text:
    Lenist KEY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D18-348
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Lenist Key, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for respondent.
   Per Curiam.

Lenist Key has filed a petition alleging that he received ineffective assistance of appellate counsel. We grant the petition as to one claim and remand for the trial court to remove the habitual felony offender (HFO) and habitual violent felony offender (HVFO) designations on both of Key's life felonies and resentence him pursuant to the guidelines. We deny the remaining eight claims without comment, as they are without merit.

Following a jury trial, Key was sentenced as an HFO and HVFO to concurrent terms of life in prison for armed sexual battery and armed kidnapping. He committed the offenses in March 1995.

Key appealed his judgments and sentences in May 2013. This Court affirmed. See Key v. State, 179 So.3d 513 (Fla. 4th DCA 2015). In his petition, Key alleges that his appellate counsel was ineffective in not challenging the habitual offender designations on direct appeal, because at the time of his offenses, life felonies were not subject to enhanced punishment as a habitual offender. We agree.

Armed sexual battery is a life felony. See § 794.011(3), Fla. Stat. (1993). Kidnapping is a first degree felony. See § 787.01(2), Fla. Stat. (1993). However, when a firearm is used, kidnapping is reclassified as a life felony. See § 775.087(1)(a), Fla. Stat. (1993).

In response to this Court's order to show cause, the State concedes that life felonies were not subject to enhanced punishment under the habitual offender statute in effect at the time Key committed the above-noted crimes. See Lamont v. State , 610 So.2d 435, 438 (Fla. 1992) (holding that one convicted of a life felony is not subject to enhanced punishment as a habitual offender under section 775.084); Flanders v. State , 217 So.3d 160, 161 (Fla. 3d DCA 2017) (explaining that section 775.084 did not provide for enhanced sentencing on life felonies committed prior to October 1, 1995).

Key's sentences as a habitual offender for these offenses are therefore illegal. Appellate counsel was ineffective for failing to move to correct the sentence and if unsuccessful, raising the issue on direct appeal or in a rule 3.800(b)(2) motion. See Marshall v. State , 241 So.3d 969, 970 (Fla. 1st DCA 2018) ; see also Maddox v. State, 760 So.2d 89, 102 (Fla. 2000) ; Anderson v. State , 988 So.2d 144, 146 (Fla. 1st DCA 2008).

In Thomas v. Singletary , 751 So.2d 66 (Fla. 2d DCA 1999), the court remanded the case merely to correct the sentences to remove the habitual offender status, as "his presumptive guideline sentence for each of these offenses was also a life sentence." Id. at 67 n.2. That is not the situation here, as Key's "presumptive guideline sentences" for the two convictions were both under twenty-two years.

The First District has held that once a defendant's habitual offender designations are stricken, the trial court has discretion in resentencing pursuant to the sentencing guidelines, including discretion to impose an upward departure sentence if it provides written reasons. Bell v. State , 219 So.3d 221, 223 (Fla. 1st DCA 2017). A defendant is entitled to be present and represented by counsel for resentencing in this situation, since the trial court would not be completing a purely ministerial act. Id. ; see also Jordan v. State, 143 So.3d 335, 339-40 (Fla. 2014) (concluding that a resentencing based on improper imposition of habitual offender designation was not a ministerial act because the trial court has discretion under sentencing guidelines applicable at the time of the offense).

We therefore grant the petition as to this claim and remand for resentencing under the applicable sentencing guidelines. As in Bell , Key is entitled to be present and represented by counsel at resentencing.

Petition granted in part, denied in part, and remanded.

Damoorgian, Conner and Forst, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Anthony MCMILLAN, Petitioner, v. STATE of Florida, Respondent.
    No. 4D18-1161
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Anthony McMillan, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for respondent.
   Per Curiam.

Anthony McMillan has filed a habeas corpus petition challenging his life sentence imposed in 1999. McMillan claims he is entitled to be resentenced because the trial court erroneously believed it was required to impose a life sentence under the habitual violent felony offender (HVFO) statute. We agree and grant the petition.

McMillan was convicted by a jury of two counts of robbery with a firearm and one count of carjacking with a firearm, all first degree felonies punishable by life. §§ 812.13(2)(a), 812.133(2)(a), Fla. Stats. (1997). The State argued for an HVFO sentence and stated that "the mandatory is life as a violent felony offender." This was incorrect. Section 775.084(4)(b)1., Florida Statutes (1997), provides that the court may sentence an HVFO up to life with a fifteen-year mandatory minimum for a first degree felony. The trial court agreed with the State that an HVFO sentence was appropriate and imposed three concurrent terms of life as a mandatory minimum.

This Court affirmed McMillan's convictions and sentences on direct appeal. McMillan v. State , 763 So.2d 1140 (Fla. 4th DCA 2000). He subsequently filed several unsuccessful postconviction motions. In one of those motions, he claimed he was entitled to be resentenced because the trial court erroneously believed it was required to impose a life sentence under the HVFO statute. The trial court denied the motion and this Court affirmed. McMillan v. State , 42 So.3d 842 (Fla. 4th DCA 2010). McMillan raises the claim again in this habeas corpus petition.

We find it clear from the record that the trial court erroneously believed it was required to impose a life sentence under the HVFO statute, and we conclude that this is one of the very rare cases where it would be a manifest injustice not to grant habeas corpus relief. See Prince v. State , 98 So.3d 768 (Fla. 4th DCA 2012) (granting habeas relief where the trial court erroneously believed it was required to impose a life sentence and the appellate court had failed to recognize the error in previous cases); Johnson v. State , 9 So.3d 640 (Fla. 4th DCA 2009) (same); see also Stephens v. State , 974 So.2d 455, 457-58 (Fla. 2d DCA 2008) (recognizing that an appellate court has inherent authority to grant a writ of habeas corpus to avoid "manifestly unfair results").

Accordingly, we grant the petition and direct the trial court to hold a new sentencing hearing. McMillan is entitled to be present and represented by counsel at resentencing.

Petition granted.

Warner and Gross, JJ., concur.

Conner, J., dissents with opinion.

I respectfully dissent for several reasons: (1) I do not agree the record supports a definitive conclusion that the trial court erroneously believed it was required to impose a life sentence under the habitual violent felony offender (HVFO) statute, but it is clear the trial judge would have imposed a life sentence regardless; (2) as to the imposition of a life sentence, McMillan's rule 3.800(a) claim that the trial court erroneously believed it had to impose a life sentence is barred by collateral estoppel; and (3) in applying the manifest injustice exception to the collateral estoppel bar to post-conviction relief, the majority ignores our recent case law. To the extent any habeas corpus relief should be granted, it should only be to the extent of striking improper language from the written sentence imposing the length of the sentence as a mandatory minimum (thus cutting off the entitlement to gain time) McMillan is not entitled to the full panoply of rights for a new sentencing hearing.

In July 1997, McMillan committed the three crimes charged in the instant case, two counts of armed robbery using a firearm and one count of carjacking using a firearm. As the majority acknowledges, all three crimes were first degree felonies punishable by life. McMillan had been released from prison for a prior armed robbery with a firearm just three years prior to committing the crimes in the instant case.

Although the majority believes the trial court's statement during sentencing that, "the appropriate sentence ... is life ... as a violent habitual offender. That is a mandatory sentence of life with credit for time for 595 days," is categorically a statement that the trial court believed it had to impose a life sentence once it determined McMillan qualified as a habitual violent felony offender, I contend the trial court's statement could also be a confused reference to the fact that a life sentence imposed on a habitual violent felony offender requires that the offender "shall not be eligible for release for 15 years," under section 775.084(4)(b)(1), Florida Statutes (1999). In my view, the trial court's other comments at sentencing clearly demonstrate its intention to sentence McMillan to life in prison as the appropriate sentence, whether mandatory or not.

Even if the majority is correct that the trial court was under the erroneous impression that it had to impose a life sentence once it determined that McMillan qualified for sentencing as a habitual violent felony offender, such does not necessarily mean that McMillan is entitled to a resentencing hearing. In my view, because a life sentence could legally be imposed, there was no manifest injustice as to the length of the sentence and rule 3.800(a) relief cannot be granted as to the length of the sentence. At most, the language that the life sentence was a "mandatory minimum" sentence is all that can be corrected.

Rule 3.800(a)(2) clearly provides that "a court may dismiss a second or successive motion if the court finds that the motion fails to allege new or different grounds for relief and the prior determination was on the merits." Fla. R. Crim. P. 3.800(a)(2). A defendant should not be entitled to any greater post-conviction protection by an appellate court. See Price v. State , 692 So.2d 971, 971 (Fla. 2d DCA 1997) (noting that "a defendant is not entitled to successive review of a specific issue which has already been decided against him"). Rule 3.800(a)(2) is simply a codification of the doctrine of collateral estoppel. Clearly, collateral estoppel applies as a bar in this case, since McMillan raised the same issue in this habeas corpus petition that he raised in a prior 3.800(a) appeal, which was denied on the merits. See McMillan v. State , 42 So.3d 842 (Fla. 4th DCA 2010).

The majority concludes that McMillan's habeas petition presents "one of the very rare cases where it would be a manifest injustice not to grant habeas corpus relief," citing Prince v. State , 98 So.3d 768 (Fla. 4th DCA 2012), Johnson v. State , 9 So.3d 640 (Fla. 4th DCA 2009), and Stephens v. State , 974 So.2d 455 (Fla. 2d DCA 2008).

Prince is simply not binding or even persuasive authority for the instant case because it is significantly factually different. There, the trial court imposed a life sentence and clearly stated it was "required" to do so. Prince , 98 So.3d at 770. While Prince's direct appeal was pending, our supreme court issued an opinion determining that the habitual offender statute could not operate as an alternative to the sentencing guidelines. Id. Thus, Prince was a "pipeline" case involving a change in the law. See State v. Brown , 655 So.2d 82, 84 (Fla. 1995) (explaining that "pipeline" cases are those cases not yet final at the time the law changed and to which the change in the law applies retrospectively). In discussing the application of the manifest injustice exception to the collateral estoppel bar in Prince , we relied on Johnson and Stephens , which is problematic, as will be discussed shortly. Prince , 98 So.3d at 770-71. Importantly, though, the "various factors in the record which would support a sentence significantly less than life in prison" found in Prince , id. at 771,, are simply not present in the instant case.

The problem with Johnson is the concession in the first paragraph of the opinion that "[t]echnically the sentence [under review] is not an illegal sentence." Johnson , 9 So.3d at 640-41. Interestingly, in a footnote, the Johnson panel observed that a "[habitual felony sentence] is correctable as illegal sentence under rule 3.800(a) only where [the habitual felony offender] statute in effect at sentencing did not authorize [a habitual felony offender sentence] for life felonies." Id. at 641 n.1. If the sentence in Johnson was not illegal, one wonders how the panel in that case could grant rule 3.800(a) review and relief. A close reading suggests the panel in Johnson , like the Second District panel in Stephens , felt embarrassed that this Court did not properly recognize the validity of Johnson's claim in a previous appeal, even though the state did not object to the relief requested. See id. at 642. Additionally, we had granted similar relief for the same grounds in other cases. Id. ("We agree that it is a manifest injustice to deny him the same relief afforded other defendants identically situated.").

Similar to Johnson , the panel in Stephens concluded a prior appellate decision in the case was based on an erroneous understanding of the record, thus leaving the litigants puzzled about why the case had been remanded back to the trial court to address a Heggs issue. Stephens , 974 So.2d at 457. Because the remand instructions directed the parties to consider the wrong issue, Stephens was deprived of a real opportunity to have his sentence reconsidered. Id. Acknowledging that it had led the parties down the wrong path previously, the Second District felt the situation presented a rare circumstance of manifest injustice. Id. at 457-58.

Although it is laudable that appellate courts are willing to admit their errors in past appeals, the majority's reliance on Prince , Johnson , and Stephens cannot be squared with other case law discussing the scope of rule 3.800(a) relief in the context of enhanced punishment of repeat offenders. Additionally, the viability of the concept of "manifest injustice" espoused by Prince , Johnson , and Stephens cannot be squared with more recent case law discussing the concept.

In Carter v. State , 786 So.2d 1173 (Fla. 2001), the supreme court discussed the evolving definition of "illegal sentence" as it applies to rule 3.800(a) relief. Id. at 1176-78. Carter, who was convicted of a life felony, received a habitual offender sentence, when the version of section 775.084 in effect at the time of sentencing did not permit habitualization for life felonies. Id. at 1180. The supreme court concluded he was entitled to rule 3.800(a) relief because the terms and conditions of his habitual offender sentence were illegal, as a matter of law, because they exceed those authorized by statute for the underlying offense of second-degree murder with a weapon. Id. In granting relief, the court approved the definition of "illegal sentence" that we announced in Blakley v. State , 746 So.2d 1182 (Fla. 4th DCA 1999), as a sentence which "imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances." Carter , 786 So.2d at 1181 (quoting Blakley, 746 So.2d at 1187 ). The supreme court has continued to approve the definition as recently as 2014 and 2017. See Plott v. State , 148 So.3d 90, 93 (Fla. 2014) ; Martinez v. State , 211 So.3d 989, 991 (Fla. 2017).

In Brooks v. State , 969 So.2d 238 (Fla. 2007), the supreme court made it clear that the appropriate harmless error test to be applied to rule 3.800(a) relief is the "could-have-been-imposed" standard. Id. at 243. In Martinez v. State , 216 So.3d 734 (Fla. 4th DCA 2017), we recognized that in determining whether the manifest injustice exception to the bar of collateral estoppel applies, the harmless error standard for rule 3.800(a) relief adopted in Brooks should be considered. Id. at 739 ("The application of the manifest injustice exception in this case comports with the harmless error analysis to be applied in analyzing rule 3.800(a) relief."). Additionally, we said:

Manifest injustice occurs only when the application of collateral estoppel would result in the defendant serving a longer illegal sentence than a restructured legal sentence imposed upon remand.

Id. at 740 (emphasis in original). Clearly, if we were to remand the instant case for resentencing, the trial court could legally re-impose a life sentence. Thus, in terms of the imposition of a life sentence, there is no manifest injustice, and rule 3.800(a) relief is not appropriate.

To the extent the trial court imposed the life sentence for each count as a mandatory minimum , it was error, because such is a "punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances." Instead, section 775.084(4)(b)(1), Florida Statute (2018), clearly provides, with no discretion , that for each life sentence, McMillan will not be eligible for release earlier than fifteen years. Thus, this case presents a situation in which the sentencing error can be rectified by the ministerial act of the trial court correcting the written judgment and sentences to delete the reference to the life sentences as mandatory minimums. See Jordan v. State , 143 So.3d 335, 339 (Fla. 2014) (explaining that the right of presence at sentencing does not exist where the resentencing "concerns issues that are purely ministerial in nature" (quoting Acosta v. State , 46 So.3d 1179, 1180 (Fla. 2d DCA 2010) ); Orta v. State , 919 So.2d 602, 604 (Fla. 3d DCA 2006) ;

Frost v. State , 769 So.2d 443, 444 (Fla. 1st DCA 2000) ; Williams v. State , 697 So.2d 584 (Fla. 4th DCA 1997).

This case highlights the concern we expressed in Martinez :

Where a defendant has been sentenced on multiple charges, there must come a time in which a facially illegal sentence must stand, even under rule 3.800(a). After multiple failed attempts at redress ... the sentence should stand so long as it is legally permissible on resentencing to reimpose the same total years received, using some combination of concurrent and consecutive legal sentences.

Martinez , 216 So.3d at 740. Additionally, we said:

Resentencing, however, is never "simple" for the victim or the victim's family, particularly where the crime resulted in death or severe emotional or physical trauma. If finality means anything, it means putting an end to the reopening of old wounds. Our judicial system is not designed to achieve perfection; it is designed to achieve fairness.

Id. The manifest injustice exception espoused by the majority improperly expands the narrow reach of rule 3.800(a) relief when it allows a trial court, decades later, to resentence and impose less than a life sentence, where the original imposition of a life sentence was legal. Where the trial court elects not to impose less than a life sentence on resentencing, the application unnecessarily reopens old wounds.

      We note, although McMillan does not raise the issue, that the mandatory minimum terms of life are improper because the HVFO statute only provides for a mandatory minimum of fifteen years. See § 775.084(4)(b)1., Fla. Stat. (1997); Stanley v. State , 934 So.2d 562, 563 (Fla. 4th DCA 2006).

      The written judgment and sentences imposed three concurrent life sentences, stating "I-III Life FSP cr 590 days ts as 'violent habitual offender' w/ life as min mand 3 yr min mand as to ct III ct's conc."

      Heggs v. State , 759 So.2d 620 (Fla. 2000).


author: Conner, J.

text:
    Cherellda BRANCH-MCKENZIE, Appellant, v. BROWARD COUNTY SCHOOL BOARD, Appellee.
    No. 4D18-379
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Melissa C. Mihok of CPLS, P.A., Orlando, for appellant.
    Debra Potter Klauber and Kenneth J. Miller of Haliczer, Pettis & Schwamm, P.A., Fort Lauderdale, for appellee.
   Conner, J.

Cherellda Branch-McKenzie ("the Employee") appeals the final judgment issued after the trial court granted summary judgment in favor of the School Board of Broward County ("the School Board"), as to all five counts of the Employee's complaint. We affirm the summary judgment as to four of the counts without discussion, but reverse as to the count alleging a hostile work environment sexual harassment claim. We determine the trial court erred in concluding that there was no dispute of material fact and as a matter of law the alleged behavior was not pervasive enough to support a hostile work environment sexual harassment claim. We remand for further proceedings as to that claim.

Background

The Employee filed a five-count complaint against the School Board, one of which alleged sexual harassment. The complaint alleged facts involving the behavior of the principal ("the Principal") of a school where the Employee was a guidance counselor. More specifically, the complaint alleged the following verbal statements and physical actions by the Principal:

Verbal Statements (to the Employee)
"Girl, you look good, I sure would like to see what that's like. I know I can have THAT! ... I'm serious, I need to try THAT!"
Could he "get that."
"You have me curious"; "we need to go out"; and "you scared of me, I would have you whooped."
Called the Employee on the phone multiple times to ask what she was wearing. Also asked her to send "a picture of herself without her face and to engage in video chats with him."
Asked if he could "get a hug, and not a friendly hug"; "I bet [your husband] don't make you feel that way [give you chills]"; "let me get that right there"; said she was "too cute"; an "enigma"; and he was "emotionally attached" to the Employee.
He said he wanted to ask the Employee to stay late, but that he had a previous sexual harassment claim against him based on that same conduct, winked at the Employee, and said "there I go, now I'm winking at you."
He told her "you don't come to see me anymore," and when the Employee said she was busy, he said "no you're not, you need to come see me."
He told the Employee to have lunch with him, and when she tried to make excuses not to, he said he wanted to "mend their relationship," that the Employee "don't talk to me nor do you come to see me," and that she made him "humble."
He told a co-worker that he was "going to find my girl," referring to the Employee.
Verbal and Physical Actions
The Principal touched the Employee "on multiple occasions on her buttocks," and on one occasion stated, "oh, I'm sorry, but it felt good!"
The Principal placed his finger(s) on the Employee's lips if he thought she was talking too loud.
The Principal touched the Employee on the neck and said "come on, let me kiss you right there." When the Employee said "no," he said next time he would not ask, he would just do it, and that she made him "lose his swagger" by having to ask.
The Principal touched the Employee's neck and said "let me get that." The Principal made the same statement again another time, and when the Employee said "no," the Principal touched her back and hair, and told a co-worker who saw the exchange that the Employee was "like a mango ... you can't have just one."

The School Board moved for summary judgment as to the sexual harassment claim, arguing that, even assuming all of the facts as alleged by the Employee as true, the actions described were not sufficiently pervasive enough to support a sexual harassment claim. Various deposition transcripts were submitted by both sides to support and oppose the motion.

In her deposition, the Employee stated that the Principal became the principal of the school where she worked at the beginning of the 2011-2012 school year. As for the allegations in the complaint, the Employee stated that the verbal and physical actions started when the Principal first came to the school in August 2011. The Employee's deposition testimony mirrored the factual allegations in the complaint.

The Employee stated that she first reported the harassment to the School Board's Equal Employment Opportunity office ("EEO") in September 2012. She stated that she tried to tell the Principal to stop, but that he would "blow it off," telling her "that he was going to humble [her] and in his country women bough [sic] down." The Employee stated that she never had a conversation with the Principal where he acknowledged that he knew of her filing an employee complaint against him, but that someone else, who she could not remember, told her that he made such an acknowledgment. She stated, multiple times, that "after [the Principal] found out [she] reported [the behavior], he still continued to do it." However, when she was specifically asked whether the Principal did anything inappropriate after she filed her complaint with the EEO, she stated that she was not sure, and that he stopped at some point, but only because she "avoided him."

Another employee, who worked at the school during the time period alleged in the Employee's EEO complaint, was deposed. She stated that she witnessed the Principal act inappropriately towards the Employee. She stated that the first time she made such an observation was when she saw the Principal approach the Employee and "made reference to her neck, saying next time, he's not going to ask for a kiss, she's [sic] just going to take it," and made reference "about her neck tasting like a mango or something like that."

The other employee also said that the Principal: would refer to the Employee as "his boo"; said he was going to be sent back on administrative duty (like he was after the previous sexual harassment claim) if he did not stop "messing with" the Employee; and accidentally touched the Employee's behind and said it was a mistake "but a good mistake." She stated that the Principal had also been inappropriate towards her as well. The other employee also said that the Employee told her never to leave the Employee alone with the Principal, and she made an effort not to. An ESE teacher at the school also gave a deposition, and said that the Employee stopped coming to a staff meeting that she usually attended, because the Employee "said she didn't want to see that man, she didn't want to be near that man, she didn't want to be in the same room, and she was not coming." A bookkeeper for the school during the relevant time stated in deposition that the Employee told her that the Principal "was feeling on her arms and she didn't like it." Also, that when the Employee stated she was going to report the Principal to the School Board, but had trepidations because of the Principal's family, the bookkeeper prayed with the Employee, "for everything to come out."

In the Principal's deposition, he admitted that he had previously been accused of, and subject to an investigation for, sexual harassment, and that the result of that investigation was a finding of probable cause to support the allegations and he was suspended for ten days. He denied all of the allegations the Employee made against him, and said that she even volunteered to be on-site with him for summer school, and a person "wouldn't ask to do that with a person that makes you feel uncomfortable, or in this case, she alleges is harassing you."

At the hearing on its motion for summary judgment, for purposes of the motion, the School Board agreed with all of the allegations made by the Employee. Consistent with the written motion, the School Board argued that the Employee's sexual harassment claim should fail because the actions, even as alleged, were not pervasive enough to support such a claim. The Employee responded, arguing that the actions were pervasive, as she stopped going to staff meetings and asked for and received a transfer from the school.

The trial court granted summary judgment in favor of the School Board after finding that the Employee's testimony established that there were no further incidents of harassment after the Employee filed her EEO complaint in September 2012, and so as a matter of law, the "claims made by the [Employee] ... are not the type that are sufficiently pervasive so as to constitute a hostile work environment," and that although the Employee may have been subjectively offended, it was not enough to meet the standard for a sexual harassment claim. Subsequently, the Employee gave notice of appeal.

Appellate Analysis

"The standard of review of an order granting summary judgment is de novo." Patten v. Winderman , 965 So.2d 1222, 1224 (Fla. 4th DCA 2007) (quoting Biggins v. Fantasma Prods., Inc. of Fla. , 943 So.2d 952, 955 (Fla. 4th DCA 2006) ).

Florida Rule of Civil Procedure 1.510 provides that summary judgment is proper only when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c). However, "[a] judgment should not be rendered in such proceedings unless the facts are so crystallized that nothing remains but questions of law." Villazon v. Prudential Health Care Plan, Inc. , 843 So.2d 842, 853 (Fla. 2003) (quoting Shaffran v. Holness , 93 So.2d 94, 97-98 (Fla. 1957) ). As such, the School Board agreed to the facts as alleged by the Employee, for purposes of supporting and reviewing the summary judgment entered by the trial court.

"Sexual harassment is a form of sex discrimination prohibited by the Florida Civil Rights Act,[ ] so that an employee may assert a claim for sexual harassment under section 760.10, Florida Statutes (2003)." Maldonado v. Publix Supermarkets , 939 So.2d 290, 293 (Fla. 4th DCA 2006). There are two types of sexual harassment cases: (1) quid pro quo , which are "based on threats which are carried out" or fulfilled, and (2) hostile environment, which are based on "bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment." Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 751, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). In the trial court below, the Employee did not allege or pursue a quid pro quo claim.

The elements of a hostile work environment sexual harassment claim are:

(1) that [the plaintiff] is a member of a protected group; (2) that she was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on the sex of the employee; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) there is a basis for holding the employer liable.

Blizzard v. Appliance Direct, Inc. , 16 So.3d 922, 927 (Fla. 5th DCA 2009). However, since the Employee's claim alleges sexual harassment by "a direct supervisor, the employee does not have to prove the fifth element." Grogan v. Heritage NH, LLC , 126 So.3d 262, 264 (Fla. 3d DCA 2010). Additionally, in this case there does not appear to be any contention, in terms of summary judgment, as to the first, second, and third elements. Therefore the issue in this case is whether the Principal's conduct was pervasive enough to create a hostile environment.

In order to determine whether offensive conduct is pervasive enough, courts look to four factors:

1) the frequency of the conduct; 2) the severity of the conduct; 3) whether the conduct was physically threatening or humiliating; and 4) whether the conduct unreasonably interfered with the employee's job performance.

Maldonado , 939 So.2d at 294. "An analysis of the severity factors includes a subjective and objective component, in that the employee must subjectively perceive the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and the subjective perception must be objectively reasonable." Id. The objective component uses a reasonable person standard, taking into account the circumstances of the case. Id. at 294-95. It is clear that the Employee subjectively considered the sexual harassment severe and pervasive enough, but a look at the factors is necessary for the objective standard analysis.

Frequency of the Conduct

"[S]tatements and conduct must be of a sexual or gender-related nature ... before they are considered in determining whether the severe or pervasive requirement is met." Gupta v. Fla. Bd. of Regents , 212 F.3d 571, 583 (11th Cir. 2000), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). To analyze this factor, we focus on allegations as to instances of verbal and physical conduct alleged in the complaint to have occurred over a two-year period. However, it must be noted that two of the verbal allegations and three of the physical allegations were alleged to have happened on "multiple occasions."

Considering the frequency of the conduct, and whether the allegations were sufficient to survive a motion for summary judgment, it is helpful to look to the number of allegations in a certain time period that other courts have found to be sufficient or insufficient as a matter of law. For example, courts have found the following facts insufficient as a matter of law: four comments over a 2.5 year period, Maldonado , 939 So.2d at 295 ; five incidents over an eleven month period, Mendoza v. Borden, Inc. , 195 F.3d 1238, 1249 (11th Cir. 1999) ; "five separate incidents ... over a span of approximately sixteen months," Sprague v. Thorn Ams., Inc. , 129 F.3d 1355, 1366 (10th Cir. 1997) ; and three encounters over a two-year period, Galdamez v. DHL Air Exp. USA , 578 Fed. App'x. 887, 889 (11th Cir. 2014). On the other hand, courts have found sufficient frequency to constitute a jury question where there was: "roughly fifteen separate instances of harassment over the course of four months," Johnson v. Booker T. Washington Broad. Serv., Inc. , 234 F.3d 501, 509 (11th Cir. 2000) ; and almost-daily abuse, both verbal and physical, over a three-year period, Dees v. Johnson Controls World Servs., Inc. , 168 F.3d 417, 418-19 (11th Cir. 1999).

The facts of this case fall somewhere between the above examples. In total, the Employee alleged that there were more than twenty incidents over a two-year period. This case is similar to Degitz v. Southern Management Services, Inc. , 996 F.Supp. 1451 (M.D. Fla. 1998), where the plaintiff made the following allegations:

Plaintiff claims that Mr. Copley would ask Plaintiff to "run away with him," state that "he could not concentrate with Plaintiff around," that he "would like to see Plaintiff in a bikini," and that Plaintiff "looked good enough to eat." In addition, Plaintiff contends that Mr. Copley would say to her, "would the little girl like a lolly pop?" Plaintiff contends that many more of the same, or similar, remarks were made throughout her employment.
In addition, Plaintiff describes specific acts which she alleges were extremely oppressive to her. First, Plaintiff alleges that on or about July 31, 1995, Mr. Copley gave Plaintiff a first aid kit, in which, Mr. Copley concealed a condom. Plaintiff's twelve (12) year old daughter was playing with the kit and discovered the condom. Also, Plaintiff maintains that, in September, 1995, while leaving a company cookout, Mr. Copley followed Plaintiff to her vehicle where Mr. Copley grabbed her and tried to kiss and hug her. Furthermore, Plaintiff asserts that later that same month, Mr. Copley directed Plaintiff to meet him for lunch. Plaintiff claims that during the lunch, Mr. Copley directly and specifically asked Plaintiff to participate in a threesome sexual encounter with himself and a prostitute. Plaintiff states that she refused, but later that same day, Mr. Copley entered Plaintiff's office and placed the prostitute's business card on Plaintiff's desk.
Plaintiff also asserts that on October 20, 1995, Plaintiff stayed home from work due to illness. Plaintiff states that her husband and daughter were home sick as well. According to Plaintiff, Mr. Copley called Plaintiffs' home and Plaintiffs' daughter answered the phone. Plaintiff asserts that Mr. Copley must have thought it was Plaintiff who answered the phone because Mr. Copley stated, "this is Dr. Copley, and I make house calls to make it all better." In addition, Plaintiff alleges that on numerous occasions, Mr. Copley would stand behind Plaintiff while she was at her desk and fondle her neck and back. Moreover, Plaintiff attests that she was fearful that she would lose her job if she complained to anyone. Plaintiff asserts that as a result of Mr. Copley's constant advances, she became scared, nervous, and very depressed.

Id. at 1456. In this case, the comments were similar, and similar remarks are alleged to have been made on a repeated basis. Additionally, while the harasser in Degitz attempted to kiss the plaintiff on one occasion, outside of work, here, the Employee alleged that the Principal made comments about touching her and threatening to kiss her on multiple occasions while at work. The Employee also alleged that the Principal called her personal cell phone on multiple occasions, soliciting "a picture of herself without her face," and asking her what she was wearing.

Therefore, we conclude the alleged facts in this case were frequent enough such that the frequency of conduct factor should have been resolved by a jury decision, rather than a summary judgment decision.

Severity of Conduct

"Title VII 'does not prohibit all verbal or physical harassment in the workplace,' and 'does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.' " Johnson , 234 F.3d at 509 (quoting Oncale v. Sundowner Offshore Servs. Inc. , 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) ). Also, "teasing, offhand comments, or isolated incidents" are not enough. Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 812 (11th Cir. 2010). "Although a single act can be enough ... generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident." King v. Bd. of Regents of Univ. of Wis. Sys. , 898 F.2d 533, 537 (7th Cir. 1990).

Similar to the frequency factor, there are many cases discussing what is and is not severe enough. The following are instances where courts have found the facts insufficient as a matter of law for severity:

The alleged harasser told complainant that she was "very beautiful" on one occasion; alleged harasser called complainant at home on nights and weekends, and although asked her personal questions, he never "ask[ed her] for a date or ma[d]e sexually explicit remarks or innuendos"; one time when he was expecting her, the alleged harasser was not wearing a dress shirt (but an undershirt), and when the complainant came in, he unbuttoned his pants, pulled down his zipper, and started tucking in his shirt, but the complainant admitted the air conditioning was broken that day; the alleged harasser stared at the complainant twice, touched her ring and bracelet once and kept asking her to lunch; and what the court found most serious, the alleged harasser placed his hand on the complainant's knee once and touched the hem of her dress once. Gupta , 212 F.3d at 584-85
"(1) [the alleged harasser] once made a remark to [the complainant] about another employee's body, (2) he once slapped her on the behind with a newspaper, (3) he 'grabbed or brushed' against the complainant]'s breasts and behind, (4) he once held her cheeks and tried to kiss her, (5) he asked [the complainant] to come to the office early so that they could be alone, and (6) he once stood in the door of the bathroom while she was washing her hands." Hockman v. Westward Commc'ns, LLC , 407 F.3d 317, 328 (5th Cir. 2004).

The following are instances where courts have found the facts sufficient to constitute a jury question:

"[D]uring [a] seven-month period, [the alleged harasser] grabbed [the complainant] and kissed her on the cheek, popped rubber bands at her breasts, fondled her breasts 'numerous times,' patted her on her buttocks 'numerous times,' and came behind her and rubbed his body against her. At one point, [the complainant] estimated that [the alleged harasser] touched her breasts or her buttocks perhaps as often as once a week - although she later stated that it may not have been as often as once a week. She also claims that on one occasion [the alleged harasser] made comments to her about her sex life and her abilities in bed. [The complainant] stated that she protested every time [the alleged harasser] touched her breasts and she also protested when [the alleged harasser] would pat her buttocks." Harvill v. Westward Commc'ns, L.L.C. , 433 F.3d 428, 435-36 (5th Cir. 2005).
When discussing a raise for the complainant, the alleged harasser told the complainant she was "sleeping with the wrong employee" for a raise (the complainant's boyfriend also worked for the same company); he also said this on other occasions, at least once in front of other people; at an office party, the alleged harasser placed his hand on the complainant's thigh, lifting her skirt a few inches, and took a picture of his hand on her leg, and also asked if he could go to her hotel room; five or six times the alleged harasser came up behind the complainant while she was working, put his hands on her neck or back, and "leaned into her"; alleged harasser called complainant "hot" and discussed what type of underwear she wore. Schiano v. Quality Payroll Sys., Inc. , 445 F.3d 597, 601-02 (2d Cir. 2006).

The facts of this case are more similar to the second set of cases, and particularly Schiano (where there were instances of physical touching, and also multiple inappropriate and sexual comments, some in front of other people). The Employee's allegations are more severe than those in Gupta and Hockman . Move over, there were more instances of inappropriate comments by the Principal than were found sufficient in Schiano , and the Principal even called the Employee at home, and made sexual innuendos, which were missing in Gupta , asking her what she was wearing, and asking for photographs of the Employee.

Therefore, we conclude the alleged facts in this case were severe enough such that the severity of conduct factor should have been resolved by a jury decision, rather than a summary judgment decision.

Physically Threatening or Humiliating

In Maldonado , this Court explained that touching that was potentially accidental was not enough to be physically threatening. 939 So.2d at 295-96. Although the Employee described one instance where the Principal may have accidentally touched her buttocks, she alleged multiple other occasions where the Principal purposely touched her in a sexual manner. Additionally, the Employee alleged that after touching her on the neck, the Principal made a comment to the effect that he would not ask her for a kiss, but next time, just kiss her. Therefore, the Employee did not know if the Principal would carry out this actual threat of physical unwanted touching. Cf. Ellison v. Brady , 924 F.2d 872, 880 (9th Cir. 1991) ("[The alleged harasser] ... said he would [partake in the harassing conduct] again. [The complainant] had no way of knowing what [the alleged harasser] would do next.").

We are satisfied that the actions by the Principal also fall under the category of humiliating, particularly since multiple of the allegations occurred in the presence of other co-workers. See Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269, 1277 (11th Cir. 2002) ("[T]he testimony makes it clear that these incidents were humiliating and degrading to [the complainant]. The very nature of the coworkers' utterances, coupled with the fact that they were directed at [the complainant] and were sometimes used in the course of reprimanding him in front of others, establishes this factor."); cf. Oncale , 523 U.S. at 77, 118 S.Ct. 998 ("On several occasions, [the complainant] was forcibly subjected to sex-related, humiliating actions against him by [a co-worker and two supervisors] in the presence of the rest of the crew.").

The Employee alleged and testified in deposition that the Principal made a comment about touching the Employee's buttocks and referring to her as a "mango." That allegation was corroborated by the deposition testimony of a co-worker, as well as the fact that the Principal called the Employee "his boo" to the co-worker. Additionally, there was evidence to support that this co-worker and the Employee made a pact not to leave each other alone with the Principal, reducing the Employee to the necessity of a chaperone in the Principal's presence.

Therefore, we conclude the alleged facts in this case were arguably physically threatening or humiliating enough such that the physically threatening or humiliating conduct factor should have been resolved by a jury decision, rather than a summary judgment decision.

Unreasonable Interference with Job Performance

The Supreme Court has explained:

Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality.

Harris v. Forklift Sys., Inc. , 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

To show interference with one's employment sufficient to make a prima facie case of a hostile work environment, "the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. The employee need only show that the harassment made it more difficult to do the job."

Smith v. Akstein , 408 F.Supp.2d 1309, 1328 (N.D. Ga. 2005) (quoting Williams v. Gen. Motors Corp. , 187 F.3d 553, 567 (6th Cir. 1999) ).

Here, although the Employee continued to work for the School Board, she eventually requested a transfer from the school. Additionally, prior to her request, there were additional interferences with the Employee's job performance. The Employee alleged that she made a pact with a co-worker not to be alone with the Principal, and that she stopped going to meetings in an effort to avoid the Principal. A co-worker testified at deposition that she told the Employee that the latter could be seen as insubordination, yet the Employee continued to avoid the meetings. Additionally, the Employee stated that she did not apply for an assistant principal position, because she thought that she would not receive the promotion based on the Principal's threats. These types of alterations are enough to constitute unreasonable interference with the Employee's job performance. Compare Schiano , 445 F.3d at 606 (finding it relevant that the complainant alleged that she asked for a partition to be put up around her desk to keep the alleged harasser away from her), and Johnson , 234 F.3d at 509 (finding that the conduct unreasonably interfered with job performance where the employee "could not get along with her on-the-air co-host"), with Maldonado , 939 So.2d at 296 (finding it insufficient that after her co-worker grabbed her buttocks, the complainant stated that "she quickly punched out without cleaning her ... machine").

Therefore, we conclude the alleged facts in this case demonstrate unreasonable interference with the Employee's job performance such that the unreasonable interference with job performance factor should have been resolved by a jury decision, rather than a summary judgment decision.

Conclusion

As to the propriety of a summary judgment in favor of the School Board on the Employee's hostile work environment sexual harassment claim, the contested issue is whether the alleged sexually harassing behavior was pervasive enough to support the claim. Having reviewed the record regarding the four factors identified in Maldonado to determine whether offensive conduct was pervasive enough to support a hostile work environment sexual harassment claim, we determine that the Employee came forward with sufficient summary judgment evidence as to all four factors to defeat summary judgment. We therefore affirm summary judgment in favor of the School Board as to all of the claims alleged in the complaint, except for the hostile work environment sexual harassment claim. We reverse the summary judgment as to the hostile work environment sexual harassment claim and remand the case for further proceedings as to that claim.

Affirmed in part, reversed in part, and remanded.

Gross and Klingensmith, JJ., concur.

      "The Florida Civil Rights Act is patterned after Title VII [of the Civil Rights Act of 1964], and therefore federal case law regarding Title VII is applicable." Castleberry v. Edward M. Chadbourne, Inc. , 810 So.2d 1028, 1030 n.3 (Fla. 1st DCA 2002).


text:
    SOCIETE HELLIN, S.A., a Panamanian corporation, and Francisco Morillo, Appellants, v. VALLEY COMMERCIAL CAPITAL, LLC, a New Jersey limited liability company, Appellee.
    No. 4D18-772
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Melissa B. Coffey and Joshua M. Hawkes of Foley & Lardner LLP, Tallahassee, for appellants.
    M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, and Bridget Ann Berry and Lauren R. Whetstone of Greenberg Traurig, P.A., West Palm Beach, for appellee.
   Per Curiam.

The defendants appeal from a non-final order denying their motion to quash substitute service of process. Because the plaintiff failed to exercise due diligence in attempting to locate and serve the defendants, we reverse.

Facts

The plaintiff, Valley Commercial Capital, LLC ("VCC"), sued the defendants in May 2012 after they defaulted on an aircraft lease and guaranty. The complaint alleged that defendant Societe Hellin, S.A. ("SH") was a Panamanian corporation and defendant Francisco Morillo ("Morillo") was a dual citizen of Venezuela and France. VCC sought to effect service on Morillo both in his individual capacity and in his representative capacity vis-à-vis SH. The summonses for both defendants were issued using a Venezuelan address identified in the lease as SH's address.

In January 2013, VCC moved for an extension of time to serve the defendants. It asserted that it had made multiple unsuccessful attempts to serve them and was attempting to serve them in Panama and Venezuela, but did not describe these service attempts.

In February 2013, VCC hired a private investigator, who found that Morillo maintained a condo on Brickell Avenue in Miami. Based on this information, instead of trying to serve defendants in Venezuela or Panama, between February and April 2013, VCC focused on serving Morillo at the Brickell condo. Unsuccessful, VCC suspended its efforts until July 2014, when it heard that Morillo was back in Miami. VCC still could not locate Morillo, but it served his wife at the Brickell condo in July 2014.

Defendants moved to quash the service, arguing that it was ineffective because Morillo was not a co-resident with his wife at the Brickell condo. The trial court granted the motion, finding that Morillo did not reside there.

In 2015, VCC served discovery on defendants. Defendants produced a copy of SH's 2003 articles of incorporation, which indicated that SH's president and secretary were located in Miami and disclosed the address of SH's registered agent in Panama. VCC also deposed Morillo's wife, who confirmed that Morillo did not reside at the Brickell condo.

In July 2016, VCC filed a motion to permit substitute service on defendants. While that motion was pending, VCC again made several service attempts at the Brickell condo, but was still unsuccessful. In February 2017, a hearing was held on VCC's motion to use substitute service. The trial court commented: "At some point [VCC] needs to bring [defendants] to court and [has] to get service somehow" and "What are they supposed to do, go serve him in Venezuela?" The court then granted VCC's motion for substitute service. Accordingly, VCC served the Secretary of State and sent the notice of service and a copy of the process to defendants at eight different addresses. Defendants moved to quash the substitute service, arguing, among other things, that VCC failed to exercise due diligence to locate and serve defendants and that VCC failed to comply with the technical statutory requirements for substitute service. The trial court denied the motion to quash. Defendants appealed.

Analysis

The general rule in Florida is that a defendant must be personally served. See Alvarado-Fernandez v. Mazoff , 151 So.3d 8, 17 (Fla. 4th DCA 2014). However, there are exceptions to that rule. For instance, as relevant to this case, section 48.181, Florida Statutes (2012), authorizes substitute service on nonresident defendants doing business in Florida where the cause of action arises from the defendant's Florida business activities. Pelycado Onroerend Goed B.V. v. Ruthenberg , 635 So.2d 1001, 1003 (Fla. 5th DCA 1994).

"Before using the substitute service statutes, a plaintiff must 'demonstrate the exercise of due diligence in attempting to locate the defendant.' " Alvarado-Fernandez , 151 So.3d at 16 (quoting Wiggam v. Bamford , 562 So.2d 389, 391 (Fla. 4th DCA 1990) ); see also Coastal Capital Venture, LLC v. Integrity Staffing Sols., Inc. , 153 So.3d 283, 285 (Fla. 2d DCA 2014) ("Substitute service is unauthorized if personal service could be obtained through reasonable diligence.").

The test [for determining the sufficiency of constructive or substitute service] is not whether it was in fact possible to effect personal service in a given case, but whether the [plaintiff] reasonably employed knowledge at [her] command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable [her] to effect personal service on the defendant.

Alvarado-Fernandez , 151 So.3d at 17 (alterations in original) (quoting Wiggam , 562 So.2d at 391 ).

A common theme in cases holding that the plaintiff failed to exercise due diligence is that "the plaintiff faile[d] to follow an 'obvious' lead." Dubois v. Butler ex rel. Butler , 901 So.2d 1029, 1030 (Fla. 4th DCA 2005). In Dubois , the parties were in a car accident in 2000, but the plaintiff did not sue the defendant until 2003. Id. at 1031. The plaintiff attempted to serve the defendant only at the address listed on the nearly three-year-old accident report. Id. Other than that, the plaintiff merely checked telephone listings for the defendant. Id. This court held that the plaintiff failed to use due diligence to justify substitute service. Id.

In Coastal Capital , the plaintiff made repeated attempts to serve the defendants at their condo in Sarasota even though the plaintiff knew that the defendants were on an extended business trip in California. 153 So.3d at 285. There, the plaintiff was in contact with one of the defendants but failed to ask him where he could be served. Id. at 285. The Second District held that "[o]bviously, the necessary diligence is not established by repeatedly sending a process server to an address when the resident is known to be out of town." Id.

In Knabb v. Morris , 492 So.2d 839 (Fla. 5th DCA 1986), after a car accident, the plaintiff hired an investigator who attempted service at three different addresses. The plaintiff also checked the telephone directory, the postal service, and several utility companies before attempting substitute service. Id. at 840-41. The Fifth District held that those efforts did not constitute due diligence because the plaintiff ignored certain obvious leads, including the vehicle accident report which contained the addresses of the occupants of the defendant's car, who the plaintiff could have contacted to inquire about the defendant's whereabouts. Id.

In Alvarado-Fernandez , on the other hand, after a car accident, the plaintiff repeatedly tried to serve the defendant in Colombia, where the defendant was a citizen. 151 So.3d at 17. The plaintiff used the address and driver's license number that the defendant had supplied to her rental car company, but that information was incorrect. Id. The plaintiff sought discovery from the rental car company, hired two separate attorneys to try and find the defendant in Colombia, and investigated social media, but could not locate the defendant. Id. Under these facts, this court held that the plaintiff's efforts were duly diligent so as to justify substitute service. Id. at 18.

This case is distinguishable from Alvarado-Fernandez and aligns more with the cases in which the plaintiff failed to follow an "obvious lead." While the record here does indicate that VCC made substantial efforts to locate and serve defendants, those efforts were nearly all directed at the Brickell condo. Although Morillo did visit and maintain the Brickell condo, he did not reside there, as VCC had learned during the wife's deposition in 2015 and the court had found in 2016.

Repeated attempts at service on the wrong location do not amount to due diligence. See Coastal Capital , 153 So.3d at 285 ; Robinson v. Cornelius , 377 So.2d 776, 778 (Fla. 4th DCA 1979) (finding due diligence was not shown where the plaintiff knew that the defendant did not reside at a particular address but attempted service there on multiple occasions); cf. Delancy v. Tobias , 26 So.3d 77, 79 (Fla. 3d DCA 2010) (finding that due diligence was established where plaintiff attempted service twenty-two times at the correct address, but was unable to effect service because it was a gated residence).

Here, there is no evidence in the record showing that VCC made any attempt to locate or serve defendants in Venezuela or Panama. While this court in Alvarado-Fernandez acknowledged that the defendant's location in Colombia "greatly impeded the logistics of the search efforts as well as attempts at personal service," 151 So.3d at 18, it also relied on the plaintiff's efforts to locate and serve the defendant in Colombia in finding that the plaintiff exercised due diligence. Id.

In contrast, here, at the time it filed the complaint, VCC had the Venezuelan address listed for SH on the lease. It even sent a demand letter there. In July 2015, defendants produced SH's articles of incorporation, which disclosed other Miami and Venezuelan addresses for SH's directors and a Panamanian address for SH's registered agent. Yet the record contains no evidence of any personal service attempts at the Venezuelan addresses or at the registered agent's address in Panama.

At the hearing on VCC's motion to permit substitute service, the trial court asked, "What are they supposed to do, go serve him in Venezuela?" In response to this question, we note that while VCC did not have to serve Morillo in Venezuela, it did have to engage in duly diligent efforts to effect personal service upon him. "Because personal service is contemplated under Florida law, serving a defendant in another country necessarily requires 'the transmittal of documents abroad' ...." Puigbo v. Medex Trading, LLC , 209 So.3d 598, 601 (Fla. 3d DCA 2014) (citation omitted); see also Godsell v. United Guar. Residential Ins. , 923 So.2d 1209, 1215 (Fla. 5th DCA 2006) (finding no due diligence where plaintiff was informed that defendant lived in Canada, but made no effort to discover her Canadian address).

Because the record shows no efforts to locate and serve defendants in Venezuela or Panama, and instead reflects that VCC single-mindedly focused on the Brickell condo where Morillo sometimes stayed but did not reside, we reverse.

Reversed and remanded.

Warner, Levine and Klingensmith, JJ., concur.

      We do not reach defendants' arguments that plaintiff failed to comply with section 48.161's technical requirements for substitute service or that defendant Morillo was required to be served according to the Hague Convention.

      In October 2016, VCC served the president and secretary identified in SH's 2003 articles of incorporation. Defendants moved to quash that service; the motion appears to be pending.


author: Harper, Bradley, Associate Judge.

text:
    MARLIN YACHT MFG., INC., and Giuseppe Gismondi, Appellants, v. Alex NICHOLS and Aqua Aero Enterprises, Inc., Appellees.
    No. 4D17-2434
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Jonathan R. Kaplan of Jonathan R. Kaplan, LLC, West Palm Beach, for appellants.
    Justin S. Fiorilli of Fiorilli Law Group, P.A., Fort Lauderdale, for appellees.
   Harper, Bradley, Associate Judge.

Appellants Marlin Yacht Manufacturing, Inc. and Giuseppe Gismondi (collectively, "the manufacturer") challenge the portion of the trial court's final judgment awarding money damages in the amount of $170,000.00 to Appellees Alex Nichols and Aqua Aero Enterprises, Inc. (collectively, "the owner"). The trial court erred in awarding money damages for breach of a settlement agreement before incorporating the settlement terms into a final judgment, dismissing the underlying lawsuit, and conducting a separate enforcement hearing. We reverse.

In 2010, the owner hired the manufacturer to construct a sport fishing vessel. The manufacturer started construction of the vessel but did not finish.

The owner filed a lawsuit against the manufacturer alleging, among other things, a cause of action for breach of contract. The lawsuit also alleged a cause of action for breach of license agreement, declaratory judgment, tortious interference with business relationships, equitable accounting, and unfair and deceptive trade practices.

On September 17, 2011, during the pendency of the lawsuit, the owner and the manufacturer, pro se , entered in a settlement agreement entitled "purchase agreement" ("2011 Settlement Agreement"). The terms of the 2011 Settlement Agreement are as follows:

[I]t is agreed that [the manufacturer] will purchase from [the owner] an existing semi-complete 42' vessel currently located at New River Marina as is/where is.
Purchase price is: $200,000 payable as follows - 10% non-refundable deposit ($20,000) due by October 15th, 2011. Balance ($180,000) due on or before December 31st, 2011. Vessel to remain at New River Marina until this agreement is paid in full.
[The owner] agrees to return the Phasor 8kW generator to [the manufacturer].
Volvo Penta IPS600 diesel engines are specifically not part of this agreement.
In the event [the manufacturer] manufactures additional boats from existing molds owned by [the owner] it is agreed a $15,000 royalty payment per boat is due. Royalty payment is due upon boat being released from mold.

In January 2012, the parties amended the 2011 Settlement Agreement. The amendment provided, in relevant part, as follows:

[The owner] agree[s] that upon receipt from [the manufacturer] of an additional non-refundable deposit in the amount of $10,000.00 on or before 1/05/2012 [the owner] will extend to [the manufacturer] until 2/29/2012 all terms and conditions as outlined in our agreement dated 9/17/2011. This will supersede Choice 1 in [the owner's] letter to [the manufacturer] dated 12/28/2011.

The manufacturer paid a total of $30,000.00 in non-refundable deposits but did not complete the purchase. For reasons not explained by the record, the parties litigated for five additional years after entering into the 2011 Settlement Agreement.

In 2017, in an effort to end the litigation, the parties moved the trial court to enter a final judgment incorporating the terms of the 2011 Settlement Agreement. Additionally, the owner moved the trial court to enter a judgment for money damages in its favor.

The trial court entered a final judgment incorporating the terms of the 2011 Settlement Agreement and, over the manufacturer's objection, simultaneously entered a final judgment of $170,000.00 in favor of the owner for breach of the settlement agreement.

The manufacturer argues that the trial court erred in awarding money damages because the trial court did not have jurisdiction to enforce the 2011 Settlement Agreement, and because the terms of the 2011 Settlement Agreement did not support a money damages award. The owner argues that it is entitled to a judgment for money damages against the manufacturer according to the express terms of the settlement agreement.

Questions regarding the trial court's jurisdiction are reviewed de novo. Sanchez v. Fernandez , 915 So.2d 192, 192 (Fla. 4th DCA 2005). Likewise, settlement agreements are interpreted like a contract and reviewed de novo. Barone v. Rogers, 930 So.2d 761, 764 (Fla. 4th DCA 2006).

As an initial matter, we conclude that the trial court had jurisdiction to incorporate the terms of the settlement agreement into a final judgment and to enforce the terms of the settlement agreement. See Paulucci v. Gen. Dynamics Corp. , 842 So.2d 797, 803 (Fla. 2003) (court has continuing jurisdiction to enforce the terms of the settlement agreement when the court incorporates the settlement agreement into a final judgment and retains jurisdiction to enforce its terms, even if the terms are outside the scope of the remedy sought in the original pleadings).

Having decided that the trial court had jurisdiction to incorporate the terms of the settlement agreement into a final judgment and to enforce the terms of the settlement agreement, we next determine whether the trial court erred in entering a money judgment against the manufacturer without a separate enforcement hearing.

The manufacturer agrees that its intent in entering into the settlement agreement was to end the lawsuit. Therefore, the trial court should have entered a judgment incorporating the terms of the settlement agreement and dismissed the lawsuit. See generally Spiegel v. H. Allen Holmes, Inc. , 834 So.2d 295, 297 (Fla. 4th DCA 2002) (Florida law has long favored settlement agreements as a means to conserve judicial resources).

However, the manufacturer should have been afforded a separate enforcement hearing after the lawsuit had been dismissed. See generally Paulucci , 842 So.2d at 801-03. A separate enforcement hearing under these circumstances is appropriate because the incorporation of the settlement terms into a judgment ends the litigation and limits the scope of the trial court's jurisdiction. Id. at 803 ("[T]he extent of the court's continuing jurisdiction to enforce the terms of the settlement agreement is circumscribed by the terms of that agreement.") Thus, the trial court should have incorporated the settlement terms into the final judgment and dismissed the lawsuit before determining whether the settlement terms had been breached. See generally Brinkley v. Coty. of Flagler , 769 So.2d 468 (Fla. 5th DCA 2000).

Finally, we are unconvinced by the manufacturer's argument that the owner, on remand, must file a separate action to enforce any breach of the settlement agreement. A separate action is necessary only if the owner seeks general damages not specified in the settlement agreement. See Paulucci , 842 So.2d at 801-03 ("[I]f a party is claiming a breach of the [settlement] agreement and is seeking general damages not specified in the agreement, the appropriate action would be to file a separate lawsuit."). Seeking performance of a settlement term requiring a non-contingent payment is not the same as seeking general damages not specified in the settlement agreement. See MCR Funding v. CMG Funding Corp. , 771 So.2d 32, 36-37 (Fla. 4th DCA 2000) (affirming trial court's money judgment award against a party who failed to comply with a non-contingent settlement term requiring the payment of $150,000.00).

Accordingly, we reverse the trial court's judgment for money damages against the manufacturer and remand this case to the trial court to hold a separate settlement enforcement hearing after the underlying lawsuit has been dismissed pursuant to the 2011 Settlement Agreement.

Reversed and remanded with directions.

May and Ciklin, JJ., concur.


author: Gross, J.

text:
    Roy Stewart STEIN, Appellant, v. Yvonne STEIN, Appellee.
    No. 4D18-493
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Jane Kreusler-Walsh and Stephanie L. Serafin of Kreusler-Walsh Vargas & Serafin, P.A., West Palm Beach, and Michael P. Walsh of Michael P. Walsh, P.A., West Palm Beach, for appellant.
    Doreen Bonadies Halickman of The Law Firm of Doreen B. Halickman, Palm Beach Gardens, and Robyn R. Weiss of Robyn R. Weiss, P.A., Palm Beach Gardens, for appellee.
   Gross, J.

The husband appeals a non-final order awarding the wife $138,000 in temporary attorney's fees and costs. We affirm the award and write to address the trial court's broad discretion to award interim fees in Chapter 61 proceedings and matters which are intricately intertwined with those proceedings.

In the underlying dissolution action, the husband and wife entered into a mediated temporary agreement in which the husband agreed to pay the wife $7,000 per month in temporary alimony and $25,000 in temporary attorney's fees and costs. Shortly thereafter, the husband amended his petition for dissolution to include a claim for civil theft, alleging the wife repeatedly forged his signature on checks drawn from his business account while she was the bookkeeper.

In light of the amended petition, the wife requested an additional $163,294 in fees and costs, which included temporary attorney's fees to defend against the civil theft claim. The trial court held an evidentiary hearing during which both parties presented testimony from their respective accountants regarding the need and ability to pay for such fees. Following the hearing, the court entered an order awarding the wife $138,000 in fees and costs, which included $30,000 in attorney's fees to defend against the civil theft claim. The court explicitly found that the civil theft count "necessarily involves the same and overlapping issues involved in the dissolution action" and therefore an award of temporary fees for the civil theft claim was entirely proper, explaining:

The court has jurisdiction to award the Wife attorney's fees for the representation of a party in a "companion lawsuit" outside Chapter 61, which has been consolidated with this dissolution proceeding. The civil theft proceeding clearly involves entities which are wholly-owned and controlled by the husband, and are so intertwined with the dissolution litigation, that the trial court finds that the civil theft claim is part and parcel of the domestic strife in the instant matter.

On appeal, the husband asserts there is no statutory basis to award fees for the civil theft claim. Pursuant to section 61.16, Florida Statutes, a trial court "may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under [chapter 61] ...." § 61.16(1), Fla. Stat (2017). Generally, a trial court has no authority to award attorney's fees in other suits involving another spouse's interests which do not fall within the purview of Chapter 61, such as the civil theft claim at issue. Kass v. Kass , 560 So.2d 293, 294 (Fla. 4th DCA 1990). However, this court has held that an award of fees is appropriate when the separate action is "so intertwined with the dissolution litigation" that it is "part and parcel of the domestic strife." Id.

Here, the wife was not precluded from seeking temporary attorney's fees for the civil theft claim, which is "so intertwined with the dissolution litigation" that it is "part and parcel of the domestic strife." The civil theft claim involves a business wholly owned and controlled by the husband and concerns the wife's involvement as the bookkeeper of the business. Additionally, the husband's accountant testified that the parties used the business account as a personal "piggy bank" and that the husband paid his attorney's fees and costs out of this account. We also note that the husband raised the litigation stakes by injecting the civil theft claim into the Chapter 61 action, placing treble damages at issue in this dissolution war. The trial court did not err in determining that the wife is entitled to temporary fees to defend against this claim.

As we explained in Schmitz v. Schmitz , 891 So.2d 1140, 1142 (Fla. 4th DCA 2005), temporary fee awards are generally difficult to attack on appeal. "This is so because although time constraints require judges with limited information to award interim fees and costs, the court can remedy any inequity in the final judgment; at that time the court may consider a couple's full financial picture and apply the Rosen factors while looking back at the litigation." Id. The trial court recognized this principle when it ruled that the award was "without prejudice to either party and may be reconciled at the time of trial when the court distributes the assets between the parties." Thus, "[t]emporary relief awards are among the areas where trial judges have the very broadest discretion, [with] which appellate courts are very reluctant to interfere with except under the most compelling of circumstances." Id. (citation and internal quotation marks omitted). The trial court's award of temporary fees and costs was well within its discretion.

Affirmed .

Levine and Klingensmith, JJ., concur.

      Rosen v. Rosen , 696 So.2d 697, 700 (Fla. 1997).


author: Warner, J.

text:
    Luke CHAMBERLAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4048
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges his conviction and sentence for first degree murder. He raises multiple issues on appeal. We conclude that no reversible error has occurred, but we write to address one issue: whether the trial court erred in determining that the defense was not prejudiced by the State's failure to reveal fingerprint testing prior to trial and in concluding that no Richardson violation occurred when the State conducted further DNA testing during trial. While we hold that a discovery violation did occur in each instance, we agree with the trial court that the defense was not prejudiced, and thus, the court's error in finding no discovery violation was harmless. We therefore affirm the conviction and sentence.

The victim, Antoine Gracius, was a cook at TGI Fridays in Pembroke Pines. On the evening of his murder he worked the late shift. When the restaurant closed, Gracius left through the front door and was attacked as he walked to his car. Gracius was stabbed multiple times. After he was stabbed, he tried to go back to the restaurant.

Another employee came out when Gracius banged on the door. Gracius said to him, "Get the tag." The employee looked and saw a dark colored or black minivan or SUV, speeding away and heading south on University Drive. However, the car's lights were not on, so there was no tag light. He didn't get the tag number, but he remembered scratches or some kind of linear damage on the right-hand side of the car. He ran back to Gracius, who said, "They stabbed me."

The manager of the restaurant saw Gracius stumbling and bleeding heavily. He heard the squeal of tires and saw a black minivan speeding away. He noticed that there was damage on the back, sliding door of the car's passenger-side. He saw a person in the passenger seat that he believed was African American. He could not provide a description of the driver.

Gracius was transported to the hospital where he died of his injuries.

A second employee at TGIF left the restaurant about twenty minutes prior to Gracius leaving and was talking to another employee in his car behind the restaurant. A man banged on the window, holding his arm behind his back, and asked for money. This second employee described the man as being a white male with a bald head and blue eyes. The man tried to get the second employee to roll his window down. The employee became frightened, told him he didn't have any money, started his car, and drove away. Four months later, police placed a photo of the defendant, Chamberlain, in a lineup, and the employee picked him as the person who had asked for money that night. Once identified, the investigators located Chamberlain and obtained DNA samples from both him and his fiancée.

When confronted by his fiancée as to his involvement in the murder, he told her he did not remember whether he had killed someone. The fiancée also had a van similar to the van seen at the murder scene. The investigators were able to locate that van and process it, but they found no evidence tying it to the murder.

At the crime scene, investigators found a broken piece of yellow metal jewelry on the running board of Gracius's car. Another piece was found on the ground in Gracius's parking space. Gracius wore a similar necklace. A separate silver necklace was also found. Police found a black South Pole T-shirt at the scene in a pool of blood, as well as two separate drops of blood twenty feet from where Gracius stopped after the stabbing. A DNA expert testified that these blood drops matched the defendant Chamberlain's DNA. The black shirt found at the scene had Chamberlain's fiancée's DNA on it at the collar. The fiancée testified that she had given Chamberlain South Pole T-shirts, but she wore them around the house because he did not wear them. There was a mixture of DNA on the silver chain, but Chamberlain was excluded from contributing to the DNA on it. The mixture was most likely the DNA of Gracius and another unknown person. DNA from the right arm of the black shirt could have been a mixture of DNA from Chamberlain, his fiancée, and Gracius. On cross-examination, the defense brought out that the swabs of Gracius's fingernails revealed no DNA of Chamberlain, nor was any of Chamberlain's DNA found on any other part of Gracius's body.

In opening statements, defense counsel suggested that Gracius was not a victim of a robbery and murder, but he may have struggled with someone he knew-someone was "targeting" Gracius. Particularly, he pointed to the silver chain which did not belong to Gracius and had a mixture of Gracius's DNA and some unknown person's DNA, but not Chamberlain's. He also tied this unknown person to the manager's statement that he saw an African American in the passenger seat of the getaway van, and the video showed a white arm in the window on the driver's side. He told the jury that an African American had come up to Gracius's co-worker in a restaurant several days after the murder and told him that one of his friends had killed Gracius. Briefly, defense counsel suggested that the State might maintain that the unknown DNA on the silver chain could be that of restaurant employees who may have picked up the chain, but there was no evidence that the State would produce, as the employees never were asked to give DNA samples to exclude them as contributors. While there was a lot of disparate evidence, including video and DNA evidence, there was no fingerprint evidence, no forensic evidence found in the fiancée's van, and no eyewitnesses. There were significant gaps in the evidence, which meant that the State would fail to prove its case.

In addition, during opening statement, defense counsel noted that there were fingerprints on Gracius's vehicle, but the State had never tested those prints. Although the defense knew that several latent fingerprints had been taken in the investigation, the State had failed to inform the defense that an expert had examined these prints and determined that they were insufficient to identify. Because of the defense argument, the State sought to call its expert examiner, even though he had not been listed as a witness. Defense objected, and the court conducted a Richardson inquiry. While it found that the failure to provide the examiner's report (which was verbal, not written) was inadvertent, the defense was harmed by the omission. Rather than exclude the State's expert from testifying, the court granted a month's continuance to the defense to depose the expert and to obtain, if necessary, its own expert.

During the recess in the trial, the State conducted further DNA testing of the employees of TGI Fridays who may have touched the silver necklace. None of them were found to have contributed to the DNA on the necklace. Once the testing was completed, the defense was immediately notified.

At the resumption of the trial, the defense made a Richardson objection to the additional testing. It claimed that this prejudiced them by requiring them to change their theory of defense, which was the State's lack of evidence. Now the State had produced new evidence mid-trial. The court rejected the Richardson challenge, because the State had not tested the blood until the recess in the trial and had promptly turned over the results to the defense. Thus, the State did not fail to disclose any evidence to the defense. Further, the court found no prejudice and possibly some benefit to the defense because the evidence excluded the co-workers as sources of the unknown DNA.

As explained in the opening statement, the defense's main theory was that Gracius struggled with an unknown person, likely an African American, whom he may have known. The defense did not rely exclusively on the State's lack of evidence. It presented a substantial case that another person or persons killed Gracius. Another co-worker of Gracius testified that on an evening shortly after the killing, he was eating at a restaurant when another customer came to their table to inform them that one of his friends had killed Gracius. Two other persons at the table that night also testified to the exchange. In addition, Chamberlain's fiancée testified and named a girlfriend and her boyfriend who had stayed with them, who may have taken the black shirt, and who had access to the fiancée's van.

The jury found appellant guilty of first degree murder, and the court sentenced him to life in prison. He appeals.

Appellant contends that the court abused its discretion in finding that no discovery violation occurred because of the State's mid-trial DNA testing, as well as the court's decision to allow the fingerprint examiner to testify regarding fingerprint findings. Once the court has notice of a discovery violation, the court is obliged to conduct a Richardson hearing. Holley v. State , 48 So.3d 916, 920 (Fla. 4th DCA 2010). If the court finds a discovery violation, it must determine whether it was willful or inadvertent, substantial or trivial, and whether the aggrieved party has suffered prejudice. Richardson v. State , 246 So.2d 771, 775 (Fla. 1971). However, a Richardson violation may be found to be harmless.

In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant's trial preparation or strategy would have been materially different had the violation not occurred.

State v. Schopp , 653 So.2d 1016, 1020 (Fla. 1995). We review the trial court's determinations with respect to these issues for an abuse of discretion. See Dabbs v. State , 229 So.3d 359, 360 (Fla. 4th DCA 2017).

With respect to the fingerprint evidence, the State conceded that it had not furnished the fingerprint examiner's findings as to the latent fingerprints to the defense. The trial court permitted a month's recess for the defense to conduct additional discovery on the issue. After the trial resumed and the subject was thoroughly reviewed, the trial court found that the violation was not misconduct, was not substantial, and did not result in procedural prejudice, nor was it willful. Further, the defense counsel had told the jury in opening that there was forensic evidence on the victim's vehicle and he would be asking questions to see what was done with the vehicle. Counsel hadn't argued that there was no analysis of the forensic evidence. Thus, the defense's theory was not impeded by the introduction of the evidence of latent prints, particularly when they were not useable. In fact, the lack of prints identifiable to the defendant would help his case, not harm it. Therefore, we conclude that no abuse of discretion occurred.

As to the DNA evidence produced mid-trial, appellant contends that this was a discovery violation which harmed his case. Generally, where the State does not reveal additional witnesses or evidence until the eve of trial or during trial, a discovery violation occurs. In Mobley v. State , 705 So.2d 609, 611 (Fla. 4th DCA 1997), we noted that "Waiting until the eve of trial to conduct an investigation that then reveals an additional witness is not the type of discovery violation that would generally be deemed inadvertent." Id. at 611. In Dabbs v. State , 229 So.3d 359 (Fla. 4th DCA 2017), we also found a discovery violation where the State produced additional evidence after the commencement of the trial. There, Dabbs was charged with killing his co-worker. Id. at 360. He did not dispute that he killed the co-worker but claimed that the co-worker threatened him, whereupon Dabbs wrestled the gun from him and shot him. Id. In opening statements, defense counsel claimed the co-worker owned two or three guns. Id. However, the State surprised the defense by overnight acquiring documents and a witness to establish the current location of all of the victim's known guns, which tended to show that the gun used in the shooting could not have been one of the co-worker's own guns. Id. The defense claimed a discovery violation, and the court conducted a Richardson hearing, determining that the violation was not willful and was trivial.

On appeal, we reversed because the documents and additional witnesses removed any possibility that the jury would conclude that the gun belonged to the co-worker, and thus, the evidence severely impacted Dabbs's claim of self-defense. Id. at 361. We found at least a reasonable possibility that his defense strategy would have changed. Id. Applying Dabbs , Chamberlain argues that the trial court erred in concluding there was no discovery violation in his case. He asserts that he would not have made the opening statement had he known that the State would include this additional evidence.

We conclude that the trial court abused its discretion in finding that no discovery violation occurred. "Florida's criminal discovery rules are designed to prevent surprise by either the prosecution or the defense. Their purpose is to facilitate a truthful fact-finding process." Kilpatrick v. State , 376 So.2d 386, 388 (Fla. 1979). Here, prior to trial, the State had not conducted DNA testing of the co-workers. The defense suggested in opening that the State could not argue that the DNA of the unknown person on the silver chain could be DNA of a co-worker, because they had not tested for the co-worker's DNA. After opening, the prosecutors decided to use the continuance period to obtain additional testing. They tested the co-workers and determined that none of their DNA matched the unknown DNA on the silver chain. This constitutes a discovery violation which the rules are intended to prevent. See Mobley , 705 So.2d at 610-11. It is clearly not inadvertent, because the State acknowledged that it decided to obtain this additional evidence after listening to the defense's opening statement questioning the thoroughness of the investigation. Thus, it was a willful violation of the discovery rules.

The question is whether it was harmless beyond a reasonable doubt or whether it procedurally prejudiced the defendant in his trial preparation and strategy. The trial court did not abuse its discretion in finding that there was no prejudice to the defendant. The court noted that defense counsel had made only a couple of generalized claims during opening argument, saying that a lack of evidence would leave the jury with reasonable doubt, and that argument held up after the subsequent evidence testing. The additional testing actually enhanced the defense's theory of the case. Instead of the State being able to argue that the DNA on the chain could be that of one of the co-workers, thus eliminating the "unknown assailant" theory of the defense, the additional DNA testing made that theory stronger. Dabbs is distinguishable because there, the new evidence ruined the argument that the defense counsel made in opening statement, whereas in the present case, the new DNA and print testing supported the theory that the defense had offered in opening statement. Thus, although the court erred in finding that no discovery violation occurred, we agree with the court that no prejudice has been shown. The error is harmless beyond a reasonable doubt.

No reversible error is presented in the remaining issues. We thus affirm Chamberlain's conviction and sentence.

May and Forst, JJ., concur.

      Richardson v. State , 246 So.2d 771 (Fla. 1971).


text:
    Lensky JEANBART, Petitioner, v. STATE of Florida, Respondent.
    No. 4D18-689
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Lensky Jeanbart, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for respondent.
   Gross, J.

Lensky Jeanbart petitions for writ of habeas corpus alleging ineffective assistance of appellate counsel. We conclude that the failure to raise two issues in the appeal was "measurably outside the range of professionally acceptable performance." Rutherford v. Moore , 774 So.2d 637, 643 (Fla. 2000) (citation omitted). We order a new appeal raising the issues identified below.

Jeanbart was convicted of two counts of attempted first degree murder, two counts of shooting into an occupied vehicle, and one count of accessory after the fact to burglary of a conveyance. Jeanbart was the driver of a Chevrolet from which a codefendant exited and shot at two people in cars. After the shooting, the codefendant got back into the car and Jeanbart drove away.

Hours later, the Chevrolet was involved in an accident while Jeanbart was still driving and the codefendant was in the passenger seat. A Broward Sheriff's deputy arrived at the accident scene to find Jeanbart out of the vehicle. At this point, the deputy was attempting to assess the codefendant's condition. While the deputy was dealing with the codefendant, Jeanbart jumped into another vehicle and fled. As the deputy was calling for backup, the codefendant maneuvered himself from the passenger seat into the driver's seat of the Chevrolet and drove the vehicle away. The car was then involved in a second accident a short distance from the first accident. The police recovered two guns in the car. Jeanbart's DNA was found on the gun NOT involved in the shooting.

Jeanbart represented himself at trial. A witness testified that after the shooting started, Jeanbart turned the car around, came back to the scene to pick up the codefendant, and was yelling, "Let's go, let's go, you doing dumb shit right now."

One of Jeanbart's theories of defense was that the state could not prove intent because he was not aware that the codefendant was going to start shooting and he was not in agreement with the codefendant's actions. He wanted to argue that the shooter acted on his own and was out of control.

During his closing, Jeanbart told the jury that a witness had testified to hearing Jeanbart say, "Let's go, let's go, you doing dumb shit right now." The state objected that Jeanbart was arguing facts not in evidence and the trial court sustained the objection. Apparently, the judge did not remember the evidence.

Jeanbart tried to remind the judge that he was directly quoting a witness, but the trial court continued to sustain the objection. Jeanbart told the jury that they could go back and listen to the witness's testimony. The prosecutor moved to strike and Jeanbart argued "That's what was said."

The court instructed the jury to disregard the statement.

For a second time, Jeanbart argued that the witness made it clear that there was a disagreement between Jeanbart and the codefendant. Jeanbart contended that this meant he did not know the codefendant intended to fire shots and did not want to participate. The state objected that Jeanbart was arguing facts not in evidence and moved to strike. The court sustained the objection and instructed the jury to disregard the comment.

For a third time, Jeanbart argued that the witness's testimony indicated that he did not know the crime was going to be committed. The court again sustained the state's objection and instructed the jury to disregard the comment.

A fourth time Jeanbart reminded the jury that the witness testified that Jeanbart told the codefendant "you doing dumb shit." The state again objected that Jeanbart was arguing facts not in evidence. Jeanbart suggested that the jury could have a read-back. The court sustained the objection and told the jury to disregard the statement.

This issue was preserved at trial and raised again in a motion for new trial. Seemingly, the witness's statement was the only evidence that Jeanbart may not have been in agreement with the codefendant's actions. The court's conduct amounted to a comment on the evidence-that the statement of a witness did not occur. The court's limitation on Jeanbart's closing argument should have been raised on direct appeal.

A second issue that should have been raised on appeal was the admission of the gun with Jeanbart's DNA, discovered hours after the shooting and which was not used in the charged crime itself. See Agatheas v. State , 77 So.3d 1232 (Fla. 2011) ; Downs v. State , 65 So.3d 594 (Fla. 4th DCA 2011).

New briefing will allow these issues to be raised in the context of all the evidence at trial.

Damoorgian and Forst, JJ., concur.