author: BLECHMAN, M., Associate Judge.

text:
    Tevin Dashaun ARCHIE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-665
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019
    James S. Purdy, Public Defender, and Edward J. Weiss and Darnelle Paige Lawshe, Assistant Public Defenders, Daytona Beach, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   BLECHMAN, M., Associate Judge.

Appellant, Tevin Dashaun Archie, appeals the conviction and sentence imposed for three violations of his sex offender probation. Appellant argues that the trial court abused its discretion in finding that he willfully violated conditions 3, 17, and 25. For the reasons stated herein, we hold that the trial court erred in finding that Appellant willfully violated condition 3. Further, because it is unknown whether the trial court would have imposed the same sentence for violations of conditions 17 and 25 only, we remand for resentencing on the violations of those two conditions.

In June 2011, Appellant entered a no contest plea to one count of lewd or lascivious battery on a child age twelve to sixteen, a second-degree felony. He was sentenced to a term of 180 days in county jail, followed by five years of sex offender probation. In February 2017, the State filed an affidavit of violation of probation against Appellant for having unsupervised contact with a child under the age of eighteen without the recommendation of a qualified practitioner and approval of the sentencing court. The court found Appellant guilty of violating his probation in April 2017, and reinstated his probation.

In August 2017, the State filed another affidavit of violation of probation alleging that Appellant violated conditions 3, 17, and 25. Specifically, condition 3 restricted Appellant from leaving his county of residence, Marion County, without permission from his probation officer; condition 17 required Appellant to actively participate in and successfully complete a sex offender treatment program; and condition 25 required Appellant to participate in polygraph tests. Following a hearing, the trial court found, by a preponderance of the evidence, that Appellant willfully and substantially violated those conditions. It revoked Appellant's probation and sentenced him to 104 months of incarceration.

This Court reviews a trial court's decision to revoke probation for an abuse of discretion. E.g., Adams v. State, 979 So.2d 921, 925 (Fla. 2008) (citing Lawson v. State, 969 So.2d 222, 228 (Fla. 2007) ). "Probation can be revoked upon a finding that a violation is willful and substantial."

Wharton v. State, 136 So.3d 632, 634 (Fla. 2d DCA 2013) (citing Parker v. State, 980 So.2d 1223, 1224 (Fla. 2d DCA 2008) ). "On review of an order of revocation of probation, the appellate court first examines whether competent substantial evidence supports the trial court's finding of a willful and substantial violation." Id. (citing Savage v. State, 120 So.3d 619, 619 (Fla. 2d DCA 2013) ).

The trial court did not abuse its discretion in finding that Appellant willfully and substantially violated conditions 17 and 25, and thus, we do not address these points. However, the trial court abused its discretion in finding that Appellant willfully violated condition 3. To support the allegation that Appellant violated this condition, the State presented that Appellant was a passenger in a friend's vehicle when he left Marion County and entered neighboring Sumter County to pick up another friend from her job. While Appellant had permission to travel outside of Marion County for work purposes, the trip to Sumter County to pick up a friend was neither work related nor sanctioned by his probation officer. The trial court was correct when it stated, "I don't think the requirement that you not leave the county, except for work purposes, has a comma after it that says 'unless it's only for twenty-five minutes when you go pick up your friend.' " However, the trial court incorrectly ruled that the evidence of Appellant's time spent outside of his residential county established a willful violation of condition 3.

The evidence showed that Appellant wore a GPS device that tracked his location and was capable of alerting him if he left Marion County. However, the State acknowledged that on the day at issue, Appellant's GPS device did not have the alert function enabled, and therefore, it did not notify Appellant when he left Marion County. The only evidence presented to prove knowledge on Appellant's part was his probation officer's testimony that on the day following the incident, she spoke with Appellant about the GPS tracking point indicating that he left Marion County and he did not deny it. Appellant was not questioned about his knowledge of the Marion County or Sumter County borders, or for that matter, whether he knowingly left Marion County. Further, no evidence was presented indicating that there was signage on the road that would have alerted Appellant that he was traveling into Sumter County. The State could not establish that Appellant willfully violated his probation without introducing evidence that he knowingly left Marion County. See Wharton, 136 So.3d at 632-33 (holding that the State did not prove that the defendant willfully violated a probation condition prohibiting him from leaving the county without permission when it presented no evidence that the defendant was aware that he left the county for forty minutes).

On review, we find no competent, substantial evidence supporting a finding that Appellant knowingly left Marion County. Accordingly, we hold that the trial court abused its discretion in finding that he willfully violated condition 3 of his probation. The trial court properly found that Appellant violated conditions 17 and 25 of his probation, but because there is nothing in the record to indicate that the trial court would have imposed the same sentence if it only found violations of those two conditions, we are compelled to remand the case to the trial court with instructions to enter a revocation order for violations of conditions 17 and 25 and resentence Appellant for the violations of those conditions only. See Wilson v. State, 967 So.2d 1107, 1108 (Fla. 4th DCA 2007) (remanding for reconsideration of sentencing where record provided "too little guidance" to determine whether trial judge would have imposed same sentence for two probation violations rather than four).

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

HARRIS and GROSSHANS, JJ., concur.

      Appellant was riding in a car with his sisters, thirteen-year-old nephew, two-year-old niece, and two-month-old nephew.

      The affidavit also alleged that Appellant violated conditions 2 and 9, but the trial court did not find that Appellant willfully and substantially violated those conditions. Therefore, conditions 2 and 9 are not at issue in this appeal.


source: Caselaw Access Project

author: LAMBERT, J.

license: Public Domain

text:
    Michelle DAVIS as Personal Representative of the Estate of Sandra Dale Essex, Appellant, v. Michael A. KARR, M.D., Karr and Kornberg Orthopaedic Associates, M.D., P.A., D/B/A Orthopaedic Associates of Osceola, William Stanton, M.D., and Osceola Regional Hospital, Inc., et al., Appellees.
    Case No. 5D18-149
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019 Rehearing Denied February 26, 2019
    Dennis Wells, of Webb & Wells, P.A., Longwood, for Appellant.
    Andrea Lozano Diederich and Bradley P. Blystone, of Marshall, Dennehey, Warner, Coleman & Goggin, P.C., Orlando, for Appellees Michael A. Karr, M.D., and Karr and Kornberg Orthopaedic Associates, M.D., P.A. d/b/a Orthopaedic Associates of Osceola.
    No Appearance for Other Appellees.
   LAMBERT, J.

The primary issue that we address in this case is whether under Florida's Medical Malpractice Act a presuit affidavit submitted by a plaintiff from a health care provider who does not specialize in the same field as the defendant nevertheless meets the statutory presuit investigatory requirements for filing a medical negligence suit. For the following reasons, we hold that it does not, and we therefore affirm the final judgment.

The facts of this case pertinent to this appeal are fairly undisputed. Sandra Dale Essex was a patient of the appellees, Michael A. Karr, M.D., an orthopaedic surgeon, and Karr and Kornberg Orthopaedic Associates, M.D., P.A., d/b/a Orthopaedic Associates of Osceola (hereinafter jointly "Dr. Karr"). Dr. Karr performed hip replacement surgery on Essex, and it was during this procedure that Dr. Karr allegedly fractured Essex's right lower femur. Prior to filing her medical negligence complaint, Essex submitted presuit affidavits from an emergency room physician, a radiologist, and a nurse, all averring that the actions of Dr. Karr during Essex's hip surgery negligently caused the fracture of her femur. See Weaver v. Myers , 229 So.3d 1118, 1121 (Fla. 2017) ("[B]efore filing a medical negligence action in Florida, a claimant must satisfy statutory requirements, which include conducting a presuit investigation process to ascertain whether there are reasonable grounds to believe that the defendant medical provider was negligent, and that the negligence resulted in injury to the claimant." (citing § 766.203(2)(a)-(b), Fla. Stat. (2016) ) ).

Dr. Karr moved to dismiss the complaint, asserting that the three affidavits were insufficient to meet the statutory presuit requirements of section 766.102(5)(a)1., Florida Statutes (2013), because none of the affidavits was from an expert witness specializing in his field of orthopaedic surgery. Essex responded that this "same specialty" requirement only pertained to expert testimony presented at trial and that under this court's decisions in State Farm Mutual Automobile Insurance Co. v. Long , 189 So.3d 335, 339 (Fla. 5th DCA 2016), and Apostolico v. Orlando Regional Health Care Systems, Inc. , 871 So.2d 283, 287 n.4 (Fla. 5th DCA 2004), her presuit affidavits, although not from orthopaedic surgeons, were nevertheless sufficient because there is "a less stringent standard for qualification of experts in the medical malpractice presuit screening process than might be required of an expert to offer testimony at trial." Apostolico , 871 So.2d at 287 n.4 (citing Faber v. Wrobel , 673 So.2d 871, 872-73 (Fla. 2d DCA 1995) ). Essex further argued that the three presuit affidavits submitted gave her counsel sufficient grounds for a good faith belief that Dr. Karr had negligently provided orthopaedic surgical care, thus complying with counsel's statutory presuit duty to reasonably investigate the claim. See § 766.104(1), Fla. Stat. (2013).

The trial court disagreed, specifically finding that the affidavits from the emergency room physician, radiologist, and the nurse failed to comply with the statutory presuit requirements to support a claim against an orthopaedic surgeon accused of negligence in his capacity as an orthopaedic surgeon. The court entered an order of dismissal with prejudice and thereafter entered a final judgment in favor of Dr. Karr, from which Appellant has timely appealed. Because the trial court's ruling is based on a question of law, our review is de novo. Pierrot v. Osceola Mental Health, Inc. , 106 So.3d 491, 492 (Fla. 5th DCA 2013) (citing Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co. , 752 So.2d 582, 584 (Fla. 2000) ).

One of the legislative purposes of Florida's Medical Malpractice Act, codified in Chapter 766, Florida Statutes, is to provide a "mechanism for the prompt resolution of medical malpractice claims through mandatory presuit investigation," Walker v. Va. Ins. Reciprocal , 842 So.2d 804, 809 (Fla. 2003) (quoting St. Mary's Hosp., Inc. v. Phillipe , 769 So.2d 961, 969-70 (Fla. 2000) ), thus allowing the parties "to avoid lengthy litigation of claims and the associated costs of such litigation," id. (citing Kukral v. Mekras , 679 So.2d 278, 280 (Fla. 1996) ). Section 766.203, Florida Statutes, specifically governs the presuit investigation requirements of medical negligence claims by prospective parties. Prior to filing a notice of intent to initiate a medical negligence suit, a claimant must conduct an investigation to ascertain that reasonable grounds exist that the named defendant in the litigation was negligent in the care and treatment of the claimant and that such negligence resulted in injury. Further, the existence of reasonable grounds to support a claim of medical negligence must be corroborated by the claimant's submission of a verified written medical expert opinion from a medical expert as that term is defined in section 766.202(6). This statute defines a medical expert as:

[A] person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102.

Applying these two statutes to the instant case, Essex was required to submit a presuit verified written medical opinion from an individual who would qualify as an expert witness under section 766.102, corroborating that reasonable grounds existed for her to bring a medical negligence suit against Dr. Karr.

In 2013, the Legislature specifically amended section 766.102(5), regarding the requirements for qualification as an expert witness. Pertinent to this case, the statute now reads:

(5) A person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria:
(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered ....

Here, because Dr. Karr is an orthopaedic surgeon, the plain language of this statute required that the medical expert or experts who provided Essex with the corroborating presuit verified medical expert opinions be of the same specialty. See Clare v. Lynch , 220 So.3d 1258, 1261 (Fla. 2d DCA 2017).

Appellant's reliance on our decisions in Apostolico and Long for the argument that the presuit affidavits here did not have to be from a health care provider practicing in the same specialty as Dr. Karr is misplaced. First, Apostolico was interpreting a 2002 statute that is no longer applicable. See Yocom v. Wuesthoff Health Sys., Inc. , 880 So.2d 787, 790 n.2 (Fla 5th DCA 2004) (noting that the 2003 statute appears to have eliminated the earlier distinction between an expert for presuit purposes and an expert for purposes of testifying at trial); Paley v. Maraj , 910 So.2d 282, 283 (Fla. 4th DCA 2005) (recognizing that the statute enacted in 2003 has eliminated the distinction between an expert for presuit purposes and for testifying at trial). Second, Long was not a medical malpractice case and thus was not addressing the sufficiency of presuit affidavits from health care providers. Any reference in Long of there being a less stringent standard for the qualification of experts in the presuit screening process for medical malpractice suits was dicta.

Appellant also briefly raises for the first time on appeal the constitutionality of the "same specialty" requirements of section 766.102(5)(a). We conclude that this issue has not been properly preserved for review. Florida Rule of Civil Procedure 1.071 provides that a party who seeks to question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise must, among other things, serve the notice and the pleading or other document challenging its constitutionality upon either the Attorney General or the state attorney of the judicial circuit in which the action is pending. Here, no such notice was provided. See Shelton v. Bank of N.Y. Mellon , 203 So.3d 1003, 1005 (Fla. 2d DCA 2016) (declining to consider constitutional challenge to section 702.035, Florida Statutes, because there was no record indication that the appellant complied with rule 1.071 by serving either the Attorney General or state attorney); Diaz v. Lopez , 167 So.3d 455, 460 n.10 (Fla. 3d DCA 2015) (finding that the appellant's constitutional challenge to a city's charter was not before the court because the specific requisites of rule 1.071 were not invoked in the circuit court).

Accordingly, the final judgment entered in favor of Dr. Karr is affirmed.

AFFIRMED.

HARRIS and GROSSHANS, JJ., concur.

      Ms. Essex was initially the appellant in this case. She passed away shortly before oral argument, and the personal representative of her estate was substituted as a party.

      The Florida Supreme Court has recently declined to adopt the "same specialty" amendment to section 766.102(5)(a) "to the extent it is procedural." See In re Amendments to the Florida Evidence Code , 210 So.3d 1231, 1239 (Fla. 2017). However, a Florida Supreme Court rules decision declining to adopt a statutory amendment to the extent that it is procedural does "not vitiate or overturn the statute," and "the statute remains the law in Florida." Clare , 220 So.3d at 1262 (quoting Bivins v. Rogers , 207 F.Supp.3d 1321, 1326 (S.D. Fla. 2016) ). Because the constitutionality of section 766.102(5)(a) is not properly before us, the statute remains in effect.

      We reject, without further discussion, Appellant's remaining argument that the dismissal of the complaint should have been without prejudice as both meritless and unpreserved.


author: KELLY, Judge.

text:
    Corinne O. RECTOR, Appellant, v. Donald E. RECTOR, Appellee.
    Case No. 2D17-3651
    District Court of Appeal of Florida, Second District.
    Opinion filed January 25, 2019.
    Stanley R. Swartz and Susan Hartmann Swartz of Law Office of Stanley R. Swartz, Bradenton, for Appellant.
    E. Blake Melhuish of E. Blake Melhuish, P.A., Bradenton, for Appellee.
   KELLY, Judge.

Corinne Rector, the former wife, appeals from the circuit court's order adopting the reports of a general magistrate and denying her amended motion for temporary attorney's fees to enforce the final judgment dissolving her marriage to Donald Rector, the former husband. We reverse.

The parties divorced in 1999. The final judgment of dissolution incorporated by reference a written marital settlement agreement (MSA). The provisions of the MSA relevant to this appeal provide:

6. PERSONAL PROPERTY.
The parties' tangible and intangible personal property is hereby divided as follows: the husband shall keep as his separate property all items presently in the possession of the parties ... with the exception of those items listed on the attached and incorporated Exhibit "A." Those items shall become the separate property of the Wife free from any claims by the Husband.
....
8. LIFE INSURANCE
The Husband shall keep in full force and effect life insurance policies upon his life in the amount of $50,000 and shall name the spouse as the irrevocable beneficiary. The Husband shall annually furnish to the Wife proof of the payment of premiums.
9. SPOUSAL SUPPORT
Both Husband and Wife hereby waive any right he or she may have now or in the future to alimony payments for support and/or maintenance.
10. LUMP SUM ALIMONY (INSTALLMENTS).
In order to resolve all claims the Wife may have for temporary and/or permanent alimony, and to balance the equitable distribution of the parties' joint assets, the Husband agrees to pay a lump sum of [$48,000] to the Wife, payable in monthly installments of $400. Such payments are due on the 5th day of each month, beginning January 5th, 1999 and shall continue, without interest, until paid in full.
....
15. MODIFICATION.
Any agreement in modification of this Agreement shall be unenforceable unless in writing and signed by both parties.
....
18. DEFAULT.
In the event either party to this Agreement defaults in his or her obligations hereunder, the party in default shall be liable to the non-defaulting party for all reasonable expenses incurred, including attorney's fees, in the enforcement of obligations created by this Agreement.

In 2005, the parties entered into a joint stipulation for modification of the final judgment. The stipulation provided that the former husband would continue to maintain a $50,000 life insurance policy with the former wife as beneficiary, and that he would continue to pay the former wife's monthly Medicare and supplemental health insurance premiums in an amount up to $400. The circuit court approved the stipulation and retained jurisdiction in its order to enforce it.

Thereafter, the former wife filed a motion for contempt and for enforcement against the former husband for not providing proof that the life insurance policy was in effect as required by the parties' MSA and the order on the joint stipulation. The former husband countered with supplemental and amended supplemental petitions to modify the final judgment of dissolution. He alleged that the parties intended the life insurance policy as security for his obligation to pay the lump sum of $48,000, and that this amount had been fully satisfied. The former husband also alleged that the order on the parties' stipulation requiring him to pay the former wife's medical insurance is void because it "established and obligated [him] to pay a new and different alimony obligation" over which the circuit court lacked jurisdiction. Alternatively, the former husband argued his advanced age and lack of employment constituted a substantial change in circumstances which warranted termination of his continuing obligation to maintain the life insurance policy.

The former wife filed an amended motion for temporary attorney's fees to defend against the former husband's petitions. After a hearing, the former wife's motion was denied. The magistrate found that "[u]nder the modification, the former husband was required to pay the monthly premiums of the Former Wife's Part B Medicare insurance policy and secure the same with the $50,000 life insurance policy from the Final Judgment." Further, the magistrate also found:

The Former Husband has met his obligation as to the alimony and equitable distribution prior to the stipulated modification. In addition, the Former Wife who was the recipient of the alimony remarried well before the stipulated order of modification.
Since the Court was without subject matter jurisdiction when the order approving the stipulated modification on March 8, 2005 was granted, the court is also without jurisdiction to order attorney's fees to either party on the Amended Supplemental Petition to Modify the order approving the stipulated modification.

The former wife timely filed exceptions to the magistrate's reports; the circuit court adopted the magistrate's reports in its orders.

On appeal, the former wife argues that the circuit court erred in adopting the magistrate's report that found the court did not have jurisdiction under the terms of the final judgment and MSA to grant her amended motion for attorney's fees. The former wife also argues that the circuit court erred in determining that the former husband's obligation to maintain a life insurance policy was to secure the $48,000 lump sum award, and by finding that the provision requiring the former husband to pay the former wife's health insurance was a modification of the parties' MSA.

We agree with the former wife that the circuit court's finding that it lacked jurisdiction over her amended motion for temporary attorney's fees was error. The final judgment of dissolution reserved jurisdiction to enforce or modify the terms of the MSA. The MSA specifically provided for modification of the agreement if in writing and signed by both parties. The parties filed their 2005 joint stipulation to modify the final judgment in the same court that had entered the final judgment with the same case number. Thus, "[t]he circuit court had inherent jurisdiction to enforce the dissolution judgment." See King v. King, 78 So.3d 689, 690 (Fla. 2d DCA 2012) (concluding that the trial court had jurisdiction to enforce a marital settlement agreement where "[t]he caption of the motion was substantially similar to the caption of the dissolution proceeding, and it bore the same case number as the case number that had been assigned to the dissolution proceeding" (quoting Weaver v. Hotchkiss, 972 So.2d 1060, 1061 (Fla. 2d DCA 2008) ) ).

Likewise, we agree with the former wife that the circuit court erred in interpreting the MSA. A marital settlement agreement is a contract that is subject to interpretation like any other contract. Hobus v. Crandall, 972 So.2d 867, 869 (Fla. 2d DCA 2007). "[A]bsent evidence of the parties' intent to the contrary, the unambiguous language of the agreement should be interpreted according to its plain meaning." Johnson v. Johnson, 848 So.2d 1272, 1273 (Fla. 2d DCA 2003). Here, the language in the MSA is clear and unambiguous. The parties agreed that the former husband would maintain a $50,000 life insurance policy with the former wife as beneficiary. There is no provision included in the MSA stating that the life insurance was intended to secure an alimony or health insurance obligation, or that these obligations ceased upon the former wife's remarriage. And as for payment of the former wife's health insurance, this provision was specifically handwritten and initialed by the parties on the exhibit incorporated into the MSA; the parties simply modified this provision in their joint stipulation.

Accordingly, we reverse the challenged orders and remand for further proceedings consistent with this opinion.

VILLANTI and LUCAS, JJ., Concur.

      Exhibit "A," initialed by both parties, identified payment of the former wife's health insurance by the former husband as the former wife's separate property.


author: Per Curiam. Wolf, J., dissenting.

text:
    STATE of Florida, Appellant, v. Curtis SEARLES, Appellee.
    No. 1D18-1749
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Ashley B. Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellant.
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   Per Curiam.

The State appeals an order granting the motion to dismiss two counts of drug possession that was filed by Appellee, Curtis Searles. The State argues on appeal that the trial court improperly considered matters that were not appropriate when ruling on a motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), such as the element of knowledge, the issues of direct versus circumstantial evidence, and hypotheses of innocence. Although we agree, the State failed to make this specific argument below, a fact which it acknowledges in its reply brief. As such, the argument was not preserved for appeal. See Harrell v. State , 894 So.2d 935, 940 (Fla. 2005) (noting that in order for an issue to be cognizable on appeal, it must be the specific contention asserted below as the legal ground for the objection, exception, or motion). We also conclude that the State invited any error on the trial court's part in analyzing Appellee's motion to dismiss in the context of cases involving motions for judgment of acquittal. The State presented to the trial court the case of Knight v. State , 186 So.3d 1005 (Fla. 2016), wherein the supreme court discussed when the circumstantial evidence standard of review is to be used when ruling on motions for judgment of acquittal, and it participated in the discussion regarding Knight and other cases involving such motions. See Flowers v. State , 149 So.3d 1206, 1207 (Fla. 1st DCA 2014) (noting that under the invited error doctrine, a party may not invite or make error in the trial court and then take advantage of the error on appeal).

Accordingly, we affirm.

AFFIRMED.

Lewis and Wetherell, JJ., concur; Wolf, J. dissents with opinion.

Wolf, J., dissenting.

There was sufficient prima facie evidence to withstand a motion to dismiss. Knight v. State , 186 So.3d 1005 (Fla. 2016). This issue was sufficiently presented both to this court and the trial court. I would, therefore, reverse.

      As we have explained, a motion to dismiss an information pursuant to rule 3.190(c)(4) is analogous to a motion for summary judgment in a civil case. State v. Bonebright , 742 So.2d 290, 291 (Fla. 1st DCA 1998). The State is not obligated to produce sufficient evidence to sustain a conviction. Id. " 'As long as the State shows the barest prima facie case, it should not be prevented from prosecuting.' " Id. (citation omitted); see also State v. Carry , 75 So.3d 803, 805 (Fla. 5th DCA 2011) (noting that the State, when faced with a motion to dismiss, is not obligated to produce evidence sufficient to sustain a conviction such as in the case of a motion for judgment of acquittal); State v. Yarn , 63 So.3d 82, 86 (Fla. 2d DCA 2011) (noting that while the appellee relied upon cases presenting factual situations similar to his, the cases involved the review of a denial of a motion for judgment of acquittal, that the standard used in such cases was inapplicable to the issue of whether the State's evidence was sufficient to overcome a motion to dismiss, and that "this significant factual distinction renders the rulings [in the cases relied upon by the appellee] immaterial to the resolution of this case"); State v. Cadore , 59 So.3d 1200, 1203 (Fla. 2d DCA 2011) (noting that even if circumstantial evidence is not sufficient to convict a defendant, that does not mean that the evidence cannot establish a prima facie case sufficient to withstand a motion to dismiss and that even if a trial court doubts the sufficiency of the State's evidence, it cannot grant a motion to dismiss criminal charges simply because it concludes that the case will not survive a motion for judgment of acquittal); State v. Gay , 960 So.2d 864, 866 (Fla. 2d DCA 2007) (noting that the trial court appeared to have applied the standard for deciding a motion for judgment of acquittal instead of the standard for ruling on a motion to dismiss).


author: Per Curiam.

text:
    William RHOW, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0448
    District Court of Appeal of Florida, First District.
    January 25, 2019
    William Rhow, pro se, Appellant.
    Ashley Brooke Moody, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, William Rhow, appeals from an order dismissing with prejudice his second (successive) motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The only explicit basis for dismissal provided in the order on review is that the lower court found it had no jurisdiction to rule on Appellant's claims during the pendency of his postconviction appeal in case 1D17-4033. For the reasons below, we reverse for further proceedings.

A trial court does not have jurisdiction to rule on a subsequent postconviction motion that raises the same or related claims as were raised in a prior postconviction motion that is the subject of a pending appeal. See Kilgore v. State , 793 So.2d 1170 (Fla. 1st DCA 2001) (stating that trial court should have dismissed subsequent rule 3.850 motion for lack of jurisdiction where appeal of order denying previous rule 3.850 motion that raised the "exact claim" was pending on appeal); Jackman v. State , 88 So.3d 325, 327 (Fla. 4th DCA 2012) (holding that "if the subsequent motion raises the same or related issues to those on appeal, the trial court may not consider the merits while the related appeal is pending"). But, if the issues raised in the two motions are unrelated, the trial court has jurisdiction to rule on the subsequent motion. See Wheeler v. State , 918 So.2d 369 (Fla. 1st DCA 2005) (citing Bates v. State , 704 So.2d 562 (Fla. 1st DCA 1997) ) ("[A]n appeal of a postconviction relief matter will not deprive the trial court of jurisdiction so long as the issues raised in the two cases are unrelated."). And, even if the issues in the two motions are the same, the trial court "has authority to determine that the motion is procedurally barred and may dismiss the motion as successive or untimely." Jackman , 88 So.3d at 327.

Here, it is undisputed that the motion at issue in this case does not raise the same or related claims to those raised in the motion that was at issue in case number 1D17-4033. Accordingly, the trial court erred in dismissing the motion with prejudice on jurisdictional grounds.

The state nevertheless argues that we should affirm the dismissal order because the claims raised in the motion in this case are procedurally barred. Specifically, the state contends that, pursuant to Florida Rule of Criminal Procedure 3.850(h), this Court should find that Appellant failed to show good cause as to why his present claims could not have been raised in his original postconviction motion. See Fla. R. Crim. P. 3.850(h) (providing that a trial judge may dismiss successive claims if it is found that the failure "to assert those grounds in a prior motion constituted an abuse of the procedure or there was no good cause for the failure of the defendant or defendant's counsel to have asserted those grounds in a prior motion.").

We reject the state's argument because the lower court never ruled on whether Appellant showed good cause for the delayed filing of his present claims. We decline to do so in the first instance.

REVERSED and REMANDED .

Wolf, Lewis, and Wetherell, JJ., concur.

      On January 19, 2018, this Court per curiam affirmed the denial of Appellant's original postconviction motion in case 1D17-4033, with the mandate issuing on April 9, 2018.


author: Wolf, J.

text:
    Hector ANDUJAR-SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3393
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Hector Andujar-Sanchez, pro se, Appellant.
    Ashley Brooke Moody, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   Wolf, J.

Hector Andujar-Sanchez, appellant, challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We find one issue raised by appellant has merit. The trial court erred in failing to conduct an evidentiary hearing on appellant's claim that counsel was ineffective for failing to obtain a competency evaluation.

Appellant alleged his counsel was aware that he was incompetent due to numerous mental illnesses. He asserted counsel obtained an order authorizing a mental health evaluation but failed to ensure the evaluation was completed. Instead, counsel permitted appellant to enter a guilty plea without objection. Appellant alleged he was unable to effectively communicate with his trial counsel or to exercise his constitutional rights essential to a fair trial due to his incompetence.

The postconviction court summarily denied this claim, finding it was conclusively refuted by the record. The court found that appellant failed to raise this issue in one of his motions seeking new counsel, during his plea colloquy, or in a motion to withdraw his plea. When entering his plea, appellant signed a written plea agreement form that stated he was "not under the influence of any ... condition (physical, mental, or emotional), which interferes with my appreciation of the entire plea agreement," and that he was "completely satisfied with the services rendered by my attorney." During the plea colloquy, the court did not ask appellant about his competence, though the court elicited confirmation from appellant that "every word" of the written plea agreement was "true." Thus, the postconviction court found the record conclusively refuted appellant's claim.

The postconviction court effectively placed the burden on appellant to have the wherewithal to understand his own incompetence and to personally bring it to the trial court's attention despite being represented by counsel. This was error. "A claim that counsel failed to investigate a defendant's mental health or seek a competency determination is cognizable in a rule 3.850 motion." Akins v. State , 247 So.3d 687, 689 (Fla. 1st DCA 2018).

In Akins , the defendant alleged counsel knew he had a long history of mental illness and obtained an order appointing a mental health expert to conduct an evaluation; however, an evaluation was never conducted and there was no hearing or determination on his sanity or competency. Id. He argued he was prejudiced because he was incompetent to stand trial and would have been declared insane at the time the offense was committed. Id. This court found this claim was facially sufficient because it "demonstrates that his attorney had serious concerns regarding his sanity and competency, yet allegedly failed to follow through with the mental health evaluation authorized by the court." Id.

Similarly in Jackson v. State , 29 So.3d 1161, 1162 (Fla. 1st DCA 2010), this court found a defendant raised a legally sufficient claim by alleging "he was incompetent and did not understand the consequences of his plea, that he had a history of mental illness, had not taken his schizophrenia medication, was suffering from delusions and hearing voices at the time of the plea and that he informed counsel of his condition." 29 So.3d at 1162. This claim was not refuted by a transcript of the defendant's plea colloquy because his "mental competency was never addressed." Id. Cf. Luckey v. State , 979 So.2d 353, 354 (Fla. 5th DCA 2008) (finding claim that counsel was ineffective for failing to obtain a mental health examination or take other actions relevant to the defendant's mental health was insufficient where the defendant "has not asserted in his motion that he actually was incompetent to proceed to trial or insane at the time of his offense").

Here, as in Akins , appellant sufficiently alleged that he was incompetent, and his counsel had serious concerns regarding his competency yet failed to follow through with the mental health evaluation authorized by the court. Like in Jackson , appellant's competence was not discussed during the plea colloquy. Appellant sufficiently alleged prejudice by stating he was incompetent and unable to communicate effectively with his counsel. "Where no evidentiary hearing is held below, we must accept the defendant's factual allegations in the motion as true to the extent they are not refuted by the record." Akins , 247 So.3d at 689. Because the limited record before us does not refute appellant's facially sufficient claim, we remand for the postconviction court to conduct an evidentiary hearing on this claim. We affirm the denial of the remaining claims.

AFFIRMED in part, REVERSED in part, REMANDED .

Lewis and Ray, JJ., concur.


author: EDWARDS, J.

text:
    Elizabeth MOODY, Appellant, v. Robert NEWTON, Appellee.
    Case No. 5D17-1967
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Nicole L. Benjamin, of Benjamin Law Firm, P.A., Orlando, for Appellant.
    Robert Newton, Orlando, pro se.
   EDWARDS, J.

Elizabeth Moody ("Former Wife") appeals the Final Judgment of Dissolution of Marriage. Specifically, she argues the lower court erred in: (1) treating her engagement and wedding rings as marital assets; (2) arriving at an improper equitable distribution scheme; (3) imputing an improperly low income to Robert Newton ("Former Husband"); (4) failing to award her the marital home; (5) failing to award her durational alimony; and (6) failing to award her attorney's fees. For the reasons set forth below, we affirm in part and reverse in part.

First, Former Wife argues the court erred in classifying her wedding ring as a marital asset. Generally, engagement and wedding rings are gifts to the wife and should not be included in the equitable distribution scheme. Randall v. Randall , 56 So.3d 817, 818 (Fla. 2d DCA 2011) ("The general rule is that an engagement ring is nonmarital property."); Melvik v. Melvik , 669 So.2d 328, 330 (Fla. 4th DCA 1996) ("It was error for the trial court to consider the wife's premarital property, such as her engagement and wedding rings which were found to be gifts to the wife, in the equitable distribution scheme."). At trial, Former Wife testified that the "ring" actually consisted of three rings, the most valuable of which was the engagement ring with a 2.2 carat stone, a wedding ring, and a third band that she valued at $ 1000, which they purchased a year after their wedding. Given the evidence presented at trial, it was error to treat the engagement ring and wedding ring as marital property subject to equitable distribution. On remand, the trial court shall enter an amended judgment excluding the engagement ring and wedding ring from equitable distribution. The third ring, which Former Wife valued at $ 1000, should be classified as a marital asset, unless the parties stipulate otherwise.

Second, Former Wife argues that the court arrived at improper values for the parties' two cars, Former Husband's utility trailer, and the marital home. Although Former Wife makes this argument on appeal, she failed to preserve the issue below. Because the alleged error first appeared in the final judgment, Former Wife was required to bring this matter to the lower court's attention in a motion for rehearing. See Hamilton v. R.L. Best Int'l , 996 So.2d 233, 234 (Fla. 1st DCA 2008). While she did move for rehearing, she failed to raise any issue with these particular assets. See Hentze v. Denys , 88 So.3d 307, 311 (Fla. 1st DCA 2012) ("Although the former husband did file a motion for rehearing, it did not address the issue of statutory interest."). We find that Former Wife waived these arguments; accordingly, we affirm as to these valuation issues.

Third, Former Wife argues that the court erred in imputing such a low income to Former Husband. Former Husband was self-employed as a long-haul trucker who had voluntarily become underemployed after the petition for dissolution was filed. Former Husband presented his tax returns as evidence that his gross income, ranging from $ 163,000 to $ 184,000 per year, was greatly reduced by operating expenses, fuel, and maintenance, resulting in net income ranging from $ 14,500 per year to a loss of $ 450 per year. The trial court found Former Husband's tax returns incredible. Former Husband's financial affidavits reflected his net business income ranged from $ 1100 to $ 1550 per month. Former Wife argued that the trial court should consider his reported gross income, but she offered no evidence of appropriate operating expense reductions. Ultimately, the trial court determined Former Husband's annual net income to be $ 31,200. The trial court based that determination on "the standard of living established by the family during the marriage and the contribution [Former Husband] provided to the family expenses."

"Florida case law has long recognized that self-employed spouses, in contrast to salaried employees, have the ability to control and regulate their income. Their testimony, tax returns, and business records accordingly may not reflect their true earnings, earning capability, and net worth." Newman v. Newman , 221 So.3d 642, 644 (Fla. 4th DCA 2017) (quoting Ugarte v. Ugarte , 608 So.2d 838, 840 (Fla. 3d DCA 1992) ). "Thus, when the circumstances suggest that a self-employed spouse has not accurately reported his or her income, the court may properly assign a higher income value than that claimed by the spouse." Id. (citing Child v. Child , 34 So.3d 159, 161 (Fla. 3d DCA 2010) ). By finding Former Husband's reported income incredible, the court implicitly found that he did not accurately report his income. We conclude that the court did not abuse its discretion in imputing to Former Husband a net income of $ 31,200 per year.

Fourth, Former Wife argues that the court erred in failing to award her exclusive use and possession of the marital home until the couple's child reaches the age of majority. Cases "have almost without exception" awarded the exclusive use and possession of the marital home to the custodial parent until the minor child reaches majority. Cabrera v. Cabrera , 484 So.2d 1338, 1339 (Fla. 3d DCA 1986). Here, the court found the parties were unable to maintain their marital lifestyle, having incurred over $ 100,000 in marital debts, and that, with her limited income, it was unlikely Former Wife would be able "to afford and maintain the home over an extended period." See § 61.075(h), Fla. Stat. (2017) (stating that it must be "financially feasible for the parties to maintain the residence until the child is emancipated"). We find the lower court did not abuse its discretion based on the evidence before it.

Finally, as to the issues of durational alimony and attorney's fees, we affirm without further discussion.

Therefore, we affirm as to all issues except the equitable distribution of the rings. Upon remand, the lower court shall reconsider the equitable distribution scheme after reclassifying the engagement and wedding rings as non-marital assets.

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

WALLIS and LAMBERT, JJ., concur.


text:
    Lucas Anthony ROBERTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3942
    District Court of Appeal of Florida, First District.
    January 28, 2019 Rehearing Denied March 5, 2019
    Lucas Anthony Roberts, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

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


author: NORTHCUTT, Judge.

text:
    2017 BELL RANCH RESIDENTIAL LAND TRUST, Appellant, v. Carol BURRILL and Wells Fargo Financial System Florida, Inc., Appellees.
    Case No. 2D17-4871
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Ivan D. Ivanov of The Ivanov Law Firm, P.A., Tampa, for Appellant.
    Kimberly S. Mello and Joseph H. Picone of Greenberg Traurig, P.A., Tampa, and Michele L. Stocker of Greenberg Traurig, P.A., Ft. Lauderdale, for Appellee Wells Fargo Financial System Florida, Inc.
    No appearance for Appellee Carol Burrill.
   NORTHCUTT, Judge.

Following a mortgage foreclosure, the judicial sale of the encumbered property resulted in a surplus. The circuit court directed the clerk to disburse the surplus sale proceeds to the mortgagor rather than to the owner of the property, and the owner has appealed. We reverse because the order violated statutes governing the distribution of such funds.

In June 2005, Carol Burrill gave a promissory note and attendant mortgage to Wells Fargo Financial System Florida, Inc., for the purpose of buying property in Brandon, Florida. In December 2012, the 2017 Bell Ranch Residential Trust purchased the property subject to Wells Fargo's mortgage, and it recorded a quitclaim deed from Burrill. In June 2014, Wells Fargo recorded a notice of lis pendens against the property and filed a complaint to foreclose its mortgage. The complaint named Burrill and the Trust as defendants, the former as the debtor and the latter as the property owner. It alleged that Burrill had defaulted on the note by failing to make any monthly payments beginning in July 2010. Burrill did not respond to the complaint, and she was defaulted.

In August 2016, the circuit court entered a consent final judgment of foreclosure and ordered a public sale of the property. The sale resulted in a surplus after payment of the judgment amount, postjudgment interest, and associated fees. Both Burrill and the Trust filed motions for disbursement of the surplus funds, each claiming to have been the owner of the property at the time Wells Fargo recorded its notice of lis pendens. The Trust attached to its motion a copy of the recorded quitclaim deed reflecting its ownership since December 2012-seventeen months before the lis pendens was recorded.

After a hearing, the circuit court ordered the surplus disbursed to Burrill. The court acknowledged that the Trust was the title owner. But it awarded the funds to Burrill based on the following reasoning:

a. [Trust representative], acting on behalf of 2017 Bell Ranch Residential Land Trust paid Carol Burrill $ 1500 cash and promised Carol Burrill that he would pay her taxes, insurance[,] and mortgage for the property in exchange for title to the property.
b. [Trust representative], acting on behalf of 2017 Bell Ranch Residential Land Trust failed to make any taxes, insurance[,] or mortgage payment for the property as promised.
c. 2017 Bell Ranch Residential Land Trust had a duty to pay the taxes, insurance[,] and mortgage for the property.
d. [Trust representative], acting on behalf of 2017 Bell Ranch Residential Land Trust had been renting the property for a profit.

On its face, the circuit court's order was contrary to the law governing the disbursement of a surplus after a judicial sale. Section 45.031(7)(d), Florida Statutes (2017), states, "If there are funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements, the surplus shall be distributed as provided in this section and ss. 45.0315-45.035." Section 45.032(2) in turn provides:

There is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim. A person claiming a legal right to the surplus as an assignee of the rights of the owner of record must prove to the court that such person is entitled to the funds. At any hearing regarding such entitlement, the court shall consider the factors set forth in s. 45.033 in determining whether an assignment is sufficient to overcome the presumption.

(Emphases added.)

Section 45.033(1) iterates that there is "a rebuttable presumption that the owner of record of real property on the date of the filing of a lis pendens is the person entitled to surplus funds." Significantly, under section 45.033(2) the presumption may be rebutted "only by" proof of either a voluntary or involuntary transfer or assignment from the record owner to the claimant of the right to collect the surplus. (Emphasis added.) In this case, no such assignment was alleged or found. Thus, having determined that the Trust was the record owner of the property, the various other circumstances recited by the circuit court were legally superfluous and insufficient to overcome the Trust's entitlement to the surplus. The order contravened the plain and unambiguous language of sections 45.032 and 45.033. See All Ctys. Surplus LLC v. Flamingo S. Beach I Condo. Ass'n, 211 So.3d 1096, 1097 (Fla. 3d DCA 2017) (determining that the language of section 45.032 is plain and unambiguous).

Accordingly, we reverse the order under review. On remand, the circuit court shall award the surplus funds to the Trust.

Reversed and remanded with instructions.

MORRIS and BLACK, JJ., Concur.

      Wells Fargo Financial System Florida, Inc., appeared but did not participate in this appeal.


text:
    Alice BITETZAKIS, Appellant, v. Ana Ester BITETZAKIS and Gregory Bitetzakis, as Nominated Personal Representative of the Estate of Gregory Bitetzakis, Deceased, and Connie Bitetzakis, Appellees.
    Case No. 2D17-4822
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Joshua S. Widlansky of Padula Bennardo Levine, LLP, Boca Raton, for Appellant.
    D. Michael Lins of Lins Law Group, P.A., Tampa, for Appellee Gregory Bitetzakis, personal representative.
    Bernard A. Jackvony of Pannone Lopes Devereaux & O'Gara LLC, Boca Raton, and John R. Hargrove of Hargrove Law Group, Boca Raton, for Appellee Connie Bitetzakis.
    No appearance for Appellee Ana Ester Bitetzakis.
   NORTHCUTT, Judge.

Alice Bitetzakis appeals a probate court order admitting her father's purported will to probate. We reverse because the will in question was not executed in strict compliance with the signature requirement of section 732.502, Florida Statutes (2013).

The decedent, George Bitetzakis, passed away in January 2017. His grandson was appointed personal representative and petitioned for the administration of a will dated in September 2013. The decedent's daughter, Alice Bitetzakis, responded to the petition, alleging inter alia that the will had not been executed in compliance with the statutory formalities set forth in section 732.502. Pertinent to this appeal, Alice Bitetzakis specifically alleged that the decedent did not sign the purported will within the meaning of the statute.

At an evidentiary hearing, the probate court heard testimony that the decedent undertook to execute his will at his home on the morning of September 26, 2013.

The decedent, his wife, and two witnesses-Thomas Rivera and the parties' pastor, Santiago Alequin-had gathered in the Bitetzakis' kitchen, where the parties met for weekly breakfasts. Rivera testified that he was the first person to sign as a witness and that he did so at the decedent's request. Alequin was the second to sign as a witness. Alequin stated that after he signed, the decedent began to sign the will but stopped at his wife's behest.

Ana Bitetzakis, the decedent's wife, testified that she was present on the occasion and recalled that the decedent asked Alequin and Rivera to sign the will. Ana also testified that she observed the decedent begin to sign the will, but she directed him to stop because she believed that he needed to sign before a notary. She confirmed that only the decedent's first name appeared on the signature line of the will, and she related that the decedent normally wrote his entire name when signing documents.

Ana further testified that the next day, September 27, 2013, she took the decedent to a notary. The decedent did not bring the will, but instead brought another document which turned out to be a self-proof affidavit titled "Affidavit of Subscribing Witnesses." See generally § 732.503 (providing that wills may be self-proved by way of a separate affidavit sworn and signed by the subscribing witnesses to the will's execution). The self-proof affidavit bears the decedent's signature and the notary's stamp but incongruously avers that the decedent served as a witness to himself executing his own will. Rivera's and Alequin's signatures do not appear on the self-proof affidavit.

At the conclusion of the proceedings, the probate court announced its ruling:

So with regard to the signing of the document, I'm finding that the document was signed in compliance with [ section] 732.502.... I'm also finding that the testator's intent is evident by his starting to sign and he only stopped signing his last name when his wife mistakenly told him that he needed a notary. He in fact did not need a notary. So that did not do away with his intent that this be his last will and testament. Additionally, the fact that he went to a notary the next day further shows his intent that this be his last will and testament albeit he had a notary, you know, notarize his name on-on the wrong document.

In its written order, the probate court further found in pertinent part:

3. Although the testator, Gregory Bitetzakis, only signed a portion of his name, the Court finds that he intended this Will to be his last will and testament and he stopped his signature on the mistaken belief that he needed a notary present.
4. The fact that the testator, Gregory Bitetzakis, intended this Will to be his last will and testament is supported by his going the following day to a notary and signing the document entitled "Affidavit of Subscribing Witnesses" in front of the notary.

Alice Bitetzakis timely appealed the probate court's order. We have jurisdiction. See Fla. R. App. P. 9.170(b).

On appeal, Alice Bitetzakis argues that the decedent's will fails to conform to the requirements of section 732.502 because the decedent did not sign at the end of the will and the decedent's later signing of the self-proof affidavit was insufficient to rectify his incomplete signature. We agree.

Generally, "[t]he primary consideration in construing a will is the intent of the testator." Allen v. Dalk, 826 So.2d 245, 247 (Fla. 2002) (citing Elliott v. Krause, 531 So.2d 74, 75 (Fla. 1987) ). However, "when testamentary intent is contained in a will, it can only be effectuated if the will has been validly executed" in strict compliance with section 732.502, Florida Statutes. Id. (emphasis added). Section 732.502(1)(a) dictates that in order to properly execute a will, the testator "must sign the will at the end" or else the testator's name "must be subscribed at the end of the will by some other person in the testator's presence and by the testator's direction."

In this case, the probate court erred because the evidence does not establish that the decedent signed at the end of the will or directed another to subscribe his name in his stead. See Dalk, 826 So.2d at 247 ("[W]here a testator fails to sign his or her will, that document will not be admitted to probate."). Under these very unique circumstances, it is clear that the decedent recorded something less than his full customary signature and therefore did not sign the will within the meaning of section 732.502. See Signature , Black's Law Dictionary (10th ed. 2014) (defining a signature as a "person's name or mark written by that person ... esp., one's handwritten name as one ordinarily writes it" and "the act of signing something; the handwriting of one's name in one's usual fashion").

To be sure, Florida law permits a testator to sign a will by making a mark not commonly regarded as a formal signature. See In re Williams' Estate, 182 So.2d 10, 12 (Fla. 1965) ("[A] mark made by the testator at the proper place on his will with the intent that it constitute his signature and evidence his assent to the will is sufficient to satisfy the statutory requirement that he 'sign' his will."). However, in this case we cannot construe the decedent's alphabetic first name as constituting his mark because there is no evidence that the decedent had the concomitant intent that it serve in place of his signature. In other words, there is no evidence that the decedent signed his first name "with the intention that [a portion of his signature] evidence his assent to the document." Id. at 13. To the contrary, that the decedent intentionally ceased signing the will and later signed the self-proof affidavit in an apparent attempt to ratify it dispels any notion that he believed or intended that his first name serve as his signature and assent to the will.

The probate court erred in admitting the unsigned will to probate. Accordingly, we reverse the order on execution and attestation of the decedent's will.

Reversed and remanded.

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

      In the will's attestation section, the parties left blank the space provided to indicate the date of signing. The decedent later filled out a self-proving affidavit which indicated that he signed his will on September 27, 2013, a Friday. However, testimony during the hearing demonstrated that the will must have been executed on September 26, 2013.


author: PER CURIAM.

text:
    Gregg David MANN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3444
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Gregg David Mann, Lawtey, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Gregg Mann filed the instant petition seeking belated appeal of his January 31, 2017 violation of probation judgment and sentence. We treat the petition as one asserting ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(d) and grant the petition.

A review of this Court's records show that Mann's counsel, Michael Sanders-Randall, did in fact file a notice of appeal but failed to follow through by having the record on appeal filed. As a result of counsel's failure to respond to this Court's order to show cause regarding same, Mann's appeal was dismissed for failure to prosecute.

"In a criminal case, when the substandard performance of counsel is the cause of the dismissal of an appeal depriving the defendant of appellate review, the prejudice prong is satisfied." P.M.W. v. State, 678 So.2d 484, 485 (Fla. 5th DCA 1996). Here, we conclude Sanders-Randall's representation was substandard, ineffective, and resulted in prejudice to Mann. Sanders-Randall failed to respond to the show cause orders issued by this Court and, as counsel of record, failed to prosecute the appeal, both of which caused Mann's direct appeal to be dismissed.

Accordingly, we grant the petition and reinstate the direct appeal in Case No. 5D17-702. Additionally, we relinquish jurisdiction to the trial court for a period of 30 days to consider and rule on Mann's motion for appointment of appellate counsel. See Johnson v. State, 719 So.2d 986, 986 (Fla. 5th DCA 1998).

PETITION GRANTED.

COHEN, BERGER and LAMBERT, JJ., concur.


text:
    CAPITALSOURCE INTERNATIONAL, LLC f/k/a CapitalSource International, Inc., Appellant, v. Spiridon E. PITSOULAKIS, Appellee.
    Case No. 5D18-2687
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Brian K. Hole, and Katherine M. Joffe, of Holland & Knight LLP, Ft. Lauderdale, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

CapitalSource International, LLC f/k/a CapitalSource International, Inc., appeals the dismissal of its complaint to enforce a promissory note for failure to effectuate service of process on Spiridon E. Pitsoulakis. We find that the trial court abused its discretion in dismissing the complaint, and therefore, reverse.

In March 2007, Pitsoulakis executed a promissory note in the principal amount of $ 854,630, which matured on May 1, 2012. On April 28, 2017, CapitalSource filed its complaint to enforce the note. When CapitalSource was unable to serve Pitsoulakis within the time allowed by Florida Rule of Civil Procedure 1.070(j), it sought and obtained two extensions of time to do so. CapitalSource continued to have difficulties locating and serving Pitsoulakis and requested a third extension of time. In support, it submitted affidavits of several process servers who had attempted to locate and serve Pitsoulakis at residential and business locations in Jacksonville, Clearwater, Plant City, and Sarasota. The trial court denied CapitalSource's third motion and dismissed the complaint.

In its motion for rehearing, CapitalSource set forth in greater detail its attempts at locating and serving Pitsoulakis. It noted that it had hired two private investigators and set forth the addresses at which it had attempted to locate Pitsoulakis, phone conversations it had with Pitsoulakis and others claiming to be his relatives, attempts to locate Pitsoulakis through hours of online and digital searches, surveillance, interviews, and stakeouts. It informed the court that the statute of limitations had run and consequently it would not be able to refile the complaint, thereby resulting in a nearly $ 900,000 windfall to Pitsoulakis, who it believed was evading service. The trial court denied rehearing.

We review an order dismissing an action for failure to serve the complaint under an abuse of discretion standard. Regions Bank v. Buoncervello , 220 So.3d 1225, 1227 (Fla. 5th DCA 2017). Moreover, where, as here, the court dismisses an action when the statute of limitations has run, thereby precluding refiling of the complaint, the court should exercise discretion in favor of extending the service deadline. Id. (citing Brown v. Ameri Star, Inc. , 884 So.2d 1065, 1067 (Fla. 2d DCA 2004) (holding that "it ordinarily is an abuse of discretion not to allow additional time for service of the summonses even in the absence of a showing of good cause or excusable neglect" if dismissal is entered after expiration of statute of limitations precluding refiling of action) ). Here, CapitalSource established good cause for its failure to serve Pitsoulakis within the time allowed by rule 1.070(j) and the court's prior extensions. The trial court abused its discretion in denying the extension and dismissing the action, particularly where CapitalSource was precluded from refiling the action. See Roberts v. Stidham , 19 So.3d 1155, 1158 (Fla. 5th DCA 2009) (" Rule 1.070(j) is designed to be a case management tool, not an additional statute of limitations cutting off the liability of a tortfeasor, and it is not to be imposed inflexibly when the plaintiff demonstrates diligence and good cause." (citation omitted) ). We reverse and remand for further proceedings.

REVERSED and REMANDED.

BERGER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Richard ANDREWS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2759
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 1, 2019
    Richard Andrews, Miami, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Richard Andrews (the defendant) appeals the trial court's order granting in part, and denying in part, his motion to correct illegal sentence filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. On appeal, the defendant argues that the trial court erred by granting relief but failing to conduct a resentencing proceeding. We agree and reverse.

The defendant filed the present rule 3.800(a) motion in which he asserted two grounds for relief. In ground two, the defendant challenged the habitual felony offender designation as to count one, burglary of a dwelling. The trial court denied ground one but granted relief on ground two. Without conducting a resentencing hearing, the trial court struck the habitual felony offender designation as to count one and reimposed a life term.

A defendant is entitled to be present and represented by counsel at any resentencing proceeding unless the resentencing involves only a ministerial act. See Thompson v. State, 208 So.3d 1183, 1187 (Fla. 3d DCA 2017). The relief granted by the trial court altered the total sentence points on the defendant's scoresheet and, under the sentencing guidelines in effect at the time of the offense, the court had discretion as to the new sentence it imposed upon the defendant. Thus, resentencing the defendant to a life term on count one did not involve a purely ministerial act. See Burgess v. State, 182 So.3d 841, 842 (Fla. 4th DCA 2016). Accordingly, the trial court was required to hold a full, de novo resentencing hearing before imposing a new sentence on count one, and the trial court's failure to hold such a hearing was error. See Branton v. State, 187 So.3d 382 (Fla. 5th DCA 2016).

Accordingly, we reverse and remand to the trial court for a formal resentencing hearing wherein the defendant is represented by counsel.

REVERSED and REMANDED.

COHEN, LAMBERT, and GROSSHANS, JJ., concur.