author: ROTHENBERG, C.J.

text:
    Lazaro Regalado LOPEZ, Appellant, v. Jennifer REGALADO, Appellee.
    No. 3D17-2541
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Nancy C. Wear, Miami, for appellant.
    Jennifer Regalado, in proper person.
    Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
   ROTHENBERG, C.J.

The appellant, Lazaro Regalado Lopez ("Regalado"), appeals from a final judgment of injunction for protection against domestic violence with children entered on October 23, 2017 in favor of his estranged wife, Jennifer Regalado ("Jennifer"). Regalado also appeals from two separate orders that were entered on the same day. One order modified Regalado's time-sharing schedule with his minor children from unsupervised to supervised, and the other awarded Jennifer temporary support. Regalado claims that the trial court abused its discretion and that the trial court's orders violated his due process rights. For the reasons that follow, we affirm the final judgment of injunction and reverse the orders modifying the time-sharing schedule and awarding Jennifer temporary support.

BACKGROUND

Regalado and Jennifer were married in 2009, and they have three minor children: M.R., J.R., and N.R. On September 26, 2017, Jennifer filed for divorce in Miami-Dade County Circuit Court, and that case ("the divorce action") remains pending. Regalado has a history of bipolar disorder. Jennifer makes reference to this history in her petition(s) for injunction for protection against domestic violence with children. Her first petition, filed under Case No. 16-30210 ("the 2016 DV action") on December 23, 2016, was granted on March 7, 2017, and was renewed monthly until it expired on September 7, 2017.

On October 3, 2017, Jennifer filed a second petition for injunction for protection against domestic violence with children, Case No. 17-22673 ("2017 DV action"). In the petition, Jennifer checked off the following boxes as being applicable:

a. Committed or threatened to commit domestic violence defined in 741.28, Florida Statutes, as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another.
b. Previously threatened, harassed, stalked, or physically abused the petitioner.
c. Attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
d. Threatened to conceal, kidnap, or harm the petitioner's child or children.
....
g. Physically restrained the petitioner from leaving the home or calling law enforcement.
h. A criminal history involving violence or threat of violence ....
i. Another order of protection issued against him/her previously or from another jurisdiction.
j. Destroyed personal property, including but not limited to, telephones or other communication equipment, clothing, or other items belonging to the petitioner.
k. Engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.
....

In addition to the checked items noted above, Jennifer included handwritten factual allegations with her petition. She alleged, among other things, that Regalado had not been taking his medication and that he had been recently hospitalized at the psychiatric ward of Palmetto General Hospital following an altercation with his parents. Jennifer claimed that after Regalado was discharged from the hospital on October 1, 2017, he showed up at her house at 7:00 a.m., half-dressed, wearing a hospital sheet, and looking mentally unstable. She further recounted that Regalado had recently been "playing with fire" and had hurt himself. Lastly, she alleged that Regalado had touched her and tried to kiss her without her consent.

The trial court conducted a hearing on the petition on October 23, 2017. Both parties attended the hearing. At the hearing, Jennifer, who testified consistent with her handwritten allegations, testified that Regalado offered a bizarre explanation as to why he was not properly dressed when he showed up at her house unannounced. Specifically, Jennifer testified that Regalado told her that he had donated his clothes and shoes to charity, and that was why he was shirtless and barefoot. She also testified that Regalado grabbed her "hard" "sexually," and "tried to force a kiss." Because of his demeanor, Jennifer stated that she felt that her children were at risk, she did not allow Regalado to see them, and she filed a police report.

Jennifer also testified that Regalado had shown up at her house on three prior occasions following the expiration of the last restraining order. She explained that Regalado had been texting her, and coming to her house between 4:00 and 5:00 a.m., asking to take the children to school, but when the security guard in her community alerted her to Regalado's presence, she would deny him entry. Upon questioning by the trial court, Jennifer claimed that in addition to the October 1, 2017 incident, Regalado had also been violent with her on prior occasions. Specifically, she explained that in 2009, Regalado had choked her at his parents' house, and on a separate occasion, while at a hotel, Regalado broke a table and battered her with parts of the broken table.

Regalado, who also testified at the hearing, initially denied the allegations and claimed that he had been taking his medication.

However, when questioned, he conceded that he had showed up at Jennifer's house on a particular morning between 4:00 and 5:00 a.m., when he was not supposed to pick up the children on that day. Regalado also conceded that on October 1, 2017, he showed up at Jennifer's house half-dressed wearing a sheet, that the paramedics found him at a high school in Weston, and that his explanation was that he had "given up [his shirt] and shoes for donation there." In attempting to explain this behavior, Regalado testified that he had been walking all night and had foot pain, so he called 911 from his cell phone and the paramedics who responded took him to the hospital, where he was found to be dehydrated, was placed on an IV for hydration, and was later released. Regalado's explanation as to why he showed up at Jennifer's house unannounced was that he wanted to see his children and try to save his marriage.

Upon further questioning by the trial court, Regalado also admitted to assaulting Jennifer and attempting to kiss her without her consent. In an attempt to explain these actions, he stated the following:

It's not that I grabbed her hard, or nothing. I just treat her ... like my wife. I mean for Christ's sake, she's still my wife. Do I have to ask permission to kiss my wife.... I mean, are we getting to that point?

During the hearing, the trial court sua sponte raised the issue of time-sharing. Upon questioning by the trial court, Jennifer testified that given the circumstances, she felt that unsupervised visits were no longer appropriate. She further testified that she had noticed changes in her children after their return from spending time with Regalado, and that her daughter is depressed, has low self-esteem, and is being treated by a therapist. Following the hearing, the trial court concluded that, "[a]fter taking testimony from the parties [and] having reviewed the evidence, this Court find[s] sufficient evidence to warrant [the] issuance of a permanent injunction for a period of 18 months."

Thereafter, the trial court entered two additional orders. One order, captioned "Order Granting Temporary Child Support," awarded Jennifer $400 per month in temporary child support. The other order, captioned "Order of Referral to Family Court Services," changed Regalado's time-sharing with the minor children from unsupervised to supervised visits. Both orders were entered by the trial court assigned to the 2017 DV action, however, both were filed in the divorce action. This appeal followed.

STANDARD OF REVIEW

"[A] claim that a party has been denied procedural due process is reviewed de novo." Vaught v. Vaught, 189 So.3d 332, 334 (Fla. 4th DCA 2016) (quoting Residential Mortg. Serv. Corp. v. Winterlakes Prop. Owners Ass'n, 169 So.3d 253, 255 (Fla. 4th DCA 2015) ). An order granting an injunction in the domestic violence context is reviewed for abuse of discretion. Selph v. Selph, 144 So.3d 676, 677 (Fla. 4th DCA 2014) ; see also Kunkel v. Stanford ex rel C.S., 137 So.3d 608, 609 (Fla. 4th DCA 2014) (concluding that the trial court abused its discretion by entering a domestic violence injunction when the ruling is not supported by competent, substantial evidence). When evaluating whether a trial court's order granting an injunction is supported by competent, substantial evidence, we look at legal sufficiency as opposed to evidentiary weight. See Brilhart v. Brilhart, ex rel. , S.L.B., 116 So.3d 617, 619 (Fla. 2d DCA 2013).

ANALYSIS

I. Personal Service

The record reflects that there were several unsuccessful attempts to personally serve Regalado with the instant petition for injunction prior to the hearing. Because these attempts were unsuccessful, Regalado claims that the trial court failed to afford him due process prior to the entry of its orders. Section 741.30(4), Florida Statutes (2017), provides that in a cause of action regarding a domestic violence petition, the respondent shall be "personally served" with a copy of the petition. As we have explained, "[i]t is axiomatic that a party defending against a [domestic violence] claim is entitled to due process, including the right to proper and adequate notice of the allegations which form the basis for the relief sought." Sanchez v. Marin, 138 So.3d 1165, 1167 (Fla. 3d DCA 2014). In this context, due process implications come into play where the petitioner raises, and the trial court admits, "significant and substantial-but unpled-allegations." De Leon v. Collazo, 178 So.3d 906, 908 (Fla. 3d DCA 2015). In other words, the concern is that the respondent be given an opportunity to be present, to be heard, and to address the allegations in the petition. See Newsom v. Newsom, 221 So.3d 1265, 1266 (Fla. 1st DCA 2017). In this case, Regalado was present, he was heard, and he addressed the allegations in the petition.

Regalado insists, however, that Vaught v. Vaught, 189 So.3d 332 (Fla. 4th DCA 2016), supports his request for a reversal. However, Regalado's reliance on Vaught is misplaced, as that case involved the denial of the husband's motion for a continuance, and is easily distinguishable from the instant case. Additionally, in Vaught, there was one incident and one petition of record, whereas this case involves a long history, more than one petition, and several domestic violence injunction renewals. Also, in Vaught, unlike the instant case, the wife was represented by counsel, whereas, the husband was proceeding pro se . Id. at 333. More importantly, the husband in Vaught appeared at the final hearing and requested a continuance alleging, among other things, that the wife had raised new allegations in a supplemental affidavit, and that these new allegations were being raised for the first time at the final hearing. Id. The husband in Vaught also claimed that he had evidence that supported his version of the events, but that in light of the wife's supplemental affidavit, he was not prepared to go forward with the final hearing because "[he] didn't know [the wife] was going to come up with all this [new] stuff." Id. The trial court denied the husband's request for a continuance and issued the injunction. Id. On those facts, the Fourth District Court of Appeal concluded that the husband had shown good cause sufficient to warrant a continuance under section 741.30(5)(c) and that the trial court had abused its discretion by denying the request for a continuance. Id. at 334.

In contrast with Vaught, Regalado never claimed he was unprepared, and he never requested a continuance, and although he claims that he was not properly served with the petition, he appeared at the hearing as noticed, and he was personally served with the petition by a court liaison officer in open court. At no time did Regalado proffer evidence that was rejected by the court or complain that he was not being given an opportunity to defend himself. See, e.g., Lopez v. Lopez, 922 So.2d 408, 410 (Fla. 4th DCA 2006). In fact, the record reflects that Regalado was fully prepared to go forward, did go forward, and requested no continuances. Further, Regalado was aware of the allegations against him based upon the prior petition, the prior injunction, and the extensions and renewals associated therewith. As reflected above, the parties have been involved in at least three separate court cases, i.e., the 2016 DV action, the divorce action, and the 2017 DV action. Regalado knew why he was there, he knew what he was being accused of, and he admitted to the lion's share of the allegations raised by Jennifer.

The record therefore reflects that Regalado was given an opportunity to address the allegations in the petition, many of which were not new and had been raised in prior proceedings, and that Regalado never raised the issue of notice or expressed any concerns about going forward with the hearing. Thus, we conclude that Regalado's due process rights were not violated and the record supports the trial court's issuance of the injunction.

II. Final Judgment of Injunction Against Domestic Violence

Regalado also contends that the trial court erred by issuing the final judgment of injunction against domestic violence because he claims that Jennifer was not a victim of domestic violence, and that she failed to present substantial, competent evidence of any objectively reasonable fear of imminent harm. Specifically, Regalado alleges that Jennifer made false allegations that, at best, constitute generalized threats that are insufficient to warrant the entry of a domestic violence injunction. We disagree.

As a general matter, a trial court may issue a domestic violence injunction when the petitioner establishes that "he or she is either a 'victim of domestic violence as defined in section 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.' " Lopez, 922 So.2d at 410 (quoting § 741.30(1)(a), Fla. Stat. (2005) ) (emphasis added). Section 741.28(2) specifically defines domestic violence as "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." When considering whether a petitioner has reasonable cause to fear becoming the victim of imminent domestic violence, "the trial court must consider the current allegations, the parties' behavior within the relationship, and the history of the relationship as a whole." Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (quoting Gustafson v. Mauck, 743 So.2d 614, 616 (Fla. 1st DCA 1999) ).

In this case, Jennifer did more than make generic allegations. She set forth a history of violence in the instant petition, as reflected by her handwritten supplement. She described specific incidents where Regalado pushed her, choked her, and injured her using parts of a table that Regalado himself had broken. Her testimony was consistent with the allegations raised in the petition, detailing current and prior instances of violence and manic behavior by Regalado that supported her fear. As reflected above, at the hearing, Regalado admitted to most of the allegations, provided a bizarre explanation for others, and never denied showing up at Jennifer's house unannounced in the early morning hours while half-naked. Regalado admitted to assaulting Jennifer and forcing her to kiss him against her will. He likewise admitted to the altercation at his parents' home and did not dispute or deny Jennifer's allegations of prior violence at a hotel. In sum, the record reflects a cumulative history of similar events and confirms that the subject of the instant petition was not an isolated incident.

This case is similar to Zarudny v. Zarudny, 241 So.3d 258 (Fla. 3d DCA 2018), where we affirmed the trial court's entry of a domestic violence injunction where the respondent had a history of mental disorders, was not taking his prescription medication, was currently and previously abusive and controlling, and had admitted to certain allegations in the petition. As previously discussed at length, a similar pattern exists here.

Based upon the record in this case, we conclude that Regalado's history of violence, abusive conduct, and manic behavior constitutes substantial competent evidence supporting the trial court's findings that Jennifer had an objectively reasonable cause to believe that she was in imminent danger. Accordingly, we find no abuse of discretion by the trial court.

III. Orders on Supervised Visits and Temporary Support

Regalado contends that the trial court erred when it modified the time-sharing schedule and awarded Jennifer temporary support because the petition did not request either relief. We agree.

A. Time-sharing

"In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings." Worthington v. Worthington, 123 So.3d 1189, 1190 (Fla. 2d DCA 2013) (quoting Abbott v. Abbott, 98 So.3d 616, 617 (Fla. 2d DCA 2012) ). To grant unrequested relief is an abuse of discretion and reversible error. Abbott, 98 So.3d at 617. In Worthington, the wife challenged a trial court order that amended the final judgment of dissolution of marriage. Upon review, the appellate court reversed the portion of the order that modified the time-sharing arrangement because it exceeded the scope of the relief requested in the motions that were noticed to be heard. Worthington, 123 So.3d at 1190. Here, like in Worthington, the issue of time-sharing was not raised in the petition or in any motion before the trial court. In fact, the petition reflects that Jennifer was not seeking a modification of the current time-sharing arrangement.

The form petition utilized by Jennifer provides various options for the petitioner to consider when petitioning the court. Paragraphs 20(a)-(e) address time-sharing. The options provided are as follows:

a. Petitioner requests that the Court provide a temporary parenting plan, including temporary time-sharing schedule with regard to the minor child(ren);
b. Petitioner requests that the Court order supervised exchange of the minor child(ren) or exchange through a reasonable person for purposes of such exchange. The following is a person suggested as a reasonable person for purposes of the exchange ...
c. Petitioner requests that the Court limit time-sharing by Respondent with the minor child(ren);
d. Petitioner requests that the Court prohibit time-sharing by the Respondent with the minor child(ren) because the Petitioner genuinely fears the Respondent imminently will abuse, remove, or hide the minor child(ren) from Petitioner;
e. Petitioner requests that the Court only allows with the [sic] minor supervised time-sharing by Respondent child(ren)[.]

Jennifer specifically marked each of these options "N/A," indicating that none of these options were applicable. Thus, there was nothing in the petition or the domestic violence court docket which would have placed Regalado on notice that the issue of visitation would be raised at the October 23, 2017 hearing. Further, no such request appears to have been filed in the divorce action. We therefore find that the trial court abused its discretion by granting relief that was not requested. For these same reasons, as well as the reasons that follow, we reach the same conclusion as to the order granting temporary support.

B. Temporary Support

Just as with time-sharing, Jennifer had the ability to raise the issue of temporary support in her petition. The petition is, however, devoid of any indication that Jennifer was seeking temporary support. Specifically, paragraphs 21-23 of the petition provide the following options:

21. Petitioner claims that he/she has a need for the money (temporary support) he/she is asking the Court to order Respondent to pay and that Respondent has the ability to pay that money;
22. Petitioner requests that the Court order Respondent to pay the following temporary alimony to Petitioner;
23. Petitioner requests that the Court order Respondent to pay the following child support to Petitioner[.]

As with the time-sharing options, Jennifer indicated that none of these options were applicable by marking each one as "N/A." While the trial court raised the issue of time-sharing sua sponte in open court, the issue of temporary support was not addressed at all during the hearing. Therefore, no inquiries were made and no evidence was introduced as to either Jennifer's need for support or Regalado's ability to pay.

In addressing matters regarding temporary support, the trial court's discretion is not unfettered. Blum v. Blum, 769 So.2d 1142, 1143 (Fla. 4th DCA 2000). When ordering temporary support, trial courts must identify, among other things, which portion of the award constitutes child support and which portion is intended to be alimony. Id.; see also Burkhart v. Burkhart, 620 So.2d 225, 226 (Fla. 1st DCA 1993) (noting that child support guidelines apply to temporary child support awards). In this connection, the trial court must make findings regarding the parties' incomes for purposes of applying the child support guidelines. See Fleischfresser v. Accursio, 833 So.2d 803, 804 (Fla 3d DCA 2002) (reversing and remanding a temporary support order for a complete reconsideration of the issues with instructions to make specific findings as to both need and ability to pay); see also Nilsen v. Nilsen, 63 So.3d 850, 851 (Fla. 1st DCA 2011) (reversing an award of temporary support where the trial court failed to indicate how much of the award was intended to be child support and failed to calculate the husband's income). No such findings were made here. Further, there is no explanation in the record as to how the trial court arrived at the $400 figure.

As with the time-sharing order, we conclude that the order granting temporary support exceeded the scope of the relief requested by Jennifer and was, therefore, an abuse of discretion. Further, even if temporary support had been requested in the petition, we find that the trial court failed to make the requisite inquiries and findings as to need and ability to pay. Accordingly, we reverse on this issue as well.

CONCLUSION

For the reasons stated above, we conclude that the trial did not err or abuse its discretion by entering the domestic violence injunction. We, however, agree with Regalado that the trial court abused its discretion by granting relief that was not requested in the petition. We, therefore, reverse the two separate orders entered with respect to time-sharing and temporary support.

Affirmed, in part; and reversed, in part.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Kevin BLACK, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4556
    District Court of Appeal of Florida, Second District.
    Opinion filed October 10, 2018
    Terrence E. Kehoe of Law Office of Terrence E. Kehoe, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Kevin Black appeals his judgment and sentences after a jury convicted him of four separate offenses. We find merit in one of his complaints.

The supreme court quashed Black's initial convictions and remanded for a new trial. Black v. State, 157 So. 3d 1041 (Fla. 2014) (table decision). He was convicted again, and the trial court sentenced him to lengthy prison sentences. The court awarded Black 254 days' credit for the time he spent in jail after his return from the Department of Corrections pending the second trial. However, it ordered the DOC to calculate Black's prison credit as well as the jail credit to which he was entitled while awaiting his first trial. Black argues that the court erred in failing to calculate the prison credit and the entirety of the jail credit. This issue was preserved for appeal by way of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

"[A] trial court may delegate to the Department of Corrections the task of calculating the amount of prison credit that is due ...." McCall v. State, 88 So.3d 1015, 1016 (Fla. 2d DCA 2012). However, the court must specify the amount of jail credit to which a defendant is entitled. § 921.161(1), Fla. Stat. (2016) (mandating that an award of jail credit must be "for a specified period of time and shall be provided for in the sentence"); see also Long v. State, 202 So.3d 84, 86 (Fla. 2d DCA 2016). Accordingly, we reverse that portion of the sentencing order that delegates to the DOC the task of calculating jail credit, and we remand to the trial court to calculate such credit. The judgment and sentences are affirmed in all other respects.

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

SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: FERNANDEZ, J.

text:
    State of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Willis Melvin SPERBERG, Respondent.
    No. 3D18-0551
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Christie S. Utt, General Counsel, and Mark L. Mason (Tallahassee), Assistant General Counsel, for petitioner.
    Stephen M. Zukoff, Miami, for respondent.
    Before EMAS, FERNANDEZ, and LINDSEY, JJ.
   FERNANDEZ, J.

The Department of Highway Safety and Motor Vehicles (the "Department") petitions this Court for second-tier certiorari review of the circuit court's order granting a writ of certiorari and quashing the Department's order of revocation. For the reasons discussed herein, we grant the petition, quash the circuit court's order, and remand for further proceedings.

By order of revocation dated February 13, 2017, the Department notified Willis Melvin Sperberg ("Sperberg") that his driving privilege was permanently revoked. The order advised that Sperberg could appeal the order within 30 days of its date, by filing a petition for writ of certiorari. Thereafter, Sperberg timely filed a petition for writ of certiorari with the circuit court, arguing that Florida must give full faith and credit to a Virginia order restoring Sperberg's driving privilege in Virginia. In response, the Department argued it has statutory authority to permanently revoke Sperberg's driving privilege, in Florida, based on receipt of records indicating Sperberg has 4 DUI convictions in Virginia. The Department attached Sperberg's uncertified driving transcript to its response. In reply, Sperberg argued the uncertified driving transcript was inadmissible under the best evidence rule. The circuit court granted the petition for writ of certiorari. The Department filed the instant petition for writ of certiorari, seeking second-tier certiorari review of the circuit court's order.

On second-tier certiorari review of a circuit court's first-tier certiorari review of a judicial/quasi-judicial administrative action, this Court must determine "whether the circuit court [1] afforded procedural due process and [2] applied the correct law." Broward Cty. v. G.B.V. Int'l, Ltd., 787 So.2d 838, 843-44 (Fla. 2001) (citing City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla. 1982) ). These two prongs are "merely expressions of ways in which the circuit court decision may have departed from the essential requirements of the law." Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995). This Court "must exercise caution not to expand certiorari jurisdiction to review the correctness of the circuit court's decision." Futch v. Fla. Dep't of Highway Safety & Motor Vehs, 189 So.3d 131, 132 (Fla. 2016) (citing Nader v. Dep't of Highway Safety & Motor Vehs, 87 So.3d 712, 723 (Fla. 2012) ).

"First-tier" certiorari review at the circuit court level, a review as a matter of right and pursuant to Florida Rules of Appellate Procedure 9.030(c)(3) and 9.100, is a three-pronged review whereby the circuit court must determine: (1) whether procedural due process is accorded, (2) whether the essential requirements of the law have been observed, and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Vaillant, 419 So.2d at 626 ; see also G.B.V. Int'l, 787 So.2d at 843 ; Heggs, 658 So.2d at 530.

Florida courts have held that a circuit court, acting in its appellate capacity on first-tier certiorari review, fails to apply the correct law when the circuit court goes beyond the appropriate standard/scope of review. See, e.g., Miami-Dade Cty. v. Omnipoint Holdings, Inc., 863 So.2d 195, 201 (Fla. 2003) (holding that a district court exceeds the proper scope of second-tier certiorari review when it sua sponte addresses issues not raised in any phase of the proceedings); G.B.V. Int'l, 787 So.2d at 845 (discussing how the circuit court's application of an independent standard of review constitutes an application of the wrong law and is tantamount to departing from the essential requirements of law). Here, the circuit court's order disposes with both the scope and standard of review by considering issues not raised by any party in any phase of the proceedings and reweighing evidence.

First, the circuit court addressed issues that neither party raised for the circuit court to review. In doing so, the circuit court relied on Omnipoint Holdings, 863 So.2d at 200 (quoting Hormel v. Helvering, 6 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941) ). On the contrary, in Omnipoint Holdings, the Florida Supreme Court held that the reviewing district court "exceeded the proper scope of second-tier certiorari review when it, sua sponte," considered "an issue neither party raised in any phase of the proceedings." 863 So.2d at 200-01. Similarly, here, the circuit court exceeded the proper scope of first-tier certiorari review when it, sua sponte, considered issues neither party raised in any phase of the proceedings (including at the circuit court level). Second, in analyzing the unraised issues, the circuit court improperly reweighed evidence. For example, the circuit court referred to the uncertified driving record as "suspect since allowing such a record as evidence risks an unjust result." Where a circuit court reweighs evidence on first-tier certiorari review, the circuit court has applied an improper standard of review. See G.B.V. Int'l, 787 So.2d at 845 ; Dep't of Highway Safety v. Baird, 175 So.3d 363 (Fla. 3d DCA 2015). Thus, we hold that the circuit court failed to apply the correct law when it ventured beyond the appropriate scope of review and applied an improper standard of review.

In keeping with our standard of review, we do not address the correctness of the circuit court's opinion, and nothing in this opinion shall be construed as such. For the above reasons, we grant the petition for writ of certiorari and quash the circuit court's order.

Petition granted, order of the circuit court quashed, and cause remanded for further proceedings.

      On second-tier certiorari review, the Department argues that Sperberg could have challenged the underlying records triggering the order of revocation through an agency records review procedure, despite no mention of this in the order of revocation. In keeping with our narrow standard of review, we do not address this issue.

      Although the Department includes in its response nominal references to competent substantial evidence, the entirety of the Department's response is confined to its statutory authority to permanently revoke Sperberg's driving privilege, in direct response to the issue raised by Sperberg in the petition.

      Section 322.31, Florida Statutes (2018), provides that "final orders and rulings of the [Department of Highway Safety and Motor Vehicles] wherein any person is denied a license, or where such license has been canceled, suspended, or revoked, shall be reviewable in the manner and within the time provided by the Florida Rules of Appellate Procedure only by a writ of certiorari issued by the circuit court in the county wherein such person shall reside, in the manner prescribed by the Florida Rules of Appellate Procedure, any provision in chapter 120 to the contrary notwithstanding." See also § 322.27 (7), Fla. Stat. (2018).

      See, e.g., Denson v. State, 711 So.2d 1225, 1228 n.6 (Fla. 2d DCA 1998) (discussing the interplay between scope of review and standard of review).

      The circuit court's opinion, in relevant part : "Although Petitioner does not claim he was deprived of procedural due process, that the essential requirements of the law were not observed; and that the findings and judgment were not supported by competent substantial evidence violated his due process, we grant review of the Department's decision because there are exceptional cases or particular circumstances where a reviewing court, like this one, will consider questions of law that were not considered by the agency below where injustice might otherwise result." (internal quotations and citations omitted).

      We note that even if Sperberg's arguments, in the reply brief filed with the circuit court, could be construed as raising issues of competent substantial evidence, Florida courts have held that in such circumstances, granting the petition on the new issues raised in the reply brief would deny the Department due process. See Parker-Cyrus v. Justice Admin. Comm'n, 160 So.3d 926, 928-29 (Fla. 1st DCA 2015) ; Dep't of Highway Safety & Motor Vehicles v. Dellacava, 100 So.3d 234, 236 (Fla. 5th DCA 2012).


author: LOGUE, J.

text:
    BRICKELL MOTORS, LLC, Appellant, v. Yunior Uraldes TORRES, Appellee.
    No. 3D17-2666
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018.
    Law Offices of Charles M-P George, and Charles M-P George, Clearwater; Boyd, Richards, Parker & Colonnelli, P.L., and Peter R. Restani, Coral Gables, for appellant.
    Goldberg & Rosen, P.A., and Judd G. Rosen, Brett M. Rosen, and Khristopher R. Salado, Miami, for appellee.
    Before EMAS, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

Appellant Brickell Motors, LLC, seeks review of the trial court's denial of its Motion to Compel Arbitration. For the reasons below, we reverse.

Background

Yunior Torres purchased a car from Brickell Motors. The purchase agreement contained an arbitration provision, which provided in pertinent part:

Any claim or disputed, whether in contract, tort, statute, or otherwise (including the interpretation and scope of the Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this Vehicle, this Order and Agreement or any resulting transaction or relationship (including any such relationship with third parties who do not sign this Order and Agreement) shall, at your election, be resolved by neutral, binding arbitration and not by a court action.

Several hours after Torres purchased the vehicle, he was involved in a car accident. On April 10, 2017, Torres filed suit against Brickell Motors alleging the accident was caused by defects in the vehicle.

Brickell Motors moved to compel arbitration on July 18, 2017, prior to submitting any other filing. Subsequently, on July 27, 2017, Brickell Motors moved for a 20-day extension of time to respond to the complaint. In October 2017, Brickell Motors noticed its Motion for Extension of Time to be heard on November 8, 2017.

At the hearing, Brickell Motors argued, among other things, that it could not answer the complaint in light of the pending Motion to Compel Arbitration. Neither party noticed the Motion to Compel Arbitration for hearing. Torres had filed no written opposition to Brickell's Motion to Compel Arbitration and, at the hearing, made no argument why the motion should be denied. Nevertheless, the trial court sua sponte denied the Motion to Compel Arbitration and ordered Brickell Motors to answer the complaint. Brickell Motors timely appealed.

Analysis

"This Court reviews an order granting or denying a motion to compel arbitration de novo." Duty Free World, Inc. v. Miami Perfume Junction, Inc., 253 So.3d 689, 693, 2018 WL 3747725 at *2 (Fla. 3d DCA Aug. 8, 2018) (citing Mukamal v. Marcum, LLP, 223 So.3d 422, 425 n.3 (Fla. 3d DCA 2017) ).

Section 682.03(1)(a), Florida Statutes, mandates that "[o]n motion of a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement[,] [i]f the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate."

Under the circumstances of this case, it was error to consider and deny Brickell Motors' Motion to Compel Arbitration. The motion was not noticed for hearing. "This was error because the granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process." Connell v. Capital City Partners, LLC, 932 So.2d 442, 444 (Fla. 3d DCA 2006) (citing Khan v. Dep't of Revenue, 901 So.2d 992, 992 (Fla. 4th DCA 2005) ). Moreover, Torres had filed no objection or memorandum of law in opposition to the motion and therefore the motion was not briefed; Torres did not argue for denial at the hearing; the transcript of the hearing indicates that the trial court provided no verbal explanation for its decision; and the order itself provides no rationale. Indeed, on appeal, Torres provides no argument why the motion should have been denied. Because the basis for the denial is unclear, effective and meaningful appellate review is impossible. Douglas v. Douglas, 795 So.2d 99, 100 (Fla. 5th DCA 2001) (citing Harbin v. Harbin, 762 So.2d 561 (Fla. 5th DCA 2000) ).

Accordingly, we reverse the order denying the motion to compel and remand without prejudice to the trial court deciding the Motion to Compel Arbitration when it is either properly noticed or briefed, consistent with the requirements of section 682.03.

Reversed and remanded.


author: Per Curiam.

text:
    Zeffery LUNDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2008
    District Court of Appeal of Florida, Fourth District.
    October 10, 2018
    Zeffery Lundy, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant Zeffery Lundy appeals the circuit court's order denying his Florida Rule of Criminal Procedure 3.801 motion for correction of jail credit. He contends that he is entitled to an additional 238 days of credit on his sentence for violation of probation.

Absent from his motion were the required allegations on whether he waived any county jail credit at the time of the sentencing and, if so, the number of days waived. See Fla. R. Crim. P. 3.801(c)(5). Instead of allowing appellant leave to amend to cure this deficiency, the trial court attached appellant's plea form and denied the motion on its merits. The court found appellant waived any claim to additional jail credit. However, a jail credit waiver must be specific, voluntary, and clear from the face of the record. See, e.g. , Wolter v. State , 219 So.3d 852, 853 (Fla. 4th DCA 2017). The plea form here did not satisfy this requirement.

Because appellant's motion was facially insufficient, the circuit court should have stricken it and given appellant leave to amend within sixty days. See, e.g. , Lopez v. State , 248 So.3d 1204, 1205 (Fla. 4th DCA 2018) (citations omitted). Accordingly, we reverse and remand for the circuit court to enter an order striking the motion as facially insufficient and granting appellant sixty days to amend it to provide the information specified in rule 3.801(c) and this opinion.

Reversed and remanded for proceedings consistent with this opinion.

Levine, Forst and Kuntz, JJ., concur.


author: PER CURIAM.

text:
    Kenneth PURDY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-370
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 12, 2018
    Matthew R. McLain, McLain Law, P.A., Maitland, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   PER CURIAM.

The Florida Supreme Court accepted review of our January 27, 2017 decision in this case to answer the following certified question:

WHEN A JUVENILE OFFENDER IS ENTITLED TO A SENTENCE REVIEW HEARING, IS THE TRIAL COURT REQUIRED TO REVIEW THE AGGREGATE SENTENCE THAT THE JUVENILE OFFENDER IS SERVING FROM THE SAME SENTENCING PROCEEDING IN DETERMINING WHETHER TO MODIFY THE OFFENDER'S SENTENCE BASED UPON DEMONSTRATED MATURITY AND REHABILITATION?

The court answered the certified question in the negative, quashed our decision, and remanded for further proceedings consistent with its opinion. State v. Purdy , 43 Fla. L. Weekly S321, --- So.3d ----, 2018 WL 4345959 (Fla. Aug. 30, 2018).

Accordingly, we affirm the sentence imposed by the trial court following the sentence review hearing on Appellant's conviction for first-degree murder. We also affirm the trial court's determination that it did not have the authority or discretion to modify Appellant's previously imposed 112.7-month sentences for his armed robbery and armed carjacking convictions that were run concurrently with each other but consecutively to Appellant's sentence for first-degree murder.

Appellant raised two other claims on appeal that were unrelated to the certified question answered by the Florida Supreme Court. First, as previously conceded by the State, the three-year minimum mandatory provisions that were part of Appellant's 112.7-month prison sentences for the armed robbery and armed carjacking convictions are to run concurrently. There was conflicting language in separate, contemporaneously rendered sentencing documents on this issue when Appellant was first sentenced. Therefore, the trial court is directed to clarify and correct the judgment and sentences on remand, if it has not already done so.

Lastly, at the sentence review hearing, the trial court found that Appellant was not eligible for gain time on his sentence for the first-degree murder. The authority to regulate gain time resides exclusively with the Department of Corrections, not the trial court. See Miller v. State , 882 So.2d 480, 481 (Fla. 5th DCA 2004) (citing Moore v. Pearson , 789 So.2d 316, 319 (Fla. 2001) ). On remand, the trial court is directed to strike as surplusage any language in the sentencing documents regarding gain time. Id. ("If, in sentencing, a court attempts to bar or grant gain time, such language has been treated as surplusage or stricken." (citing Shupe v. State , 516 So.2d 73, 73 (Fla. 5th DCA 1987) ; Singletary v. Coronado , 673 So.2d 924, 924 (Fla. 2d DCA 1996) ) ).

AFFIRMED; REMANDED with directions.

ORFINGER, BERGER, and LAMBERT, JJ., concur.


text:
    Samuel HOWARD, Appellant, v. CITY OF TALLAHASSEE, Appellee.
    No. 1D17-5440
    District Court of Appeal of Florida, First District.
    October 15, 2018
    Michael J. Winer of Law Office of Michael J. Winer, P.A., Tampa, and Timothy R. Whitney of Morgan & Morgan, Tallahassee, for Appellant.
    Christopher J. DuBois and Mary E. Cruickshank of DuBois & Cruickshank, Tallahassee, for Appellee.
   Per Curiam.

Two issues are presented in this workers' compensation appeal. First, whether the Judge of Compensation Claims (JCC) erred in rejecting the opinion of the expert medical advisor, Dr. Sharfman. Second, whether the JCC erred in preventing the Claimant from asserting that section 440.20(4), Florida Statutes (2003) (commonly called the "120-day rule"), precluded the Employer from denying his entitlement to ongoing benefits. We affirm as to the first issue without discussion, but reverse as to the second, concluding that Claimant's amendment of the pretrial stipulation should have been permitted.

Background

The Employer accepted compensability of Claimant's 2004 accident and injuries. Twelve years later, in February 2016, the Employer filed a notice, denying Claimant's entitlement to any further treatment, asserting that the workplace accident was no longer the major contributing cause (MCC) of the need for any ongoing treatment. Claimant filed a petition for benefits in December 2016 seeking entitlement to ongoing medical treatment and a finding that the 2004 workplace accident and injuries remained compensable.

The parties filed the Uniform Statewide Pretrial Stipulation on May 19, 2017. Claimant did not list the 120-day avoidance in that stipulation. On June 1, 2017, Claimant filed a Supplemental Pretrial Stipulation, asserting that the Employer had waived the right to deny on-going treatment based on the failure to do so within 120 days of receiving information calling into question the MCC of the need for ongoing treatment.

At the July 7, 2017, final hearing, the Employer objected to Claimant's assertion of the 120-day avoidance in the amended pretrial stipulation, arguing that Claimant should have listed it on the initial May 19 pretrial stipulation, and that Claimant failed to file a motion to amend the pretrial. Claimant countered that the supplemental stipulation was filed more than thirty days prior to the final hearing and that the Employer had not voiced an objection until now. Claimant asserted that a motion is not required outside the thirty-day cutoff date provided for in the stipulation. The JCC deferred its ruling.

Interim Final Order

In the Interim Final Order, the JCC ruled that the Claimant's amendment to the pretrial stipulation was improper under rule 60Q-6.113(2)(a) and (6), Fla. Admin. Code, which provides that:

... the pretrial stipulation (statement) must "[s]tate the claims, defenses, and the date of filing of each [PFB] to be adjudicated at the final hearing. Any claims that are ripe, due, and owing, and all available defenses not raised in the pretrial stipulation are waived unless thereafter amended by the judge for good cause shown. Any amendment, supplement, or other filing shall only be accepted if it clarifies the claims and/or defenses pled. Absent an agreement of the parties, in no event shall an amendment or supplement be used to raise a new claim or defense that could or should have been raised when the initial pretrial stipulation was filed, unless permitted by the judge for good cause shown." (Emphasis added [in original] ). Subsection (6), in pertinent part, provides that "[i]n no event shall an amendment or supplement be used to raise a new claim or defense that could or should have been raised when the initial pretrial stipulation was filed, unless permitted by the judge upon motion for good cause shown."

(Emphasis in order). Based upon the rule, the JCC held that Claimant had failed to "show good cause why [the amendment] was not raised timely" and had created prejudice for the Employer.

Analysis

Resolution of whether Claimant's amendment was proper requires review of both the administrative rule just discussed, as well as the Uniform Statewide Pretrial Stipulation completed by the parties. In the latter, the parties agreed that: "Parties may amend pre-trial stipulation up to thirty (30) days prior to hearing without filing pleadings/motion for leave of court." We conclude that the stipulation controls the outcome in this case.

Stipulations are favored in the law. In Marin v. Aaron's Rent To Own , 53 So.3d 1048, 1050 (Fla. 1st DCA 2010), this Court explained that "[t]he joint stipulation of the parties is binding on the JCC, and a finding by the JCC at variance with the stipulation will be overturned." A stipulation is overturned only when "fraud, overreaching, misrepresentation, withholding of the facts by an adversary, or some element as would render the agreement void" is demonstrated. Howard Johnsons v. Pineda , 560 So.2d 336, 337 (Fla. 1st DCA 1990) ; see also Delgado v. Agency for Health Care Admin. , 237 So.3d 432, 436 (Fla. 1st DCA 2018) (judge "should have abided by the express and stipulated expectation of the parties."). Here, the parties agreed that the pretrial stipulation could be unilaterally amended to include new claims or defenses if done so more than thirty days prior to the final hearing. Claimant filed his supplement more than thirty days before the hearing. Accordingly, the JCC erred in precluding Claimant's amendment of the pretrial stipulation to include consideration of the waiver argument under section 440.20(4).

On remand, the JCC should make findings as to whether the Employer failed to deny the claim within 120 days of learning that the MCC of Claimant's condition may not be the workplace accident, as well as whether any of the Employer's arguments against application of the 120-day rule have merit.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

Makar, Osterhaus, and Jay, JJ., concur.


text:
    Johanna L. KLINGLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3173
    District Court of Appeal of Florida, First District.
    October 15, 2018
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant; Johanna L. Klingler, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this Anders appeal, we affirm Appellant's judgment and sentence in all respects except one as discussed below.

On October 28, 2016, shortly after 1:00 a.m., Appellant was driving southbound in the northbound travel lanes of US Highway 441 when she crashed into a car that was traveling northbound. The crash killed two people, including a 4-year-old girl, and seriously injured two others. Appellant was intoxicated and driving 20-28 miles per hour over the speed limit at the time of the crash.

Appellant was charged with two counts of DUI manslaughter (counts I and II), two counts of DUI with serious bodily injury (counts III and IV), and one count of child neglect with great bodily harm (count V). She pled no contest to the charges, and as part of the plea, the State agreed to a sentencing cap of 40 years in prison. At the sentencing hearing, the trial court rejected Appellant's argument for a downward departure sentence and sentenced her to a total of 29 years in prison followed by 11 years of probation. The overall sentence was legal, as was the individual sentence for count V.

Several hours after the sentencing hearing ended, after consulting with defense counsel and the prosecutor by email, the trial court modified the sentence for count V from 11 years of probation to 15 years in prison to be served concurrent with the prison sentences on the other counts. The modification had no impact on Appellant's total sentence-which remained 29 years in prison followed by 11 years on probation-and defense counsel agreed to the change because it meant that Appellant's probation would run on only one count.

On appeal, after her appointed counsel filed an Anders brief, Appellant filed a pro se brief arguing that (1) the trial court violated her constitutional rights by modifying her sentence in her absence, and (2) defense counsel was ineffective in failing to withdraw her plea and inform her of the amended sentence. The second issue is meritless, but because the first issue appeared to have potential merit, we issued a Causey order directing appointed counsel to file a supplemental brief "addressing whether the trial court violated Appellant's double jeopardy rights by exercising discretion and resentencing her to 15 years' imprisonment on Count V ... several hours after imposing the original sentence of 11 years' probation, without her presence in the courtroom, and whether this necessitates resentencing with Appellant present."

The supplemental brief argued that the trial court violated Appellant's double jeopardy rights when it increased her original legal sentence on count V after the sentencing hearing ended and she began serving her sentence, but the brief also noted that the amended sentence on that count did not change the overall sentence and benefitted Appellant. The State argued in its answer brief that Appellant waived any double jeopardy claim because her sentence was the result of a negotiated plea that capped her prison sentence at 40 years.

We reject the State's waiver argument because the double jeopardy claim at issue in this case is not the type of claim that is deemed waived when the defendant enters a negotiated plea. Cf. Novaton v. State , 634 So.2d 607, 609 (Fla. 1994) (holding that a negotiated plea waives a claim that double jeopardy bars dual convictions for the offenses to which the defendant pled). On the merits, we agree with the argument in the supplemental brief that the trial court violated Appellant's double jeopardy rights when it increased her original legal sentence on count V after the sentencing hearing ended. See Ashley v. State , 850 So.2d 1265, 1267 (Fla. 2003) ("Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles."); Shepard v. State , 940 So.2d 545, 548 (Fla. 5th DCA 2006) ("[T]he trial court's pronouncement becomes final when the sentencing hearing ends."); cf.

Dunbar v. State , 89 So.3d 901, 906-07 (Fla. 2012) (holding that double jeopardy is not violated when the trial court adds nondiscretionary mandatory minimum terms to a sentence after the sentencing hearing because the defendant does not have a legitimate expectation of finality in an illegal sentence). The remedy for the double jeopardy violation in this case is reinstatement of the original sentence, not a resentencing hearing. See Hobgood v. State , 166 So.3d 840, 847 (Fla. 4th DCA 2015).

Accordingly, we reverse the 15-year prison sentence on count V and remand for entry of an amended judgment and sentence reinstating the original 11-year probationary sentence on that count. Appellant need not be present for this ministerial act. See Story v. State , 174 So.3d 1109, 1111 (Fla. 2d DCA 2015) ; Charles v. State , 59 So.3d 291, 293 (Fla. 3d DCA 2011). Appellant's judgment and sentence is affirmed in all other respects.

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

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      The sentence was structured as follows: 5 years in prison on count III, followed by 5 years in prison on count IV, followed by 15 years in prison on count II, followed by 4 years in prison and 11 years of probation on count I, with a concurrent 11 years of probation on count V.

      The amended sentence significantly reduced Appellant's potential sentencing exposure upon a violation of probation. Under Appellant's original sentence, if she violated probation, she would be facing a total of 30 years in prison (15 years on count I and 15 years on count V) less the prison time she had served on count I. By contrast, under the amended sentence, Appellant would be facing only 15 years of prison on count I less any prison time she had served on that count.

      State v. Causey , 503 So.2d 321 (Fla. 1987).


author: Rowe, J.

text:
    Orando Ricardo THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2012
    District Court of Appeal of Florida, First District.
    October 15, 2018 Rehearing Denied November 19, 2018
    Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

Orando Ricardo Thompson challenges his conviction for second-degree murder and his sentence of life imprisonment. We affirm, but write to address three of his arguments on appeal.

Facts

In the summer of 2015, tempers started to simmer when Caleb Halley, a long-time employee of Buddy's Seafood Market, learned that Orando Thompson, a newer employee, added hot sauce and other seasonings to the gumbo Halley prepared earlier that day. Halley confronted Thompson about adding seasoning to the gumbo, and the argument escalated to a physical altercation outside of the market. At one point, Thompson left the fight, reentered the market, retrieved a sword on display in a backroom of the market, and returned outside to stab Halley three times in the abdomen. These wounds ultimately led to Halley's death.

Before trial, Thompson moved to dismiss the charge, arguing that he was immune from prosecution pursuant to the Stand Your Ground Law. The trial court conducted an evidentiary hearing and denied the motion. Thompson challenged this denial via a writ of prohibition. This Court denied the petition without prejudice to Thompson's ability to raise the affirmative defense of self-defense at trial. Thompson v. State , 204 So.3d 990, 991 (Fla. 1st DCA 2016).

The altercation between Halley and Thompson, which occurred directly behind the business, was recorded from two different angles by the surveillance equipment installed at Buddy's Seafood Market. Although the video has no sound, it depicts Halley approaching Thompson and the two beginning to argue. Thompson testified at trial that when Halley first approached him, Halley said, "[D]on't touch my fucking gumbo again."

The physical altercation began with the two men puffing out their chests and pushing at each other. Halley appears to pull something from his pocket (Thompson later testified that it was a knife) and Thompson arms himself with a discarded piece of lumber. When Thompson dropped the piece of lumber, the two men resumed pushing each other. Thompson then armed himself with a discarded broom handle, and Halley picked up the piece of lumber Thompson had dropped. At this point, the men appear to be in an heated verbal exchange, and although armed, the men still only push each other with open palms.

After about ninety seconds, Thompson can be seen leaving the fight and going inside the market. Halley, under an apparent belief that the altercation was over, picked up his belongings and started walking towards his vehicle. A video from a different angle shows that when Thompson entered the market, he walked directly to the backroom and grabbed a sword that was displayed on the wall. The sword had a fifteen-inch blade.

After about twenty seconds, Thompson returned outside to confront Halley with the sword. Halley used the nearby broom handle to defend himself. The men continued to scuffle and swing their respective weapons at each other. Thompson can be seen making stabbing motions with the sword. The altercation continues until two employees exit the market and break up the fight. When the men were finally separated, a witness testified that Halley said, "He stabbed me, bro," and a portion of Halley's intestines was visibly protruding from one of his wounds.

Halley was taken to the hospital, but he died as a result of complications from the abdominal stab wounds. Halley suffered a total of three stab wounds. Two of the wounds were deep enough to penetrate the abdominal cavity.

When he was interviewed by the police after the stabbing, Thompson told Lt. Eusebio Talamantez, the lead investigator, that Halley pulled out a knife and threatened to cut him. He explained that he felt that he had to defend himself so he grabbed the sword from the backroom. When asked why he went back outside with the sword, Thompson explained it was because he was mad and upset with Halley.

At trial, during direct examination, Lt. Talamantez referred to some of the statements made by Thompson during the recorded interview as "inaccurate" and "not true." On cross-examination, defense counsel, in an attempt to challenge the thoroughness of the investigation, asked Lt. Talamantez about the proper method of investigating a self-defense case, and the lieutenant responded, "This case wasn't self-defense, it was the exact opposite of self-defense." Defense counsel did not object to this statement.

After the trial court denied Thompson's motion for judgment of acquittal, Thompson testified on his own behalf. He explained that he was authorized to spice the gumbo. Thompson testified that, in his capacity as an employee at Buddy's Seafood Market, he had known and worked with Halley for four or five years. While he characterized their relationship as good, Thompson also testified that Halley would often complain about the quality of Thompson's work. Thompson and several other employees testified that Halley was known to carry a small knife around his neck that he used to open boxes. He explained that he went inside to get the sword because Halley was coming towards him with a board and he was scared.

At the charge conference, defense counsel asked the court to include an instruction on the justifiable use of non-deadly force. The State objected to the inclusion of the instruction, arguing that, under the facts of this case, there was no support for the assertion that the sword was used in a non-deadly manner. The trial court denied the request.

Defense counsel also asked the court to refrain from instructing the jury that the use of deadly force was not justified if Thompson initially provoked the use of force against himself because Halley was the initial aggressor. The State argued that Thompson provoked the use of force against himself when he left the fight, went inside the market to retrieve the sword, and returned outside to confront Halley. The trial court overruled the objection.

The jury found Thompson guilty of second-degree murder and he was sentenced to life imprisonment. This timely appeal follows.

Analysis

On appeal, Thompson raises three issues that merit discussion. First, he argues that fundamental error occurred or, in the alternative, trial counsel was ineffective when the lead investigator was permitted to comment on Thompson's credibility and testify that this was not a self-defense case. Second, Thompson contends that the trial court should have granted his motion for judgment of acquittal because the evidence showed no more than an impulsive overreaction to Halley's attack. Third, he asserts that the trial court erred in refusing to instruct the jury on the justifiable use of non-deadly force and erred in instructing the jury on the initial aggressor exception to the use of deadly force.

Fundamental Error/Ineffective Assistance of Counsel

Thompson argues that fundamental error occurred or, in the alternative, trial counsel was ineffective when the lead investigator was allowed to testify that this was a self-defense case and to comment on Thompson's credibility. We review these arguments de novo. Elliot v. State , 49 So.3d 269, 270 (Fla. 1st DCA 2010).

As a general rule, "a witness' opinion as to the credibility, guilt, or innocence of the accused is inadmissible." Jackson v. State , 107 So.3d 328, 339 (Fla. 2012). "[I]t is especially troublesome when a jury is repeatedly exposed to an interrogating officer's opinion regarding the guilt or innocence of the accused." Id. at 340 ; Martinez v. State , 761 So.2d 1074, 1080 (Fla. 2000) ("[T]here is an increased danger of prejudice when the investigating officer is allowed to express his or her opinion about the defendant's guilt."). Here, Lt. Talamantez repeatedly commented on Thompson's credibility by asserting that many of the statements made during Thompson's interview were inaccurate and untrue. Had defense counsel objected to any of Talamantez's above-mentioned statements, then the trial court would have been required to sustain the objection as they were impermissible comments on Thompson's guilt. See Battle v. State , 19 So.3d 1045, 1048 (Fla. 4th DCA 2009) (noting that if defense counsel had properly objected to the detective's statement that he was certain that the defendant was the person that committed the burglary, then the trial court would have been required to exclude the testimony as impermissible opinion on the defendant's guilt).

Further, it is impermissible for an investigator to testify that a case does not involve self-defense. Bartlett v. State , 993 So.2d 157 (Fla. 1st DCA 2008). In Bartlett , the investigating officer testified that he ruled out self-defense before signing a complaint for murder. Id. at 158. This Court held that this was impermissible testimony because the testimony improperly invaded the province of the jury and allowed the investigator to serve as a fact-finder by determining that self-defense was not a viable defense. Id. at 161. Here, Lt. Talamantez acted as a fact-finder by stating his personal conclusion that this case did not involve self-defense. Again, had defense counsel objected to this testimony, the trial court would have been required to sustain the objection.

But merely because the lead investigator's testimony was admitted in error does not mean that it rises to the level of fundamental error. Rarely will an error be deemed fundamental. F.B. v. State , 852 So.2d 226, 229 (Fla. 2003). The supreme court has stated, "in order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Id. (quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960) ).

Under the specific facts of this case, the investigator's statements do not rise to the level of fundamental error. Rather, they are harmless because there is no reasonable possibility that these statements contributed to the jury's verdict. See State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986). Here, the jury's guilty verdict would be easily attainable without the investigator's statements because the jury was able to watch a video of the altercation. Unlike most surveillance videos, this one was crisp, clear, and in color. The jury was able to view the altercation from two different angles and was able to watch Thompson leave the fight, enter the business to obtain the sword, and return to the fight. The video demonstrates that Thompson had multiple opportunities to end the altercation and he, instead, chose to reinitiate the fight with Halley.

In the alternative, Thompson argues that defense counsel's failure to object to the lieutenant's statements was ineffective assistance of counsel on the face of the record. "An appellate court initially reviewing a conviction will only grant relief for ineffective assistance of counsel where the ineffectiveness of counsel is apparent from the face of the record before the appellate court and a waste of judicial resources would result from remanding the matter to the lower court for further litigation." Monroe v. State , 191 So.3d 395, 403 (Fla. 2016). To establish a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that he was actually prejudiced by the deficient performance. Strickland v. Washington , 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The benchmark for judging claims of ineffectiveness ... is whether the conduct of counsel 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " Cabrera v. State , 766 So.2d 1131, 1133 (Fla. 2d DCA 2000) (quoting Downs v. State , 453 So.2d 1102, 1106 (Fla. 1984) ).

Although defense counsel's performance was deficient because he should have objected to several portions of the investigator's testimony, Thompson cannot establish that he was prejudiced by the failure to object because the video of the altercation would still have been admissible. The jury was able to watch the entire altercation - from two different angles - when determining whether Thompson was guilty of second-degree murder. Thus, Thompson is unable to show that there is a reasonable probability that the outcome of his trial would have been different if defense counsel had objected to the investigator's testimony.

Judgment of Acquittal

Next, Thompson contends that the trial court should have granted his motion for judgment of acquittal because the evidence did not support a conviction for second-degree murder but showed no more than an impulsive overreaction to Halley's attack. We review this argument de novo. Dunn v. State , 206 So.3d 802, 804 (Fla. 1st DCA 2016). The legal test for determining whether a judgment of acquittal should be granted is "whether after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment." Tibbs v. State , 397 So.2d 1120, 1123 (Fla. 1981). Legal sufficiency alone, as opposed to evidentiary weight, is the sole concern of an appellate court. Id.

"In the context of second-degree murder, an act is imminently dangerous to another and evinces a 'depraved mind' if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and (2) is done from ill will, hatred, spite or an evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life." Wiley v. State , 60 So.3d 588, 591 (Fla. 4th DCA 2011). However, an impulsive overreaction to an attack is insufficient to support a second-degree murder conviction. Antoine v. State , 138 So.3d 1064, 1073 (Fla. 4th DCA 2014). This is so because "(a) a defendant who at worst acts recklessly does not satisfy the 'depraved mind' element of the crime; and (b) conduct in the form of an immediate overreaction to an assault is generally insufficient to prove ill will, hatred, spite, or evil intent, as those mental states usually require more than an instant to develop." Henry v. State , 145 So.3d 924, 927 (Fla. 4th DCA 2014).

Here, the evidence did not support a finding that Thompson's stabbing of Halley was an impulsive overreaction because Thompson had time to consider the nature of his act. Antoine , 138 So.3d at 1073. The surveillance video shows that it took Thompson at least twenty seconds to leave the fight, go inside the market, retrieve the sword, and return outside to reinitiate the fight. Thompson admitted during his recorded interview that he went back outside because he was mad and upset. Thompson's use of the sword was clearly an "overreaction," but it was not "impulsive" as he had ample time to consider the ramifications of returning outside to reengage in the fight with Halley. The video shows that Halley made no attempt to pursue Thompson and that Halley had prepared to leave the fight by gathering his belongings. There was competent, substantial evidence from which the jury could, and did, conclude that Thompson acted with a deliberate disregard for human life; thus, the trial court properly denied the motion for judgment of acquittal.

Jury Instructions

Finally, Thompson asserts that the trial court erred in refusing to instruct the jury on the justifiable use of non-deadly force and also erred in instructing the jury on the initial aggressor exception to the use of deadly force. We review arguments concerning the giving or withholding of jury instructions for an abuse of discretion. Kervin v. State , 195 So.3d 1181, 1182 (Fla. 1st DCA 2016).

When determining whether to give an instruction on deadly or non-deadly force, the trial court should focus on the nature of the force used, not on the weapon itself, because a deadly weapon can be used without deadly force. Brown v. State , 113 So.3d 103, 104 (Fla. 5th DCA 2013). If the force used is clearly deadly or non-deadly as a matter of law, only the applicable jury instruction should be given. Larsen v. State , 82 So.3d 971, 974 (Fla. 5th DCA 2011). "Where the evidence at trial does not establish that the force used by the defendant was deadly or non-deadly as a matter of law, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force." Id. (quoting Cruz v. State , 971 So.2d 178, 182 (Fla. 5th DCA 2007) ).

"Although Florida courts have clearly and consistently emphasized that the determination of whether a weapon is deadly is a question to be decided by a jury, this general rule is applicable only where the evidence of a particular case does not establish that the weapon used was deadly as a matter of law." Id. at 975. The act of "thrusting a knife into someone's chest cavity, home of many vital organs" has been found to be deadly force because it is likely to cause death or great bodily harm. Id. (citing Waldo v. State , 728 So.2d 280, 281 (Fla. 3d DCA 1999) ). The act of using a sharp knife to strike the victim's neck was determined to be deadly force as a matter of law. Id. In contrast, the act of making "a single slashing motion with a razor blade towards the victim's hand" was determined to be non-deadly force because death was not the natural, probable and foreseeable consequence of the defendant's action. Id. (citing DeLuge v. State , 710 So.2d 83, 84 (Fla. 5th DCA 1998) ).

Here, Thompson's use of a sword with a fifteen-inch blade was deadly force as a matter of law because death is a natural and foreseeable consequence of slashing and stabbing another person with a sword. Brown , 113 So.3d at 105 n.1 ("[A] defendant is engaged in the use of deadly force where the 'natural, probable and foreseeable consequences of the defendant's acts are death.' ") (quoting Garramone v. State , 636 So.2d 869, 871 (Fla. 4th DCA 1994) ). This is especially true here because the video shows that Thompson was stabbing Halley's torso where many vital organs are located. Therefore, the evidence did not support the trial court giving a jury instruction on non-deadly force because the evidence showed that Thompson used the sword in a deadly manner as a matter of law.

Thompson's argument that the trial court erred in giving the initial aggressor exception to the use of deadly force instruction is also without merit. "Under [stand your ground and justifiable use of deadly force], a person is justified in the use of deadly force and has no duty to retreat if: (1) he is in a place where he has the right to be; (2) he reasonably believes such force is necessary to prevent death or great bodily harm or the imminent commission of a forcible felony; (3) he did not initially provoke the use of force against himself (he was not the initial aggressor); and (4) he was not himself attempting to commit, committing, or escaping after the commission of a forcible felony." Wyche v. State , 170 So.3d 898, 905 (Fla. 3d DCA 2015). Thompson argues that the trial court erred in giving the initial aggressor portion of the justifiable use of deadly force instruction because he did not initiate the fight with Halley.

An initial aggressor instruction is proper when there is evidence in the record that the defendant may have initially provoked the use of force against himself. Johnson v. State , 65 So.3d 1147, 1149 (Fla. 3d DCA 2011). The evidence in this case demonstrates that there were essentially two altercations between Thompson and Halley. Halley was the initial aggressor of the first altercation because he confronted Thompson about adding spices to the gumbo and was first to lay hands on Thompson. This altercation ended when Thompson left the fight and entered the market to retrieve the sword. Halley did not follow Thompson into the market to try to continue the fight. Rather, he was outside gathering his belongings and appeared to be prepared to leave. Thompson, on the other hand, went inside the market with the express purpose of arming himself with the sword. He returned outside and initiated the second fight by swinging the sword and stabbing Halley. These facts lead to the conclusion that any threat to Thompson was over by the time that Thompson armed himself with the sword; thus, Thompson was the initial aggressor during the second altercation. See Cruz v. State , 189 So.3d 822, 827 (Fla. 4th DCA 2015) (recognizing that an altercation can be viewed as two separate events).

Finding no error, we affirm Thompson's conviction and sentence for second degree murder.

AFFIRMED.

B.L. Thomas, C.J., and M.K. Thomas, J., concur.


author: Wetherell, J.

text:
    HOLIDAY ISLE IMPROVEMENT ASSOCIATION, INC., Appellant, v. DESTIN PARCEL 160, LLC, a Florida Limited Liability Company, Appellee.
    No. 1D17-5241
    District Court of Appeal of Florida, First District.
    October 15, 2018
    David A. Theriaque, S. Brent Spain, and Terrell K. Arline of Theriaque & Spain, Tallahassee, for Appellant.
    John M. Stratton, Daniel C. O'Rourke, and Dana C. Matthews of Matthews & Jones, LLP, Destin, for Appellee.
   Wetherell, J.

Appellant (the association) sued Appellee (the developer) for declaratory and injunctive relief to compel the developer to submit its building plans to the association for review and approval in accordance with the protective covenants and restrictions on the developer's property. The trial court granted summary judgment in favor of the developer, and we affirmed that order in Holiday Isle Improvement Association, Inc. v. Destin Parcel 160, LLC , --- So.3d ----, 2018 WL 4139351 (Fla. 1st DCA Aug. 30, 2018). The trial court also awarded prevailing party attorney's fees and costs to the developer under section 720.305(1), Florida Statutes (2013), and in this appeal, the association challenges that award.

The association argues that there was no legal basis for the award of attorney's fees and costs to the developer because its suit was filed under chapter 86, Florida Statutes, and neither chapter 86 nor the protective covenants provides for an award of prevailing party attorney's fees and costs. The developer responds that the absence of authority for an award of attorney's fees and costs in chapter 86 and the protective covenants is immaterial because the award here was properly based on section 720.305(1). We agree with the developer.

Section 720.305(1) provides in pertinent part:

Each member and ... and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity ... to redress alleged failure or refusal to comply with these provisions may be brought by the association ... against:
* * *
(b) A member;
* * *
The prevailing party in any such litigation is entitled to recover reasonable attorney fees and costs ....

(emphasis added). Even though the declaratory judgment complaint filed by the association did not refer to section 720.305, the suit was a de facto action under that section because it sought to redress the developer's alleged failure or refusal to comply with the protective covenants. Accordingly, under the plain language of section 720.305(1), the developer was entitled to an award of its attorney's fees and costs as the prevailing party in the suit.

The association also argues that the statute cannot be retroactively applied here because the protective covenants predate the enactment of section 702.305(1) and the statute impairs the parties' contractual rights under the covenants. We disagree for two reasons.

First, the statute is being applied prospectively-not retroactively-because the association's cause of action accrued many years after the statute's effective date. "When attorney's fees are an item of costs provided by statute, the relevant analysis does not compare the effective date of the statute providing for court costs with the date of the contract, if any, which may be the cause of action in the particular litigation, but compares the effective date of the statute providing for court costs with the date of the accrual of the cause of action in the litigation as to which the court costs, including attorney's fees, are an adjunct." Xanadu of Cocoa Beach, Inc. v. Lenz , 504 So.2d 518, 520 (Fla. 5th DCA 1987).

Second, the statute does not impair the parties' rights or obligations under the protective covenants because even though the covenants were silent on the issue of attorney's fees and costs, they provided that "the remedies herein stated shall be construed as cumulative of all other remedies now or hereafter provided by law " (emphasis added). Thus, unlike the case relied on by the association in which the court held that "the statutory imposition of attorneys' fees where none were bargained for materially changes the binding force of the agreement," Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen , 378 So.2d 307, 309 (Fla. 3d DCA 1980), the imposition of prevailing party attorney's fees and costs under section 720.305(1) is consistent with-and does not impair-the bargained-for terms of the protective covenants here.

For these reasons (and because we find no merit in the other issues raised by the association), we affirm the award of prevailing party attorney's fees and costs to the developer.

AFFIRMED .

Roberts and Osterhaus, JJ., concur.

      The statute further provides that in addition to recovering attorney's fees and costs, "[a] member prevailing in an action between the association and the member under this section ... may recover additional amounts as determined by the court to be necessary to reimburse the member for his or her share of assessments levied by the association to fund its expenses of the litigation." However, that provision is not implicated in this case because the developer was only awarded its attorney's fees and costs.


author: Winokur, J.

text:
    Jeremiah Samuel CUOMO, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5091
    District Court of Appeal of Florida, First District.
    October 15, 2018
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Jeremiah Cuomo was convicted of aggravated battery and shooting into an occupied dwelling. Cuomo appealed, arguing that the trial court erred in denying his motion to suppress incriminating statements made to his mother in jail during a conversation secretly recorded by the police. We affirmed, finding no improper police conduct or reasonable subjective expectation of privacy in this conversation. Cuomo v. State , 98 So.3d 1275, 1281-82 (Fla. 1st DCA 2012). Cuomo filed a postconviction motion arguing, inter alia , that his trial counsel was ineffective for not presenting his mother as a witness at the suppression hearing. The trial court summarily denied this ground, Cuomo now appeals, and we reverse for an evidentiary hearing.

I.

At his suppression hearing, Cuomo testified that he invoked his right to remain silent and right to counsel, and was held until he was informed that his mother came to see him. Cuomo stated that he was led to believe the conversation would be private, but was not explicitly told so. Testifying officers denied telling Cuomo or his mother that their conversation would be private, and stated that Cuomo's mother initiated the conversation by requesting a visit. In denying the motion to suppress, the trial court stated that who initiated the visit was important, it had "not heard from [Cuomo's] mother," the only evidence was that the mother came to the jail and requested visitation, and concluded that there was no evidence of improper police conduct. Our affirmance was based in part on the facts that the police "scrupulously respected" Cuomo's rights and did not orchestrate the recorded conversation, but "simply accommodated the mother's request to visit [Cuomo]." Id. at 1281 (distinguishing this case from the improper police conduct apparent in State v. Calhoun , 479 So.2d 241, 243 (Fla. 4th DCA 1985) ).

In Cuomo's postconviction motion, he asserted that his mother would have testified that the police initiated the visit by offering her the opportunity to visit Cuomo without her asking, and that the police specifically told her that the visit would be private. Because this claim is not legally insufficient or conclusively refuted by the record, Cuomo is entitled to an evidentiary hearing. See Franqui v. State , 59 So.3d 82, 95-96 (Fla. 2011).

II.

It should be noted that Cuomo also appealed the denial of a different postconviction claim, which was denied after an evidentiary hearing, as well as the claim involving his mother, which the trial court denied with no evidentiary hearing. Regarding Cuomo's appeal of this summarily-denied claim, the State indicated in its answer brief that it did not "intend to file an answer brief on this issue, unless directed by this Court pursuant to Rule 9.141(b)(2)(C)." This constitutes a misreading of Florida Rule of Appellate Procedure 9.141(b)(2), and does not set forth an adequate reason to refuse to brief this issue.

Before 2014, Rule 9.141(b)(2) was entitled "Summary Grant or Denial of Motion Without Evidentiary Hearing." Fla. R. App. P. 9.141(b)(2) (2013). This rule set forth special appellate rules, which provided for a limited record and limited briefing, and applied whenever the trial court denied the motion without any evidentiary hearing. If the trial court held an evidentiary hearing, this rule did not apply, even if the defendant was appealing the denial of a claim for which the court did not hold an evidentiary hearing. See Williams v. State , 24 So.3d 1252, 1252 n.1 (Fla. 1st DCA 2009). Instead, Rule 9.141(b)(3) (entitled "Grant or Denial of Motion after Evidentiary Hearing"), which contains essentially routine appellate rules regarding the record and briefing, applied to appeals of such mixed petitions. Id.

This rule was made even clearer in 2014, when the Supreme Court amended the title of Rule 9.141(b)(2) to read "Summary Grant or Denial of All Claims Raised in a Motion Without Evidentiary Hearing." Fla. R. App. P. 9.141(b)(2) (2014) (emphasis supplied). See In re Amendments to Fla. Rules of Appellate Procedure , 183 So.3d 245, 255 (Fla. 2014). It is now beyond dispute that Rule 9.141(b)(2) applies only when the trial court holds no evidentiary hearing at all.

In short, the issue regarding the summarily-denied claim here is not governed by Rule 9.141(b)(2), including its provision that the appellee need not file a brief unless directed by this Court. Instead, the issue here is governed by Rule 9.141(b)(3), which requires an answer brief "as prescribed by rule 9.210." Fla. R. App. P. 9.141(b)(3)(C). When a postconviction appeal falls under Rule 9.141(b)(3), the State's refusal to brief an issue regarding a summarily-denied claim constitutes a forfeiture of the State's right to respond to the appellant's brief.

AFFIRMED in part, REVERSED in part, and REMANDED for an evidentiary hearing.

Ray and Bilbrey, JJ., concur.

      We affirm the trial court's denial as to Cuomo's arguments that his trial counsel was ineffective for misadvising him as to his maximum sentence, failing to strike a biased juror, failing to move for a mistrial during the State's cross-examination of Cuomo, and for cumulative error.

      Cuomo also asserted that he overheard a police officer tell his mother that the conversation would be private, but this is conclusively refuted by the record of the suppression hearing where Cuomo detailed every reason he believed the conversation would be private, and omitted this statement.

      The title of Rule 9.141(b)(3) was also amended to specify that it applies when a motion is denied "after an Evidentiary Hearing was Held on One of More Claims ." In re Amendments to Fla. Rules of Appellate Procedure , 183 So.3d at 255. This new title clarifies that it applies to an appeal of any claim after an evidentiary hearing is held, regardless of whether the court held an evidentiary hearing on the specific claim raised.


author: Bilbrey, J.

text:
    Blair Alexandria EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3083
    District Court of Appeal of Florida, First District.
    October 16, 2018
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Bilbrey, J.

Appellant challenges the judgment and sentence entered after her no contest plea with reservation of her right to appeal the trial court's denial of her motion to dismiss. Appellant's motion to dismiss was based on the statutory immunity from prosecution provided by section 776.032, Florida Statutes (2017), where the use of force is justified pursuant to section 776.012, Florida Statutes.

At the motion hearing, the State conceded that Appellant's motion established a prima facie case that Appellant's use of force was justified and that the burden of proof was thus on the State to overcome that prima facie case with clear and convincing evidence to the contrary. § 776.032(4), Fla. Stat. (2017). After all the testimony presented at the hearing on the motion to dismiss, the trial court found that the State had met its burden of proof by clear and convincing evidence for one count of the two-count information. The trial court thus denied the motion to dismiss one count of the two-count information and granted dismissal of the other count pertaining to the other alleged victim.

The trial court applied the correct standard, weighed the conflicting evidence, and determined the credibility of the witnesses in reaching its decision. As described in N.L. v. Department of Children and Family Services , 843 So.2d 996, 999 (Fla. 1st DCA 2003) :

Clear and convincing evidence is defined as "an intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy."

Even if the appellate court "may have decided this case differently had we been the trier of fact, 'it is not the function of this court to reweigh the evidence and substitute our judgment for that of the trial court.' " J.B. v. C.S. , 186 So.3d 1142, 1143 (Fla. 1st DCA 2016) (quoting In the Interest of R.D.D. , 518 So.2d 412, 415 (Fla. 2d DCA 1988) ). The record in this case includes competent substantial evidence to support the trial court's determination that the State presented clear and convincing evidence to overcome Appellant's prima facie case for the charge in question.

Accordingly, the judgment on appeal is AFFIRMED .

Wetherell and M.K. Thomas, JJ., concur.

      The question of whether the amendment to section 776.032(4), Florida Statutes (2017), resulting from chapter 2017-72, Laws of Florida, which shifts the burden of proof to the State, is only prospective or is retroactive is currently before the Florida Supreme Court. See Love v. State, 247 So.3d 609 (Fla. 3d DCA 2018), rev. granted , SC18-747, 2018 WL 3147946 (Fla. Jun. 26, 2018). However, in this district we have applied the amendment retroactively and have held that the State's acceptance of the burden of proof below "is consistent with the statute in effect at the time of the evidentiary hearing." Commander v. State , 246 So.3d 1303, 1303 (Fla. 1st DCA 2018). Given the State's acceptance of the burden here, the outcome of Love before the Florida Supreme Court is likely immaterial in this case.

      As Judge Lucas noted in Martin v. State , --- So. 3d ----, 43 Fla. L. Weekly D1016, D1017 n.3, 2018 WL 2074171, *2 n.3 (Fla. 2d DCA May 4, 2018), "[t]he term 'burden of proof' is often criticized for its imprecision; whether it is meant as a burden to initially present evidence or a burden to ultimately persuade a finder of fact." As further noted in Martin , the use of "burden of proof" in the amended statute refers "to the burden of persuasion because the evidentiary threshold of 'clear and convincing evidence' is a measurement of that type of burden." Id.

      The State does not challenge the dismissal of that count via cross-appeal.