realization that it no longer reflected the terms negotiated and memorialized by the parties at mediation, the former wife timely filed a Motion for Rehearing. She asserted the trial court erred in modifying the agreement without notice and consent of the parties and requested a hearing on the matter. The trial court denied the motion on the sole basis that "[t]he wife and counsel failed to attend the trial."

On appeal, the former wife claims reversible error as a result of the trial court's sua sponte modification of the Consent Final Judgment without notice and an opportunity to be heard, a violation of procedural due process. Furthermore, she argues the trial court abused its discretion by denying her Motion for Rehearing on the basis that she failed to attend trial when no trial had been set or noticed for that day. Both arguments are meritorious.

Appellate courts review possible due process violations in family law cases de novo . Dep't of Revenue ex rel. Thorman v. Holley , 86 So.3d 1199, 1204 (Fla. 1st DCA 2012). Denials of motions for rehearing are reviewed for abuse of discretion. Trammell v. Ward , 667 So.2d 223, 226 (Fla. 1st DCA 1995).

Upon the trial court's determination that it would not approve (without acquisition or contemplation of additional evidence) the settlement agreement as presented by the parties, the trial court should have terminated the status conference and noticed the cause for an evidentiary hearing. "Blindsiding a party by announcing on the day of the hearing that the court will entertain evidence at a hearing not noticed as an evidentiary hearing is the epitome of a due process violation." Messing v. Nieradka , 230 So.3d 962, (Fla. 2d DCA 2017) (citing Jackson v. Leon Cty. Elections Canvassing Bd. , 204 So.3d 571, 578 (Fla. 1st DCA 2016) ). " '[T]he opportunity to be heard at an evidentiary hearing requires time to secure the attendance of witnesses and to prepare for the presentation of evidence and argument.' " Jackson , 204 So.3d at 578 (quoting Crepage v. City of Lauderhill , 774 So.2d 61, 65 (Fla. 4th DCA 2000) ). Here, the trial court not only failed to provide the former wife with requisite notice of an evidentiary hearing, but then proceeded, in her absence, to perform an unsolicited redraft of the executed mediation settlement agreement.

In asserting the trial court erred by not honoring the mediation agreement of the parties, the former wife does not contest the general rule in Florida that settlement provisions concerning child support, custody, and visitation must be reviewed and approved by the trial court as being in the best interest of the children. Griffith v. Griffith , 860 So.2d 1069, 1071 (Fla. 1st DCA 2003) (citing Feliciano v. Feliciano , 674 So.2d 937 (Fla. 4th DCA 1996) ). Instead, she correctly claims such discretion does not provide a trial judge with "virtually free hand to set aside the settlement agreement because the parties had minor children ..." Id. at 1073.

We do not address the sufficiency of evidence to support the trial court's rejection and modification of the mediation agreement; we note only that the rejection and sua sponte modification by the trial court of the parties' mediation agreement in this case should not have occurred in the absence of the former wife being given appropriate notice and an opportunity to be heard at a properly scheduled evidentiary hearing. The trial court's denial of the former wife's request for rehearing, on the basis she "failed to attend" a trial that was never scheduled or noticed, constitutes an abuse of discretion.

On remand, the trial court must either approve the marital settlement agreement as negotiated by the parties or, if unable or unwilling to do so, conduct a properly noticed evidentiary hearing. The remaining claims of Appellant are hereby denied without further comment.

For the aforementioned reasons, the Consent Final Judgment for Dissolution of Marriage is reversed, and the cause remanded to the trial court for further action as described herein.

Jay and Winsor, JJ., concur.


author: Per Curiam.

text:
    William Larry SCOTT, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-1205 1D17-1206 (Consolidated for disposition)
    District Court of Appeal of Florida, First District.
    May 31, 2018
    Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

REVERSED and REMANDED with instructions to vacate Appellant's convictions under section 322.34(2)(b), Florida Statutes (2016), and adjudicate him guilty of the lesser included offense of driving without a valid driver's license. See Williams v. State , 244 So.3d 356, 2018 WL 1833396 (Fla. 1st DCA 2018).

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


author: LaROSE, Chief Judge.

text:
    Arthur Lee SMITH, Petitioner, v. DEPARTMENT OF CORRECTIONS and Commission on Offender Review, Respondents.
    Case No. 2D17-3409
    District Court of Appeal of Florida, Second District.
    Opinion filed June 1, 2018 Rehearing Denied September 26, 2018
    Arthur Lee Smith, pro se.
    Mark Hiers, Assistant General Counsel, Tallahassee, for Respondent Commission on Offender Review.
    Beverly Brewster, Assistant General Counsel, Tallahassee, for Respondent Department of Corrections.
   LaROSE, Chief Judge.

Arthur Lee Smith petitions this court for a writ of certiorari. He contests the trial court's order denying his habeas corpus petition addressed to the revocation of his conditional release supervision. We have jurisdiction. See Fla. R. App. P. 9.030(b)(2)(B) ; see also Tarver v. Fla. Parole Comm'n, 990 So.2d 577, 578 (Fla. 3d DCA 2008) ("[W]e treat the appeal [from the trial court's order denying a habeas petition pursuing review of the parole commission's decision to revoke conditional release] as a petition for writ of certiorari, and review the circuit court's denial pursuant to the applicable standard in cases involving second-tier certiorari."). We deny his petition.

Background

In 1991, the trial court sentenced Mr. Smith to prison for armed robbery. He was released on conditional release supervision in September 2009. His supervision was to end in 2020. Unfortunately for Mr. Smith, he violated his conditional release by committing several new offenses.

Upon receipt of a notice of violations from the Florida Commission on Offender Review (Commission), Mr. Smith, on July 22, 2016, executed a "Notice of hearing," in which he elected to postpone his conditional release violation hearing until disposition of his new law violations. Thereafter, on March 1, 2017, he signed a Waiver of Conditional Release Violation Hearing. On or about March 15, 2017, the Commission provided Mr. Smith with an amended notice of violations. This amended notice apparently added two additional violations of supervision. Mr. Smith signed the amended notice, and placed his initials next to a preprinted statement affirming that he "hereby freely and voluntarily waive[d] [his] right to [a] violation hearing." The Commission subsequently revoked his conditional release. Several months later, Mr. Smith filed a habeas corpus petition challenging his continued detention. The trial court summarily denied relief.

Mr. Smith's Certiorari Petition

Mr. Smith seeks immediate release from prison and reinstatement to conditional release. He makes two arguments. First, he denies that he signed the notice postponing his hearing. Absent his agreement, he contends that the Commission had to conduct the violation hearing within forty-five days of his arrest. See § 947.141(2), Fla. Stat. (1991) ("Within 45 days after the arrest of a releasee charged with a violation of the terms and conditions of conditional release, the releasee must be afforded a hearing conducted by a commissioner or a duly authorized representative thereof."). Because no hearing took place within that time, Mr. Smith wants to be released from prison.

Second, Mr. Smith contends that he never signed a valid waiver of hearing for the March 15, 2017, amended notice. He admits to signing a waiver for the original notice. Yet, he asserts: (1) he has no recollection of signing the amended notice; and, (2) even if he did sign it, the notice was legally ineffective because it did not enumerate all of the rights he was waiving.

Analysis

We note that "once an inmate has had a full review on the merits of a Parole Commission order in the circuit court, he or she is not entitled to a second plenary appeal of the order in the district court." Sheley v. Fla. Parole Comm'n, 720 So.2d 216, 218 (Fla. 1998). Rather, we exercise a narrow and limited review. "[T]he district court's role on second-tier certiorari review [is] limited to a two-pronged review of the circuit court decision, not a de novo review of the agency decision." Fla. Parole Comm'n v. Taylor, 132 So.3d 780, 783 (Fla. 2014) (emphasis omitted) (quoting Broward County. v. G.B.V. Int'l Ltd., 787 So. 2d 838, 845 (Fla. 2001) ). We are called upon "to determine only whether the circuit court: (1) afforded procedural due process; and (2) applied the correct law." Id."The test that has always applied to second-tier certiorari [is]: it should be granted only when there is a departure from the essential requirements of law resulting in a miscarriage of justice ." Id. (alteration in original) (quoting Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So.3d 712, 726 (Fla. 2012) ). "A ruling constitutes a departure from the essential requirements of law when it amounts to 'a violation of a clearly established principle of law resulting in a miscarriage of justice.' " Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla. 2003) (quoting Tedder v. Fla. Parole Comm'n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003) ).

Clearly established law can be derived not only from case law dealing with the same issue of law, but also from an interpretation or application of a statute, a procedural rule, or a constitution provision. When the established law provides no controlling precedent, however, certiorari relief cannot be granted because without such controlling precedent, [a district court] cannot conclude that [a circuit court] violated a clearly establish principle of law. Further, a misapplication or an erroneous interpretation of the correct law does not rise to the level of a violation of a clearly established principle of law.

State, Dep't of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011) (citations and internal quotation marks omitted).

We recognize that "[i]n granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error." Combs v. State, 436 So.2d 93, 95 (Fla. 1983). "[C]ertiorari cannot be used to grant a second appeal to correct the existence of mere legal error." Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1093 (Fla. 2010). Rather, second-tier certiorari is meant to rectify "an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice." Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla. 1995) (quoting Jones v. State, 477 So.2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring specially) ).

Mr. Smith's first argument is meritless. Even if he did not sign a document postponing the hearing, no law commands that a failure to conduct a revocation hearing within forty-five days must result in his release. "Nothing in [ section 947.141 ] provides that the failure to timely conduct a conditional release supervision revocation hearing is jurisdictional." Gillard v. State, 827 So.2d 316, 317 (Fla. 1st DCA 2002). Moreover, as Gillard explained:

[R]evocation hearings are governed by due process considerations and are subject to the requirement that they be conducted within a reasonable time. If the applicable statute sets forth a definite time period for the hearing, and the time period is violated, the delay is presumed unreasonable. To be entitled to relief, the releasee must show that he was prejudiced by the alleged delay in addition to showing the statutory violation.

Id. (emphasis added) (citations omitted). Mr. Smith makes no such showing. See Danluck v. Lotspeich Co., 334 So.2d 32, 34 (Fla. 3d DCA 1976) ("On certiorari, as on appeal, there is a presumption as to the correctness of the trial court's rulings, and the burden rests on the petitioner for certiorari to make any error complained about to appear fully.").

Mr. Smith's failure to show prejudice dovetails with another reason that his first argument cannot succeed. As reflected in the trial court's thorough order denying habeas relief, Mr. Smith validly postponed his hearing, pending "disposition of ... charges against [him]." He chose to "waive the forty-five (45) day time constraint to have a violation hearing." Mr. Smith cannot now be heard to complain that he was deprived of a timely hearing. See Fla. Admin. Code R. 23-23.011(4)(d) (2016) ("The granting of a continuance or postponement on behalf of the conditional releasee constitutes a waiver by the conditional releasee of all time constraints, any requirement for a local hearing, and shall postpone disposition of the violations until notification is received by the Commission that the pending criminal charges have been resolved or the Releasee elects to proceed with or waive the hearing."). Nor can we say that the trial court's conclusions were based on the incorrect law.

The crux of Mr. Smith's second argument is that he signed no valid waiver for the March 15, 2017, amended notice. At first blush, the record seemingly supports Mr. Smith's position. Although he signed a Waiver of Conditional Release Violation Hearing for the original notice, he signed no such form for the amended notice. Under careful scrutiny, however, this incongruity is unavailing.

On the March 15, 2017, amended notice, Mr. Smith initialed and signed a provision stating that he was waiving his right to a violation hearing. With the exception of the addition of offenses, the amended notice was identical to the original July 22, 2016, notice. Despite the absence of a formal waiver like the one he signed on March 1, 2017, our record amply demonstrates that the trial court correctly concluded that Mr. Smith intended to waive a hearing for the amended notice.

Mr. Smith's petition falters upon a comparison of the original notice and the amended notice. The original notice listed five violations: two burglary offenses (paragraphs 1 and 3), two grand theft offenses (paragraphs 2 and 4), and a curfew violation (paragraph 5). The State subsequently nolle prossed the theft charges. Mr. Smith pleaded nolo contendere to the reduced charges of trespass, with the judgments and sentences filed on March 1, 2017. Although the amended notice identified the five violations alleged in the original notice, the amended notice also added the two trespass convictions, as though they were new violations of conditional release. In fact, they merely represented the adjudication of the violations alleged in paragraphs 1 and 3.

We cannot say that the trial court's denial of habeas relief constituted a departure from the essential requirements of law. The factual scenario presented to us does not implicate any due process concerns. See, e.g., McRae v. State, 88 So.3d 384, 385 (Fla. 2d DCA 2012) (holding that revocation of probation based on an uncharged violation deprives the defendant of due process and constitutes fundamental error); Singletary v. State, 537 So.2d 674, 674-75 (Fla. 2d DCA 1989) (recognizing that the minimum procedural safeguards imposed by due process include the probationer's right to notice of the claimed violations of his probation). Mr. Smith received notice and an opportunity to be heard from the Commission.

Any one of the alleged violations would have been sufficient to revoke his conditional release. See Logan v. State, 964 So.2d 209, 210 (Fla. 5th DCA 2007) (observing that when a conditional releasee "violate[s] a condition of release prior to the expiration of their full, pronounced prison term, gain time and release are revoked and they may be re-incarcerated for the balance of their sentence" (emphasis added) ).

Furthermore, Mr. Smith cannot now complain that he was broadsided by the absence of a more formal waiver of hearing pertaining to the amended notice. As part of the March 1, 2017, waiver, Mr. Smith agreed to waive a number of rights. Evidently, Mr. Smith was aware of the rights and processes he abandoned when he signed the amended notice, a short two weeks later. Although the waiver for the amended notice is not as detailed as the March 1, 2017, waiver, Mr. Smith cannot demonstrate that he was caught unawares of the import and effect of affixing his initials and signature to the amended notice, much less that the absence of a formal waiver constitutes a miscarriage of justice.

It is true that a conditional releasee may withdraw his previously executed violation hearing waiver within fourteen days after execution of the waiver. See Fla. Admin. Code R. 23-23.011(4)(c)(1). Mr. Smith does not contend that he would have withdrawn a formal waiver to the amended notice had he been offered and signed one. Instead, by signing the waiver pertaining to the original notice, Mr. Smith demonstrated his intent to waive a revocation hearing. Furthermore, as the new law violations served as the basis for the amended notice, and they had been adjudicated at the time the amended notice was issued, we cannot conceive of Mr. Smith electing to revoke such a waiver.

Because the trial court applied the correct law and afforded procedural due process, we must deny the petition on the merits.

Petition denied.

CRENSHAW and LUCAS, JJ., Concur.


author: Rowe, J.

text:
    Kadeem Quaishawn HART, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D13-1754 1D13-1810 (Consolidated)
    District Court of Appeal of Florida, First District.
    June 4, 2018 Rehearing Denied July 2, 2018
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
    ON REMAND FROM THE SUPREME COURT OF FLORIDA
   Rowe, J.

The Florida Supreme Court quashed our opinion affirming Kadeem Hart's judgments and sentences and remanded this case "in light of [its] decision in Kelsey [v. State , 206 So.3d 5 (Fla. 2016) ]." Hart v. State , 2017 WL 836804 (Fla. Mar. 3, 2017). We must thus consider whether Hart is entitled to resentencing. Unlike other cases remanded in light of Kelsey , the supreme court's remand in this case did not provide specific instructions for resentencing. See Smith v. State , 2016 WL 7217234 (Fla. Dec. 13, 2016) (remanding "for resentencing" pursuant to Kelsey ); Galan v. State , 2016 WL 7212331 (Fla. Dec. 13, 2016) (remanding "for resentencing" in light of Kelsey ).

For this reason, we directed the parties to show cause whether Hart was entitled to relief under Kelsey . The State responded that Hart is not within the class of juvenile nonhomicide offenders entitled to relief under Kelsey because his original life sentence was not reversed pursuant to Graham v. State , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and his fifty-year aggregate sentence imposed after he was granted a new trial does not violate Graham . Hart replied that requiring him to serve his aggregate fifty-year sentence without judicial review after twenty years would violate the Eighth Amendment. For the reasons that follow, we affirm.

I.

Hart was charged with carjacking, kidnapping, aggravated battery with a deadly weapon, armed robbery, and two counts of sexual battery. He was fifteen years old when he committed the offenses.

The testimony at trial established that Hart's first victim was walking home around 5:00 p.m. on January 5, 2007, when Hart approached her from behind, grabbed her arm, and put what she assumed to be a gun to her back. He took the victim to a wooded area, where he ordered her to remove her clothes. Over the course of the next forty-five minutes, Hart repeatedly hit the victim with his gun and raped her vaginally, orally, and anally. After he finished, Hart kept the victim's shirt, bra, and cell phone as "souvenirs" before running off. During the incident, Hart struck the victim so hard on her head with his gun that she lost consciousness. When the victim finally received medical attention, she required multiple stitches for a wound on her forehead and was required to wear a neck brace.

A few hours after he raped the first victim, Hart and his cousin approached a second victim who had arrived at her father's home around 10:20 p.m. Because her father's home had a long driveway inside a closed gate, the victim had to exit her car to open the gate. The end of the driveway was well lit by a street light. When she exited her vehicle, Hart and his cousin were standing nearby, holding guns. The men pointed their guns at her and demanded her car, her keys, her cell phone, and her purse. The victim gave Hart and his cousin what they wanted and they drove off. The carjacking occurred approximately one block from where the first victim was raped.

The jury convicted Hart of sexual battery, battery as a lesser-included offense of sexual battery, kidnapping, aggravated battery with a deadly weapon, armed robbery, and carjacking. The trial court sentenced Hart to concurrent terms of life in prison on the sexual battery, armed robbery, and carjacking convictions; one year on the battery conviction; thirty years on the kidnapping conviction; and fifteen years on the aggravated battery conviction. Hart appealed, arguing that the charges involving the two victims were improperly joined and should have been separately tried. This Court agreed, reversed Hart's convictions, and ordered separate trials on remand. Hart v. State , 70 So.3d 615, 620 (Fla. 1st DCA 2011) ( Hart I ).

On remand, Hart entered a plea to sexual battery, kidnapping, and the lesser-included offense of unarmed carjacking. The trial court sentenced Hart to concurrent thirty-year sentences for sexual battery and kidnapping and to a consecutive sentence of twenty years' imprisonment for carjacking, for an aggregate term of fifty years in prison. We affirmed Hart's convictions and sentences on direct appeal with a citation to our opinion in Kelsey v. State , 183 So.3d 439 (Fla. 1st DCA 2015) ( Kelsey I ). See Hart v. State , 184 So.3d 664, 664 (Fla. 1st DCA 2016) ( Hart II ). Hart then petitioned for review in the Florida Supreme Court. His petition was granted and this Court's decision was quashed and remanded in light of the decisions in Henry v. State , 175 So.3d 675 (Fla. 2015), and Gridine v. State , 175 So.3d 672 (Fla. 2015). See Hart v. State , 2016 WL 237904 (Fla. Jan. 20, 2016) ( Hart III ). The supreme court stayed the proceedings in this Court while it considered the disposition of our decision in Kelsey I . After it quashed our decision in Kelsey I , the supreme court quashed the decision in Hart's case and remanded the case in light of their decision in Kelsey v. State , 206 So.3d 5 (Fla. 2016) ( Kelsey II ). See Hart v. State , 2017 WL 836804 (Fla. Mar. 3, 2017) ( Hart IV ).

II.

In Graham , the United States Supreme Court held that a juvenile offender who did not commit a homicide offense could not be sentenced to life without parole. 560 U.S. at 82, 130 S.Ct. 2011. The Supreme Court did not require that a juvenile nonhomicide offender be guaranteed eventual release. Id. at 75, 130 S.Ct. 2011. Rather, the Court held that if a life sentence was imposed on an offender who committed a nonhomicide offense as a juvenile, the offender must be provided a meaningful opportunity for release based on demonstrated maturity and rehabilitation. Id. Two years later, in Miller v. Alabama , 567 U.S. 460, 465, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Supreme Court held that juvenile offenders convicted of homicide offenses could not be sentenced to mandatory terms of life in prison without the possibility of parole.

In 2014, the Florida Legislature enacted chapter 2014-220, Laws of Florida, codified in sections 775.082, 921.1401, and 921.1402 of the Florida Statutes, with an effective date of July 1, 2014 ("new juvenile sentencing laws"). These changes to the sentencing laws were designed to provide a remedy for those offenders whose sentences were unconstitutional pursuant to Miller and Graham . The new laws were not designed as a mechanism for all offenders convicted of crimes they committed as juveniles to obtain judicial review of their sentences.

After the Legislature enacted the new juvenile sentencing laws, the Florida Supreme Court held that the new laws applied retroactively to offenses committed before the effective date of the new laws. In Horsley v. State , 160 So.3d 393, 394 (Fla. 2015), the Florida Supreme Court was called upon to decide the proper remedy for a Miller violation. The supreme court determined that the new juvenile sentencing laws provided a remedy "to all juvenile offenders whose sentences [were] unconstitutional under Miller ." Id. at 409. Horsley 's retroactive application of the new juvenile sentencing laws brought Florida's juvenile sentencing scheme into compliance with Miller and provided a remedy for all juvenile offenders with unconstitutional sentences, even if the offense was committed prior to the July 1, 2014, effective date. See Falcon v. State , 162 So.3d 954, 963 (Fla. 2015), receded from on other grounds by Williams v. State , 242 So.3d 280, 2018 WL 1007810 (Fla. Feb. 22, 2018).

The Florida Supreme Court expanded the class of juvenile nonhomicide offenders entitled to relief under Graham in Henry v. State , 175 So.3d 675, 676 (Fla. 2015). But see McCullough v. State , 233 Md.App. 702, 168 A.3d 1045 (2017) (declining to extend the holding in Graham to apply to lengthy consecutive sentences). There, the unanimous supreme court held that Graham 's prohibition against life without parole sentences for juvenile nonhomicide offenders was not limited to offenders sentenced to life imprisonment. Id. at 679-80. Instead, the supreme court held that Graham also prohibited sentences that were the functional equivalent of life sentences. Id. at 680. Henry had originally been sentenced to life imprisonment for multiple nonhomicide offenses. Id. at 676. Following Graham but before the Florida Legislature enacted the new juvenile sentencing laws, Henry was resentenced to an aggregate ninety-year prison term. Id. The supreme court held that Henry's ninety-year sentence amounted to a de facto life sentence and did not afford Henry a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" within his natural life. Id. at 679. The supreme court ordered Henry to be resentenced "in light of the new juvenile sentencing legislation enacted by the Florida Legislature in 2014, ch.2014-220, Laws of Fla." Id. at 680.

The Florida Supreme Court further expanded the class of juvenile nonhomicide offenders entitled to relief under Graham and resentencing under the new juvenile sentencing laws by extending its holding in Henry to include lengthy term-of-years sentences. Kelsey II , 206 So.3d at 5. However, the supreme court did not hold that all offenders convicted of nonhomicide crimes committed as juveniles were entitled to resentencing under Graham and the new juvenile sentencing laws. In Kelsey II , the supreme court rephrased the question certified to it as follows:

Is a defendant whose original sentence violated Graham v. Florida , 560 U.S. 48, [130 S.Ct. 2011, 176 L.Ed.2d 825] ( 2010), and who was subsequently resentenced prior to July 1, 2014, entitled to be resentenced pursuant to the provisions of chapter 2014-220, Laws of Florida?

Id. at 6. Answering the question in the affirmative, the supreme court emphasized that its holding was limited to "a narrow class of juvenile offenders, those resentenced from life to term-of-years sentences after Graham , for crimes committed before chapter 2014-220's July 1, 2014, effective date. " Id. at 10. (emphasis added).

Kelsey fit squarely within the class of offenders the supreme court held was entitled to relief. Kelsey was sentenced in 2010, to two life sentences and two concurrent twenty-five-year sentences for four nonhomicide offenses he committed when he was fifteen years old. Id. at 6. In January 2014, after Graham but before the new juvenile sentencing laws were enacted, Kelsey was resentenced to concurrent sentences of forty-five years imprisonment. Id. at 7. A majority of the supreme court concluded that Kelsey's forty-five-year sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment because it did not provide "the judicial review granted to other defendants who, like him, were sentenced to terms that [would] not provide them a meaningful opportunity for relief in their respective lifetimes." Id. at 10. However, Justice Polston, joined by Justices Lewis and Canady, dissented, concluding that Kelsey was not entitled to resentencing because his forty-five-year sentence was not a de facto life sentence and he would have a meaningful opportunity for release during his lifetime. Id. at 14.

Next, in Johnson v. State , 215 So.3d 1237 (Fla. 2017), the supreme court again considered the constitutionality of a lengthy term-of-years sentence imposed on a juvenile nonhomicide offender. The supreme court again narrowly defined the class of offenders entitled to relief under Graham and its prior decisions, stating that its holding in Kelsey II applied to "juveniles whose life sentences had been vacated pursuant to Graham , but who had not been resentenced under the new juvenile sentencing guidelines." Id. at 1239. And like Kelsey, Johnson fit squarely within the defined class of offenders the supreme court held was entitled to relief. Johnson had originally been sentenced to six concurrent life sentences for his convictions of armed burglary, armed kidnapping, attempted first-degree murder, and sexual battery using force or a weapon. Id. Johnson was resentenced pursuant to Graham , but before the new juvenile sentencing laws were enacted, and he was resentenced to 100 years in prison. Id. The supreme court held that Johnson was entitled to resentencing under the new juvenile sentencing laws, concluding that a sentence for a juvenile nonhomicide offender (1) must not provide for release only at the end of the sentence; (2) must include opportunity for release through a judicial review mechanism that considers the offender's demonstration of rehabilitation and maturity; and (3) must not provide for early release at a time beyond the offender's natural life. Id. at 1243.

In its next juvenile sentencing decision, the supreme court concluded that an offender originally sentenced to life imprisonment and then resentenced to a forty-five-year prison term was entitled to resentencing under Graham and the new sentencing laws. Lee v. State , 234 So.3d 562 (Fla. 2018). A majority of the supreme court held that Lee was entitled to resentencing because his "sentence [did] not provide him an opportunity to obtain early release based on a demonstration of maturity and rehabilitation before the expiration of the imposed term." Id. at 564.

But again, the supreme court emphasized that Lee fit squarely within the narrow class of juvenile nonhomicide offenders entitled to relief under Graham :

Lee, as was Kelsey, is serving a 40-year sentence for a nonhomicide crime that he committed when he was a juvenile. Like Kelsey, Lee was resentenced after the United States Supreme Court's decision in Graham but before the Florida Legislature passed chapter 2014-220. And, like Kelsey-and as noted in Johnson -Lee's sentence does not provide him an opportunity to obtain early release based on a demonstration of maturity and rehabilitation before the expiration of the imposed term. Accordingly, Lee is entitled to resentencing under the juvenile sentencing provisions in chapter 2014-220.

Id. at 564 ; but see id. at 564-65. (Polston, J, dissenting) (arguing that Lee's forty-year sentence was not a life sentence nor a de facto life sentence; thus, it did not violate Graham , and he was not entitled to resentencing). In discussing its decision in Kelsey II , a majority of the supreme court explained that Kelsey was entitled to resentencing for two reasons: (1) his life sentence had been vacated pursuant to Graham and (2) he was not resentenced pursuant to the new juvenile sentencing laws. Id. at 564.

The supreme court's most recent opinion addressing sentencing for juvenile nonhomicide offenders is Morris v. State , 246 So.3d 244, 2018 WL 2146786 (Fla. May 10, 2018). Morris was sentenced to thirty years' imprisonment for attempted felony murder and to fifteen years' imprisonment for attempted armed robbery. Id. at 244-45, 2018 WL 2146786 at *1. Thus, Morris was not within the class of juvenile nonhomicide offenders entitled to resentencing under Henry , Kelsey II , Johnson , and Lee . However, the supreme court held that Morris was entitled to be resentenced under the new juvenile sentencing laws. Id. at 245, 2018 WL 2146786 at *1. Three justices joined in the opinion ordering resentencing, with one justice concurring only in result. Id. at 245, 2018 WL 2146786 at *1. The remaining justices joined in a dissent authored by Justice Lawson, concluding that Morris was not entitled to resentencing pursuant to Graham because he did not receive a sentence of life imprisonment or the functional equivalent of life. Id. at 245-46, 2018 WL 2146786 at *2.

III.

The State argues that Hart is not entitled to resentencing because the narrow class of offenders entitled to relief under Henry , Kelsey II , Johnson , and Lee is limited to those defendants whose life sentences were vacated pursuant to Graham and who were resentenced before July 1, 2014. Nor is he entitled to resentencing under Graham . We agree.

In Henry , Kelsey II , Johnson , and Lee , the Florida Supreme Court very narrowly defined the class of offenders entitled to resentencing under the new juvenile resentencing laws; specifically, those defendants who originally received life sentences and who were resentenced after their sentences were vacated pursuant to Graham but before the July 1, 2014 effective date of the new juvenile sentencing laws. The defendants in Henry , Kelsey II , Johnson , and Lee fell squarely within the class definition. Hart does not. Although Hart was sentenced to life imprisonment in 2009, Hart's convictions and life sentences were vacated on grounds that the joinder of his trials involving the two victims was improper, and he was granted a new trial. Hart I , 70 So.3d at 620. On remand in 2013, Hart entered a negotiated plea and agreed to be sentenced to an aggregate term of fifty years' imprisonment. Thus, for purposes of our analysis, we look to the sentence imposed for his 2013 convictions, not the life sentences imposed for his vacated 2009 convictions. Applying the definition of the class of offenders entitled to relief under Henry , Kelsey II , Johnson , and Lee , we conclude Hart is not entitled to relief because he was never resentenced pursuant to Graham .

Nor can Hart demonstrate that his fifty-year aggregate sentence violates Graham . In order to qualify for resentencing under the new juvenile sentencing laws, Hart was required to demonstrate that his fifty-year aggregate sentence violates the Eighth Amendment and Graham . See Henry , 175 So.3d at 679. He cannot do so. Hart was not sentenced to a life sentence or a de facto life sentence. Consistent with the requirements of Graham , Hart's fifty-year sentence affords him a meaningful opportunity for release during his natural life. See Davis v. State , 214 So.3d 799, 799-800 (Fla. 1st DCA 2017) (holding that defendant's thirty-five-year aggregate sentence did not violate Graham or require resentencing under the new juvenile sentencing laws); Katwaroo v. State , 237 So.3d 446 (Fla. 5th DCA 2018) (Berger, J., concurring) (concurring in light of binding precedent, but observing that Katwaroo's thirty-year sentence did not violate Graham ).

Nonetheless, Hart argues that denying him relief would be inconsistent with the supreme court's decision granting relief to the defendant in Smith v. State , 2016 WL 7217234 (Fla. Dec. 13, 2016), quashing Smith v. State , 119 So.3d 530 (Fla. 5th DCA 2013). In Smith , a decision rendered after the remand in Hart's case, the supreme court quashed a Fifth District decision that affirmed a forty-year sentence imposed on a juvenile nonhomicide offender who had not previously been sentenced to life imprisonment. In rejecting Hart's arguments, we make two observations. First, the supreme court's remand in Smith explicitly required that Smith's case be further remanded for resentencing and cited several of the supreme court's prior decisions:

[T]he Fifth District Court of Appeal's decision in this case is quashed, and this matter is remanded for resentencing in light of the decisions Kelsey v. State , 206 So.3d 5 (Fla. 2016) ; Henry v. State , 175 So.3d 675 (Fla. 2015) ; and Gridine v. State , 175 So.3d 672 (Fla. 2015).

Smith , 2016 WL 7217234 (Fla. Dec. 13, 2016).

In its remand of Hart's case to this Court, the supreme court did not expressly require resentencing and cited only Kelsey II in its decision. Hart IV , 2017 WL 836804 (Fla. Mar. 3, 2017) ("[T]he First District Court of Appeal's decision in this case is quashed, and that this matter is remanded in light of our decision in Kelsey ."). Had the supreme court intended for this Court to further remand Hart's case for resentencing, it could have so ordered in its remand instructions. See Smith v. State , 2017 WL 2709772 (Fla. June 23, 2017) ("[T]his matter is remanded to the district court with instructions that the case be further remanded for resentencing.").

Second, Hart suggests that the supreme court's decisions in Henry and Kelsey II require that juvenile nonhomicide offenders serving a sentence longer than twenty years be resentenced and afforded the judicial review mechanism provided in the new juvenile sentencing laws. We reject this interpretation of Henry and Kelsey II . See Montgomery v. State , 230 So.3d 1256, 1265 (Fla. 5th DCA 2017) (Eisnaugle, J., concurring in result only) (" Kelsey did not hold that all juvenile sentences longer than twenty years are unconstitutional unless they include chapter 2014-220's review mechanism"). A majority of the supreme court has never held that sentences for juvenile nonhomicide offenders that exceed twenty years violate Graham and that such offenders are entitled to resentencing under the new juvenile sentencing laws. See Abrakata v. State , 2017 WL 24657 (Fla. Jan. 3, 2017) (denying review of Abrakata's twenty-five-year sentence for attempted second-degree murder). Nor has a majority of the supreme court so vastly expanded the class of offenders entitled to resentencing under Graham and the new juvenile sentencing laws. Accordingly, we decline Hart's invitation to further expand the class of juvenile nonhomicide offenders entitled to resentencing under Graham . Taken to its logical conclusion, Hart's construction of the supreme court's decisions in Henry and Kelsey II would entitle every juvenile nonhomicide offender serving a sentence exceeding twenty years to resentencing on grounds that those sentences violate the Eighth Amendment prohibition against cruel and unusual punishment. Graham does not compel such a result, nor does any binding decision from the supreme court.

Because Hart's aggregate fifty-year sentence does not violate Kelsey , Graham , or the Eighth Amendment's prohibition against cruel and unusual punishment, we affirm.

AFFIRMED .

Roberts and Kelsey, JJ., concur.

      In McCullough , the Maryland Court of Special Appeals surveyed cases throughout the United States to determine how state courts had applied the holding in Graham . Five states declined to apply Graham to "multiple term-of-years sentences for multiple offenses that, cumulatively, exceed a juvenile offender's natural life expectancy." Id. at 717. The court also found that at least five states, including Florida, had applied Graham to "aggregate term-of-years sentences imposed on juvenile offenders for multiple nonhomicide crimes when the sentences are the functional equivalent of [life without parole]." Id. at 724.

      Although the supreme court in Morris granted relief to a defendant outside the class of offenders it had defined in Henry , Kelsey II , Johnson , and Lee , the decision in Morris does not control the outcome in this case because only three justices concurred in the opinion. "Under the Florida Constitution, both a binding decision and a binding precedential opinion are created to the extent that at least four members of the Court have joined in an opinion and decision." Lee v. State , 854 So.2d 709, 716 (Fla. 2d DCA 2003) (quoting Santos v. State , 629 So.2d 838, 840 (Fla. 1994) ). Thus, we are compelled to follow the supreme court's precedents in Henry , Kelsey II , Johnson , and Lee . See Caruthers v. State , 232 So.3d 441 (Fla. 4th DCA 2017).


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    John SCHAUFLER, DOC #H21724, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1444
    District Court of Appeal of Florida, Second District.
    Opinion filed June 20, 2018
    Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

We affirm the trial court's revocation of John Schaufler's probation and the sentences imposed upon revocation without further comment. We note, however, that although the trial court recognized at the March 2017 revocation hearing that it should not re-adjudicate Schaufler guilty of the original offenses because it had already adjudicated him guilty of those offenses in May 2005 when originally imposing probation, see Butler v. State, 195 So.3d 1147, 1148 (Fla. 2d DCA 2016) ("Duplicative adjudications of guilt after revocation of probation or community control are superfluous, are unauthorized, and can cause undue confusion in future proceedings."), the record on appeal nevertheless includes a second written judgment adjudicating him guilty of the original offenses. This judgment, which was signed the same day as the revocation hearing and accompanies the written sentences imposed following revocation of his probation, was entered in error. See id. at 1148-49 ("[T]he circuit court only enters a judgment on a violation of probation in those instances when it withheld an adjudication of guilt, i.e., withheld judgment, at the time it originally imposed probation." (quoting Jackson v. State, 56 So.3d 65, 67 (Fla. 2d DCA 2011) (Altenbernd, J., concurring) ) ). Accordingly, we affirm the revocation of Schaufler's probation and the ensuing sentences but remand for vacatur of the March 2017 written judgment adjudicating Schaufler guilty a second time.

Affirmed in part; remanded with instructions.

KELLY and SLEET, JJ., Concur.


author: MORRIS, Judge.

text:
    Daryl J. MCCLELLAND, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3762
    District Court of Appeal of Florida, Second District.
    Opinion filed June 20, 2018
    Howard L. Dimmig, II, Public Defender, and Anthony W. Surber, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Daryl J. McClelland appeals his judgment and sentences for two counts of sexual battery on a person under twelve, six counts of lewd molestation, battery on a child by throwing fluids or liquids, sixty counts of possession of child pornography, and an offense against computer users. He argues that his Fourth Amendment rights were violated when an officer used a Yagi antenna to locate and identify signals emanating from his computer which was located inside his motorhome. Because we conclude that he lacked a subjective expectation of privacy that society is willing to recognize as reasonable, we affirm.

I. Background

Detectives from the Polk County Sheriff's Office were conducting an investigation regarding individuals who were downloading child pornography. That investigation led to the search of a house that was associated with an IP (internet protocol) address that had been identified as sharing child pornography. During the search, the detectives discovered that the residence had a Wi-Fi router that utilized radio signals which allowed Wi-Fi-enabled devices to connect to it to access the internet. All of the devices within that residence were searched, and the detectives determined that none of them had been used to download or share child pornography. The detectives learned that the Wi-Fi network at the residence was not encrypted with a password and thus any Wi-Fi-enabled device within range of the router could access the Wi-Fi network. The homeowner verified that he had not given permission to access the Wi-Fi network to anyone other than those persons residing within his own household. The detectives interviewed several nearby neighbors and determined that none of them were responsible for accessing the subject Wi-Fi network.

The homeowner gave the detectives permission to set up a computer in his home that would allow the detectives to remotely access and monitor his Wi-Fi network. While monitoring the network, the detectives were able to determine the local IP address and MAC address (an address that is assigned to a particular Wi-Fi-enabled device by the manufacturer) of the device that had been accessing the subject Wi-Fi network and downloading and sharing the child pornography.

The detectives then utilized the Yagi antenna from outside the residence to determine where the signal that was broadcasting the MAC address was physically located. The detectives pointed the antenna in different directions and followed the signal strength. By doing so, they determined that the MAC address in question was located inside McClelland's motorhome which was parked near the residence. While performing the signal strength test, the detectives did not enter onto McClelland's property. Once the detectives determined that the signal was emanating from within McClelland's motorhome, they obtained a search warrant. During a search of the motorhome, images of child pornography were located on McClelland's computer, and McClelland made several statements and admissions.

McClelland moved to suppress all evidence of the child pornography found on his computer as well as any statements or admissions he made. He argued that the evidence was fruit of the poisonous tree because it was obtained as a result of illegal police activity: specifically, the use of the Yagi antenna to intercept the signal emanating from his computer. In response, the State filed a motion to strike McClelland's suppression motion, arguing that McClelland did not have standing to argue a Fourth Amendment violation because he did not have a legitimate expectation of privacy since he had been illegally accessing the homeowner's Wi-Fi network.

At the suppression hearing, defense counsel argued, in relevant part, that the Yagi antenna constituted an enhanced technology which breached the expectation of privacy that McClelland had within his motorhome. The State argued that McClelland essentially stole use of the Wi-Fi network since he had not been given permission to access it by the homeowner. The State also argued that the detectives had not unlawfully reached into McClelland's motorhome because they were merely capturing the signals that were emanating from McClelland's computer outside of his motorhome and, therefore, that he had no expectation of privacy in such signals.

The trial court denied the suppression motion, concluding in relevant part that McClelland did not have a legitimate expectation of privacy because he was broadcasting wireless signals outside of the motorhome in order to access the Wi-Fi network belonging to someone else. The trial court concluded that by broadcasting the signal, McClelland was essentially turning the information over to third parties and, consequently, that McClelland had no subjective expectation of privacy. The trial court also found that any expectation of privacy here was not one that society would be willing to recognize as reasonable. Finally, the trial court concluded that the detectives' use of the Yagi antenna was lawful because McClelland was accessing a third-party's wireless network, because the antenna was in general public use and widely available, and because McClelland himself used a similar technology in order to access the network.

McClelland ultimately entered an open plea to the charges, specifically reserving his right to appeal the suppression motion. The trial court adjudicated him guilty and sentenced him to consecutive life sentences for the sexual battery and lewd molestation charges, separate terms of fifteen years in prison for counts 9-20 and 21-66 of the child pornography charges (concurrent with the life sentences but consecutive to each other), five years in prison for the battery on a child and offense against computer users charges (concurrent with each other but consecutive to the child pornography sentences), and to fifteen years of sex offender probation for two remaining child pornography counts. McClelland was also designated a sexual predator.

II. Analysis

"A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and, as the reviewing court, the appellate court must interpret the evidence and reasonable inferences and deductions therefrom in a manner most favorable to sustaining the trial court's ruling." Pilieci v. State, 991 So.2d 883, 893-94 (Fla. 2d DCA 2008) (citing Murray v. State, 692 So.2d 157, 159 (Fla. 1997) ).

While McClelland argues that the detectives conducted an unlawful search, "a Fourth Amendment search does not occur ... unless 'the individual manifested a subjective expectation of privacy in the object of the challenged search[ ]' and 'society [is] willing to recognize that expectation as reasonable.' " Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (second alteration in original) (quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) ). In Kyllo, the court held that use of a thermal imager to scan for heat signals within a person's home constituted a search because that information-i.e., the heat signals-could not have been obtained without the use of a "sense-enhancing technology" that intruded into the interior of a home, a "constitutionally protected area." Id. at 34, 121 S.Ct. 2038 (quoting Silverman v. United States, 365 U.S. 505, 512, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ). The court concluded that people have a reasonable expectation of privacy for conduct that occurs while inside their own home and, therefore, that use of a thermal imaging device without a warrant was "presumptively unreasonable." Id. at 40, 121 S.Ct. 2038.

The concept of a subjective expectation of privacy has been expanded to the use of cell phones in Florida. In Tracey v. State, 152 So.3d 504, 525 (Fla. 2014), the Florida Supreme Court held that a defendant "had a subjective expectation of privacy in the location signals transmitted solely to enable the private and personal use of his cell phone, even on public roads." The court further held that the defendant "did not voluntarily convey" those signals "to the service provider for any purpose other than to enable use of his cell phone for its intended purpose." Id. The court concluded that the defendant's expectation of privacy was reasonable and that "the use of [a defendant's] cell site location information emanating from his cell phone in order to track him in real time was a search within the purview of the Fourth Amendment for which probable cause was required." Id. at 526.

Relying on Kyllo and Tracey, McClelland asks us to conclude that he had a subjective expectation of privacy in using his computer within the confines of his motorhome and that such an expectation should be construed as reasonable. He further asks this court to conclude that the use of the Yagi antenna invades that reasonable expectation of privacy resulting in a search conducted in violation of the Fourth Amendment.

We reject the argument that the use of the Yagi antenna here constituted a search in violation of the Fourth Amendment. Unlike in Kyllo, McClelland's conduct in accessing the unencrypted Wi-Fi signal was not confined within his own home. Nor were the MAC address signals being distributed from his computer merely to enable McClelland to access the Wi-Fi signal for its intended purpose, making this case dissimilar to the cell phone signals in Tracey.

Rather, McClelland was illegally accessing (i.e., stealing) a third-party's Wi-Fi network by attaching an antenna similar to the one used by the detectives to his motorhome in order to capture the Wi-Fi signal and thereafter connecting his computer to the stolen Wi-Fi signal. By illegally accessing the Wi-Fi network, he was able to hide his identity while downloading the child pornography. In similar circumstances, other courts have rejected the argument that a defendant has an expectation of privacy that society is willing to recognize as reasonable. See, e.g., United States v. Stanley, 753 F.3d 114, 119 (3d Cir. 2014) ; United States v. Broadhurst, No. 3:11-cr-00121-MO-1, 2012 WL 5985615, at *4 (D. Or. Nov. 28, 2012).

The Stanley court recognized that use of a tracking software tool and directional antenna to locate and measure the strength of radio waves was similar to the thermal imager in Kyllo because it involved "sense-enhancing technology." Stanley, 753 F.3d at 119. But the court also distinguished Kyllo on the basis that it involved a defendant confining his activities to his own home whereas Stanley's conduct in accessing his neighbor's Wi-Fi was akin to extending "an invisible, virtual arm across the street to the Neighbor's router so that he could exploit his [i]nternet connection." Id. at 120. "In so doing, Stanley deliberately ventured beyond the privacy protections of [his own] home[ ] and[,] thus, beyond the safe harbor provided by Kyllo." Id. The court further held that "while Stanley may have justifiably expected the path of his invisible radio waves to go undetected, society would not consider this expectation 'legitimate' given the unauthorized nature of his transmission." Id. (citing Rakas v. Illinois, 439 U.S. 128, 143 n.12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ); see also Broadhurst, 2012 WL 5985615, at *4-*5 (holding that defendant could not invoke the protection of the Fourth Amendment against law enforcement's use of a handheld device to measure the strength of station device signals from the defendant's computer where the defendant was maintaining an unauthorized connection to his neighbor's unsecured Wi-Fi network and thus did not have a reasonable expectation of privacy in the signals).

We adopt the position taken by the courts in Stanley and Broadhurst and hold that McClelland cannot assert a subjective expectation of privacy that society would consider as reasonable or legitimate where McClelland did not confine his activities to the interior of his motorhome but instead extended "an invisible, virtual arm," Stanley, 753 F.3d at 120, outside the motorhome in order to illegally access the subject Wi-Fi network. The unlawful nature of the computer data that McClelland was accessing and downloading only further supports our holding. See id. Because there was no search for purposes of the Fourth Amendment, the trial court did not err in denying McClelland's suppression motion.

Affirmed.

KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.

      This type of antenna is a "highly directional and selective shortwave antenna." Webster's Third New International Dictionary 2646 (1986). The parties disagreed below about whether this type of antenna is widely available and typically used by ordinary citizens. However, there appears to be no dispute that McClelland himself was using a similar type of antenna to obtain internet access.

      It is unnecessary for us to make any determination regarding whether this was an accurate conclusion due to our agreement with the trial court that McClelland lacked an expectation of privacy that society would be willing to recognize as reasonable.

      This court has, in other contexts, acknowledged that an expectation of privacy in stolen property is not one which society would recognize as reasonable. Cf. Hendley v. State, 58 So.3d 296, 299-300 (Fla. 2d DCA 2011) ; Hicks v. State, 929 So.2d 13, 16-19 (Fla. 2d DCA 2006).

      Based on our conclusion that society would not consider McClelland's expectation of privacy as reasonable, it is unnecessary for us to determine whether McClelland voluntarily exposed his IP and MAC addresses, though we express some doubt that McClelland could successfully argue that the emanation of signals from his computer were involuntary where he also utilized an antenna to amplify the signals emanating from his computer in order to connect to the subject Wi-Fi network. See Broadhurst, 2012 WL 5985615, at *5 (concluding that defendant "voluntarily sent out a signal to amplify access point signals and attach to third parties' networks with his computer" and, therefore, that "[d]efendant cannot assert a reasonable expectation of privacy in signals he intentionally emitted to connect to unauthorized networks"). But see Stanley, 753 F.3d at 122-23 (rejecting argument that defendant voluntarily exposed his signal thereby assuming the risk that it would be revealed to law enforcement and thus nullifying any expectation of privacy where law enforcement had to employ use of software and an antenna in order to determine the strength of defendant's signal).


author: CRENSHAW, Judge.

text:
    Franklin Kinglands JOHNSON, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1316
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018.
    Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Franklin Johnson appeals his judgment and sentences for battery on a law enforcement officer and obstructing or opposing an officer with violence. He argues that the court failed to offer counsel, failed to conduct an adequate Faretta inquiry, and erred in accepting his waiver of the right to counsel at various critical stages. Because the court failed to offer counsel to Johnson and failed to conduct a Faretta inquiry before permitting him to represent himself during plea negotiations, which is a critical stage, we reverse.

"Every person accused of [a] crime has a right to have counsel to aid him in his defense ...." Cutts v. State, 54 Fla. 21, 45 So. 491, 492 (Fla. 1907) (quoting Barnes v. Commonwealth, 92 Va. 794, 23 S.E. 784 (1895), overruled in part by Council v. Commonwealth, 198 Va. 288, 94 S.E.2d 245 (1956) ). This right attaches at a critical stage of the proceedings, and the defendant-if unrepresented-must be informed of this right and the consequences of a waiver. Wilson v. State, 76 So.3d 1085, 1087-88 (Fla. 2d DCA 2011) (quoting Traylor v. State, 596 So.2d 957, 968 (Fla. 1992) ). Conversely, the defendant has the right to conduct his own defense. Art. 1, § 16, Fla. Const.; see also Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The Sixth Amendment, when naturally read ... implies a right of self-representation."). If the defendant chooses to avail himself of this right and waive the assistance of counsel, the court must inquire of the defendant to determine whether the waiver is knowing and intelligent. Tennis v. State, 997 So.2d 375, 378 (Fla. 2008). If the court then finds that the waiver is knowing and intelligent the defendant must be permitted to represent himself. Traylor, 596 So.2d at 968. "[T]he waiver is only valid at that stage and the court must renew the offer of counsel at each crucial stage as long as the defendant is unrepresented." Hyden v. State, 117 So.3d 1, 4 (Fla. 2d DCA 2011) ; see also Fla. R. Crim. P. 3.111(d)(5).

Johnson represented himself throughout the entire proceedings. He argues that the first Faretta inquiry on June 9, 2015, was inadequate; that he was not offered counsel at the competency hearing on September 1, 2015, or at the follow up to the competency hearing on November 9, 2015; and that the court erred in accepting his waiver of the right to counsel at the second Faretta inquiry on February 1, 2016, prior to jury selection. We agree with Johnson that the failure to offer counsel and conduct a Faretta inquiry at the November 9, 2015, hearing was error. As such, we need not address his remaining claims.

At the November 9, 2015, hearing the court initially reiterated the concerns it had regarding Johnson's competency, noted that both doctors had found Johnson competent following their evaluations on September 1, 2015, and made its own finding that Johnson was competent. The court then entertained plea negotiation during which the State offered five years' prison, which Johnson rejected. The court also scheduled the pretrial conference for January 26, 2016, and trial for the first week in February. At no point did the court extend to Johnson the assistance of counsel or conduct a Faretta inquiry.

"[T]he plea bargaining stage is a critical one." Alcorn v. State, 121 So.3d 419, 422 (Fla. 2013) ; see also Padilla v. Kentucky, 559 U.S. 356, 373, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ("[W]e have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel." (citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ) ); see also Missouri v. Frye, 566 U.S. 134, 144, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) ("In today's criminal justice system ... the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.... [A] plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. 'Anything less ... might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.' " (quoting Massiah v. United States, 377 U.S. 201, 204, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) ) ). Because plea negotiation is a critical stage and Johnson was unrepresented, the court should have offered him the assistance of counsel and if waived, inquired of him to determine whether the waiver was knowing and intelligent before permitting him to engage in plea negotiation with the State. See Segal v. State, 920 So.2d 1279, 1280 (Fla. 4th DCA 2006) ("[O]nce counsel has been waived under Faretta, the offer of assistance of counsel must be renewed by the court at each subsequent stage of the proceedings." (citing Fla. R. Crim. P. 3.111(d)(5) ; Traylor, 596 So.2d at 968 ) ). " Faretta and [Florida Rule of Criminal Procedure] 3.111(d)(2) place the duty on the trial court to safeguard an accused's right to self-representation." Betts v. State, 157 So.3d 376, 380 (Fla. 2d DCA 2015).

The court's failure to offer counsel and properly safeguard Johnson's right to self-representation at the point of plea negotiation was not harmless. "Failure to renew the offer of counsel at a critical stage and conduct a Faretta inquiry if the defendant rejects the renewed offer is per se reversible error." Alexander v. State, 224 So.3d 804, 806 (Fla. 2d DCA 2017) (emphasis omitted) (quoting Brooks v. State, 180 So.3d 1094, 1096 (Fla. 1st DCA 2015) ); Howard v. State, 147 So.3d 1040, 1043 (Fla. 1st DCA 2014) (stating the same principle). Thus, Johnson is entitled to a new trial.

Reversed and remanded for new trial.

SILBERMAN and SLEET, JJ., Concur.

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

      The terms "critical stage" and "crucial stage" are used interchangeably. Sims v. State, 135 So.3d 1098, 1101 (Fla. 2d DCA 2013). "[A] 'crucial stage' is any stage that may significantly affect the outcome of the proceedings." Traylor v. State, 596 So.2d 957, 968 (Fla. 1992).


text:
    Minor Clinton CATLEDGE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2306
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Andy Thomas, Public Defender, and John J. Knowles, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

Minor Clinton Catledge, Jr. challenges his sentence for false imprisonment, asserting that the trial judge violated his due process rights by basing his sentence on his lack of remorse and failure to accept responsibility. We disagree and affirm. In seeking mitigation of his sentence, Catledge injected the issue of remorse into the proceedings, and the trial court was permitted to consider all factors relevant to mitigation, including Catledge's remorse or lack thereof.

Facts

Catledge was charged with false imprisonment and battery on a person 65 years of age or older. The charges arose from an incident involving Catledge's 73-year-old mother-in-law, Annie Smith. At trial, the jury heard conflicting versions of the incident: Smith claimed Catledge grabbed her, pushed her onto her bed, and forced himself on top of her for approximately 15 minutes; Catledge explained that he was checking Smith's water heater when he slipped, fell onto the edge of bed where Smith was sitting, and was unable to stand up immediately due to his back injury. The jury acquitted Catledge of the battery charge, but found him guilty of false imprisonment.

Before sentencing, the trial court ordered a presentence investigation report (PSI). At the sentencing hearing, the State informed the court that Catledge scored a total of 36 points for the false imprisonment charge. The lowest permissible sentence was a term of probation, the highest 5 years' imprisonment. The State asked the court to impose the highest possible sentence, arguing Smith had lost her sense of security and required protection from Catledge. The State presented one witness, Catledge's brother-in-law, who testified about the impact the incident had on Smith's life and how Smith feared Catledge would retaliate against her once he was released from jail. Smith was at the hearing but declined to make a statement.

After a lengthy discussion of what the court described as "mitigating explanations," Catledge's attorney requested the court withhold adjudication and sentence Catledge to time served. He indicated that Catledge would be agreeable to conditions such as the entry of a no-contact order or completion of an anger management course. He pointed to inconsistences in Smith's trial testimony. He argued that the incident giving rise to the charges did not involve violence and emphasized that Catledge had no prior felony convictions. He presented the testimony of Catledge's wife (Smith's daughter), who testified Catledge was not a violent person and was not a danger to her mother.

Catledge elected to make a statement on his own behalf. He initially maintained that he never touched Smith and revealed that he intended to sue her for libel and slander. He also made statements reasonably interpreted as threats against his brother-in-law, who he believed had lied to the court. The sentencing court cautioned Catledge against such statements, noting he was currently before the court for sentencing on a violent crime. When asked if he had anything else to say, Catledge responded "I'm sorry she's upset. I'm sorry this all happened. I wish I'd of never went over there to help her.... I honestly do. I mean, this is - this is - I just don't know what to say."

The court then questioned Catledge about two incidents listed on his PSI, including a 2014 incident during which Catledge had become "loud, argumentative, rude and hostile" with a clerk at the Wakulla County Clerk's office. Catledge denied being hostile and explained he was upset over what he perceived was an unfair speeding ticket and late fee. During this exchange with the court, Catledge offered an explanation about his separate, 10-year-old conviction for misdemeanor stalking and claimed he was wrongfully accused.

After hearing testimony from the witnesses and arguments from counsel, the sentencing court indicated it was contemplating a mixed sentence involving a probationary term and an anger management course, with incarceration as a reinforcement. The State opposed:

[STATE]: Your Honor, I think that for the safety of this particular victim, how she feels, that prison is the only answer.
I can say that I wrote how many times the defense counsel talked about lack of violence, lack of this. What about lack of any type of remorse? Have we heard any one word here how sorry he is what happened?
[COURT]: Well, he did say he was sorry that it happened and that he ever got into it, but -
[STATE]: Yeah, sorry that it happened. Not that he's sorry how it has affected her or the fact that her life was changed on that particular night.... And, in fact, such a lack of remorse that he's so angry that he decides that if he gets out, he's going to sue her.
[S]ome of the comments that were made, this defendant has absolutely no remorse.

After a 15-minute recess, the court announced its sentence:

After due consideration of the evidence and the really persuasive arguments of counsel, and consideration of defendant's demeanor and his testimony, the contents of the PSI, the Court finds that the defendant presents to others as an angry, difficult person, looks for trouble. Family members fear him and/or avoid him for various reasons.
...
There's no other explanation for what happened here, and, and - or more importantly, why it happened, except that the most likely explanation to the Court is that the defendant's anger and behavior reached some point, an unacceptable level, and he said and he did things to the wrong person in the wrong circumstances.
...
What we do know is the defendant's been found guilty of a crime of violence without any reason or legal excuse. Defendant's personality, lack of remorse, and his failure to shoulder blame for any of the questionable activities in which he's been involved in the past were, on the night that the incident occurred, kind of leaves this Court with no alternative, except to protect the safety of the community and the people in the community by adjudicating him guilty and to sentence him to confinement in the Florida State Penitentiary for a period of 60 months, less credit for 277 days' time served.

Catledge asserts that these statements by the court amounted to impermissible comments on his failure to show remorse and unwillingness to admit guilt. He claims the court violated his due process rights and seeks resentencing before a different judge.

Analysis

"A sentencing court has wide discretion regarding the factors it may consider when imposing a sentence." Bracero v. State , 10 So.3d 664, 665 (Fla. 2d DCA 2009). As a general rule, however, a sentencing court may not base its sentencing decision on a defendant's lack of remorse or failure to take responsibility. Hayes v. State , 150 So.3d 249, 251 (Fla. 1st DCA 2014). "The stated reason for the general rule ... is to ensure that a defendant is not unfairly punished for his plea of not guilty and the exercise of his constitutional rights to remain silent and to proceed to a jury trial." Corbitt v. State , 220 So.3d 446, 450-51 (Fla. 5th DCA 2016) (citing Holton v. State , 573 So.2d 284, 292 (Fla. 1990) ). "[W]here 'a statement made by the trial court can reasonably be read only as conditioning the sentence, at least in part, upon appellant's claim of innocence,' fundamental error occurs." Macan v. State , 179 So.3d 551, 553 (Fla. 1st DCA 2015) (citing Jackson v. State , 39 So.3d 427, 428 (Fla. 1st DCA 2010) ); see also Kenner v. State , 208 So.3d 271, 277 (Fla. 5th DCA 2016) ; Davis v. State , 149 So.3d 1158, 1159-60 (Fla. 4th DCA 2014) ; Green v. State , 84 So.3d 1169, 1171 (Fla. 3d DCA 2012).

But it is not constitutionally impermissible for the sentencing court to consider a defendant's lack of remorse or failure to accept responsibility in all cases. The trial court may properly consider whether a defendant is remorseful when determining whether or not to mitigate a sentence. Rankin v. State , 174 So.3d 1092, 1097 (Fla. 4th DCA 2015) ; see also Corbitt , 220 So.3d at 450 (holding statement on defendant's lack of remorse and failure to accept responsibility "was made as the trial judge was attempting to find mitigating factors to consider in imposing the sentence"); Godwin v. State , 160 So.3d 497, 498 (Fla. 2d DCA 2015) ("[W]e agree ... that in context, the trial court's comments at sentencing were made in connection with its rejection of the argument for mitigation."); Shelton v. State , 59 So.3d 248, 250 (Fla. 4th DCA 2011) ("We perceive the court's comments regarding the defendant's lack of remorse as the court's recognition that it lacked any grounds to mitigate his sentence."); Ritter v. State , 885 So.2d 413, 414 (Fla. 1st DCA 2004) (citing K.N.M. v. State , 793 So.2d 1195, 1198 (Fla. 5th DCA 2001) ) ("Although remorse and an admission of guilt may be grounds for mitigation of a sentence, the opposite is not true.").

Thus, there is a critical distinction between instances where a sentencing court improperly relies on a defendant's lack of remorse in fashioning its sentence , and instances where a sentencing court properly relies on a defendant's lack of remorse in the context of mitigation . Where a sentencing court's comments regarding lack of remorse can be reasonably read as merely a "recognition that it lacked any grounds to mitigate [the] sentence," no due process violation occurs. See Shelton , 59 So.3d at 248 ; Green , 84 So.3d at 1171 n.3 (noting that "a sentencing court is free to conclude that a defendant seeking a reduction, mitigation, or downward departure of a sentence, based upon a claim of remorse or acceptance of responsibility, has failed to make such a showing").

Here, Catledge sought mitigation of his sentence, requesting that the court sentence him to time served and that the court withhold adjudication. Catledge's scoresheet reflected 36 points, thus the sentencing guidelines permitted as the lowest permissible sentence a term of probation. Catledge's attorney emphasized that this was Catledge's first felony conviction and argued that the incident giving rise to the charges was isolated and involved no violence. Although he testified that he never touched Smith, Catledge later acknowledged touching her, characterizing the incident as an accident. At one point, he admitted he was sorry "she's upset," that "this all happened," and stated that he "wish[ed] I'd of never went over there to help her."

Once Catledge made his arguments in support of mitigation, including his statement of apology, the State was permitted to rebut them. See Eaglin v. State , 19 So.3d 935, 946 (Fla. 2009) (citing Singleton v. State , 783 So.2d 970, 978 (Fla. 2001) ). The State attacked Catledge's purported apology and argued that his testimony demonstrated an aggressive demeanor and inability to take responsibility for his actions.

Because Catledge sought mitigation, the court was permitted to rely on the arguments of the parties to determine whether to impose a more lenient sentence. In this context, the trial court's comments on Catledge's lack of remorse and failure to accept responsibility were made in rejection of Catledge's arguments for mitigation, including his characterization that he was not a violent person and that the incident was an accident.

Further, this is not a case where a defendant remained silent at sentencing and the trial court equated the defendant's silence to a lack of remorse, "caus[ing] an impermissible chilling effect upon a defendant's due process rights." Green , 84 So.3d at 1172. Nor is this a case where a defendant sought a guidelines sentence and apologized for his actions only to have the trial court expressly rely on the insincerity of the apology when fashioning its sentence. Rather, this is a case where the trial court was faced with a request for mitigation and properly weighed the competing evidence, including the defendant's testimony that he was sorry and the State's argument that he was not sorry, before imposing a sentence within the guidelines. As the Third District in Green cautioned:

A defendant who chooses to speak at sentencing and attempts simultaneously to express remorse while maintaining his innocence, does so at the risk that the trial judge will find such expressions of remorse insincere, exposing a defendant to the possibility of a harsher sentence.

Id.

In seeking mitigation, Catledge expressly said he was sorry for what happened to Smith. The State permissibly rebutted his arguments, and the trial court was entitled to weigh all of the evidence in its determination of whether or not to mitigate. Because the trial court's statements were made in determining whether to mitigate Catledge's sentence, they do not constitute fundamental error. We AFFIRM the trial court's imposition of judgment and sentence.

Roberts and Winokur, JJ., concur.


text:
    Stephen BREWSTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3196
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018 Rehearing Denied October 24, 2018
    Stephen Brewster, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   CRENSHAW, Judge.

Stephen Brewster appeals an order summarily disposing of his amended motion for postconviction relief and motion to supplement postconviction relief filed under Florida Rule of Criminal Procedure 3.850. The postconviction court denied grounds six and thirteen of the amended motion because the claims of illegal sentence, filed under rule 3.800(a), were refuted by the record or otherwise lacked merit. We affirm the denial of grounds six and thirteen without comment. The postconviction court struck grounds one through five, seven through twelve, and fourteen through seventeen of the amended motion as successive. This was error.

Where a defendant files an amended motion before the postconviction court rules on the original motion and before the two-year time limit has expired, it is error for the postconviction court not to consider the merits of the new allegations. Pritchett v. State, 884 So.2d 417, 418 (Fla. 2d DCA 2004) (citing Gaskin v. State, 737 So.2d 509, 518 (Fla. 1999), receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla. 2004) ); cf. Hempstead v. State, 980 So.2d 1254, 1258 (Fla. 2d DCA 2008) (holding that amendments made to a motion after the postconviction court ruled on the original motion were improper, successive motions).

Here, the mandate in Mr. Brewster's direct appeal issued on May 7, 2015. Mr. Brewster filed his initial "petition for writ of habeas corpus" on October 14, 2014, and a motion to supplement the petition on October 15, 2014. The postconviction court summarily denied the petition and supplement in an order dated March 9, 2015. In Brewster v. State, 203 So.3d 956 (Fla. 2d DCA 2016), this court reversed and remanded that order, along with four other postconviction court orders that ruled upon a total of seven motions for postconviction relief, finding that the postconviction court lacked jurisdiction to enter orders on the postconviction motions because the mandate in the direct appeal had not yet issued.

On January 30, 2017, Mr. Brewster filed the instant amended motion for postconviction relief, and on February 8, 2017, Mr. Brewster filed a supplement to the amended motion. The postconviction court did not start ruling on the remanded motions until July 5, 2017. The amended motion and the supplement were both filed before the postconviction court had ruled upon any of the remanded postconviction motions, and within rule 3.850(b)'s two-year time limit. Therefore, it was error for the postconviction court not to consider the claims raised in the amended motion and supplement. See Pritchett, 884 So.2d at 418.

Accordingly, we affirm in part, reverse in part, and remand for the postconviction court to address the merits of grounds one through five, seven through twelve, and fourteen through seventeen of Mr. Brewster's amended motion.

Affirmed in part, reversed in part, and remanded.

LaROSE, C.J., and LUCAS, JJ., Concur.