author: NORTHCUTT, Judge

text:
    David John JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-267
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018
    Jason M. Reid of The Law Offices of Carlson & Meissner, Bradenton, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge

David John Jones appeals an "order clarifying defendant's sentence" that imposed special conditions of sex offender probation. Jones contends that adding sex offender probation conditions subsequent to his sentencing violated double jeopardy principles. Failing that, he maintains that the specific conditions restricting his contact with or proximity to children were improper. We reverse.

In 2013 Jones entered a negotiated plea to traveling to seduce/solicit/entice a child to commit a sex act (count two), in violation of section 847.0135(4)(a), Florida Statutes (2012), and to transmission of material harmful to minors (count three), in violation of section 847.0138(2), Florida Statutes (2012). He was sentenced to 25.05 months' prison followed by six years' probation on both counts, with a designation of sex offender probation on count two.

At the plea hearing and again at the sentencing hearing, it was agreed by all present that there had been no actual victim under age eighteen and sex offender probation conditions required in cases involving minor victims would not apply. Accordingly, the court entered a form order of sex offender probation that set forth the statutory special conditions attendant to sex offender probation. Consistent with the plea agreement, the court checked a box to implement the following qualification: "No victim under 18, therefore, no prohibition as to contact with minors as a condition of Sex Offender Probation."

Notably, at the sentencing hearing the judge did not orally enumerate the special conditions associated with the sex offender probation. This was significant because traveling to seduce/solicit/entice a child to commit a sex act is not an enumerated offense for which sex offender probation is mandatory under section 948.30(1), Florida Statutes (2012). Special conditions of sex offender probation may be imposed for a nonenumerated offense if they are reasonably related to the offense or to future criminality. Villanueva v. State, 200 So.3d 47, 53 (Fla. 2016). But after Jones was sentenced the First District held that for an offense that is not enumerated under section 948.30(1), the component conditions of sex offender probation must be orally announced at sentencing and that those not orally announced must be stricken. Snow v. State, 157 So.3d 559, 561-62 (Fla. 1st DCA 2015), quashed on other grounds, No. SC15-536 (Fla. 2016), clarified on remand, 193 So.3d 1091 (Fla. 1st DCA 2016).

After Jones completed the incarcerative portion of his sentence, the State filed a motion asking the trial court to clarify the sentence by orally announcing specific special conditions of sex offender probation as required by Snow. Over defense counsel's objection, the court granted the State's motion, orally enumerated the special sex offender probation conditions to be included in Jones's sentence, and entered a written order reflecting the clarification. Both the oral pronouncement and the written order imposed conditions restricting Jones's contact with or proximity to minors.

While this appeal was pending, the Fourth District released its decision in Levandoski v. State, 217 So.3d 215 (Fla. 4th DCA 2017), disagreeing with the holding in Snow. "When a court clearly imposes sex offender probation as a special condition of probation, it need not individually specify each item contained within the umbrella of sex offender probation conditions." Id. at 219. The supreme court recently resolved the conflict in favor of the Fourth District's position. Levandoski v. State, 43 Fla. L. Weekly S258 (Fla. June 7, 2018).

Levandoski pleaded no contest to two charges for which sex offender probation is not mandatory. He requested that he be sentenced to a downward departure sentence of house arrest with the terms of sex offender probation included therein. Id. at S258. The trial court sentenced him to prison followed by sex offender probation. Id. Subsequently, Levandoski unsuccessfully moved to strike the conditions of sex offender probation on the ground that they were special conditions that were not orally pronounced. Id. The supreme court held that Levandoski was on notice of the conditions of sex offender probation because his request for such exhibited an understanding of said conditions and the trial court's oral pronouncement of the sentence implicitly referenced sex offender probation by imposing a condition found exclusively within section 948.30. Id. at S259-260.

In our case, Jones entered a negotiated plea to sex offender probation for a nonenumerated offense. Under Levandoski, Jones must be deemed to have been on notice of the special conditions of sex offender probation and their oral and written impositions were effective at his initial sentencing. In light of this, the State's effort to have Jones's sentence clarified to comply with the requirements of Snow proved unnecessary; the ensuing oral pronouncement and written order are superfluous.

Regarding Jones's second argument, the parties' plea agreement exempted Jones from sex offender probation conditions that are required when the victim was under the age of eighteen. This agreement was incorporated into the oral sentence, and it was reflected in the written sentencing documents. "Because probation is considered a sentence in Florida, an enhancement or extension of the conditions of probation after the conclusion of the sentencing hearing generally constitutes a violation of the double jeopardy prohibitions of the United States and Florida constitutions." Burkhart v. State, 974 So.2d 1203, 1204 (Fla. 1st DCA 2008). Here, the trial court improperly enhanced Jones's sentence by adding conditions of sex offender probation that are required when the victim was under eighteen.

Because the order clarifying Jones's sentence is superfluous generally and violates double jeopardy insofar as it purports to impose sex offender probation conditions from which Jones was exempted at his initial sentencing, we reverse the order in its entirety.

LUCAS, J., and CASE, JAMES, ASSOCIATE SENIOR JUDGE, Concur.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    Calvin LEWIS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D18-1126
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018
    Julianne M. Holt, Public Defender, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent.
   BLACK, Judge.

Calvin Lewis petitioned this court for a writ of prohibition to prevent his further prosecution for first-degree murder following the trial court's denial of his motion to dismiss based upon Stand Your Ground immunity under section 776.032(1), Florida Statutes (2017). We deny the petition without further discussion. Accordingly, the stay imposed by this court's order issued on March 23, 2018, is hereby lifted. We write to call attention to a procedural concern that is well illustrated by the facts of this case.

Lewis filed his motion to dismiss in the trial court on August 31, 2017. The court held an evidentiary hearing on the motion on November 3 and November 9, 2017. The court rendered its order denying the motion to dismiss on December 18, 2017. The jury trial in Lewis's first-degree murder case was then scheduled to begin on March 26, 2018. Thereafter, on February 1, 2018, Lewis filed a motion for clarification of the court's order, specifically requesting that the trial court make additional findings of fact and state which facts and testimony it relied upon in reaching its conclusion. The trial court rendered an order denying the motion for clarification on February 13, 2018. Lewis did not file his petition for writ of prohibition until Thursday, March 22, 2018, four days before his trial was scheduled to begin.

The complexity of the issues raised in the petition were not amenable to resolution without obtaining a response from the State and could not be resolved before the March 26 trial date. As a result, we issued an order to show cause on March 23, 2018, thereby staying the underlying proceedings.

Lewis could have filed his petition in this court as soon as the trial court denied his motion in December 2017. Alternatively, Lewis could have filed his petition immediately upon receipt of the order denying his motion for clarification. Instead he waited well over a month until the eve of a jury trial in a first-degree murder case to file the petition. Moreover, there is no requirement that the trial court make express findings of fact in an order denying a motion to dismiss pursuant to section 776.032.

Substantive law provides that the denial of Stand Your Ground motions to dismiss be challenged by prohibition. Little v. State, 111 So.3d 214, 216, 216 n.1 (Fla. 2d DCA 2013). But there is no jurisdictional timeframe for the filing of a petition for writ of prohibition. Compare Fla. R. App. P. 9.100(c), with Fla. R. App. P. 9.100(e). Here, the absence of a procedural process or, at a minimum, a jurisdictional timeframe for filing the petition for writ of prohibition resulted in the delay-at the last moment-of a first-degree murder trial. The last minute trial cancellation undoubtedly caused a significant hardship on the parties, witnesses, and the trial court. The fact that neither the Florida Rules of Criminal Procedure nor the Florida Rules of Appellate Procedure address the timing of Stand Your Ground motions to dismiss or petitions for writ of prohibition means that there is the potential for abuse by virtue of a defendant seeking what amounts to a last minute continuance.

We encourage the Florida Bar Criminal Rules Committee and the Florida Bar Appellate Rules Committee to consider the need for rules addressing this issue. It would seem to be preferable for there to be a set time period for challenging these types of orders so that a trial court could refrain from setting trial until such time as the court knows that its ruling will not be subject to interlocutory review. We further note that in this case nothing in Lewis's initial filings in this court reflected the fact that a trial was scheduled to begin within days. It would be prudent for petitioners in this court to notify us that a trial or hearing in the lower court is imminent and that the matter filed in this court should be resolved before those proceeding go forward.

Petition denied.

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


author: PER CURIAM.

text:
    WOODFIELD COMMUNITY ASSOCIATION, INC., and Robert Dray, Appellants, v. Alexandra ORTIZ, a minor, BY AND THROUGH Robert ORTIZ and Elizabeth Ortiz, as Parents and Natural Guardian of Alexandra Ortiz and Individually, Appellees.
    Case No. 2D18-341
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018.
    Anthony J. Petrillo, Michael H. Kestenbaum and Lauren E. Wages of Luks, Santaniello, Petrillo & Jones, Tampa, for Appellants.
    C. Todd Marks, Kelly M. Albanese and Kylie M. Caporuscio of Westchase Law, P.A., Tampa, for Appellees.
   PER CURIAM.

The Ortiz family lives in a home in Woodfield, a deed restricted community in Tarpon Springs. The Ortizes often parked vehicles in the street near their house, but the Woodfield Community Association contended that violated the parking restrictions contained in Woodfield's recorded community declaration. Eventually, the association issued the Ortizes a fine. The Ortizes then filed a lawsuit against the association.

In the first count of their complaint, the Ortizes sought a declaratory judgment to have the recorded declaration's parking restrictions deemed void and unenforceable. The Ortizes filed a motion for summary judgment on that count, which, following a hearing, the trial court granted. In its order, the court declared the fine void and enjoined the association from imposing any further fines against the Ortizes under the recorded declaration. The association now seeks review of the trial court's order.

Generally, orders that merely grant partial summary judgment, such as the one before us, are considered nonfinal, nonappealable orders. See, e.g., Gator Boring & Trenching, Inc. v. Westra Constr. Corp., 210 So.3d 175, 180 (Fla. 2d DCA 2016) ("The trial court's orders are nonfinal and nonappealable to the extent that they grant a partial summary judgment in favor of Westra...."); Wahl v. Taylor, 926 So.2d 488, 489 (Fla. 2d DCA 2006) (observing that "an order merely granting a motion for summary judgment is not a final order because it does not enter judgment for or against a party"). However, Florida Rule of Appellate Procedure 9.130(a)(3)(B) provides us jurisdiction to review the portion of the order enjoining the association from enforcing the recorded declaration. See, e.g., Hasley v. Harrell, 971 So.2d 149, 151-52 (Fla. 2d DCA 2007) (declining to exercise jurisdiction over partial final judgment entered in a noncompete agreement dispute, except "insofar as it granted an injunction"). That is as far as our jurisdiction extends in the appeal before us. See Aaoep USA, Inc. v. Pex German OE Parts, LLC, 202 So.3d 470, 471-72 (Fla. 1st DCA 2016) ("[O]ur jurisdiction to review non-final orders granting injunctive relief under rule 9.130(a)(3)(B) does not extend to afford review of certain other matters the non-final order addresses."). Accordingly, the association's appeal, which challenges several aspects of the summary judgment ruling that do not pertain to injunctive relief, must be dismissed without prejudice to any litigant's right to challenge future appealable orders entered in this case. See id.

With regard to the injunction the trial court fashioned in its order, we agree with the association's argument that the injunction did not comply with Florida Rule of Civil Procedure 1.610(c). Rule 1.610(c) provides, in relevant part, that "[e]very injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document, and shall be binding on the parties in the action." The order before us does not include specific reasons for its entry. See Kirkland v. PeoplesSouth Bank, 70 So.3d 662, 664 (Fla. 1st DCA 2011) ("Where a trial court fails to include specific reasons for issuing an injunction, the reviewing court must reverse." (citing Premier Lab Supply, Inc. v. Chemplex Indus., Inc., 10 So.3d 202, 206-07 (Fla. 4th DCA 2009) ; Hasley, 971 So.2d at 152-53 ). Accordingly, we must reverse and remand for the trial court to enter an order that comports with the requirements of rule 1.610(c).

Dismissed in part, reversed in part, and remanded with instructions.

KELLY, VILLANTI, and LUCAS, JJ., Concur.

      "Appeals to the district courts of appeal of non-final orders are limited to those that ... (B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions."


author: NORTHCUTT, Judge.

text:
    Elton BOLDUC, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2767
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018
   NORTHCUTT, Judge.

Elton Bolduc filed a timely motion for correction of jail credit pursuant to Florida Rule of Criminal Procedure 3.801. The postconviction court summarily denied the motion, but it did not attach portions of court records conclusively refuting Bolduc's jail credit claim as required by rule 3.801(e). Thus, we reverse and remand for further proceedings on that claim. In the same motion, Bolduc also alleged that he was entitled to prison credit. The postconviction court should have treated the prison credit claim as filed pursuant to rule 3.800(a), and we reverse and remand for further proceedings on that claim, as well.

Bolduc requested an award of credit for time he spent in the Marion County Jail and the Department of Corrections (DOC) before returning to Pinellas County to stand trial on attempted murder charges. He alleged that on October 10, 2011, he was detained in Marion County for offenses committed therein and that the Pinellas County warrant was executed the next day. Bolduc claimed that he was later sentenced to prison on the Marion County charges and then transferred to DOC custody before being returned to Pinellas County. He complained that he was only awarded jail credit against the Pinellas County prison sentences from the date he was brought from DOC custody and held in Pinellas County prior to trial.

The State asserted that the Pinellas County warrant was not served until April 2, 2012, the date of Bolduc's return to Pinellas County. It attached to its response a purported printout from the Marion County Jail database. The State claimed that the printout demonstrated that Bolduc was not served with the Pinellas County warrant while housed in the Marion County Jail. The copy of the printout in our record is partially illegible, and there is nothing whatsoever to indicate that it is from the Marion County Jail database. The postconviction court relied on the State's response in denying Bolduc's motion. It did not attach any Pinellas County court files or records to its order of denial.

A defendant is entitled to receive jail credit for an offense after a warrant has been executed while he is being held in jail in another county; he is not entitled to jail credit on the basis of a detainer unless he is subject to release and is being held solely on the detainer. See Gethers v. State, 838 So.2d 504, 506-08 (Fla. 2003). If the warrant in this case was executed on October 10, 2011, as Bolduc claims, he is entitled to significant additional jail credit. We note, however, that a rule 3.801 motion is not the proper vehicle to seek an award of prison credit and that this claim is properly raised in a motion filed pursuant to rule 3.800(a). See Curtis v. State, 197 So.3d 135, 136 (Fla. 2d DCA 2016). On remand, the trial court should treat the prison credit claim as if it had been filed pursuant to rule 3.800(a). Id.

Rule 3.801(e) incorporates rule 3.850(f), which provides that if the postconviction court summarily denies a motion for relief, it must attach copies of court files or records that conclusively refute the claim. See Gibbs v. State, 175 So.3d 915, 918 (Fla. 2d DCA 2015). The same requirement applies to summary denials of prison credit claims under rule 3.800(a). See, e.g., Agharaumunna v. State, 126 So.3d 266, 267-68 (Fla. 3d DCA 2010). In the present case, the postconviction court relied on an illegible, unauthenticated, and possibly inapposite computer printout, not court files or records. Therefore, we reverse the order summarily denying Bolduc's motion. If the postconviction court again summarily denies the rule 3.801 motion for jail credit or the rule 3.800(a) motion for prison credit, it shall attach copies of court files or court records that conclusively refute Bolduc's claims. See Ayala v. State, 231 So.3d 582, 582-83 (Fla. 2d DCA 2017).

Reversed and remanded with instructions.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: Osterhaus, J.

text:
    Bryan Anthony COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1586
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Osterhaus, J.

Bryan Anthony Cooper appeals his 60-month sentence for felony battery. He argues that the trial court erred by not determining whether he willfully failed to appear at a sentencing hearing before departing from the 22-month plea deal. We affirm because Mr. Cooper failed to preserve this argument below.

After the State charged Mr. Cooper for crimes associated with stabbing and hitting another person in the head with a metal pipe, he accepted a plea offer of 22 months incarceration on a felony battery charge. The trial court set Mr. Cooper's sentencing hearing for a later date and told him that if he didn't show, his sentence would be at the court's discretion. He then failed to appear at the scheduled sentencing hearing. After his subsequent arrest, Mr. Cooper appeared back before the trial court, whereupon he was sentenced to 60 months. The trial court acknowledged that if Mr. Cooper would have appeared, he would have gotten the 22 months under the plea deal. But because he failed to appear and provided no explanation for failing to appear, the court increased his sentence. At no time did Mr. Cooper object to the sentence below.

Mr. Cooper argues now that we must reverse because the trial court increased his sentence without expressly determining whether his failure to appear was willful. In Palmore v. State , we recognized that a non-willful failure to appear doesn't vitiate a plea agreement, nor allow the trial court to impose a greater sentence. 82 So.3d 1004, 1005 (Fla. 1st DCA 2011). To increase a sentence, we held that the trial court must make a factual determination as to whether a defendant's failure to appear was willful. Id. That case, however, did not involve a defendant who failed to offer any justification for his failure to appear or object to his sentence. The trial court warned the defendant here that he would abide by the plea deal provided that Mr. Cooper showed up for sentencing and didn't violate his bond conditions. Mr. Cooper then didn't show up for sentencing. Upon his later arrest and appearance at the subsequently set sentencing hearing, Mr. Cooper offered no justification for his failure to appear. See Neeld v. State , 977 So.2d 740, 744 (Fla. 2d DCA 2008) ("Unless the defendant has some reasonable explanation or justification for the failure to appear, the trial court can use its discretion to impose an appropriate, lawful sentence."). The trial court inquired whether Mr. Cooper was contesting the failure to appear, but in response received no explanation or objection to moving forward with the sentencing. When the court sentenced Mr. Cooper to 60 months, instead of the 22 months reflected in the plea deal, Mr. Cooper still did not object or explain his failure to appear. Even now, Mr. Cooper's brief in this court offers no explanation for his failure to appear. Under these circumstances, we find no error in the trial court's work.

AFFIRMED .

Wetherell and Ray, JJ., concur.


author: Per Curiam.

text:
    James WHITFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1728
    District Court of Appeal of Florida, First District.
    July 17, 2018 Rehearing Denied August 30, 2018
    James Whitfield, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The second or successive petition for writ of habeas corpus is dismissed. See Fla. R. App. P. 9.141(d)(6)(C).

Wolf, Lewis, and Ray, JJ., concur.


text:
    Meghan ANDERSON, Appellant, v. BROWARD COUNTY SHERIFF'S OFFICE and Gallagher Bassett Services, Inc., Appellees.
    No. 1D17-5151
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Bill McCabe, Longwood, and Robert Winess, Boca Raton, for Appellant.
    Marybell Rajo of Pyszka, Blackmon, Levy, Kelley & Rajo, Fort Lauderdale, for Appellees.
   Per Curiam.

In this workers' compensation appeal, Claimant challenges the order issued by the Judge of Compensation Claims (JCC) denying her request for a $2,000 advance pursuant to section 440.20(12)(c), Florida Statutes, because she failed to establish a financial need for the advance. Claimant contends that, because the stated purpose for the advance was to pay for an independent medical examination (IME) in support of a pending claim for continued medical treatment, the JCC should not have considered her lack of financial need. As explained below, we disagree with Claimant and affirm the order denying the advance.

Factual Background

Claimant is a deputy sheriff who suffered a compensable injury in 2014. She was out of work for two two-week periods and then on light duty for approximately nine months before ultimately returning to full duty. She has at least a one percent permanent impairment rating.

In July 2017, Claimant filed a petition for benefits seeking continued medical care and a $2,000 advance. Several months later, Claimant filed a separate motion for a $2,000 advance to pay the expenses of an IME. At the hearing on the motion, Claimant testified that her base salary was $75,000 per year, which she augmented by overtime in the form of off-duty security details. Claimant further testified that she was unable to work these details during her various periods of being out of work or having work restrictions, but she acknowledged that for the two years preceding the petition, the only effect on her income was due to her two pregnancies (she was on her second maternity leave at the time of the hearing), not her work injury.

The employer/carrier opposed the request for an advance, arguing among other things that Claimant did not show a financial need for the advance. Claimant responded that she was not required to prove financial need because she established eligibility for an advance based on her impairment rating and the fact that the purpose of the advance was to pay the expenses of an IME to support her pending petition for benefits. The JCC rejected Claimant's "novel argument" and denied the motion for an advance because she failed to present evidence that her income was insufficient to pay for an IME nor did she otherwise demonstrate a financial need for the advance.

Analysis

Orders concerning advances are typically reviewed for an abuse of discretion. See ESIS/Ace Am. Ins. Co. v. Kuhn , 104 So.3d 1111, 1113-14 (Fla. 1st DCA 2014). Here, however, because the issue before us - what a JCC may consider when deciding whether to award an advance - is a legal one, our review is de novo. See Lombardi v. S. Wine & Spirits , 890 So.2d 1128, 1129 (Fla. 1st DCA 2004) (holding statutory interpretation is subject to de novo review).

Section 440.20(12)(c) 2. provides:

In the event the claimant has not returned to the same or equivalent employment with no substantial reduction in wages or has suffered a substantial loss of earning capacity or a physical impairment, actual or apparent:
* * *
2. An advance payment of compensation not in excess of $2,000 may be ordered by any [JCC] ... after giving due consideration to the interests of the person entitled thereto.

(emphasis added).

The purpose of this statute is to provide "a stopgap to help a claimant avoid defaulting with creditors while awaiting the potential distribution of workers' compensation benefits, when the reduction in income is caused by the injury." Bonner v. Miami Dade Public Schools , 148 So.3d 152, 153 (Fla. 1st DCA 2014). The first paragraph of the statute sets forth the circumstances in which a claimant is eligible for an advance and, in this case, there is no dispute concerning Claimant's eligibility because she has a physical impairment as indicated by her impairment rating. Thus, the question before us is whether, when "giving due consideration to the interests of" an otherwise eligible claimant, a JCC may consider a claimant's financial need when the stated purpose for the requested advance is to obtain an IME in furtherance of a pending petition for benefits.

This court has previously required a claimant seeking an advance to establish a "legitimate interest" or an "adequate justification" along with evidence that the claimed need for the advance has "some plausible nexus to [the] principal purpose" of chapter 440, namely "to address medical and related financial needs arising from workplace injuries." Kuhn , 104 So.3d at 1114-15. In Kuhn , the court explained that, to hold otherwise, would "result in automatic $2000 advances from E/Cs to claimants despite no connection to a pending claim for medical or related care or even a demonstrated need for the funds." Id. at 1114.

Claimant argues that her intent to use the requested advance to obtain an IME in furtherance of her pending petition for benefits satisfies the nexus requirement set forth in Kuhn . We agree with this contention given that, in Taylor v. Air Canada , 136 So.3d 786 (Fla. 1st DCA 2014), the court held that using an advance to take the deposition of a witness who may advance a claim's compensability satisfied this requirement. See also Hidden v. Day & Zimmerman , 202 So.3d 441, 443 (Fla. 1st DCA 2016) (suggesting in dicta that a claimant could pursue an advance to pay for an IME). But Claimant goes one step further, arguing that, because she has satisfied the nexus requirement and the stated purpose of the requested advance is to pay for litigation costs, nothing further - particularly financial need - should be considered. Claimant also suggests that Taylor supports this argument. We disagree on both counts.

First, nothing in section 440.12(12)(c) supports the notion that financial need should not be considered when the nexus requirement is met. Although a claimant is "not required to live a pauper's life" to be eligible for an advance, Bonner , 148 So.3d at 153, that does not mean that the JCC is precluded from considering the claimant's financial need (or lack thereof) when determining whether to award an advance - even if the purpose of the advance is to fund litigation costs. To hold otherwise would frustrate the purpose of the advance statute and would contravene the language in section 440.20(12)(c) 2 that requires the JCC to give "due consideration" to the "interests" of the claimant without placing any limit on the type of interests that can be considered. See Kuhn , 104 So.3d at 1112-14 (holding that the award of an advance to a claimant who "was current on all her financial obligations and had no imminent need for the money" was erroneous because "[t]o hold otherwise would result in automatic $2000 advances from E/Cs to claimants despite no connection to a pending claim for medical or related care oreven a demonstrated need for the funds .") (emphasis added).

Second, nothing in Taylor supports the notion that a request for an advance to fund litigation costs precludes consideration of a claimant's financial need. Financial need was not an issue in Taylor because the claimant in that case had a substantial reduction in wages as a result of her alleged accident and injury and an inability to return to work for an extended period of time. See 136 So.3d at 787. Here, by contrast, Claimant had no reduction in her wages as a result of the work injury for at least past two years preceding the motion for an advance. Thus, Taylor is distinguishable and provides no support for the proposition that the JCC is precluded from considering the claimant's financial need in circumstances such as this case. Indeed, we see no reason why the claimant's financial need (or lack thereof) should not be considered when the purpose of an advance is to pay for litigation costs rather than other expenses such as rent or utility bills.

Conclusion

Based on the foregoing, we hold that a JCC may consider a claimant's financial need for an advance pursuant to section 440.20(12)(c) 2 even when the purpose of the advance is to pay for expenses related to establishing compensability or entitlement to benefits. Here, the JCC did just that in denying Claimant's motion for an advance. Accordingly, we affirm the JCC's order.

AFFIRMED.

Wetherell, Rowe, and Winokur, JJ., concur.


author: KHOUZAM, Judge.

text:
    Anthony HAWKS, Appellant, v. Jeanne Ellen LIBIT, Appellee.
    Case No. 2D17-4526
    District Court of Appeal of Florida, Second District.
    Opinion filed July 25, 2018
    Anthony Hawks, pro se.
    John J. Waskom of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellee.
   KHOUZAM, Judge.

Attorney Anthony Hawks, pro se, timely appeals the circuit court's final judgment awarding costs to his former client, Jeanne Ellen Libit. Relying on this court's en banc opinion in Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132 (Fla. 2d DCA 2012), Hawks argues that the trial court erred by awarding costs to Libit as the "prevailing party" and failing to award costs to Hawks as the "party recovering judgment." We agree. Accordingly, we reverse and remand for costs to be awarded in Hawks' favor.

I. Facts

Hawks represented Libit in a family trust dispute. When he was discharged before the suit was resolved, he filed a notice and claim of attorney's charging lien pending final resolution of the underlying action. Hawks claimed that Libit owed him $159,431.20 for legal services and costs pursuant to a written engagement letter.

A settlement agreement was reached in the underlying action. Before the agreement was approved by the court, Libit filed a petition to set aside $225,200 in a restricted depository "to ensure that attorney Hawks [would] not be prejudiced by Court approval of the settlement agreement." The court granted Libit's petition and approved the depository.

After the settlement was approved and the suit was dismissed with prejudice, Hawks filed a petition for attorney's fees and motion to enforce charging lien, seeking payment of $159,431.20. The court granted Hawks' petition and motion but found that Hawks was entitled to fees in the amount of $37,053.42. This court has affirmed the award. See Hawks v. Libit, No. 2D17-2230, 2018 WL 793488 (Fla. 2d DCA Feb. 9, 2018) (table decision).

Hawks filed a motion for $3254.99 in costs pursuant to section 57.041(1), Florida Statutes (2016). Libit opposed the motion and filed her own motion seeking costs as the prevailing party under the same statutory section. The court denied Hawks' motion and granted Libit's, finding that Libit was the prevailing party in Hawks' fee claim because he was awarded significantly less than the amount he sought. The court relied on the interpretation and application of section 57.041(1) found in Wyatt v. Milner Document Products, Inc., 932 So.2d 487, 490 (Fla. 4th DCA 2006), abrogated on other grounds in Westgate Miami Beach, LTD. v. Newport Operating Corp., 55 So.3d 567 (Fla. 2010). Moreover, the court concluded that it had discretion to award costs to Libit because Hawks' fee claim was equitable in nature. Ultimately, the court ordered Hawks to pay Libit $7418.80 in costs. Hawks moved to alter or amend the final judgment, arguing that the court erred in failing to follow Wolfe. After the court denied his motion to amend, Hawks appealed.

II. Analysis

Hawks and Libit both sought costs pursuant to section 57.041(1), which provides that "[t]he party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment." In the 2012 Wolfe opinion, this court, sitting en banc, held that the plain language of this section requires that the "party recovering judgment"-as opposed to the "prevailing party" (though oftentimes a party will be both)-is entitled to an award of costs. Id. at 1137. This court relied on the Florida Supreme Court's decision in Hendry Tractor Co. v. Fernandez, 432 So.2d 1315 (Fla. 1983) :

In Hendry Tractor, the supreme court reviewed the operation of section 57.041(1), Florida Statutes (1979), which then, as now, provided that the party "recovering judgment" recover all legal costs and charges. The court found the statute's language to be clear. "The statute expressly demands that the party recovering judgment be awarded costs. This unambiguous language need not be construed. Rather, it should be applied as is to the given situation." Hendry Tractor, 432 So.2d at 1316. In guiding the lower courts in the application of the statute, the court stated "that a plaintiff in a multicount personal injury action who recovers money judgment on at least one but not all counts in the cause of action, is the 'party recovering judgment' for purposes of section 57.041(1), Florida Statutes (1979), and therefore is entitled to recover costs." Id.

Wolfe, 104 So.3d at 1136 (footnote omitted). This court also explicitly aligned itself with the First District's holding in Bessey v. Difilippo, 951 So.2d 992 (Fla. 1st DCA 2007), in which the First District held:

Section 57.041(1), Florida Statutes (2005), does not authorize reduction or apportionment of costs on grounds that the plaintiff recovered-on the only count sued on-less than all of the damages the complaint prayed for. The statute does not leave the award to the trial court's discretion, but entitles the party in whose favor judgment is entered to an award of all taxable costs, as a matter of law. See Tacher v. Mathews, 845 So.2d 332, 334 (Fla. 3d DCA 2003) ("The award of these costs is not discretionary.").

Id. at 993.

In Wolfe, this court also receded from its prior holding in Spring Lake Improvement District v. Tyrrell, 868 So.2d 656 (Fla. 2d DCA 2004), which had applied the "prevailing party" standard set forth in Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807, 810 (Fla. 1992), to costs awards under section 57.041. We explained:

In 2004, this court construed and applied section 57.041(1) in Spring Lake, 868 So.2d 656, which the Wolfes rely upon to argue that the trial court did not err in denying Culpepper its fees and costs. We held in Spring Lake that the statutory language-"[t]he party recovering judgment shall recover all his or her legal costs"-meant that to recover costs, the party must meet the standard of a "prevailing party" as set forth in Moritz [, 604 So.2d at 810 ]. Spring Lake, 868 So.2d at 658. On closer inspection, we conclude that the opinion in Spring Lake erred in applying Moritz to the situation there. Instead, we rely upon the plain language of the statute and the decision in Hendry Tractor... to guide our conclusion that Culpepper is entitled to an award of its costs in this litigation.
....
The supreme court's later opinion in Moritz is distinguishable from the instant case, and from Hendry Tractor, on its facts. In Moritz, cited as controlling in Spring Lake, the issue presented was the entitlement to attorney's fees as a prevailing party-not costs. In Moritz, the court was reviewing a Fourth District holding that the defendant/home builder was entitled to attorney's fees as the prevailing party under circumstances where the plaintiffs/home owners had breached the construction contract but were still entitled to a judgment for the majority of the funds held on deposit. 604 So.2d at 808. The court concluded, agreeing with Hensley v. Eckerhart, 461 U.S. 424, 433[ 103 S.Ct. 1933, 76 L.Ed.2d 40] (1983) : "We agree that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney's fees." Id. at 810. The opinion in Moritz addressed neither section 57.041(1) nor costs.

Wolfe, 104 So.3d at 1136 (footnote omitted). In the instant case, the circuit court relied on Wyatt, in which the Fourth District agreed with Spring Lake that costs under section 57.041(1) are governed by the "prevailing party" standard set forth in Moritz. Because this court has since rejected this line of reasoning, the circuit court's reliance on Wyatt was misplaced.

Libit argues that the standard set forth in Wolfe does not apply to this case because it involves a claim sounding in equity and "[t]raditionally, equity courts have had the discretion to apportion costs." Shlachtman v. Mitrani, 508 So.2d 494, 495 (Fla. 3d DCA 1987). But both Hawks and Libit sought costs pursuant to section 57.041(1). Since Wolfe was decided in 2012, this court has applied the "party recovering judgment" standard-not the "prevailing party" standard-to costs motions filed pursuant to this section. See Wanda Dipaola Stephen Rinko Gen. P'ship v. Beach Terrace Ass'n, 173 So.3d 1014, 1015 (Fla. 2d DCA 2015) (reversing the trial court's denial of costs "because the trial court incorrectly applied the prevailing party standard instead of section 57.041, Florida Statutes (2012), which awards costs to the party that recovers a judgment"); Pelham v. Walker, 135 So.3d 1114, 1119 (Fla. 2d DCA 2013) (stating that the party that recovered partial judgment was entitled to costs pursuant to section 57.041(1) ). Libit has not cited, and we have been unable to locate, any authority from this court suggesting that section 57.041(1) or the holding in Wolfe should apply differently to equitable claims. Moreover, the court did not set forth an equitable reason for departing from the general rule set forth in Wolfe; rather, the court simply applied the incorrect rule.

Accordingly, we conclude that the court erred in failing to apply Wolfe, under which Hawks would be entitled to costs as the "party recovering judgment" and Libit would not be entitled to costs. We reverse the court's order on costs and remand for the entry of a costs award in Hawks' favor.

Reversed and remanded with instructions.

LUCAS and ATKINSON, JJ., Concur.

      We note that Hawks did not challenge in either his motion to amend or alter the final judgment or in this appeal the court's exclusion of $582.63 originally requested for witness travel expenses.


text:
    Gary CONEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2282
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Rodriguez v. State, 609 So.2d 493, 499 (Fla. 1992) (noting: "It is well settled that the specific legal ground upon which a claim is based must be raised at trial and a claim different than that raised below will not be heard on appeal"); Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982) (holding: "In order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below"); Black v. State, 367 So.2d 656, 657 (Fla. 3d DCA 1979) (same). See also Overton v. State, 801 So.2d 877, 900-01) (Fla. 2001) (discussing evidentiary principle of "opening the door", premised on notions of fairness and truth-seeking function of a trial).


text:
    Randall BOOKER, Appellant, v. Stefne BOOKER, Appellee.
    No. 3D17-828
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Mary Raymond, for appellant.
    Stefne Booker, in proper person.
    Before SUAREZ, FERNANDEZ, and SCALES, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).


author: SCALES, J.

text:
    Mario Augusto FRANCO, Appellant, v. Marcia Ximena THOMAS, Appellee.
    No. 3D17-2546
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Law Offices of Trujillo & Associates, P.A., and Annabella Trujillo, Coral Gables, for appellant.
    Francisco Vargas, Esq., P.A., and Francisco J. Vargas, for appellee.
    Before SUAREZ, SCALES and LUCK, JJ.
   SCALES, J.

Appellant Mario Augusto Franco, the husband, and appellee Marcia Ximena Thomas, the wife, entered into an oral settlement agreement during their March 14, 2016 marriage dissolution trial. One element of settlement was that each party would retain his or her non-marital assets, one of which, the family home, was purchased and owned solely by Franco prior to the marriage. On April 5, 2016, the trial court entered a final judgment of dissolution of marriage that incorporated the parties' settlement agreement. Thomas neither moved for re-hearing nor appealed the final judgment. Notwithstanding the dissolution judgment's dispossessing Thomas of any ownership interest in the home, Thomas and the two minor children of the marriage remained living in this home. Franco filed a separate unlawful detainer action, seeking to evict them from the home. Franco's unlawful detainer action was transferred to the circuit court's family division.

On May 5, 2016, pursuant to Florida Rule of Civil Procedure 1.540(b)(1) and (3), Thomas filed in the dissolution action a motion to vacate the final dissolution of marriage judgment, arguing that the dissolution judgment was the result of mistake, surprise, coercion and duress. Franco opposed Thomas's rule 1.540(b) motion by filing a summary judgment motion. During the October 26, 2017 hearing on Franco's summary judgment motion, Thomas, for the first time, introduced an alternate rationale for relief from the dissolution judgment. Citing rule 1.540(b)(5), Thomas argued that, in light of Franco's effort to evict Thomas and the children from the home, the final dissolution judgment was "no longer equitable." Essentially, Thomas argued that, when it entered the final dissolution judgment based on the parties' settlement agreement, the trial court erred by not taking into consideration where the couple's minor children would live post-dissolution. See Dorsett v. Dorsett, 902 So.2d 947, 951-52 (Fla 4th DCA 2005) (reversing a final dissolution judgment premised upon the parents' oral agreement regarding relocation of a minor child, requiring the trial court to determine independently that the agreed-upon arrangement does not harm the interests of the child). In separate orders on appeal, the trial court denied Franco's summary judgment motion and granted Thomas's rule 1.540 motion (thereby vacating the final dissolution judgment), determining that "the Final Judgment is not fair to the minor children."

We reverse the trial court's order vacating the final judgment of dissolution. If Thomas wished to challenge the final judgment of dissolution on legal grounds (for example, the judgment's alleged non-compliance with the dictates of Dorsett ), it was incumbent upon Thomas either to seek a timely rehearing from the dissolution judgment pursuant to Florida Rule of Civil Procedure 1.530 or to appeal the final judgment. Neither rule 1.540, nor its family law equivalent (rule 12.540), is an appropriate vehicle to challenge a judgment based upon alleged legal error. Curbelo v. Ullman, 571 So.2d 443, 445 (Fla. 1990) ; Theodorides v. Theodorides, 201 So.3d 141, 143-44 (Fla. 3d DCA 2015). Thomas has not provided us with any authority that would extend the limited scope of rule 1.540(b)(5) to the situation presented here.

Reversed.

      Rule 1.540(b)(1) and (3) read in relevant part: "On motion and upon such terms as are just, the court may relieve a party ... from a final judgment ... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party ...." In 2016, Family Law Rule of Procedure 12.540 provided simply that rule 1.540 governed all motions seeking relief from family law judgments. Effective March 16, 2017, the Florida Supreme Court amended rule 12.540 to parallel rule 1.540. In re: Amendments to Fla. Family Law Rules of Procedure, 214 So.3d 400, 465 (Fla. 2017). In this case, the mid-proceedings rule change had no effect below, nor does it affect our determination of the appeal.

      Rule 1.540(b)(5) reads in relevant part: "On motion and upon such terms as are just, the court may relieve a party ... from a final judgment ... for the following reasons: (5) ... it is no longer equitable that the judgment ... should have prospective application."

      In 2016, Family Law Rule of Procedure 12.530 provided simply that rule 1.530 governed all motions seeking rehearing of family law judgments. Effective March 16, 2017, the Florida Supreme Court amended rule 12.530 to mirror rule 1.530. In re: Amendments to Fla. Family Law Rules of Procedure, 214 So.3d 400, 464-65 (Fla. 2017). In this case, the mid-proceedings rule change had no effect below, nor does it affect our determination of the appeal.

      We express no opinion as to whether Thomas may have other avenues of relief.


text:
    Frank Freeman RUIZ, Appellant, v. Annie FREEMAN, Appellee.
    No. 3D17-2580
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Frank Freeman Ruiz, in proper person.
    ADR Miami LLC, and Juan Ramirez, Jr., for appellee.
    Before SUAREZ, FERNANDEZ, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).


text:
    Nelson MARTINEZ, Sr. and Maria Martinez, etc., Appellants, v. TAURUS INTERNATIONAL MANUFACTURING, INC., et al., Appellees.
    No. 3D17-2279
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Bailey & Glasser, and Patricia M. Kipnis (Cherry Hill, New Jersey); Morris Haynes Wheeles Knowles & Nelson, and Matthew G. Garmon (Birmingham, Alabama); Leesfield Scolaro, P.A., and Thomas Scolaro and Justin B. Shapiro, for appellants.
    Weinberg Wheeler Hudgins Gunn & Dial, LLC, and Gary J. Toman (Atlanta, Georgia), Lawrence E. Burkhalter and Alexander Heydemann ; Smith, Gambrell & Russell, LLP, and Dana G. Bradford, II and James H. Cummings (Jacksonville), for appellees.
    Before EMAS, SCALES and LUCK, JJ.
   SCALES, J.

Appellants, plaintiffs below, Nelson Martinez, Sr. and Maria Martinez are the parents of Nelson Martinez, Jr. ("Nelson") and are the co-personal representatives of Nelson's estate, which is also a co-appellant. They seek review of a final summary judgment that concluded, as a matter of law, that defendants, Taurus International Manufacturing, Inc. and Taurus Holdings, Inc. (together, "Taurus") are immune from appellants' wrongful death action by virtue of 15 U.S.C. § 7903(5)(A), the Protection of Lawful Commerce in Arms Act ("the Act"). We reverse the trial court's summary judgment because genuine issues of material fact exist as to whether appellants' lawsuit is a "qualified civil liability action" that would trigger the Act's immunity provision.

I. Relevant Facts and Procedural Background

A. Introduction

In February of 2014, twenty-one-year-old Nelson purchased a Taurus .45 caliber model PT24/7 pistol from a pawn shop in Hialeah, Florida. Nelson lived in an efficiency apartment with his sister and her husband, and late in the night of May 1, 2014, Nelson took the pistol into the apartment's bathroom and locked the door. The pistol discharged and Nelson died as a result of a gunshot wound to his head, the bullet having entered through his left eye.

While both the Hialeah Police Department and the Miami-Dade Medical Examiner concluded that Nelson committed suicide, Nelson's parents and his estate brought the instant lawsuit against Taurus alleging that a pistol defect caused Nelson's death.

B. Relevant Background Facts

When Nelson purchased the pistol in February of 2014, he was required, pursuant to 18 U.S.C. § 922, to complete, under penalty of perjury, ATF Form 4473 entitled "Firearms Transaction Record Part I - Over-the-Counter." A question on this form asked whether Nelson was a user of marijuana (and other drugs). He responded "no." The record reflects, though, that Nelson had a history of alcohol and marijuana use, including an arrest for possession of marijuana in 2011. In December of 2013, two months before his purchase of the pistol, Nelson admitted marijuana use to his primary care physician (this admission appears on the "history" portion of an intake form). In depositions, his family members admitted to Nelson's periodic marijuana use.

The Medical Examiner's toxicology report indicates the presence of apparently unprescribed controlled substances of the Benzodiazepine class (Alprazolem, Diazepam and Nordiazepam), as well as alcohol, in Nelson's system at the time of his death.

C. The Instant Lawsuit

Appellants filed the instant lawsuit in April of 2016. In their operative complaint, appellants allege that, because of a defective design, the pistol had no effective safety device to prevent an unintended discharge. Specifically, appellants allege that Nelson's pistol had a "drop-fire" defect, meaning that when the pistol was dropped from the height of its ordinary use, the pistol would discharge, and that Taurus did not warn Nelson of this alleged defect.

Taurus moved for summary judgment pursuant to a provision of the Act that provides immunity from civil liability for gun manufacturers and sellers for incidents arising out of the criminal use or other unlawful misuse of a gun. In granting Taurus's motion for summary judgment, the trial court held that the Act immunized Taurus from liability because Nelson purchased the pistol under false pretenses and continued to possess the pistol while taking illegal drugs. This appeal ensued.

II. Analysis

A. The Relevant Provisions of the Act

In 2005, Congress adopted the Act to, among other things, insulate gun manufacturers from civil liability for "harm caused by those who criminally or unlawfully use firearm products ... that function as designed and intended." 15 U.S.C. § 7901(a)(5). To effectuate this purpose, the Act prohibits any "qualified civil liability action" from being "brought in any Federal or State court." 15 U.S.C. § 7902(a).

The Act defines a "qualified civil liability action" as "a civil action or proceeding ... brought by any person against a manufacturer or seller of a qualified product ... for damages ... resulting from the criminal or unlawful misuse of a qualified product by the person or a third party ...." 15 U.S.C. § 7903(5)(A). The Act defines "unlawful misuse" as "conduct that violates a statute, ordinance, or regulation as it relates to the use of a qualified product." 15 U.S.C. § 7903(9).

Congress exempted six classes of lawsuits from the definition of a "qualified civil liability action." 15 U.S.C. § 7903(5)(A)(i)-(vi). Potentially pertinent to the instant case is the exemption in subsection (v), which exempts from the Act's grant of immunity those civil actions:

resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage ....

15 U.S.C. § 7903(5)(A)(v) (the "Defect Exception").

B. Taurus's Summary Judgment Burden

Under this statutory framework, in order for Taurus to receive immunity under the Act, Taurus must establish that (i) appellants' lawsuit constitutes a "qualified civil liability action," and (ii) if the lawsuit does qualify as such an action, none of the statutorily prescribed exemptions are applicable.

Of course, for the trial court to make an immunity determination at the summary judgment stage, Taurus must establish the absence of any genuine issue of material fact as to each of these elements. Copeland v. Fla. New Invs. Corp., 905 So.2d 979, 980 (Fla. 2005). For our purposes, if we find that a disputed issue of fact exists regarding whether appellants' lawsuit is a "qualified civil liability action," we need not reach the issue of whether one of the Act's exemptions is applicable. See Morales v. Hialeah Hous. Auth., 149 So.3d 699, 699 (Fla. 3d DCA 2014).

C. The Trial Court's Summary Judgment for Taurus

In granting summary judgment for Taurus, the trial court determined, as a matter of law, both that: (i) appellants' lawsuit was a "qualified civil liability action," and (ii) the Defect Exception was inapplicable. We focus on the trial court's determination that appellants' lawsuit is a "qualified civil liability action," i.e., that appellants' lawsuit seeks damages for "conduct that violates a statute, ordinance or regulation as it relates to the use of a qualified product." 18 U.S.C. § 7903(9).

The trial court's conclusion in this regard is premised upon two distinct factual findings incorporated into the trial court's order: (1) that Nelson's purchase of the pistol - after Nelson had denied drug use on his federal application form - was a "criminal or unlawful misuse" of the pistol in violation of 18 U.S.C. § 922(a)(6), and (2) Nelson's continued ownership and possession of the pistol after purchase constituted "criminal or unlawful misuse" of the pistol presumably in violation of 18 U.S.C. 922(g)(3). We address each of these conclusions, and Taurus's arguments supporting them, in turn.

1. Nelson's Purchase of the Pistol

With regard to Taurus's first contention (i.e., that Nelson purchased the pistol in violation of law), Taurus cites to 18 U.S.C. § 922 which: (i) requires all handgun purchasers to answer, under oath, certain specific questions, any one of which may be disqualifying if answered falsely, see 18 U.S.C. § 922 (a)(6) ; (ii) authorizes ATF to promulgate ATF Form 4473 to effectuate such disclosures; and (iii) further makes it illegal for any person to purchase a firearm when that person is an unlawful user of a controlled substance, see 18 U.S.C. § 922(g)(3). Indeed, when Nelson purchased the firearm, he was asked in question 11(e) of ATF Form 4473: "Are you an unlawful user of, or addicted to, marijuana or any depressive, stimulant, narcotic, or any other controlled substance?" The trial court concluded that Nelson's answer "no" to this question constituted perjury and therefore, as a matter of law, appellants' lawsuit is a "qualified civil liability action" because it seeks damages for Nelson's "unlawful misuse" of the pistol.

While the record certainly contains circumstantial evidence that tends to support Taurus's argument that Nelson committed perjury by answering "no" to this question, the record also contains evidence from which a finder of fact could conclude that, at the time Nelson purchased the pistol, he was not an unlawful user of any controlled substance. While the term "unlawful user of a controlled substance" is not specifically defined in 18 U.S.C. § 922(g)(3), federal courts have interpreted the term to mean regular and ongoing use of a controlled substance during the same time period as the firearm possession. See, e.g., United States v. Edmonds, 348 F.3d 950, 953-54 (11th Cir. 2003). We are unable to conclude that Taurus has established the nonexistence of any material fact as to whether, at the time Nelson purchased the pistol, Nelson was a regular and ongoing user of a controlled substance.

2. Nelson's Continued Possession of the Pistol

Taurus also argues, and the trial court also concluded, that, after his purchase of the pistol, Nelson's continued possession of the pistol constituted an ongoing violation of 18 U.S.C. 922(g)(3) because Nelson allegedly consumed illegal drugs during this period. Again, while the assembled facts at the summary judgment stage plainly demonstrate that Nelson used illegal drugs prior to his February 2014 purchase of the pistol, the summary judgment record does not conclusively establish that Nelson was an unlawful drug user after the purchase of the pistol. Although the toxicology report indicates that unprescribed controlled substances were found in Nelson's system at the time of his death, there is no evidence in the record regarding when these drugs were ingested or how long they remain in one's system. See Estate of Marimon v. Fla. Power & Light Co., 787 So.2d 887, 890 (Fla. 3d DCA 2001) ("On review, we must consider the evidence in the light most favorable to the nonmoving party and must draw all competing inferences in favor of the nonmoving party."). Additionally, given Nelson's sister's deposition testimony that Nelson's use of drugs was "sporadic" and "wasn't often," a genuine issue of material fact exists as to whether Nelson was an "unlawful user" of controlled substances - that is, whether Nelson was a regular and ongoing user of controlled substances - while Nelson possessed the firearm. Edmonds, 348 F.3d at 953. Such disputed facts preclude summary judgment.

III. Conclusion

In sum, based on our de novo review of the summary judgment evidence, we are unable to conclude, as a matter of law, that Nelson acquired the subject pistol in violation of a statute or that he continued to possess the pistol in violation of a statute. Therefore, without reaching the issue of whether such violations of statute would constitute the requisite "unlawful misuse" of a firearm so as to characterize the instant lawsuit as a "qualified civil liability action," we are compelled to reverse the trial court's conclusion that appellants' lawsuit constitutes such an action.

Having found that a genuine issue of material fact exists as to whether the instant action is a "qualified civil liability action" for the purposes of the Act, we need not, and therefore do not, reach the issue of whether the Defect Exception of 15 U.S.C. § 7903(5)(A)(v) is applicable.

Reversed and remanded with instructions.

      Three defendants are named in the Complaint: (i) Forjas Taurus, S.A., a Brazilian gun manufacturer; (ii) Taurus Holdings, Inc., an American subsidiary of Forjas Taurus; and (iii) Taurus International Manufacturing, Inc., another American subsidiary of Forjas Taurus. While not entirely clear from the record, it appears that service was not obtained as to Forjas Taurus.

      We review de novo a trial court's summary judgment. Perez-Gurri Corp. v. McLeod, 238 So.3d 347, 349 (Fla. 3d DCA 2017).

      The trial court also summarily concluded that the Defect Exception was inapplicable, determining that the "sole proximate cause" of Nelson's damages was Nelson's "purchase, ownership and continuing possession of the Subject Pistol under false pretenses when he was legally prohibited from the same by virtue of his drug use." Because we find the summary judgment record contains genuine issues of disputed fact as to the threshold issue of whether appellants' lawsuit constituted a "qualified civil liability action," we need not, and therefore do not, reach the trial court's conclusion that the Defect Exception is inapplicable.

      While the trial court's order does not expressly identify the "statute, ordinance or regulation" violated either by Nelson's purchase of the pistol or Nelson's continued post-purchase possession and ownership of the pistol, the trial court most certainly concluded summarily that both Nelson's purchase and his post-purchase possession of the pistol were unlawful. These conclusions form the critical portion of the trial court's determination that appellants' lawsuit is a "qualified civil liability action." Taurus identifies 18 U.S.C. § 922(a)(6) and 18 U.S.C. § 922(g)(3), respectively, as the specific statutes Nelson allegedly violated by his purchase of the pistol and his post-purchase possession and ownership of the pistol.

      The record contains a Medical Examiner's report tracing Nelson's history of drug use. It is bolstered by later testimony of family members that they had knowledge of Nelson's marijuana use. The evidence indicates a pattern of drug use leading up to Nelson's purchase of the pistol, while there is an absence of evidence that his drug use had stopped. The toxicology report from the night he died - three months after the purchase of the pistol - indicates three apparently unprescribed Benzodiazepine-class drugs in his system.

      The record evidence of Nelson's marijuana use pre-dates his February 2014 purchase of the pistol. Nelson's drug-use admissions during treatment at a psychiatric facility occurred between 2006 and 2008. His arrest for possession occurred in 2011. His admission of past marijuana use on a medical form occurred in December of 2013. In deposition testimony, Nelson's sister maintained that Nelson was not a "user" and that his marijuana use was "sporadic" and "wasn't often." Further, the use of apparently unprescribed Benzodiazepines found in Nelson's system from the night he died are not traced back to the time period when he purchased the pistol.


author: Ray, J.

text:
    Francis Majak LAI, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1882
    District Court of Appeal of Florida, First District.
    August 1, 2018
    Candice K. Brower, Regional Conflict Counsel, Gainesville, and Melissa J. Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Ray, J.

Francis Majak Lai and his co-defendant, Mackenley Fiacre, were charged with killing Barnat Bella while burglarizing his home. Both men were convicted of first-degree murder and armed burglary and sentenced to life in prison on each count. This is Lai's appeal. Because we find no reversible error in the issues presented, we affirm his convictions and sentences. We write to address a comment made during the State's closing argument and also note that remand is necessary to correct a scrivener's error on the written judgment.

I.

Jacksonville law enforcement officers were dispatched to Bella's home late one evening after his security alarm activated. They arrived to find his bedroom window "blown out" and the blinds and curtains hanging outside the window. The bathroom window in the rear of the home was broken as well.

Once inside, they discovered Bella lying in the hallway with blood around his head and shell casings near his body. He had no pulse. The medical examiner who conducted the autopsy would later testify that Bella's death was a homicide caused by a bullet wound to the back of his neck that cut his spinal cord. The characteristics of the wound indicated that the end of the gun's muzzle was almost touching Bella's skin when the shot was fired.

Based on the locations of the glass around the two broken windows, the crime scene detectives determined the bathroom window was the entry point for the assailants and the bedroom window was the exit point. Lai's blood was found in the victim's hallway and bedroom, and Fiacre's blood was found on a piece of glass outside, under the broken bedroom window.

Kiristina Jok, who was Lai's girlfriend at the time of the crimes, testified that Lai and Fiacre were friends. On the evening in question, Fiacre called her phone and she handed it to Lai. He then left. When Jok saw Lai a few hours later, he looked upset and had a cut on his arm. Jok tried to find out what had happened, but he would not tell her anything that evening. The next morning, Lai explained that he and "some other guy" broke into a house, the other guy fought with Bella and shot him, and Lai cut his arm on a window. Jok did not call the police. The couple broke up a week later, although they remained friends.

Jennifer Masters testified for the defense. Lai was the father of Masters's grandchild, and Lai lived with her for two months prior to his arrest. Lai told Masters that he could not pay rent "because he was attacked and robbed." On cross-examination, she testified that she was originally going to be a State's witness, but the day before her testimony, she told the prosecutor for the first time that she would testify that Lai told her he had been attacked and robbed. Though Masters admitted she never told the police or prosecutor about Lai's claim in the three years the case was pending, she explained she had just remembered that detail and pointed out that she had never been asked whether Lai told her he was attacked. She admitted testifying in a prior deposition that when she saw Lai after the murder, he had a cut on his arm and he claimed he did not remember how he got it.

II.

In his first issue, Lai contends the trial court erred when it refused to give a curative instruction and denied his motion for a mistrial after he successfully objected to an improper comment made during closing argument. During the course of trial, counsel for both defendants implicitly or explicitly suggested that the police were untruthful, the prosecutor pressured witnesses to testify in the State's favor, and the police and prosecutor may have concealed evidence. During the State's rebuttal closing, the prosecutor attempted to refute those allegations by referencing the evidence and explaining his actions. However, the prosecutor went further, stating,

I'm hoping that maybe by what you saw with Jennifer Masters and how that whole scenario went down, you might see that cops and the government and the State Attorneys we really don't lie. You saw what happened-.

At that point, counsel for both defendants objected. The trial court sustained the objection in front of the jury, but after a sidebar conference, the court declined to give a curative instruction and denied the defendants' motions for mistrial.

Lai argues the comment that "cops and the government and the State Attorneys we really don't lie" improperly bolstered the government witnesses' testimony by suggesting that government and law enforcement officials are inherently truthful or credible. The State counters that the comment was invited by defense counsel's suggestion that the prosecutor and police were pressuring witnesses, lying, and concealing, tampering with, or planting evidence.

We review a trial court's ruling on a motion for mistrial based on improper prosecutorial comments for an abuse of discretion. Salazar v. State , 991 So.2d 364, 371 (Fla. 2008). A trial court abuses its discretion when no reasonable person would take the view adopted by the trial court. Id. at 372. "In order for the prosecutor's comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise." Id. (quoting Spencer v. State , 645 So.2d 377, 383 (Fla. 1994) ).

At the outset, we conclude that the prosecutor's statement constituted improper bolstering. A prosecutor may not bolster a witness's testimony by implying that one's position as a law enforcement official makes that witness more credible or less likely to lie. See, e.g., Johnson v. State , 177 So.3d 1005, 1008 (Fla. 1st DCA 2015) ; Williams v. State , 747 So.2d 474, 475 (Fla. 5th DCA 1999). We reject the State's assertion that the comment was justified as an invited response. While the prosecutor could have pointed to facts in evidence to suggest that the officers in the case were credible or that he was not pressuring witnesses to testify, he could not suggest that State Attorneys, police officers, or other government officials do not lie based on the nature of their positions. Cf. Payne v. State , 233 So.3d 512, 515 (Fla. 1st DCA 2017) (noting that it was improper to suggest that a deputy should be believed because he is a sworn law enforcement officer in response to defense attacking deputy's credibility). Thus, the trial court properly sustained the objection.

However, the trial court's denial of the motion for mistrial was not an abuse of discretion. The improper comment was an isolated one. Cf. Jenkins v. State , 96 So.3d 1110, 1113-14 (Fla. 1st DCA 2012) (finding prosecutor's comment, although improper, was isolated and not grounds for a mistrial). Further, the context in which the comment was made reveals that the prosecutor was pointing to specific evidence in the record to demonstrate that neither he nor the police were lying or concealing evidence. Finally, the comment did not materially contribute to the verdict given the evidence against Lai. Jok testified that Fiacre called Lai the night of the murder and Lai left. When he returned, he had a cut on his arm. The next day, he admitted taking part in a burglary during which his co-perpetrator shot someone. Lai did not contest the facts that his blood was in the house or that he cut himself from glass from one of the broken windows. His theory of defense-unsubstantiated by any direct evidence-was that he was an invited guest of Bella's that evening but he ran away and jumped out the bedroom window when the real perpetrator showed up and began firing. This was not a case that rested solely on circumstantial evidence or competing witness accounts. Cf. Williams v. State , 673 So.2d 974 (Fla. 1st DCA 1996) (reversing conviction where prosecutor suggested officers would not lie where whole case was based on whether defendant or police officers were more credible). We conclude that the isolated comment, made in response to defense suggestions of impropriety, did not vitiate the entire trial and render it unfair.

III.

Although we find that no reversible error occurred below, one matter needs to be corrected. Lai filed a motion to correct a sentencing error because the written judgment reflects that he entered a guilty plea when it should reflect that he was convicted after a jury trial. It does not appear that the trial court ruled on the motion within sixty days, so the motion is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B). We agree with Lai on this point and direct the lower court to correct this scrivener's error. See Blake v. State , 187 So.3d 1291 (Fla. 1st DCA 2016) (remanding for correction of discrepancy between oral pronouncement and written sentence).

AFFIRMED and REMANDED for correction.

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

      In an interview with police that was played for the jury, Fiacre denied knowing Bella or being in his home.

      Lai allegedly then climbed back in through a window to check on Bella, which is how his blood ended up in the apartment. The presence of Fiacre's blood was not explained.


text:
    Priscilla LANGFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1893
    District Court of Appeal of Florida, First District.
    July 27, 2018 Rehearing Denied August 29, 2018
    Lindsey Lander, Trenton, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Franklin v. State , 933 So.2d 577 (Fla. 1st DCA 2006).

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


author: BADALAMENTI, Judge.

text:
    Joselito TUALLA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4429
    District Court of Appeal of Florida, Second District.
    Opinion filed August 3, 2018
    Joselito Tualla, pro se.
   BADALAMENTI, Judge.

Joselito Tualla, proceeding pro se, filed a motion for postconviction relief pursuant to Florida Rule of Civil Procedure 3.850, alleging four claims of ineffective assistance of trial counsel. The trial court summarily denied all four claims. After careful review of the limited portions of the record attached to the postconviction court's order, we reverse because the limited record before us does not conclusively refute the claim raised in ground one of Tualla's motion. We affirm the trial court's order in all other respects.

Where no evidentiary hearing is held on a ground raised in a postconviction motion, we must accept the defendant's factual allegations to the extent they are not refuted by the record. Wesby v. State, 230 So.3d 939, 941 (Fla. 2d DCA 2017) (citing Foster v. State, 810 So.2d 910, 914 (Fla. 2002) ). "We may only affirm a postconviction court's summary denial if the record conclusively shows that the appellant is entitled to no relief." Id. (citing Fla. R. App. P. 9.141(b)(2)(D) ).

In order to demonstrate that trial counsel was ineffective for failing to investigate and call a witness at trial, a defendant must identify the witness and the substance of his or her testimony, state that the witness would have been available to testify, and explain how the omission of the witness's testimony prejudiced the outcome. Garrett v. State, 62 So.3d 1274, 1276 (Fla. 2d DCA 2011) (citing Nelson v. State, 875 So.2d 579, 582-83 (Fla. 2004) ).

Tualla alleged in ground one of his motion that his parents and his former girlfriend were available to testify and would have provided testimony to rebut the State's Williams rule witness and that their testimony would have changed the outcome of his trial. In support of its summary denial of ground one, the postconviction court attached an excerpt of a transcript of a pretrial conference. At that conference, the trial court remarked that defense counsel had not filed a witness list for Tualla's forthcoming trial. The trial court asked Tualla if he had advised counsel of any person he wanted to list as a witness, prompting Tualla to confer with his counsel. Tualla's trial counsel informed the court that after observing the testimony of a witness at an earlier Williams rule hearing, Tualla believed there was a person who could provide testimony to impeach that Williams rule witness. Defense counsel explained to the trial court that because that individual was listed on the State's witness list, defense counsel would have an opportunity to cross-examine him or her at trial. The identity of that potential witness was not mentioned during this pretrial conference. Tualla advised the trial court that he had no other witnesses he wanted to call.

The postconviction court's order fails to conclusively refute the allegations set forth in ground one of Tualla's motion. The record attachments to the order do not reveal whether the potential witness to whom trial counsel referred during the pretrial conference was one of Tualla's parents or his former girlfriend. Moreover, the limited record before us is unclear as to whether that person was in fact called at trial by the State, and, if so, cross-examined by Tualla's counsel. With these looming questions left unanswered by the limited record before us, we reverse the summary denial of ground one of Tualla's motion. We remand to the postconviction court to either attach portions of the record that conclusively refute Tualla's claim set forth in ground one or hold an evidentiary hearing. See Garrett, 62 So.3d at 1277. We express no opinion as to the ultimate validity of this ground. We affirm the postconviction court's denial of grounds two, three, and four of Tualla's motion without comment.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

      Williams v. State, 110 So.2d 654 (Fla. 1959).