author: Per Curiam.

text:
    Frank CERTO and Muriel Certo, Appellants, v. The BANK OF NEW YORK MELLON, f/k/a The Bank of New York, Successor in Interest to JPMorgan Chase Bank, N.A., as Trustee for Structured Asset Mortgage Investments II, Inc., Bear Stearns ALT-A Trust, Mortgage Pass-Through Certificates, Series 2005-7, Appellee.
    No. 1D17-4421
    District Court of Appeal of Florida, First District.
    April 3, 2019 Rehearing Denied April 25, 2019
    Frank Certo and Muriel Certo, pro se, Appellants.
    Michael T. Gelety and Shawn L. Taylor, Deluca Law Group, PLLC, Fort Lauderdale, for Appellee.
   Per Curiam.

Appellants challenge a final foreclosure judgment entered against them. Because we find Bank of New York Mellon failed to prove its standing, we must reverse.

Facts

American Landmark Mortgage lent Appellants monies secured by a Mortgage in favor of American Landmark as lender and MERS as nominee. American Landmark specially indorsed the Note to CTX. CTX specially indorsed the Note to JP Morgan Chase as trustee. Bank of New York Mellon brought suit to foreclose on the Mortgage, and included a count to reestablish a lost note.

Appellants challenged Mellon's standing. Mellon claimed standing through a 2011 assignment of mortgage from American Landmark to Mellon. It also pointed to the case style: Bank of New York was successor in interest to JP Morgan (which had a special indorsement), and Mellon was the new Bank of New York. At trial, Mellon entered a copy of the Note, three assignments of mortgage, two change in servicer letters, a power of attorney, a Pooling & Servicing Agreement, and payment history.

Law

In a foreclosure action, once a defendant challenges standing, the prosecuting bank must adduce evidence that it has standing to bring suit. Ham v. Nationstar Mortg., LLC , 164 So.3d 714, 719 n.1 (Fla. 1st DCA 2015). A bank also has the burden of proving a lost note claim. See Poag v. Nationstar Mortg., LLC , 198 So.3d 1002, 1004-05 (Fla. 1st DCA 2016) (explaining that a lost note count requires the plaintiff to prove it was entitled to enforce the instrument; i.e., had/has standing); see also § 673.3091(1)(a), (2), Fla. Stat.; Peters v. Bank of N.Y. Mellon , 227 So.3d 175, 177-80 (Fla. 2d DCA 2017) (reversing where trial court granted reestablishment of lost note and appellate court found plaintiff bank could not evidence effective transfer of note and therefore lacked standing).

If a note is specially indorsed to an entity other than the plaintiff, the plaintiff can show its standing through evidence that it purchased the debt or obtained it via effective transfer or valid assignment. Bank of N.Y. Mellon Trust Co., N.A. v. Conley , 188 So.3d 884, 885 (Fla. 4th DCA 2016) ; Stone v. BankUnited , 115 So.3d 411, 413 (Fla. 2d DCA 2013). This evidence need not be documentary; witness testimony is sufficient. See Ham v. Nationstar Mortg., LLC , 164 So.3d 714, 719 (Fla. 1st DCA 2015). That testimony, however, must evidence the transfer or sale of the particular mortgage or show the relationship between the specially indorsed entity and the suing plaintiff. Green v. Green Tree Servicing, LLC , 230 So.3d 989, 991 (Fla. 5th DCA 2017) (quoting Vogel v. Wells Fargo Bank, N.A. , 192 So.3d 714, 716 (Fla. 4th DCA 2016) ). For example, a bank employee's testimony about the purchase assumption agreement by which the new entity acquired all the assets of the old bank was competent, substantial evidence of standing. Stone v. BankUnited , 115 So.3d 411, 413 (Fla. 2d DCA 2013).

On the other hand, it is insufficient for the plaintiff to rely on its acquisition of the other entity. See Fielding v. PNC Bank Nat'l Ass'n , 239 So.3d 140, 142-43 (Fla. 5th DCA 2018) ; Kyser v. Bank of Am., N.A. , 186 So.3d 58, 61 (Fla. 1st DCA 2016) (despite testimony of merger, witness gave no testimony as to what assets exactly were acquired); Fiorito v. JP Morgan Chase Bank, Nat'l Ass'n , 174 So.3d 519, 520-21 (Fla. 4th DCA 2015) (testimony one entity "took over" another is not sufficient); Lamb v. Nationstar Mortg., LLC , 174 So.3d 1039, 1041 (Fla. 4th DCA 2015) (listing cases). Similarly, listing party status as "successor by merger" or claiming a title is not sufficient; a plaintiff must support its claim by evidence. See Buckingham v. Bank of Am., N.A. , 230 So.3d 923, 924-25 (Fla. 2d DCA 2017) (holding words "successor by merger" were insufficient to "establish the merger, let alone that the [plaintiff] acquired all of [the successor's] assets"); DiGiovanni v. Deutsche Bank Nat'l Trust Co. , 226 So.3d 984, 988-89 (Fla. 2d DCA 2017) (finding no standing where Deutsche presented no evidence "Bankers Trust had been renamed Deutsche Bank"); Murray v. HSBC Bank USA , 157 So.3d 355, 358-59 (Fla. 4th DCA 2015) (explaining "Option One California" was not "Option One Mortgage Corporation"); Verizzo v. Bank of N.Y. , 28 So.3d 976, 977, 978 (Fla. 2d DCA 2010) (explaining plaintiff listing itself as "successor trustee" was insufficient).

Application

We find Conley instructive. There, Mellon argued it had standing, claiming it was the former Bank of NY, which was successor in interest to JP Morgan, which had a special indorsement on the note. 188 So.3d at 885. Mellon even introduced a purchase agreement where JP Morgan Co. sold assets to Bank of NY. Id. The court rejected Mellon's standing claim. Id. First, JP Morgan Bank was listed on the special indorsement, but JP Morgan Co. was on the asset purchase agreement. Id. at 885-86. Second, even putting that aside, Mellon was still out of the loop; at best, JP Morgan sold its interest to Bank of NY, but there was no evidence connecting Mellon. Id. at 886.

The trouble here, similar to the trouble in Conley , is Mellon's link to Bank of NY and Bank of NY's link to JP Morgan. Because the final special indorsement is to JP Morgan, Mellon needed to evidence how it obtained the Note or interest. It claims to have it because Bank of NY is a successor to JP Morgan and Mellon is the new Bank of NY. However, the record does not establish either of those necessary links.

Mellon relies on the Note, three assignments of mortgage, two change in servicer letters, a power of attorney, a Pooling & Servicing Agreement, and payment history. None of these proves standing. To begin, the Note indorsement to JP Morgan is insufficient because it does not close the gap between JP Morgan and Mellon. Nothing shows how or to what extent Bank of NY acquired assets of JP Morgan; i.e., that Bank of NY was a successor in interest of any or all of JP Morgan's assets. See Buckingham , 230 So.3d at 924-25 (holding words "successor by merger" were insufficient to "establish the merger, let alone that the [plaintiff] acquired all of [the successor's] assets"); Conley , 188 So.3d at 885-86 (explaining BONY Mellon had submitted a purchase and assumption agreement attempting to evidence sale of JP Morgan assets). Similarly, even if that was evidenced, nothing shows Mellon is formerly Bank of NY. See DiGiovanni , 226 So.3d at 988-89 (finding no standing where Deutsche presented no evidence "Bankers Trust had been renamed Deutsche Bank"); Murray , 157 So.3d at 358-59 (Fla. 4th DCA 2015) (explaining Option One California was not Option One Mortgage Corporation). The record does not contain a merger or purchase agreement. There is no witness testimony about a merger or purchase.

Next, the remaining documents do not evidence Mellon's purchase, transfer, or assignment. First, the corporate assignments of mortgage are insufficient. The 2007 assignment is to Bank of New York. The 2011 assignment is from the original lender-which had indorsed the Note to CTX. It is unclear how the original lender could specially indorse the Note to CTX yet still have an interest to convey to Mellon. Second, the change in servicer letters reflect only that a new servicing company was servicing the Note. The letters say nothing about the underlying debt and Note being sold to a new bank. In addition, the change in servicer letters are dated May 2016; they cannot show who owned the Note when the action was filed in January 2015. Third, the limited power of attorney merely grants a servicer the ability to act; it does not evidence a debt or transfer of a debt. Again, it is dated March 2017 and similarly cannot show who owned the Note at the 2015 filing. Fourth, the payment history does not specifically list Mellon. Finally, the PSA is between Structured Asset Mortgage Investments, JP Morgan, Wells Fargo, and EMC. Mellon is not a party. An agreement to which Mellon is not a party does not evidence a transfer of the Note to Mellon. Thus, the documents Mellon introduced below and that it cites on appeal do not evidence its purchase of the debt or an effective transfer or valid assignment to it.

Conclusion

Mellon needed to show the pieces in this Note puzzle ended with it. It is missing evidence of two pieces: that Bank of NY was successor in interest to JP Morgan, and that Mellon is formerly Bank of NY. Accordingly, Mellon did not evidence its standing to foreclose. We must reverse the final judgment of foreclosure. See Nationstar Mortg., LLC v. Brown, 175 So.3d 833, 834-35 (Fla. 1st DCA 2015) (noting that dismissal of foreclosure action does not preclude subsequent action based on later or ongoing defaults). Because of this disposition, Appellants' second issue is moot and we decline to comment on it.

REVERSED .

Roberts, Ray, and Kelsey, JJ., concur.

      There is no trial transcript in the record, but Mellon does not suggest there was testimony that evidenced its standing; i.e., Bank of NY's apparent purchase of JP Morgan's interest and Bank of NY's apparent renaming to Mellon.


source: Caselaw Access Project

author: Kelsey, J.

license: Public Domain

text:
    Joshua David LEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1469
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Andy Thomas, Public Defender, and Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Kelsey, J.

Appellant, convicted of aggravated stalking, claims the trial court improperly admitted into evidence his victim's 911 call and three of his jail calls to the victim. He argues that without this evidence, he could not have been convicted of aggravated stalking. We find no legal error or abuse of discretion, and affirm.

Aggravated Stalking

Aggravated stalking occurs when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person." § 784.048(3), Fla. Stat. (2016). To "harass" is "to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." § 784.048(1)(a). " 'Course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose." § 784.048(1)(b). To "cyberstalk" is "to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose." § 784.048(1)(d). A minimum of two acts is required to establish stalking. Pickett v. Copeland , 236 So.3d 1142, 1144-45 (Fla. 1st DCA 2018) (citing Carter v. Malken , 207 So.3d 891, 894 (Fla. 4th DCA 2017) ).

Appellant's Texts to the Victim

At trial the State introduced photographs a deputy sheriff took of three text messages on the victim's phone. A 12:28 p.m. message from the victim to Appellant said "Im [sic] calling the sheriff." At 3:12, Appellant replied, "Call the g*dd*n sheriff. See if a piece of paper [no-contact order] stops me from treating you the way you deserve. Trust me you'll be getting yours." A second incoming message from Appellant at 3:14 said, "You f*ing whore. You are gonna die today." Both the deputy and the victim authenticated these photographed messages at trial.

911 Call

Appellant was subject to a court order that he have no contact with his ex-girlfriend. She called 911 on an evening when she said Appellant had been sending her "death threats all day" in text messages and twelve to fifteen voice mail messages that were "very explicit, very, very scary." She said Appellant had given her an ultimatum: meet with him that evening, or wait a few days and he would break down her door and "cut out [her] throat with a paring knife." She asked the dispatcher to "make it urgent" because she had agreed to Appellant's demand that she meet him to talk, and she had "flushed him out" and wanted him picked up at the pre-arranged meeting place. She said she could not go home, because "he will bust in the door." She said she had made arrangements for herself and her daughter to spend the night at friends' homes out of fear of Appellant. While on the phone with the dispatcher, the victim had started following a deputy in traffic in hopes of getting immediate help, but the dispatcher instructed the victim to park in a safe place and await a deputy dispatched specifically for her call.

A deputy responding to the 911 call found the victim "distraught and in fear for her life." This deputy photographed some of the text messages on the victim's cell phone. This deputy did not locate or apprehend Appellant at that time; but within about an hour, the victim flagged down another deputy and asked for a ride back to her car, repeating her concerns about Appellant. When they arrived at her car, Appellant walked up. The second deputy testified that the victim "seemed panic stricken" upon seeing Appellant, and that Appellant seemed impaired. This deputy separated Appellant and the victim, and called for the first deputy to respond to the scene. Appellant was arrested for aggravated stalking.

Jail Calls

Three recorded jail calls between Appellant and the victim were introduced into evidence, the first two within moments of each other the evening of Appellant's arrest, shortly after he had been booked into jail; and the third call several weeks later. By stipulation, counsel had redacted material deemed potentially prejudicial to Appellant. In the first call, Appellant was angry and claimed that he had merely wanted to meet the victim for dinner and to talk. The victim summarized Appellant's threats in explicit language very similar to what she had used in the 911 call, which she testified at trial was the truth: "You were the one telling me that if I didn't go with you that you were going to destroy my bike and my car and my house and you're going to cut my throat out with a paring knife, you would p*ss into my neck and watch me gurgle and die." That call ended when someone came to fingerprint Appellant, and Appellant immediately called her back. In the second call, after discussing damage Appellant had apparently caused to the victim's motorcycle, which Appellant denied causing, Appellant told the victim she had "f*d up majorly this time."

Although there were 47 recorded jail calls between the two, the only additional one admitted at trial occurred several weeks after Appellant was arrested. Appellant apologized: "I'm sorry for saying all that s*t to you. You know I didn't mean any of that, I was just upset." He claimed that on the day of his arrest, he had been sleep-deprived, had drunk some vodka, and "I don't even remember what I wrote to you. And then, or what I was calling and saying. I don't really, I don't know what I did." The victim repeated that she "was absolutely terrified, it was worse than anything you can imagine." Appellant apologized again: "Well, like I said, I'm sorry, I didn't mean anything by that. You know I would never do anything like that." He repeated that he only wanted to meet up with the victim that evening to so they could have dinner together.

Evidentiary Objections

Appellant objected to the 911 call and the jail calls on grounds of confrontation clause and hearsay. The defense also made a boilerplate objection at the close of evidence: "And if we can go ahead now and renew all objections and evidentiary rulings." The victim's testifying at trial resolved the confrontation clause objections, and the trial judge overruled the hearsay objections.

As to the 911 call, the trial judge had listened to the recording before trial and concluded that it was admissible as an excited utterance. The judge described the victim's speech as "very fast ... abnormally fast," with an "[o]ccasional stutter" and a "fairly fast" breathing pattern. The judge noted that "she was so upset that she was trying to follow a deputy" even though she had no idea where that deputy was going, and was so afraid to go home that she "was upset and wanting urgently to get assistance ... In other words, she was seeking safety." The judge noted that in context, the victim was not merely reporting a past crime, but was concerned for her safety against an upcoming confrontation with Appellant: "It was, you've got to get to him because he's after me. ... It was a cry for help." The judge interpreted the victim's statements about death threats not as planting contrived information, but rather given genuinely in response to the 911 operator's questioning. The trial court ruled that the 911 calls would be admitted as a non-testimonial excited utterance exception to the rule against hearsay.

In response to Appellant's hearsay objection to the jail calls, the prosecutor argued that the victim's statements in the calls were not being offered for their truth. Rather, the State offered the jail calls as evidence of Appellant's admissions. In closing argument, the defense referred to the third jail call as evidence that Appellant had no intention of hurting the victim that evening, but just wanted to meet her for dinner.

Standard of Review

A trial court's decision to admit evidence is generally reviewed for abuse of discretion. Hudson v. State , 992 So.2d 96, 107 (Fla. 2008). That discretion, however, is limited by the rules of evidence. Id. Whether a statement is hearsay is a legal question reviewed de novo. Powell v. State , 99 So.3d 570, 573-74 (Fla. 1st DCA 2012) (examining hearsay definition and excited utterance questions de novo). We do not re-weigh evidence, and will affirm if competent evidence supports the judgment. Brand v. Fla. Power Corp. , 633 So.2d 504, 513 (Fla. 1st DCA 1994) (citing Shaw v. Shaw , 334 So.2d 13, 16 (Fla. 1976) ).

Analysis

Appellant argues that neither the 911 call nor the jail calls qualified as an excited utterance or spontaneous statement, and both were inadmissible hearsay, without which there was insufficient competent evidence to convict him. He argues that without these calls, there was just "one text message," which was insufficient to sustain his conviction. His principal argument against admissibility of the 911 call is that it occurred several hours after the texted death threat, which allowed sufficient time for the victim to be free from the effect of a startling event, and to have had time to reflect or fabricate. He argues that the same reasoning applies to the jail calls, which he claims could not be considered party admissions because Appellant did not agree with what the victim said on those calls.

911 Call/Excited Utterance. We affirm the trial court's ruling that the 911 call was properly admitted as an excited utterance. See § 90.803(2), Fla. Stat. (defining excited utterance as a "statement ... relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition"). As we have held, to fall within this exception, an otherwise hearsay statement must meet the following elements:

(1) there was an event startling enough to cause nervous excitement; (2) the statement was made before the declarant had time to reflect or contrive; and (3) the statement was made while the declarant was under the stress or excitement caused by the event.

Powell v. State , 99 So.3d 570, 573-74 (Fla. 1st DCA 2012). We noted in Powell that "[t]he stress that justifies the admission of the statement can exist for a significant period of time after the startling event is over." Id. at 574.

As the trial court correctly noted, it was not just Appellant's graphic threats by text and voicemail leading up to the 911 call that evidenced the victim's state of fear and "nervous excitement," but also the impending confrontation with Appellant on which he had insisted, subject to a death threat. The death threat was expressed in Appellant's two text messages: "Trust me you'll be getting yours.... You f*ing whore. You are gonna die today." In addition, the death threat was expressed in the victim's words: "[T]he only options I have are to meet him ... and talk to him or wait a few days and ... then he's going to surprise me and he's going to bust in my door and cut out my throat with a paring knife." The planned confrontation was confirmed when Appellant walked up to the victim's car in the presence of a deputy at the appointed time, causing panic in the victim. This victim was under the stress of not just the earlier texts and voicemails, but also the imminent confrontation.

Although Appellant argues that the 911 call could not qualify as an excited utterance because the gap of time between his second texted death threat and the 911 call gave the victim time to reflect and contrive, it is undisputed that she did not contrive the texted death threats. She did not make up her statements about Appellant's expecting an evening meeting, that he was on foot on his way to that meeting, or the place of the meeting-all of which were confirmed by Appellant's actions. As the trial judge noted, the victim was so desperate to get help before that meeting occurred that she started following a random deputy in traffic, and her voice and speech patterns on the 911 tape evidenced her state of fear. The first deputy who responded to the 911 call and talked with the victim testified that the victim was "distraught and in fear for her life." The second deputy, with the victim when Appellant approached for that evening meeting, testified that she was panic-stricken. This evidence sufficed to establish the excited-utterance exception to the rule against hearsay.

These facts are analogous to those in Werley v. State , 814 So.2d 1159 (Fla. 1st DCA 2002). The victim of a domestic battery called 911 an hour later, as she was walking down the road away from the house. She told the 911 operator that her husband had beat her and that if she did not get off the road, he would come after her and beat her again. Id. at 1161. Like the victim here, the victim in Werley was found by responding officers to be visibly upset, frightened, and short of breath. Id. We affirmed the trial court's assessment that the 911 call satisfied the excited utterance exception. Id. ; see also Rolle v. State, 215 So.3d 75, 80 (Fla. 3d DCA 2016) (finding victim's statement made "a few hours" after the startling event qualified as an excited utterance given evidence of the victim's ongoing state of trauma); Edmond v. State , 559 So.2d 85, 86 (Fla. 3d DCA 1990) (finding excited utterance exception applied to statements made two to three hours after crime was committed, where witness was still frightened and emotional). These cases are necessarily fact-specific, and on the facts presented here, the trial judge did not err in ruling that this victim's statements to the 911 operator constituted excited utterances.

The Jail Calls. Counsel for both parties cooperatively stipulated to redacting from the recorded jail calls statements that could be damaging to Appellant. In response to Appellant's objections to placing the victim's statements before the jury, the State argued that the jail calls were not being offered for their truth, but rather to establish Appellant's adoptive admissions and his assertion of another threat the very evening of his arrest. In the calls, the victim repeated statements she had made in the 911 call, almost verbatim; and by that stage of the trial, the victim had testified under oath that her 911-call statements were the truth. In closing argument, Appellant's counsel even utilized Appellant's jail call statements about merely wanting to meet the victim for dinner, to argue lack of any criminal intent.

These facts do not demonstrate reversible error. The victim's statements, offered for a purpose other than truth-here, to provide context for Appellant's responses-are not hearsay. See Jackson v. State , 25 So.3d 518, 530 (Fla. 2009) (repeating general rule that a relevant statement offered for a purpose other than its truth is not hearsay). Appellant's acts-text messages, physical approach, and the mere fact of the two phone calls in addition to their content-constituted a "course of conduct" for purposes of the stalking statute. § 784.048(1)(b), Fla. Stat.; Carter , 207 So.3d at 894 (requiring a minimum of two acts to constitute stalking).

AFFIRMED .

Wetherell and Makar, JJ., concur.


author: PER CURIAM.

text:
    FLORIDA ORGANIC AQUACULTURE, LLC, Appellant, v. ADVENT ENVIRONMENTAL SYSTEMS, LLC, Appellee.
    Case No. 5D17-530
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019 Rehearing Denied April 30, 2019
    John L. Urban and Christian Fahrig, of Urban Thier & Federer, P.A., Orlando, for Appellant.
    Jackson O. Brownlee and Amber N. Davis, of Beusse Wolter Sanks & Maire, PLLC, Orlando, for Appellee.
   PER CURIAM.

Florida Organic Aquaculture, LLC ("Florida Organic") appeals a final judgment awarding attorney's fees to Advent Environmental Systems, LLC ("Advent") following a contract dispute. Florida Organic argues that the trial court lacked jurisdiction to enter orders and a judgment awarding Advent costs and attorney's fees after it denied Advent's motion for rehearing on its motion to tax costs and attorney's fees. We agree and reverse.

After serving Florida Organic with a complaint for breach of contract, Advent made an offer of judgment for $ 50,000, which Florida Organic elected not to accept. The case proceeded to trial, and the court entered a final judgment on Advent's behalf for $ 65,000, reserving jurisdiction to award costs and attorney's fees. Advent filed a motion to tax costs and attorney's fees based on the final judgment and the offer of judgment rejected by Florida Organic. On April 25, 2016, following a hearing, the trial court granted Advent's motion as to costs but denied it as to attorney's fees based on Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013).

Advent timely moved for rehearing and to stay the case pending the Florida Supreme Court's review of the certified conflict between Borden Dairy Co. of Alabama v. Kuhajda, 171 So.3d 242 (Fla. 1st DCA 2015) (relying on Diamond Aircraft, 107 So.3d at 362 ), and Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003). The trial court granted the stay.

On October 20, 2016, the Florida Supreme Court rendered its decision on the conflict. See Kuhajda v. Borden Dairy Co. of Ala., 202 So.3d 391 (Fla. 2016). The following day, Advent scheduled a hearing on its motion for rehearing. Florida Organic filed a supplemental memorandum arguing that the facts and law related to Advent's offer of judgment had not changed and that there were no new issues that required rehearing. On October 27, 2016, the trial court summarily denied Advent's motion for rehearing and cancelled the hearing on the motion.

On October 31, 2016, Advent filed a motion for reconsideration of the order denying its motion for rehearing and a memorandum of law in support thereof. On November 16, 2016, the trial court granted Advent's motion for reconsideration and scheduled a hearing on the matter. At the hearing, Florida Organic argued that the trial court lacked jurisdiction to reconsider the denial of a motion for rehearing. On February 1, 2017, the trial court vacated its April 25, 2016 order granting Advent costs but denying it attorney's fees and granted Advent's motion to tax costs and attorney's fees in totality. On February 2, 2017, it entered a final judgment granting Advent costs and attorney's fees. This appeal followed.

The issue for our determination is whether the trial court lacked jurisdiction to enter orders and the judgment granting attorney's fees and costs after it denied Advent's motion for rehearing on October 27, 2016. In deciding this issue, we must analyze whether the order denying Advent's motion for rehearing was a final order. If so, it divested the trial court of jurisdiction to hear Advent's motion for reconsideration and to enter a final judgment awarding costs or attorney's fees. E.g., State ex rel. Cantera v. Dist. Ct. App., Third Dist., 555 So.2d 360, 362 (Fla. 1990) (explaining that the trial court lost jurisdiction over the matter when it denied a motion for rehearing of the final order and that trial courts are not permitted to authorize motions for rehearing beyond those allowed by Rule 1.530 (citing Capital Bank v. Knuck, 537 So.2d 697, 698 (Fla. 3d DCA 1989) ) ); Markevitch v. Van Harren, 429 So.2d 1255, 1256 (Fla. 3d DCA 1983) (noting that the rules of civil procedure do not authorize a second motion for rehearing).

An order, judgment, or decree is final if it "constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected." S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla. 1974). We have held that a final judgment reserving jurisdiction to award attorney's fees or granting attorney's fees but reserving jurisdiction to determine the amount is nonfinal as to the issue of attorney's fees. Mills v. Martinez, 909 So.2d 340, 342 (Fla. 5th DCA 2005) ("An award of attorneys' fees does not become final, and, therefore, appealable until the amount is set by the trial court." (citing Sanders v. Palmieri, 849 So.2d 417, 417 (Fla. 5th DCA 2003) ) ). However, post-judgment orders denying attorney's fees are final orders, unless it is clear from the order that the trial court did not intend to end its judicial labor. See Fabing v. Eaton, 941 So.2d 415, 417-18 (Fla. 2d DCA 2006) (holding that order denying motion for attorney's fees was final because the trial court did not enter it without prejudice and did not permit movant to reargue the merits of the motion in the future). Here, the trial court entered the order denying Advent attorney's fees following a final judgment that reserved jurisdiction to rule on costs and attorney's fees. Accordingly, we find that the order granting Advent costs and denying it attorney's fees was a final order when the trial court entered it on April 25, 2016.

Advent's subsequent motion for rehearing was proper pursuant to Florida Rule of Civil Procedure 1.530 because Advent timely directed it at a final order. However, the entry of an order denying a motion for rehearing divests a trial court of jurisdiction to conduct further proceedings, including hearing and ruling on a second motion for rehearing. E.g., Cantera, 555 So.2d at 362 ; Markevitch, 429 So.2d at 1256 ; see also A.W. Baylor Plastering, Inc. v. Mellon Stuart Co., 611 So.2d 108, 110 (Fla. 5th DCA 1992) ("[O]nce a judgment becomes final-as where (a) a final judgment has been entered, and (b) a motion for rehearing under 1.530 has been denied or not such motion is filed and the ten days for filing same has expired-the trial court loses jurisdiction to rehear the judgment on the merits." (quoting Herskowitz v. Herskowitz, 513 So.2d 1318, 1319 (Fla. 3d DCA 1987) ) ). We hold that when the trial court denied Advent's motion for rehearing on October 27, 2016, it was divested of jurisdiction to rehear the question of attorney's fees and costs.

While Advent titled its October 31, 2016 motion as one for reconsideration of the order denying rehearing, motions for reconsideration apply only to "nonfinal, interlocutory orders, and are based on a trial court's 'inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action.' " Seigler v. Bell, 148 So.3d 473, 478 (Fla. 5th DCA 2014) (emphasis added) (quoting Silvestrone v. Edell, 721 So.2d 1173, 1175 (Fla. 1998) ). Here, Advent did not direct its motion towards a nonfinal order entered prior to final judgment; rather, it filed the motion regarding the order denying rehearing entered after final judgment. Accordingly, we find that Advent's motion for reconsideration was actually a second motion for rehearing, which is not permitted under the Florida Rules of Civil Procedure. E.g., Markevitch, 429 So.2d at 1256.

We note that after a trial court rules on a motion for rehearing, it retains jurisdiction only to enter post-decretal orders to effectuate the judgment or to consider motions pursuant to Florida Rule of Civil Procedure 1.540. See St. Cloud Utils. v. Moore, 410 So.2d 973, 974 n.3 (Fla. 5th DCA 1982) ("The trial court loses jurisdiction, except to enforce the judgment and except as provided by Florida Rule of Civil Procedure 1.540, when the time for filing a motion for rehearing or new trial has expired, or if such motion has been timely filed, when it is ruled upon." (citations omitted) ); see also De Ardila v. Chase Manhattan Mortg. Corp., 826 So.2d 419, 421 (Fla. 3d DCA 2002) ("The trial judge lost jurisdiction, (except for the entry of post decretal orders to effectuate the final judgment), when, having denied the relief sought, she then denied the mortgagor's request for rehearing."). Rule 1.540 allows relief from judgment based on mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, a void or satisfied judgment, or a clerical mistake. Fla. R. Civ. P. 1.540.

Here, Advent did not allege in its motion for reconsideration any of the grounds set forth in Rule 1.540 as a basis for relief from the judgment; it argued only on the merits of the disputed legal issue. Because the April 25, 2016 order granting costs and denying attorney's fees was a final order, Advent's only available avenue of relief was to file a notice of appeal within thirty days of the trial court's denial of its motion for rehearing on October 27, 2016. See Fla. R. App. P. 9.110(b) (providing that a party must file an appeal within thirty days of rendition of the order to be reviewed); Fla. R. App. P. 9.020(h)(1)(B) (providing that timely and authorized motions for rehearing toll rendition of final orders); cf. Helmich v. Wells Fargo Bank, N.A., 136 So.3d 763, 764 (Fla. 1st DCA 2014) ("It is axiomatic that an appeal must be filed within thirty days of entry of the final judgment; this is jurisdictional and irremediable. It is also clear that a party's motion for rehearing/reconsideration directed at denial of relief from judgment is unauthorized and will not toll the unwavering thirty-day time limit." (citations omitted) ). Thus, the trial court improperly granted Advent's motion for reconsideration on November 16, 2016, as it did not have jurisdiction to rule on the motion.

Accordingly, we reverse and remand with instructions to vacate all orders entered after the denial of Advent's motion for rehearing on October 27, 2016, including the February 2, 2017 final judgment, and to reinstate the April 25, 2016 order granting Advent costs and denying it attorney's fees.

REVERSED and REMANDED with instructions.

COHEN, EISNAUGLE and SASSO, JJ., concur.

      The parties entered a stipulation regarding the amount and reasonableness of taxable costs and attorney's fees.

      Motions for rehearing are governed by Florida Rule of Civil Procedure 1.530, which "has been consistently construed to authorize rehearings of orders and judgments which are final in nature." Capone v. Philip Morris USA, Inc., 116 So.3d 363, 372 (Fla. 2013) (citing Deal v. Deal, 783 So.2d 319, 321 (Fla. 5th DCA 2001) ).

      Even if Advent labeled its motion as one pursuant to Rule 1.540, a trial court is limited by the narrow grounds stated in Rule 1.540"and is not empowered to revisit a final judgment on the merits so as to correct errors of law as the trial court may do on a motion for rehearing." A.W. Baylor Plastering, 611 So.2d at 109-10 (quoting Herskowitz, 513 So. 2d at 1319 ). Rule 1.540 is not intended to serve as a substitute for appellate review of judicial error. Id. at 109 ; see also Curbelo v. Ullman, 571 So.2d 443 (Fla. 1990) (explaining that a "mistaken view of the law" is not a "mistake" as contemplated by Rule 1.540 (citation omitted) ).


text:
    Brandon TECKLENBURG, Appellant, v. Erika KOUREMETIS, Appellee.
    Case No. 2D18-332
    District Court of Appeal of Florida, Second District.
    April 5, 2019
    J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg for Appellant.
    No appearance for Appellee.
    BY ORDER OF THE COURT:
   The motion for rehearing en banc is denied. The motion for written opinion is granted. The opinion dated January 23, 2019, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

PER CURIAM.

We affirm the order denying Brandon Tecklenburg's motion to determine confidentiality of court records. The trial court simply was not presented with evidence sufficient to satisfy the burden placed on Mr. Tecklenburg by Florida Rule of Judicial Administration 2.420. However, our affirmance does not preclude Mr. Tecklenburg from again seeking a determination of confidentiality provided that he sufficiently justifies the need for closure of the records. See Fla. R. Jud. Admin. 2.420(e)(1) (providing that a petition to determine the confidentiality of records must (1) "identify the particular court records or a portion of a record that the movant seeks to have determined as confidential with as much specificity as possible without revealing the information subject to the confidentiality determination"; (2) "specify the bases for determining that such court records are confidential without revealing confidential information"; and (3) "set forth the specific legal authority and any applicable legal standards for determining such court records to be confidential without revealing confidential information"); Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113, 118 (Fla. 1988) ("The burden of proof in [closure] proceedings shall always be on the party seeking closure."); BDO Seidman, LLP v. Banco Espirito Santo Int'l, Ltd., 201 So.3d 1, 2 (Fla. 3d DCA 2009) ("This ruling is without prejudice to BDO Seidman to file a new motion to seal ... if there is a good faith basis for asserting that any portion of the appendix qualifies for sealing ....").

Affirmed.

KHOUZAM, BLACK, and BADALAMENTI, JJ., Concur.


text:
    Barry K. GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4096
    District Court of Appeal of Florida, First District.
    April 5, 2019
    Barry K. Gordon, pro se, Appellant.
    Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Barry K. Gordon appeals an order denying his motion to correct illegal sentence. He argues that his fifteen-year sentence, imposed after his fourth violation of probation, exceeds the statutory maximum because time he spent on supervision should have been credited toward his sentence. Because the trial court properly denied relief, we affirm.

Gordon was charged with three counts of sexual battery on a child. For two of the counts, the child victim was under the age of twelve. She had reached the age of twelve when the third count of sexual battery was alleged to have occurred. One of the charged offenses was a first-degree felony punishable by up to 30 years in prison. The remaining two counts were capital offenses, punishable by life sentences.

Gordon initially entered a plea of not guilty. But before trial, he entered a negotiated plea of nolo contendere, whereby the State agreed to dismiss two of the sexual battery counts and reduce the third to the lesser-included offense of attempted capital sexual battery. The State also agreed to recommend a downward departure sentence of two years of sex offender community control, followed by eight years of sex offender probation. The trial court accepted the plea and sentenced Gordon consistent with the State's recommendation.

Two years later after his sentence was imposed, Gordon was charged with violating probation by failing to report to his probation officer as required and moving from his approved residence without his probation officer's consent. The trial court found him in violation of probation and reinstated probation.

Three years later, Gordon was charged with a second violation of probation for moving from his approved residence without his probation officer's consent and failing to comply with his curfew. He admitted the violations and probation was reinstated.

A year later, Gordon was charged with a third violation of probation for moving without his probation officer's consent. He admitted the violation and his probation was modified to include an additional six years of supervision.

Four years later, Gordon was charged with a fourth violation of probation based upon his arrest for aggravated assault with a deadly weapon and failure to comply with his curfew. After an evidentiary hearing, he was found in violation of probation. The court revoked probation and sentenced Gordon to fifteen years in prison. The order revoking probation and imposing sentence was affirmed on direct appeal. See Gordon v. State , 232 So.3d 325 (Fla. 1st DCA 2017) (Table).

Gordon then moved for post-conviction relief under rule 3.800(a), arguing that his sentence is illegal because his fifteen-year prison sentence, combined with the time he spent on supervision, exceeds the thirty-year statutory maximum for attempted capital sexual battery. He asserts that when the fifteen-year prison sentence is added to his original ten-year supervisory sentence and the six-year extension of his supervision, his sentence exceeds thirty-one years.

The trial court properly denied Gordon's motion. After supervision is revoked and a prison sentence is imposed, a defendant is not entitled to credit against his prison sentence for the time previously spent on supervision for the same offense. See State v. Cregan , 908 So.2d 387, 390-91 (Fla. 2005). An exception exists when a new term of supervision is imposed after a defendant violates a term of his supervision. In that case, an award of credit is required when necessary to ensure that the total term of supervision does not exceed the statutory maximum. See State v. Summers , 642 So.2d 742, 744 (Fla. 1994). However, when a defendant's supervision is revoked, and he is sentenced to prison with no supervision to follow, this exception does not apply. See Young v. State , 697 So.2d 75, 77-78 (Fla. 1997). This is true even if the new prison term combined with the previous supervisory sentence results in a total that exceeds the statutory maximum. See id. at 78.

Here, upon the fourth violation of Gordon's probation, he was sentenced to prison with no supervision to follow. Therefore, he was not entitled to credit for time served on supervision and the failure to award such credit does not render his sentence illegal. His fifteen-year sentence for attempted capital sexual battery is affirmed.

Lewis, Rowe, and Makar, JJ., concur.


author: LAMBERT, J.

text:
    Eric M. REDMOND, Appellant, v. FIRST GUARANTY MORTGAGE CORPORATION, Appellee.
    Case No. 5D18-2147
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 12, 2019 Rehearing Denied May 02, 2019
    Adam H. Sudbury and Melissa Alfonso, of Apellie Legal, Orlando, for Appellant.
    Matthew R. Feluren and Anthony R. Smith, of Sirote & Permutt, P.C., Fort Lauderdale, for Appellee.
   LAMBERT, J.

Eric M. Redmond timely appeals the trial court's denial of his Florida Rule of Civil Procedure 1.540(b) motion for relief from a final judgment of foreclosure. Concluding that the court reached the right result, albeit for the wrong reason, we affirm.

The appellee, First Guaranty Mortgage Corporation ("First Guaranty"), sued Redmond and his codefendant, Kimberly Thomas-Tornillo, in foreclosure because they failed to make the March 1, 2017 payment on their Note and Mortgage and all subsequent monthly payments. On August 24, 2017, Redmond was personally served with process at the address of the mortgaged property. He attended an unsuccessful conciliation conference but never filed an answer to the complaint. On October 25, 2017, First Guaranty moved for a clerk's default against Redmond for failing to respond to the complaint; and on October 30, 2017, the clerk of court entered the default. According to the certificate of service, a copy of the default was mailed to Redmond at the same address where he was served with process.

On March 2, 2018, First Guaranty and the codefendant entered into a joint stipulation for the entry of a consent final judgment of foreclosure with a sale date to be set no earlier than thirty-five days from the date of the judgment. Although Redmond did not execute the stipulation, a copy of this document was contemporaneously mailed to him. Thereafter, on April 11, 2018, the trial court entered a final judgment of foreclosure against Redmond and the codefendant, setting the foreclosure sale for May 29, 2018. A copy of the judgment was mailed to Redmond the following day.

Subsequently to the entry of the judgment, Redmond retained counsel; and on May 21, 2018, his counsel filed a motion for relief from final judgment pursuant to Florida Rule of Civil Procedure 1.540(b) with an embedded motion to vacate the clerk's default. Redmond explained in his supporting affidavit attached to the motion that he did not file an answer to the complaint because no one at the October 9, 2017 conciliation conference told him to do so because he had been in discussions with his mortgage servicer about a loan modification. Redmond also filed an emergency motion to cancel the May 29 foreclosure sale.

On Friday, May 25, 2018, Redmond noticed his motion to cancel the sale for hearing on the morning of May 29, 2018. On Sunday, May 27, First Guaranty's counsel cross-noticed Redmond's motion for relief from final judgment and to vacate the default for the same May 29 hearing. Although Redmond's counsel had reserved the time on May 29 for his hearing on the motion to cancel the sale, counsel did not attend the hearing. The trial court entered separate orders that day, denying both motions with the explanation that the denial was due to Redmond's counsel having "failed to appear for the hearing." Redmond's counsel filed an unsworn motion for rehearing of these orders, and thereafter filed a notice of appeal.

Redmond's sole argument on appeal regarding trial court error is that he was denied due process when his motion for relief from judgment was heard and denied without proper notice. He contends that First Guaranty's cross-notice of the hearing on the motion for relief from judgment sent on the Sunday afternoon before the Tuesday morning hearing was not reasonable notice for this substantive hearing. We agree. See Fla. R. Civ. P. 1.090(d) (requiring that a notice of hearing on a party's motion "shall be served a reasonable time before the time specified for the hearing"); Russ v. State , 622 So.2d 501, 501-02 (Fla. 5th DCA 1993) (finding that a contempt hearing held less than two days after service of the order to show cause violated the defendant's right to due process); Donner v. Smith , 517 So.2d 709, 711 (Fla. 4th DCA 1987) (determining that a notice mailed two days before the hearing was inadequate and a violation of due process). Additionally, as Monday, May 28, 2018, was the Memorial Day holiday, there were actually no business days between the Sunday afternoon notice of hearing and the Tuesday morning hearing.

We nevertheless affirm the trial court's order under the "Tipsy Coachman" doctrine, which allows an appellate court to affirm a trial court that reaches the right result, even for the wrong reason, where the record supports a legal basis for the order. See Robertson v. State , 829 So.2d 901, 906 (Fla. 2002). Because the trial court could have summarily denied Redmond's motion for relief from judgment without an evidentiary hearing, the insufficiency of the notice of hearing on the motion is neither critical nor dispositive.

To be entitled to a hearing on a rule 1.540(b) motion, the allegations in the motion and accompanying affidavits must show a "colorable entitlement to relief." See Smith v. Smith , 903 So.2d 1044, 1045 (Fla. 5th DCA 2005) ; Richards v. Crowder , 191 So.3d 524, 525 (Fla. 4th DCA 2016). Here, Redmond's motion for relief from the final judgment is predicated upon his argument that the clerk's default previously entered against him should be vacated. In order to vacate the default, Redmond had the burden of showing: (1) excusable neglect for failing to file a response to First Guaranty's complaint; (2) a meritorious defense to the opposing party's claims; and (3) due diligence in obtaining relief after learning of the default. See Szucs v. Qualico Dev., Inc. , 893 So.2d 708, 710 (Fla. 2d DCA 2005).

We conclude that Redmond's motion for relief from the final judgment was lacking for two reasons. First, Redmond failed to show excusable neglect. Neither his argument that no one at the October 9, 2017 conciliation conference told him that he still needed to respond to the complaint nor his belief that his attendance at this conference qualified as a response to the complaint is excusable neglect. See Joe-Lin, Inc. v. LRG Rest. Grp., Inc. , 696 So.2d 539, 541 (Fla. 5th DCA 1997) (holding that a defendant's failure to retain counsel or to understand the legal consequences of its inactions was not excusable neglect); Szucs , 893 So.2d at 710-11 (determining that a defendant's failure to answer a complaint because of confusion about the case due to plaintiff's "relative indifference" toward him in the litigation and the settlement negotiations regarding a codefendant was not excusable neglect). Nor was Redmond's communication with the loan servicer in an attempt to modify the loan excusable neglect. See Dage v. Deutsche Bank Nat'l Tr. Co. , 95 So.3d 1021, 1024 (Fla. 2d DCA 2012) (determining that appellants' motion and affidavit that discussed their efforts to secure a loan modification was not excusable neglect as no reason was given why they failed to file a response to the complaint).

Second, Redmond failed to show due diligence by waiting almost seven months from the time the default was mailed to him before moving to vacate the default and for relief from the final judgment. See Szucs , 893 So.2d at 711 (holding that filing motion four months after default is not due diligence in seeking to set aside default). Redmond also waited approximately six weeks before moving for relief from the final judgment that was entered against him based upon the default. See Hepburn v. All Am. Gen. Constr. Corp. , 954 So.2d 1250, 1252 (Fla. 4th DCA 2007) ("Absent competent substantial evidence of some exceptional circumstances explaining the delay, a six-week delay in filing a motion to vacate a default judgment after receiving a notice constitutes a lack of due diligence as a matter of law.").

Because the allegations in Redmond's motion and his supporting affidavit clearly did not establish either excusable neglect or due diligence, he was not entitled to relief, and the hearing on his motion, although insufficiently noticed, was not required. See Richards , 191 So.3d at 524-25. We therefore affirm the order denying Redmond's motion for relief from final judgment.

AFFIRMED.

COHEN and EISNAUGLE, JJ., concur.

      A conciliation conference is defined as a relatively unstructured method of dispute resolution in which a neutral third party meets with the parties in an attempt to help the parties explore and settle their differences. Conciliation , Black's Law Dictionary (10th ed. 2014). There is no indication in our limited record whether the trial court ordered the parties to attend the conciliation conference or if they attended this conference voluntarily.

      Although not fully explained in our record, it appears that the foreclosure sale set for May 29 did not take place.

      Redmond raised one other argument in his initial brief. He contended that this court should have granted his motion to relinquish jurisdiction to the trial court to allow that court to rule on his timely filed motion for rehearing. We disagree. Florida Rule of Civil Procedure 1.530 permits courts to rehear matters only after entry of a "judgment." An order denying a rule 1.540 motion for relief from judgment is not a "judgment" as contemplated under rule 1.530. See Helmich v. Wells Fargo Bank, N.A. , 136 So.3d 763, 765 (Fla. 1st DCA 2014). Accordingly, Redmond's motion for rehearing after such an order was unauthorized. See Catalano v. Catalano , 516 So.2d 77, 77 (Fla. 5th DCA 1987) ; Francisco v. Victoria Marine Shipping, Inc. , 486 So.2d 1386, 1387 (Fla. 3d DCA 1986) ; see also In re Amendments to the Fla. Rules of Appellate Procedure , 2 So.3d 89, 93 (Fla. 2008) (recognizing the "unique nature" of an order entered on a rule 1.540 motion and clarifying that motions for rehearing directed to this type of order are unauthorized).


text:
    Latwain MCLAREN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-601
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    Latwain McLaren, Live Oak, pro se.
    Ashley Moody, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 30, 2018 order denying Petitioner's pro se motion for postconviction relief, filed in Case No. 2015-CF-406, Fifth Judicial Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, WALLIS and HARRIS, JJ., concur.


text:
    Bryan Richard CHERRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3779
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    Bryan Richard Cherry, Bristol, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant seeks review of an order dismissing his Florida Rule of Criminal Procedure 3.800 motion to correct illegal sentence. Because the trial court correctly determined Appellant's claims are not cognizable under rule 3.800, we affirm. However, our affirmance is without prejudice to Appellant timely filing a properly sworn motion pursuant to Florida Rule of Criminal Procedure 3.850, if he can do so in good faith.

AFFIRMED.

COHEN, EISNAUGLE, and SASSO, JJ., concur.


author: GROSSHANS, J.

text:
    Arthur SLINGER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3829
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    James S. Purdy, Public Defender, Brittany N. O'Neil, and Edward J. Weiss, Assistant Public Defenders, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   GROSSHANS, J.

Arthur Slinger (the defendant) appeals his judgment and sentence entered by the trial court after a jury found him guilty of sexual battery and lewd or lascivious molestation. We affirm the judgment, but we reverse the sentence and remand for resentencing.

At the conclusion of the defendant's initial trial, a jury found him guilty of three crimes, including sexual battery and lewd or lascivious molestation, and the trial court sentenced him after ordering and reviewing a presentence investigation report (PSI). The defendant appealed, and this court reversed his judgment and sentence and remanded for a new trial, thereby vacating all of his convictions. On remand, a jury again found him guilty of sexual battery and lewd or lascivious molestation. After the verdict was rendered, the defendant requested a new PSI. Upon consideration, the trial court responded:

Okay. We're going to set a sentencing date. It's one of -- this is kind of a hybrid, there was a -- just so you know now, there was a prior trial some several years ago. And ... it had to come back for legal reasons. And I -- I've retried the case, as it were, he'[s] been previously convicted. So, for the last three years, he's been in custody.
So, a PSI is a book report about a person's life. It's reserved for people who have no prior or scorable prior felony offenses or for ... some persons who are habitual felony offenders who have awful records. They can get a PSI. In this situation, we're not going to order a new PSI.

Prior to the sentencing hearing, the court reiterated that no PSI was ordered because "none was entitled." The trial court then sentenced the defendant to thirty years in prison, and this appeal timely followed.

On appeal, the defendant argues that the trial court erred in sentencing him without the benefit of a new PSI. We agree. Whether the trial court properly declined to order and consider a PSI involves a matter of law and is subject to de novo review. See Levandoski v. State, 245 So.3d 643, 646 (Fla. 2018).

Rule 3.710 of the Florida Rules of Criminal Procedure instructs, in pertinent part, "[N]o sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense ... until after such investigation has first been made and the recommendations of the Department of Corrections considered by the sentencing judge." Fla. R. Crim. P. 3.710(a) (emphasis added).

The plain language of the rule clearly mandates that the trial court order a PSI prior to sentencing a first felony offender to incarceration. See Peer v. State, 983 So.2d 34, 35 (Fla. 1st DCA 2008). Here, following the initial trial, this court reversed and vacated the three offenses constituting the defendant's only felony convictions. Therefore, the convictions after retrial are the defendant's first felony offenses for the purposes of this rule, requiring the court to order and consider a PSI. The court's refusal to do so was error.

The State argues that any error was harmless as a new PSI would not have provided the trial court any additional information. We are not persuaded by this argument as rule 3.710 expressly provides that the trial court must also consider the PSI before imposing a sentence. Fla. R. Crim. P. 3.710(a). The record does not reveal that the trial court considered or reviewed the report; in fact, the trial court repeatedly indicated that the defendant was not entitled to a PSI. Therefore, we cannot hold that the error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).

Accordingly, we reverse and remand to the trial court for resentencing on all counts after the preparation and consideration of a PSI.

REVERSED and REMANDED for further proceedings.

HARRIS, J., concurs.

ORFINGER, J., concurs in result only with opinion.

ORFINGER, J., concurring in result with opinion.

I concur in the affirmance of Mr. Slinger's conviction. An update to the presentence investigation ("PSI") should have been ordered. However, because Mr. Slinger had been in prison since his first conviction, I believe the failure to update the PSI was harmless. Nonetheless, I agree that resentencing is appropriate because there is no indication the trial judge considered the PSI.

      The defendant had no prior felony convictions.

      We reject without comment the defendant's challenge to his judgment. We do not reach his additional challenge to the sentence.


text:
    Kenel RENARD, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-774
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    Kenel Renard, Milton, pro se.
    Ashley Moody, Attorney General, Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 17, 2018 order denying Petitioner's pro se motion for postconviction relief, filed in Case No. 2012-CF-012460-B-O, Ninth Judicial Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

BERGER, LAMBERT and HARRIS, JJ., concur.


text:
    Nathan GORZELANCZYK, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-410
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    W. Charles Fletcher, Law Office of W. Charles Fletcher, Jacksonville, for Petitioner.
    Ashley Moody, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 13, 2017 judgments and sentences rendered in Case Nos. 2016-CF-100692, 2016-CF-103880, 2016-CF-103808, 2016-CF-103807, and 2016-CF-103763, in the Seventh Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WALLIS, HARRIS and SASSO, JJ., concur.


text:
    Barry L. FREEMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3187
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
    ON CONCESSION OF ERROR
   PER CURIAM.

Barry Freeman appeared before the trial court for a nonjury trial pursuant to section 394.918(4), Florida Statutes (2018), to determine whether he should be released from involuntary civil commitment. Under this statute, the State bears the burden at trial of proving by clear and convincing evidence that the committed person's mental condition remains such that it is not safe for him or her to be at large and that, if released, the person is likely to engage in acts of sexual violence.

Following trial, the court rendered the order now on appeal titled "Order Finding No Probable Cause On Annual Review." Freeman timely appeals, arguing that the parties were not before the court for a probable cause hearing and that the trial court failed to address and resolve the sole issue of whether the State met its evidentiary burden of proof under section 394.918(4), precluding his release from involuntary civil commitment. Freeman requests that we reverse the order and remand the case for the trial court to determine this issue. The State has commendably conceded error and has agreed with the suggested remand. We also agree.

Accordingly, we reverse the present order and remand for the trial court to determine whether the State met its burden of proof under section 394.918(4) regarding whether Freeman should be released from involuntary civil commitment and thereafter to enter an appropriate order.

REVERSED and REMANDED for further proceedings consistent with this opinion.

LAMBERT, EDWARDS, and EISNAUGLE, JJ., concur.


text:
    Jose Ramon LOPEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2679
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    Jose Ramon Lopez, Crawfordville, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jose Ramon Lopez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in all respects except as to ground two. We reverse the summary denial of ground two and remand for an evidentiary hearing as the claim was facially sufficient and the record does not conclusively refute it. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996) ) ).

AFFIRMED in part, REVERSED in part, and REMANDED.

WALLIS, GROSSHANS and SASSO, JJ., concur.


author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. Dion Renoldo WILSON, Appellee.
    Case No. 5D18-2117
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Scott G. Hubbard, Assistant Public Defender, Daytona Beach, for Appellee.
   ORFINGER, J.

Following a traffic stop, Dion Renoldo Wilson was arrested and charged with trafficking in a controlled substance and possession of cannabis with intent to sell. Wilson filed a motion to suppress, arguing that law enforcement had no probable cause to conduct a traffic stop for failure to maintain a single lane. In an unelaborated order, the trial court granted the motion and the State now appeals. We reverse.

Deputy Sheriff Jeffrey Payne was the only witness at the suppression hearing. Deputy Payne testified that he was driving westbound on Americana Boulevard, a four-lane highway. He observed a silver SUV about two car lengths ahead of him, also traveling westbound on Americana. The silver SUV then "drifted over the dotted lane divider causing a vehicle to the right of us to ... have to brake" to avoid a collision. Deputy Payne ultimately stopped the silver SUV, which Wilson was driving. Wilson only challenged the probable cause for the traffic stop at the suppression hearing.

When reviewing a suppression order, we give deference to the trial court's historical facts so long as they are supported by competent, substantial evidence, but we review de novo the trial court's application of law to those facts. Patrick v. State, 104 So.3d 1046, 1059 (Fla. 2012). A traffic stop is reasonable and constitutionally valid when "a police officer has probable cause to believe a traffic violation has occurred." Hurd v. State, 958 So.2d 600, 602 (Fla. 4th DCA 2007). In determining whether a traffic stop is constitutional, an objective test is used, asking only whether probable cause for the stop existed and ignoring the officer's subjective motivation or intention. "The test is whether a police officer could have stopped the vehicle for a traffic violation." Id.

The statute, relating to the operation of a vehicle within a single lane, mandates, in pertinent part, that "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." § 316.089(1), Fla. Stat. (2018) (emphasis added). The failure to maintain a single lane alone cannot establish probable cause when the action is done safely. See Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002) (holding that traffic stop was unlawful where arresting officer's testimony failed to establish that defendant's failure to maintain single lane endangered defendant or any other traffic and there was no testimony that defendant was intoxicated or otherwise impaired nor driving erratically). Nevertheless, a stop for failure to maintain a single lane may be justified when the vehicle is being operated in an unusual manner. See Yanes v. State, 877 So.2d 25, 26-27 (Fla. 5th DCA 2004) (finding probable cause to support stop and concluding that where officer observes driver cross fog line on right side of road three times "there was evidence that [driver] deviated from his lane by more than what was practicable," which was "a violation of the statute, irrespective of whether anyone is endangered"); accord Williamson v. Dep't of High. Saf. & Motor Veh., 933 So.2d 665 (Fla. 1st DCA 2006) (holding that evidence supported officer's stop for failing to maintain single lane because record clearly established that defendant put other vehicle in danger whether or not other vehicle's driver knew it). Here, Deputy Payne's uncontradicted testimony was that Wilson drifted from his lane of traffic and an adjacent vehicle had to brake suddenly to avoid a collision. Hence, there was probable cause to stop Wilson's vehicle.

For these reasons, we reverse the suppression order and remand this case for further proceedings consistent with this opinion.

REVERSED and REMANDED.

LAMBERT and SASSO, JJ., concur.


text:
    STATE of Florida, Appellant, v. Willie E. GRIFFIN, Jr., Appellee.
    Case No. 5D18-1781
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellee.
   GROSSHANS, J.

The State appeals the final order of the trial court granting the defendant's motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We reverse and remand for further proceedings.

A seventeen-year-old minor female gave birth to a child who was diagnosed with a chromosomal abnormality indicative of incest. Upon learning of the birth defect, the minor informed the hospital's social worker that she had sexual intercourse with her biological father (the defendant) without his knowledge.

Subsequently, law enforcement interviewed the minor and, after being informed of the penalty for perjury, she reiterated that the defendant had no knowledge of the singular incident of intercourse. She provided additional details in the interview, revealing that she went into the defendant's room while he was sleeping and engaged in a sexual act with him without his knowledge or consent. The defendant also gave a statement to law enforcement. In the statement, he disavowed any knowledge of the incident and indicated that he had been on psychotropic medication at that time.

Ultimately, the State charged the defendant with one count of sexual battery on a child between the ages of twelve and eighteen and one count of incest. The defendant filed a motion to dismiss, arguing that the State could not establish a prima facie case of guilt because the minor's testimony indicated that he was physically helpless throughout the intercourse and, therefore, could not "knowingly" or "willfully" commit the act. Though it did not file a traverse, the State acknowledged the minor's statement that the defendant was unconscious. However, it argued that there was clear evidence of sexual intercourse between the defendant and his daughter, and the jury could choose to disregard her explanation of how that intercourse occurred.

After hearing argument from both sides, the trial court granted the defendant's motion. Although expressing skepticism as to the minor's description of the events, the trial court found that there were no disputed facts and that the undisputed facts did not give rise to an offense. The State timely appeals, arguing that the trial court erred in dismissing the charges. We agree.

Our review of an order granting a motion to dismiss is de novo. See Martin v. State, 207 So.3d 310, 318 (Fla. 5th DCA 2016). When considering a defendant's motion to dismiss criminal charges, the trial court must determine whether the State can establish a prima facie case of guilt and must resolve all questions and inferences from the facts in favor of the State. See Boler v. State, 678 So.2d 319, 323 (Fla. 1996).

Sexual battery and incest are general intent crimes. See § 794.011(8)(b) ; § 826.04 ; Olenchak v. State, 183 So.3d 1227, 1229 (Fla. 4th DCA 2016) ; see also McCaskill v.State, 55 Fla. 117, 45 So. 843, 843-44 (1908). Thus, the State is not required to prove that the defendant acted with a specific intent. See Olenchak, 183 So.3d at 1229.

In this case, there is indisputable evidence of sexual intercourse between the defendant and his minor daughter as the act resulted in a child. A jury could infer the necessary general intent from these facts and, thus, the State established a prima facie case of guilt for the crimes charged.

Certainly a jury may choose to believe the defendant was physically helpless and unable to knowingly or willingly engage in intercourse with his daughter. Conversely, the jury may disbelieve part or all of the minor's testimony and find that the State has met its burden based upon the evidence. However, whether the defendant knowingly or willingly committed the sexual act is a question of general intent to be determined by the trier of fact and, thus, "not an issue to be decided by the trial court on a [r]ule 3.190(c)(4) motion to dismiss." State v. Booker, 529 So.2d 1239, 1240 (Fla. 1st DCA 1988).

For the reasons above, we reverse the order dismissing the charges and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

ORFINGER and HARRIS, JJ., concur.

      See § 794.011(8)(b), Fla. Stat. (2017) ("Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who: ... (b) Engages in any act with that person while the person is 12 years of age or older but younger than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree.").

      See § 826.04, Fla. Stat. (2017) ("Whoever knowingly marries or has sexual intercourse with a person to whom he or she is related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece, commits incest, which constitutes a felony of the third degree.").


author: COHEN, J.

text:
    Reginald O. JENKINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1490
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    Reginald O. Jenkins, Madison, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

In this appeal, there is a total disconnect between Reginald O. Jenkins's notice of appeal and the subject matter of his initial brief. We dismiss for lack of jurisdiction.

In 1992, Jenkins was convicted and sentenced to life in prison with a mandatory minimum sentence of twenty-five years, which this Court affirmed. See Jenkins v. State, 634 So. 2d 638 (Fla. 5th DCA 1994). Jenkins proceeded to file several successive pro se motions attacking his sentence. In 2017, he filed another motion for postconviction relief alleging newly discovered evidence. Following an evidentiary hearing, the lower court entered an order denying his motion on February 19, 2018. Further, because of Jenkins's extensive history of pro se filings, the lower court, after issuing a show cause order, entered an order prohibiting Jenkins from further pro se filings on April 9. On May 2, Jenkins filed a notice of appeal of the April 9 order. However, Jenkins's initial brief is entirely directed at the February 19 denial of his motion for postconviction relief.

This Court "may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties." Fla. R. App. P. 9.040(d). We may generally disregard the procedural error of misidentifying the order under appeal. Fla. Sugar Cane League, Inc. v. Fla. Dep't of Envtl. Reg., 602 So.2d 544, 545 (Fla. 1st DCA 1991) ("The identification of the wrong order in a notice of appeal, without more, is not grounds for dismissal." (citations omitted) ).

If this Court ignores the misnomer and treats Jenkins's notice of appeal consistent with the substance of his initial brief, Jenkins untimely appealed the February 19 order denying postconviction relief, and this Court does not have jurisdiction. Pursuant to Florida Rule of Appellate Procedure 9.110(b), to invoke the jurisdiction of this Court, a party must file a notice of appeal "within 30 days of the rendition of the order to be reviewed." Thus, to be timely, Jenkins needed to appeal the February 19 order by March 21; Jenkins filed his notice of appeal on May 2. "The failure to file a notice of appeal within the time limits 'constitutes an irremediable jurisdictional defect.' " Tedder v. Estate of Tedder, 200 So.3d 123, 124 (Fla. 5th DCA 2016) (quoting Bak v. Bak, 110 So.3d 523, 524 (Fla. 4th DCA 2013) ).

On the other hand, if Jenkins in fact desired to appeal the April 9 order prohibiting further pro se filings, his appeal was timely. Nevertheless, Jenkins neglected to mention that order anywhere in his initial brief. Having failed to do so, he waived any argument regarding the order. E.g., Hoskins v. State, 75 So.3d 250, 257 (Fla. 2011) (noting that argument not raised in the initial brief was barred on appeal).

Our dilemma is determining how to treat Jenkins's appeal. We conclude that Jenkins sought, as stated forcefully in his brief, review of the February 19 denial of his motion for postconviction relief. That appeal, untimely filed, is dismissed for lack of jurisdiction.

DISMISSED.

EVANDER, C.J. and SASSO, J., concur.


text:
    Christopher MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3031
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Christopher Mosley, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Ray, Osterhaus, and Winokur, JJ., concur.


text:
    Jakobie MILTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-900
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Jakobie Milton, pro se; Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Jakobie Milton appeals his judgment and sentence after entering a nolo contendere plea to charges of possession of a firearm by a felon and resisting an officer without violence. Milton's attorney requested appointment of an expert, pursuant to Florida Rule of Criminal Procedure 3.210(b), to determine Milton's competency to proceed to trial. Finding reasonable grounds in support of the motion, the trial court appointed an expert. Milton underwent a psychological evaluation, which concluded he was competent, albeit marginally, to proceed. Defense counsel orally advised the trial court of the evaluation findings.

Milton accepted the State's plea offer and pleaded no contest to the charges. At the hearing, the trial court noted the evaluation ultimately found Milton competent to proceed. But, the trial court accepted Milton's plea and imposed sentence without entering an order determining that Milton was competent to proceed. The trial court's failure to enter a written order requires reversal. Sheheane v. State , 228 So.3d 1178, 1180 (Fla. 1st DCA 2017).

On remand, the trial court must address competency. Id. at 1181. If the evidence that existed previously supports a finding that the defendant was competent at the time of trial, the trial court may decide competence, nunc pro tunc , with no change in the judgment. Id. ; see also Brooks v. State , 180 So.3d 1094, 1096 (Fla. 1st DCA 2015). However, if the trial court is unable to make a retroactive competency determination or if it finds Milton was incompetent, it must hold a new trial, as long as Milton is and remains competent on remand. Sheheane , 228 So.3d at 1181 ; Zern v. State , 191 So.3d 962, 965 (Fla. 1st DCA 2016).

REVERSED and REMANDED .

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


text:
    Kevin Marcus BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3773
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges the trial court's order modifying his probation because he contends the State failed to put forward evidence that he willfully violated two conditions. We affirm the trial court's finding that appellant willfully violated his probation by ignoring his financial obligation.

However, we find the trial court erred in finding appellant willfully violated the condition of his probation requiring him to maintain either full-time employment or full-time education. Such a provision is invalid as a matter of law unless it provides a "good faith effort" exception. See Aviles v. State , 165 So.3d 841, 843 (Fla. 1st DCA 2015) (holding that a full-time employment condition of probation was invalid because it did not contain an exception if factors outside of the probationer's control could prevent completion of the requirement); see also Silas v. State , 208 So.3d 1289, 1290 (Fla. 1st DCA 2017) (holding that a condition of probation requiring a probationer to obtain a GED was invalid because it did not provide a "good faith effort" exception).

Accordingly, we AFFIRM the trial court's order modifying appellant's probation but REMAND for entry of a corrected modification order. See Redd v. State , 204 So.3d 558, 559 (Fla. 4th DCA 2016).

Wolf, Osterhaus, and Jay, JJ., concur.


text:
    Theron SAPP, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2399
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Theron Sapp, pro se, Appellant.
    Ashley Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Theron Sapp was convicted in 2006 of aggravated battery on a law enforcement officer. Because the victim was an officer, the aggravated battery charge was a first-degree felony. § 784.07(2)(d), Fla. Stat. And because Sapp was a habitual felony offender, the trial court could sentence him "for life." § 775.084(4)(a)1., Fla. Stat. The trial court sentenced Sapp to forty years with a thirty-year mandatory for being a prison releasee reoffender. See § 775.082(9)(a)3., Fla. Stat. Sapp filed a motion to correct illegal sentence arguing that, although he could be sentenced to life imprisonment as a habitual felony offender, he could not be sentenced to forty years. Like the trial court, we disagree.

The trial court "may sentence" a habitual felony offender convicted "of a life felony or a felony of the first degree, for life." § 775.084(4)(a), Fla. Stat. As Sapp could have been sentenced to life imprisonment, he likewise could be sentenced to forty years imprisonment. See Guy v. State , 632 So.2d 1085, 1086 (Fla. 5th DCA 1994) (interpreting a habitualization provision permitting a sentence "for life" and concluding that "the trial court in this case had the discretion to impose any sentence up to life imprisonment for appellant's commission of the first degree felony"). Accordingly, we AFFIRM the order denying Sapp's motion to correct illegal sentence.

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

      We reject without further comment Sapp's argument regarding the other ground raised in his motion.


author: Wolf, J.

text:
    Troy Gregory KING, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1227
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Frank X. Moehrle and Amanda Stokes, Assistant Attorneys General, Tallahassee, for Appellee.
   Wolf, J.

Appellant challenges the trial court's order that found him in violation of three conditions of his probation and revoked but reinstated probation with modified terms. We agree with appellant that there was no competent, substantial evidence to support the trial court's findings that appellant willfully and substantially violated these conditions and reverse.

First, the court found appellant willfully and substantially violated the condition of his probation that required him to wear an electronic monitoring device. The State presented evidence that on one occasion, appellant moved away from the device for approximately five minutes before returning to it. He told his probation officer that he left the device on the charger in the welcome center of the homeless shelter where he resided and walked into the cafeteria. When appellant was contacted by the monitoring company, he told them what happened. The State failed to present any evidence that appellant intentionally violated the electronic monitoring rules. Evidence that a probationer walked away from a monitoring device for a brief period of time is not competent, substantial evidence of a substantial and willful violation. See Channell v. State , 200 So.3d 247, 248 (Fla. 1st DCA 2016) ; Comolli v. State , 152 So.3d 119, 120 (Fla. 2d DCA 2014) ; Correa v. State , 43 So.3d 738, 745 (Fla. 2d DCA 2010). Thus, we reverse this finding.

Second, the court found appellant willfully and substantially violated the condition of his probation that he complete sex offender treatment. Appellant testified that he tried to attend his first appointment for his initial assessment, but he was told it would cost $ 90. He tried to make a partial payment of $ 40, which was all the money that he had, but he was told he had to pay the full amount up front. Appellant stated he did not bother going the next time he had an appointment because he had not been able to save up any more money. He stated he was homeless and jobless, despite actively searching for employment.

The probation officer testified and confirmed that appellant would have been required to pay $ 90 for his initial assessment. To her knowledge, the money was due up front and partial payments were not accepted. Both times appellant missed an appointment, he told her it was because he could not afford the fee. She stated appellant was homeless and unemployed, though he had completed a referral to an employment specialist and had completed job search logs on his own, documenting that he was searching for a job.

" 'In probation revocation proceedings for failure to pay a monetary obligation as a condition of probation, the trial court must find that the defendant's failure to pay was willful-i.e., the defendant has, or has had, the ability to pay the obligation and purposefully did not do so.' " Aviles v. State , 165 So.3d 841, 843 (Fla. 1st DCA 2015) (quoting Del Valle v. State , 80 So.3d 999, 1012 (Fla. 2011) ). The initial burden is on the State to prove ability to pay, and once it does so, the burden shifts to the defendant to prove inability to pay. Del Valle , 80 So.3d at 1013.

The failure to attend sex offender treatment is not willful if the probationer failed to attend due to a lack of ability to pay. See Selig v. State , 112 So.3d 746, 750 (Fla. 2d DCA 2013) (reversing a finding of a violation of probation for failure to attend sex offender treatment in part because it was clear from the record that the probationer lacked the ability to pay for the sessions, and the record was "not clear whether ... his lack of financial ability to pay the provider prevented his receiving the treatment"). Cf . Adams v. State , 979 So.2d 921, 928 (Fla. 2008) (affirming finding of violation of probation for failure to attend sex offender treatment where there was evidence in the record supporting the trial court's finding that the defendant had the ability to pay).

Because it was undisputed that appellant failed to attend sex offender treatment due to his lack of ability to pay, his failure to attend treatment was not willful. Thus, we reverse this finding.

Third, the court found appellant was in violation of the condition of his probation requiring him to pay $ 4.50 a day for the cost of electronic monitoring, for which he was in arrears of over $ 800. Consistent with our finding above, the State failed to put forth any evidence that appellant had the ability to pay a $ 4.50 daily monitoring cost. Thus, this finding was not supported by competent, substantial evidence.

Because the record fails to support a finding of a willful and substantial violation of probation, we REVERSE the order revoking appellant's probation.

Winokur, and Jay, JJ., concur.


text:
    Joseph Luis LEVIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5129
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Joseph Luis Levin, pro se, Appellant.
    Ashley Moody, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The Appellant, Joseph Luis Levin, appeals from an order denying his postconviction motions brought pursuant to Florida Rule of Criminal Procedure 3.850. We reverse as to the denial of the two claims discussed below. As to all other claims, we affirm.

On March 21, 2015, the Appellant pled guilty to six counts of lewd or lascivious battery, one count of soliciting a child via computer, and one count of traveling to meet a minor to do unlawful acts. On July 9, 2015, he was sentenced to a total of 44 years in prison followed by 10 years on sex offender probation.

He subsequently filed a motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(l ). The trial court appointed counsel, conducted an evidentiary hearing, and denied the motion on the merits. This Court affirmed on direct appeal. See Levin v. State , 195 So.3d 375 (Fla. 1st DCA 2016) (Table). In 2017, the Appellant filed a motion to correct illegal sentence, which was summarily denied. This Court affirmed the order of denial. See Levin v. State , 226 So.3d 819 (Fla. 1st DCA 2017) (Table).

That same year, the Appellant filed a timely rule 3.850 motion and a series of amended or supplemental rule 3.850 motions. In two of his claims, he argued that his attorney was ineffective for failing to investigate his competency and seek a competency hearing before he entered a guilty plea. He alleged that in March or April of 2014, he told counsel that he had been involved in clandestine law enforcement operations in connection with a phantom hacker. He asserted that counsel became concerned about his mental health and suggested that he be evaluated by an expert. He claimed that she did not seek a competency evaluation until May of 2015, after he had already pled guilty. He alleged that the expert who evaluated him determined that he suffered from severe delusional psychosis and recommended that counsel withdraw his guilty plea. He alleged that counsel rejected this advice and proceeded to sentencing. He claimed that since his sentencing in this case, he has been diagnosed with bipolar disorder and schizophrenia, and he has been declared incompetent in another case. These allegations state a facially sufficient and cognizable claim of ineffective assistance of counsel. See Akins v. State , 247 So.3d 687, 689 (Fla. 1st DCA 2018) ; Thompson v. State , 88 So.3d 312, 319 (Fla. 4th DCA 2012).

The trial court summarily denied these claims on the basis that they were or could have been raised in his two prior appeals. There were no documents attached to support the application of a procedural bar. This was error. See George v. State , 710 So.2d 146, 147 (Fla. 1st DCA 1998). Furthermore, insofar as the trial court denied the claims because they could have been raised in his previous proceedings, this was also erroneous. See Hutchinson v. State , 29 So.3d 1228, 1230 (Fla. 3d DCA 2010) ("Rule 3.800 is not the proper remedy where issues of waiver, effectiveness of defense counsel, or voluntariness of a plea are involved."); Dooley v. State , 789 So.2d 1082, 1083-85 (Fla. 1st DCA 2001) (providing that because the claim raised in the defendant's rule 3.850 motion was neither raised in his previous motion to withdraw plea nor required to be raised in that motion, it was not procedurally barred).

In response to this Court's Toler order, the State concedes that the record does not support the trial court's conclusion that these claims are procedurally barred. Under these circumstances, we reverse the denial of the specified claims and remand for further proceedings. If the trial court should again summarily deny these claims, it should attach records that either support the application of a procedural bar or conclusively refute the claims. Otherwise, the trial court should conduct an evidentiary hearing.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

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

      Toler v. State , 493 So.2d 489 (Fla. 1st DCA 1986) (concluding that in a postconviction appeal, a response should be requested from the state if it appears that the trial court's order should be reversed).