author: COHEN, J.

text:
    ROYAL PALMS SENIOR APARTMENTS LIMITED PARTNERSHIP, Appellant, v. CONSTRUCTION ENTERPRISES, INC. OF TENNESSEE d/b/a Construction Enterprises, Inc. Forum Architecture & Interior Design Inc., BH-FFS, LLC d/b/a Bradcorp Florida II, LLC, et al., Appellees.
    Case No. 5D18-2182
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 23, 2019
    James. C. Prichard, Evan J. Small, Megan A. Picataggio, and Greg K. Demers, of Ball Janik LLP, Orlando, for Appellant.
    Jeffrey M. Paskert and Dara L. Dawson, of Mills Paskert Divers P.A., Tampa, for Appellee, Construction Enterprises Inc. of Tennessee d/b/a Construction Enterprises, Inc.
    No Appearance for Other Appellees.
    ON MOTION FOR REHEARING OR CLARIFICATION
   COHEN, J.

We grant in part Construction Enterprises Inc. of Tennessee d/b/a Construction Enterprises, Inc.'s ("CEI") motion for rehearing or clarification, withdraw our prior opinion, and substitute the following corrected opinion.

Royal Palms Senior Apartments Limited Partnership ("Royal Palms") appeals the nonfinal order entered in favor of CEI staying Royal Palms's lawsuit pending mediation and arbitration. Royal Palms argues that the trial court erred in finding that a valid arbitration agreement existed and that its claim was subject to arbitration. We affirm the trial court's finding that the parties had a valid agreement to arbitrate certain claims. However, because it is unclear whether Royal Palms's claim was one subject to arbitration, we remand for a determination of that issue.

In December 2006, the parties entered into a contract for CEI to construct the Royal Palms Senior Apartments. The agreement was comprised of the "AIA Document A201-1997 General Conditions of the Contract for Construction" ("General Conditions") and a supplementary document ("Supplementary Conditions"), which modified and deleted portions of the General Conditions and controlled if the two documents conflicted.

In October 2017, Royal Palms filed a complaint against CEI alleging negligence, vicarious liability, breach of contract, and breach of applicable building codes. CEI moved to dismiss or alternatively, to compel mandatory and exclusive dispute resolution procedures, including mediation and arbitration. After a hearing on CEI's motion, the trial court determined that the mediation and arbitration provisions of the General Conditions were binding and enforceable. It stayed the case and ordered mediation followed by arbitration if mediation was unsuccessful. This appeal followed.

"Under both federal statutory provisions and Florida's arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999) (quoting Terminix Int'l Co. v. Ponzio, 693 So. 2d 104, 106 (Fla. 5th DCA 1997) ). Here, Royal Palms's arguments implicate only the first two prongs of the Seifert test.

Although courts generally favor arbitration, "no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate." Id. (citing Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1352 (11th Cir. Fla. 1982) ). Thus, while ambiguities regarding prong two-the scope of an arbitration clause-should be resolved in favor of arbitration, prong one-the existence of an enforceable arbitration clause-should not. See Seaboard, 690 F.2d at 1352 ("Although Federal policy requires us to resolve any doubt about the application of an arbitration clause in favor of arbitration, the Federal policy cannot serve to stretch a contract beyond the scope originally intended by the parties." (citations omitted)).

While the Supplemental Conditions eliminated some of the General Conditions related to arbitration, provisions requiring arbitration remained.

Pursuant to the General Conditions as modified by the Supplementary Conditions, the "exclusive procedures" for resolving claims require all claims to be submitted to the Architect. Decisions of the Architect are final and binding, subject to mediation and arbitration. If the parties are not satisfied with the Architect's decision, they may first mediate the claim. If mediation is unsuccessful, the only remaining option is to arbitrate the claim. Thus, because the General Conditions as modified by the Supplementary Conditions require arbitration if the parties are unsatisfied with the Architect's decision and if mediation is unsuccessful, we find that the trial court did not err in concluding that the parties had a valid agreement to arbitrate.

However, if the Architect does not render a decision on a claim within thirty days, under the wording of the contract, arbitration is not mandated. After thirty days, a party may mediate the claim. Part of the "exclusive procedures" for resolving claims provides that mediation is a prerequisite to arbitration and litigation. Thus, because the "exclusive procedures" contemplate mediation, arbitration, and litigation of claims, claims for which the Architect does not render a decision are not subject only to arbitration if mediation is unsuccessful. A party cannot be forced to arbitrate a claim it did not agree to arbitrate. See Seifert, 750 So. 2d at 633 (citing Seaboard, 690 F.2d at 1352 ).

The record is less clear regarding the second prong of the Seifert test-whether Royal Palms's claim was an arbitrable issue. The trial court's order mandating mediation followed by arbitration did not include a determination of whether Royal Palms submitted its claim to the Architect and whether the Architect rendered a decision. Thus, it is unclear whether Royal Palms was required to arbitrate its claim. Accordingly, we remand for a determination of that matter and proceedings, if any, consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

BERGER and EDWARDS, JJ., concur.

      Royal Palms also argues that the trial court applied an improper standard in determining that a valid arbitration agreement existed. The trial court never announced what standard it used in making its determination, and thus, this argument lacks merit.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Timothy Lee DOBBINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-401
    District Court of Appeal of Florida, Second District.
    Opinion filed July 24, 2019.
    Howard L. Dimmig, II, Public Defender, and Brett S. Chase, Special Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Katie Salemi Ashby, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Timothy Dobbins appeals his conviction for burglary of a structure causing damage greater than $1000. Because the evidence in this case was entirely circumstantial and because the State failed to rebut, by competent substantial evidence, Dobbins' reasonable hypothesis of innocence, we must reverse.

The evidence presented at trial showed that the structure at issue was a school that had been vacant for two years. The school's property manager testified he was notified on November 25, 2014, that the school's gate was open. Because it was raining, he waited until the following morning to inspect the school. He then discovered that the school had been ransacked and had suffered extensive damage, including the theft of thousands of dollars' worth of computer equipment and large amounts of copper wiring. The property manager testified that he had not seen any damage when he visited the school five days prior. During the ensuing investigation, the police collected a number of cigarette butts that were found in the school's kitchen.

A few weeks later, on December 20, 2014, an officer pulled over a white Ford F-150 truck occupied by Dobbins and one Clinton Ingram because its tags were expired. The detective who searched the truck found bolt cutters, audio/video cables, and a compass from the school in the bed of the truck. Numerous cigarette butts were also found in the vehicle. The State introduced evidence that the truck had been previously registered to Dobbins; however, there was also evidence that Ingram frequently drove the truck and would sell tools from it. Neither Dobbins nor Ingram were arrested for the school burglary at the time of the stop, and the State offered no evidence from the stop to indicate that either Dobbins or Ingram knew the property in the bed of the truck had been stolen from the school several weeks previously.

However, on December 25, 2014, an officer was dispatched to the school after a silent alarm was triggered. The responding officer saw two people running away from the school, one of whom was caught and identified as Ingram. Ingram was subsequently released on bail, failed to appear, and was still at large at the time of Dobbins' trial. A few months later, a forensic expert determined that DNA from one of the cigarette butts found at the school matched Dobbins' DNA; he was subsequently arrested for the burglary of the school.

After the State rested its case, Dobbins' moved for a judgment of acquittal, arguing that the State's evidence was solely circumstantial and did not contradict his reasonable hypothesis of innocence, i.e., that while the cigarette may have proven his presence at the school at some point in time, it was insufficient to prove that he committed the charged burglary. Furthermore, Dobbins argued that his mere presence near the stolen property did not prove possession. The trial court denied the motion, and the jury convicted Dobbins as charged. Dobbins now appeals his conviction and sentence, contending that the trial court erred by denying his motion for judgment of acquittal.

The denial of a motion for a judgment of acquittal is subject to de novo review. See State v. Platt, 154 So. 3d 1200, 1201 (Fla. 2d DCA 2015) (citing Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002) ). "[W]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Knight v. State, 186 So. 3d 1005, 1009 (Fla. 2016) (quoting Jaramillo v. State, 417 So. 2d 257, 257 (Fla. 1982) ). Circumstantial evidence that fails to exclude a defendant's reasonable hypothesis of innocence requires an acquittal "no matter how strongly the evidence may suggest guilt." Singleton v. State, 105 So. 3d 542, 544 (Fla. 2d DCA 2012) (quoting State v. Law, 559 So. 2d 187, 188 (Fla. 1989) ).

In this appeal, Dobbins relies on this court's opinion in Singleton to support his contention that the State's evidence was legally insufficient to support his conviction. In Singleton, the evidence showed that the day before the burglary at issue, Singleton and his friend were helping someone move. Id. at 543. The person who rented the moving truck had the only key and was due to pick up the truck the next day. The morning after the move, the police received a report that items had been stolen from the house next door. Id. While searching the area, police smelled a tobacco odor emanating from inside the rental truck. When the officer opened the door of the truck, he found the stolen items along with a burning cigar near the rear edge of the truck. Singleton's DNA was later detected on the cigar. Id. The State also presented evidence that Singleton smoked that type of cigar and had been seen in the area earlier that morning walking his dog. Id. at 542-43. The State contended that this evidence was sufficient to support Singleton's convictions for burglary and grand theft, the trial court denied Singleton's motion for judgment of acquittal, and the jury convicted him of these offenses. Id. at 544.

On appeal, this court held that the "State's proof was woefully lacking." Id. at 545. Quoting Professor Ehrhardt's classic example, this court reiterated the difference between direct and circumstantial evidence:

Direct evidence is evidence which requires only the inference that what the witness said is true to prove a material fact; e.g., "I saw A shoot B" is direct evidence that A shot B. Circumstantial evidence is evidence which involves an additional inference to prove the material fact; e.g., "I saw A flee the scene" is circumstantial evidence of A's guilt and direct evidence of flight.

Id. at 544 (quoting Charles W. Ehrhardt, Florida Evidence § 401.1 (2011 ed.)). And because the only evidence presented by the State to connect Singleton to the burglary and theft was circumstantial, that evidence was legally insufficient to support his convictions. Id. at 545.

In this case, as in Singleton, the DNA evidence presented by the State failed to establish that Dobbins committed the burglary at the school. At most, the DNA on the cigarette established that Dobbins was present at the school sometime around the time a burglary was committed. However, as we held in Singleton, "an accused's mere presence at the scene does not eliminate a reasonable hypothesis that someone other than the accused committed the crime." Id. at 545 (citing Valdez v. State, 504 So. 2d 9, 10 (Fla. 2d DCA 1986) ("Mere knowledge that an offense is being committed is not the same as participation with criminal intent."), and Owen v. State, 432 So. 2d 579, 581 (Fla. 2d DCA 1983) ("[W]hen the state relies on circumstantial evidence, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused and no one else committed the offense charged.")). Hence, the fact that the DNA on the cigarette could place Dobbins in the school at some point in time was insufficient to establish either that he was there on the date the crime was committed or that he participated in committing it.

The State contends that Singleton does not control the outcome of this case because, in this case, both Dobbins and Ingram were found in possession of property stolen from the school. The State argues that the evidence of possession can support Dobbins' conviction because possession of recently stolen property gives rise to an inference that the one in possession committed the burglary or theft. See § 812.022(2), Fla. Stat. (2014) (providing that proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen); see also Walker v. State, 896 So. 2d 712, 720 n.5 (Fla. 2005) (applying the inference regarding possession of recently stolen property to a case involving constructive possession). However, this argument is not supported by the record.

"To establish constructive possession, the State must 'prove beyond a reasonable doubt that the defendant knew of the presence of the illegal items [and] was able to exercise dominion and control over them.' " Sanders v. State, 210 So. 3d 246, 248 (Fla. 2d DCA 2017) (alteration in original) (quoting Hargrove v. State, 928 So. 2d 1254, 1256 (Fla. 2d DCA 2006) ). "[T]he requisite control is not established by an accused's mere proximity to the contraband." Id. (quoting G.G. v. State, 84 So. 3d 1162, 1164 (Fla. 2d DCA 2012) ). And this is particularly true in a jointly occupied vehicle. See K.A.K. v. State, 885 So. 2d 405, 407 (Fla. 2d DCA 2004) (" 'In a case of a jointly-occupied vehicle, knowledge and ability to control the contraband may not be inferred, but must be established by independent proof.' E.A.M. v. State, 684 So. 2d 283, 284 (Fla. 2d DCA 1996). 'This proof must consist either of actual knowledge of the contraband's presence or evidence of incriminating statements and circumstances from which the jury reasonably might infer the accused's actual knowledge of the presence of the contraband.' A.C. v. State, 658 So. 2d 1173, 1174 (Fla. 2d DCA 1995)."). Cf. Meme v. State, 72 So. 3d 254, 256-57 (Fla. 4th DCA 2011) (holding that the State presented sufficient evidence to withstand a motion for judgment of acquittal where an officer saw the defendant in the jointly occupied vehicle reaching to the place where the contraband was later found).

In this case, the State did not present evidence to prove that Dobbins had constructive possession of any of the school's property. The officer who pulled over Dobbins and Ingram did not testify; thus, it is unknown who was driving the truck or whether the stolen goods were within anyone's ready reach. And although there was testimony that the truck was previously registered to Dobbins, there was also testimony that Ingram frequently used the truck. Thus, there was insufficient evidence to prove that Dobbins knew of the presence of the stolen items in the truck or was able to exercise dominion and control over them. In the absence of such evidence, the State failed to prove that Dobbins had possession-either actual or constructive-of the stolen property so as to support his conviction for burglary.

In summary, the sole cigarette butt found at the school with Dobbins' DNA on it proved, at most, that Dobbins had trespassed at some time in the past. It did not prove that he committed a burglary that caused damage in excess of $1000. Therefore, because the State's evidence was legally insufficient, the trial court erred in denying Dobbins' motion for judgment of acquittal. We therefore reverse Dobbins' judgment and sentence and remand for discharge.

Reversed and remanded with directions.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: Per Curiam.

text:
    Kenneth D. MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-2507
    District Court of Appeal of Florida, First District.
    July 24, 2019
    Kenneth D. Miller, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wolf, Roberts, and Jay, JJ., concur.


author: PER CURIAM.

text:
    Edward LEVINE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-1424
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 24, 2019
    Robert Wesley, Public Defender, and Melissa Vickers, Assistant Public Defender, Orlando, for Petitioner.
    Ashley Moody, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 11, 2019 judgment and sentence rendered in Case No. 2013-CF-9302-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

BERGER, HARRIS and GROSSHANS, JJ., concur.


text:
    Michelle WALKER, Petitioner, v. STATE of Florida, Respondent.
    CASE NOS. 5D19-1912 5D19-1913 5D19-1914 5D19-1941
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 25, 2019
    Steve Wolverton, of Gutin & Wolverton, Cocoa, for Petitioner.
    Ashley Moody, Attorney General Tallahassee, and, Kaylee Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 23, 2019 judgments and sentences imposed in Case Nos. 2011-CF-59401, 2012-CF-031725, 2012-CF-59603, and 2018-CF-30534-B, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EDWARDS, EISNAUGLE and BERGER, JJ., concur.


text:
    Juan Francisco MONTANEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-193
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 25, 2019
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Juan Francisco Montanez's judgment and sentence for trafficking in twenty-eight grams or more of heroin and possession of drug paraphernalia, but we reverse and remand the imposition of the $100 cost for the FDLE Operating Trust Fund pursuant to section 938.055, Florida Statutes (2018). The trial court failed to orally pronounce this cost at sentencing. See Cain v. State, 197 So.3d 1096, 1096 (Fla. 1st DCA 2016) (reversing and remanding $100 cost for FDLE Operating Trust Fund pursuant to section 938.055, because trial court failed to orally pronounce cost at sentencing hearing but noting that trial court could reimpose cost on remand). On remand, however, the trial court may reimpose the FDLE Operating Trust Fund cost after following the proper procedure. See Oliver v. State, 75 So.3d 349, 350 (Fla. 1st DCA 2011) (reversing imposition of discretionary fines and permitting trial court to reimpose the fines on remand "by following the proper procedure, which includes individually announcing each assessment and the authority for each"). In all other respects, we affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

BERGER, HARRIS and GROSSHANS, JJ., concur.


author: EVANDER, C.J.,

text:
    Sylvester M. JOSEPH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3907
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 25, 2019
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, C.J.,

Sylvester Joseph appeals his convictions for burglary of a conveyance while armed and grand theft. He argues that the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence to support the convictions. We agree and reverse.

On December 22, 2016, the victim drove her car to the Humane Society in Ocala to drop her dogs off. The dogs were to be kenneled while the victim went out of town. The victim's car was burglarized during the short time that the victim was inside the building.

The Humane Society surveillance video revealed that immediately prior to the burglary a dark-colored Chrysler 300 backed into the parking space next to the victim's vehicle. An unidentified man was seen exiting the rear door of the Chrysler 300. Moments later, the victim's vehicle's lights were flashing. Shortly thereafter, the Chrysler 300 exited the parking area. When the victim returned to her car, she discovered that two of the windows had been "smashed" and multiple items had been stolen. Among the stolen items were a handgun, two Coach purses, Coach and Armani perfume bottles, a distinctive red designer dress, a large amount of cash, and some credit cards. The victim provided police with photos of some of the stolen items.

Twelve days later, on January 3, 2017, an investigating officer went to Justine Wilkerson's Ocala residence. Wilkerson is the mother of Joseph's child. Joseph was alone inside Wilkerson's apartment at the time of the officer's arrival. When Wilkerson arrived, she granted the officer permission to search her apartment. During the ensuing search, the officer found the two stolen Coach purses and the stolen red designer dress in the spare bedroom closet. Wilkerson testified that she had never previously seen these items. On the bed in the spare bedroom, police found receipts including one with Joseph's fingerprint on it. In Wilkerson's bedroom, the officer found the two stolen bottles of perfume.

Police investigators determined that Joseph had rented a dark-colored Chrysler 300 from Enterprise Rent-a-car in Tampa on December 10, 2016. The vehicle was returned to Enterprise in Ocala on January 2, 2017. Police searched the vehicle after it was returned and located one of the victim's credit cards. Police also found a Walmart receipt dated December 21, 2016, and a Toys "R" Us receipt dated December 24, 2016, in the Chrysler 300. Thereafter, Joseph's fingerprint was determined to be on the Walmart receipt and Corey Rutledge's fingerprint was determined to be on the Toys "R" Us receipt. Rutledge is Wilkerson's brother.

At trial, the State presented the testimony of several witnesses, including Wilkerson. Wilkerson testified, inter alia, that Joseph lived in the Tampa area. He would stay in her spare bedroom when he visited. However, Wilkerson also testified that her brother, Rutledge, as well as two other individuals, would sometimes stay in the spare bedroom. Finally, Wilkerson testified that in the month of December 2016, both Joseph and Rutledge had driven the Chrysler 300 and, in fact, she believed that Rutledge had been arrested while driving the car on December 31st.

Notably, the State did not present any direct evidence placing Joseph at or near the Humane Society at the time of the burglary or directly linking him to any of the stolen items. Notwithstanding, the State argues that the circumstantial evidence adduced at trial was sufficient to support Joseph's convictions. We disagree.

A special standard of review of the sufficiency of the evidence applies where, as in the instant case, a conviction is wholly based on circumstantial evidence. State v. Law , 559 So. 2d 187, 188 (Fla. 1989). "Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Knight v. State , 186 So. 3d 1005, 1009 (Fla. 2016) (quoting Jaramillo v. State , 417 So. 2d 257, 257 (Fla. 1982) ). Here, Joseph's hypothesis of innocence was that he was not involved in the burglary or theft that were the subject of the charges against him.

As previously noted, the State presented no direct evidence connecting Joseph to the burglary or the stolen items. Although the State's evidence was sufficient to establish that a vehicle rented to Joseph was involved in the burglary, and that his fingerprints were found on papers located in the vehicle and in Wilkerson's spare bedroom, the uncontroverted evidence was that Joseph was not the only individual who used the car during the rental term or used the spare bedroom in December 2016. Further, his fingerprints were not found on any of the recovered stolen items.

The State argues that it is entitled to the inference set forth in section 812.022(2), Florida Statutes (2016):

Proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

This inference of guilt has been found to be sufficient to support both a theft and a burglary conviction. Francis v. State , 808 So. 2d 110, 134 (Fla. 2001) ("Unexplained possession of recently stolen property is not only sufficient to support a theft conviction but when a burglary necessarily occurs as an adjunct, the inference of guilt from the unexplained possession of the recently stolen goods also supports a conviction for burglary." (quoting T.S.R. v. State , 596 So. 2d 766, 767 (Fla. 5th DCA 1992) )).

However, in order to avail itself of this inference, the State has to prove that the stolen property was recently stolen and that possession was exclusive. Bronson v. State , 926 So. 2d 480, 484 (Fla. 2d DCA 2006). The "exclusive possession" requirement can include the "joint possession of two or more persons acting in concert." Id. But, the possession must be more than superficial; it must be conscious and substantial. Id. at 485 (quoting Garcia v. State , 899 So. 2d 447, 451 (Fla. 4th DCA 2005) ).

Here, the State is not entitled to the inference set forth in section 812.022(2). The uncontroverted evidence was that stolen items were found in the spare bedroom closet in Wilkerson's apartment and that at least four different individuals had, on occasion, stayed in that bedroom. There was no evidence that Joseph had acted "in concert" with those other individuals with regard to "possession" of the stolen goods. "Merely sharing the location where stolen property was found with others does not support the inference instruction." Midgette v. State , 152 So. 3d 767, 768 (Fla. 5th DCA 2014). Although the State's evidence may have suggested Joseph's guilt, it was not "inconsistent with any reasonable hypothesis of innocence." Knight , 186 So. 3d at 1009.

Our conclusion finds support from our sister courts' decisions in Bronson and Garcia . In Bronson , an older model white pick-up truck was seen in front of a house at or near the time the house had been burglarized. 926 So. 2d at 481. Approximately an hour or two later, a vehicle matching that description was stopped by police. Id. at 482. The appellant, Ricky Bronson, Jr., was a passenger in that vehicle. Id. The driver was Bronson's father. Id. Some of the items stolen from the burglarized house were found in the truck. Id. Another stolen item (a television) was found outside the residence of Bronson Jr.'s girlfriend. Id. The Second District concluded that the trial court erred in denying Bronson's motion for judgment of acquittal. The court first observed that there was no evidence placing Bronson at or near the crime scene. Id. at 484. Second, the court determined that there was no evidence of Bronson's "exclusive" possession of the stolen goods. Specifically, he was not in actual possession or joint possession with a person with whom he was acting in concert. Therefore, the state could not rely on the inference of guilt set forth in section 812.022(2). Id.

In Garcia , the victim arrived home to find a red van backed up to his front door. 899 So. 2d at 448. When the driver of the van began to honk frantically, a Hispanic man ran out of the house and dove head first into the front passenger seat. Someone inside the van immediately shut the side door, and the van sped off. Id. Shortly thereafter, a deputy stopped a van matching the description and found that it contained the victim's stolen property. Id. There were four people inside the van with Garcia being one of the rear-seat passengers. Id. At trial, the victim could not identify Garcia. Id. at 449.

The Fourth District held that the evidence was insufficient to convict Garcia, notwithstanding his presence in the van and his proximity to the recently stolen property. The court determined that the state could not take advantage of the statutory inference of guilt because no evidence was presented that Garcia had exclusive possession of the stolen property or the ability to exercise dominion and control over it. Id. at 451.

As did the appellate courts in Bronson and Garcia , we conclude that the trial court erred in denying the motion for judgment of acquittal made below. We reverse Joseph's convictions for burglary of a conveyance while armed and grand theft and remand with instructions to discharge him.

REVERSED and REMANDED.

BERGER, J., concurs.

GROSSHANS, J., concurs, and concurs specially, with opinion.

GROSSHANS, J., concurs, and concurs specially, with opinion.

I agree that Appellant's convictions cannot be sustained pursuant to the reasonable-hypothesis-of-innocence standard of review and that the majority opinion correctly applies current Florida law.

However, when writing for this court, then-Judge Lawson observed that this special standard is both confusing and misleading. See Knight v. State, 107 So. 3d 449, 456-62 (Fla. 5th DCA 2013). I find his thorough analysis questioning this standard to be persuasive. As Justice Canady also noted, "It is a striking and inexplicable anomaly that we have rejected the reasonable-hypothesis-of-innocence jury instruction but have nonetheless retained the special standard of review." Knight v. State, 186 So. 3d 1005, 1013 (Fla. 2016) (Canady, J., concurring in result).

For the reasons underscored above, I urge our supreme court to reconsider the propriety of the special standard of review in light of our current jury instructions.

      Based on our disposition of this issue, it is unnecessary to address the other issue raised on appeal by Joseph.

      The State attempts to bolster its argument by observing that Wilkerson testified that Joseph had use of the spare bedroom closet. (She was not questioned as to whether Rutledge or the other individuals had use of that closet.) The fact that Joseph may have used the spare bedroom closet does not alter the fact that multiple individuals had access to the stolen property located therein, nor does it establish that Joseph had exclusive possession of that property.


author: EDWARDS, J.

text:
    N.J., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1949
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 26, 2019
    James S. Purdy, Public Defender, and Shawna R. Moyers, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

Appellant, N.J., a fifteen-year-old child, appeals the disposition order in which he was found to be delinquent for possessing less than 20 grams of marijuana. N.J. argues that the trial court erred in denying his motion to suppress the fruits of an illegal search. The evidence adduced at trial and the applicable law do not support the trial court's conclusion that the search was incidental to a consensual encounter between Appellant and Deputy Hawthorne. Accordingly, we reverse.

On the evening of April 30, 2018, Appellant and two of his teenaged friends were walking down a sidewalk. Deputy Hawthorne, on foot patrol in the area, approached them and told them to stop. They did not. Appellant said, loud enough for Deputy Hawthorne to hear, words to the effect that he did not have to stop. Deputy Hawthorne continued walking towards them and told them either one or two more times to stop; they finally did. When one of the young men asked why they were in trouble, the deputy said he was only trying to put names with faces, that nobody said they were in trouble. Deputy Hawthorne explained that many people in the area were on probation and could be violating the terms of their probation. He told the teens that they were not under arrest but were being detained. He then segued into asking each of the young men in turn if he had been arrested or was on probation. Appellant's friends, who were not on probation, were told they were free to go only after they answered all of Deputy Hawthorne's questions.

Deputy Hawthorne's hunch that some people in the area were violating their probation-related curfews proved correct as to Appellant. He admitted that he was on probation, but denied knowing he missed his 6:00 p.m. curfew as he did not know the current time. Deputy Hawthorne then handcuffed Appellant and placed him in the back of his squad car. The deputy phoned Appellant's mother and told her that her son had violated his curfew and was not at home as she believed. Video and audio from the deputy's body camera was introduced in evidence. Up to this point in the sequence of events, Deputy Hawthorne had not said anything about marijuana.

Next, the deputy had Appellant exit the squad car so that he could search him before taking him to the juvenile facility for processing. In the course of this search, Deputy Hawthorne found two cigarette lighters and the burnt remains of a marijuana cigarette, a/k/a a roach, in Appellant's pocket. After the deputy returned Appellant to the squad car, the deputy once again phoned Appellant's mother and, on the second call, mentioned that her son had weed in his possession.

Appellant filed a pre-trial motion to suppress the marijuana which the trial court initially denied as legally insufficient. Appellant's counsel throughout the adjudicatory hearing repeatedly argued that the marijuana had been illegally seized as it was not a consensual encounter, and that the deputy lacked any reasonable suspicion to believe that Appellant or the two other teens had committed, were committing, or would soon be committing any crime. Before the adjudicatory hearing ended, the trial court denied the motion to suppress and ruled that it was a consensual encounter between the deputy and the three teenagers that led to the discovery of the contraband in Appellant's pocket. At the conclusion of the hearing, the court found Appellant delinquent for possessing 20 grams or less of marijuana and in violation of probation. At the disposition hearing, the trial court placed Appellant on probation for eighteen months or until age nineteen. Appellant timely appealed.

ANALYSIS

We consider whether, as found by the trial court, there was a consensual encounter between Appellant and Deputy Hawthorne, which would support the denial of Appellant's motion to suppress.

"During a consensual encounter, a citizen may voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked." Popple v. State , 626 So.2d 185, 186 (Fla. 1993). "[A] significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person's freedom to leave or freedom to refuse to answer inquiries, and the person may not be detained without a well-founded and articulable suspicion of criminal activity." Id. at 187-88. A consensual encounter does not exist where a police officer attempts to prevent a citizen from walking away. Watts v. State , 578 So.2d 437, 438 (Fla. 1st DCA 1991). What otherwise might have been a consensual citizen encounter becomes an investigatory stop once an officer shows authority in a manner that restrains the defendant's freedom of movement such that a reasonable person would feel compelled to comply. Koppelman v. State , 876 So.2d 618, 620 (Fla. 4th DCA 2004). "[A] person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter or depart." Popple , 626 So.2d at 188.

Under the controlling law set forth above, the facts of this case do not support a finding that this was a consensual citizen encounter. The teens did not stop when first ordered to do so by Deputy Hawthorne; in fact, Appellant loudly announced that he did not have to stop. The group only stopped after the second order from Deputy Hawthorne, whose specific testimony was that he gave the teens a lawful order to stop and detained them. Appellant was not free to ignore the deputy. Nor would any reasonable person in Appellant's position have believed that he was free to go.

Because the only basis offered by the trial court for its order denying the motion to suppress was its finding that this was a consensual encounter, we are compelled to reverse, as this was not a consensual encounter. Although the State alternatively argued in the trial court and on appeal that Deputy Hawthorne's seizure and search of Appellant were justified under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we will not speculate as to how the trial court might have ruled on that issue, as it would require the evaluation of witness credibility in the midst of arguably inconsistent testimony that was not conclusively supported by other evidence. Accordingly, we reverse the disposition order finding Appellant delinquent for possessing 20 grams or less of marijuana and in violation of probation. We remand this matter to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

COHEN and LAMBERT, JJ., concur.

      The written motion laid out the facts in some detail and contained a rather general discussion of search and seizure law; however, the trial court commented that there was no attempt made in the motion to apply the law to the specific facts.

      See A.T. v. State , 93 So.3d 1159, 1161 (Fla. 4th DCA 2012), and Robinson v. State , 976 So.2d 1229, 1233 (Fla. 2d DCA 2008), which hold that where a police officer smells the odor of marijuana emanating from a group of people, but where the odor is not associated with any specific individual, the officer lacks reasonable suspicion to perform an investigatory stop of any member of the group.


text:
    Brad ELLCEY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-1843
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 26, 2019
    James R. Dozier, Law Office of Grant & Dozier, LLC, Inverness, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the March 28, 2019 judgment and sentence rendered in Case No. 2018-CF-605, in the Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

HARRIS, GROSSHANS and SASSO, JJ., concur.


text:
    Stuart HICKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-888
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 26, 2019
    Stuart Hickson, Bristol, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Stuart Hickson, appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

In his rule 3.850 motion, Appellant claims that trial counsel provided ineffective assistance in that counsel misadvised him to reject the State's plea offer of thirty years in prison and misadvised him as to the strength of the State's case against him. Appellant, now serving multiple life sentences as a Prison Releasee Reoffender, asserts that, but for counsel's misadvice, he would have accepted the State's offer. The postconviction court summarily denied Appellant's motion.

We review the summary denial of a rule 3.850 motion de novo. Lebron v. State, 100 So.3d 132, 133 (Fla. 5th DCA 2012). The postconviction court must conduct an evidentiary hearing unless the allegations are facially insufficient, conclusively refuted by the record, or legally insufficient. Id.

In reviewing the record attached to the challenged order, we find nothing that conclusively refutes Appellant's facially-sufficient allegations. We therefore reverse the summary denial and remand for the postconviction court to attach records conclusively refuting Appellant's claim or to hold an evidentiary hearing.

REVERSED and REMANDED.

ORFINGER, WALLIS, and GROSSHANS, JJ., concur.


author: SASSO, J.

text:
    Heath Lee HELVEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1487
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 26, 2019
    James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   SASSO, J.

Heath Lee Helvey appeals the orders denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the summary denial of grounds four (d), five, and six. In all other respects, we affirm.

Appellant was charged with first-degree murder with a weapon, dealing in stolen property, and receiving money from a pawnbroker by false verification of ownership or identification. The jury found Appellant guilty on all counts. In ground four (d) of his postconviction motion, Appellant argued that counsel was ineffective for failing to challenge "numerous" Giglio violations. This allegation was based on Appellant's assertion that the State knowingly presented false testimony through its key witness. Appellant's allegations, accepted as true, constitute a facially sufficient claim for ineffective assistance of counsel. See, e.g. , Hernandez v. State , 180 So.3d 978, 993-94 (Fla. 2015). While we agree with the postconviction court that inconsistencies between witnesses is not the equivalent of a Giglio violation, no attachments were included to support this determination and the record does not conclusively refute Appellant's allegations.

Likewise, Appellant states a facially sufficient claim in ground five, alleging that counsel was ineffective in misadvising him with respect to the inference applicable to being in possession of stolen property without a satisfactory explanation and with respect to what the jury would learn about his prior criminal history if he testified. We cannot agree with the postconviction court that counsel could not be expected to predict the use of the inference instruction, especially where the record reflects counsel stated he knew of the standard instruction and did not object to its use. The record does not conclusively refute Appellant's allegations as to this aspect of ground five. The record also does not refute Appellant's allegation his counsel misadvised him that if he testified, the jury would learn the nature of his prior convictions. See, e.g. , Askew v. State , 265 So.3d 693, 693-94 (Fla. 1st DCA 2019) (reversing summary denial of ineffective assistance claim "that defense counsel was ineffective for misadvising [the defendant] that if he testified at trial, the jury would automatically learn the nature of his past crimes and the State could go into the specifics of his prior record on cross-examination"

because "this was a facially sufficient claim").

Finally, because we reverse and remand grounds four (d) and five, we also reverse and remand ground six, Appellant's cumulative error claim. See, e.g. , Batista-Irizarry v. State , 266 So.3d 254, 258 (Fla. 5th DCA 2019) (reversal and remand on some claims requires reversal of cumulative error claim). On remand, the postconviction court shall attach records that conclusively refute the claims or hold an evidentiary hearing.

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

WALLIS and LAMBERT, JJ., concur.

      Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).


text:
    Eric Michael REDDEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-1369
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 26, 2019
    Eric Michael Redden, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Eric Michael Redden appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse.

Redden's claim below was simple. He alleged that he was eighteen years old at the time of the crime. He pled no contest and was sentenced to twelve years in prison. His counsel knew his age, but failed to tell him about the possibility of a youthful offender disposition under section 958.04, Florida Statutes (2018). If counsel had advised him of that possibility, Redden alleged that he would have negotiated for a youthful offender sentence. This type of claim can warrant an evidentiary hearing. See, e.g., Carswell v. State, 845 So.2d 263, 263 (Fla. 2d DCA 2003) (reversing for evidentiary hearing on claim that counsel failed to advise defendant of eligibility for sentencing under Youthful Offender Act).

The postconviction court denied relief, concluding that the sentencing court made it clear that it would not impose a youthful offender sentence due to the nature of the charges. See Gordon v. State, 863 So.2d 1215, 1223 (Fla. 2003) (explaining counsel cannot be deemed to be ineffective for failing to raise claim that would have been futile). However, the court attached no records to its order to support that conclusion. Rule 3.850(f)(5) instructs that "[i]f the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order."

As a result, we reverse and remand for an evidentiary hearing or for the attachment of records supporting the denial. See Fla. R. App. P. 9.141(b)(2)(D).

REVERSED and REMANDED.

ORFINGER, LAMBERT and EDWARDS, JJ., concur.


text:
    Karl O. KOEPKE, Appellant, v. Nancy M. KOEPKE, Appellee.
    Case No. 5D18-2231
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 26, 2019
    Roy D. Wasson, of Wasson & Associates, Chartered, Miami, for Appellant.
    Gregory M. Wilson, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED.

GROSSHANS, J., and ROBERSON, E.C., Associate Judge, concur.

COHEN, J., concurs and concurs specially, with opinion.

COHEN, J., concurs and concurs specially, with opinion.

Karl O. Koepke ("Former Husband") appeals the final order finding him in indirect criminal contempt of court in his post-dissolution action against Nancy M. Koepke ("Former Wife"). He raises two issues on appeal: (1) the trial court's failure to effectuate proper service of process pursuant to Florida Rule of Criminal Procedure 3.840(a), and (2) the insufficiency of evidence establishing willfulness.

The second argument raised is meritless. Former Husband, a practicing lawyer, has been battling with Former Wife over his payment of alimony. During the pendency of the proceeding, Former Wife sought discovery related to Former Husband's anticipated settlement of a personal injury case, in which he was expected to generate a significant award of attorneys' fees. Former Wife sought to use the award to resolve Former Husband's unpaid alimony obligation. However, after settling the personal injury case, Former Husband proceeded on a course of conduct devised to conceal from Former Wife both the settlement and his award of attorneys' fees. Ultimately, Former Husband placed a significant portion of his awarded fees into an irrevocable trust to shield the monies from use for repayment of past due alimony.

The record amply supports the trial court's findings holding Former Husband in indirect criminal contempt. The court, in its well-articulated order, stated:

In this case, the Court concludes that the Defendant's responses to the discovery requests, both as a lawyer and client, were untruthful and intentionally misleading, interposed for the purpose of obfuscating and delaying Former Wife's discovery of the terms of the Settlement Agreement at Mediation. At the time the Defendant produced no settlement agreement and affirmatively stated there were no settlement agreements, there was in fact a Settlement Agreement at Mediation personally signed by the Defendant. The Court also concludes that the Defendant's intentional failure to comply with the properly issued subpoena duces tecum for trial was intended to obfuscate and delay Former Wife's discovery of the terms of the Settlement Agreement at Mediation, and to delay and hinder trial on the issues of alimony.
....
While successfully accomplishing the delay in disclosure of the personal injury case settlement, Defendant researched, planned and executed a diversion of the attorneys' fees to an irrevocable trust. The diversion effectively shielded a substantial asset that would have been available for payment of overdue, unpaid alimony and attorneys' fees/costs as appropriate. Further, it impacted the Court's ultimate analysis of the Defendant's "ability to pay." This is a financial win for the Defendant, at the cost of integrity and fairness in the justice system.
....
Lawyers are sworn to uphold principles of truth and honor in the administration of justice, and shall "never seek to mislead the judge ... by any artifice or false statement of fact or law." The Defendant intentionally violated his oath and these enduring principles that are fundamental to the integrity of our system of justice. In doing so, he disrupted the orderly administration of justice, and hindered, obstructed, delayed, and frustrated the prosecution of this case. Sanctions for contempt of court are mandated by the law and the facts of this case.

We fully agree with the trial court's conclusions on this issue and find no error.

Former Husband's argument as to service of process merits discussion. Former Husband seeks reversal of the order to show cause because a sheriff or process server did not serve him the order. I disagree.

Florida Rule of Criminal Procedure 3.840 provides in pertinent part:

A criminal contempt, except as provided in rule 3.830 concerning direct contempts, shall be prosecuted in the following manner:
(a) Order to Show Cause. The judge, on the judge's own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.

The rule is silent as to the required method of service.

Here, Former Husband was served the order to show cause through the E-Portal System, which sent the order and a notice of electronic filing to the attorneys of record. In this case, the attorneys of record included Former Husband, his counsel, and Former Wife's counsel. Former Husband does not suggest that he was unaware of, or surprised by, either the allegations raised against him or the occurrence of the hearing. He appeared at the hearing, and both he and his counsel in the dissolution case testified.

Despite not raising this issue below, Former Husband argues that the failure to effectuate personal service of process of an order to show cause constitutes fundamental error. Former Husband relies upon Graham v. Florida Department of Children & Families, 970 So. 2d 438 (Fla. 4th DCA 2007). In Graham, the trial court appointed Catholic Charities of the Diocese of Palm Beach as the emergency temporary plenary guardian of Graham's incapacitated mother. Id. at 440. Graham allegedly removed his mother, as well as her money, from the jurisdiction of the court. Id. Catholic Charities filed a verified petition for an order compelling Graham to disclose his mother's location and to show cause why he should not be held in contempt of court. Id. The trial court's show cause order indicated that Graham and his attorney received copies of the order, to which Graham responded, but it was undisputed that Graham was not personally served with the order and did not appear before the trial court. Id. at 440, 442. On appeal, the Fourth District found that the trial court's failure to strictly comply with Rule 3.840 warranted reversal. Id. at 442 (citing Van Hare v. Van Hare, 870 So. 2d 125, 127 (Fla. 4th DCA 2003) (reversing criminal contempt order for failure to comply with Rule 3.840 )).

Unlike Graham, here, Former Husband was directly served through the E-Portal System. The plain text of Rule 3.840 does not define the nature of service. The only case that attempts to define the method of service for such orders is Giles v. Renew, 639 So. 2d 701 (Fla. 2d DCA 1994). In a footnote, Giles, a domestic relations case, relied on Florida Rule of Juvenile Procedure 8.285(b)(1), which states that an order to show cause for indirect contempt "shall be served in the same manner as a summons." Id. at 702 n.2.

In contrast, Florida Rule of Judicial Administration 2.516 mandates service via electronic filing. That rules provides in relevant part:

(b)(1) Service by Electronic Mail ("e-mail"). All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides. A filer of an electronic document has complied with this subdivision if the Florida Courts e-filing Portal ("Portal") or other authorized electronic filing system with a supreme court approved electronic service system ("e-Service system") served the document by e-mail or provided a link by e-mail to the document on a website maintained by a clerk ("e-Service")....

Fla. R. Jud. Admin. 2.516(b)(1) ; see also Fla. R. Civ. P. 1.080(a) ("Every pleading subsequent to the initial pleading, all orders, and every other document filed in the action must be termed in conformity with the requirements of Florida Rule of Judicial Administration 2.516.").

It is axiomatic that strict compliance with Rule 3.840 is required and that the failure to do so raises due process concerns. Each of the five District Courts of Appeal seem to describe those due process concerns in terms of fundamental error. I am unaware of the Florida Supreme Court utilizing a fundamental error analysis in this context. As such, I am bound to follow our court's precedence in cases where a party was not served in strict compliance with Rule 3.840. Sylvester v. State, 923 So. 2d 1289, 1289 (Fla. 5th DCA 2006) (finding fundamental error where Rule 3.840 procedures were not strictly followed in criminal contempt proceeding); Hagan v. State, 853 So. 2d 595, 597 (Fla. 5th DCA 2003) ("[F]ailure to strictly follow the dictates of Rule 3.840 constitutes fundamental, reversible error." (citations omitted)).

However, in the instant case, the court complied with Rule 3.840. Former Husband was both a litigant and attorney below. He was served through the E-Portal System in accordance with Florida Rule of Judicial Administration 2.516 and never challenged that service in the trial court. I do not agree that when one appears in court and fully litigates the merits of a contempt action, the nature of the service of process becomes an issue of fundamental error on appeal. E.g., D.H. v. Adept Cmty. Servs. Inc., 271 So. 3d 870, 880 (Fla. 2018) ("Fundamental errors are those which go 'to the foundation of the case or ... to the merits of the cause of action.' " (quoting Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970) )).

I concur in affirmance.

      The portion not used to pay for his own attorneys' fees in this matter.

      While I agree that because of the criminal nature of such indirect contempt issues, the full panoply of procedural safeguards should be provided and an individual's due process rights should be scrupulously honored, I question such a per se rule.


text:
    Robert CARABALLO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-706
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 26, 2019
    Steven J. Parton, of Mandell Law, P.A., Winter Park, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant's judgment and sentence in all respects except as to the conviction on count thirty, one of fifty-one convictions for intentional viewing of materials depicting a sexual performance by a child in violation of section 827.071(5)(a), Florida Statutes (2017). Even when viewed in the light most favorable to the State, see Robinson v. State, 267 So.3d 567, 568 (Fla. 1st DCA 2019), the material did not meet the statutory definition of sexual performance. See § 827.071(1)(h)-(i), Fla. Stat. (2017). Thus, the trial court erred in refusing to grant a judgment of acquittal as to this count. Accordingly, we remand for the trial court to vacate the adjudication of guilt and sentence as to count thirty only.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, COHEN, and GROSSHANS, JJ., concur.


text:
    Jude Michael WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-408
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 26, 2019
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

After careful and thorough review, we affirm as to all but one issue raised in this appeal. We agree that the trial court erred in failing to include in its written sentencing order that Appellant, a juvenile at the time he committed the crimes of first-degree murder and armed burglary, is entitled to a judicial review of his sentence. Accordingly, we reverse only as to that issue and remand solely for entry of a corrected judgment and sentence providing for a judicial sentence review hearing after twenty-five years from the date of his original sentencing in accordance with section 921.1402(2)(a), Florida Statutes (2018). See Robinson v. State , 249 So.3d 791, 792 (Fla. 5th DCA 2018).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

LAMBERT, EDWARDS and GROSSHANS, JJ., concur.


text:
    Anna M. BELL, Appellant, v. William D. BELL, III, Appellee.
    No. 1D19-2092
    District Court of Appeal of Florida, First District.
    July 29, 2019
    Daniel Phillips of Phillips Law, PA, Tallahassee, for Appellant.
    No appearance for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of June 25, 2019, the Court has determined that because the order on appeal contemplates the need for additional judicial labor, it is not a final order. Further, the order is not appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii) b., because it does not fully determine the rights or obligations of a party regarding child custody or time-sharing. Accordingly, the appeal is dismissed for lack of jurisdiction.

Lewis, Kelsey, and Winokur, JJ., concur.


text:
    Gary PEARLMAN, Appellant, v. Michael BORGIA, Appellee.
    No. 1D19-1563
    District Court of Appeal of Florida, First District.
    July 29, 2019
    Gary Pearlman, pro se, Appellant.
    No appearance for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of June 19, 2019, the Court has determined that the order on appeal is not final and the appeal is premature because the order merely grants a motion and does not contain the requisite words of finality to make it an order entering a final appealable judgment. See Fla. R. App. P. 9.110(l ) ; Hickox v. Taylor , 933 So. 2d 675 (Fla. 1st DCA 2006). Accordingly, the appeal is dismissed for lack of jurisdiction. Appellant's request for clarification is denied.

Lewis, Kelsey, and Winokur, JJ., concur.


text:
    IDEAL PROFESSIONAL INSTITUTE INC., Appellant, v. BOARD OF NURSING, Appellee.
    No. 1D19-0595
    District Court of Appeal of Florida, First District.
    July 29, 2019
    Gregory M. Ochalek, Miami, for Appellant.
    Ashley Moody, Attorney General, and Marlene K. Stern, Senior Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellee's motion to dismiss the appeal, filed May 3, 2019, is denied. The motion is treated as a confession of error. Accordingly, we reverse the January 23, 2019, Order Vacating the Notice of Intent to Terminate Nursing Program and Reinstate Notice of Intent to Place Program on Probation, and remand for further proceedings.

Lewis, Kelsey, and Winokur, JJ., concur.


text:
    MJM ELECTRIC, INC./OCIP and Sedgwick CMS, Appellants, v. William SPENCER, Appellee.
    No. 1D18-4064
    District Court of Appeal of Florida, First District.
    July 29, 2019
    Robert B. Griffis of Jones, Hurley & Hand, P.A., Orlando, for Appellants.
    Bill McCabe of William J. McCabe, P.A., Longwood, and Dana L. Greenbaum of Dana L. Greenbaum, P.A., St. Petersburg, for Appellee.
   Per Curiam.

In this workers' compensation case, the Employer/Carrier (E/C) challenge the Judge of Compensation Claims' order awarding William Spencer medical care and temporary partial disability (TPD) benefits. We affirm, without discussion, six of the seven issues raised in this appeal. At the same time, we reverse the JCC's rejection of the E/C's affirmative defense that Spencer voluntarily limited his income by refusing suitable employment after the date the Employer terminated his employment, and we remand the case for further proceedings.

I

TPD benefits are payable to an injured employee if he has not reached overall maximum medical improvement from the injury and the medical conditions resulting from the injury create restrictions on the employee's ability to work. § 440.15(4)(a), Fla. Stat. (2017) ; see also Wyeth/Pharma Field Sales v. Toscano , 40 So. 3d 795, 799 (Fla. 1st DCA 2010). The employee's prima facie burden of proving TPD entitlement includes showing a causal connection between loss of employment at the pre-injury wages and the workplace injury. Id. (citing Photo Elec. Corp./WPEC v. Glick , 432 So. 2d 164, 165 (Fla. 1st DCA 1983) ). Once the injured employee persuades the JCC that this causal connection exists, the burden shifts to the E/C to demonstrate affirmatively a superseding or intervening cause of the wage loss, such as voluntary limitation of income or deemed earnings. See, e.g., Church's Chicken v. Anderson , 112 So. 3d 545, 547 (Fla. 1st DCA 2013) ; Toscano , 40 So. 3d at 803.

Here, the E/C do not dispute the JCC's finding that Spencer met his prima facie burden of proving entitlement to TPD benefits for his August 1, 2017, workplace shoulder injury. Instead, the E/C argue that the JCC erred as a matter of law when she rejected their affirmative defense of a voluntary limitation of income after August 16, 2017, the termination date of Spencer's employment. In making this argument, the E/C rely primarily on Spencer's alleged refusal of suitable employment under section 440.15(6). This statutory provision states that an employee who refuses suitable employment is not entitled to indemnity benefits, such as TPD benefits, "at any time during the continuance of such refusal unless at any time in the opinion of the [JCC] such refusal is justifiable." See also, Moore v. Servicemaster Commercial Servs ., 19 So. 3d 1147 (Fla. 1st DCA 2009). In her order, the JCC found that Spencer voluntarily limited his income by refusing suitable employment up until the date his employment was terminated, but that after this date, the defense no longer applied because the E/C stopped offering suitable employment. Here the JCC erred.

II

Mr. Hott, the Employer's service manager and shop superintendent, hired Spencer through the union hall to work as a journeyman electrician. Spencer testified that, on the morning of August 1st, he reported his workplace injury to his direct supervisor, Mr. Carney, and then went home. He stayed home for the next two days and when he returned to the workplace on the third day, he was taken to see Dr. Owi, an authorized physician. According to Mr. Hott, Mr. Carney spoke with Spencer on August 2nd, but when he heard nothing from him the next day, he and the on-site safety employee tried calling Spencer three times that day without success. On August 8th, Spencer called Mr. Carney and told him that he was not coming in to work. Mr. Hott testified that he called the union hall on the 14th and was told that they had not heard from Spencer.

At one point, Mr. Hott received an email from the doctor listing Spencer's work restrictions. He tried calling Spencer on August 10th and 14th, but when Spencer did not answer, he left voice mail messages advising him that light duty work was available and that he needed to come to work. He did not text or mail Spencer any offer of light duty employment. In his testimony, Mr. Hott described the light-duty job available to Spencer as one that fell within his work restrictions. Additionally, he stated that the Employer would have been able to accommodate whatever restrictions were assigned short of no-duty. And, according to Mr. Hott, the Employer would have kept Spencer in a modified "transitional" duty position "continuously until that was wrapped up and they said, 'hey, this guy can never work again' " or until he was released to go back to work.

On August 15th, the on-site safety manager sent an email to payroll indicating that Mr. Polanco, the assigned safety manager, had not heard anything from Spencer, including whether he attended a follow-up appointment. The Employer mailed Spencer a statement terminating his employment for job site abandonment on August 16th. As of the date of the final hearing, Spencer had not returned to work and had not looked for work. He testified that he did not believe he has been able to work safely since the accident and that he "can't work" because "there's no such thing as light duty on a job like [he] was working on." Although he anticipated retiring, he did not plan to do so for at least another six to nine months.

Spencer testified further that he did not really know whether the Employer had called him after his accident, but when he sees a phone number "that's not dialed in" he usually does not answer it because he has "gotten a lot of harassing calls before." He also does not retrieve voice mail unless he recognizes the telephone number; nevertheless, he testified at the final hearing that no voice mail message was left on his phone. He stopped calling because he was getting depressed over the situation. He believed that Mr. Hott called the union hall, but he personally did not call for many days because he was "into a pretty deep state of depression after [what] Dr. Owi said."

In the appealed order, the JCC found that the Employer offered Spencer suitable light duty work within his restrictions and that Spencer refused this offer when he "chose not to listen to his voice mail messages and did not himself contact the employer about returning to work." Based on these factual findings, the JCC concluded "as a matter of law" that Spencer was not entitled to TPD from the date of accident through August 16th. Nevertheless, she awarded TPD benefits from August 17th and continuing because she found the E/C did not meet their burden of showing available suitable employment after August 16th.

III

The E/C here had the burden of proving their affirmative defense of a voluntary limitation under section 440.15(6) (refusal of suitable employment). See Moore , 19 So. 3d at 1151. To the extent this issue turns on resolution of the facts, our standard of review is competent substantial evidence (CSE); to the extent it involves an interpretation of law, the standard is de novo. See Benniefield v. City of Lakeland , 109 So. 3d 1288, 1290 (Fla. 1st DCA 2013).

The E/C argue that the JCC erred as a matter of law because she assumed that the E/C were obliged to make repeated offers of suitable employment. In Moore , this court held that an employer is not required to "continually reoffer a job to avail itself of [this] statutory defense." 19 So. 3d at 1152. But at the same time, the court emphasized the employer must, nevertheless, "establish the continued availability of the job for each applicable period to obtain the continued benefit of the defense." Id.

Moore involved a factual situation very similar to the instant case. There, the employer offered the claimant a modified job within her assigned work restrictions, but she indicated that she wanted to complete physical therapy before returning to work. Id. at 1151-52. Approximately one month later, the employer terminated her employment. Id. at 1152. As the Moore court explained:

At first blush, it would seem that, as a matter of law, Claimant's refusal of the modified-dusting position would cease upon the termination of her employment and the resulting rescission of the offer of suitable employment. Here, however, Claimant made it clear that she would not return to work until after she received physical therapy - a course of conduct not justified by any medical testimony. Accordingly, we do not agree with Claimant's assertion that, as matter of law, her refusal of the modified dusting job ceased concurrently with the Employer's termination of her employment.

Id. According to this analysis, termination will result in rescission of an offer of suitable employment, but a claimant may nevertheless be found to continue to refuse suitable available employment. In other words, the fact that suitable employment is terminated is not determinative of the defense. Instead, when the injured employee's employment is terminated, a three-part inquiry applies: (1) did the employer establish the continued availability of suitable employment after termination; (2) did the injured employee continue to refuse suitable employment after termination; and (3) was the refusal justified?

The E/C argue that the JCC erred because her ruling is based solely on her finding that the Employer did not make continuous offers of suitable employment after August 16th. But here the JCC's findings suggest she considered more than whether repeated offers were made. For example, the JCC found that (1) Spencer was offered no medical care after August 21st and thus could not have returned to Dr. Owi to discuss any change in restrictions; (2) Spencer's independent medical examiner assigned work restrictions on January 12, 2018; (3) the Employer was unlikely to have employed Spencer in any light duty position after August 21st, the date Dr. Owi released Spencer to return to full duty work; and (4) Mr. Hott did not testify that Spencer would have been eligible to return to light duty work after termination if he had just called. Although the JCC concluded her analysis with reference to the lack of continuous offers after August 16th, these other findings arguably relate to the continuing availability of light duty employment.

Although it seems telling that the JCC found that the E/C did not show that light duty work "even existed" after August 16th, she also acknowledged Mr. Hott's testimony that suitable employment would have continued if Claimant had returned to work. Her finding that the Employer was not likely to offer light duty work after Spencer's release to full duty on August 21st seems speculative based on this record and, even if supported by the evidence, would not explain an award beginning August 17th . The same may be said about her finding that Spencer was given work restrictions after January 12, 2018. But at the end of the day, it is simply not certain whether the JCC based her ruling on more than the lack of continuous offers of employment after the date of termination.

Because the JCC's analysis and application of the law is not clearly in accord with the statute and the relevant case law, we REVERSE the JCC's rejection of the E/C's affirmative defense of refusal of suitable employment under section 440.15(6) and REMAND for reconsideration with findings addressing: (1) the continued availability of suitable employment; (2) Spencer's continued refusal of such suitable employment; and (3) any justification for a continued refusal.

Ray, C.J., and Bilbrey and Jay, JJ., concur.

      Other testimony suggests that Spencer sent a text on August 7th stating that he had a doctor's appointment and would not be in.


text:
    Lawrence George ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1910
    District Court of Appeal of Florida, First District.
    July 29, 2019
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Lawrence George Robinson raises two issues on appeal: (a) whether the trial court's determination that he violated probation was based solely on hearsay, and (b) whether his sentence should be corrected to reflect an award of 104 days jail credit. We affirm as to the first issue, but reverse and remand as to the second. As the State concedes, the amended judgment and sentence did not reflect the corrected jail credit of 104 days' time served and should be corrected on remand. See McCool v. State , 211 So. 3d 304 (Fla. 1st DCA 2017) (explaining that a "defendant is entitled to an award of credit for all time spent in jail prior to sentencing in a violation of probation case, which includes all time spent in jail prior to original sentencing plus all time spent in jail prior to any subsequent violation sentencings.") (quoting Jenkins v. State , 749 So. 2d 527, 528 (Fla. 1st DCA 1999) ).

REVERSED and REMANDED for resentencing.

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


text:
    STATE of Florida, Appellant, v. Antione Bernard HILLS, Appellee.
    No. 1D18-2503
    District Court of Appeal of Florida, First District.
    July 30, 2019
    Ashley Moody, Attorney General, and Benjamin Hoffman, Assistant Attorney General, Tallahassee, for Appellant.
    Lucas J. Taylor of Sellers, Taylor & Morrison, P.A., Live Oak, for Appellee.
   Per Curiam.

AFFIRMED. See Geralds v. State , 674 So.2d 96, 99 (Fla. 1996).

Roberts, Rowe, and Kelsey, JJ., concur.


text:
    Javon Maurice FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1636
    District Court of Appeal of Florida, First District.
    July 30, 2019
    Rick A. Sichta and Susanne K. Sichta of The Sichta Firm, LLC, Jacksonville, for Appellant.
    Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Hart v. State , 255 So. 3d 921 (Fla. 1st DCA 2018).

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


text:
    SBCR, INC. d/b/a Southern Concrete Repair, BITCO Insurance Companies, Appellants, v. Calvin DOSS, Appellee.
    No. 1D19-0099
    District Court of Appeal of Florida, First District.
    August 1, 2019
    Pamela J. Cox of Cox & Rouse, P.A., Maitland, for Appellants.
    Jonathan B. Israel of Rudolph, Israel and Ellis, P.A. Jacksonville, for Appellee.
   Per Curiam.

The Employer/Carrier (E/C) in this workers' compensation case appeal the judge of compensation claims' (JCC's) order awarding Claimant supplemental permanent total disability benefits after the date he reached the age of 62. In the order, the JCC found that, in accordance with section 440.15(1)(f), Florida Statutes (2008), Claimant continued to be entitled to supplemental benefits past the age of 62 because the compensable injury prevented him from working sufficient quarters to be eligible for social security disability benefits. The E/C challenge the JCC's interpretation of the statute as well as his factual determination. Because no competent substantial evidence (CSE) supports the JCC's finding concerning Claimant's eligibility for social security disability benefits, we reverse on that basis and find it unnecessary to address the statutory interpretation issue.

Background

The E/C accepted Claimant as permanently totally disabled as a result of his 2009 workplace injury and subsequently paid both permanent total disability (PTD) and supplemental PTD disability benefits under section 440.15(1), Florida Statutes (2009). When Claimant reached the age of 62, the E/C stopped paying supplemental benefits as provided in section 440.15(1)(f). This statutory provision states:

[S]upplemental payments shall not be paid or payable after the employee attains age 62, regardless of whether the employee has applied for or is eligible to apply for social security benefits under 42 U.S.C. s. 402 or s. 423, unless the employee is not eligible for social security benefits under 42 U.S.C. s. 402 or s. 423 because the employee's compensable injury has prevented the employee from working sufficient quarters to be eligible for such benefits.

(Emphasis added). The italicized portion of the statute creates an exception to the general rule that supplemental PTD benefits cease at age 62 without regard to eligibility for either social security retirement benefits ( 42 U.S.C. § 402 ) or social security disability benefits ( 42 U.S.C. § 423 ). The narrow question for review here is whether Claimant proved the exception to the general rule.

Claimant conceded that he is eligible for social security retirement benefits, but testified that his post-accident application for social security disability benefits was denied because he had not worked enough quarters. He also contended that he would have continued working for this employer but for the injury. The E/C argued below that the exception does not apply because Claimant did not satisfy his burden under the statute.

Discussion

We review the JCC's findings of fact for CSE. See Swanigan v. Dobbs House , 442 So. 2d 1026, 1027 (Fla. 1st DCA 1983). Here, the JCC found that Claimant is not eligible for social security disability benefits because the compensable injury prevented him from working sufficient quarters. Under the federal statute, insured status for social security disability requires, among other things, that an individual have at least forty quarters of coverage by age 62, and that not less than 20 quarters of this coverage fall within the ten-year (40-quarter) period immediately before the date in which the other requirements are satisfied. See 42 U.S.C. §§ 414, 423(b) & (c)(1)(B)(i). Claimant appears to have credit for the minimum forty quarters as he has conceded that he worked enough quarters to qualify for social security retirement benefits. See 42 U.S.C. §§ 414(a) and 402(a)(1). However, the E/C argue, and Claimant does not dispute, that disability benefits were denied because Claimant did not work at least 20 quarters during the ten year period as required by 42 U.S.C. § 523(c)(1)(B)(i).

The JCC's finding of ineligibility was based solely on Claimant's testimony that he was told he did not have sufficient quarters to qualify for social security disability and that he would have continued to work for his employer if he had not been injured. Claimant provided no documentation and no details to support these assertions. For example, he did not establish how many quarters he was short, the date of his disability for social security purposes, the date of his application and denial, or the precise dates of the relevant ten-year time period. Nor did Claimant present any evidence to show when he became unable to work as a result of his workplace injury. Although employed by this employer for nine years, Claimant estimated that he worked only about half of each year (apparently due to the availability of work). Before that, he worked jobs with no social security coverage. Thus, even assuming Claimant had provided more detail, given the uncertain and sporadic nature of his employment, it is a matter of speculation whether he would have worked sufficient quarters if the compensable injury had not prevented him from working.

Conclusion

Because we find CSE does not support the JCC's factual determination concerning Claimant's ineligibility for social security disability benefits, we REVERSE the order below.

Lewis, Osterhaus, and Kelsey, JJ., concur.


text:
    Jean Gensly PHENELON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2731
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 30, 2019
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

ORFINGER, COHEN, and EISNAUGLE, JJ., concur.


text:
    Lance J. BORDES and Elizabeth D. Bordes, Appellants, v. CITIMORTGAGE, INC., successor by merger to ABN AMRO Mortgage Group Inc., et al., Appellee.
    No. 1D18-2060
    District Court of Appeal of Florida, First District.
    August 1, 2019
    Daniel W. Uhlfelder of Daniel W. Uhlfelder, P.A., Santa Rosa Beach, for Appellants.
    Jonathan Blackmore of Phelan Hallinan Diamond & Jones, PLLC, Fort Lauderdale, for Appellee.
   Per Curiam.

In light of Appellee's confession of error, we reverse the award of attorney's fees and costs contained in the Amended Final Judgment of Foreclosure and remand for further proceedings.

In light of the foregoing, Appellee's motion for extension of time to file the answer brief is denied as moot.

Wolf, B.L. Thomas, and Osterhaus, JJ., concur.


text:
    Lester GRAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-1266
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 2, 2019
    Lester Gray, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant appeals the trial court's denial of his fifth Florida Rule of Criminal Procedure 3.800 motion to correct illegal sentence in Orange County Circuit Court Case No. 1982-CF-1701. We affirm the trial court's order and caution Appellant that abusive, repetitive, malicious, or frivolous filings directed to the identified lower court case number may result in sanctions, such as a bar on pro se filing in this Court and referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See § 944.279(1), Fla Stat. (2018) ; State v. Spencer , 751 So. 2d 47 (Fla. 1999).

AFFIRMED.

WALLIS, LAMBERT and SASSO, JJ., concur.


text:
    Robert W. KRAMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2489
    District Court of Appeal of Florida, First District.
    August 1, 2019
    Robert David Malove of the Law Office of Robert David Malove, P.A., Fort Lauderdale, for Peitioner.
    Ashley Moody, Attorney General, and Heather Ross, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DENIED.

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


text:
    Stephen Allen EATON Jr, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4489
    District Court of Appeal of Florida, First District.
    August 1, 2019
    Andy Thomas, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED. See Pantoja v. State , 990 So. 2d 626 (Fla. 1st DCA 2008), aff'd , 59 So. 3d 1092 (Fla. 2011).

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


text:
    Jama JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-355
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 2, 2019
    Jama Johnson, Bushnell, pro se.
    Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

This appeal represents the third time that Appellant has litigated this same meritless claim. This Court has considered and rejected Appellant's previous attempts to raise this claim. See Johnson v. State, 231 So. 3d 1284 (Fla. 5th DCA 2017) ; Johnson v. State, 225 So. 3d 834 (Fla. 5th DCA 2017). We warn Appellant that any attempts to appeal this same claim may result in sanctions. See Carr v. State, 917 So. 2d 1047, 1048 (Fla. 5th DCA 2006) (sanctioning repetitious litigant after earlier warning).

AFFIRMED.

ORFINGER, WALLIS and EDWARDS, JJ., concur.