author: Gerber, C.J.

text:
    Kenny Fabra AYOS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-3840 4D17-3857
    District Court of Appeal of Florida, Fourth District.
    [June 19, 2019]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
    ON APPELLANT'S MOTION FOR REHEARING, REHEARING EN BANC, AND/OR CLARIFICATION
   Gerber, C.J.

We grant appellant's motion for rehearing and clarification, and deny appellant's motion for rehearing en banc. We substitute the following opinion for the opinion which we issued on March 20, 2019.

The defendant appeals from his conviction and sentence following his no contest plea to crimes of a sexual and non-sexual nature committed against a former romantic partner. The defendant raises three properly preserved arguments: (1) his scoresheet should not have included 160 sexual penetration points, because he pled to an information which charged "union or penetration" in the alternative, and at no time during the plea did he admit that penetration occurred; (2) if defense counsel, by stipulating to a factual basis at the time of the plea, implicitly stipulated to a penetration finding, then such stipulation was insufficient to waive the defendant's right to a jury determination of penetration; and (3) the trial court erred in denying the defendant's Florida Rule of Criminal Procedure 3.800(b)(2) motion, which challenged the legality of various costs. On the first two arguments, we affirm. On the third argument, we agree that all but one of the challenged costs require reversal and correction of the judgment.

We will begin by addressing the first two arguments on the penetration issue, before addressing the third argument on the costs issue.

The Penetration Issue

As stated above, defense counsel stipulated to a factual basis at the time of the plea, thereby implicitly stipulating to a penetration finding, which was reflected in the scoresheet's inclusion of 160 sexual penetration points. At no point during the plea colloquy, or the sentencing hearing which immediately followed, did the defendant object to his scoresheet's inclusion of 160 sexual penetration points, in contrast to the information which charged "union or penetration" in the alternative. Further, during the sentencing hearing, the victim testified on direct examination, without objection, that the defendant put his penis in her vagina, and that the defendant put his tongue in her vagina, without her consent in either instance. Defense counsel's cross-examination of the victim also acknowledged that one count was for "the penis and vagina penetration" and the other count was for "[the defendant's] mouth to [the victim's] vagina." At no point did defense counsel challenge the victim on any alleged lack of penetration in either instance. Instead, defense counsel's main argument sought a downward departure or other mitigation because the defendant thought the sexual encounter was consensual.

Dames v. State , 186 So. 3d 593 (Fla. 4th DCA 2016), although factually distinguishable, is illustrative here. In Dames , the state charged the defendant with lewd or lascivious battery and child abuse. Id. at 594. Pursuant to a plea bargain, which greatly benefitted the defendant, the state dropped the lewd and lascivious battery charge. Id. In exchange, the defendant pled guilty to child abuse. Id. The defendant also acknowledged that he was originally charged with lewd or lascivious battery and that he scored beyond the statutory maximum for child abuse. Id.

During the plea colloquy, the trial court explained that a child abuse charge, involving a sexual penetration allegation, carried a sixty-six month prison sentence. Id. at 594-95. Although the defendant never expressly admitted any facts, he never contradicted the trial court's references to sexual penetration. Id. Moreover, the defendant did not object to his scoresheet, which included victim injury points for penetration. Id.

Later, the defendant violated probation and was sentenced based upon the original scoresheet, which included the penetration points. Id. at 595. On appeal, the defendant argued that the trial court erred in assessing penetration points because he never admitted penetration during his guilty plea and penetration was not an element of child abuse, the charge to which he pled. Id.

We concluded the defendant's argument lacked merit, reasoning:

[A]t the initial sentencing hearing, [the defendant], through counsel, stated he had no objection or correction to the criminal punishment code scoresheet that scored eighty points for penetration and reflected a minimum sentence of 66.9 months.
The trial court referred to [the defendant's] crime as "the charge of child abuse when there's sexual penetration." At the plea colloquy that followed, [the defendant] acknowledged that he understood that the bottom of the sentencing guidelines called for him to go to prison for over five years. At the time of accepting the State's generous plea bargain, [the defendant] was not left with the false impression that the maximum sentence he could receive was five years' imprisonment. In fact, the record demonstrates that [the defendant] affirmatively agreed to the inclusion of penetration points on the scoresheet and that this enhancement was part of the bargain that allowed him to plea down to the child abuse charge, albeit with sex offender probation conditions which [the defendant] proceeded to violate.

Id.

Dames differs from the instant case insofar as Dames involved a beneficial plea bargain, whereas the instant case involved an open plea seeking a downward departure. Nevertheless, the plea colloquy and sentencing hearing in both cases were markedly similar. Here, both parties stipulated to a factual basis for the crimes, and neither party objected when the circuit court found a factual basis based upon its independent review of the probable cause affidavits and arrest reports. The defendant also did not object to the scoresheet's penetration points assessment. Further, the record reflected repeated, and undisputed, references to penetration. The victim testified at the sentencing hearing that the defendant penetrated her with his penis and tongue. Defense counsel's cross-examination of the victim did not dispute the penetration allegation. On the contrary, defense counsel's questions presupposed that penetration occurred. Finally, the defendant did not dispute any aspect of the victim's testimony. Rather, the defendant's primary argument was that the sexual contact was consensual.

At worst, if any error occurred, the error was harmless. To support the harmless error argument, the state relies on Galindez v. State , 955 So. 2d 517 (Fla. 2007). Although Galindez is not on point procedurally, its reasoning to support a harmless error conclusion is persuasive. To explain Galindez 's persuasiveness, we will examine the case in greater detail.

In Galindez , the defendant was convicted of two counts of lewd and lascivious assault on a minor and one count of child abuse by impregnating the victim. Id. at 519-20. The trial court ultimately sentenced the defendant using a scoresheet reflecting the trial court's determination that eighty victim injury points should be assessed for penetration. Id. at 520. After the defendant was sentenced, the United States Supreme Court decided Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Galindez , 955 So. 2d at 519. Relying on Apprendi , the defendant filed a Florida Rule of Criminal Procedure 3.800(b) motion, arguing that the trial court's assessment of eighty victim injury points was improper on a count alleging that the defendant "plac[ed] his penis in union with ... and/or penetrat[ed] the vagina of [the victim] with his penis." Id. at 523 (emphasis added). According to the defendant, because the count was pled in the alternative, and because the jury did not specifically find that penetration occurred, the trial court could assess only forty victim injury points. Id.

The Florida Supreme Court upheld the defendant's sentence, reasoning:

[A]ssuming Apprendi applies to [the defendant's] [ ]sentencing, for purposes of our harmless error analysis the issue is whether the failure to have the jury make the victim injury finding ... contributed to the conviction or sentence - in other words, whether the record demonstrates beyond a reasonable doubt that a rational jury would have found penetration.
At trial the young victim, then pregnant by [the defendant], testified that she and [the defendant] engaged in sexual intercourse on multiple occasions over a period of several months. [The defendant's] confession confirming these facts, including his admission that they repeatedly had sexual intercourse, was admitted at trial. Finally, [the defendant's] defense at trial was that the twelve-year-old victim consented. Thus, [the defendant] did not dispute the facts of the sexual relationship at trial, and he did not contest them at resentencing, either.
In light of the clear and uncontested record evidence of penetration ... we hold that no reasonable jury would have returned a verdict finding there was no penetration. Accordingly, we find the error in this case harmless beyond a reasonable doubt.

Id. at 523-24 (internal citations omitted).

As mentioned above, Galindez is not on point procedurally with this case because the defendant in Galindez had a jury trial, whereas here no jury trial occurred because the defendant pled no contest. Thus, the harmless error test applied in Galindez - whether a reasonable jury would have returned a verdict finding no penetration in light of the clear and uncontested record evidence of penetration - is inapplicable to this case.

Instead, the harmless error test we would apply here is whether the record demonstrates beyond a reasonable doubt that penetration occurred. We conclude the record can support such a finding because, as stated above, during the sentencing hearing, the victim testified on direct examination, without objection, that the defendant put his penis in her vagina and his tongue in her vagina without her consent. Defense counsel's cross-examination of the victim also acknowledged that one count was for "the penis and vagina penetration" and the other count was for "[the defendant's] mouth to [the victim's] vagina." At no point did defense counsel challenge the victim on any alleged lack of penetration in either instance. Instead, similar to Galindez , the defense's main argument was the defendant thought the sexual encounter was consensual.

Based on the foregoing, we affirm the defendant's convictions and sentences which were based on the scoresheet's inclusion of 160 sexual penetration points.

The Costs Issue

As stated above, the defendant argues that the trial court erred in denying his Florida Rule of Criminal Procedure 3.800(b) motion, which challenged the legality of various costs. We agree that all but one of the challenged costs require reversal and correction of the judgment.

In both Case No. 16-3306CF10A and Case No. 16-5007CF10A, the $60 charges for the misdemeanor counts under section 938.05, Florida Statutes (2016), must be stricken because section 938.05 allows imposition of court costs per case, not per count. Cf. McNeil v. State , 215 So. 3d 55, 58 (Fla. 2017) ("If the Legislature intended to impose costs per case [under sections 938.08, 938.085, and 938.10(1), Florida Statutes (2006) ], it could have expressly done so as it has in other cost statutes. See , e.g. , ... § 938.05(1), Fla. Stat. (2016) ('shall pay as a cost in the case') ...").

In both Case No. 16-3306CF10A and Case No. 16-5007CF10A, the $10 charges under section 318.18(19), Florida Statutes (2016), the $30 charges under section 318.18(13)(a), Florida Statutes (2016), and the $65 charges under section 318.18(20), Florida Statutes (2016), must be stricken because chapter 318 concerns traffic offenses, and the defendant was not charged with traffic offenses. See Anguille v. State , 238 So. 3d 856, 856 (Fla. 4th DCA 2018) (court erred by imposing costs under section 318.18, Florida Statutes (2017), when no traffic offense was charged).

In both Case No. 16-3306CF10A and Case No. 16-5007CF10A, the $26 charges under Seventeenth Judicial Circuit Administrative Order VI-02-D-3 must be stricken because that order applies to only county court cases for hearings held on criminal traffic and misdemeanor violations, none of which applies here.

In Case No. 16-3306CF10A, the $151 charge for the Rape Crisis Trust Fund under section 938.085, Florida Statutes (2016), must be stricken because none of the convictions in that case are offenses enumerated under section 938.085 as subjecting a defendant to discretionary costs.

We reverse the imposition of the foregoing charges, and remand for the ministerial actions of striking those charges from the judgment. The defendant need not be present for such ministerial actions.

We affirm the imposition of the $201 domestic violence surcharge under section 938.08, Florida Statutes (2016), in Case No. 16-3306CF10A. See West v. State , 244 So. 3d 1208, 1208 (Fla. 1st DCA 2018) ("[The defendant] was convicted of breaking into the home of the mother of his child and committing battery. With convictions of this type, § 938.08, Florida Statutes, requires the imposition of a $201 domestic violence-related surcharge.").

Affirmed in part, reversed in part, and remanded as directed.

Taylor and Kuntz, JJ., concur.


source: Caselaw Access Project

author: Klingensmith, J.

license: Public Domain

text:
    FLORIDA HOLDING 4800, LLC, Appellant, v. LAUDERHILL LENDING, LLC and Lauderhill Mall Investment, LLC, Appellees.
    No. 4D18-1948
    District Court of Appeal of Florida, Fourth District.
    [June 26, 2019]
    Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for appellant.
    Todd L. Wallen of Wallen Kelley, Coral Gables, for appellee Lauderhill Lending.
   Klingensmith, J.

Florida Holding 4800, LLC appeals the trial court's order granting Lauderhill Lending, LLC's motion for summary judgment for foreclosure. The property that is the subject of the foreclosure dispute was originally owned by Lauderhill Mall Investment (LMI), who then sold it to Florida Holding. Florida Holding raises several points on appeal claiming the trial court erred in granting the summary judgment, but we affirm as to all issues.

LMI filed a complaint to foreclose on the commercial mortgage, alleging that Florida Holding was in default of the promissory note. Florida Holding answered the complaint asserting affirmative defenses, as well as a compulsory counterclaim for rescission, fraud, negligent misrepresentation, and unjust enrichment among other things. In its counterclaim, Florida Holding alleged that LMI fraudulently misrepresented zoning requirements and their effect on leases with its tenant, the Broward Sheriff's Office (BSO). Florida Holding further alleged that these misrepresentations induced it to purchase the property and execute the promissory note and mortgage in question.

LMI moved for summary judgment, supported by an affidavit from LMI's representative Carlos Segrera who stated that LMI was in physical possession of the note, that the note was endorsed in blank, and that he was prepared to present the note at the summary judgment hearing. Segrera also confirmed that Florida Holding was in default under the note and mortgage. Before the trial court heard the motion, LMI assigned the note and mortgage to Lauderhill Lending who was substituted as the new plaintiff "for all purposes."

Lauderhill Lending then filed its own amended complaint for foreclosure while also seeking to re-establish the promissory note, which had been lost. Regarding the note, Lauderhill Lending alleged that LMI assigned the note to Ocean Bank, a non-party, who then assigned the note back to LMI. LMI in turn assigned the note to Lauderhill Lending, but Ocean Bank "lost or misplaced" the original note while it was in its possession. These allegations were corroborated by an affidavit from Rogelio Villarreal of Ocean Bank attesting to those facts.

Florida Holding answered Lauderhill Lending's amended complaint with the same affirmative defenses and counterclaim that had been directed against LMI, asserting that LMI procured the mortgage and note by false pretenses and misrepresentations relating to BSO's lease on the mortgaged property. Since LMI was no longer a party following its assignment of the note to Lauderhill Lending, the trial court determined that this counterclaim would be considered a third-party claim.

While the third-party claim against LMI was still pending, Lauderhill Lending moved for summary judgment on both the foreclosure and re-establishment of the lost note. The motion stated in part:

2. Plaintiff relies on The Affidavits Filed in Support of this Motion for Summary Judgment, which establish the execution of the note and mortgage, the note's maturity, the existence and loss of the note, the defaults thereon and the balance presently due.
3. In further support of this Motion, Plaintiff relies on the pleadings of record.

Florida Holding responded to Lauderhill Lending's motion claiming: the amount owed was in dispute, its affirmative defenses were unresolved and precluded summary judgment, and that Lauderhill Lending did not produce the original note. Florida Holding submitted an affidavit by its manager, Harry Dorvilier, who claimed LMI made various false representations about the condition of the property during the purchase negotiations. Specifically, Dorvilier claimed LMI stated the BSO leases were "true and correct and have not been modified," but he later learned those leases had been modified by a 2009 ordinance which required BSO to leave the property before the end of its lease. According to Dorvilier, LMI also stated that the building had a new roof when it was in fact just made to look like the roof had been repaired.

Lauderhill Lending responded in turn by filing the affidavit of David Scharf, a BSO representative, opposing Florida Holding's allegations. Scharf stated that BSO executed estoppel letters, which were filed with the affidavit, confirming its obligation to remain as a tenant through the duration of its lease. However, Scharf stated the conditions of the property were "deplorable," and BSO previously notified Florida Holding of "its obligation to repair water leaks, mold and other physical conditions that were causing [BSO's] constructive eviction from the property." Scharf alleged that BSO would have fulfilled its contractual obligations under the lease but for the above defects and its alleged constructive eviction. He also affirmatively stated that BSO's decision to vacate the property had nothing to do with the 2009 ordinance mentioned by Dorvilier in his affidavit.

Lauderhill Lending also pointed out that under the initial contract between Florida Holding and LMI, Florida Holding acknowledged it was purchasing the property "as is" and LMI made "absolutely no warranties, representations or covenants ... regarding the Property or the condition or quality thereof ...." Lauderhill Lending highlighted the provision of the contract wherein Florida Holding stipulated to performing and relying on its own inspections.

At the hearing on Lauderhill Lending's motion for summary judgment of foreclosure, Florida Holding argued that Lauderhill Lending's "three sentence" motion was inadequate and that, as a result, it was "confounded as to how to respond." Lauderhill Lending responded to these alleged inadequacies and ambiguities by setting out in detail what materials it was relying on for the motion. Lauderhill Lending also confirmed that it was not seeking summary judgment on the "factual claims in the third-party complaint against [LMI]," but only on the issues of foreclosure and the lost note.

Due to Florida Holding's claim that it could not properly respond to Lauderhill Lending's motion, the trial court elected to continue the hearing to allow Florida Holding time to respond. As to whether Lauderhill Lending would have to file another motion for summary judgment to correct its alleged lack of specificity, the trial court and Florida Holding's counsel had the following discussion:

[FLORIDA HOLDING]: Your Honor, could we - you know, part of the problem is that in order for me to be able to recall everything -
THE COURT: I think we are going to make the court reporter happy.
[FLORIDA HOLDING]: - I think that is probably what is going to have to be required. I don't know that I should bear the entirety of that expense. Maybe we split the expense if he wants to I mean, it saves some money actually than to have to redraw his summary judgment. I'm willing to go off of what the court reporter has transcribed or alternatively, I would suggest that a proper motion for summary judgment be filed in this case with a proper statement of undisputed facts and the case law that he's going to rely upon and the record citations that he's going to point to for the places for his motion. If I receive a proper motion, Your Honor, I promise you will receive a proper response. And I think then we could have a more informed discussion at a hearing.
THE COURT: I think at this point, [Lauderhill Lending] has laid it all out on the record. I don't know that necessarily, [Lauderhill Lending], you need to go back and draft a motion that reiterates what you said here today. If you guys can agree on splitting the transcript that would be great, and I would love a copy of that too, so I could be prepared. And then you get your response and we will just keep moving forward.

(Alterations and emphasis added).

In line with this discussion, the parties ordered a transcript of the hearing. Because of Florida Holdings' agreement with this proposed plan, Lauderhill Lending never submitted an amended motion for summary judgment.

Two months after that initial hearing, the trial court reconvened on Lauderhill Lending's motion and heard arguments from both parties. Again, Florida Holding complained Lauderhill Lending's written motion and its testimony in support of that motion at the initial hearing were insufficient to support summary judgment:

[FLORIDA HOLDING]: We looked at, we ordered the transcript from the last hearing so we could kind of apprise ourselves of all the arguments that were made and we received the hearing transcript. I went through it and frankly, there's not much more that's in the transcript other than just kind of more of [the] same thing; that everything is kind of before your Honor and there's no genuine issue of material fact.

After considering the arguments and submissions of counsel, the trial court granted summary judgment in favor of Lauderhill Lending on both the foreclosure and lost note counts. This appeal follows.

This court reviews orders granting summary judgment de novo . See Craven-Lazarus v. Pennymac Holdings, LLC , 199 So. 3d 1029, 1030 (Fla. 4th DCA 2016).

Under Florida Rule of Civil Procedure 1.510, a motion for summary judgment "must state with particularity the grounds upon which it is based and the substantial matters of law to be argued and must specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence ('summary judgment evidence') on which the movant relies." Fla. R. Civ. P. 1.510(c). Rule 1.510(c) "is designed to prevent 'ambush' by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing." City of Cooper City v. Sunshine Wireless Co., Inc ., 654 So. 2d 283, 284 (Fla. 4th DCA 1995) (quoting Swift Indep. Packing Co. v. Basic Food Int'l, Inc ., 461 So. 2d 1017, 1018 (Fla. 4th DCA 1984) ). Where a motion states "only in general terms that no material issues of fact or law existed" and that its movant is entitled to relief, such motion is insufficient to place the nonmoving party on notice of the issues that will be argued. Locke v. State Farm Fire & Cas. Co ., 509 So. 2d 1375, 1377 (Fla. 1st DCA 1987).

Florida Holding contends Lauderhill Lending's motion for summary judgment did not meet the requirements of rule 1.510. However, the record shows Florida Holding waived the right to require Lauderhill Lending to refile its motion with more specificity at the first hearing when it stated-on the record-that Lauderhill Lending did not have to "redraw its summary judgment motion" if Florida Holding received the hearing transcript. As stated in Millsaps v. Kaltenbach , 152 So. 3d 803, 805 (Fla. 4th DCA 2014), "[a] party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she has invited the trial court to make." A plaintiff may "waive[ ] any procedural irregularity in [a] motion for summary judgment." Wong v. Crown Equip. Corp ., 676 So. 2d 981, 982 (Fla. 3d DCA 1996) ; accord Vidal v. Liquidation Props., Inc. , 104 So. 3d 1274, 1276 (Fla. 4th DCA 2013). And if an "issue [i]s waived, it cannot be grounds for reversal on appeal." Vidal , 104 So. 3d at 1276. Therefore, Florida Holding cannot now complain that the trial court opted to proceed down one of the roads it agreed to travel.

Regarding Lauderhill Lending's motion for summary judgment on the lost note issue, this court stated in U.S. Bank National Ass'n v. Benoit , 190 So. 3d 235, 237 (Fla. 4th DCA 2016), that:

[A] judgment of foreclosure does not always require surrender of the original note. For example, where a plaintiff satisfies the requirements for the enforcement of a lost, destroyed, or stolen instrument, the plaintiff may foreclose on a property even where the plaintiff no longer has possession of the original note.

The requirements to enforce a lost note are set forth in Section 673.3091, Florida Statutes (2017), which provides:

(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

When a party relies on an affidavit to reestablish a lost note, "the affidavit must establish that whoever lost the note 'was entitled to enforce it when the loss of possession occurred; the loss of the note was not the result of a transfer or lawful seizure; and [the bank] cannot reasonably obtain possession of the note because of the loss.' " Sabido v. Bank of N.Y. Mellon , 241 So. 3d 865, 867 (Fla. 4th DCA 2017) (alteration in original) (quoting Home Outlet, LLC v. U.S. Bank Nat'l Ass'n , 194 So. 3d 1075, 1078 (Fla. 5th DCA 2016) ), clarified on denial of reconsideration , 238 So. 3d 867 (Fla. 4th DCA 2018). Here, Villarreal's unrebutted affidavit attested to the fact that Ocean Bank had rightful possession of the original promissory note which served as security for its previous loans to LMI. When Ocean Bank sought to retrieve the original note to deliver it back to LMI, the location of the note "could not be determined despite OCEAN BANK's diligent search and inquiry." Villarreal's affidavit confirmed that although the original note had either been "lost, misplaced or otherwise destroyed," LMI was entitled to enforce the instrument after it acquired possession from Ocean Bank. See § 673.3091(1)(a). The affidavit also verified that the location of the note could not be determined, but "to the best of [his] knowledge" this loss of possession was not the result of a transfer or seizure since it had not been "endorsed, pledged, transferred, sold, encumbered, conveyed or hypothecated" to anyone else. See § 673.3091(1)(b) & (c).

Based on the pleadings, depositions, answers to interrogatories, and admissions on file together with the unrebutted lost note affidavit of Villarreal of Ocean Bank, Lauderhill Lending met the requirements for the enforcement of the lost note, and the trial court properly granted summary judgment on this issue. Florida Holding's failure to explicitly contest the alleged discrepancies between Villarreal's and Segrera's affidavits at the summary judgment hearing precludes it from doing so here on appeal. See Wildwood Props., Inc. v. Archer of Vero Beach, Inc ., 621 So. 2d 691, 692 (Fla. 4th DCA 1993) ("As to the granting of summary judgment on appellant's lien foreclosure against appellee, we affirm because the grounds now raised were not brought to the attention of the trial court in opposition to the summary judgment.").

As to the issue of summary judgment on the count seeking foreclosure on the note and mortgage, we also find no error. Lauderhill Lending represented to the trial court that it was not seeking summary judgment on Florida Holding's third-party claims against LMI. To the extent that those claims for fraud or misrepresentation are viable, and that material issues of fact remain as to those issues, they were not disposed by the foreclosure or lost-note judgment. In fact, Lauderhill Lending conceded at trial that those third-party claims would still be left for resolution by the court separate and apart from the foreclosure action. Therefore, Lauderhill Lending's final judgment, as to the foreclosure and lost note issues, still allows Florida Holding to proceed on its related third-party claims for relief against LMI. See, e.g. , Penmont Enters., Inc. v. Dysart , 340 So. 2d 1285, 1286 (Fla. 3d DCA 1977) (stating that the issues of cancellation and rescission of contract are "severable and do not affect the right to foreclosure").

For these reasons, we affirm the trial court's summary judgment entered in favor of Lauderhill Lending as to its claims for foreclosure and re-establishing the lost note.

Affirmed.

Damoorgian, J., concurs.

Warner, J., concurs in part and dissents in part with opinion.

Warner, J., concurring in part, dissenting in part.

I concur with that part of the majority opinion which holds that Florida Holding waived the right to require Lauderhill Lending to refile its motion for summary judgment to allege more specifically its grounds for summary judgment. I would reverse, however, on the merits as to the claim to reestablish the lost note, as I think the evidence is not conclusive that Ocean Bank was entitled to possession of the note when its loss occurred. There were two conflicting affidavits filed in this case as to who had possession of the note. LMI had filed an affidavit of its representative, Carlos Segrera, in which he stated that LMI was in physical possession of the note in September 2016. The affidavit of Rogelio Villarreal of Ocean Bank, filed with Lauderdale Lending's motion for summary judgment, stated that Ocean Bank had possession of the note from 2013 to 2017. The two affidavits conflict. Therefore, a material issue of fact remained on the lost note issue, on which the foreclosure depended.

      Along with this motion, Lauderhill Lending filed an affidavit of indebtedness, among other things.

      Ultimately, BSO sued Florida Holding, and the parties entered into a mediated settlement agreement allowing BSO to break its lease and vacate the premises.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. J.B. PARKER, Appellee.
    No. 4D18-3112
    District Court of Appeal of Florida, Fourth District.
    [June 26, 2019]
    Ashley B. Moody, Attorney General, Tallahassee, and Leslie T. Campbell, Senior Assistant Attorney General, West Palm Beach, for appellant.
    Baya Harrison, III, Monticello, for appellee.
   MAY, J.

The State appeals an order granting the defendant's motion to suppress. It argues the trial court erred in granting the motion without an evidentiary hearing and in relying on Parker v. State , 89 So. 3d 844 (Fla. 2011). We agree and reverse.

A full procedural history is unnecessary to our decision. Suffice it to say, this case has had a long past. In 1982, the defendant and co-defendants robbed, kidnapped, and murdered a convenience store clerk. The defendant gave statements and claimed a co-defendant stabbed and shot the victim.

In 1983, the defendant was convicted and sentenced to death. In 1985, the Supreme Court of Florida affirmed the conviction and sentence. Parker v. State , 476 So. 2d 134, 135 (Fla. 1985) (" Parker I "). In 1992, the United States Court of Appeals for the Eleventh Circuit held that the defendant's May 5, 1982 statement was inadmissible. Parker v. Singletary , 974 F.2d 1562, 1574 (11th Cir. 1992) (" Parker IV "). The federal court concluded, however, that the error was harmless and affirmed an order denying habeas corpus relief. Id.

In 1996, the trial court granted postconviction relief and ordered a new penalty phase trial based on newly-discovered evidence. In 1998, the Supreme Court of Florida affirmed this ruling. State v. Parker , 721 So. 2d 1147, 1151 (Fla. 1998) (" Parker V ").

During the second penalty phase trial, the defendant moved to suppress his May 7, 1982 statement, arguing that it derived from the inadmissible May 5, 1982 statement. The trial court granted the State's motion to quash the motion to suppress, and the defendant was again sentenced to death.

On appeal, the Supreme Court of Florida relinquished jurisdiction to the trial court to conduct an evidentiary hearing on the defendant's motion to suppress the May 7, 1982 statement. Parker v. State , 873 So. 2d 270, 278 (Fla. 2004) (" Parker VI "). The issue was whether the defendant reinitiated contact with police after the May 5, 1982 statement.

Rather than presenting testimony, defense counsel and the State stipulated to the record and allowed the court to rule without an evidentiary hearing. The trial court found the defendant reinitiated contact with the police before the May 7, 1982 statement and knowingly and intelligently waived his rights. The Supreme Court of Florida affirmed the denial of the motion to suppress and the death sentence. Id. at 281.

In 2006, the defendant filed another postconviction motion claiming that his counsel was ineffective at the motion to suppress hearing by stipulating to the use of the record, which contained inadmissible hearsay. The trial court denied the motion.

On appeal, the Supreme Court of Florida concluded that counsel had been deficient, but found no prejudice to warrant postconviction relief. Parker v. State , 89 So. 3d 844, 850 (Fla. 2011) (" Parker VIII "). In its decision, the supreme court explained: "[w]e conclude that there would not have been competent, substantial evidence to support the trial court's finding that [the defendant] initiated the May 7 interview, absent the stipulated-to hearsay statements." Id. at 867. The supreme court recognized that, but for counsel's deficiency, the May 7, 1982 statement "would have been suppressed." Id. at 868. Despite this, the supreme court conducted a cumulative prejudice analysis and concluded that confidence in the death sentence was not undermined. Id. at 869.

In 2017, the defendant filed yet another postconviction motion, and the trial court again granted a new penalty phase trial based on Hurst v. Florida , --- U.S. ----, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016). The defendant again moved to suppress his statements. The State argued that an evidentiary hearing was required, while defendant argued that an evidentiary hearing was unnecessary.

At the hearing on the motion, the State announced that it would not use the statements unless the defense opened the door, but the defendant wanted a ruling on the admissibility of the statements-contending that his decision to testify at trial derived from the inadmissible statements. As the parties argued over the admissibility of defendant's 1983 trial testimony, the State disputed the inadmissibility of the May 7, 1982 statement. The State argued that the supreme court had not ruled on the admissibility of the May 7, 1982 statement in Parker VIII . The trial court asked for further briefing.

After receiving the additional briefing and without an evidentiary hearing, the trial court found the May 7, 1982 statement inadmissible based upon Parker VIII . The State moved for rehearing and argued the court should not have ruled on the statement's admissibility because it had decided not to use the statement, and, in any event, an evidentiary hearing was required.

The defendant responded that an evidentiary hearing was not required, that Parker VIII was the law of the case, and the State had not proffered any new evidence to show that the May 7, 1982 statement was admissible. The trial court denied the State's motion for rehearing and adopted the defendant's response.

The State now appeals. It argues the trial court erred in suppressing the May 7, 1982 statement without an evidentiary hearing. The State also argues the supreme court did not determine the admissibility of the May 7, 1982 statement in Parker VIII . Therefore, the law of the case doctrine does not apply.

We review de novo the purely legal issue of whether the law of the case doctrine applies under these circumstances. See State v. McBride , 848 So. 2d 287, 289 (Fla. 2003).

The doctrine of the law of the case requires that "questions of law actually decided on appeal govern the case in the same court and the trial court, through all subsequent stages of the proceeding." ... This doctrine "is limited to rulings on questions of law actually presented and considered on a former appeal."

Thornton v. State , 963 So. 2d 804, 809 (Fla. 3d DCA 2007) (citations omitted).

There are two exceptions to the confines of the doctrine: first, a trial court is not bound to follow the prior ruling if the facts upon which the prior ruling was made are no longer the facts of the case ; and, second, an appellate court may reconsider and correct an erroneous ruling that has become the law of the case where a manifest injustice would result.

Id. (emphasis supplied).

The State is correct. The law of the case doctrine does not apply here. Our supreme court's decision in Parker VIII was limited to whether counsel was deficient in stipulating to the admission of hearsay and whether the defendant was prejudiced thereby. Parker , 89 So. 3d at 860. It did not decide that the May 7, 1982 statement was categorically inadmissible.

The supreme court's conclusions regarding the admissibility of the statement and the sufficiency of the evidence were based on the record then before it. The State is correct that, due to defense counsel's stipulation, it may not have been afforded a fair opportunity to develop evidence concerning the admissibility of the statement at issue. If the facts upon which the supreme court's prior conclusions were made are no longer the facts of the case, then the doctrine does not apply. The trial court erred in relying on Parker VIII to deem the May 7, 1982 statement categorically inadmissible.

Accordingly, we reverse the portion of the trial court's order that summarily determined the May 7, 1982 statement inadmissible, and we remand the case for further proceedings consistent with this opinion.

Reversed and Remanded.

Taylor and Klingensmith, JJ., concur.


author: Forst, J.

text:
    Lewis Darren FRANKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1410
    District Court of Appeal of Florida, Fourth District.
    [June 26, 2019]
    Carey Haughwout, Public Defender, and Timothy Wang, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant, Lewis Franklin, appeals his convictions and ten-year sentence for fleeing or attempting to elude causing serious bodily injury; leaving the scene of a crash involving serious bodily injury; resisting an officer without violence; leaving the scene of a crash involving property damage; and driving while license suspended. We write only to address Appellant's challenge to Florida Standard Jury Instruction (Criminal) 3.6(k)6., as applied to his affirmative defense of duress. On that argument and all others raised, we affirm.

Background

The State presented the following evidence at trial. A Riviera Beach police officer saw Appellant's vehicle fail to come to a complete stop at a stop sign. The officer activated her lights and siren, and the vehicle pulled over but did not stop; it then returned to the road. A pursuit ensued, during which Appellant's car reached 70 miles per hour ("mph") in a 25 mph speed zone. Appellant drove through five stop signs until "t-boning" another car in an intersection and then veering off the road and crashing into a Popeye's restaurant.

Immediately after the crash, Appellant climbed out of the driver's side window and ran across the street, running into a police car as he fled. Appellant kept running away from the accident scene as uniformed officers told him to stop. Appellant did not stop until an officer "tased" him. The driver of the car that was hit by Appellant's vehicle was transported away in a coma. He sustained a traumatic brain injury and is now disabled.

The State's theory of the case was that Appellant fled because he was on probation and driving on a suspended license. Appellant's theory of defense was that he acted out of duress. He testified that his front seat passenger, who he knew only as "Black," compelled him to flee at gunpoint. He claimed to have fled the scene after the crash because Black was still pointing a gun at him.

Appellant's son, the son's fiancée, and another woman were in the backseat. The fiancée testified that Black said he had guns, but admitted she failed to so inform the police when questioned after the crash. The State submitted police dash-cam video which shows that the backseat passengers were much slower to exit the SUV than Appellant and they did not flee. An individual matching Appellant's description of Black was seen running from Appellant's vehicle. He was never located by police.

During the charge conference, defense counsel affirmatively agreed to the standard jury instruction on duress, requesting only one additional sentence (italicized below). The trial court so instructed the jury on duress as follows:

An issue in this case is whether LEWIS DARREN FRANKLIN acted out of duress in committing the crimes of Fleeing or Attempting to Elude (Serious Injury or Death) and/or Leaving the Scene of a Crash Involving Serious Bodily Injury and/or Resisting Officer Without Violence and/or Leaving the Scene of a Crash with Damage.
It is a defense to the crimes charged if the defendant acted out of duress. The defense of duress should be considered for each of these charged crimes independently. In order to find the defendant committed the charged crimes out of duress, you must find the following six elements:
1. The defendant reasonably believed a danger existed which was not intentionally caused by himself.
2. The danger threatened significant harm to himself or a third person.
3. The threatened harm must have been real, imminent, and impending.
4. The defendant had no reasonable means to avoid the danger except by committing the crime of Fleeing or Attempting to Elude (Serious Injury or Death) and/or Leaving the Scene of a Crash Involving Serious Bodily Injury and/or Resisting Officer Without Violence and/or Leaving the Scene of a Crash with Damage.
5. The Fleeing or Attempting to Elude (Serious Injury or Death) and/or Leaving the Scene of a Crash Involving Serious Bodily Injury and/or Resisting Officer Without Violence and/or Leaving the Scene of a Crash with Damage must have been committed out of duress to avoid the danger.
6. The harm that the defendant avoided must outweigh the harm caused by committing the Fleeing or Attempting to Elude (Serious Injury or Death) and/or Leaving the Scene of a Crash Involving Serious Bodily Injury and/or Resisting Officer Without Violence and/or Leaving the Scene of a Crash with Damage.

(Emphasis added); see Fla. Std. Jury Instr. (Crim.) 3.6(k).

The jury found Appellant guilty on all counts.

Analysis

On appeal, Appellant argues that the inclusion of element 6 in the jury instruction on duress was fundamental error. He concedes that this element is part of the standard jury instruction, but contends that it is not a correct statement of the common law defense of duress.

Jury instructions "are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred." Martinez v. State , 981 So. 2d 449, 455 (Fla. 2008) (quoting State v. Delva , 575 So. 2d 643, 644 (Fla. 1991) ). However, "[t]he invited error doctrine provides that fundamental error may be waived where defense counsel affirmatively agrees to an improper jury instruction." Morgan v. State , 146 So. 3d 508, 512 (Fla. 5th DCA 2014) (citing Universal Ins. Co. of N. Am. v. Warfel , 82 So. 3d 47, 65 (Fla. 2012) ). The rationale is that "a party may not make or invite error at trial and then take advantage of the error on appeal." Id. (quoting Sheffield v. Superior Ins. Co. , 800 So. 2d 197, 202 (Fla. 2001) ); see also Joyner v. State , 41 So. 3d 306, 307 (Fla. 1st DCA 2010) ("[W]here defense counsel agrees to a standard jury instruction and then challenges the conviction based upon fundamental error in that instruction, reversal would have the unintended consequence of encouraging defense counsel to stand mute and, if necessary, agree to an erroneous instruction or sacrifice his client's opportunity for a second trial.") (citation and internal quotation marks omitted)).

Here, Appellant not only failed to object to the now challenged element of the jury instruction, he affirmatively agreed to the entire instruction-with the addition of one sentence which was included at his request. Thus, any error in the instruction was waived, and we affirm on this issue.

We nonetheless address Appellant's contention that the inclusion of element 6 in instruction 3.6(k) is in derogation of the common law with respect to the defense of duress. No Florida statute authorizes "duress" as a defense to any of the crimes with which Appellant was charged. Thus, courts must look to the common law. See § 2.01, Fla. Stat. (2017). Prior to the 1998 adoption of instruction 3.6(k), this court articulated the defense of duress as follows:

In Hall v. State , 136 Fla. 644, 187 So. 392 (1939), our supreme court held that one may be excused from the commission of a crime if his acts were done under the compulsion or coercion of a real, imminent and impending danger or of what he had reasonable grounds to believe was a real, imminent and impending danger....
* * *
One of the requirements of the defense is that the coercion must be continuous and that the defendant must have no reasonable opportunity to escape the compulsion without committing the crime. Koontz v. State [, 204 So. 2d 224 (Fla. 2d DCA 1967) ]. The threat of future harm does not suffice. Cawthon v. State , 382 So. 2d 796 (Fla. 1st DCA 1980).

Aljak v. State , 681 So. 2d 896, 897 (Fla. 4th DCA 1996) (second omission in original) (quoting Corujo v. State , 424 So. 2d 43, 44 (Fla. 2d DCA 1982), rev. denied, 434 So. 2d 886 (Fla. 1983) ). In neither Hall nor Koontz was the "outweigh the harm" element included in the discussion of the defense of duress (also referred to as "compulsion" or "coercion"). See Hall , 187 So. at 408-09 ; Koontz , 204 So. 2d at 226-27. These cases provide support for an argument that, prior to the adoption of standard jury instruction 3.6(k), element 6 was not traditionally part of the common law defense of coercion or duress.

On the other hand, in Driggers v. State , 917 So. 2d 329 (Fla. 5th DCA 2005), the Fifth District said that Instruction 3.6(k) "derives from the common law" and "encapsulate[s]" the "defense of duress." Id. at 331. We followed Driggers in Mickel v. State , 929 So. 2d 1192, 1196 (Fla. 4th DCA 2006) and quoted that opinion's recitation of the six elements of duress, including element six. Accord Turner v. State , 29 So. 3d 361, 364-65 (Fla. 4th DCA 2010). Moreover, the cases discussed in Driggers predated Instruction 3.6(k) but nonetheless discussed what became element 6, which Driggers termed the "choice of evils rationale." Driggers , 917 So. 2d at 332. In both Hunt v. State , 753 So. 2d 609, 613 (Fla. 5th DCA 2000) and Wright v. State, 402 So. 2d 493, 498 (Fla. 3d DCA 1981), the defense of duress was found nonapplicable because the crime charged was homicide. Both cases quoted a 1977 Missouri opinion:

Legal recognition of duress as a defense to crimes other than homicide necessarily assumes a working hypothesis that a harm or crime of greater magnitude is avoided when the subjected person succumbs to the duress . This hypothesis disappears when duress is sought to be invoked as a defense in a homicide case.

Jackson v. State , 558 S.W.2d 816, 820 (Mo. Ct. App. 1977) (emphasis added).

Thus, it is unclear as to whether one can definitively say that the "choice of evils" concept that is now element 6 of instruction 3.6(k) derives from what is considered to be "the common law" with respect to the defense of duress. In any case, we are unaware of any challenge to the inclusion of element 6 in the jury instruction for duress during the more than two decades history of that instruction. Moreover, as noted above, Appellant affirmatively agreed to the entire jury instruction on duress, thus waiving any argument of error with respect to that instruction.

Conclusion

Appellant waived his fundamental error challenge to the standard jury instruction on duress by affirmatively agreeing to the entire standard instruction. The trial court's judgment and sentence are affirmed.

Affirmed.

Warner and Gross, JJ., concur.

      Commentators likewise have not always included a "choice of evils" rationale akin to element 6 in their discussion of the common law defense of duress. See, e.g. , Wayne R. LaFave, Duress , 2 Subst. Crim. L. § 9.7 (3d ed. 2018) ("The rationale of the defense of duress is that the defendant ought to be excused when he 'is the victim of a threat that a person of reasonable moral strength could not fairly be expected to resist.' " (footnote omitted) (quoting Joshua Dressler, Exegesis on the Law of Duress: Justifying the Excuse and Searching for its Proper Limits , 62 So. Cal. L. Rev. 1331, 1367 (1989) )); 21 Am. Jur. 2d Criminal Law § 137 (2019) ; Duress , 1 Wharton's Criminal Law § 52 (15th ed. 2018).

      As noted above, element 6 of the jury instruction requires a factfinder to weigh criminal conduct against a harm sought to be avoided. One authority indicates that such a weighing process is a part of both the duress and necessity defenses. "The rationale of the defense of duress is that, for reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person." Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law § 49 (1972). Similarly, the rationale of the necessity defense is one of social policy: "[I]f the harm which will result from compliance with the law is greater than that which will result from violation of it, [a person] is justified in violating it." Id. § 50.


author: Warner, J.

text:
    Luis H. MORALES and Cecilia Morales, Appellants, v. FIFTH THIRD BANK, Appellee.
    No. 4D18-3145
    District Court of Appeal of Florida, Fourth District.
    [July 3, 2019]
    Paul Alexander Bravo, Ricardo R. Corona and Ricardo M. Corona of the Corona Law Firm, P.A., Miami, for appellants.
    Shaib Y. Rios and Michael W. Smith of Brock & Scott, PLLC, Fort Lauderdale, for appellee.
   Warner, J.

Appellant borrowers appeal from a final judgment on a promissory note entered in favor of the lender regarding the borrowers' default on a loan to buy an empty lot. Appellants argue, among other things, that the trial court erred by denying their motion for involuntary dismissal because the Bank failed to plead breach of a loan modification agreement. We agree, reversing and remanding for entry of involuntary dismissal.

In 2005, appellants executed an adjustable rate note in the amount of $125,000 in favor of the appellee, Fifth Third Mortgage Company. The beginning interest rate under the note was 7.875%. Appellants defaulted on the loan. In 2008, they entered into a loan modification agreement that changed the terms of the loan to a fixed interest rate of 6.5% and lowered their monthly payments. The parties agreed that the unpaid principal balance on the note was $120,105.90.

Appellants defaulted again, and in 2011, Fifth Third Bank, a separate entity from appellee and servicer of the note, filed suit to accelerate payment under the note. The complaint was amended a few times, and in the second amended complaint, appellee filed suit under its own name. Appellee attached a copy of the adjustable rate note to this complaint, but appellee neither mentioned the modification nor attached it to the complaint.

The borrowers answered, listing as an affirmative defense that appellee failed to properly credit the borrowers' account with the collected payments. In reply, appellee filed a copy of the payment history on the note, but appellee again did not mention the modification. The payment history reflects the 2008 modification and decreased monthly payments on the note.

Appellee unsuccessfully moved for summary judgment, attaching an affidavit in support of the motion showing the 6.5% interest rate under the modification. In connection with the motion, appellee filed the original adjustable rate note, as well as the 2008 modification that is signed by appellants and shows the fixed interest rate.

After a continuance, the case proceeded to trial in 2017, where the court received into evidence a copy of the note, default letter, judgment figures, and payoff interest details. Final judgment was entered in favor of appellee, and the borrowers appealed. In Morales v. Fifth Third Mortgage Co. , 238 So. 3d 280 (Fla. 4th DCA 2018), we reversed and remanded for a new trial because the trial court violated the best evidence rule by admitting a copy of the note instead of the original.

In 2018, the case again proceeded to trial, which led to the instant appeal. The trial court noted that the original note was filed and that the modification was attached to it. Appellee presented only one witness, an employee of Fifth Third Bank who worked as a litigation portfolio analyst. The witness identified the original, adjustable rate note. However, when appellee moved to enter the modification into evidence, the borrowers objected, arguing that appellee was required to amend its complaint to plead a theory of recovery under the modification. The court disagreed and allowed the modification into evidence. Appellee then moved the demand letter and payment history into evidence.

The witness testified that the loan was in default, and no payments were made since 2009. During cross-examination by the borrowers, the witness stated that the amounts that appellee was seeking to recover were based on the modification.

After appellee rested, the borrowers moved for involuntary dismissal. They contended, among other things, that appellee did not conform the pleadings to the evidence, that the modification upon which appellee relied was neither pled nor attached to the operative complaint, and that it would be error for the court to allow appellee to amend its complaint to conform to the evidence. Appellee responded that it was suing on the original note, and the modification was neither a negotiable instrument nor the operative document in the case. Appellee's counsel agreed with the court that it was not seeking to amend its complaint, but it was relying on the original note. The court denied appellants' motion for involuntary dismissal.

The borrowers then called appellee's witness to testify again. The witness stated that the original note was an adjustable rate note, but its terms were modified in 2008. The amounts sought under the payment history and the default letter were based on the terms of the modification. During cross-examination by appellee, she reiterated that the amounts due and owing were based on both the note and the modification.

In closing argument, defense counsel again sought involuntary dismissal because appellee had relied on the modification, but it had failed to plead it or attach it to the complaint. The court again noted that the appellee was not seeking to amend its complaint. The court denied dismissal.

The court entered judgment in favor of the appellee, finding that the parties entered into a contract, which terms were shown by the note and modification entered into evidence, and that the borrowers owed $195,685.84 in principal, interest, fees, and costs. This appeal followed.

This court reviews de novo the denial of a motion for involuntary dismissal, and we must view the evidence in the light most favorable to the nonmoving party. Rattigan v. Cent. Mortg. Co. , 199 So. 3d 966, 966-67 (Fla. 4th DCA 2016). If an issue is not raised by the pleadings, it may be tried by the parties' express or implied consent; however, if a party objects to evidence on an unpled issue, then the court may allow the pleadings to be amended to conform with the evidence only if there is no prejudice to the objecting party. Fla. R. Civ. P. 1.190(b). A final judgment is void and violates due process where it grants relief that was neither pled nor tried by the parties' consent. See Wachovia Mortg. Corp. v. Posti , 166 So. 3d 944, 945-46 (Fla. 4th DCA 2015).

We agree with appellants that because the appellees based their case at trial on the note and the modification, and the operative complaint neither mentioned nor attached the modification, we must reverse and remand for entry of involuntary dismissal. See Fla. R. Civ. P. 1.130(a) ("All bonds, notes, bills of exchange, contracts, accounts, or documents on which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, must be incorporated in or attached to the pleading."); cf. Johnson v. Deutsche Bank Nat'l Trust Co. Am. , 248 So. 3d 1205, 1209-10 (Fla. 2d DCA 2018) (commenting that a plaintiff must reference the loan modification on which the foreclosure case is based and attach it to its pleading, but finding the issue was waived because the borrowers never objected to the pleading impropriety).

In Tracey v. Wells Fargo, N.A., as Trustee for Certificateholders of Banc of America Mortgage Securities, Inc. , 264 So. 3d 1152, 1154, 1157 (Fla. 2d DCA 2019), the Second District found that the trial court erred by allowing the lender in a foreclosure action to amend its complaint to conform with the evidence and to base its recovery on two unpled loan modification agreements. The modifications were not mentioned in nor attached to the operative, amended complaint, and the borrower failed to raise the modifications as a defense. Id. at 1154. Nevertheless, at trial, the Bank relied on the modifications, arguing that the borrower was not prejudiced because the modifications were attached to the Bank's original, abandoned pleading. Id. The borrower objected that she never prepared a defense based on the abandoned theory of recovery. Id. The trial court allowed the Bank to amend its pleadings, and it entered final judgment in favor of the Bank based on the original note and the modifications. Id. On appeal, the Second District reversed and remanded for involuntary dismissal in favor of the borrower. It held that the borrower clearly suffered prejudice when the trial court allowed the Bank, over objection, to amend its complaint to conform to the evidence, and the court noted that "pleadings function as a safeguard of due process by ensuring that the p[arties will have prior, meaningful notice of the claims, defenses, rights, and obligations that will be at issue when they come before a court." Id. at 1155-57, 1169.

The present case is similar to Tracey , as appellee failed to plead its theory of recovery based on the modification. Notably, during trial, appellee's counsel agreed that appellee was not seeking to amend its complaint based on the modification, but it was relying on the original note. Nevertheless, appellee's witness testified repeatedly that the amount sought was based on the modification and its rate of interest.

Appellee counters that the court properly entered judgment in its favor because a modification is an affirmative defense that must be pled by a defendant borrower to avoid liability. It mainly relies on Bank of New York Mellon for Certificateholders of CWABS, Inc., Asset-Backed Certificates, Series 2005-BC5 v. Bloedel , 236 So. 3d 1164 (Fla. 2d DCA 2018). There, the Bank appealed a final judgment denying foreclosure and granting the borrower's motion for involuntary dismissal. Id. at 1165. At trial, the Bank's only witness, an employee of the servicer, testified that the servicer received a few payments on the loan that were reduced and that reflected a trial modification agreement. Id. at 1165-66. This was the first reference to the modification, and although the borrower did not raise the issue of the modification as an affirmative defense, he argued that the Bank's complaint should be involuntarily dismissed because the Bank failed to offer the modification into evidence, to mention it in its pleadings, and to attach it to its complaint. Id. at 1166. The trial court found that a copy of the modification should have been attached to the lender's complaint, and the Bank failed to allege and to prove a breach of the modification. Id. On appeal, the Second District reversed, finding that while the issue of the modification was not raised in the pleadings, "[t]he effect of a modification to a legal agreement, to the extent it would constitute an avoidance of all or part of a defendant's liability under the agreement , is an affirmative defense that must be pled and proved by the defendant" under Florida Rule of Civil Procedure 1.110(d). Id. at 1166-67 (emphasis added). Thus, because the borrower asserted the modification as an avoidance of liability, he had the burden to plead and prove the existence of the modification. Id. at 1169-70.

The present case is distinguishable from Bloedel . There, the borrower sought to avoid liability based upon the modification, but the bank did not rely on the modification in its case. In Bloedel , the court noted that "it would have been a very different matter had [the Bank] premised its claim or right of recovery on a modification to its note. In that instance, it would have fallen to [the Bank] to adequately plead the modification agreement within its complaint" under Florida Rule of Civil Procedure 1.130. Id. at 1168 n.5. This statement presents the exact circumstance of the present case. In this action, appellee certainly premised its recovery on the modification and the amounts due thereunder. The appellee was required to plead the loan modification and to attach a copy to the complaint.

The borrowers were prejudiced by the failure to plead the loan modification. The complaint sought recovery only under the original note, which had a higher initial rate but was adjustable. As noted by the borrowers, the adjusted loan rate of the original loan may have been significantly lower than the stated rate in the loan modification, given the low interest rates over the past decade. The appellee presented no proof consistent with the terms of the original loan, instead relying on both the total amount due and the rate of interest in the modification. The borrowers were thus on notice through the pleadings to defend on the original note but then required at trial to defend against an entirely different instrument.

The question is: What directive should be given on remand? In Tracey the court provided a thoughtful analysis of appellate remand. It held:

We hold that when fashioning remand for a civil appeal where the party with the burden of proof fails to sufficiently plead the claim it presents at trial or to establish a basis in admissible evidence for a claim at trial, an appellate panel may exercise some level of equitable discretion to consider the circumstances of the particular case. This discretion is bounded both by the substantive relief sought within the appeal and the strong preference for finality of trial proceedings. The prohibition against proverbial multiple "bites at the apple" for trials remains firmly rooted as the leading, guiding principle to govern the scope of remand and should serve as the default direction when these kinds of decisions are being made. We agree with how the [court in Morton's of Chicago, Inc. v. Lira , 48 So. 3d 76, 79-80 (Fla. 1st DCA 2010) ] put it: only "exceptional legal or factual" circumstances will justify a deviation from this general prohibition. 48 So. 3d at 80.

Tracey , 264 So. 3d at 1168. We agree with Tracey's holding.

Applying that to the present case, we conclude that we should direct involuntary dismissal of the complaint on remand. Without pleading the modification, the appellee failed to present evidence to support the case that it did plead on the original note. It affirmatively refused to amend its pleading to state the case it sought to prove. Because of the appellee's failures, the borrowers have been compelled to defend against two trials.

Accordingly, we reverse and remand with directions for the trial court to enter an involuntary dismissal in favor of appellants.

Gerber and Conner, JJ., concur.


author: Per Curiam.

text:
    Shawn Michael BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3973
    District Court of Appeal of Florida, First District.
    June 6, 2019
    Shawn Michael Brown, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

WOLF, KELSEY, and WINOKUR, JJ., concur.


author: PER CURIAM.

text:
    Raul VELAZQUEZ, Appellant, v. Josh HERMAN, etc., et al., Appellees.
    No. 3D16-2729
    District Court of Appeal of Florida, Third District.
    Opinion filed June 19, 2019
    Eaton & Wolk, PL, and Douglas F. Eaton, Miami, for appellant.
    Law Office of Jerry D. Haynes, P.A., and Jerry D. Haynes, Fort Lauderdale, for appellees.
    Before EMAS, C.J., and SCALES and HENDON, JJ.
   PER CURIAM.

Raul Velazquez, appellant and plaintiff below ("Velazquez"), appeals a November 8, 2016 final judgment entered in favor of appellees, defendants below, Josh Herman and Herman Bail Bonds, Inc. (together, the "Herman Defendants"). While the jury returned a verdict against the Herman Defendants on Velazquez's civil conspiracy claim, the trial court granted the Herman Defendants' post-trial motions and entered the challenged final judgment notwithstanding the jury verdict in Velazquez's favor. We affirm.

Velazquez's son, Darli Velazquez-Armas ("Darli"), was arrested in January 2007, and charged with federal drug trafficking violations. The United States District Court for the Southern District of Florida conditioned Darli's release on the posting of a $1,000,000 corporate surety bond. Once Velazquez arranged for this surety bond, Darli was released from custody. Shortly thereafter, in March 2007, Darli absconded.

There were several stages to Velazquez's effort to secure the surety bond. Initially, Velazquez contacted a local bail bondsman, Emilio Faroy of Faroy Bail Bonds. Faroy enlisted the assistance of Joe Mastrapa and his company Surety Financial of America Corporation. Mestrapa put Faroy in contact with the Herman Defendants in California who had a business affiliation with International Fidelity Insurance Company ("IF"). Velazquez (and his wife) executed IF's written application for appearance bond and an indemnity agreement, and obtained the surety bond from IF. Velazquez paid a $100,000 premium (which was split by Faroy, Mastrapa and the Herman Defendants), and put up as collateral properties he owned in Miami and North Carolina. After Darli absconded, Faroy and Mastrapa demanded that Velazquez provide additional funds toward the apprehension of Darli. Velazquez raised $441,211.73 in cash and partial proceeds from a quick sale of the Miami property to Darli's wife.

Velazquez paid the $441,211.73 to Faroy and Mastrapa who, in turn, forwarded this sum to the Herman Defendants. The Herman Defendants hired a bounty hunter named Rolando Betancourt who tracked down Darli and returned him to federal custody in August 2007.

After Darli's capture, Velazquez demanded the return of his additional funds, less the reasonable costs and fees incurred in the apprehension of Darli. Although Betancourt's final bill was for $371,056.59, the Herman Defendants paid him only $191,000. Velazquez filed suit in March 2011. The gravamen of Velazquez's complaint was that the several bail bondsmen overcharged Velazquez for the apprehension of Darli. Velazquez sued ten defendants and raised numerous legal theories; essentially, Velazquez alleged that the Herman Defendants conspired with the other defendants to convert his property. After a series of dismissals and summary judgments, Velazquez went to trial against only the Herman Defendants on a lone civil conspiracy count. On August 14, 2015, the jury found in Velazquez's favor and awarded him $250, 211.73.

The Herman Defendants filed post-trial motions seeking a judgment notwithstanding the jury's verdict, and the trial court conducted extensive hearings on the motions, resulting in the trial court rendering a detailed, 36-page order that granted the Herman Defendants' post-trial motions. Ultimately, the trial court entered the challenged final judgment in favor of the Herman Defendants.

The trial court essentially determined that, if Velazquez had a claim against the Herman Defendants, it was not a civil conspiracy claim, but "a garden variety breach of contract claim premised upon an alleged failure to return money advanced pursuant to an express written agreement entered into between Velazquez and IF - through IF's agent - Herman."

The trial court found that: (i) IF and the Herman Defendants had a right to protect the $1,000,000 surety bond by pursuing Darli; (ii) IF and the Herman Defendants had a contractual right to require Velazquez to advance expense money to pursue Darli; (iii) if the Herman Defendants' investigative expenses were excessive or unreasonable, the Herman Defendants' failure to return any excess funds to Velazquez neither constituted tortious conduct nor provided a foundation for a civil conspiracy claim; and (iv) "if all funds advanced were not used to secure Darli's recapture, IF - and Herman - had a contractual obligation to return the unearned portion."

After our careful review of the record on appeal, we find no error in the trial court's analysis set forth in its comprehensive and well-reasoned order on the Herman Defendants' post-trial motions.

Affirmed.

      The District Court did not estreat the surety bond. Eventually, the District Court discharged the surety bond in February 2008.

      At trial, Josh Herman testified that the Herman Defendants incurred additional expenses by hiring other investigators so that their total expenditure was approximately $439,000.

      The jury arrived at this award by subtracting the $191,000 payment to Betancourt from the $441,211.73 that Velazquez paid in additional funds. After an error in the verdict, the trial court granted Velazquez's motion to amend the verdict to reflect the jury's intent to award $250,211.73.

      We note, as the trial court did, both that IF obtained summary judgment on Velazquez's breach of contract claim, and that the record does not reflect whether Velazquez appealed this summary judgment.


author: HARRIS, J.

text:
    Bruce Allan HIGGINS, Jr., Petitioner, v. Emily Michelle HIGGINS, Respondent.
    Case No. 5D19-957
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 20, 2019
    Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, for Petitioner.
    Emily Michelle Higgins, Gotha, pro se.
   HARRIS, J.

Bruce Allan Higgins, Jr., seeks review of the lower court's denial of his motion to disqualify the trial judge. Because Mr. Higgins established a well-grounded fear that he would not receive a fair hearing from the trial judge assigned to his case, his motion was legally sufficient and should have been granted. We therefore grant the petition.

Mr. Higgins initially filed for an injunction for protection against his wife, Emily Michelle Higgins ("the injunction case"). He successfully secured an injunction against Mrs. Higgins and, in a modified final judgment of injunction for protection, was awarded one hundred percent time-sharing with the couple's minor children. Subsequent to the injunction case, Mrs. Higgins filed a separate petition for dissolution of marriage ("the divorce case"), but over the ensuing four years, remained unable to personally serve Mr. Higgins with the divorce paperwork.

In February 2019, Mrs. Higgins requested a status conference and a hearing in the divorce case before the trial judge, to whom both the divorce and the injunction cases had recently been assigned. The statements of the trial judge at the status hearing and actions he took following the hearing formed the basis for Mr. Higgins's well-founded motion to disqualify.

At the hearing, the court's frustration with the lack of service on Mr. Higgins was evident. The trial judge made unsolicited comments that Mr. Higgins was trying very hard to evade service. The trial judge called Mr. Higgins's actions both ridiculous and outrageous and then mused in open court that if Mr. Higgins was an uncooperative witness in a criminal case, the trial judge could have him arrested. The trial judge, again without any request from Mrs. Higgins, said he would research whether he did, in fact, have the power to have Mr. Higgins arrested. He then instructed Mr. Higgins's attorney, appearing for the limited purpose of arguing lack of personal jurisdiction, to advise Mr. Higgins that the judge found his conduct ludicrous.

The trial judge's improper comments did not stop there. He stated that Mr. Higgins must be a wealthy husband-even though there was no financial evidence in the record-who had taken total control of the situation by virtue of the domestic violence injunction. He opined that Mr. Higgins was abusing the system and wondered whether dissolving the injunction would allow him to make all the findings therein simply go away. Finally, in the injunction case, the trial judge issued an "Order for Hearing of All Matters Related to Time Sharing and Support," despite the fact that there were no pending motions for the court to rule on and no request from Mrs. Higgins for such relief.

Mr. Higgins promptly filed a motion to disqualify the trial judge in the injunction case, arguing that the judge's comments presented a reasonable basis to believe that the trial judge would be unable to impartially consider the evidence in the case or consider Mr. Higgins's other arguments. Mr. Higgins further argued that the trial judge's comments established objectively reasonable grounds for his subjective fear of not getting a fair hearing. The ensuing court order denied the motion to disqualify as legally insufficient without comment.

A petition for writ of prohibition is the proper avenue for review of a motion to disqualify. Sutton v. State, 975 So. 2d 1073, 1076 (Fla. 2008). Where a motion to disqualify is not heard by a successor judge, the only question for the court is the legal sufficiency of the motion. J & J Indus. Inc. v. Carpet Showcase of Tampa Bay, Inc., 723 So. 2d 281, 282-83 (Fla. 2d DCA 1998). As these determinations are purely questions of law, appellate review is de novo. Lynch v. State, 2 So. 3d 47, 48 (Fla. 2008).

Mr. Higgins rightly argues that his motion to disqualify should have been granted because the trial judge, by his comments and actions, strayed from a position of neutrality. Siding with Mrs. Higgins on issues not raised at the hearing and based solely on her testimony, without affording Mr. Higgins an opportunity to respond, showed clear evidence of judicial bias. Further, the trial judge's comments that Mr. Higgins's conduct was ridiculous, outrageous, and ludicrous, his musings about dissolving the injunction and its related findings, his decision to research whether he could arrest Mr. Higgins, and his unorthodox decision to schedule a hearing in the injunction case when there was no motion or request to do so established a well-grounded fear in Mr. Higgins that he would not receive a fair hearing from the judge. See In re Amendments to Fla. Rules of Jud. Admin., 939 So. 2d 966, 1004 (Fla. 2006) (providing that motion to disqualify shall show that "the party fears that he or she will not receive a fair trial or hearing because of described prejudice or bias of the judge"). The motion was legally sufficient and should have been granted.

The remaining issue to resolve is what relief this Court should grant Mr. Higgins. In the prayer for relief in his petition for writ of prohibition, Mr. Higgins mentions disqualifying the trial judge in both cases. Even though the judge's comments were made in the dissolution case, the order he entered on his own initiative to consider matters relating to time-sharing and support was done in the injunction case. Whether through oversight or based on a strategic decision to avoid subjecting himself to the court's jurisdiction in the divorce case, Mr. Higgins filed his motion to disqualify only in the injunction case.

While the judge's inappropriate comments, which seemingly advocated on Mrs. Higgins's behalf, would arguably warrant disqualification in both cases, we decline to order disqualification in the divorce case. Mr. Higgins did not file a motion in that case, nor did his motion in the injunction case request disqualification in the divorce case. While incongruous to disqualify a judge from one case based on comments made in a related case but not to disqualify him in the case in which the comments were made, that is the relief to which the law limits us.

The Petition for Writ of Prohibition is granted. The order denying the motion to disqualify, filed in the injunction case (2014-DR-11465), is quashed and the case remanded with instructions to grant the motion.

EVANDER, C.J., and EDWARDS, J., concur.

      The record actually reflects that the court had to strike attempted service on Mr. Higgins on several occasions because of Mrs. Higgins's repeated failure to properly serve him.

      Whether Mr. Higgins has any legally sufficient grounds for disqualifying the judge in the divorce case that can be timely presented, or whether the trial judge on his own chooses to disqualify himself in the divorce case, will be left for resolution below.


text:
    STATE of Florida, Appellant, v. Anthony Joseph AVELLA, Appellee.
    Case No. 5D18-1407
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    J. Michael Blackstone, of J. Michael Blackstone, P.A., Crystal River, for Appellee.
   PER CURIAM.

The State of Florida appeals the trial court's order dismissing charges brought against Anthony Joseph Avella for practicing veterinary medicine without a license and for cruelty to animals. The charges arose out of Avella's use of a homemade device in an attempt to treat a problem that his miniature dachshund, Thor, was having. Avella asserts that he attempted the treatment himself because he could not afford veterinary treatment. After Avella's home-treatment injured the dog, he took Thor to a local veterinarian for professional treatment. The veterinarian insisted that the dog, who allegedly was in pain and may have had internal injuries, needed to go to an advanced care veterinary facility to treat the original condition and the home-treatment caused injury; however, Avella did not do so based on claimed lack of funds. We affirm dismissal of the charge that he was practicing veterinary medicine without a license, but reverse and remand so that the prosecution for the cruelty to animals charge may proceed beyond the pleadings stage.

A motion to dismiss should be granted "[o]nly where the most favorable construction to the State would still not establish a prima facie case of guilt." State v. Taylor , 16 So. 3d 997, 999 (Fla. 5th DCA 2009). "[E]ven if the trial court doubts the sufficiency of the State's evidence, it may not grant a motion to dismiss criminal charges simply because it concludes that the case will not survive a motion for judgment of acquittal." Id. at 1002. A trial court's ruling on a motion to dismiss is reviewed by this court de novo. State v. N.F ., 924 So. 2d 912, 913 (Fla. 5th DCA 2006).

UNLICENSED PRACTICE OF VETERINARY MEDICINE

Section 474.213(1)(i), Florida Statutes (2018), forbids a person from practicing veterinary medicine without a license; Avella is not a veterinarian and is certainly not licensed in Florida for that profession. The State relies upon a related statutory provision for its argument that Avella was practicing veterinary medicine without a license. Section 474.202 defines "practice of veterinary medicine" and "veterinary medicine" as follows:

"Practice of veterinary medicine" means diagnosing the medical condition of animals and prescribing, dispensing, or administering drugs, medicine, appliances, applications, or treatment of whatever nature for the prevention, cure, or relief of a wound, fracture, bodily injury, or disease thereof; performing any manual procedure for the diagnosis of or treatment for pregnancy or fertility or infertility of animals; or representing oneself by the use of titles or words, or undertaking, offering, or holding oneself out, as performing any of these functions. The term includes the determination of the health, fitness, or soundness of an animal.
"Veterinary medicine" includes, with respect to animals, surgery, acupuncture, obstetrics, dentistry, physical therapy, radiology, theriogenology, and other branches or specialties of veterinary medicine.

§ 474.202(9), (13), Fla. Stat. (2018).

Avella relies instead upon the statutory exemptions found in section 474.203(5)(a), which permit a person to care for her or his own animals, as he claims that he was just trying to help Thor. The pertinent part of that section exempts the following class of people from the regulations of chapter 474:

Any person, or the person's regular employee, administering to the ills or injuries of her or his own animals, including, but not limited to, castration, spaying, and dehorning of herd animals ....

The State takes the position that Avella's argument, taken to the extreme, would permit animal owners to perform amputations and open surgery on their pets, which of course the State says would be absurd. Avella takes the argument to the other extreme, saying that the State's view would criminalize the actions of any owner who assists in delivery of puppies, bobs a dog's tail, or renders other minor care. Neither side cites any cases regarding the interpretation of the statute.

Avella's argument, that the purpose of the statute was to prevent unlicensed veterinary care provided to the public rather than to criminalize the care an owner provides to his or her animals, is based upon section 474.201, which reads as follows:

The Legislature finds that the practice of veterinary medicine is potentially dangerous to the public health and safety if conducted by incompetent and unlicensed practitioners. The legislative purpose in enacting this chapter is to ensure that every veterinarian practicing in this state meet minimum requirements for safe practice....

Given the stated purpose and statutory exemptions for caring for one's own animals, we hold that the trial court did not err in dismissing Count I for unlicensed practice of veterinary medicine under these circumstances. When the Court construes a statute, "we look first to the statute's plain meaning." Moonlit Waters Apartments, Inc. v. Cauley , 666 So. 2d 898, 900 (Fla.1996). Furthermore, "[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Holly v. Auld , 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931) ); see Fla. Convalescent Ctrs. v. Somberg , 840 So. 2d 998, 1000 (Fla. 2003).

ANIMAL CRUELTY

As for Count II, animal cruelty, the State argues that Avella's conduct in using a homemade tool to remove bone fragments from Thor's rectum and then failing to take Thor to a qualified advanced care clinic fits under section 828.12(2), Florida Statutes (2018), which reads:

A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty ....

Avella argues that he had no intention of harming Thor and was only trying to relieve his dog's problem himself because he lacked the money to pay for veterinary and advanced veterinary care. Looking at the statutory language, we agree with the State's argument that the statute does not require a specific intent to cause pain, but rather punishes an intentional act that results in the excessive infliction of unnecessary pain or suffering. See Reynolds v. State , 842 So. 2d 46, 50 (Fla. 2002). Even if Avella were correct that the jury should consider his motivation and intent in home-treating Thor, questions of motive, intent, or knowledge are generally not appropriately decided in a motion to dismiss, but instead are left to the trier of fact. See, e.g. , State v. Wilkinson , 724 So. 2d 614, 615 (Fla. 5th DCA 1998) ; State v. Hart , 677 So. 2d 385, 386 (Fla. 4th DCA 1996). For those reasons, we find that the trial court erred in dismissing Count II; thus, we remand for further proceedings on the animal cruelty charge.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS

ORFINGER, EDWARDS and GROSSHANS, JJ., concur.

      Avella asserts in his answer brief that he took Thor to a second veterinarian who supposedly also refused to treat the dog. However, since the charges were dismissed at the pleadings stage, it is inappropriate at this point to consider that claim.

      Thor ultimately received treatment, recovered, and after a period of time, was returned to Avella.


author: COHEN, J.

text:
    John PICCININI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2919
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019
    Elizabeth Siano Harris, of Harris Appellate Law Office, Mims, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Following a jury trial, John Piccinini was convicted of two counts of animal cruelty pursuant to section 828.12(2), Florida Statutes (2015). The allegations were that on two separate days, Piccinini intentionally inflicted excessive and unnecessary pain and suffering on a dog, the latter of which resulted in the dog's death.

Piccinini raised a number of issues on appeal related to the conduct of the trial. We find no reversible error in the trial court's handling of the trial nor in the denial of Piccinini's motions for judgment of acquittal. Piccinini provided at least three different stories in an attempt to explain the dog's injuries and death, all of which were inconsistent with the testimony of the treating veterinarian as well as the veterinarian who performed a necropsy on the dog. Contrary to Piccinini's position, the State presented compelling evidence sufficient to rebut any reasonable hypothesis of innocence. Thus, we affirm his conviction.

However, we find that during the sentencing proceedings, the trial court erred in considering Piccinini's failure to accept responsibility for the dog's injuries and death. Prior to sentencing, Piccinini moved for a nonstate prison sanction or, alternatively, to empanel a jury for sentencing. He argued, in part, that section 775.082(10), Florida Statutes (2015), established a presumptive nonstate prison sentence for defendants like him, who scored 22 points or less under the sentencing guidelines, from which a trial court could deviate up to the statutory maximum of imprisonment in a state correctional facility upon a finding that the defendant presented a danger to the public.

At the sentencing hearing, Piccinini presented evidence addressing his future dangerousness through the testimony of an expert witness, Dr. Robert Cohen, who performed a psychological evaluation on Piccinini. As to his evaluation, Dr. Cohen testified:

Well, I-I looked at several things. When I do a forensic evaluation, I allow the person I'm evaluating a lot of leeway to tell me all about themselves, to-I give them the opportunity to sort of tell their story the way they want to tell the story, and I see the way that they take responsibility, don't take responsibility, the way they empathize with people in-in the -the case.
....
I also did an evaluation looking at features of psychopathy. And psychopathy are, you know, features that we see sometimes in antisocial personality disorder, people who have very low sense of morality, or a low sense of self-consciousness or consciousness of other people. They step on other people, they manipulate other people, they lie pathologically, they don't take responsibility, they live a parasitic lifestyle.

Dr. Cohen concluded that there was no evidence of psychopathy and that Piccinini did not present a danger to the community.

Although the trial court rejected Dr. Cohen's testimony, it did not impose a Department of Corrections sentence. On count one, the court sentenced Piccinini to fifty-one weeks in Orange County Jail with credit for time-served, followed by one year of community control and three years of probation. On count two, the court imposed four years of probation consecutive to the one year of community control. In pronouncing the sentence, the court recounted the evidence presented at trial and then stated:

The other thing is that, Mr. Piccinini has taken no responsibility for any of the injuries. Although [the veterinarian] indicated that some of the injuries were fresh and some of them were old injury, but there were multiple injuries, and they were caused from blunt force trauma and-but all of the treatments, all-both times, when the animal required medical treatment or medical attention, it was for the times after [the dog] had been left alone with Mr. Piccinini.
The other thing that really bothers me is, I-I've heard Dr. Cohen's testimony. I don't see that Mr. Piccinini took responsibility for anything that happened to [the dog]. One of the comments at trial was that the door was left open, and perhaps the neighbor-neighborhood kids had something to do with it, perhaps [the fiancée's] father had something to do with it, perhaps even [the fiancée], herself, had something to do with the post-mortem injury to [the dog's] head. Everybody was blamed except Mr. Piccinini.

On appeal, Piccinini argues that the trial court fundamentally erred by considering his failure to take responsibility and his lack of remorse.

"Generally, the trial court's imposition of a sentence that is within the minimum and maximum limits set by the legislature 'is a matter for the trial [c]ourt in the exercise of its discretion, which cannot be inquired into upon the appellate level.' " Berben v. State, 268 So. 3d 235, 237 (Fla. 5th DCA 2019) (quoting Nusspickel v. State, 966 So. 2d 441, 444 (Fla. 2d DCA 2007) ). "However, an exception exists when the trial court considers constitutionally impermissible factors in imposing a sentence." Id. (citing Kenner v. State, 208 So. 3d 271 (Fla. 5th DCA 2016) ). " '[W]hen a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant's due process rights,' committing fundamental error." Id. (quoting N.D.W. v. State, 235 So. 3d 1001, 1002 (Fla. 2d DCA 2017) ).

The State counters that the trial court's consideration of Piccinini's failure to accept responsibility for his actions was in response to Dr. Cohen's testimony. However, the trial court's comments undermine the State's position. The trial court specifically focused on Piccinini's failure to accept responsibility for his actions regarding the dog's injuries and death. The court then continued with that theme in discussing Dr. Cohen's testimony, noting that "the other thing" that bothered the court was Piccinini's attempt to place blame on everyone else but himself. (Emphasis added).

As was his right, Piccinini maintained his innocence throughout the proceedings. While a trial court has discretion to consider a wide range of factors when imposing a sentence, consideration of a lack of remorse or failure to take responsibility, under these circumstances, is not permissible and constitutes fundamental error. See Strong v. State, 263 So. 3d 199 (Fla. 5th DCA 2019) ; Robinson v. State, 108 So. 3d 1150 (Fla. 5th DCA 2013) ; see also Lawton v. State, 207 So. 3d 359 (Fla. 3d DCA 2016).

Accordingly, we affirm Piccinini's conviction, vacate his sentence, and remand for resentencing before a different judge. See Strong, 263 So. 3d at 199-202 (affirming conviction but vacating sentence and remanding for resentencing before a new judge where original judge impermissibly relied on defendant's lack of remorse in imposing the sentence).

AFFIRMED in part; REVERSED in part; and REMANDED.

EISNAUGLE and SASSO, JJ., concur.

      Section 828.12(2), Florida Statutes (2015), provides:
      A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty, a felony of the third degree ....

      The dog belonged to Piccinini's then-fiancée.

      A nonstate prison sanction is "understood to mean probation, community control, or imprisonment in the county jail for up to one year." Reed v. State, 192 So. 3d 641, 645 (Fla. 2d DCA 2016) (quoting Jones v. State, 71 So. 3d 173, 175 (Fla. 1st DCA 2011) ).

      Section 775.082(10), Florida Statutes (2015), provides:
      If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

      The court did not rule on Piccinini's sentencing motion but complied with section 775.082(10) in sentencing him to a nonstate prison sanction.

      Piccinini failed to object to the trial court's comments at the sentencing hearing.

      In contrast, this Court has distinguished circumstances where a defendant has entered a plea admitting involvement in crimes and seeks mitigation, or where a defendant seeks a downward departure based upon remorse. See Corbitt v. State, 220 So. 3d 446 (Fla. 5th DCA 2016).